Rhetoric and Realities: What Independence of the Bar Requires of Lawyer Regulation
56 Pages Posted: 4 Jul 2011
Date Written: July 3, 2011
Advocates for lawyer self-regulation rely on the concept of “independence of the bar,” the idea that lawyers must be free from any external interference with their representation of clients. Critics, meanwhile, argue that independence has a broader meaning than the advocates suppose and that, in any event, the self-regulatory structure of the legal profession is not necessary to ensure independence.
This paper presents the varying interpretations of independence of the bar and suggests that while the advocates for self-regulation have a more justifiable understanding of independence than do critics, the concept of independence of the bar is not itself central to assessing the validity of any particular regulatory scheme. Rather, the things that independence should protect – the ability of lawyers to be zealous advocates for clients within the bounds of legality – should be used to assess the adequacies of any regulatory scheme. Does regulation ensure that lawyers fulfill their duty of zealous advocacy? Does regulation ensure that lawyers remain within the bounds of legality? Does regulation ensure access to justice?
With these criteria in mind, and using recent changes to the regulation of lawyers in England and Wales as a comparator, the paper then analyzes the adequacy of regulation of Canadian lawyers with respect to competence, the general structure of professional regulation and access to justice. Based on this analysis, the author proposes changes to improve lawyer regulation in Canada.
Keywords: legal ethics, regulation
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