What If We Didn’t Wait?: Canadian Law Societies and the Promotion of Effective Ethical Infrastructure in Law Practices
Canadian Bar Review, Forthcoming
48 Pages Posted: 3 Dec 2014 Last revised: 14 Mar 2015
Date Written: December 2, 2014
Canadian law societies primarily regulate lawyer behaviour by responding to complaints made against individual lawyers. Although this complaints-based regime is necessary, in particular to address cases of lawyer misfeasance or extreme incompetence, it is limited in its ability to target a significant determinant of ethical lawyer conduct: the presence of institutional policies, procedures, structures and workplace culture within a law practice that help lawyers fulfill their ethical duties. Given the importance of these formal and informal measures — referred to collectively as “ethical infrastructure” — this article explores whether and how law societies might become more active in promoting effective ethical infrastructures within Canadian law practices.
Ensuring effective ethical infrastructures within law practices seems self-evidentially good: we want lawyers to work in environments that facilitate compliance with their ethical duties. It is less obvious, however, that it would be a good thing for law societies to regulate the ethical infrastructures of Canadian legal practices. Decisions about a practice’s ethical infrastructure, like what policies and procedures to put in place, are typically thought to fall to private ordering and the decisions of law firm managers (influenced by insurer and client demands) rather than to the domain of public regulators like law societies. Indeed, many Canadian lawyers are likely to be suspicious of proposals to add an additional layer of regulator involvement in their practices.
What justifies regulatory intervention in this area? The case presented in this article for expanded law society involvement in the ethical infrastructures of Canadian law practices is three-fold: (1) there are reasons to believe that these infrastructures could, as a general matter, be improved; (2) this improvement would, in turn, lead to improved outcomes in relation to lawyers’ ethical duties; and (3) current law society regulatory efforts are not optimally situated to assist with this improvement. Stated otherwise, law societies should become more involved in the ethical infrastructures of Canadian law practices because neither the market nor current regulatory efforts are effectively addressing this important aspect of law practice.
Keywords: legal ethics, Canada, ethical infrastructure, lawyers, legal profession, regulation, compliance
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