Alice Woolley, “Rhetoric and Realities: What Independence of the Bar Requires of Lawyer Regulation”

Working Abstract

Lawyers and advocates for the self-regulation of the legal profession cite the need for “independence of the bar” to justify the current structure of lawyer regulation in Canada, and to resist calls for change. This paper unpacks the foundations of the idea of independence of the bar, suggesting that those foundations provide a normative framework for assessing the adequacy of different regulatory structures, although independence of the bar itself does not. It identifies five criteria to be used to evaluate regulation of the market for legal services, and then applies those criteria to three regulatory issues in Canada: regulation of lawyer competence; the structure of regulation of legal services; and, access to justice. The paper draws extensively on recent reforms to the regulation of legal services in England and Wales to inform the critique of regulation in Canada. The paper concludes that the regulatory criteria arising from independence of the bar do not justify the current approach to lawyer regulation in Canada, and suggest a number of important reforms should be made.

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