Part A of the NCA Syllabus on Canadian Professional Responsibility discusses the Law as a profession and the concept of professionalism. It is impossible to discuss the law as a profession without understanding the idea of self-regulation and the role it plays in today’s legal practice.
Self-regulation is the framework for regulation of lawyers in Canada, a regulation of lawyers by lawyers. It is defined in the prescribed text by Alice Woolley et al. as the control, direction, or governance of an identifiable group by rules and regulations determined by the members of the group, in the area of law. It takes on the form of autonomous governing bodies, known as law societies in the Common Law Provinces in Canada.
Professions are considered different from occupations in that they function with the public’s interest at their core, their services must be provided at the highest ethical standards by persons competent and qualified to offer such services. To ascertain this competence, various educational evaluations are undertaken as well as requirements fulfilled for licensing. This relationship between the profession, its members and the State creates a social contract that allows the profession to enjoy monopoly or dominate the market.
Various fields considered as professions enjoy these traits and exemplify similar characteristics to the legal profession, these characteristics are:
- Self – regulation: an autonomous body for regulating members conduct.
- Mastery of a specialized field of knowledge, acquired through an extensive period of formal education and practical training.
- Restriction of admission to the profession or practice to those who have demonstrated such proficiency through a period of theoretical and practical training followed by successful completion of examination of tests and competence.
- Presence of a first and particular responsibility to a client or patient.
- Provision of important services in relation to vital needs associated with the health, freedom, spiritual state, and economic well-being of persons.
- Use of specialized knowledge and skills in the furtherance of not only individual but public interest.
- Existence of a Code of Professional ethics.
- Heightened social prestige due to the intellectual nature of the work.
- Higher professional incomes.
- Monopoly in the market over that particular service.
Lawyers ethics as we know it or professional responsibility is only possible because the profession is one that regulates itself, the code of ethics is drawn up by members of the profession and breaches of ethical behaviour or conduct seen as unbecoming of the profession are evaluated by members of the profession who stand as a disciplinary body and duly castigate or punish those who err. Historically the regulation of the profession is what created the evolution of codes and rules that govern everyday practice thereby safeguarding the public from errant members of the profession. There is case law in support of the fact that the legal profession be a profession that self regulates, as a field of experts cannot be regulated by ‘non-learned’ persons who have not undergone the training required to be an expert in the field. In Law Society of Manitoba v. Savino, Monnin C.J.M. observed:
“No one is better qualified to say what constitutes professional misconduct than a group of practicing barristers who are themselves subject to the rules established by their governing body.”
The protection of self-regulation is rooted in arguments that the independence of the profession is due to the protection of individual rights and liberties from threats imposed by the State. This is based on the historical claim of self-governance in the public’s interest. In Canada (Attorney General) v. Law Society of British Columbia the Court expressed that:
“The independence of the Bar from the State in all its pervasive manifestations is one of the hallmarks of a free society.”
Self-regulation is not always seen as a positive concept, there are various approaches used to examine it that may not portray it in a positive light. Sociologists and economists have used a number of approaches to critically examine the path of professions and professionalism, in deciding whether self-regulation is beneficial to the public as a whole or is just an excuse to create an elitist community.
Approach 1: Looks at the profession from the perspective of the market
This approach is held by some sociologist and builds on Weber’s work. It postulates that professions are different from other occupations because the structures put in place are to gain an advantage in a competitive marketplace, with the resulting awards of social status and heightened wealth. It is considered the critical school of thought which sees professions as groups that apply certain strategies to gain advantage in a competitive marketplace with the end result of the awards of societal status, mobility and heightened wealth. For this structure of a profession to succeed there are various steps put in place:
- a profession must construct a demand for its services, i.e., market for specialized legal services. The service must be one that is invaluable and cannot be duplicated by the consumer.
- the market must pursue a strategy of market closure designed to limit or control the number of producers in the market, thereby controlling the production of the services within the market.
- entry to the market is controlled through devices such as formal educational requirements, licensing standards or qualifications and evaluations.
- control may be formal or informal to protect members of the profession from competition with one another as well as protect them from those in the market.
This strategy is exclusionary and cannot succeed without the collaboration of various tiers of the society: the profession, State, and university. By putting these safeguards in place, there is a control of the production of services by its members, which remedies a disorderly, chaotic, and overly competitive market. The reduction of competition enhances the social status of its members and causes a general belief of neutrality and objectivity of the members of the profession.
This approach is a critical approach to the view of professions, as it projects self-interest and a pursuit of wealth and social status. It projects that public interest is not the central focus of the profession, but its exclusionary tactics ensure scarcity of the services and reduce competition which keep prices higher than in any open or free market.
Approach 2: Professions restrain the operation of a free market in their sectors
This is a similar approach to the first view, but it is held by economists who believe that the construct of professions restrain the operation of a free market. They state that the justification of ensuring a high quality of service is nothing but an excuse and is not enough to restrain the free market. Instead of viewing the regulatory restraints and entry barriers as necessary to ensuring a high quality of service, they are seen as detrimental as the end result of such investment is passed onto the consumers in form of a high cost of services and restriction of open competition.
Approach 3: The structural functional approach to professionalism
This approach is held by another group of sociologists and is referred to as the structural functional approach. This is a more positive view of professions and sees them as important contributors to order and stability in the society. They believe that it is a collection of egotistical rewards and greater social status. where individuals compete internally within the formal structures offered by professions. These rewards are necessary to keep the contract of the profession alive and keep people interested in joining such structures although the main aim is for greater public good. Professions in this instant are also seen as an important source of community in societies marked by individualism. A common education, specialized vocabulary, a shared sense of professional role or function binds the members together, keeping them focused and pursuing their one goal of justice.
Structural functionalists see professionals as enjoying broad autonomy, free from outside interference. There therefore needs to be some form of regulation to ensure that they are technically qualified to carry out the service rendered, so that they do not abuse power rooted in their specialized knowledge or expertise.
In conclusion, the legal profession as a whole is rooted in a structure that is built upon and promotes self-regulation, the negative theories have highlighted areas that may be seen as self-serving but have not made any proposals or stated alternatives to the current structure of professionalism. The history of the law is deeply rooted in a state of service to the people and awards such as high social standing or remuneration evolved over time and were not the initial intent of the structures put in place. It would be almost impossible and detrimental to professions to have an overhaul of the system by inviting non-members to adjudicate in their matters, with law especially one would have to read extensively and dedicate personal time to improving and exposing Ines self to the profession that they may well go through the trainings and certifications and become a member of the profession itself. Professions have been able to prove that there is some neutrality in the discipline and regulation of its members based on the intricacy of their work and services provided as such the current framework is important and showcases the protection of ethical conduct in the profession.
 Alice Woolley [et al.] Lawyers’ Ethics and Professional Regulation (Lexis Nexis Canada Inc. 2017) at 81
(Charles Wolfram, Modern Legal Ethics (St. Paul, MN: West Publishing, 1986) at 15
Richard L. Abel, American Lawyers (New York: Oxford University Press, 1989) at 14-40
By Funto Omotoso
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