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The Canadian Legal Profession

Published online by Cambridge University Press:  20 November 2018

H. W. Arthurs ,
R. Weisman  and
F. H. Zemans
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Abstract

This article seeks to weave together the limited information available on the legal professions of the Canadian provinces. Following the same general format as the other comparative studies in this series, it also offers several critical observations of special interest to readers in the United States, whose experience the Canadian bar so closely tracks. The phenomenon of stratification—familiar to American observers—is clearly visible in the Canadian legal profession. Combined with other centrifugal forces, it threatens the unity of a profession which, until recently, has managed to preserve a high degree of cohesion in training, ideology, and institutional structures. On the other hand, in certain respects, the Canadian experience seems to differ from that of the United States, especially in the strength and peculiar structure of publicly funded legal aid schemes, in the profession's continuing formal autonomy and relative immunity from public regulation, and in its long-lasting attachment to apprenticeship as a necessary stage in professional formation. These and other convergences and divergences between the two countries raise questions of general significance: To what extent do the similarities between Canada and the United States verify the assumption implicit in the theoretical literature (principally Abel, Freidson, and Larson) that there is an empirical referent for something called legal professionalism? And to what extent do the differences suggest that containing societies contribute distinctive characteristics to their legal professions, whose qualities are therefore highly contingent?

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Articles
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American Bar Foundation Research Journal , Volume 11 , Issue 3 , Summer 1986 , pp. 447 - 532
Copyright
Copyright © American Bar Foundation, 1986 

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146 Novak v. Law Soc'y of British Columbia, 31 D.L.R.3d 89 (B.C.S.C.) (1972).Google Scholar

147 See, e.g., Law Society Act, Ont. Rev. Stat. ch. 233, £ 34; Law Society Act, Man. Rev. Stat. ch. L-100, £ 45 (1970).Google Scholar

148 See, e.g., Barristers & Solicitors Act, B.C. Rev. Stat. ch. 26, £ 50 (1979) (“misappropriation or wrongful conversion”); Legal Profession Act, Alta. Rev. Stat. ch. L-9, £ 47 (1980) (“conduct… inimi cal to the best interests of the public”); Professions Code, Que. Rev. Stat. ch. C-26, £ 87 (1977) (“the duty to discharge [his] professional obligations with integrity”).Google Scholar

149 Professions Code, Que. Rev. Stat. ch. C-26, s£ 12, 13, 94, 95 (1977).Google Scholar

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151 See, e.g., Law Society of Upper Canada, Professional Conduct Handbook (as amended to 1983), which covers the following: integrity; competence and quality of service; advising clients; confidential information; impartiality and conflict of interest; outside interests and the practice of law; preservation of clients' property; the lawyer as advocate; the lawyer in public office; fees; withdrawal of services; the lawyer and the administration of justice; making legal services available; responsibility to the profession generally; practice by unauthorized persons; responsibility to lawyers individually; disbarred persons; borrowing from clients; retired judges returning to practice; delegation to nonlawyers.Google Scholar

152 Canons of Legal Ethics (Ottawa: Canadian Bar Association, 1920); Code of Professional Conduct (Ottawa: Canadian Bar Association, 1974).Google Scholar

153 Canadian Bar Association, Code of Professional Conduct (1974).Google Scholar

154 Id. Rule 13.Google Scholar

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156 See, e.g., Legal Profession Act, Alta. Rev. Stat. ch. L-9, £ 76 (1980); Barristers and Solicitors Act, B.C. Rev. Stat. ch. 26, £ 67 (1979); Law Society Act, Ont. Rev. Stat. ch. 233, £ 51 (1980).Google Scholar

157 See, e.g., Re Cwinn & Law Soc'y of Upper Canada, 28 Ont. 2d 61 (Div. Ct.) (1980); Novak v. Law Soc'y of British Columbia, 31 D.L.R.3d 89 (B.C.S.C. 1972).Google Scholar

158 Merchant v. Law Soc'y of Saskatchewan, 32 D.L.R.3d 178 (Sask. C.A. 1973).Google Scholar

159 Attorney-General of Canada v. Law Soc'y of British Columbia, Jabour v. Law Soc'y of British Columbia, 137 D.L.R. 3d 1 (Can. 1982).Google Scholar

160 See generally W. Hurlburt, ed., The Legal Profession and Quality of Service (Ottawa: Canadian Institute for the Administration of Justice, 1979).Google Scholar

161 See present Rule 2, Competence and Quality of Service.Google Scholar

162 Statutory provisions permit suspension or termination of the right to practice for physical or mental disability, see, e.g., Law Society Act, Ont. Rev. Stat. ch. 233, £ 35, 43 (1980).Google Scholar

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164 Barristers and Solicitors Act, B.C. Rev. Stat. ch. 26, £ 50 (c), 51 (2) (1979) provides for suspension from practice or limitation of the right to practice and for mandatory remedial studies and reexamination; see A. Marshall, Practice Advisory Services, 14 L.S.U.C. Gaz. 357 (1980).Google Scholar

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166 Such intervention may take the form of a critical public statement by the judge either during the course of the proceeding or at the time of delivering judgment or of a direct communication to the law society inviting disciplinary action. Incompetent service may also justify a partial reduction (or complete forfeiture) of professional fees, see Re Solicitor, [1971] 1 Ont. Rep. 138.Google Scholar

167 See generally A. Esau, Specialization and the Legal Profession, 8 Man. L.J. 255 (1979); id., Recent Developments in the Specialization Regulation of the Legal Profession, 11 Man. L.J. 133 (1981); S. Colvin et al., supra note 13; E. Colvin, supra note 13.Google Scholar

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172 See, e.g., Law Society Act, Ont. Rev. Stat. ch. 233, £ 33, 34, 39 (1980).Google Scholar

173 See, e.g., Barristers and Solicitors Act, B.C. Rev. Stat. ch. 26, £ 51 (1) (1979).Google Scholar

174 See supra note 162.Google Scholar

175 See, e.g., Law Society Act, Ont. Rev. Stat. ch. 233, £ 44 (1980).Google Scholar

176 See, e.g., Prescott v. Law Soc'y of British Columbia, 19 D.L.R.3d 446 (B.C.C.A. 1971).Google Scholar

177 See Bucknall et al., supra note 70; Baker, supra note 60.Google Scholar

178 A. Z. Reed, Present-Day Law Schools in the United States and Canada 530 (New York: Carnegie Foundation for the Advancement of Teaching, 1928).Google Scholar

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185 See, e.g., R. Macdonald, Legal Education on the Threshold of 1980's, 44 Sask. L. Rev. 39 (1979); E. Veitch, The Vocation of Our Era for Legal Education, 44 Sask. L. Rev. 19 (1979); J. Mac-Laren, Legal Education: Common Law Canada, 11 U. Ottawa Colloque Int'l Droit Comparé 54 (1974).Google Scholar

186 Law and Learning, supra note 26, at ch. 2.Google Scholar

187 See generally id. at chs. 4–7, where the following analysis is documented and developed in detail.Google Scholar

188 Mackay, P., L'enseignement du droit dans une perspective de changement social, 44 Sask. L. Rev. 73 (1979).Google Scholar

189 At least one inquiry concluded that the articling experience was too uncertain and uneven to warrant its continuation, MacKinnon Committee Report, supra note 71.Google Scholar

190 Principally in British Columbia, which has organized a skills training program employing, inter alia, clinical techniques of instruction.Google Scholar

191 See Huxier, , supra note 68.Google Scholar

192 See Adam & Lahey, supra note 51; Huxter, supra note 68; Berger, supra note 29, reports a very low level of geographic (as opposed to occupational) mobility.Google Scholar

193 In addition to the particular sources cited, the most comprehensive Canadian study of lawyers' functions and markets is S. Colvin et al., supra note 13. Data in the Colvin study are pertinent to much of the analysis that follows.Google Scholar

194 The Canadian economy is closely integrated with, and influenced by the behavior of, that of the United States. Foreign ownership (principally American) dominates many key sectors. And even purely Canadian businesses are heavily involved in international trade, finance, and technology transfers, especially with the United States.Google Scholar

195 Local professional rules generally require that the names of law firms include only their present partners or former partners who were licensed to practice within the jurisdiction. Hence, none of the large international law firms operates under its own name in Canada. See, e.g., Law Society of Upper Canada, supra note 151, rule 13, para. 6.Google Scholar

196 See supra notes 109 & 110.Google Scholar

197 The extent to which professional functions may be delegated to such specialists and clerks is becoming a matter of formal concern, see Law Society of Upper Canada, supra note 151, rule 20, Delegation to Non-lawyers (adopted 1983).Google Scholar

198 See, e.g., Taman, supra note 15.Google Scholar

199 See generally sources cited in supra notes 62, 65, 66, & 78.Google Scholar

200 See H.W. Arthurs et al., supra note 34; Adam & Lahey, supra note 51; Adam, supra note 74; Huxter. supra note 68.Google Scholar

201 See, e.g., Clement, Gall, both supra note 51; Clement, Porter, Newman, all supra note 62.Google Scholar

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203 See id.; Clement, Gall, both supra note 51; E. Colvin, supra note 13.Google Scholar

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206 Anecdotal evidence such as that provided by Batten, supra note 202, tends to be confirmed by statistics which reveal that “errors and omissions” insurance claims are most numerous among solo practitioners and small firms. Of course, errors by large firms might result in a proportionately smaller number of proportionately larger losses.Google Scholar

207 Smith & Tepperman, supra note 60, suggest that community activities by members of the legal elite may be less common than formerly. Nonetheless, members of elite firms (not necessarily senior members) seem to be overrepresented in professional government (see text following supra note 117) and in various aspects of legal education.Google Scholar

208 See, e.g., Adam & Lahey, supra note 51.Google Scholar

209 The Altman & Weil survey, supra note 204, reveals a direct correlation at all levels between firm size and income.Google Scholar

210 A common manifestation is active participation by firm members in the leadership of civic, community, cultural, political, religious, or ethnic organizations; obviously, such participation may also flow from other motives.Google Scholar

211 See Nelligan, , Lawyers in Canada, supra note 28.Google Scholar

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214 Id. at 180–82.Google Scholar

215 See Arthurs et al., supra note 34, at 507 et seq.; S. Colvtn et al., supra note 13.Google Scholar

216 Batten, J., In Court 1 (Toronto: Macmillan, 1982), fondly refers to counsel—civil and criminal—as “the renegades of the Canadian legal profession,” as they are perceived by those “who practise in the more mainstream and respectable areas”; the irony is palpable. See also M. Schumiatcher, Man of Law: A Model (Saskatoon, Sask.: Western Producer, 1979).Google Scholar

217 See Arthurs, S., supra note 155.Google Scholar

218 E.g., in Ontario, the law society is involved in two current lawsuits on the point, see Can. Law., April 1984, at 5. Similar litigation has occurred in Nova Scotia, McFetridge v. Nova Scotia Barristers' Soc'y, 123 D.L.R. 475 (N.S.C.A. 1981); and in British Columbia, Jabour v. Law Soc'y of British Columbia, 137 D.L.R. 3d 1 (Can. 1982).Google Scholar

219 Arthurs et al., supra note 34, at 522 et seq.; Yale, supra note 56, at 38.Google Scholar

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222 Altman & Weil, supra note 204.Google Scholar

223 Ribordy, Les avocats de Sudbury, supra note 32, stresses the impact on that city's lawyers of a number of exogenous changes, including the introduction of tax provisions that encouraged partnership formation, the advent of legal aid, and the collapse of the international market for nickel (the city's sole major industry). For a more anecdotal account of the life of a small-town lawyer, see Batten, supra note 202, at ch. 2, The Country Lawyer.Google Scholar

224 Report of the Special Committee, supra note 22.Google Scholar

225 Finlayson, G., The Lawyer as a Professional, 14 L.S.U.C. Gaz. 229 (1980). The author, who is the treasurer (presiding officer) of the law society, denounced the “role of the lawyer as a social advocate” in immigration, environmental, and civil rights matters, admonishing newly called lawyers: “[D]on't hype yourself up with high sounding titles—Barrister and Solicitor says it all” (at 235).Google Scholar

226 See, e.g., id. at 235: “Please remember that you are not law professors, students of human behaviour or social or political scientists. You are lawyers first and last.” Finlayson also draws a line between those who “may wish to leave the profession at some point in time to become politicians, sociologists, government bureaucrats, and many other honourable callings” and those who “choose to practise law in the traditional sense: the representation of a client in any sphere.”Google Scholar

227 Using such appointments as an index of professional prestige and recognition, it may be said that law teachers have recently moved up in ranking, as reflected in their appointments to the Supreme Court of Canada, the higher provincial courts, law reform commissions, and the like.Google Scholar

228 Fowler, supra note 12; S. Robins, The Appointment of Queen's Counsel, 8 L.S.U.C. Gaz. 157 (1974); W. Angus, Judicial Selection in Canada—the Historical Perspective, 1 Can. Legal Stud. 220 (1967); E. Ratushny, Judicial Appointments: The Lang Legacy, in A. Linden, ed., The Canadian Judiciary (Toronto: Osgoode Hall Law School, 1976).Google Scholar

229 Trebilcock, M., C. Tuohy, & A. Wolfson, Professional Regulation, P.O.C. Staff Study (Toronto: Professional Organizations Committee, 1979), show that members of large firms are distinctly over-represented in the profession's governing body; employed lawyers (other than law teachers) are entirely unrepresented; and solo practitioners and members of small firms are underrepresented (at 205). However, this may reflect not only professional ranking but also the willingness and ability of large firms to subsidize the nonremunerative activities of their members, who thereby escape the financial sacrifices made by lawyers who take time off from their own practices.Google Scholar

230 Altman & Weil, supra note 204, al 36, indicate that regardless of size, Canadian law firms tend to spend half their revenue on costs.Google Scholar

231 See id. at 13.Google Scholar

232 In fact, geographic dispersal may be a relatively recent phenomenon in large cities, see Arthurs et al., supra note 34, at 526–28. Ribordy, Les avocats de Sudbury, supra note 32, at 136, similarly reports geographical concentration in a small city.Google Scholar

233 See, e.g., Solicitors Act, Ont. Rev. Stat. ch. 478 (1980); M. Orkin, The Law of Costs chs. 4, 5 (Toronto: Canada Law Book, 1968); P. Halpern & S. Turnbull, An Economic Analysis of Legal Fees Contracts, in Evans & Trebilcock, supra note 14.Google Scholar

234 Canadian Bar Association, Code of Professional Conduct, rule 10 (1974). In Ontario, for example, while overcharging amounting to virtual fraud could conceivably attract formal sanctions, client complaints to the law society on this subject are routinely channeled into the taxing process, B. Reiter, Discipline as a Means of Assuring Continuing Competence in the Professions, P.O.C. Working Paper No. 11, at 66 (Toronto: Professional Organizations Comittee, 1975).Google Scholar

235 Arlidge, B., Contingent Fees, 11 Ottawa L. Rev. 374 (1974); Halpern & Turnbull, supra note 233. The contingent fee is not authorized in Ontario or Quebec.Google Scholar

236 See, e.g., Law Society of Upper Canad, supra note 151, rule 10, paras. 1 (e), 2.Google Scholar

237 Orkin, supra note 233, at ch. 2.Google Scholar

238 See, e.g., Re Solicitors, [1972] 3 Ont. 2d. 433.Google Scholar

239 Attorney-General of Canada v. Law Soc'y of British Columbia, Jabour v. Law Soc'y of British Columbia, 137 D.L.RJd 1 (Can. 1982).Google Scholar

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241 See, e.g., M. Trebilcock & B. Reiter, Licensure in Law, in Evans & Trebilcock, supra note 14, esp. at 84 et seq. Google Scholar

242 For a study of the potential effects of privately funded legal insurance schemes see C. Wydrzyn-ski, The Development of Prepaid Legal Services in Canada, in Evans & Trebilcock, supra note 14. So far the effects remain largely potential, as such schemes are in their infancy, in part due to lack of support from the law societies.Google Scholar

243 See, e.g., J. Bowlby, Annual Report: 1982, 17 L.S.U.C. Gaz. 126, 145–47 (1983). where the Law Society's Legal Aid Committee complained of inadequate increases in the legal aid fee tariff, since “practising members of the bar who act for legally-aided clients… are carrying the unfair share of the financial burden… in these hard times.” The committee also argued that “during an economic recession… the disadvantaged segments of our society require a strong legal aid delivery system to help them when they face legal problems.”Google Scholar

244 A. Hudec & M. Trebilcock, Lawyer Advertising and the Supply of Information in the Market for Legal Services, 20 U.W. Ont. L. Rev. 53 (1982); R. Evans & A. Wolfson. Cui Bono—Who Benefits from Improved Access to Legal Services'?in Evans & Trebilcock, supra note 14.Google Scholar

245 433 U.S. 350 (1977).Google Scholar

246 C.W. Mitchell, The Impact, Regulation and Efficacy of Lawyer Advertising. 20 Osgoode Hall L.J. 119, 129 (1982).Google Scholar

247 Law Society of Upper Canada, supra note 151, rule 13, para. 14. For a comparison of the various rules respecting advertising in the Canadian provinces, see W. Shupe, Legal Advertising in Saskatchewan: Tune-up or Overhaul, 45 Sask. L. Rev. 259 (1981).Google Scholar

248 Professional Organizations Committee, supra note 102, at 192.Google Scholar

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252 The Jabour case, 137 D.L.R.3d 1 (Can. 1982). The case arose before the adoption of Canada's new Charter of Rights and Freedoms, which, by according constitutional priority to various freedoms. recast the “freedom of expression” argument in a form the Supreme Court has yet to address.Google Scholar

253 Law Society of Upper Canada, supra note 151, rule 13, para. 17.Google Scholar

254 See Quinn, , supra note 14.Google Scholar

255 Occasionally, however, even these public activities may attract censure, see Merchant v. Law Soc'y of Saskatchewan, 32 D.L.R.3d 178 (Sask. C.A. 1973).Google Scholar

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257 Friedland, M., Legal Aid Working Papers 1964, Part III—Legal Aid in Ontario, 1963—A Statistical Summary (prepared for the Joint Committee on Legal Aid), at 6. Friedland indicates that these statistics may actually be high, as the data compare charges handled by legal aid with 1961 Dominion Bureau of Statistic figures with respect to persons charged.Google Scholar

258 1983 Annual Report, Ontario Legal Aid Plan, Law Society of Upper Canada 49.Google Scholar

259 Constitution Act, 1867, 30 & 31 Victoria, ch. 3, £ 92 (14).Google Scholar

260 This diversity is described in Frederick Zemans, Canada, in F. Zemans, ed., Perspectives on Legal Aid: A Comparative Survey 93–133 (London: Frances Pinter, 1979). See also id., Recent Trends in the Organization of Legal Services, in W. J. Habscheid, ed., Effectiveness of Judicial Protection and Constitutional Order 373–435 (Bielefeld, West Ger.: Gieseking, 1983).Google Scholar

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263 See generally Stephen Wexler, Practicing Law for Poor People, 79 Yale L.J. 1049 (1970).Google Scholar

264 The exception is Alberta, where the independent organization—the Legal Aid Society of Alberta—was established in 1973 as an incorporated society under the Societies Act of Alberta, Alta. Rev. Stat. ch. 347 (1970) (Certificate of Registration No. 7163).Google Scholar

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266 A similar phenomenon has been noted in India; see Marc Galanter, New Patterns of Legal Services in India (paper prepared for Conference on the Career and Prospects of Law in India, University of Wisconsin. Madison. June 1982).Google Scholar

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271 The first Canadian judicare scheme was established in Ontario in 1967. The 25% reduction in fees was criticized by the Osier Commission in 1975 but remains an inherent part of the plan's administration. See Legal Aid Act, Ont. Rev. Stat. eh. 234, £ 22 (1) (1980).Google Scholar

272 Ribordy, Les Services d'Aide Juridique à Sudbury, supra note 32, at 28 (1982); and Brantigham & Burns, supra note 268, Report VII, at 26 (table 8.1.2).Google Scholar

273 For an interesting examination of this tenuous relationship see Pauline Morris & Ronald N. Stern, Cui Bono? A Study of Community Law Offices and Legal Aid Society Offices in British Columbia (Vancouver, B.C.: Ministry of the Attorney-General, 1976). See also Brief Presented on Behalf of the British Columbia Section of the Canadian Bar Association Concerning the Burnaby Public Defenders Pilot-Project Study 7 (1982). The British Columbia branch's brief also criticizes a number of conclusions of the Burnaby report and disputes several of its assumptions, including assertions that the lawyers in the pilot project were average criminal lawyers. The bar clearly rejected the concept of staff or salaried legal aid lawyers.Google Scholar

274 In Ontario, 13 of the 47 community-based clinics are unionized, with the vast majority of the membership composed of community legal workers and support staff. Some articling students and staff lawyers have joined the union. Twelve of the clinics have joined the Ontario Public Services Union (O.P.S.U.), while the Sudbury clinic is affiliated with the steelworkers' union. Staff lawyers working in legal aid are unionized in Quebec and Manitoba, and most clinics are unionized in Saskatchewan, with all legal and nonlegal staff being union members in those clinics that have unions.Google Scholar

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279 See Ontario's Legal Aid Act, Ont. Rev. Stat. ch. 234, £ 4 (1980).Google Scholar

280 Section 2 of the act stipulates that the law society is to establish and administer a legal aid plan; £ 9 further provides for the creation of an advisory committee on legal aid composed of a judge of the Supreme Court, a judge of a county or district court, a provincial judge, two members of the bar of Ontario, and a person holding a responsible position in the field of public welfare. It is noteworthy that no mention is made of citizen participation or, for that matter, of client input. Similar provisions exist in New Brunswick. See Legal Aid Act, N.B. Rev. Stat. ch. L-2, £ 2 (1), 6 (1) (1973).Google Scholar