Law Times

Page 4 June 2, 2014 • Law Times www.lawtimesnews.com Should barristers, solicitors have separate regulators? Issue follows British row, report on imbalance of benchers at Convocation By Julius melniTzer For Law Times n emerging concern among Ontario so- licitors about their continuing underrep- resentation in the ranks of bench- ers of the Law Society of Upper Canada could breed creeping de- mands to regulate barristers and solicitors separately. As a Law Times story pointed out recently, only four of the elected benchers at Convocation — and just one from Toronto — are pure solicitors with a handful working as both barristers and solicitors. The situation has prompted concern that solicitors' issues don't get a fair hearing at Convocation. One bencher has gone so far as to suggest that "small-firm solicitor issues get trampled by issues that are important to barristers." As it turns out, a rapidly changing legal landscape could also make it harder for barristers and solicitors to continue to coex- ist under the same regulatory um- brella. As the experience in Brit- ain demonstrates, the situation becomes more complex when, as they do in Ontario, barristers and solicitors are able to compete for the same work. In Britain, the Law Society of England and Wales represents so- licitors and the Bar Council repre- sents barristers. For the most part, barristers and solicitors perform separate functions. More recently, however, the strict separation be- tween the duties of solicitor and barrister has partially dimin- ished. Solicitors frequently appear not only in the lower courts but increasingly in the higher courts. Of late, the competition for work between the two groups of lawyers has turned into nothing less than an unseemly row. It began when a report emerged suggesting that quality concerns in the criminal courts were on the rise as barristers lost work to less-qualified solicitors. The Bar Council responded to the report by highlighting those portions that tended to denigrate solicitors' advocacy skills. For their part, the Criminal Law Solicitors' Association and the London Criminal Courts Solicitors' Association responded with a joint statement accusing the Bar Council of no less than "self-interested, hubristic trium- phalism" that advanced its "own narrow self-interested agenda." To be sure, emotions in Ontario are hardly running near the same fevered pitch. But it's hard to deny an undercurrent exists. For the time being, however, the focus seems to be on getting more solicitors into Convocation. "We would be better served if we had more solicitors as bench- ers," says Gavin MacKenzie, a former law society treasurer who currently practices in Davis LLP's Toronto office. But there are significant ob- stacles in the way. One of the most daunting obstacles is getting solic- itors to stand for election as most of them practise at small firms and can't spare the time to deal with benchers' ever-increasing workload. The second is winning the election. For the most part, prominent barristers tend to have higher profiles than even very ex- perienced solicitors. Still, the law society's history reveals that solicitors have histor- ically played an important role. "Laura Legge and Susan Elliott, Jack Ground, and Abe Feinstein made outstanding contributions and always brought a solicitor's perspective to deliberations," says MacKenzie. As well, Alan Silverstein, a real estate and mortgage spe- cialist from Thornhill, Ont., has been among the hardest- working and most-respected benchers at Convocation since he first won election in 2003. Elliott, a former LSUC treasur- er, notes the law society has tried to fill the gap by involving a broad range of people in committee work. "The number of times when it's important to have solicitors or specialized groups like criminal lawyers involved in policy discus- sion is actually very small, and I like to think that at a professional level, we're smart enough to cover off that need with consultation and inclusion," she says. According to MacKenzie, splitting up regulation of the profession could lead to an en- croachment on its history of self- governance in Ontario. "That's happened in England and Wales where different organizations are responsible for regulating bar- risters, solicitors, legal executives, and paralegals," he says. "The public gets confused about the system and about inconsistencies in the rules and regulations." Elliott notes other downsides as well. "There's a very practical side to this because regulation has a substantial cost, especially when you have such a small bar," she says. As for representation, she notes solicitors have started to address the issue. "Solicitors are organiz- ing to deal with the underrepre- sentation," she says. LT NEWS 12-month, part-time, executive LL.M. for lawyers and business professionals Advance your career to the next level! Learn important legal and business concepts that can be immediately applied to better serve your clients. Explore the implications of real-life cases in an increasingly complex global business environment. Acquire in-depth knowledge of how the law interacts with both the private and public sectors. 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