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Regulatory reform explored as compliance-based approach considered

|Written By Tali Folkins

Regulatory reform is on the agenda as the Law Society of Upper Canada gets ready to launch a task force on compliance-based entity regulation.

‘I think we all appreciate we’re now living in an age where individualism is not responsible for everything,’ says Janet Minor.

On June 25, benchers voted to put together a task force to study and make recommendations on compliance-based entity regulation, an approach touted as being more proactive that’s already in use in Australia, England, and Wales. The approach is attracting increasing interest in the United States and other jurisdictions. In Canada, the Nova Scotia Barristers’ Society is in the process of implementing it.

Compliance-based regulation, in the words of a law society treasurer’s report released last week, “is based on the encouragement and support of improved practices by the regulator, primarily by setting goals and expectations, and providing supports and information as needed to law firms and legal practices.” It shifts the focus from responding to complaints and enforcement through discipline to setting out goals and expectations so lawyers can ensure they have the proper systems in place.

The decision to look at compliance-based entity regulation stems from the law society’s desire to keep up with changing times, says Treasurer Janet Minor.

“I think we all appreciate we’re now living in an age where individualism is not responsible for everything,” she says. “And our mandate is protection of the public interest. So I think our question has to be: Is it best protected by the old regime of just complaints after the fact or is it better protected by trying to get compliance and awareness and consciousness and conduct formulated before the fact so that you don’t have complaints?”

She adds: “There are more and more firms which are already looking at how their lawyers should best comply with rules of conduct, and we need to regularize that. . . . We’re not saying one size has to fit all but we need to have some kind of consistency in what we think are the best practices for proactive, systemic regulation.”

The task force looking into compliance-based entity regulation will likely produce interim reports to Convocation as it progresses with a final report due next June.

Minor wouldn’t comment on how much such a regulatory system might cost the law society, noting that’s one of the issues the task force would look at. It’s possible, she says, that it could save the regulator money in some ways given, for example, that it could conceivably reduce the number of disciplinary hearings.

“We’re not eliminating complaints about individuals,” she says. “That could still happen. But this is an initiative, if it’s recommended, that could eliminate the need for individual complaints because we’d have already have taken care of it.”

Cost, however, shouldn’t be the main factor in deciding whether or not the law society should adopt such a change, she notes.

Although some form of entity regulation would likely be necessary if the law society were to allow alternative business structures, the current interest in compliance-based entity regulation is separate from that issue, according to Minor.

At Convocation last month, Bencher Raj Anand said introducing compliance-based regulation in Ontario would make a lot of sense given that a similar proactive approach “has been the mantra of human rights policy and jurisprudence over the last quarter-century” and has served workplaces and their employees well.

“This is a fairly obvious and effective way of improving the standards of legal organizations rather than relying on what is essentially a reactive process. It’s been done forever in human rights and it should be done here,” he said.

Anne Vespry, a newly elected bencher, solicitor, and lecturer in the paralegal program at the Algonquin Careers Academy, said compliance-based regulation by the law society of paralegal programs might benefit would-be students. It could mean, for example, that more information on the outcomes of these programs would be publicly available, making it easier for students to choose where to study. It might also allow the schools more flexibility in designing programs.

Besides entity regulation, Convocation also approved a task force mandated to create a new strategy on wellness, mental health, and addictions.

The law society already offers a number of resources to members struggling with mental health and addictions problems such as its member assistance program offered through Homewood Human Solutions. But the idea of the new task force is to have a more “cohesive approach,” according to the treasurer’s report.

“We’re already very conscious of issues that our licensees have and we’ve tried to establish processes to help them,” says Minor.

“But is it enough? We need to take a harder look.”

The new strategy might tackle questions such as how lawyers might deal with clients with mental-health issues or how the regulator respond to members in the disciplinary process who are struggling with such challenges.

One challenge in providing assistance, says Minor, is that people don’t always ask for help when they need it. It’s an issue, she says, that reflects the stigma attached to mental illness as well as the nature of the profession itself.

Legal work, says Minor, can provoke anxiety because it deals with conflict. But when it comes to asking for help, lawyers are often their own worst enemies.

“Lawyers are hired to solve other people’s problems. When it comes to their own, it’s very hard for them to admit that they may have some issues that need assistance. It’s not part of the persona, if I can put it that way. . . . Lawyers are notoriously not good at work-life balance.”

Ontario Bar Association president Orlando Da Silva says he’s “thrilled” the law society is forming the task force.

“With this initiative, the law society has taken a huge step toward promoting mental wellness in the justice sector,” he says. “If the task force produces good work, and I believe it will, it has the opportunity to promote the mental well-being of lawyers throughout Ontario before mental-health issues become disciplinary issues. If it can do this, I believe that its recommendations will be implemented throughout the country.”

The wellness, mental-health, and addictions task force is to present its final report to Convocation next May.

For more, see "Move towards entity regulation gathers steam."

  • Harold A. Maio
    ---One challenge in providing assistance, says Minor, is that people don’t always ask for help when they need it. It’s an issue, she says, that reflects the stigma attached to mental illness as well as the nature of the profession itself.

    Place no trust in anyone directing "stigma". No one.

    Harold A. Maio
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