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That's History: Why lawyers govern themselves

“First thing, let’s kill all the lawyers.” Or jail ‘em at least. Back in November, the world gaped at the sight of street protests in Pakistan led by dark-suited lawyers.

Even after the assassination of Benazir Bhutto, in December, the military government’s crackdown seemed aimed as much at the judiciary and the legal profession as at the threat of extremist violence. “How can you be a lawyer when the law is whatever the general says it is?” asked a leader of the Pakistani bar.

In Canada, it has been a long time since lawyers who stood up for the rule of law risked their careers. But at the legal history conference that the law society hosted last fall to mark Osgoode Hall’s 175th anniversary, participants heard about the experience of lawyers in Canada at a time before lawyers were independent of the state.

The 175th anniversary marked the moment in 1832 when the Law Society of Upper Canada plunged the small legal profession of the province into an alarming state of indebtedness in order to build Osgoode Hall, a citadel and symbol of the independent Ontario bar.

At the conference, law professor and historian Jim Phillips described the travails of two Nova Scotia lawyers in 1788. Jonathan Sterns and William Taylor, both refugee American loyalists, concluded that the old Tory judges of the Nova Scotia Supreme Court were incompetent and biased. They said so in court, and urged the legislature to investigate.

The judges responded promptly. To criticize a judge was to criticize the court, they declared; it subverted the constitution. Sterns and Taylor were summarily disbarred. Similar ejections of politically active lawyers occurred in Prince Edward Island, in 1811 and 1816.

In Nova Scotia and P.E.I. back then, there was no self-governing bar. Lawyers there and elsewhere were regulated and disciplined by the courts, and the judges, as members of the colonial governing council; they were government functionaries more than an independent judiciary. Lawyers who criticized the policies and personnel of the state got short shrift; they were swiftly told they were no longer lawyers.

In most of the Canadian colonies, it was the mid-19th century before separation of the courts from the executive branch was complete, with self-government for lawyers coming in its wake. Only in Upper Canada had lawyers been empowered to govern themselves very early - that is, since the foundation of the Law Society in 1797. And, indeed, Upper Canadian lawyers used that freedom from state control. Lawyers were at the forefront of Upper Canada’s reform movements throughout the first half of the 19th century.

In Quebec, control of lawyers shifted from the judges to the lawyers themselves in 1849. Within a few years the bar launched a successful campaign that had previously been impossible: to reform the stagnant judiciary of the province.

Self-government by the profession is mostly out of fashion in the 21st century. Academics, politicians, and the public unite in seeing professional self-government mostly as an antiquated and monopolistic conspiracy. Canadian legal scholar Harry Arthurs years ago described professional self-regulation as “a dead parrot.”

They make a strong case, and governments have been listening. New South Wales in Australia has already replaced professional self-government with a state-run tribunal. In Britain, the Clementi Report has recommended similar changes.

Amidst the lurid stories from his book Lawyers Gone Bad - inspiration for Maclean’s “Lawyers are Rats” cover last year - Philip Slayton takes a moment to advocate the same thing for Canada.

Well, it probably would not be dangerous; threats to the rule of law are hardly imminent here, and no one thinks of law societies as our first line of defence.

But bar associations in Pakistan still have substantial functions. You have to wonder if those very un-ratlike lawyers facing down the riot police in Islamabad would be quite so staunch if all they had to back them up was some tribunal of civil servants.


Christopher Moore is the author of The Law Society of Upper Canada and Ontario’s Lawyers, McCarthy Tétrault: Building Canada’s Premier Law Firm 1855-2005, and other works in legal history. His website is www.christophermoore.ca

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