BLOG: Lawyer participation in the new regulatory world

R. Daren Baxter QC, TEPWhen I gave my initial address as the newly minted president at the Society’s Annual Meeting in June, I encouraged lawyers to be engaged in our regulation and the affairs of the Society. I said there are a number of fundamental regulatory changes Council will consider over the ensuing year. I challenged lawyers to become informed and speak up. Otherwise lawyers risk waking up one morning to discover that the world in which they practise has changed dramatically.

We had seen the benefit of member participation in our consultations on the proposed Management Systems for Ethical Legal Practice (“MSELP”). Lawyers’ comments and insights helped us flush out potential problems and make improvements to our proposed MSELP regulatory reform. The resulting MSELP Self-Assessment Tool was approved by Council in March 2016 and an “MSELP Workbook” was developed to assist lawyers (particularly those in smaller practices) to assess their MSELPs.

Since September, a pilot project is underway to test the MSELP Self-Assessment Tool, with a view to enhancing the new regulatory tool based on feedback from the randomized, geographically proportionate sample of 50 participating private practice law firms and lawyers. In spring 2017, the results from the pilot project will be known. In the meantime, your further questions and comments are welcome.

Through the fall, Council considered the legal merger of the Society’s mandatory liability claims program into the Society’s legal structure and directed staff to develop a proposal with specific details for consideration. One of the motivations for the proposed merger is better alignment with the “proactive, principled and proportionate” approach to regulation (“Triple P”) adopted by Council. Another is to better manage the overall regulatory cost to the membership. By communication to practising insured members, my colleagues on Council and I invited direct conversations with any lawyer who wished to discuss this proposal. 

I am pleased to report that many lawyers took it upon themselves to become informed and to express their opinions. This is a good thing. Member participation is encouraged and welcomed. In addition to numerous phone calls and emails, we were invited to at least five County Bar meetings where we had engaging and comprehensive discussions on the structure of the mandatory liability claims program.

Consultation with the membership revealed a strong desire to maintain the existing legal separation of LIANS, notwithstanding a potential cost increase to the membership. Although the question is ultimately a decision for Council to make, the opinions of stakeholders need to be considered. The Society’s Executive determined that at this time, our priority should be to get some real experience with the new world of triple-p regulation. Moving forward with the merger of LIANS as an element of triple-p regulation at this time is likely to create unnecessary confusion and concern on the part of the members that is desirable in the public interest to avoid. Accordingly, the LIANS merger proposal is removed from the Council agenda. 

The nature of the conversation between the regulator and the profession has changed. The new triple-p approach to regulation now guides all aspects of the Society’s work (including design, implementation, monitoring compliance and enforcement). It is more responsive to a diverse and rapidly changing world, intended to enhance the quality of legal services offered by Nova Scotia lawyers, to encourage ethical legal practices, to facilitate innovation in legal services and to promote increased access to legal services. It is vital that Nova Scotia lawyers inform themselves about the new regulatory approach and continue to participate in this ongoing conversation.

R. Daren Baxter QC, TEP
President, 2016-2017

Note: This column also appears as “The President’s View” in The Society Record magazine, Vol. 34 No. 2, Fall 2016.

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