The ability of registrants to pass motions at a general meeting or otherwise offer guidance to their regulatory bodies is again in the news. The resulting controversy raises the question about the role of registrants in suggesting priorities to their regulator.
Law professor Amy Salyzyn has published a blog on the issue: Bad Ballots: Down With Direct Democracy in Law Society Governance. Salyzyn’s thesis is that “direct democracy” is inappropriate for regulators:
… direct democracy processes clash with the mandate of law societies. Law societies exist to serve the public interest. Given this reality, it is inappropriate to have mechanisms allowing lawyers to centre their own interests on the regulatory agenda or for law societies to seek out lawyer preferences via direct voting on referenda.
Further, such processes can “harm public confidence in the … profession and its regulation.” The initiatives often deal with the self-interest of the profession.
The very existence of some mechanisms creates the impression that members of the profession, rather than the public, are the “owners” of the regulator. This perception is reinforced by the fact that members of the general public do not have a means of advancing resolutions at meetings.
Salyzyn concludes:
Finally, direct democracy processes can also impose significant costs on the legal community. In the most high-profile cases, law societies and legal organizations find themselves needing to divert energy and resources from their usual work in order to respond publicly. In the most divisive cases, ideologically driven measures advanced by individual lawyers or small groups of lawyers can amplify conflict within the legal profession. These are not abstract intellectual exercises without real-world consequences.
It is a good thing for lawyers to be interested in legal services regulation. It is also good for law societies to consider lawyer perspectives when regulating. But lawyer-initiated resolutions and law society referenda are not good vehicles for either of these things. They conflict with law society public interest mandates, risk hurting public confidence in the legal profession, and can drain resources and strain collegiality within the profession. In jurisdictions where they are available, direct democracy processes should be abolished.
The new Legal Professions Act in British Columbia, if proclaimed, will eliminate the ability of registrants to pass resolutions.