1. Whyte, Heather D., “Guidelines for financial planners still long way away,” Financial Post, May 16, 1988, 48Google Scholar; Lee, Jenny, “Financial planning industry taking steps to police itself,” Vancouver Sun, June 6, 1988, C1.Google Scholar

2. Rhodes, Ann, “Loupe holes,” Canadian Business, December, 1986, 164Google Scholar.

3. Neither its popularity nor its capacity to elicit criticisms are novel events for self-regulation. In 1912, Mr.Brandeis, Justice, Business: A Profession (Boston: Small, Maynard & Co., 1914, reprinted 1971), 14Google Scholar, called for self-regulation in business in order to give priority to “service to the community” rather than the “acquisition of money” or the “frivolous pleasure of mere winning.” In 1935, Laski, Harold, “The decline of the professions,” Harper Monthly Magazine, June-November, 1935, 679Google Scholar, asserted that, in its service to business, the legal profession had lost its independence and “any profound social consciousness it may once have professed.”

4. Willis, Andy, “Lawyers to investigate own probe,” Financial Post, January 29, 1990, 1Google Scholar; see also Jorgensen, Bud, “Inaugural issue of Law Times calls law society into question,” Globe and Mail, January 26, 1990, B7Google Scholar; Downey, Donn, “Law Society to probe charge of favoritism in Lang Michener case,” Globe and Mail, January 27, 1990, A8Google Scholar.

5. Still, Larry, “Lawyers taken to task at meeting,” Vancouver Sun, June 24, 1989, H2Google Scholar; Vancouver, , “Society urged to improve handling of complaints,” National, July/August, 1989, 33Google Scholar. VOLD was created in 1984 by a dissatisfied Calgary widow whose claim against a lawyer was rejected by the Law Society of Alberta because he was not acting in his capacity as a lawyer when he defrauded her; see May, Casey, “Are Law Societies out of touch?” Canadian Lawyer, September, 1989, 22Google Scholar.

6. American Bar Association, Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement (The Clark Report) (American Bar Association, 1970), 1Google Scholar.

7. McPike, Timothy K. and Harrison, Mark I., “The True Story of Lawyer Discipline,” American Bar Association Journal 70(1984), 92Google Scholar.

8. Weber, David O., “‘Still in Good Standing’ The Crisis in Attorney Discipline,” American Bar Association Journal 73(1987), 59Google Scholar. These criticisms are in many respects superficial; they do not address the more fundamental questions surrounding the very existence of the professions and the role which self-regulation plays in the legitimation of the professions. See for example, Abel, Richard L., “Toward a Political Economy of Lawyers,” Wisconsin Law Review (1981), 1117Google Scholar; Freidson, Eliot, Professional Powers: A Study of the Institutionalization of Formal Knowledge (Chicago: University of Chicago Press, 1986)Google Scholar; Johnson, Terence J., Professions and Power (London: Macmillan, 1972)Google Scholar; and Larson, Magali Sarfatti, The Rise of Professionalism: A Sociological Analysis (Berkeley: University of California Press, 1977)Google Scholar.

9. These organizations may, under some circumstances, be subject to judicial review as domestic tribunals and therefore fall under the control of the state. See for example, Kaplan, William C., “Judicial Review under the Judicial Review Procedure Act,” in Administrative Law (Vancouver: The Continuing Legal Education Society of British Columbia, 1988), 8–11Google Scholar.

10. Makin, Kirk, “Law Associations Knuckle Under Over Fee Schedule Fight,” The Lawyers Weekly, January 29, 1988, 2Google Scholar.

11. While the associations have not admitted to violating the competition laws, they agreed to a prohibition order which prohibits them “for ten years from promulgating any fee committee and from communicating what fees any member is charging” except for what is required in the practice of law, ibid.

12. The power to regulate the legal profession in Canada is within the constitutional jurisdiction of the provinces; however, the legislators have delegated much of this power to the legal profession. Finlayson, G.D., “Self-government of the Legal Profession—Can it Continue?” The Advocates' Society Journal 4(1985), 13Google Scholar, would argue that this proposition is “entirely invalid.” Finlayson is of the view that the Law Society of Upper Canada “was recognized and encouraged within the framework of the state,” it was not a “creature of the legislature.” This notion that the legal profession is somehow beyond the control of the state and has to be in order to have a “free society” is widely held by members of the profession. See for example Bynoe, Clive, “Unprofessional Conduct: The Role of the Discipline Committee,” Law Society Gazette 10(1976), 256Google Scholar; however, it is unlikely that this would preclude the government from stepping in and regulating the legal profession.

13. See, for example, Southin, Mary, “Letter to the Editor,” Advocate 38(1980), 465Google Scholar: “the public interest is not enhanced by the interference of the state in any profession; I believe that the public would be better off if there were more occupations with the right of self-government.” However Arthurs, H.W., “Public Accountablity of the Legal Profession,” in Thomas, Philip A., Law in the Balance (Oxford: Martin, Robertson and Co. Ltd., 1982), 163Google Scholar, refers to self-government as a “privilege.”

14. Byone, , “Unprofessional Conduct,” 256Google Scholar. The Law Society of British Columbia takes the position that, “A lawyer who is … accountable to government for his or her actions, will inevitably let that relationship colour the handling of the client's affairs. It is a hopelss case of conflicting interests and the loser is the client.” British Columbia Lawyers: Public Interest Advocates (1988), 2. Abel, Richard L., American Lawyers (New York: Oxford University Press, 1989), 37Google Scholar, suggests that there is little empirical evidence to suggest that the legal profession “is more solicitous than the state of client (and other public) interests and will defend those interests against the state.” Arthurs, ibid., 176, states that “the independence argument… cannot be accepted as a magic spell whose mere incantation will ward off all forms of interference with undiluted professional self-government.”

15. Royal Commission Inquiry Into Civil Rights, (Ontario, 1968) Report Number One, Volume 3 at 1162Google Scholar.

16. Usprich, S.J., The Theory and Practice of Self-Regulation (Communications and Justice, Canada: Privacy and Computers Task Force, 1975), 11Google Scholar; Ostry, Sylvia, “Competition policy and the self-regulating professions,” in Slayton, Philip and Trebilcock, Michael J. (eds.), The Professions and Public Policy (Toronto: University of Toronto Press, 1976), 21Google Scholar. Sibenik, Peter M., “‘The Black Sheep’: The Disciplining of Territorial and Alberta Lawyers, 1885-1929,” Canadian Journal of Law and Society 3(1988), 109CrossRefGoogle Scholar, provides a fascinating history of how the Law Society of Alberta wrestled the disciplining of lawyers away from the courts following a large increase of complaints from the public.

17. Bierig, Jack R., “Whatever Happened to Professional Self-Regulation?” American Bar Association Journal 69(1983), 617Google Scholar. Abel, American Lawyers, 37, suggests that “this is self-serving, since the profession deliberately constructed the monopoly of expertise in the first place.”

18. See generally Usprich, , The Theory and Practice of Self-Regulation, 15–22Google Scholar; Williams, Bryan, “Abuse of Power in Professional Self-Governing Bodies,” in Law Society of Upper Canada Special Lectures (1979), 346Google Scholar; Trebilcock, Michael, Tuohy, Carolyn J. and Wolfson, Alan D., Professional Regulation: A Staff Study of Accountancy, Architecture, Engineering and Law in Ontario (Ontario: prepared for the Professional Organizations Committee, 1979), 35–64Google Scholar. Reiter, Barry J., Discipline as a Means of Assuring Continuing Competence in the Professions (Ontario: prepared for the Professional Organizations Committee, 1978), 3–13Google Scholar (regarding discipline as a means of achieving greater competence); and Susan Shapiro, P., “The Road Not Taken: The Elusive Path to Criminal Prosecution for White Collar Offenders,” Law and Society Review 19(1985), 203CrossRefGoogle Scholar.

19. Abel, , “Toward a Political Economy of Lawyers,” 1186Google Scholar, presents the argument that there is very little private sector activity left in the legal profession.

20. See for example, Gellhorn, Walter, “The Abuse of Occupational Licensing,” University of Chicago Law Review 44(1976), 6CrossRefGoogle Scholar; Rhode, Deborah L., “Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions,” Stanford Law Review 34(1981), 1CrossRefGoogle Scholar; and Abel, , American Lawyers, chapters 5 and 7Google Scholar.

21. See Weber, , “Still in Good Standing,”Google Scholar and Williams, , “Abuse of PowerGoogle Scholar.”

22. Farkas, Edward J., “Does the Public Get a Fair Shake on Lawyer Complaints?” Canadian Lawyer 9, February, 1985, 38Google Scholar.

23. F. Lee Bailey, in response to being censured by the Boston Bar Association Grievance Committee for violating advertising restrictions, said “The actions that are being brought against me for supposed breaches of ethics are not brought by lawyers who want to see justice. They are brought by jealous, petty men, men who would give anything to have my practice.” Quoted in Tisher, Sharon, Bernabei, Lynn and Green, Mark, Bring the Bar to Justice: A Comparative Study of Six Bar Associations (Washington, D.C.: Public Citizen, Inc., 1977), 102Google Scholar. Advertising which was once banned by Law Societies is now being viewed in a more positive light. The Law Society of British Columbia writes: “advertising by lawyers will benefit the public by demystifying the process of identifying legal problems and finding a lawyer to resolve them,” British Columbia Lawyers, 5Google Scholar.

24. The funnel metaphor has been used by a number of sociologists and criminologists to illustrate how the number of cases shrink as they pass through the criminal justice system. See for example, Hagan, John, The Disreputable Pleasures (Toronto: McGraw-Hill Ryerson, 1977), 41–46Google Scholar; and Silverman, Robert A. and Teevan, James J. Jr., Crime in Canadian Society (3rd ed.; Toronto:Butterworths, 1986), 73–74Google Scholar. Abel, , Canadian Lawyers, 145–147Google Scholar, talks about the attrition of cases in disciplinary systems in the United States.

25. Coleman, James W., The Criminal Elite: The Sociology of White Collar Crime (New York: St. Martin's Press, 1985), 153Google Scholar; Tischer, et al. , Bring the Bar to Justice, 94–111Google Scholar.

26. These three approaches to studying the legal profession are discussed by Friedman, Lawrence M., “Lawyers in Cross-Cultural Perspective,” in Abel, Richard L. and Lewis, Philip S.C. (eds.), Lawyers in Society: Comparative Theories, Volume 3 (Berkeley: University of California Press, 1989)Google Scholar. For other works on the historical development of the legal profession and the power which the legal profession has in our society see for example, Weber, , “Still in Good Standing”Google Scholar; Abel, , “Toward a Political Economy of Lawyers”Google Scholar; Freidson, , Professional PowersGoogle Scholar; Johnson, , Professions and PowerGoogle Scholar; Sibenik, “The Black Sheep”; Pue, W. Wesley, “Rethinking “Professionalism”” Taking The Professions in Early Modern England Seriously,” Canadian Journal of Law and Society 4(1989), 175CrossRefGoogle Scholar; the Symposium on the History of the Legal Profession and the Judiciary in Law and History Review 5(1987)Google Scholar; Abel, , American Lawyers and Abel, and Lewis, (eds.), Lawyers in Society: The Common Law World (Berkeley: University of California Press, 1988), volume 1Google Scholar; and Abel, and Lewis, (eds.), Lawyers in Society: The Civil Law World (Berkeley: University of California Press, 1989), Volume 2Google Scholar.

27. S.B.C. 1987, c. 25, section 45 now allows for disciplinary action to be taken if a member is found to have incompetently carried out his duties. While the categories are not mutually exclusive, the major focus of this paper will be on disciplinary action taken for behaviour other than incompetence. See Hulbert, W.H., “Incompetent Service and Professional Responsibility,” Alberta Law Review 18(1980), 145Google Scholar, for an argument that providing incompetent service can be viewed as unethical.

28. Watts, Alfred, History of the Legal Profession in British Columbia, 1869-1984 (Vancouver: Evergreen Press, 1986) at 5 and 118Google Scholar.

29. S.B.C. 1987, c. 25.

30. The “interests of its members” appear to be subordinate to the “public interest”; however, some would argue that one organization cannot serve these two functions. See Weber, , “Still in Good Standing,” 59Google Scholar; Williams, , “Abuse of Power,” 361Google Scholar, suggests that these dual roles are a form of schizophrenia. Arthurs, , “Public Accountability,” 163Google Scholar, examines the Bension Royal Commission on Legal Services in England and concludes that when the two interests collide the Commission is “not always unequivocal in subordinating” professional interest to the public interest.

31. Section 45(1)(b).

32. See discussion by Iggers, Daniel P. and Twohig, John P., “The Disciplinary Process of the Law Society of Upper Canada,” The Advocates' Quarterly 8(1987), 5–8Google Scholar and Honsberger, John, “Legal Rules, Ethical Choices and Professional Conduct,” Law Society Gazette (1986), 115–117Google Scholar.

33. See Honsberger, ibid., 115.

34. Communication from Ralph, Bryan F., Secretary of the Law Society to Joan Brock man, October 27, 1988Google Scholar.

35. See “New Complainant's Review Committee,” Benchers' Bulletin 6(1988), 7Google Scholar.

36. The benchers appointed by the provincial cabinet are not eligible to sit on a Hearing Panel.

37. Hamilton, Keith R., “Acting as Counsel at a Disciplinary Hearing,” Discipline Digest 2(1983), 1, 3, 6Google Scholar.

38. See Iggers and Twohig, “The Disciplinary Process”; Steinecke, Richard and Posluns, Donald, “Professional Misconduct Proceedings,” Advocates' Quarterly 9(1988), 160Google Scholar; Kushner, Howard L., “Charter of Rights and Freedoms, Section 11—Disciplinary Hearings Before Statutory Tribunals,” Canadian Bar Review 62(1984), 638Google Scholar.

39. Communication from Bryan F. Ralph to Joan Brockman, February 20, 1989.

40. Hamilton, , “Acting as Counsel,” 7Google Scholar.

41. Members who are disbarred or suspended are also reported in the British Columbia Gazette and a “newspaper of general circulation in each municipality and each district … in which the person maintained a law office” (Law Society Rules, Rule 494)Google Scholar. Prior to the Legal Profession Act, S.B.C. 1987, c. 25, section 52 of the Barristers and Solicitors Act had a similar requirement.

42. These Bulletins will on occasion duplicate what is reported in the Discipline Case Digest and Discipline Digest. Sometimes a disbarment, if carried out summarily under section 51 of the Legal Profession Act, will be published in the Benchers' Bulletin and not the Discipline Case Digest.

43. Statistics and reports by SROs have the same type of problems as official statistics and reports about crime. See for example, Nettler, Gwynn, Explaining Crime (3rd ed.; New York: McGraw-Hill, 1984)Google Scholar, chapter 3. Nettler describes other means of counting crime (direct and indirect observation, asking victims, and self reports) which are also applicable to counting professional misconduct by lawyers.

44. See for example, Byone, “Unprofessional Conduct”; Abel, , American LawyersGoogle Scholar; Usprich, , The Theory and Practice of Self-RegulationGoogle Scholar; Ostry, , “Competition policy and the self-regulating professions”Google Scholar; Sibenik, , “The Black Sheep”Google Scholar; Bierig, , “Whatever Happened to Professional Self-Regulation?”Google Scholar

45. See Linden, Rick (ed.), Criminology: A Canadian Perspective (Toronto: Holt, Rinehart and Winston, 1987)Google Scholar, chapter 3; Nettler, , Explaining Crime, chapters 3-6Google Scholar; Silverman, and Teevan, , Crime in Canadian Society, chapters 5-6Google Scholar.

46. Shapiro, , “The Road Not Taken,” 180–181Google Scholar; Coleman, , The Criminal Elite, 112–118Google Scholar.

47. Reiter, , Discipline as a Means of Assuring Continuing Competence, 22–31Google Scholar.

48. Yale, Janet, “Public Attitudes Towards Lawyers: An Information Perspective,” in Trebilcock, Robert G. Evans and Michael J., Lawyers and the Consumer Interest (Toronto: Butterworths, 1983), 55Google Scholar.

49. Reported in Reiter, Discipline as a Means of Assuring Continuing Competence, 105Google Scholar. The 36.9 percent was a combination of 20.9 percent who responded that they did not know where they could complain and the sixteen percent who did not answer the question.

50. Some of the literature refutes this assertion and claims that “the public knows the Bar has a disciplinary system and has enough faith in it to take the time to forward complaints to the Bar.” Farrell, Robert T., “The Washington Lawyer Discipline System: A Statistical View: 1981-1984,” Washington State Bar News 38(1984), 25Google Scholar, reaches this conclusion from the fact that complaints against lawyers had shown a major increase over the years in question.

51. Steele, Eric H. and Nimmer, Raymond T., “Lawyers, Clients and Professional Regulation,” American Bar Foundation Journal (1976), 936, 946Google Scholar.

52. The Dominion Directory quoted a fee of $4,545 per month for a quarter page advertisement (the size of the advertisement in question) in the Yellow Pages throughout the province of British Columbia: telephone conversation with Joan Brockman, March 3, 1989.

53. This information was conveyed from a number of sources.

54. Reiter, , Discipline as a Means of Assuring Continuing Competence, 105Google Scholar; Steele, and Nimmer, , “Lawyers, Clients and Professional Regulation,” 1000, 1004Google Scholar.

55. Reiter, ibid., 25-30.

56. These two models are discussed by Steele, and Nimmer, , “Lawyers, Clients and Professional Regulation,” 950–951Google Scholar and Marks, F. Raymond and Cathcart, Darlene, “Discipline Within the Legal Profession: Is It Self-Regulation?” University of Illinois Law Forum 2(1974), 219Google Scholar. See also Christie, Nils, “Conflicts as Property,” British Journal of Criminology 17(1977), 1CrossRefGoogle Scholar.

57. Reiter, , Discipline as a Means of Assuring Continuing Competence, 105Google Scholar.

58. Ibid., 29-30.

59. Marks, and Cathcart, , “Discipline Within the Legal Profession,” 207Google Scholar; Farrell, Robert T., “Discipline Statistics: Consistency and a Few Surprises,” Washington State Bar News 41(1987), 21Google Scholar; Farrell, , “The Washington Lawyer,” 25Google Scholar; Weber, , “Still in Good Standing,” 61Google Scholar; and Steele, and Nimmer, , “Lawyers, Clients and Professional Regulation” 923Google Scholar.

60. See Reiter, , Discipline as a Means of Assuring Continuing Competence, 103Google Scholar; at 281 (footnote 34) he suggests that footnotes would be superfluous. However, the reluctance of lawyers to report the misconduct of their fellow lawyers is noted by Marks, and Cathcart, , “Discipline Within the Legal Profession,” 202, 207Google Scholar; Weber, , “Still in Good Standing,” 61Google Scholar; Steele, and Nimmer, , “Lawyers, Clients and Professional Regulation,” 973Google Scholar; and Garbus, Martin and Seligman, Joel, “Sanctions and Disbarment: They Sit in Judgment,” in Nader, Ralph and Green, Mark, Verdicts on Lawyers (New York: Thomas Y. Cromwell Company, 1976), 50Google Scholar.

61. Farrell, “The Washington Lawyer,” and ibid.

62. Reiter, , Discipline as a Means of Assuring Continuing Competence, 88Google Scholar.

63. Part F, Ruling 3.

64. See for example, Nader, Ralph, Petkas, Peter J. and Blackwell, Kate, Whistle Blowing (New York: Grossman Publishers, 1972)Google Scholar; Glazer, Myron, “Whistleblowers,” in Ermann, M. David and Lundman, Richard J., Corporate and Governmental Deviance (3rd ed.; New York: Oxford University Press, 1987), 187Google Scholar.

65. Farrell, , “The Washington Lawyer,” 24Google Scholar; see also Weber, , “Still in Good Standing,” 61Google Scholar.

66. Slonim, Scott, “Are Lawyers Balking at True Self-Regulation?” American Bar Association Journal 66(1980), 544Google Scholar.

67. American Bar Association, Disciplinary Enforcement, 167–171Google Scholar. The new Code of Professional Conduct (Ottawa: Canadian Bar Assoication, 1988), 67Google Scholar, adopted by the Canadian Bar Association in 1987 continues to use the phrase “it is proper” to report a lawyer for breach of the Code and it is obligatory to report a lawyer where “someone will suffer serious damage as a consequence of an apparent breach” (a shortage of trust funds is used as an example).

68. There are, however, problems with false whistle-blowing by those who use the complaint system to gain tactical advantage against their opponents. See for example, Abel, , American Lawyers, 144Google Scholar.

69. See Willis, , “Lawyers to investigate own probe”Google Scholar; Jorgensen, , “Inaugural issue of Law Times calls law society into question”Google Scholar; Downey, , “Law Society to probe charge of favoritism.”Google Scholar The wayward lawyer is presently facing conspiracy and forgery charges stemming from his immigration practice.

70. “Chicago lawyer suspended for year for not reporting colleague misdeed,” The Lawyers Weekly, January 20, 1988, 23Google Scholar. The authors would like to thank Denise Evans for bringing this article to their attention.

71. American Bar Association, Disciplinary Enforcement, 60–66Google Scholar; Steele, and Nimmer, , “Lawyers, Clients and Professional Regulation,” 1004Google Scholar; Reiter, , Discipline as a Means of Assuring Continuing Competence, 22–25Google Scholar suggests ways in which an SRO can actively monitor the behaviour of its members.

72. There are other studies which might give a much more accurate picture of the extent to which the Law Society meets their claim.

73. Steele, and Nimmer, , “Lawyers, Clients and Professional Regulation,” 923, 931–932Google Scholar.

74. Marks, and Cathcart, , “Discipline Within the Legal Profession,” 225Google Scholar.

75. Reiter, , Discipline as a Means of Assuring Continuing Competence, 105Google Scholar.

76. This second aspect of the funnel assumes that the concept of deterrence is relevant and that the size of the penalty will have some effect (deter unwanted behaviour) or serve some other function (retribution, symbolism, etc.). A discussion of these issues, however, is beyond the scope of this paper.

77. Reiter, , Discipline as a Means of Assuring Continuing Competence, 66Google Scholar; also see Marks, and Cathcart, , “Discipline Within the Legal Profession,” 210, 216Google Scholar; Steele, and Nimmer, , “Lawyers, Clients and Professional Regulation,” 979Google Scholar.

78. The idea was borrowed from the Law Institute of Victoria in Australia and announced to the profession in the Benchers' Bulletin, January-February, 1990. It was discussed earlier by Beckmann, R. Paul, “‘I Want to Complain About My Lawyer’,” Benchers' Bulletin, September, 1989, 2Google Scholar.

79. Reiter, , Discipline as a Means of Assuring Continuing Competence, 68Google Scholar; Steele, and Nimmer, , “Lawyers, Clients and Professional Regulation,” 967Google Scholar; Marks, and Cathcart, , “Discipline Within the Legal Profession,” 226Google Scholar.

80. Arthurs, S., “Discipline in the Legal Profession in Ontario,” Osgoode Hall Law Journal 7(1970), 263Google Scholar.

81. Steele, and Nimmer, , “Lawyers, Clients and Professional Regulation,” 998, 984Google Scholar.

82. Marks, and Cathcart, , “Discipline Within the Legal Profession,” 229-230, 233–234Google Scholar.

83. Abel, , American Lawyers, 38Google Scholar, suggests that professions “deliberately draft ethical rules in vague and ambiguous language to preserve the indeterminacy that is a foundation of professional power.”

84. This may be more of an illusion than a reality. The dates of hearings are not publicized and it is very difficult to actually find a hearing to attend. This may change in the future as the Law Society is considering whether or not to publicize the dates of hearings in advance.

85. Steele, and Nimmer, , “Lawyers, Clients and Professional Regulation,” 982Google Scholar; Marks, and Cathcart, , “Discipline Within the Legal Profession,” 214–215Google Scholar; and Weber, , “Still in Good Standing,” 59Google Scholar.

86. It is possible that after a conduct review a member may be cited but it is usually an either/or proposition; Ralph, October 27, 1988. Therefore there may be a small amount of double counting in Part B of Table 1. The effect of such double counting would be to exaggerate the number of cases in which some action (conduct review or citation) was taken by the Law Society.

87. See discussion in text at notes 30-33.

88. Esau, Alvin, “Excessive Fees and Lawyer Discipline,” Manitoba Law Journal 13 (1983), 305Google Scholar. Other criticisms of legalistic thinking can be found in Shklar, Judith, Legalism: Law, Morals and Political Trials (2nd ed.; Cambridge: Harvard University Press, 1986)Google Scholar; and Fuller, Lon L., The Morality of Law (Revised; New Haven: Yale University Press, 1969)Google Scholar.

89. See Milovanovic, Dragan, “Jailhouse Lawyers and Jailhouse Lawyering,” International Journal of the Sociology of Law 16(1988), 460–461Google Scholar.

90. Canadian Bar Association, Code of Professional Conduct, 49Google Scholar. Ruling 5 of the Law Society of British Columbia's Professional Conduct Handbook states that “no member shall charge unreasonable fees.”

91. Still, “Lawyers taken to task at meeting,” H2.

92. Esau, , “Excessive Fees and Lawyer Discipline,” 288Google Scholar makes this argument. He makes the same argument for the proposition that an action in negligence does not absolve a “Law Society of responsibility to protect the public from incompetent lawyers.”

93. While the figures in Table 1 do not reflect this for every year, the table does not include the large number of complaints about fees which do not make it past the screening which takes place by telephone.

94. The Canadian Gallup Poll reported in Yale, “Public Attitudes,” 50, found that 52.5 percent of clients regarded overcharging as the most likely complaint from people who had used lawyers. A similar finding is reported by Lafontaine, Yves, “Are Lawyers a Vivid Contradiction?” in Gibson, Dale and Baldwin, Janet K. (eds.), Law in a Cynical Society? Opinion and Law in the 1980's (Toronto: Carswell, 1985), 176Google Scholar. In a survey in Quebec in 1969, 59.1 percent of respondents were of the view that criminal lawyers' fees were too high.

95. Reported in Reiter, Discipline as a Means of Assuring Continuing Competence, 289Google Scholar.

96. Canadian Bar Association, Code of Professional Conduct, makes reference to the fiduciary relationship between the lawyer and client on a number of occasions.

97. Fraser and Company v. Holden (1987), 14 B.C.L.R. (2d) 293 (B.C.S.C.); (1988), 29 B.C.L.R. (2d) 31 (B.C.C.A.).

98. Ibid., 297.

99. Dailey, Brad, “Firm bound by $150-per-hour fee agreement: B.C.C.A.,” The Lawyers Weekly, August 26, 1988, 2Google Scholar.

100. See section 78 of the Act, and Rule 1050 of the Law Society Rules. However, as with quantum meruit bills, the courts are prepared to set aside contingency fee agreements where the fee was grossly excessive. See for example, Ross v. Ewachniuk (1987), 9 B.C.L.R. (2d) 216 (B.C.S.C.).

101. Mitchell, Dennis J., “Lawyers and the Cost of Litigation,” Benchers' Bulletin 6 (1988), 3Google Scholar.

102. Ibid.

103. Tupper, David W.H., “Fees,” Benchers' Bulletin 11(1987), 2–3Google Scholar; “Complaints about Fees,” Discipline Digest 1(1983), 2–3Google Scholar.

104. Tupper (1987), ibid., 2.

105. Marks, and Cathcart, , “Discipline Within the Legal Profession,” 217–218Google Scholar.

106. “Referring Cients to the Law Society,” Benchers' Bulletin 8(1988), 5Google Scholar.

107. See for example, Stephenson, Bette, “The Social Contract of Self Governing Professions,” Law Society Gazette 14(1980), 256Google Scholar.

108. Only the most serious disciplinary penalty was recorded; so, for example, if there was a fine and a reprimand only the fine was recorded such that the numbers represent individuals disciplined.

109. Ralph, February 20, 1989.

110. For example, a number of citations vacated in 1986 were explained by the Secretary of the Law Society as a cleaning up of a backlog of cases which had not been closed, Ralph, October 27, 1988.

111. The three cases in which the Law Society took no action because the person was a “former member” are included in this calculation.

112. When a lawyer is summarily disbarred (without a hearing), the disbarment is sometimes reported in the Bulletin or the Discipline Digest, and not the Discipline Case Digest.

113. This was likely an oversight as these individuals were no longer members when they were dealt with by the courts.

114. Fuller, George C.E., “Grumbles,” The Advocate 46(1988), 812Google Scholar.

115. Law Society of British Columbia, Discipline Case Digest 88/4Google Scholar.

116. Steele, and Nimmer, , “Lawyers, Clients and Professional Regulation,” 999Google Scholar.

117. Ibid., 999.

118. Ibid., 948.

119. See Hagan, , The Disreputable PleasuresGoogle Scholar; Silverman, and Teevan, , Crime and Canadian SocietyGoogle Scholar; and Abel, , Canadian LawyersGoogle Scholar.

120. Communication from Bryan Ralph, Secretary of the Law Society, to Joan Brockman, January 4, 1989Google Scholar.

121. For example, lawyers and other members of professional organizations have been unsuccessful in challenging legislation which compels them to testify at disciplinary hearings. See Re Lazarenko and the Law Society of Alberta (1983), 4 D.L.R. (4th) 389 (Alta. Q.B.); Re James and the Law Society of British Columbia, [1983] 2 W.W.R. 316 (B.C.S.C.). While the Law Society will generally suspend proceedings until criminal proceedings are completed, criminal charges may follow discipline proceedings in some cases: Ralph, October 27, 1988.

122. R.S.C. 1985 c. 42.

123. Section 13 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982 c. 11. See also Donald v. The Law Society of British Columbia, [1984] 2 W.W.R. 46 (B.C.C.A.).

124. Some of these problems are raised and addressed by Ewart, J. Douglas, Criminal Fraud (Toronto: Carswell, 1986)Google Scholar.

125. For example, “While this transaction by definition amounts to misappropriation, it was an innocent misappropriation which occurred without the member's knowledge and without any intention of personal gain.” Law Society of British Columbia, Discipline Case Digest, 88/4.

126. This is not an exhaustive or precise categorization but more an indication of the flavour of the matters which were dealt with by the Law Society.

127. Ralph, January 4, 1989.

128. Ralph, October 27, 1988.

129. Shapiro, , “The Road Not Taken,” 193–205Google Scholar; Abrams, Norman, “Prosecutorial Charge Decision Systems,” University of California Law Review 23(1975), 1Google Scholar; Ashworth, Andrew, “The “Public Interest”: Element in Prosecutions,” Criminal Law Review [1987] 595Google Scholar; Albonetti, Celesta A., “Prosecutorial Discretion: The Effects of Uncertainty,” Law and Society Review 21(1987), 291CrossRefGoogle Scholar; Frase, Richard S., “The Decisions to File Federal Criminal Charges: A Qualitative Study of Prosecutorial Discretion,” University of Chicago Law Review 47(1980), 246CrossRefGoogle Scholar; The Law Reform Commission of Canada, Plea Discussions and Agreements (Ottawa: 1989)Google Scholar.

130. This is compatible wtih Arthurs' study of discipline by the Law Society of Upper Canada between 1945 and 1965, Arthurs, “Discipline in the Legal Profession in Ontario.”

131. Information from Discipline Case Digest and the Law Society.

132. The summary reads, the lawyer “deliberately defrauded his law firm partners….” Law Society of British Columbia, Discipline Case Digest, 83/2Google Scholar.

133. Lipovenko, Dorothy, “Would-be lawyer says he thought sex with daughter not immoral,” Globe and Mail, February 17, 1989, A1Google Scholar.

134. Middlemiss, Jim, “Child molester won't be allow into Ont. law society,” The Lawyers Weekly, September 22, 1989, 20Google Scholar.

135. Reiter, , Discipline as a Means of Assuring Continuing Competence, 56Google Scholar.

136. See Steele, and Nimmer, , “Lawyers, Clients and Professional Regulation”CrossRefGoogle Scholar; Marks, and Cathcart, , “Discipline Within the Legal Profession”Google Scholar; and Christie, “Conflicts as Property.”

137. Abel, , American Lawyers, 38Google Scholar.

138. See for example, a letter to the editor of The Lawyers Weekly, March 2, 1990, 5Google Scholar, by Wynton Semple of Toronto who criticized the Law Society of Upper Canada, which recently prosecuted a firm for failure to make “timely disclosure,” for not setting a better example. Members of the profession learnt of “the allegations of favouritism and the resignation of senior discipline counsel” and of “the appointment of former Manitoba Chief Justice Archibald Dewar as head of the independent inquiry into the allegations” from “leaks to the media” not from the Law Society.

139. The evidence from the United States is not encouraging. In 1986, the California legislature refused to allow the Bar to collect its fees because of a 5,000 case backlog. See Abel, , American Lawyers, 149Google Scholar; and Fellmeth, Robert C., “The Discipline System of the California State Bar: An Initial Report,” California Reg. Law Reporter 7(1987), 1Google Scholar, for a detailed analysis of some of the problems the disciplinary system faced. Professional associations are losing their self-regulating powers. See Abel, , American Lawyers, 149Google Scholar, and Powell, Michael J., “Professional Divestiture: The Cession of Responsibility for Lawyer Discipline,” American Bar Foundation Research Journal (1986), 31Google Scholar. In the mid-1970s Quebec moved away from self-regulation in the professions to an independent tribunal model. See Issalys, Pierre, “The Professions Tribunal and the Control of Ethical Conduct among Professionals,” McGill Law Journal 24(1978), 588Google Scholar.

140. See for example, some of the questions raised by the Secretary of the Law Society in Larry Still, “Lawyers wary of poachers: Interprovincial law firms a headache for Law Society,” Vancouver Sun, February 28, 1990Google Scholar.

141. Nickel, W.J., “Let's not leave it to Lawyers,” Vancouver Sun, March 9, 1990, A17Google Scholar.

142. See Still, “Lawyers taken to task at meeting”; May, , “Are Law Societies out of touch?”Google Scholar

143. See Willis, , “Lawyers to investigate own probe”Google Scholar; Jorgensen, “Inaugural issue of Law Times calls law society into question”; Downey, “Law Society to probe charge of favoritism.”