 MIGMA territory. We fulfill our mandate at this law school, at the hospitality of the MIGMA people and at all of us, those of us who are Indigenous, those of us who are settlers, that we're all treaty people. And because we're all treaty people, reconciliation is in fact the key to our future. And here at the law school, we recognize that reconciliation is both a professional responsibility for all law students and lawyers, but it's also an institutional responsibility for the law school that should inform all of our norms, all of our processes and all of our relationships. So today we are at the, I think it's the 35th Wicquire annual lecture on ethics and professionalism. So I want to spend a few minutes just sharing with you a little bit about Fred Wicquire and whose name this series is developed. Ted Wicquire graduated from the law school back in 1962 and he specialized in the fees of corporate and commercial law. And he served on the Dalhousie Board of Governors for 13 years. In 1977, he was appointed the first chairman of the Nova Scotia Legal Aid Commission and then took on the role of the chair of the Nova Scotia Barters Legal Ethics Committee. And it was in that role that he developed in Nova Scotia the first code of conduct for lawyers. It wasn't called a code of conduct, it was called a handbook because a code would seem to be something that was too didactic, too mandatory, and that lawyers would only tolerate a handbook of guidance as opposed to a code of conduct. The world has changed with him. We now have codes of conduct, but it was very much a first, not just in Nova Scotia, but also in Canada. He worked very hard in elevating the ethics and professional responsibility norms off Nova Scotian lawyers. And then he passed away in 1991 and soon thereafter he received the Weldon Award for On South East Public Service. So we're allowed to offer this series in honor of his contributions and memories. Today we're very lucky to have Professor Stephen Mason come and join us. And we were really hoping he'd be able to come in person, but of course that's not possible. And so he's joining us virtually. I was sharing with him what a great day we're having in Nova Scotia today and how much more fun it's going to be on Friday when we have our snowstorm. And he thought, well, maybe be some snowshoes, that would be fun, but otherwise maybe not. So Stephen Mason was called to the bar in 1977 and he's now a venture and a chairman of the regulatory panel. He has more than 30 years of experience in advising law firms in matters of strategy, ownership and finance. He's also served as the chairman of a number of law firms and law related businesses, including several alternative business structures, which are obviously a big issue for us in Canada and in Nova Scotia at the moment. And he's been affiliated with the Center for Ethics and Law at University College London, one of the top law schools in not just the UK, but in the world. And he serves as an honorary professor there. In 2018, the Center announced that they will be carrying out an independent review of legal services regulation in England and Wales. And Stephen will show you a little bit of that history and context. And then he produced a final report for the Center that were submitted to the Lord Chancellor of England and Wales and that was published in June 2020. So this is very current. This is sort of where the action is. The UK and Australia have been at the cutting edge of regulatory reform for the last 15 or 20 years. Canada is playing catch-up here. Nova Scotia is very much at the at the head at the lead of what's happening in terms of regulatory reform in Canada. And so we're delighted to thank Stephen for taking time to join us. Stephen, the pleasure. Thank you very much indeed, Richard. I'm very honored to be invited to give this lecture. And before I start, I'm just going to share my screen. We should be good to go. Thank you for that very warm welcome, Richard. And as I say, it's a great honor to be invited from across the Atlantic to commemorate the life and work of Ted Wickwire, just five days short of the 30th anniversary of his premature death. To pay tribute to great men and women is always daunting, but perhaps even more so when they're known for unselfish public service and uncompromising professionalism. The complex world of 2020 brings a range of challenges to professional responsibility and legal ethics. Many lawyers around the world fear that the ideal of the rule of law itself can't now always be taken as a given, although their once privileged and protected role in the delivery of legal services is secure. The social, political and economic tension of the isms increasingly looks to pitch populism and consumerism against professionalism. We can see this conflict playing out in debates around the world about regulatory reform, reform that's often expressed as intended to improve access to justice and address the crisis in unmet legal need. It's this reformist moment and momentum that I want to explore in this lecture. In doing so, I'll be building on the recent review of legal services regulation in England and Wales that Richard spoke of. This was a two-year project that culminated in June last year with the submission of my final report and recommendations to the Lord Chancellor. While that concluded that our own reforms of 2007 should be seen as a staging post on the journey to further regulatory improvement, I don't wish to dwell here on the specific situation of England and Wales. A similar journey is also evident in task forces and working groups in other countries that have been exploring the potential for regulatory change. This could, for instance, introduce entity regulation to legal services and allow those who are not legally qualified to own, manage or invest in law firms or even offer legal services themselves. In recent years, we've seen these liberalising moves in Australia, the UK, the United States, particularly the western states of Utah and Arizona, as well as in Canada. So lawyers, these initiatives are variously seen either as an innovative process or a Faustian bargain or as long overdue or the thin end of a wedge to be resisted. I don't know whether such developments would sit comfortably with Ted Wickwire. Indeed, for him, they might well have been pointed to an emerging and potentially uncomfortable distinction and tension between professionalism and regulation. I've set myself the task in this lecture of exploring the tension between regulation and professionalism. I'll declare my own hand immediately by saying that I don't regard professionalism and regulation either as synonymous or as mutually exclusive and incompatible. Having explored the tension, I shall then seek to resolve it by offering some fundamental principles for legal services regulation that could be taken as a starting point or foundation when considering or evaluating regulatory reform. I also very much hope that these principles could be applied in any jurisdiction and that they would still find favour with the generation and professional philosophy of Ted Wickwire. Let's start then with the growing tension between regulation and professionalism. I think that there can be little doubt that the pioneers of what has become modern legal services regulation acted with the best of intentions and high ideals. But the further and deeper one benches into the architecture of legal services regulation, the more it becomes apparent that there are no obvious or easy answers to many of its central questions. Indeed, it becomes frustratingly clear that on almost every issue and choice that needs to be made, there are disparate but equally legitimate views. For many issues, there's a spectrum of possible positions, often presenting a duality, a seesaw, opposition of options, which usually goes one way or the other, but might occasionally achieve a state of equilibrium. But in some instances, one can see a triality, more of a triangle in which the alignment of interests could be equal, could be symmetrical, could be uneven. It's in the debate and the resolution of the tussle of these twos and threes, that the tension between regulation and professionalism can be seen and felt. As a first step, therefore, I shall try to identify the underlying nature of this tension. In all cases, the positions or oppositions simply emphasise that regulatory policy questions don't proceed to a neat, predetermined answer. Instead, they must reflect a balance of different and sometimes competing interests or views. Choices have to be made to achieve that balance. On some issues, one or other of the options must prevail. On other issues, it's more important to align the differing views rather than to choose between them. Let me therefore take a closer look at the tensions and choices. First, there's a pivotal question about legal services regulation on which all else hangs. It's this, in whose interests should regulation be framed? Here we have to start with the tryality of public interest, consumer interest, and professional interest. It's tempting to think that regulation should be framed to advance and support the interests of all three constituencies, since they're all important to modern democratic society. But they're not always compatible. For instance, it might be in the consumer and professional interests, for public funding to be available for defending criminal charges, or for pursuing or resisting all civil claims. But that comes at a cost that the public interest might find too difficult to bear. Increasingly, citizens might wish to see lower cost and technology-based solutions to their legal needs that don't require lawyers. But the professional interest will usually argue against this consumer interest. There are many other examples of divergence among these three interests. They can't carry equal weight, since one or other must prevail. The triangle is certainly not equilateral. For giving one or more of them a privileged position in a hierarchy of interests would take regulation down particular paths. The issue here isn't that professionalism has no role in the public interest. Rather, it raises the question of the extent to which professionalism and the views of the legal professions should drive the understanding and implementation of what is in the public interest. These established features of the rule of law do, though, lead to a duality with challenging implications. The need for the state itself to be subject to the rule of law and not abuse its power is then asserted by lawyers to mean that governments should play no part in the regulation of legal professions. In that case, independence from the state of lawyers and their regulation is presumed to be a necessary consequence. And so the argument then runs the only other repository for regulatory control must lie with the professions themselves. This self-regulation of lawyers by lawyers is entrenched in many jurisdictions around the world. This duality of state regulation versus self-regulation unfortunately runs straight into two other dualities and back to the triality that I started with. The consequential dualities are the first between regulation and representation and second between reality and perception. The role of a professional body in both being a regulator and representing the interests of its members brings into sharp relief the inherent tension in the triality of public consumer and professional interests. Even with the usual nod and claim to be regulating in the public interest, it's difficult for professional bodies to accomplish both roles beyond doubt and debate. Even if it is the reality, the public and consumer perception is all too often that professional bodies look after their own and will always prefer their members' interests over those of clients or the wider public. Independence from state control appears to come at the cost of a perceived lack of independence of professional regulation from representative interests, often described as regulatory capture. There's a further dimension to perception. Self-regulation is sometimes replaced or supplemented by judicial responsibility for lawyer licensing and regulation. Even though the courts and judges are usually perceived to be independent of the state, the public do still tend to see judges as part of the institutional fabric of law. As such, judges can be seen as likely to be at least unconsciously biased in favour of lawyers rather than their clients or court users. After all, unrepresented court users are often bewildered and panicked by court language and processes and rarely feel helped by those in the know. Their experience of George Bernard Shaw's conspiracy against the laity is a strong and negative one. Judicial control of legal services regulation is often adopted or advanced as an alternative either to state control of lawyer licensing or to self-regulation. But this won't necessarily generate the confidence that's vital to the public acceptance and legitimacy of regulation and then ultimately to the rule of law itself. If judges are perceived as another group of lawyers largely looking after their own, public trust and confidence isn't likely to follow. Presenting the locus of regulation as a dichotomous choice between state or profession presents an apparent win-lose outcome. The problem for any profession is that ultimately it is the state that will have the right to choose. The problem for the state though is that it might not be seen by the public as any more credible and respected as a regulator than the profession. Setting up a conflict between state regulation and self-regulation could lead to a lose-lose outcome which brings me to the duality that lies at the heart of this lecture, that between regulation and professionalism. This might strike many lawyers as odd because for many of them the two are synonymous rather than distinct and yet I see this conflation as a direct but unhelpful consequence of self-regulation. I should probably explain myself. Self-regulation brings an understandable professional preference to wanting to be the best in all circumstances. The highest professional standards should guarantee the standing competence and performance of practitioners. That must be good for clients, consumers and the public, mustn't it? And so these standards are written into the codes of professional conduct and ethics that form the core of self-regulation. In short, the highest standards of professionalism become the requirements of regulation. They become synonymous. Unfortunately, these high standards come at a high price. Training for them and the burden of continuing compliance with them require considerable personal and institutional investment. All of it, barring some pro bono work perhaps, tends to be passed on to consumers as higher prices. Not only is the price high, but as the experience of many clients demonstrates, lawyers often fall disturbingly short of the standards. Professionalism is in practice an ideal and too often not the reality. The problem with a high bar is the answer to the inevitable question. How far below that bar does one need to fall before it becomes a disciplinary matter? It seems to me that not all transgressions are disciplinary issues, still less ones that should lead to the loss of a license to practice. But if not all, then which? And in what circumstances? To express the point slightly differently, who determines the floor below which a practitioner may not go? It seems to me that self-regulation is in considerable difficulty if it claims both to police the floor and set the aspiration. In fact, I think that regulation, however it's conceived and delivered, is in difficulty if it seeks to define the limits of both. I'm entirely comfortable with the professions identifying and maintaining their professional aspirations and ideas. It's in their professional interests to do so. And these can legitimately be above any sense of the minimum necessary or acceptable level of competence and performance. The professions and their members are also best placed to determine what those aspirations, ideals and expectations are. But is it right to allow self-regulation to combine the regulatory floor and professional aspiration into a single threshold? Especially when that threshold is not then upheld as a professional minimum. Can the profession be the principal dominant or final arbiter of where the regulatory floor should be in order to promote the public interest and protect consumers? In this sense, there is a very real tension between regulation and professionalism. In the 21st century, can we afford to support the assertion that consumers can only be served and protected by forcing them to choose between high-priced professionalism and no other regulated alternative? Rather than the best in all circumstances, shouldn't we also enable the best available in these circumstances? Have we then reached a turning point in the need for reform of legal services regulation and the nature of it? And have we reached a point where the legal professions have resisted reform for so long and so vigorously that they're in danger of excluding themselves from effective debate and determination of the future, the point of no return? As time goes by, there is evidence of more citizens turning to self-lawyering, unregulated providers and suppliers of tech-based services and documents. We can now see the world over that the cost of lawyers is often beyond the reach, not just of those in poverty or vulnerability, but increasingly of the relatively affluent too. Seemingly as the number of qualified lawyers increases, so too does the number of unserved and underserved citizens, variously described as unmet need, the justice gap or the access to justice crisis. Those lawyers and firms that would genuinely wish to tackle this crisis often find that they can't do so easily, effectively or economically. This is because their own rules prohibit them from combining with providers of capital or technology or with those who are not lawyers. We're still, we seem to have reached a point where lawyers will say there's work that we don't want or can't afford to do, and yet in many countries we still support a regulatory structure that allows those same lawyers to say that we must keep rules that mean that no one else can do it either. If this isn't protectionism, what is? Too often the consequence of self-regulation in many jurisdictions is a profession-imposed ban on alternatives. The permitted choice for most citizens has become access to the highest professional standards, or to nothing. There are two fallacies in this ultimately self-defeating position. The first is that only qualified lawyers are competent and experienced to help citizens in need. Unfortunately, there are too many instances of qualified and regulated lawyers taking on work that's beyond their expertise and experience, those I call the professional dabblers. They create risks for their clients rather than help in resolving their legal needs. Sadly, there are also circumstances where lawyers are committing or facilitating wrongdoing, mortgage investment or tax fraud, illegal immigration, fraudulent claims for financial loss, direct facilitation of crime, abusive litigation, theft of client money and the like. The regulation of lawyers and the exclusion of all others from the regulated practice of law is clearly not a guarantee of competence, ethicality, integrity, efficiency or protection of clients and the wider public from harm or loss. The second fallacy is that non-lawyers can't be trusted to be competent or ethical in the provision of legal services and must therefore be excluded from practice. It's a fallacy because they're not all charlatans. There are in fact unregulated specialists who are much more competent and experienced than many lawyers in some aspects of advice and representation. This might be in areas such as social welfare, housing, immigration and employment. There may well be legal elements to citizens' needs, but this doesn't mean that only qualified lawyers know the applicable law and can help. Indeed, if qualified lawyers are professional dabblers, they might well do significant harm. I think it's clear that the solution to the vast amount of unmet need is not more lawyers or more pro bono or more public funding. There's just not enough of any of them sufficient to close the gap either alone or in combination. In fact, there is evidence that the tendency for citizens to turn to self-lawyering, unregulated providers and suppliers of tech based services and documents has been accelerated by the COVID-19 pandemic and the face of this clear increase in consumer need and preference for alternative provision in different forms. Can it be right that we should knowingly deny them the possibility of alternatively regulated providers? Can that credibly be advanced as a promotion of the public interest? As lawyers, we can hide behind the pretentious veils of competence, quality, ethics and integrity, of regulation and of the authorised practice of law. But once the public become used to managing without us, because we've effectively forced them to, that perceived neglect or indifference to their needs will garner no sympathy. So, I believe that the legal professions around at least the common law world are at a turning point. And without imminent action, by which for my purposes today I mean regulatory reform, they will very soon be at the point of no return. So, what do we need for successful and effective regulation? I recognise that reform will not start with the proverbial blank piece of paper. What we can do though is recognise both the benefits and limitations of the history that brings us to our starting point. Allowing the professions to maintain a tight grip on regulation and a position of we know best will only confirm public perceptions of self-protectionism. We can't then gain the potential benefits that arise from true regulatory independence and from consumer perspectives. Judicial oversight of legal services regulation, while offering the benefit of separation from the state and the professions, is likely to reinforce a sense of lawyers looking after their own. It's also likely to bring an emphasis on court-related matters and perhaps inadequately secure attention to the potential benefits of consumer insight and business efficiencies in the practice of law. State control of legal services regulation should remove any perception of lawyer exceptionalism and self-protection. But it also runs a significant risk of domestic and international perceptions of undermining the independence of lawyers and of legal advice. Depending on the dominant political policies of the day, it might also bring a focus on market forces and competition at the expense of wider public and societal benefits. An independent regulator could offer the advantages of separation from state professions and judiciary. However, the tendency for such bodies to be populated by career regulators runs a risk of mission-driven regulation and insufficient attention being paid to sector-specific differences and experience. It's also often the case that the principles and practice of economic regulation and market-based consumerism are given precedence over more nuanced issues of the public interest and the often hidden value of professionalism. The objectives of legal services regulation are varied and important to society. There is no one best way to realise the goal of effective regulation. There is no one viewpoint or structure that simply and effortlessly incorporates all the necessary components. I might confidently suggest that there is no jurisdiction that has yet achieved the required balance. I can less confidently assert that I know for sure how that balance might best be achieved. But I do want in the second part of this lecture to offer some thoughts about five fundamental principles on which legal services regulation and its reform might more securely be based. These are derived from the specifics and the proposals and recommendations in my final report. Some of them were explicit in the report. Some perhaps were not. In any event, here are the consequences of further reflection. I take it as a given that the law is for society and citizens, not for lawyers. That's the reason why I believe firmly that the principal objective of legal services regulation and principle one should be the promotion and protection of the public interest. This for me is the predominant and overriding interest in the pivotal triality I described earlier. For me, the notion of the public interest has two dimensions. The first is the fabric of society itself, the state, its security and defence, government, environment, economy and the rule of law. Among other things, the rule of law requires accessibility to fair decision making in accordance with the law. The application of law equally to citizens and the state and independence of legal representation and of the judicial process. The purpose of law and legal services regulation here is to create, maintain and protect the public good in this fabric. Without it, there is no framework for stable and reliable institutions or interactions among individuals. In the interface between the administration of justice and legal services regulation, regulation is needed to assure competence, integrity and independence in those actors who play a significant role in securing the rule of law. The potential risk to the public interest and to public confidence is so high and so important that practitioners need to be licensed and their continuing competence assured. The second dimension to the public interest is the legitimate participation of citizens in society. This too has a number of dimensions, including the right to participate affected by citizenship and migration and the ability to do so meaningfully and with dignity, achieved through health, sustenance, housing and education, as well as exclusion for illegitimate purposes through conviction for criminality and deportation. Legitimate participation also depends on personal and institutional relationships such as employment, family and commerce. The purpose of law and legal services regulation here is to bring structure, predictability and stability to such relationships. In addition, legitimate participation requires access to justice. Relationships won't always be smooth and the mission of law is to offer enforceability through the laws of contract, tort and others that govern relationships. It's also to secure protection from spurious or unfounded claims as well as against imbalances and abuse of power, perhaps especially by larger institutions and government. The risks to the public interest in this second dimension are different. Even so, they might still be critical to the individual citizen. Their liberty, family life, home, livelihood or right to remain could be at stake as might their personal or family wealth in a house move or the administration of a relative's estate. In these circumstances, there's a particular risk that compensation paid after the event for a legal advisor's incompetence in experience or lack of integrity will not be a sufficient or timely remedy. Again, therefore, regulatory assurance and sector specific remedies can be justified in the public interest. Although nearly all problems, challenges and opportunities in life or business have a legal dimension, their resolution or advancement doesn't always need legal expertise. Not all legal services touch the public interest directly or closely. Not all legal issues need lawyers. The scope of regulation is therefore an appropriate question, and it has two elements to whom and to what should it be applied. In most jurisdictions, the to whom element is answered in a narrow way and is restricted to qualified lawyers. The to what element is then variously answered in a broad or narrow way. Perhaps the best example of the broad answer lies in the idea of the practice of law. More so if the practice of law is then defined tautologically as what lawyers do. It effectively creates a monopoly for a narrow protected group over a very broad range of activity or territory. The fault line in this broad approach to my mind is that some of what lawyers do does not, in the public interest, need to be done by lawyers. But because it is, it often becomes the unauthorized practice of law for anyone else to do it, even if it can be better or more cost effectively done by other human beings or even by technology. Equally though, if the to what element is too narrow, citizens and consumers can be left to fend for themselves against unregulated providers. The current position in England and Wales is to my mind too much at this end of the regulatory spectrum. At 2007 reforms did virtually nothing to change the scope of regulation. My starting point would be to answer both the to whom and to what questions at the broadest level, with all legal services and all providers of them being included within regulatory scope. This would disconnect legal services from what lawyers do. Balanced against soft broad scope though, principle two should then be to pursue the minimum necessary intervention through targeted regulation designed to achieve the public interest regulatory objectives as cost efficiently as possible. It should provide the baseline or floor as I called it earlier, below which no provider may go. In this sense, regulation should focus on the minimum requirements that need to be attached to various activities, services, circumstances or providers, based on assessed risk to the public good or to consumers. It should apply the same regulatory requirements to whoever is subject to that regulation, whether legally qualified or not. This requires a proper and evidence assessment of risk. It emphasizes regulatory interventions that are targeted to the identified risks are proportionate to address them and are cost effective in doing so. With its origins in professional self regulation, too much legal services regulation is not targeted at the floor or the minimum necessary, but at the maintenance of the highest possible standards. This comes at a cost to both practitioners and clients. Must be said that this cost is not driving lawyers out of the market. But it is now all too often driving citizens out of the market for professional legal services. We can't allow a binary approach to regulation to lead us only to professional high quality regulated services provided by lawyers on the one hand or on the other to nothing to do it yourself or to unregulated provision. That is not what society deserves. It is not ultimately consistent with the belief in the rule of law. In suggesting a minimum necessary role for regulation, I realize that I'm open to an accusation of seeking to dumb down legal services and reduce the quality and protections available to clients. Nothing could be further from the truth. As a barrister myself, I'm all in favor of setting, maintaining and enforcing high professional standards. My intention instead is to be clear about the proper role of regulation and in doing so to preserve, enhance even the proper role of professions in aspiring to be the best they can be. As I said earlier, my starting point is that citizens don't always need the services of qualified lawyers offering the very best that professionals can deliver. Especially if that comes at a price that those citizens can't afford. People need help and support with opportunities or problems in their lives and businesses that have a legal origin or dimension. But other perspectives and experiences can be just as valid in many circumstances in advancing or resolving them. And yes, I dare say it, they might even be better. I therefore suggest two goals here for regulation. The first is to allow providers other than members of the legal professions to offer a range of regulated legal services to the public so that clients who want to use those providers might be assured and protected. The second goal is to free those professions from the perception of bias and looking after their own in pursuing an uncomfortable and ultimately unsustainable purpose of both representing and regulating their members. My purpose here is not to remove from the professions the mission of excellence in practice or where they can from offering something to consumers that is demonstrably better than the services available from other providers. However, we also can't contemplate as a society having such aspirational excellence as the only regulated option available to those with legal needs. A system of regulation should, as proposed in principle two, ensure that necessary regulatory protections exist for the legal services that citizens need irrespective of who provides them. However, a regulator's true role as a gatekeeper and guarantor of minimum necessary standards doesn't inevitably equip it to be the best judge of what a profession might legitimately aspire to or wish to achieve, which brings me to principle three, that the regulatory framework should leave scope and freedom for professions and professionalism. I also accept that in certain higher risk legal activities there might well be little or no difference between the minimum necessary standards required by a regulator and the high standards that practitioners, their professional bodies, judges or society would expect. I'm therefore in favour of drawing a clear separating line between regulation in which professional bodies should not be involved and the setting and maintaining of higher professional standards and which regulators should not be involved. It must be clear though that professional standards cannot override, take precedence over or be inconsistent with regulatory requirements. This in turn leads to principle four. In my mind there can be no doubt about the need for independent legal advice and representation or about their value. The rule of law and the effective administration of justice depend on it. It follows that lawyers and others who fulfill vital legal services should be independent of possibly overbearing inappropriate or even malign influences. I've already referred in principle two to the proper role of regulation as being to set the floor below which providers may not go in their provision of legal services. Either as a matter of reality or perception there is then a risk that a regulated community of legal professionals will feel that the expected standards of its hard earned calling are being dumbed down or deprofessionalised. But I've also acknowledged in principle three that this should be distinguished from the goal of a profession and perhaps legal services providers more generally to aspire to higher or even the highest standards of competence and quality. In short as I've already said the floor is a matter for regulation in protecting the public interest while professional aspiration is not. Regulated communities will then understandably expect their representative bodies to resist dumbing down and to profess and to press for high standards. Put differently regulation in the public interest and regulation in the professional interest will start from and arrive at different points. Taking this as an alternative lens through which to view the issue of regulatory independence there is an inevitable and probably irreconcilable conflict between the regulatory and representative positions. I wonder whether framing the debate in terms of independence or influence serves to obscure what should be the principle goal. Those with a direct interest in regulation and its scope and its effects on their daily practice probably can't ever be truly independent or not wish to exercise whatever influence they can muster. It seems to me that the real objective here is less about structural independence and more that the regulator should not be or be perceived to be captured by the regulated community. In other words regulation should not be directed away from the public interest and toward the interests of the regulated industry by the intent and action of the industry itself. While almost any system of self-regulation will certainly appear to the public and consumers as being captured we should now be capable of moving beyond that. It's time for a more developed understanding of capture and how best to avoid it. There are different roles for representative bodies and regulators to fulfil. Both are important and needed but in my view they're mutually incompatible. The same body can't reasonably carry out both roles simultaneously and meet the legitimate expectations of all stakeholders. It seems to me that in relation to regulation the primary role of a professional or representative body is as the description suggests to represent the views and interests of its members. I respect that position indeed I regard it as vital that the professions continue to be represented robustly and fearlessly. Adopting such a representative role distinct from regulation does not and should not mean that the representative body isn't also concerned with promoting the public interest. Professional interests and the public interest are not mutually exclusive but they are different and I have no doubt which is and probably should be the primary role and motivation of a professional body. In short principle four is not about the presence of structural separation and independence of the regulator though that might indeed be the logical or necessary consequence. Instead it focuses on the absence of capture, recognising and securing the contribution and performance of two vital but fundamentally different roles. There too often seems to be an assumption in the debate about potential changes to the regulatory framework that those changes will inevitably lead to unwanted or unforeseen consequences. Historically the default regulatory position to guard against those unwelcome consequences has been for lawyers to prohibit the activity giving rise to the risk. However if review and reform shifts its consideration from risk elimination to risk recognition and management then prohibition shouldn't be the default option. Removing a prohibition let's say on ownership or investment by those who are not lawyers doesn't inevitably lead to a free-for-all and dire consequences. In contrast to an environment in which providers are prevented from doing something a permissive regulatory amendment doesn't mean that suddenly the newly permitted activity provider or structure will become the dominant mode of practice. What does seem incontrovertible though is that positive innovation for the benefit of clients, the public and society generally can't possibly take place in an environment where activity is prohibited at the behest of incumbent providers. Too much of legal services regulation is based on what people may not do but echoes my previous point about risk elimination and prohibition rather than risk-based managed permission. My view is that all regulation is an intervention in what would otherwise be unrestrained activities. As such I think that the intervention should be justified. On that basis when suggestions are made that a regulatory restriction should be removed it shouldn't be acceptable for vested professional or other interests to be able to say what's the justification for removal or where or what is the evidence that removing the restriction will lead to defined and measurable benefits. On the contrary if the fundamental proposition is that regulatory intervention must be justified similarly its retention should need to be justified too. In short the starting point in considering reform should no longer be why but rather why not. Through principle five we should as it were shift the burden of proof. While innovation and reform will struggle to thrive in a world of barriers and prohibitions consumer detriment and competitive disadvantage will not. Finally on this point I've noticed an intriguing recent tendency when reform is being floated or discussed particularly a liberalising proposal. In tandem with the question about the verifiable benefits of a proposal the threshold test for acceptability or permanent adoption is often now set as demonstrable improvement in access to justice. Undoubtedly access to justice is a noble objective though rather a nebulous and multifaceted one with associated difficulties in identifying reliable metrics of improvement. Over to my mind it's also a set up to fail threshold. Cynically of course that would rather suit the purposes of those who would prefer to resist change. Access to justice can mean a number of different things or a collection of things. It can include access to courts, access to judicial or other official determination of a dispute, access to a lawyer, access to legal advice and representation whether from a lawyer or others and so on they're all in the mix. The metrics for each of those would though be different but identifying metrics isn't the real point. Every aspect of access to justice is influenced by a range of factors including the location and quality of court estate, the number of court sittings, the number and quality of judges, the decisions of the police, prosecutors and other public agencies, the availability of public funding, the commercial imperatives and preferences of practitioners, the geographical and societal distribution of practitioners, education and support for unrepresented litigants. I could go on. My point is that so few of these factors have anything directly to do with legal services regulation. In that case it's simply a false premise to seek to justify regulatory reform by reference to improvements in access to justice. The causal link and the evidence to support it are both tenuous and tendentious. I'm certainly not suggesting that proposals shouldn't be robustly tested and evidence gathered to support their adoption and implementation. My concern is that improved access to justice should not be a precondition or requirement of legal services regulation even though it might often be a welcome consequence of it. The success or otherwise of legal services regulation and of its reform must be assessed relative to whether or not its public interest objectives are met. Is the public good assured? Is the rule of law advanced and protected? Is the effective administration of justice achieved? Is harm or detriment to clients and citizens avoided or adequately redressed? When we know that the current structure and approach leaves millions of people without affordable regulated legal advice and representation, almost anything could improve the situation. Stopping it from becoming worse would be as laudable an objective as trying to make it better. Shouldn't we see in a controlled way whether or not it does? Why not rather than why? Reform is often thought of as iconoclastic or subversive of the existing order, throwing everything away and starting again, being radical. Those of the conservative disposition which allegedly includes most lawyers will find this idea uncomfortable if not dangerous. I prefer to think of it as reforming with a hyphen. It needn't necessarily or inevitably be radical. It needn't mean starting again. Too often in the context of legal services, reform is assumed to mean only liberalization and deregulation. The implication is that there will be less regulation or lower burdens. That activities or people who are currently regulated will no longer be so, but reform and even liberalization can be achieved through re-regulation. In other words, reform can bring within the scope of regulation activities or people who were previously outside it. On the face of it, this might seem to be at odds with liberalizing because it extends regulation to activities or providers that were previously prohibited or unregulated. However, where being beyond the scope of regulation arises from prohibition, such as the unauthorized practice of law, bringing new providers within scope actually liberalizes them to start providing services legitimately. It offers protection to those new providers by conferring regulatory permission at oversight rather than confirming the risk of operating illegally. It also offers more choice and protection to those who use them. This is what in fact happened in England and Wales following the 2007 report. Nothing that was previously regulated became part of a new deregulated prefrontal. Those who were previously excluded from ownership and participation in law firms were allowed in to the regulatory framework. This included investors, professional managers, other professionals and business people. It hasn't led to catastrophe or disaster. The sky hasn't fallen in and the market hasn't been infiltrated by the incompetent, the unethical or the criminal. It seems to me that the legal professions in many parts of the world are definitely at a turning point. Whatever the regulatory framework, lawyers appear to be losing control and share of the market. No longer does the activity and output of the legal professions equate to the legal services sector or marketplace. We already know that increasing volumes and types of legal work are now handled by paralegals and by technology. We already know that frustrated corporate clients either internalise more of their legal needs or outsource them to alternative legal services providers either domestically, internationally or virtually. If controlled and relative share of the market are declining, on what basis can the legal professions make any credible or legitimate claim to retain the major say or final word in how that market should be regulated? To cling on to privilege and protection in the face of market and societal shifts will surely only result in them speeding past the turning point to the point of no return. Clients, consumers, competitors, governments, legislators or supreme courts will otherwise inevitably write the rules whether alone or in combination, whatever the professions think and however much they rail against it. It's no surprise that the pressure is mounting to reform or reconfigure the legal services market and its regulation. It's not yet too late for lawyers and their representative bodies to get on board with regulatory reform but the train is about to leave the station. I firmly believe that it's a journey worth taking with potential gains for society, for clients and for all who provide legal services including lawyers but it's also a journey with critical importance to society, to the rule of law and to the administration of justice. It's also essential to access by-citizens to effective, affordable and assured legal advice and representation. Regulation and professionalism might be in a current state of tension but they are not incompatible. It seems that concurrent control of both regulation and professionalism by the same people or organisations is increasingly difficult to justify. In that case meaningful engagement and collaboration on regulatory reform is likely to be the best way and possibly the only way of maintaining any significant influence and authority over professionalism. Reform like all change is a choice. I believe that it's best to engage in it while the choices are still open to take the turning point rather than to stumble on doggedly or obliviously to the point of no return and no choice. Thank you very much. Thank you Stephen. So I'm going to just play with my reactions here and start off with a round of applause and maybe get some others to join us. And the plan from here on in is thank you for a great talk, provocative, radical even, certain reformatory. So thank you very much for that. Lots of great ideas, lots of provocative ideas. So I'm going to actually call on Professor Andrew Martin. I think Andrew's going to moderate any questions or comments and I'll just hang out in the background here. So Andrew, it's over to you. Thank you. Thank you Professor Mason. That gave us a lot to think about. We have two sections of professional responsibility that are here as well as many other guests. I think what we'll do to start with questions is if I can ask people using the reaction button to raise your hand and I'll keep a list and we'll see how many we can get through in the 20 minutes or so we have left in this session. Don't be shy. It's okay. Oh, Daryl, why don't you start us off? Thank you. Thank you Andrew and thank you Stephen. That was wonderful. My first question is can you give any sense on where the kind of reform you envision is being done well and perhaps not all aspects of it but if one was to look for a model where some of these basic challenges are being addressed most successfully, where would you look to? It's a great question and as I said in the lecture I'm not sure that anybody is doing all of it well. You probably have to look at different parts of the world to see different aspects of it being done well. I know there are certain parts of Canada and the US where the idea of licensed legal technicians is allowing those who are not fully qualified lawyers into the regulated market. I think that's a very good step in the right direction. We can now see places like Utah and Arizona adopting the same sort of approach as we've seen in the UK particularly into some extent in Australia in allowing people who are not lawyers and aren't otherwise connected with the law, as paralegals might arguably be, to become involved in the financing or the organisation and management of law firms. I think what we've got at the moment is a patchwork of innovation with relative degrees of success. What I'm trying to advocate here is that we bring all of the patchworks together and create a rather more coherent and cohesive whole out of the very many initiatives that are taking place. Thank you, Daryl. We have a question in the chat from Victoria Rees. Wondering about the status of your recommendations in the United Kingdom, what has happened in the past five months? I realise that might be a delicate question to answer and I'm not necessarily asking you to push the government more than you're comfortable doing, but just to catch us up since your report has been issued. Yes, thank you for that. As I said, the report went into the Lord Chancellor and the Ministry of Justice in June 2020. Not much was going to happen for the rest of the year because the competition and markets authority, which is a statutory body in the UK, had already issued its own report in 2016 suggesting that reform could well be needed and they said that they would come back to it within a period of time, as it happened because of Brexit, COVID and to some extent the work I was doing, the CMA held back a bit on producing their update report, but they did that in the second half of 2020 and produced their further thoughts in December. Those thoughts in terms of regulatory reform were very broadly supportive of what I'd recommended in my report as both short-term and long-term reform, so the idea, for instance, that there would be an opportunity for those who are currently unregulated to become regulated for the provision of certain services is being actively considered, as is the idea that those people should be on a national public register of providers that would allow consumers some transparency in the choices they might make about the nature of the regulation that apply to a provider they might choose. So I'd say we're on a journey. I think from my point of view, the progress has probably been faster than I might have hoped for last June in the sense that the CMA has picked it up, work is being done. Our overarching regulator, the Legal Services Board, is actively looking at the recommendations. They haven't yet said anything publicly about them, so there is activity. There's probably more activity behind the scenes that has yet made its way out from behind the curtain, but it's certainly not a situation where nothing is happening or being considered. Thank you, and it's okay to put your questions in the chat. I just ask that you keep them fairly brief just for my benefit. The next question is from Nicole, and if I understand it properly, if we're talking about a regulatory floor, a minimum floor, and then we're talking about professions having an aspirational optional ceiling, are you concerned or do you think, whether or not it's a concern, over time, lawyers will, for example, lack an incentive to meet that higher standard and that there'll be a movement towards the floor, partly perhaps because of cost considerations, and if that reduces costs for clients and the public, is that a good outcome or a bad outcome? That's a very good question. I have no way of knowing whether the professions will continue to meet their own voluntarily self-imposed aspirations as professional standards. If they did decline over time, either because of economics or because clients weren't buying it, I might argue that that would tend to say that it wasn't necessary, and that as long as the floor is set in the right place, consumers are adequately protected, and their scope and choice has been increased as a result. I'm well aware that the professions will come back and say, well, we all know that clients don't always know what they need or want, and to some degree need protecting from themselves. For me, that's an issue of where you set the regulatory floor, rather than where you set a professional aspiration. I do still think, as a market and competitive issue, there will be people who want to provide a higher level of quality and service, and there will be people who want to buy it. My whole point is that if that's your only option, we are, to societies far greater detriment, excluding far more people from regulated provision of legal advice and representation, than we are privileging a narrow number of people who can afford to provide and buy. The next question, again, to the extent I have it right and am bright enough. There's a question about immigration advisors or immigration professionals, similar to how, I guess, paralegals are regulated now in Ontario, as you may know, are not subsidiary, are specific, more specific, or different professional bodies and different complementary professions, perhaps I could call them. Are those a solution, or is that just a symptom of the mess we're in? I think, I'm not sure I'd describe it as a mess, but I would probably describe it as an accident or process of history. So we have had for a number of years, almost a separate profession of regulated immigration practitioners. They're not regulated as part of the legal services framework. Lawyers who practice as immigration lawyers continue to be regulated by their own professional regulator, not by the immigration services regulator. So we have two very different and parallel systems. There's no doubt that's confusing to consumers who are often in dire circumstances in urgent need of advice and support. Don't understand the system and very often don't even speak the language. So there are some serious issues about having a multiplicity of differently regulated practitioners. Unfortunately, the biggest issue for me is that we have on the one hand a specialist immigration practitioner regulator who really understands immigration advice and practice. We have professional regulators in law who don't have that depth of understanding, they don't have that degree of interaction with their own immigration practitioners. And I'm afraid to say to a large extent, I don't think the professional regulator, the legal regulators are doing enough to oversee the competence and performance of lawyers who are immigration practitioners compared to those who are within the more separate immigration structure. So we're in danger, I think, of creating a parallel system that's not effective. We're letting down consumers in significant vulnerability and need in very difficult circumstances. And I just don't see how that can be right. So the idea that there might be a single regulator for a number of legal services to me is an attractive one. If only to iron out those inconsistencies, the incoherence, the lack of regulator experience and often the lack of monitoring and control that we see. Before we go to Chrissy's question, I just wanted to follow up on that a little bit. Sometimes, and this is an issue in Ontario in paralegal scope of practice and in many jurisdictions in Canada, there's been a move to supplement doctors in medicine with nurse practitioners or an expanded scope of practice for pharmacists. And in those kinds of situations, the lawyers and the doctors tend to say, you say you can do simple cases, but it takes the skills we have to know which the simple cases are. So a paralegal advocate might say, let us do the simple wills or the simple divorces. And a lawyer might say, you need to be a lawyer to know which the simple ones are. I'm just wondering, because you've probably heard a similar argument at some point, I'm just wondering how, given the framework you've set out, how you'd respond to that. I'm well aware of the issue. And I'm not going to pretend that it's not an issue. The answer to me lies in the assessment of risk. So if the area of practice in which these problems arise is one where for whatever reason there is high risk to the client, then I would expect the regulatory framework to step in and to set what I described as the regulatory for at the appropriate level for that issue or that consumer because they're vulnerable or whatever the risk factor happens to be. At that point, I don't believe it's right that the only arbiter of whether something is simple or complex and needs a lawyer should be a lawyer. Because there is no doubt in most consumers' minds that in those circumstances, of course, the lawyer is going to make that call in their own favor. And I wouldn't blame them for doing it. But when that has regulatory consequences, I just think there needs to be somebody else in that mix making that decision. And frankly, with a better educated public, they're not all stupid. They often recognize for themselves whether something is simple or complex. Not always our grantee. But we can't arrogate the nature of a decision like that to ourselves against everybody else, clients, competitors, regulators or whatever. That's very helpful. Thank you. We've had a hand up for a bit from Chrissy Lightfoot. Chrissy, do you want to go ahead? Yeah, thank you. Steve, I read your report in depth when it first came out. And it's a fantastic report actually. And it was great. What's just been discussed actually, because it's a segue into my question, which is to pick up on what you said earlier about the short term interest of getting the regulatory environment looked at. Because obviously, it's a long tail. But something needs to be done sooner rather than later. And particularly around this issue of where you've got law tech, legal tech providers, direct to consumers and businesses, which is obviously in front and center from my heart where I'm coming from as well. Obviously, you won't be able to answer this fully. But what does your gut tell you as to how long it might take as in years? Because we don't we do know that obviously, the regulatory framework and what is required does take years and not months, where there's going to be some movement in this crucial area where the risk might be low to the consumer or the business if they are to choose to use legal tech and law tech companies direct, where human lawyers are not involved at all. And also where it is a light touch touch point, which this gentleman kindly brought into the equation as well, is to say, well, if it is a light touch and the human lawyer may be needed because it might be more complex than what you think. I think you understand why I'm coming from Steven. My question is really, what does your gut tell you having worked with the LSB and liais with the SRA and the Law Society and the regulators? Do you feel this is something that's going to happen in the next year or two? Or is it something that even the easiest stuff that should or could be done to open up to that mass market? Are we still looking five years away? What do you think? I'd be disappointed if something hadn't happened within two years. I think the one thing that COVID and remote working and greater reliance on technology has taught us is how much consumer activity has shifted from going into say lawyer's offices to doing things online. And we all know that there are risks for consumers in that under our current framework. I've said earlier, I don't want to dwell too much on the specifics of our framework for the purposes of this session, but it is there as a pretty gaping hole. I've made a big thing about it. The Competition and Markets Authority has made a big thing about it. I'm convinced that the government understands the nature of the problem. So, as I say, I'd be disappointed. I might not be surprised, but I would be disappointed if something hasn't changed within two years. Thank you. Thank you so much. Thank you, Chrissy. And thank you, Elizabeth. I think I got Yazan's question earlier, although I may well butchered it. And if that's the case, I encourage Yazan to repeat it or explain or help me understand it better. We have a question in the chat from TJ. What thoughts do you have on the criticism that the same regulatory scheme that we have is also the result of a bar society or scheme which has created an old boys club? Well, I guess my response to that is largely in terms of what I described in the lecture, that it is in danger of regulatory capture. I used the expression in my report of the professions being an echo chamber. In other words, they shout out and what comes back is what they want to hear. And that is the danger of a profession and the supply of services and practitioners that is too closely controlled, in other words, captured by providers and to the extent that they can then determine what is an acceptable level of professional performance to me is just so increasingly problematic that it can't be sustainable in the medium to long term. I suppose I hesitate to describe it as an old boys club for various reasons, but I understand that the notion behind it, and I do think in a broader sense it is something that needs to be worked on. Great, thank you. So we have about five minutes left and so we probably have time for one or two more short questions. If I can just invite people to raise a hand or put a short question in the chat, that would be great. I'm not seeing any hands or comments. Chat entries, I might just ask how you understand, we often forget that governments are a large consumer of legal services and a surprisingly large proportion of the profession is in-house counsel for governments. And I did notice in your report that you talked about an exemption for the law officers of the crown and presumably the lawyers who work for them from what you're describing. In your vision, what would that look like for a lawyer for the Attorney General's office? Would the Attorney General keep hiring only lawyers or should they make just the same use as everybody of the larger scope that you're talking about? I think in principle they should have that choice available to them and not constrained by any aspect of a profession-imposed regulatory framework that would make that difficult or problematic. And then I guess we'll say the last question from Nicole. This is a follow-up from earlier. I'm still curious about professional discipline. Would there be a role for it in your model beyond enforcing a regulatory floor minimum? And so I might add to that, for example, if we have a regulatory floor, if lawyers, for example, barristers want a higher floor for their members, do we have a dual system of professional discipline or would it simply be the regulator imposing the minimum floor? No, I think there's scope for both. Again, I'm not going to sit in and pretend it would be necessarily easy or straightforward to begin with. The regulatory floor must clearly be a matter for the regulator and whatever disciplinary processes would flow from that. And this may be a peculiarity of the English system, but at the moment the only way into the regulatory framework is because you have a professional qualification. So there's a complete overlap of even now of regulation and what it means to be the member of a professional body. What I'm suggesting is that we open up and allow people other than lawyers to be regulated to do some of the same things that lawyers currently do. So I disconnect the two. That means that if the legal professions wanted to continue to impose higher standards on their members, they would still be free to do that. They might also be free to say you haven't met those standards and so we're going to throw you out of the profession. At the moment that would mean you'd lost your right to practice. What I'm envisaging is you might have lost your right to call yourself a barrister or a solicitor, but you won't necessarily have lost your right to practice within a regulated framework. And the danger for the professions is that it might become a lot cheaper and less burdensome to practice as a regulated member of the market rather than a professional member of the market. But that's something the professions I think have got to work out. If they can make it sufficiently attractive, both to members and to those who pay for their services, I don't see any problem about high standards and a great future for strong legal professions. It's just that at the moment we are overlaying too much of that onto the regulatory framework and clients and society paying the costs of that largely in not being able to access affordable legal advice when they really need it. And I think if you look at the numbers there are far more people who need advice than those who actually end up with a lawyer and certainly those who end up in a courtroom. We've got to do something to redress that massive imbalance of supply and provision and need and cost. Well that's a very helpful answer. And I think that with a minute left that puts us in great shape to wrap up. Thank you very much for your time Professor Mason. Thank you. Dean Devlin, do you have some closing remarks you'd like to make? I think Darryl is going to jump in at this point. I am and again I want to thank Stephen. This lecture is largely designed for two purposes for our students and professional responsibility and for the broader community. And for students who are about to embark upon a legal career, they know that issues like or they need to know that issues like the continuing access to justice crisis ought to play heavily on their minds. It is the reality in which they will enter the profession. They also need to know that law tech in general and artificial intelligence in particular are and will become greater threats to how legal services are provided. If the profession does not grapple with this issue seriously, I echo Stephen's comments that governments or courts or others will. We are seeing it in a range of other professions. We are seeing government take a much greater interest in how professions are regulated. All one needs to do is look at some significant changes that are happening in health regulation to know in which direction the wind is blowing. Stephen, I can't thank you enough for sharing your insights with us. You and I have talked about this many times over the years. But your most recent work is really groundbreaking and we thank you so much for sharing it with us. Thank you very much, Darren. It's been delightful. Thank you, Stephen. We very much appreciate you coming to the Halifax, at least virtually. Thank you to all the students and all the participants. Take care, everyone. Have a great afternoon. And don't forget it's St Patrick's Day. Do something fruitful with your time. Stephen, you want to stay on for a minute? We can just