Canada’s law societies regulate the legal profession in the public interest—but the public interest, and that of lawyers, aren’t always the same. This was made glaringly apparent on May 8, when the Court of Appeal of New Brunswick upheld a decision finding that province’s law society deliberately shut a title insurance provider out of the local land title search business. “Members of the law society are not happy with the encroachment on what has traditionally been the work of lawyers,” the trial judge said in his decision back in 2007.
Title insurance, which replaces a lawyer’s certificate of title by insuring a homeowner’s interest in the property, can save consumers time and money. When First Canadian Title Co. (FCTC) came to New Brunswick in 1996, lawyers there no doubt felt threatened: almost half of them practised real property law. In a letter cited in court documents, one law society member complained of the “Yankee ingenuity” of an outside company trying to fill its pockets “with New Brunswickers’ dollars.” (FCTC is a subsidiary of First American Title Co.)
At issue in the lawsuit was a new professional standard, introduced in 1999, which required a lawyer to be present when consumers swore affidavits for the sale or mortgage of a property, or converted the title to a new electronic system. In a decision upheld by the Court of Appeal, the trial judge found that, by introducing this standard, the law society was looking after its members’ interests instead of the public.
Paul Paton is the vice-chair of the Canadian Bar Association’s national ethics and professional issues committee, and an associate professor at the University of the Pacific’s McGeorge School of Law. It’s rare for a Canadian court to step in and challenge a law society’s authority, which makes the judgment especially noteworthy, he says. “This throws a whole lot of sunshine on what some of the [law society’s] motivations were, at least in this case,” Paton adds. “And it’s not a good story.”