Professional Autonomy and the Public Interest: The Barristers' Society and Nova Scotia's Lawyers, 1825–2005 9780773559776

Table of contents :
Cover
Professional Autonomy and the Public Interest
Title
Copyright
Dedication
Contents
Abbreviations
Preface
Introduction: “Wholesome Control”
PART ONE
1 From Statutory Regulation to Law Society
2 The Society and the Bar: Road to Annexation
3 The Society under the Barristers and Solicitors Act
4 Brave New World
5 Back to the Future
PART TWO
6 “Nova Scotia’s Watergate”: The Society and the Marshall Inquiry Report
7 Made in Manitoba: The Society and the Legal Profession Act
8 The Society and Professional Regulation
9 The Society and Administration
10 The Society and Legal Education
11 The Society and Continuing Professional Development
12 Conclusion: Self-Regulation and the Public Interest
APPENDICES
A Chronology
B Officers and Senior Officials
C The Barristers’ Library
Bibliographical Note
Notes
Index

Citation preview

Professional Autonomy and the Public Interest

The Honourable James William Johnston, 1792–1873. First head of the Nova Scotia Barristers’ Society. Painted by Henry Sandham, 1875. Courtesy of Government of Nova Scotia (Province House Collection). Reproduced by gracious permission of the Speaker of the Nova Scotia Legislature, The Honourable Kevin Murphy MLA.

Professional Autonomy and the Public Interest The Barristers’ Society and Nova Scotia’s Lawyers, 1825–2005

BArry CAhiLL

McGill-Queen’s University Press Montreal & Kingston • London • Chicago

© McGill-Queen’s University Press 2019 iSBN 978-0-7735-5862-5 (cloth) iSBN 978-0-7735-5977-6 (ePDF ) iSBN 978-0-7735-5978-3 (ePUB) Legal deposit fourth quarter 2019 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. Funding has also been received from the Nova Scotia Barristers’ Society.

We acknowledge the support of the Canada Council for the Arts. Nous remercions le Conseil des arts du Canada de son soutien. Library and Archives Canada Cataloguing in Publication Title: Professional autonomy and the public interest : the Barristers’ Society and Nova Scotia’s lawyers, 1825-2005 / Barry Cahill. Names: Cahill, Barry, author. Description: Includes bibliographical references and index. Identifiers: Canadiana (print) 20190150351 | Canadiana (ebook) 20190150386 | iSBN 9780773558625 (cloth) | iSBN 9780773559776 (ePDF ) | iSBN 9780773559783 (ePUB) Subjects: LCSh: Nova Scotia Barristers’ Society–History. | LCSh: Law–Nova Scotia–Societies, etc.–History. | LCSh: Lawyers–Nova Scotia–History. Classification: LCC KE361.N6 C34 2019 | DDC 340.06/0716–dc23

This book was designed and typeset by Peggy & Co. Design Inc. in 11/14 Adobe Garamond.

TO THE GLORY OF GOD And in Grateful Memory of The Honourable Lorne O. Clarke, QC 1928–2016 Chief Justice of Nova Scotia, 1985–1998

Contents

Abbreviations Preface

ix

xi

Introduction: “Wholesome Control”

3

PArt ONE 1

From Statutory Regulation to Law Society

19

2

The Society and the Bar: Road to Annexation

3

The Society under the Barristers and Solicitors Act

4

Brave New World

62

5

Back to the Future

95

PArt twO 6

“Nova Scotia’s Watergate”: The Society and the Marshall Inquiry Report 107

7

Made in Manitoba: The Society and the Legal Profession Act 121

8

The Society and Professional Regulation

9

The Society and Administration

10

The Society and Legal Education

153 167

141

32 48

viii

CONtENtS

11 The Society and Continuing Professional Development 12

Conclusion: Self-Regulation and the Public Interest APPENDiCES

A

Chronology

221

B

Officers and Senior Officials

C

The Barristers’ Library Bibliographical Note Notes

259

Index

317

248 257

241

198 216

Abbreviations

AjEFNE BAA BAC BSA CBA CLE CLESNS CPD KC LPA LSUC NSA NSBL NSBS NSLA qC

Association des juristes d’expression française de la Nouvelle-Écosse Barristers and Attorneys Act bar admission course Barristers and Solicitors Act Canadian Bar Association continuing legal education Continuing Legal Education Society of Nova Scotia continuing professional development king’s counsel Legal Profession Act Law Society of Upper Canada Nova Scotia Archives Nova Scotia Barristers’ Library Nova Scotia Barristers’ Society Nova Scotia Legal Aid queen’s counsel

Preface

thiS BOOK OwES itS iNCEPtiON tO DArrEL PiNK, until 2018 executive director of the Nova Scotia Barristers’ Society, who wisely decided to honour the bicentenary in 2011 of Nova Scotia’s first act regulating the legal profession by commissioning a scholarly history of the society. Founded in 1825, the NSBS is the second-oldest law society in common-law Canada, the oldest being the Law Society of Ontario, founded in 1797. Those familiar with the academic literature may recognize my main title as that of Mark Orkin’s trail-blazing study of the Law Society of Upper Canada (as it was formerly known), alas still unpublished after more than forty-five years.1 A rigorous, deeply insightful, and thoroughly well-contextualized work of scholarship, it remains the benchmark. The trigger for Orkin’s work was similar to mine: in 1970 Ontario enacted a new Law Society Act; in 2004 Nova Scotia enacted the Legal Profession Act, replacing the century-old Barristers and Solicitors Act. Like Orkin’s, the scope of this study is the governing body of the legal profession; it is not a history of the Nova Scotia bar. That scope is threefold: the development of the society’s power of professional regulation; the interplay of society interest, professional interest, and the public interest; and the factors that both delayed and facilitated the achievement of self-regulation in 1899. Though the Law Society of Ontario and the Nova Scotia Barristers’ Society have little in common other than their long history, Nova Scotia’s reimbursement fund (now lawyers’ fund for client compensation) and bar admission course mirrored developments in Ontario. In one respect, however, Ontario and Nova Scotia are the same: the Law Society Act, 1970, retained the law society’s traditional name, as did Nova Scotia’s

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Legal Profession Act. To paraphrase Mark Orkin, some insight into the probable future of the society may be gleaned from a close analysis of the latest stage in its 175-year evolution: the Legal Profession Act. The book concludes with its coming into force in May 2005. My debts are many and various. By far the greatest is to my peerless research associate, Heather Long, Cg(C), whose work over three years was generously subvented by the society. Without her expert assistance, this book could not have been written. I am also indebted to Barbara Campbell, formerly director of library and information services at the Nova Scotia Barristers’ Society; Susan Jones, formerly information services librarian; Deborah Copeman, formerly librarian; and library technicians Jennifer Haimes and Lisa Woo Shue; to Anne Van Iderstine, manager of information services, Nova Scotia Legislative Library, and her colleagues, Heather Ludlow and David McDonald (now legislative librarian); to Karen Smith and Dianne Landry of Dalhousie University Archives and Special Collections; to Louise Le Pierres, formerly of The Herald Library; to Lawrence K. Evans, qC, for allowing his presidency of the society to be featured; to Mary Walsh Brayley, who shared her experiences as secretary-treasurer; to Gary Bardon, qC, for special assistance; and to Mary Jo Poburko for sharing her reminiscences as the society’s first professional librarian. From beginning to end I enjoyed great cooperation from the staff of the Nova Scotia Barristers’ Society. Ronald G. Friesen, chief executive officer of the Continuing Legal Education Society of British Columbia, generously supplied from the society’s extensive archive documents bearing on the start-up of CLESBC, which was the model for the Continuing Legal Education Society of Nova Scotia (1977–2002). A special word of thanks is due to my friend Dr William H. Laurence, who solved a thorny problem of society chronology. His revisionist dissertation on Sir William Young, the society’s first president after its reorganization in 1860, is the most important monograph in the legal history of Atlantic Canada yet to appear and richly deserves publication in book form.2

Barry Cahill

Professional Autonomy and the Public Interest

i N trO DUC t iO N

“Wholesome Control”

wEDNESDAy, 18 jULy 1900, wAS A rED-LEttEr DAy in the history of the Nova Scotia Barristers’ Society. Not only was the first person of colour – James Robinson Johnston – called to the bar, but the society had gathered in Halifax County Courthouse to unveil a bronze bust by québécois sculptor Louis-Philippe Hébert of the late Sir John Sparrow David Thompson (1845–1894).1 Thompson was the first of two former presidents of the society to become prime minister of Canada; the other was Robert L. Borden, MP, in 1900 president of the society. Borden joined Thompson’s law firm early in his career, eventually becoming head of it. A year earlier, he had presided over the society’s greatest achievement: conferral of the power to regulate the legal profession.2 When Thompson was called to the bar in 1865, the Nova Scotia Barristers’ Society was in its fortieth year, having been founded in 1825, incorporated in 1858, and reorganized in 1860; he became its secretary in 1868, vice-president in 1879, and president in 1880. At that time, the society played no role in professional regulation. It was not a law society in the strict sense of the term. In the British tradition, law societies exist to regulate the legal profession and are thus an integral part of its history. They were an outgrowth of English common law as it developed in both Great Britain and Ireland and throughout the British Empire.3 Generally speaking, law societies have attracted much less scholarly historical interest than lawyers.4 In Canada, law society histories exist for six jurisdictions: Alberta,5 British Columbia,6 Manitoba,7 New Brunswick,8 Ontario,9 and Saskatchewan.10 This study of the Nova Scotia Barristers’ Society combines the institutional and functional approaches into a single methodology that integrates

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Professional autonomy and the Public interest

administrative history and thematic approaches. It attempts to answer the questions of how the society became the regulator of the legal profession and how the public interest rationale for self-regulation evolved. Studies of Nova Scotia’s lawyers proliferate,11 but there is no history of the Nova Scotia Barristers’ Society or of the bar. Myths and misconceptions abound, among them that professional self-regulation dates from the society’s incorporation in 1858. According to a 1990s textbook account of the beginnings of the legal profession in Canada, the Nova Scotia Barristers’ Society and the Law Society of New Brunswick (also established in 1825) “were loosely-structured gentlemen’s clubs brought together for mutually advantageous projects, such as accumulating a library for the use of the local bench and bar.”12 While this may have been true of the short-lived Law Society of New Brunswick, it was not true of the Nova Scotia Barristers’ Society, which was intended to be a law society in the full sense of the term. That goal would elude the society for nearly 75 years. The bar of Nova Scotia was established with the courts in December 1749 – shortly after the founding of Halifax – and was regulated by the superior courts. The “gentlemen of the bar attending in their gowns” must have been conspicuous in the procession from the governor’s house to the courthouse on the day of the first opening of the Supreme Court, 22 October 1754.13 A small but distinguished group, they were led by Attorney General William Nesbitt and included his law partner, George Suckling (“the English attorney”), clerk of the Crown and a future attorney general of Quebec and chief justice of the Virgin Islands. By autumn 1754 the bar of Nova Scotia had been in existence for five years, and control of it devolved to the new Supreme Court. The bar consisted entirely of attorneys/solicitors (the only barrister was Chief Justice Belcher himself ) and professional regulation – pupillage, admission, and discipline – lay entirely in the hands of the Supreme Court. As in England and America, lawyer training was by apprenticeship to a practising attorney. The court prescribed the number of years of articled clerkship that had to be served, the oath was then taken, and the attorney entered into practice. Not until the Judges Affair of 1787–92 was discipline an issue, and then the Supreme Court did not hesitate to disbar for contempt two American Loyalist attorneys.14 Professional from the outset, the bar nevertheless grew and developed slowly.15 During and after the American War of Independence (1775–83), the size and sophistication of the Nova Scotia bar were greatly enhanced by

iNtrODUCtiON

5

the influx of émigré Loyalist lawyers from the former Thirteen Colonies. Among them were the cream of the pre-revolutionary Massachusetts bar: Judge Foster Hutchinson and Sampson Salter Blowers (a law student of the last royal governor, Thomas Hutchinson), who became attorney general of Nova Scotia in 1784 and chief justice in 1797. Blowers’s long tenure as chief justice saw the passage in 1811 of Nova Scotia’s Act for the Better Regulation of Attorneys, Solicitors and Proctors Practising in the Courts of Law and Equity in This Province.16 Why “better”? Common-law rule of the legal profession had been under stress; the purpose of the Lawyers’ Better Regulation Act was to improve and strengthen judicial regulation. (The act also introduced the degree of “barrister,” but that did not result in a legal profession divided between barristers (counsel) and attorneys/ solicitors such as existed in Great Britain and Ireland). Unlike Upper Canada’s 1797 Act for the Better Regulating the Practice of the Law,17 Nova Scotia’s act did not establish a law society. Moreover, unlike the Law Society of Upper Canada, which was a creature of public statute and had regulatory powers from the beginning, Nova Scotia’s law society was privately incorporated and did not acquire effective regulatory powers until 1899. Nor was it, like Ontario’s, an educator with its own law school; its role in legal education was limited to the regulatory sphere. Though conceived as a law society – from the outset all barristers were denominated members – the “Society of Nova Scotia Barristers” (as it was originally known) was a private body. (No senior lawyer, judge, or legislator in Nova Scotia seems to have contemplated the peer-control approach to professional regulation.) Indeed the Lawyers’ Better Regulation Act was allowed to expire after just fourteen years, perhaps because the society had recently come into existence and it was assumed that if there were a professional body to represent lawyers, there was no need to renew the act further. Professional regulation would revert to the status quo ante and revest in the Supreme Court. Alternatively, was the statute allowed to die because of the potential threat posed to the ancien régime by a new-model law society with aspirations to co-opt the bar? Were the timing and circumstances of its creation a reaction and response to legal crisis, or did the society’s birth aggravate or even provoke the crisis? The younger-generation metropolitan lawyers who spearheaded the initiative to found a law society were precocious and highly ambitious but as yet lacked the political weight to fulfill their aspirations for a self-governing legal profession led by themselves. Nevertheless, the very

6

Professional autonomy and the Public interest

existence of a law society represented not only a break with tradition but also a transition within the ranks of the Halifax bar and implied a challenge to the hegemony of the judicial regulation. An incentive might well have been the 1822 incorporation of the treasurer and benchers of the Law Society of Upper Canada, after and as a result of which LSUC began to regulate for legal education and admission to the practice of law. The founders of the Society of Nova Scotia Barristers – all called to the bar after passage of the Lawyers’ Better Regulation Act – were second-generation Loyalist anglophiles committed to English rather than American models of professional governance. Nova Scotia’s law society was an enterprise of progressive young lawyers who believed that the bar should govern itself for the benefit of law as a learned profession. An independent professional bar with an eye toward improving standards of practice and governance called out for an independent law society to represent it. The nonrenewal of the better lawyers’ regulation act in 1825 was the society’s window of opportunity, but neither then nor later could the society exploit it. Despite acquiring responsibility for law student examinations in 1872, the society did not penetrate the regulatory field until 1885 and did not exclusively occupy it until 1899. Throughout the pre-modern era, ad hoc legislative interference in professional regulation was a perennial thorn in the side of the society. In 1874 the legislature could brazenly assert that “the regulation of the bar in Nova Scotia is vested in the provincial legislature.”18 The creation of “lawyers by statute” is a case in point.19 In 1870, for example, a bill was enacted allowing a law student from Nova Scotia credit for time served studying law in Portland, Maine.20 In 1873 the legislature enacted another bill enabling Robert Sedgewick, an Ontario barrister (afterwards Justice Sedgwick of the Supreme Court of Canada), to be called to the bar of Nova Scotia.21 In 1882 a bill was enacted that “in order to remove all doubts concerning said admission” retroactively affirmed a rule of court ordering the admission of a New Brunswick lawyer to the bar of Nova Scotia in 1875.22 In 1886 the legislature enacted a bill prescribing the conditions under which a Scottish law student could be called to the bar of Nova Scotia.23 Two years later, two more bills were introduced to enable individuals to obtain admission to the bar; neither was enacted, but one of the individuals concerned gained admission regardless.24 In the early 1890s the legislature enacted a series of bills to enable the Conservative leader of the Opposition, a Dalhousie LLB graduate, to be called to the bar.25 The persistent tendency of the legislature to interfere with the Supreme

iNtrODUCtiON

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Court’s residual common-law powers to regulate the legal profession stemmed from the failure of both to recognize the society’s claim to do so. The Nova Scotia Barristers’ Society was not so much as mentioned in the governing legislation (Barristers and Attorneys Act) until 1872 when it assumed responsibility for law examinations. In 1880 the society was authorized to initiate the call of new barristers in open court.26 Between 1885, when the council of the society was given disciplinary powers over the bar, and 1899, when it became the governing body of the legal profession, legislation affecting the bar was enacted on nine occasions.27 Bizarrely, as late as 1910 the chief justice was made an ex officio member of council, an arrangement lasting nearly twenty years. Even more bizarrely, until 1939 – forty years after professional self-regulation became a reality – the Barristers and Solicitors Act, 1899, included this century-old proviso: “… nothing herein contained shall interfere with or affect the wholesome control which Her Majesty’s Courts are authorized to exert over the several practitioners therein, or to prevent such court from suspending, silencing, dismissing or striking off the roll any barrister, advocate, attorney, solicitor or proctor for malpractice or misconduct.”28 The proviso originated in the second Lawyers’ Better Regulation Act, passed in 1836, eleven years after the demise of the first.29 The new act was largely a recapitulation of its 1811 predecessor; amended, but substantially unchanged, it would stand for sixty years – until passage of the Barristers and Solicitors Act, 1899. In 1844 the society unsuccessfully petitioned for a legislative charter. Like the society’s founding twenty years earlier, the timing of this initiative was probably not coincidental. In 1843 passage of a new English Solicitors Act had effectively ensured that the law society would be “henceforth the recognized voice of the profession.”30 Such an achievement lay far in the future for the Society of Nova Scotia Barristers. The inherent weakness of an unincorporated law society without statutory entrenchment or even recognition was highlighted by reformer Joseph Howe’s “free trade in law” bill of 1850, which aimed to break the bar’s de facto monopoly of law practice.31 Though duly incorporated into the Barristers and Attorneys Act, conferring the privileges of barristers on ratepayers and voters proved unrealistic; the amendment was repealed in 1864. By the 1850s professional self-regulation was an idea whose time had come. The Medical Society of Nova Scotia was established and a new Medical Act passed with a view to self-regulation of the medical profession.32 The Barristers’ Society finally achieved incorporation in 1858;

8

Professional autonomy and the Public interest

unlike the physicians, however, it would have to wait another forty years before acquiring effective regulatory powers under a public general act. After incorporation the society began to assert more aggressively its claim to govern lawyers and set professional standards, especially with regard to the fundamentals of legal education. In 1860 the society renewed its infrastructure, establishing an executive committee (“council”) to arbitrate practice-related disputes between members and hear and adjudicate complaints by members against other members. Though the society saw incorporation as a Churchillian “end of the beginning,” the road to self-regulation would prove winding, long, and hard. The judges were not ready to relinquish their control of the bar, nor was the legislature willing to relinquish its power to interfere in professional regulation. An indication of just how seriously government viewed the prospect or even possibility of a law society with regulatory powers is that when the society was reorganized in February 1860, the premier became its first president. As judicial regulation waned, a vacuum ensued. The gradual withdrawal of the judges from the field of professional regulation did not necessarily mean that their place would be taken by the Barristers’ Society, whose reach did not extend beyond its own voluntary membership. The legislature, moreover, was extremely reluctant to confer regulatory powers upon the society and continued to resist the society’s aspirations to govern the legal profession. At the bare minimum, council could not become the governing body unless and until membership in the society was made compulsory for all lawyers. Limited progress was made in 1885, thanks to a cause célèbre in which council undertook to discipline two barristers for professional misconduct. Legislation confirming their action ensued, giving council the authority to regulate for discipline – though without any enforcement powers.33 The anomaly of regulating for the “discipline and honour” of a profession beyond the reach of organizational control meant that the power could not be effectively exercised. Those lawyers who opposed professional self-regulation through the society did so because they considered it as sacrificing the independence, if not the integrity, of the bar. Anti-society sentiment within the bar was so intense and widespread that it not only emasculated the limited regulatory power conferred by the 1885 amendments to the Barristers and Attorneys Act but delayed the achievement of professional self-regulation for fourteen years. Few lawyers outside the society, and perhaps some within, thought that handing carte blanche to council to discipline errant colleagues would

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mean better regulation of the legal profession; indeed, they feared it would lead to peer tyranny. Finally, in 1899, the society was given a legislative charter, and the legislature withdrew from regulation of the legal profession. Henceforth, the legislature would work its wishes indirectly, through amendments to the Barristers and Solicitors Act. Among the provisions of the new act was the following: The Nova Scotia Barristers’ Society (incorporated by chapter 85 of the Acts of the … year 1858) shall continue as at present constituted to be a body corporate, subject to the provisions of this act and to the by-laws, resolutions, rules and regulations of the society in force at the time this act takes effect [1 July 1899], except so far as the same are inconsistent with this act, and until altered by the council pursuant to this act.34 At one stroke, the society went from being a private body accountable to its membership to being a private body with responsibilities under a public statute and accountable to the legislature. All resident practising lawyers became members of the society upon call to the bar, while council became the governing body of the legal profession. Thus did the Nova Scotia Barristers’ Society struggle for the first seventy-five years of its existence to emancipate the bar from judicial control on one hand and legislative interference on the other. The long campaign for self-regulation had been mounted on these two fronts and in the early days cannot be distinguished from the activities of prominent lawyer-reformers such as James Boyle Uniacke and William Young, who were leaders in the struggle for democratic government. The governance of the legal profession became contested terrain between the judiciary, the legislature, and the bar on one side and the society on the other. The common-law regime of judicial control confirmed by statute gave way to a new dispensation that saw the judges and the legislature removed from any direct involvement in professional regulation. The bar was newly independent in the sense that its governing body was free of interference from court or legislature. In June 1993 the final report of the society’s ad hoc committee to review society programs emphasized the importance of understanding “the primacy of the regulatory role of the society which has a long history

10

Professional autonomy and the Public interest

and a mandate that has evolved over the years.”35 While its regulatory role is undoubtedly primary, the society has a longer history than its belatedly acquired regulatory role suggests. The issue had always been the independence of the bar, not its professionalism, and whether selfregulation promoted or undermined it. The coming-into-force of the Barristers and Solicitors Act on 1 July 1899 – Independence Day, as it were – brought with it greater authority and power but not necessarily greater accountability. Council was not answerable to the members of the society whom it governed. Though after 1899 no one questioned council’s right to govern the profession, some questioned the exercise of its fiduciary responsibilities. Seven lawyers in Halifax (exclusive of the officers) could hardly be said to represent the bar of Nova Scotia. Council was in a position to act independently of the bar over which it wielded absolute authority. Had the twin tyrants of court and legislature been replaced by another, more dangerous one? Could lawyers enforce their independence against the governing body of a society to which they were forced to belong? During the twentieth century the society consolidated its monopoly of the practice of law and its control over the legal profession. It established a discipline committee, reluctantly embraced academic legal education as the sole path to bar admission, accepted visible minority and women lawyers (in that order), enlarged the council to include lawyers practising in counties outside Halifax, provided that annual meetings take place outside Halifax, added a second vice-president, inaugurated legal aid, established a lawyers’ fund for client compensation, launched a bar admission course, established a law foundation, permitted law practices to incorporate, appointed women and non-lawyers to council, established an executive committee to manage the business of the society between council meetings, revolutionized the society’s administration, democratized the selection of officers and council, and introduced both professional liability insurance and continuing professional development. The 1990s, which fittingly culminated in the centenary of selfregulation, saw the society transformed. The decade began with an executive director taking office as chief executive officer and the adoption of a new code of ethics.36 The society also responded controversially to the report of the Royal Commission on the Donald Marshall, Jr. Prosecution, which contained severe criticism of some of the lawyers involved in the prosecution and defence and its aftermath.37 Race relations and gender equality committees were established and an equity officer appointed.

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Before the decade ended, the society had elected its first two woman presidents, welcomed its first democratically elected president, and begun to contemplate the possibility of replacing the Barristers and Solicitors Act. The cumulative impact of these progressive developments was that by the beginning of the third millennium, the Nova Scotia Barristers’ Society was a microcosm of that larger public whose interest it served and protected in the practice of law. The society crowned a decade of achievement with the replacement of its governing statute in 2004. The Legal Profession Act reflected a century of progress toward a new concept of self-regulation (“The purpose of the society is to uphold and protect the public interest in the practice of law.”38) Professional self-regulation was no longer an end in itself as it had been both long before and long after its achievement. When the Barristers and Solicitors Act was passed, the society had been existence for nearly seventy-five years. Legal profession acts had come and gone, while the society remained in quest of power to regulate the profession. Ironically, the BSA conferred omnibus regulatory powers on council without ever expressly stating that the council of the society was the governing body of the legal profession. The BSA had no purpose clause, and even the society itself seemed almost an afterthought as if it were just one subject among others; the fifth of nine parts of the BSA, it was sandwiched between “law stamps” and “taxation of costs.” The society was buried so deep within the BSA that it might as well have been an alien species introduced into an incompatible ecosystem. What had it been doing for its first seventy-five years except struggling to survive and flourish? Regulation of the legal profession was value-added for an organization that had hitherto been little more than a pressure group for metropolitan lawyers desperate and determined to acquire power over their peers by any means necessary. The unvarying and unexamined assumption was that self-regulation was a progressive measure tending to the honour and dignity, not to say the betterment, of the legal profession. The Barristers and Solicitors Act had a purpose but not a purpose clause. It was not until 1997 that council enacted an Objects Clause – not as an amendment to the act but as a regulation: It is the object and duty of the society to regulate the practice of law within Nova Scotia by (a) upholding and protecting the public through: (i) preserving and protecting the rights of all persons in the fair and impartial administration of justice, (ii) ensuring the

12

Professional autonomy and the Public interest

independence, integrity and honour of the legal profession and its members, and (iii) establishing, monitoring and enforcing standards for the education, professional responsibility and competence of its members; and (b) subject to paragraph (a) (i) upholding and protecting the interests of its members, and (ii) providing programs, activities and services which ensure the highest standards of professional responsibility and competence of its members.39 This declaration showed how far the society’s sense of its own purpose had evolved in the century since the achievement of self-regulation. In the decades following 1899, council’s de facto purpose was to regulate the legal profession, not the practice of law except to define it and ensure that lawyers had a monopoly of it. Until the 1950s the society was chiefly concerned with protection of the profession, not protection of the public. The spate of defalcations beginning in the 1950s, however, made clear that the public needed protecting from lawyers as least as much as lawyers deserved protection of their privileges – namely, freedom from “encroachments”: unfair competition from those engaging in the unauthorized practice of law. This study attempts to explain why professional self-regulation came later to Nova Scotia than to any other Canadian common-law jurisdiction – despite its having the oldest bar (1749) and second-oldest regulatory statute (1811). It takes into account that the development of the society and the development of professional regulation proceeded slowly in the same direction but along parallel rather than converging tracks. It also takes into account that court, cabinet, and legislature were not motivated by disinterested concern for the public interest but by fear of the loss of control over the legal profession. Once united under the hegemony of a private body like the society, lawyers could no longer be directly controlled by organs of the state. It considers some of the larger findings and issues addressed by David Sugarman’s study of the Law Society of England and Wales, especially “the nature of the special relationship between the legal profession and the state.”40 What role did the Nova Scotia government play in handing over control of the bar to the Nova Scotia Barristers’ Society – having resisted for most of the society’s existence just such a radical innovation? Like Sugarman’s essay, this study “will address what has been called ‘one of the most important questions about the evolution of

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the legal profession up to the twentieth century’; namely, how was it that the regulation of solicitors came to vest … autonomy in the profession.”41 With that end in view, the work begins not with the 1825 formation of the society but with the 1811 passage of the Lawyers’ Better Regulation Act and pays special attention to the society’s seventy-five-year struggle to take control the legal profession. The achievement of self-regulation in 1899 was an historic transfer of power from the public sphere to the private by way of delegation or devolution from the state. The society, conceived in the matrix of regulatory crisis, was prematurely born and developmentally delayed. The longer it was cut off from a substantive role in professional regulation, the more ardently it desired to emancipate the bar from the complementary or collaborating slaveries of judicial control and legislative interference. But the society was hardly a disinterested party. The motivating issue for the society was power over – but also power within – the profession. The struggle for regulatory supremacy was fought on two fronts: one internal – the society against the bar – the other external – the society against court and legislature. Depending on one’s perspective, it was either civil war or rebellion. In a common-law jurisdiction like Nova Scotia, where the practice of law is vested in a monopolistic legal profession and the regulation of the profession in an incorporated law society, demonstrating that lawyer self-regulation is in the public interest has proved to be an historic challenge. The lessons of history are there to be learned. What drove the long and ultimately successful quest for self-regulation was professional self-interest, not the public interest. The council of the Barristers’ Society, comprising as it did the crème de la crème of the metropolitan bar, wanted to control the bar. In 1899 their wish was fulfilled. Called to the bar the year after the society was founded, an early member of it and briefly its president, Sir William Young, championed continued judicial regulation of the legal profession. His long tenure as chief justice (1860–81) delayed the commencement of regulatory reform by more than twenty years. By 1881 the Supreme Court was no longer objecting to the proposed nouveau régime, while the Liberal government of Premier George Henry Murray (a country lawyer called to the bar in 1883) simply acquiesced to what they considered an enlightened, progressive liberal measure, which brought regulation of Nova Scotia’s legal profession into line with that of the rest of the country. Everything depended on the attitude and action of government. Self-regulation was imposed on the legal profession with the collusion of government – over

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Professional autonomy and the Public interest

the opposition of, and without any consultation with, the bar. Council’s wish was government’s command; government policy toward regulation of the legal profession was being made by the council of the society or at least by one member of it – the attorney general. By any standard, the achievement of self-regulation was the high-water mark of the society’s existence – the goal toward which all its efforts had been bent for nearly seventy-five years. As this book was nearing completion, the Nova Scotia Barristers’ Society was embarking on a new initiative to reconfigure the regulatory regime.42 It may be that professional self-regulation will become an historical artefact – an aim and achievement of the nineteenth-century society rather than a timeless good or end in itself or, for that matter, essential to either the independence of the bar or the public interest. Perhaps the society of the future will be a craft guild involved in licensing-certification-credentializing and setting professional standards but not in dispensing discipline. The question arises whether the legal profession would not be more efficiently governed and the public better protected by an arm’s-length government agency, board, or commission (or a “quango”), as is increasingly the case in the British common-law world – Australia, Ireland, and even England itself. Why should a profession delivering an essential public service, as lawyers do, not be regulated by government? Surely the public trust in a liberal democracy such as Canada requires nothing less. Self-regulation of the legal profession is a means to an end – “to uphold and protect the public interest in the practice of law” – not an end in itself. History teaches that self-regulation emerged from, and ultimately defined, professional self-interest, not the public interest, and that the Nova Scotia Barristers’ Society self-defined as professional regulator. That – and how and why the society succeeded in its quest for power over the profession – are central to the historical narrative of the bar of Nova Scotia. No institution that has had a continuous existence from colonial through modern times can escape profound change or the impact of it. The Nova Scotia Barristers’ Society has had an eventful history. Placed in broad historical and comparative perspective, its complex trajectory sheds light not only on the history of professional regulation in Canada but also on the development of the legal profession itself. The society was ahead of its time and was on that account the victim of arrested development, yet in the end it prevailed. If the past is prologue, do the lessons of history hold

iNtrODUCtiON

15

the key to future directions? Will the society’s long and difficult, but ultimately successful, struggle to be entrusted with regulating the legal profession be succeeded by an equally difficult struggle to retain and refine selfregulation? Answering these questions is the task of the society’s next historian, who will chart its odyssey as the Legal Profession Act and regulations rise to systemic challenges confronting the practice of law in the twenty-first century, where the shifting sands of public interest protection may demand a new model of professional governance. Will the society’s relationship with the legal profession be transformed? Will the historic peer-control model of professional regulation survive and flourish in this millennium? This book is structured both chronologically (Part I) and thematically (Part II). Chapters 1 and 2 narrate the history of professional regulation from the inauguration of statutory regulation in 1811 to the society’s becoming the professional regulator in 1899. Chapters 3 through 5 examine the society’s enlarging experience between passage of the Barristers and Solicitors Act in 1899 and that of its replacement, the Legal Profession Act in 2004. Chapter 3 covers the period from the achievement of selfregulation to the formal mandating of the closed shop in 1944 and the end of the Second World War. Chapter 4 covers the postwar period, perhaps the most eventful in the society’s history, when discipline shot to the top of the agenda and legal aid was introduced and that culminated in the devastating report of the Royal Commission on the Donald Marshall, Jr. Prosecution. Chapter 5 addresses the post-Marshall era (1989–2005), when the public-interest mandate came to the forefront and the society struggled to “contemporize.” The second part of the book comprises a series of case studies dealing with significant subjects that, if not already introduced in Part I, arise naturally from it: the society’s intense engagement with the Marshall Inquiry report, the replacement of the obsolete Barristers and Solicitors Act with a modern Legal Profession Act, professional regulation and society administration, the society’s close interest and involvement in legal education, and the origin and evolution of the post-call form of legal education: continuing professional development. Three special subjects that might well have merited their own chapters – discipline/professional responsibility, legal aid, and legal ethics – are integrated in the overview chapters covering the century following the achievement of self-regulation (1899–2005). Discipline is further explored in the chapter dealing with professional regulation.

Part One

1

From Statutory Regulation to Law Society

FOr thE FirSt 150 yEArS OF itS ExiStENCE (1749–1899), the Nova Scotia bar was regulated by the Supreme Court. The 1811 Act for the Better Regulation of Attorneys, Solicitors and Proctors Practising in the Courts of Law and Equity in This Province simply affirmed the common law as the Supreme Court administered it. So why “better”? Under English common law, in force everywhere in the British Empire colonies, the practice of law was regulated by the courts; lawyers were officers of the courts in which they practised and subject to their control. How could the practice of law be better regulated by enacting a lawyers’ better regulation bill? Was such a measure desirable or necessary? The system worked well and had done so for a long time. Upper Canada (Ontario) aside, legislative regulation of the legal profession was unheard of in Britain’s overseas empire – though in place in England since 1729 and in Ireland since 1733. Both of these jurisdictions, which until 1801 had separate parliaments, loomed large as sources of statute law in colonial Nova Scotia.1 The midwife of the Lawyers’ Better Regulation Act was a recent immigrant from the West Indies. In September 1807 John Harvey Tucker arrived in Nova Scotia from Jamaica by way of New York and settled in Windsor, Nova Scotia, with his wife and young family. A native Bermudan from a prominent family – his father, James, was speaker of the House of the Assembly – Tucker took his BA at Yale University in 1796. He then went to London, where he entered the Middle Temple and was called to the bar in 1802. He practised law briefly and married in 1803 before returning home. After practising in Bermuda and Jamaica for a few years, he moved to Nova Scotia. Though Tucker’s reasons for doing so are unclear, they probably

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had something to do with his being exceedingly well connected within the Loyalist diaspora; the Loyalist Ascendancy was still in full flower in the Maritimes. Tucker’s late father-in-law, William Browne, had been governor of Bermuda and antebellum judge of the Massachusetts Superior Court. Among Loyalists in Nova Scotia, Tucker was known not only to Lieutenant Governor Sir John Wentworth but also to lawyers Thomas Barclay, a former speaker of the House of Assembly then serving as British consul general at New York, and Solicitor General James Stewart. A younger lawyer-cousin, Richard Alexander Tucker (afterwards chief justice of Newfoundland), was in Halifax serving as deputy paymaster general to the army.2 On his arrival in Nova Scotia, Tucker, having practised as a barrister in jurisdictions with a bifurcated legal profession – barristers (counsel) and attorneys (solicitors) – immediately applied for standing ad eundem gradum. But no such distinction existed at the bar of Nova Scotia. Tucker nevertheless assumed that his being a member of the English bar would confer precedence ahead of all the local lawyers, who were attorneys; his application was denied by the Supreme Court. In order to practise, however, Tucker had no choice but to submit to the rules of court, and in October 1807 he was called to the bar like any other attorney from home or abroad. For three years Tucker lobbied for special standing without getting anywhere; finally, in September 1810, he went to London to plead his cause at the foot of the throne.3 In August 1811 Tucker petitioned the secretary of state for relief and a remedy against the Supreme Court.4 The Earl of Liverpool was concerned enough to send a copy of Tucker’s petition to the Nova Scotia government asking for an inquiry and redress if merited. The new lieutenant governor, Sir John Sherbrooke, in turn referred the matter to Chief Justice Blowers for a response. The chief justice reported that due process had been followed and that Tucker’s complaint lacked merit.5 Whitehall, however, was not satisfied, and the secretary of state was ordered to seek a legal opinion from the attorney general and the solicitor general. The law officers tendered their report in December 1811, dismissing Tucker’s complaint.6 Under the common law, colonial supreme courts were free to make and enforce whatever rules they wished governing the admission or standing of practitioners. The matter was closed. Tucker had no recourse but to resume practising law as an attorney in Nova Scotia. He did so, remaining there until 1813 when he returned permanently to Bermuda.7 A year or so after Tucker’s arrival in Nova Scotia, a bill clearly aimed at precluding a recurrence of the situation he had provoked was introduced in

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the legislature. In December 1808 Loyalist lawyer Simon Bradstreet Robie, member for Halifax County, introduced in the House of Assembly An Act for the Better Regulation of Attorneys, Solicitors and Proctors Practising in the Courts of Law and Equity in This Province.8 The bill sought to limit bar admission as far as possible to articled clerks within the jurisdiction and to prevent the fraudulent impersonation of attorneys by laymen. A barrister or attorney from outside the jurisdiction could only be admitted as an attorney and then only if a judge of the Supreme Court was fully satisfied of his bona fides. “Barristers” were to remain conspicuous by their absence from the bar. This, the first of Robie’s three legal profession bills, was deferred on a division, and he agreed to withdraw it in favour of a select committee of three lawyers chaired by himself and tasked with drafting a new bill.9 The second bill, which included a monopolistic provision barring justice administration officials from practising law, passed the House and was sent to the Council. An amended bill passed the Council but failed to be enacted because the House rejected the Council’s amendments. In November 1809 Robie tried for a third time, reintroducing in its original form the same bill that the Council had rejected. History simply repeated itself: the Council amended the Assembly’s bill, the House would not agree to the Council’s amendments, and the bill failed to pass. The legislature did not sit in 1810; when it reconvened in the winter of 1811, the Council took the initiative. Attorney General Uniacke drafted and introduced a legal profession act. His was the fourth bill on the subject in three years and the only one to become law. The Assembly amended and passed the Council’s bill, the Council accepted the Assembly’s amendments, and the bill received royal assent on 21 March 1811. What were the sources of Uniacke’s law? As an articled clerk in Dublin before and during the American War of Independence, Uniacke would have been very well acquainted with Ireland’s 1773 Act for the Better Regulation of the Admission and Practice of Attorneys.10 Uniacke’s law – perhaps inspired by or even based on its Irish equivalent – provided that law students (articled clerks) serve an apprenticeship of five years, an increase of one year from that “under the present existing rule of His Majesty’s Supreme Court for the admission of Attornies” but in conformance with the Anglo-Irish standard. It also provided that barristers and attorneys of Great Britain and Ireland and the British possessions overseas were eligible for admission to – but not precedence at – the bar of Nova Scotia.

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Professional autonomy and the Public interest

Section 16, in direct and unmistakable resonance of the Tucker affair, had as its preamble: “And whereas it is fit and proper to regulate the admission of persons to plead as Barristers or Advocates in the several Courts of Law in this Province …” The section provided that a member of the bar of England was entitled to simultaneous admission to the bar of Nova Scotia as a barrister and attorney. The degree of barrister had finally won official recognition. In the twinkling of an eye, all of Nova Scotia’s attorneys became “barristers,” their seniority at the bar unaffected. Precedence continued to run in the order of their admission. A barrister in Nova Scotia, such as Tucker, was not a barrister in England. Yet henceforth the degree of barrister, despite its very different meaning, existed as of right; a defect in the common law had been remedied by a statute. The lawyer was now a barrister; a newly admitted clerk, obliged to serve a one-year pupillage (shades of the bar admission course 150 years later?), was an attorney. Thanks no doubt to Tucker’s pretensions, some Halifax lawyers had already begun to call themselves “barristers,” but passage of the Lawyers’ Better Regulation Act seems to have had a chilling effect on bar admission: eleven attorneys were called in 1810, four in 1811, and none in 1812.11 Statutory regulation of the legal profession was an extreme novelty in the Nova Scotia of the 1810s. Some reaction against it, or at least hesitancy in the face of it, was perhaps to be expected. A lawyer was still a lawyer, despite his dignified newfangled name. He was still doing all the work of yesterday’s attorney in a legal profession that had always been and always would be unified. No further activity occurred until 1818, when the act was renewed for another seven years and amended to reduce the period of articled clerkship for holders of the BA from five years to four.12 In 1824 it was further amended to clarify that prothonotaries (chief clerks) of the Supreme Court, if lawyers themselves, could accept one articled clerk.13 That year also saw the first significant outbreak of anti-lawyer sentiment in the legislature. A country member and lay magistrate, Lott Church of Lunenburg, introduced in the House of Assembly a bill “to regulate the conduct of attorneys and solicitors, and for the correction of certain abuses.”14 Church alleged that those lawyers whom he was prepared to name were misappropriating client funds, colluding to encourage unnecessary litigation, and unfairly billing clients. House lawyers were shocked and appalled (“a prejudice has been lately created against the profession”15); one of them moved, and the House resolved, that further consideration of Church’s bill be deferred

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until the next session. Church reintroduced the same bill in 1825, and it also failed to pass. In 1825 the Lawyers’ Better Regulation Act was again up for renewal. A bill to renew it for one year – why not seven? – was introduced in the Assembly and easily passed, only to be thrown out by the Council.16 The writing on the wall galvanized local lawyers into action. Just before the close of the winter term in the Supreme Court, “the members of the bar held a meeting for the purpose of forming themselves into a society. A committee of which his Honour Judge Halliburton17 is a member has been appointed to draw up the constitution and rules. The chief objects of the institution … are to advance the respectability of the profession, and to gather funds for an increase to the law library.”18 No account of the organizing meeting exists, nor do we know who the other members of the committee were. Their work was completed by 17 March 1825 when the Society of Nova Scotia Barristers was formally instituted. A constitution comprising thirty-four articles was drafted and published19 and a standing committee of management (“committee of three benchers”) appointed. The governance model was clearly that of the Inns of Court, the term “bencher” describing any senior member of an Inn.20 All barristers were deemed to be members of the society, the “senior class” comprising those who joined at founding or within a year. If one views the nonrenewal of the Lawyers’ Better Regulation Act as further evidence of anti-lawyer sentiment in the legislature, then it seems probable that the main purpose behind the society would have been to see the act restored. Alternatively, the question arises as to whether the judges, three out of four of whom were members of the Council, desired to scuttle the act in favour of a law society. The Council’s throwing out the Assembly bill to renew the act hints at just such a scenario. The act was demonstrably ineffective in stemming the cresting tide of anti-lawyer sentiment, so perhaps a new governance model was needed to mitigate public mistrust of the legal profession. If so, then the judges led from behind the initiative to found a law society. On this argument, lawyers’ better regulation meant a law society rather than a statute, which potentially undermined judicial regulation of the profession and politicized legitimate lawyer interest in its advancement. If the judges preferred a law society, then it is difficult to avoid the conclusion that they were unhappy with the status quo. Attorney General Uniacke, for his part, might have been unable to resist the judicial assault on his law, distracted as he was

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by his long-running squabble with the octogenarian Blowers (president of the Council) over the succession to the chief justiceship – the big prize that he coveted to the end of his life in 1830.21 Uniacke did not live to see his law restored. Whatever the back story, the Society of Nova Scotia Barristers was successfully established in March 1825. If the Lawyers’ Better Regulation Act had been renewed, there would have been no need and no impetus for the society. The relationship between the disappearance of the one and the appearance of the other was cause and effect. In 1826 a new barristers’ roll was opened, and the judges enacted a new rule of court that captured the essential provisions of the defunct act.22 It was the dawning of a new age in the history of the Nova Scotia bar. Among the charter members of the society was Simon Bradstreet Robie, by then solicitor general. Ironically, the demise of the act coincided with the end of Robie’s career as a lawyer. At the time he was lobbying hard for the creation of a new judgeship – master of the rolls in the Court of Chancery – and offering his services; the appointment was duly made in December 1825. Robie, appointed to the Council in April 1824, presumably would have played some role – for or against – in the non-renewal of the Lawyers’ Better Regulation Act. Few contemporaries had much if anything to say about the Society of Nova Scotia Barristers. Thomas Chandler Haliburton, a charter member of the society, wrote thus in the second volume of his history of Nova Scotia, published just four years after the society’s founding: “The conduct and discipline of the bar is regulated by an institution, established in 1825, under the patronage of his Excellency Sir James Kempt, and denominated the Bar[risters’] Society. It consists of the judges of the Supreme Court and [Inferior Courts of ] Common Pleas, the crown officers, and other members of the profession.”23 A few years later, the jurist Beamish Murdoch, also a charter member of the society, observed, “Besides these rules24 the members of the bar form a society, governed by very strict regulations, for the purpose of keeping up their honour and character as a body.”25 The paucity of such accounts aside, we should know much more about its early history if any of the “books of the society” were extant; the published Rules are our chief source of information.26 For example, rules 1 through 9 define membership and governance. Management was vested in an executive “committee of three benchers,” elected annually. Rule 10 tells us that the chair of this committee acted as the society’s standing counsel, representing the society in court and holding a watching

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brief on all admissions as attorney and calls to the bar. Rules 11 and 12 set forth the internal complaint procedure. Rules 13 through 24 pertain to the law library, an exceedingly valuable resource for all practitioners. Rules 25 through 28 pertain to law students. The committee was to vet the admission of all articled clerks while the secretary carefully maintained law-student records and a roll of articled clerks; law students were to pay their principal a fee of 100 guineas – or nothing at all if they were cash-poor and their principal was generous; and they were encouraged to draft law reports for competitive prize money. Rule 29 provided for the development of a schedule of fees payable to those legal professionals not subject to the provincial costs and fees act and for making regulations “relative to the fees and practice of barristers, as may tend to increase the character and reputation of the profession.” (There would be no competitive pricecutting except to the prejudice of one’s membership in the society.) Rule 30 prescribed the adoption of suitable and uniform court dress, while Rule 31 enjoined the attendance of members at the biannual dinners in Halifax to commemorate the institution of the society. Rules 32 and 33 prescribed the new member and membership renewal fees. Rule 34 prescribed the procedure and grounds for expulsion from the society. The sixty-two charter members of the society appear on the roll in order of precedence and seniority from Chief Justice Blowers down to John James Sawyer (called 28 January 1825). In 1825 the bar of Nova Scotia comprised fifty-nine members, twenty-four of whom were practising in Halifax.27 Yet the charter membership of the society was by no means Halifax-based; all the country towns had resident barristers, and some country barristers joined “by letter.” A comparison between the society’s roll and the corresponding law list for the year 1825 reveals that at the outset the society comprised most of the practising bar and within a year all of it. The society’s executive committee, however, consisted of Halifax lawyers. All three members of it were Loyalist descendants and the bar’s younger generation: James W. Johnston (born 1792) and William Blowers Bliss (born 1795) practised law together, while Nathaniel Whitworth White (born 1793), a BA of Harvard, had forsaken the deserted village of Shelburne to practise in the metropolis. The officers were Henry Hezekiah Cogswell (treasurer) and James Walton Nutting (secretary and librarian). The “officialist” character of the society shows in that Cogswell, a former deputy provincial secretary, current registrar of the Court of Chancery and afterwards member of the province’s governing Council,

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Professional autonomy and the Public interest

was about to become first president of Nova Scotia’s first bank, the Halifax Banking Company, while Nutting was deputy and acting prothonotary and clerk of the Crown in the Supreme Court. The Society of Nova Scotia Barristers was an elite establishment undertaking – a revolution from above, not below.28 The first-named member of the committee of three benchers was deemed to be ex officio chair of the committee and president of the society. In 1825 and 1826 that post was filled by James William Johnston, called to the bar in 1813 and Robie’s sometime law partner. Johnston had grown up under the new regime inaugurated by the Lawyers’ Better Regulation Act. Though a lawyer of the front rank, Johnston is best-known as a politician, becoming in 1834 solicitor-general, in 1838 a member of the new separate executive and legislative councils, and afterwards attorney general, leader of the government (premier), judge in equity, and, briefly, lieutenant governor. Bizarrely, Johnston’s role as founding head of the Nova Scotia Barristers’ Society is never mentioned in biographies of him.29 What were the motives of younger patrician lawyers like Johnston who embraced the law society project? It seems probable that they desired to preserve intact the legacy of the defunct Lawyers’ Better Regulation Act, which interposed legislative authority between the judiciary and the bar. The society would be the patron and protector of the bar now that the statute was a dead letter. Progress toward greater professionalization, including self-government, would continue by other means. The society offered a possible solution to the governance problem at a time when there was no other alternative to judicial regulation. It served the society’s raison d’être and mollified the judiciary that Chief Justice Blowers be appointed co-patron of the society and the other four judges of the Supreme Court honorary members with all the privileges of the senior class. The model was one of assertiveness seasoned with deference. The society would, as far as possible, be to the bar what the Lawyers’ Better Regulation Act had been and, in light of that, play some role, however limited, in governing the legal profession. Though nothing can be known of the society’s activities during its first decade, it seems probable that at the beginning of its second decade the society indirectly contributed to the passage of Nova Scotia’s second legal profession act. In February 1836 Alexander Stewart, law partner of Johnston, then solicitor general, introduced in the House of Assembly a bill effectively replacing the defunct Lawyers’ Better Regulation Act.30

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The Act for the Better Regulation of Barristers, Advocates, Attorneys, Solicitors and Proctors Practising in the Courts of This Province received royal assent in March 1836.31 It confirmed the articled clerk’s tenure at five years, subject to the one-year reduction for BA graduates. New features included registration of articles of clerkship – a clear reflection of rules 25 and 26 of the society; a formal viva voce examination for intending barristers conducted by a judge of the Supreme Court and two “senior barristers” – in other words, benchers (first class) of the society; signing the barristers’ roll once the attorney’s call had been successfully moved for in open court; and limiting a barrister to two articled clerks at a time. Section 18 (“privileges of Barristers”) provided That the barristers of the Supreme Court … are hereby declared to be counsel, advocates, attorneys, proctors and solicitors of the Court of Chancery, Court of Vice-Admiralty, Court of Error [appeal], Court of Marriage and Divorce, and all other courts within this province; and as such, and without any other or particular admission in the said courts … entitled to be of counsel with either party … Provided always, that nothing herein contained shall at all interfere with, or be construed to diminish, or in any way affect, the wholesome control which the king’s courts are authorized to exert over the several practitioners therein, or to prevent the said courts from suspending, silencing, dismissing, or striking off the roll, any barrister or barristers, advocate or advocates, attorney or attorneys, solicitor or solicitors, proctor or proctors, for malpractice or misconduct. This section, which would stand for a hundred years, eloquently reaffirmed judicial regulation of professional discipline. Passage of a new Lawyers’ Better Regulation Act emboldened the society to speak up for its members when abused by over-zealous or tyrannical judges. The Section 18 proviso affecting the privileges of barristers would soon be tested. In 1837 Charles Rufus Fairbanks, master of the rolls/judge in vice-admiralty (and a former chair of the society), suspended for contempt William Sutherland, an advocate and proctor of the court, then fined and later imprisoned him when he refused to pay the fine.32 The society met and appointed a committee to investigate the facts leading to Sutherland’s suspension; the committee produced a substantial report.33

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Professional autonomy and the Public interest

The resumption of statutory regulation in 1836 seems to have triggered a desire among its members that the society should be incorporated – as in England and Upper Canada. Incorporation seemed the logical next step if the society were to play a substantive role in professional regulation. In 1841 James W. Johnston became attorney general and was well placed to help or hinder realization of the society’s aspirations. But Johnston was too distracted by high politics to be much interested in the affairs of the bar of which he was the official head. As Tory (Conservative) leader in the Executive Council, he had to work hard to keep the coalition government from collapsing under its own weight.34 The coalition, however, disintegrated in the summer of 1843, and the subsequent general election brought Johnston into the Assembly and the Tories into office with Johnston as leader of the government. The reformer members of the Executive Council, including James Boyle Uniacke, all resigned. In January 1844 a special meeting of the society at which Samuel G.W. Archibald, master of the rolls, presided, authorized the executive committee to petition the House of Assembly for an act of incorporation.35 Uniacke, MLA for Cape Breton County, tabled the society’s petition and was given leave to bring in a bill to incorporate the Society of Nova Scotia Barristers. He did so, but after an acrimonious second-reading debate on 29 March, the bill was deferred on a division to the next (July) session, never to be heard of again. Bill 81 does not survive, but its content can to some extent be inferred from the substance of debates as reported in the Halifax newspapers (there was no Hansard). Its provisions obviously raised hackles; persistent anti-lawyer sentiment promoted suspicion that there must have been more to it than met the eye. Some lawyers opposed it, while a country member, Gloud Wilson McLellan, “objected to the bill as useless and that it was intended to place power in the hands of a few persons.”36 No ordinary society would have been denied statutory incorporation, but the Society of Nova Scotia Barristers – a professional body comprising and representing the province’s lawyers – was uniquely unordinary. If opposition there was, it was probably not to incorporation in principle but to its possible consequences, especially a transfer of power from the courts to the society, the assumption being that self-regulation would only tend to increase the power and influence of lawyers. Lay members of the Assembly remained fearful of any measure to empower lawyers. An incorporated law society could mobilize resources and advance the political interests of its sponsors.

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It might also lead to factionalism within the bar, a power struggle among lawyers for ascendancy within the profession. The failure of the incorporation bill did not reflect on the Lawyers’ Better Regulation Act, which in March 1846 was renewed for another ten years and amended to place barristers of Cape Breton (a separate colony from 1784 to 1820) on the same footing as barristers elsewhere in Nova Scotia.37 The society’s incorporation bill languished until 1858 when the Conservatives were back in office and Johnston was again attorney general and premier. Lessons learned from the failure of Uniacke’s bill fourteen years earlier were applied. Nothing more than the bare minimum was sought, nor was there a petition from the society as there had been in 1844. Though introduced by the solicitor general, the bill was deemed private; it sailed effortlessly through Assembly and Council and became law in March 1858.38 The society was treated no differently from any other private body or a commercial company seeking a legislative charter. The incorporators were the executive committee and the officers, and the corporation was the membership; the corporate name was changed from Society of Nova Scotia Barristers to Nova Scotia Barristers’ Society. Incorporation was undoubtedly a significant step forward for the society, which is probably why the same measure failed in 1844. It was also the prelude to reorganization. In February 1860 Halifax newspapers carried the following announcement: A SpeciAl GenerAl MeetinG of the n. S. BArriSterS Society ALL MEMBErS of the above society are particularly requested to attend a Meeting to be held on MONDAy next, at the law library, at 11 o’clock a.m. when the election of a president, vice-president, treasurer, secretary and librarian and three members of the council of the society, will take place. A constitution and rules will then be adopted, and among other subjects the necessity for the preliminary examination of persons desirous of becoming law students, will then be considered. r. g. hALiBUrtON, secretary39

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Professional autonomy and the Public interest

The independent Liberal newspaper Acadian Recorder commented editorially, We beg leave to call the attention of members of the legal profession to the notice in another column of a special meeting of the “Barristers Society” on Monday next [6 February]. This society, we understand, is in progress of organization out of the old “Bar Society.” Rules will be adopted and officers chosen, at the meeting referred to. It is certainly high time for the barristers of Nova Scotia to take their own case in hand. Rules are required and pretty stringent rules too if that profession is to be expected to maintain the high position in this community which is its proper place.40 The initiative could hardly have come at a worse time. Nova Scotia was embroiled in yet another constitutional crisis, the chief protagonists being two prominent lawyers and even more prominent politicians: James W. Johnston and William Young, both former premiers. The Conservatives had lost the provincial election of May 1859, but Johnston refused to resign until defeated in the House and the lieutenant governor refused to grant him a dissolution. That was on 7 February. On 10 February Young, the Liberal leader and former premier and attorney general, was invited to form a government. To make matters worse, the then-president of the society, John W. Ritchie, was a close associate and political ally of Johnston’s. Inevitably, the society was caught up in the political imbroglio. Reorganization brought in an executive comprising a president, vice-president, and council along the lines of the Law Society of England. Little else changed; the act of incorporation was not amended to provide for “rules” (bylaws). The position of the judges was strengthened; they were not just honorary members but full members of the society as well as ex officio members of council.41 Premier Young displaced Ritchie, remaining president until becoming chief justice in August 1860, whereupon Ritchie resumed the presidency. From abundance of caution, the new Liberal cabinet, now headed by Joseph Howe, arrogated to itself the right to approve the society’s bylaws, which were largely based on those of 1825. The bylaws were twenty-two in number, covering membership, officers and council, procedure on complaints by or against a member, the president’s ex officio involvement in calls to the bar and role as the society’s watching counsel, and administration of the library. The fee for law-studentship was reduced from 100 guineas to £100 currency, and articled clerks were

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prohibited from receiving compensation. A significant difference between 1825 and 1860 was that the new council could investigate a complaint by or against a member without either party having recourse to the general membership by way of appeal from council’s decision. The reorganized society was at first much smaller than it had been in 1825: thirty-four members or a mere 21 per cent of the bar. It included a few of the members of the original society, such as William Young himself, and two of the three members of the original executive committee: James W. Johnston and Judge Bliss. Throughout his twenty-one years as chief justice, Young made the most of his position as ex officio member of council, actively involving himself in society affairs.42 The chief justice’s tendency to interfere must have proved difficult for any president, including and perhaps especially Ritchie, whom Young had pushed aside, to assert their authority. If the 1860 reorganization was more form than substance, then structural issues were to blame. There was nothing wrong with the 1825 rules, provided the infrastructure was robust enough to enable them to be implemented effectively. That needed changing but was not changed. The society still lacked a stake in professional regulation. In that respect, the events of the years 1858 and 1860 represented an opportunity lost. If cultural and environmental factors were helping to propel the society forward, then incorporation followed by reorganization should have positioned it well to assert its claim to a role in professional regulation. But the recently renamed Barristers and Attorneys Act as yet took no notice of the society. The issue of who should govern the bar – lawyers themselves, the judges, or the legislature – involved the personalities and politics of the profession and was rendered only more complicated by so many lawyers also being legislators. The issue, in a word, was control. The society, the Supreme Court, the government, and lawyers both inside and outside the legislature held different and incompatible views on the role of the society. This stand-off would take nearly forty years to resolve – a negotiated transfer of power over the profession from court and legislature to the society. After the false start of 1844, the very limited progress toward professional self-regulation that the society achieved in 1858–60 would nevertheless be decisive for future developments.

2

The Society and the Bar: Road to Annexation

thE rECONStitUtiON OF thE NOvA SCOtiA BArriStErS’ SOCiEty in its thirty-fifth year of existence did not lead to a role in professional regulation. Indeed, the society’s total impotence in that regard was demonstrated in 1865 when Chief Justice Young, as he had become in August 1860, suspended barrister Thomas James Wallace (a member of the society) for contempt.1 There was not so much as a whimper of protest from the society, of which the chief justice, past president, was “patron.” Young exploited his former position to the full. In February 1871 lawyer Henry William Smith, a country MLA, introduced a bill to amend the Barristers and Attorneys Act.2 The bill proved controversial among metropolitan lawyers in that it reduced the term of clerkship by one year, a move that the society opposed. The attorney general also opposed it, taking the view that any change to the term of clerkship should be proposed by the society and approved by the judges. The upshot was that ex-Premier Hiram Blanchard, president of the society, moved an amendment retaining the status quo. Though the bill as amended went on to pass both houses, for reasons which remain unclear it was never enacted. While the bill to amend the Barristers and Attorneys Act was making its way through the Assembly, Smith introduced an omnibus bill “respecting the Bar of Nova Scotia.”3 The potential significance of this unpassed bill, the text of which does not survive, can be caught from the order that it be printed and circulated.4 In March 1872 President Blanchard also introduced a bill respecting the bar of Nova Scotia. In doing so he “briefly explained the object of the bill. It was intended to connect the barristers in the province with the Bar

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Society and to give that society greater control over its members than it now possessed. It was not designed to exercise the power of the profession over the public or in any manner to add to their emoluments.”5 Blanchard was quickly followed by John Flinn, a Halifax prison warden, who introduced a bill respecting the Nova Scotia Barristers’ Society.6 Neither bill advanced beyond second reading, but both were ordered printed. About the same time, Smith, who became attorney general in April 1871, successfully reintroduced his unenacted 1871 bill to amend the Barristers and Attorneys Act. It provided for annual law student examinations and gave the council of the society responsibility for administering them.7 The quid pro quo was that articled clerkship was reduced from five years to four. The society, however, did not wish to have the fifth year of clerkship replaced by annual examinations that they would have to administer. The annual meeting in February 1873 saw “much discussion on the [1872] Act respecting ‘Barristers and Attorneys,’ and a resolution was passed by a large majority to the effect that the legislature be urged at its approaching session to repeal the act of last year.”8 The act was not repealed, however, so the society appears to have retaliated by boycotting it. In 1875 Attorney General Smith was kicked upstairs to the bench, and the amendments requiring annual examinations were quickly repealed.9 Law student examinations, whether preliminary, intermediate, or final, prompted the question by whom and how the training on which articled clerks were to be examined would be delivered. It was beyond both the resources and the inclination of most lawyers to whom law students were articled to offer more than rudimentary on-the-job practical training. What apprentices learned depended a good deal on how assiduous or how busy their principal was. A law student was an apprentice who learned by imitative doing. A potential alternative to the ancien régime in legal education came in the shape of the Halifax Law School, incorporated in May 1874 “for the purposes of establishing and maintaining a School of Law in the City of Halifax, of instructing students in legal knowledge and of advancing legal education.”10 Though among its incorporators were influential members of council, the law university seems not to have been officially sanctioned by the society. Blanchard, president of the society, defended the initiative in the legislature while correctly predicting that such an institution would be stillborn.11 University legal education was an idea whose time had not yet come. Law students desiring it, and possessed of the means to afford it, went to Harvard Law School.

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Professional autonomy and the Public interest

To complicate matters, the law university project was ascribed to society influence. This guilt-by-association provoked a hostile reaction among those lawyers and legislators who would not grant the society the benefit of the doubt. Many – perhaps most – lawyers outside Halifax viewed the society as a quintessential “Halifax club” devoted to furthering the interests of the metropolitan bar. For example, the Speaker of the House, Jared Ingersoll Chipman Troop, a small-town lawyer from the Annapolis Valley, stated that if the Halifax School of Law were to have any connection with the society, he would oppose granting it a legislative charter. “The simple fact was that there was a law imperative and he wanted to know whether the Halifax bar society or the legislature was supreme.”12 The Halifax School of Law failed to materialize; there was neither sufficient commitment nor sufficient funds to launch it. Seven years later, however, university legal education became a reality. In 1881 Attorney General John S.D. Thompson, president of the society, put through the legislature an act to establish at Dalhousie University a law faculty on the Harvard model.13 The initiative went unopposed, and Dalhousie Law School opened its doors in 1883. Having learned from bitter experience, the society took pains to avoid even the suspicion of any involvement. Inevitably, the society and all its works were identified with the metropolitan bar – the elite subset of the profession that mattered. Among the most significant environmental factors, both culturally and in other respects, was the town/country great divide. It was one thing for call to the bar to take place at the Supreme Court in Halifax, quite another for the bar to be ruled by a Halifax clique that spoke for the vested interests. A “SwOt” analysis of the society would have shown it lacking in strength, institutionalizing its own weakness, denying or failing to take advantage of opportunities, and posing a threat to the independence of the bar. The vast majority of lawyers outside the metropolis were almost certainly not society members, nor would they have desired to join. A society with provincial reach though based in Halifax implied Halifax rule of the bar. In January 1874 younger lawyers, impatient for change and many of whom would become prominent in the Barristers’ Society, formed the Halifax Law Society – whose objects were “the discussion of legal, literary and political subjects, professional improvement and the cultivation of a greater esprit de corps among its members.”14 In December of that year President Blanchard died prematurely, and the Barristers’ Society lost its greatest champion. His successor was William Alexander Henry, chief promoter of the Halifax Law School, who remained in office only until

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October 1875 when he was appointed puisne judge of the new Supreme Court of Canada. The next couple of years saw little activity. In 1877 the annual meeting struck a committee to prepare a bill “to give additional powers to the society.”15 No such bill was introduced, let alone passed. The legislature, and lawyers generally, were unsympathetic to the society’s aspirations for a role in professional regulation. By 1878 the society, having failed at everything else, was turning its attention to procedural law reform, an even more contentious area. The annual meeting that year struck a committee to draft a bill to eliminate civil juries in Halifax. The bill, as approved and sent to the legislature, caused a firestorm, the press alleging that “these legal revolutionists” were attempting to deprive English subjects of the fundamental right of trial by jury.16 The society’s agent who introduced the bill was Halifax lawyer John S.D. Thompson, member of council and Conservative MLA for Antigonish. Bill No. 53 “to amend chapter 94 Revised Statutes [1873], of Pleadings and Practice in the Supreme Court, so far as relates to the county of Halifax” passed the House and the Legislative Council and was enacted – this despite the fact that country members generally wondered why the legislature should pay any attention to administration of justice bills originating with the society. Thompson, though he had misgivings about the bill, felt bound to support it “because it embodied the opinion of the majority of the profession as represented by the Bar Society.”17 The wish was father to the thought. The majority of the profession was not represented by the society, which at the time represented only the metropolitan bar. The society’s prospects for involvement in professional regulation seemed to improve after October 1878 when the Conservatives returned to power for the first time since 1867. The new attorney general, Thompson, had long been active in the society, of which he became secretary as early as 1869, member of council in 1875, vice-president in 1879, and president in 1880; he remained so until his appointment to the bench in 1882. The society had an influential friend in a high place. It was the first time since the 1830s that the attorney general had been president of the society. In March 1879 Thompson, at the behest of the society, introduced a bill “to amend the laws relating to barristers and attorneys.”18 The bill easily passed the House but failed to pass the Legislative Council, thanks to a highly partisan Liberal majority ill-disposed toward metropolitan lawyers seeking to advance the interests of the society. Attorney General Thompson reintroduced the same bill in 1880, and this time it passed.19 Council’s authority over law student examinations was confirmed, but its rule-making was made subject to

36

Professional autonomy and the Public interest

the approval of the judges. The president or vice-president of the society acquired the right to move for admission to the bar in open court – a tradition that persists to this day – and the secretary the right to file with the Supreme Court documents recording law student qualifications for bar admission and to issue certificates.20 The defeat of the government in the provincial election of June 1882 and his own appointment to the bench in July removed Thompson from any further direct involvement. The society, in any case, sensing that its moment had come, was aiming higher than ever before. Both bench and bar were in a period of transition. Sir William Young had retired as chief justice in 1881 and had been succeeded by James McDonald, federal minister of justice and a former president of the society. Judge Thompson, another former president of the society, became federal minister of justice in 1885 and swiftly appointed Joseph Norman Ritchie, president of the society, to succeed him on the Supreme Court. The judiciary’s reactionary old guard had been effectively displaced through generational change. The six judges appointed to the Supreme Court between 1881 and 188921 were all members of the society sympathetic to its ambition to be the professional regulator. By 1885 council was prepared to unilaterally assert discipline powers over the bar. It was a daring move, given that council had no statutory authority except relating to examinations; it had to rely on the society’s by-laws, which provided that a member could file a complaint against a fellow member and council adjudicate the complaint and take appropriate action. Lawyers who were not members of the society probably thought that the interests of the bar were safer in the hands of court and legislature than council, which was answerable only to the members of the society. A deus ex machina had changed everything. In February 1885 the Halifax law firm King & Barss22 was accused of employing an agent or broker to generate legal business and conduct routine solicitorial work on their behalf.23 The partners denied the charge, and a formal investigation by council ensued. Meagher et al. v. King & Barss culminated in April 1885 in a finding that King & Barss was guilty of professional misconduct, and it was accordingly censured. The respondents rejected both the findings and the decision, asserting in their notice and grounds of appeal that “the council of the Nova Scotia Barristers’ Society had no authority to make the said findings and decision, and the same are ultra vires and beyond the jurisdiction of the said council.” Three years later, in the midst of renewed proceedings of the same tenor, respondent King recalled,

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The present law [1885, c. 20] had not then passed the legislature, and the council of that day could not investigate, but we said: “The members of the bar may have some cause for complaint. We will voluntarily submit to an examination, and take the opinion of the council and of the bar society.” The council condemned us, but at the meeting of the bar society there was diversity of opinion. The result was an amicable adjustment of the matter. The council did not press a vote, and on behalf of King & Barss I stated that members of the bar should have no longer “just cause for complaint.”24 While the complaint against King & Barss was going forward, the society’s annual meeting in March 1885 received from the special committee appointed to draft it a bill “relating to discipline of members of the profession.” Later, the society’s adjourned annual meeting agreed that their bill to amend the Barristers and Attorneys Act be sent to the legislature. A deputation comprising the president and vice-president, together with three of the five members of council, called on James Wilberforce Longley, minister without portfolio and a member of the society, to introduce it in the House of Assembly. The upshot was that on 20 March 1885 Longley rose in the Assembly to introduce the society’s bill to amend the act, which would retrospectively legitimate the proceedings against King & Barss. It ignited a firestorm. Shattering the public perception that any measure originating with the society could have any purpose other than to empower the metropolitan bar at the expense of the public interest proved extremely difficult. To make matters worse, rule by the society was also deemed to be oppressive to lawyers generally. Moving second reading of the bill five days later, Longley stated, that some misapprehension existed in reference to this bill. There was an idea prevalent that it was intended to take away certain privileges from laymen. That was not correct. The purpose of the bill was simply to enable the bar society to regulate conduct of the members of the bar. It was provided that the council of the bar society should be empowered to make rules which, being approved by them, and also approved by the judges of the supreme court, would have the force of law on being approved by the governor-in-council and published in the Royal Gazette.25

38

Professional autonomy and the Public interest

Longley’s view that regulations enacted by the society should be submitted to and approved by cabinet was apparently not shared by council, who preferred review and approval by the judges. Not even Longley, however, whose view ultimately prevailed, was prepared to go quite as far as the former Liberal attorney general, Otto Weeks, who would have made the attorney general president of the society (“an institution which owed its origin and existence to this legislature”). Again, it was Longley’s view that prevailed; the attorney general became a member ex officio of council, replacing the judges in that capacity. The society would retain the right to elect their own president. The bill passed the Assembly and Legislative Council, where it was amended, and received royal assent in April.26 Longley’s reward for successfully carrying through the legislature the most significant amendments to the legal profession act since 1836 was election to the council in February 1886 and promotion to the attorney generalship the following May. Despite its controversial character, the bill’s passage through the legislature had been easy in comparison to its several predecessors. Though it was highly unusual that a government bill affecting the legal profession should be introduced by a minister other than the attorney general, this bill evidently enjoyed the approval of government. Because it conferred on council limited regulatory powers over the entire bar, not merely those who were members of the society, the amending act made history. The fourth and by far the most significant of its ten clauses authorized council “to make rules and regulations for preserving and enforcing the honour and discipline of the bar.” The eighth clause provided that membership in the society should be automatically open to all barristers. Previously, it had been by application or nomination and election only, which gave the society the “look and feel” of a fraternity rather than a law society. (Membership remained purely voluntary; lawyers were permitted, rather than required, to join the society.) The ninth clause made the attorney general an ex officio member of council, which she or he has remained ever since. Most of the act was densely procedural rather than substantive, but the substantive element was of the greatest possible importance for future developments. The act provoked an immediate backlash among country lawyers, who formed a “Provincial Barristers Association” as an alternative and counterweight to the Nova Scotia Barristers’ Society.27 Anti-lawyer sentiment among people generally paled by comparison with anti-society sentiment among country lawyers, so it is hardly surprising that the elite of

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the country bar organized to oppose what they considered to be intrusions by the society on the liberty and independence of the bar. With a full slate of officers and a council to mimic the constitution of the society, the new rival organization survived into the 1890s. Among its leadership were the crème de la crème of the country bar, including a future justice of the Supreme Court and the former Liberal premier and future attorney general William Thomas Pipes. Its first and apparently only president was Nathaniel Whitworth White II, a former provincial Conservative cabinet minister. We do not know what impact, if any, the contrarian advocacy of the Provincial Barristers Association may have had, other than to postpone for fourteen years the final triumph of the Nova Scotia Barristers’ Society. The 1885 amendments had little impact and were for all practical purposes a dead letter; matters quickly reverted to the status quo ante. The legislature continued to interfere in professional regulation, thus frustrating the society’s efforts to become the professional regulator. Council’s regulatory power was confined to “honour and discipline” and was viewed by the legislature as special or exceptional rather than general and inherent. The act betrayed its origins, which was a crisis-management exercise in ad hocery. In their operation, if not their essence and appearance, the amendments were largely symbolic. As far as the legislature was concerned, it was business as usual when it came to professional regulation. In August 1887, obviously anticipating further proceedings against King & Barss, council enacted a suite of five discipline-related regulations.28 This was the only occasion on which the power conferred by the 1885 amendments is known to have been exercised. A few months later, in January 1888, the 1885 proceedings against King & Barss were reinstituted, an implicit admission that the earlier ones had indeed been ultra vires, as the respondents contended. This time the complainant was a member of council, a circumstance to which the respondents objected – again – alleging council’s lack of jurisdiction. The latter point seemed to have been fully settled by section 6 of the 1885 amendments (procedure on professional misconduct complaints) but to no avail. Halifax’s Critic, no friend of lawyers, criticized the society for hypocrisy: The recent law, giving the council of the Bar Society power to stamp out the evils of unprofessional conduct will prove of little utility when a majority of that society are willing to wink at the most

40

Professional autonomy and the Public interest

flagrant cases. Hardly a year has elapsed since the society refused to expel a member, against whom the charges were most specific. King & Barss is the first legal firm to be investigated under the new law. On a previous occasion [1885] the firm was before the society, and admitted most unprofessional relations with a layman. On a promise to discontinue these relations they were let off, and the evidence now seems to show that they have since continued the same relations, only in a more guarded manner.29 No record exists of a decision In re King & Barss (2d). It is clear from Halifax press coverage of the case, which carried on through February and March 1888, that proceedings were a good deal more formal than in 1885. Both complainant and respondents were represented by counsel, and presentation of the complainant’s case was followed by that of the respondents. Witnesses were examined and cross-examined, and each party gave addresses by way of summation. For want of a better model, the proceedings were conducted as if council were a modern-day administrative tribunal. In March 1888 the case was raised in the legislature. Liberal MLA William Frederick MacCoy, counsel for the respondents, introduced a bill to amend Chapter 20 of the Acts of 1885: according to MacCoy, the act amending the Barristers and Attorneys Act was “one of the most tyrannical acts ever passed by this House.”30 MacCoy’s bill would have permitted the respondent on a complaint to appeal to a judge of the Supreme Court in chambers against council’s hearing it – a form of injunctive relief. The bill passed third reading and was ordered sent to the upper house, which it failed to reach before the legislature prorogued. Between 1885 and 1899 as many as nine acts further amending the Barristers and Attorneys Act were passed; some affected the society while others did not. Chapter 24 of the Acts of 1887 authorized council to recognize the examinations of law schools accredited by council. Chapter 34 of the Acts of 1888 authorized council to waive any examination for any law student holding a provincial grade A teacher’s licence. Chapter 22 of the Acts of 1891 provided that any candidate failing to pass the final professional examination could appeal the decision of council to the judge in equity (second-ranking justice of the Supreme Court)31 and that any candidate holding the degree of LLB from Dalhousie University who had passed the society’s examination in practice and procedure could be called to the bar. Chapter 14 of the Acts of 1892 provided that attendance

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at law school could reduce articled clerkship from four years to three. Chapter 27 of the Acts of 1893 obliged practising lawyers to obtain from the treasurer of the society their annual certificate by 1 July. The year 1894 saw the judges restored to council but as honorary not full members as they had been before 1885.32 Chapter 30 of the Acts of 1895 conferred on council wide discretionary powers over bar admission. Over the years between 1885 and 1899, council gradually expanded its regulatory powers, but the legislature was still regulating the profession. By 1896 the society was leading an initiative to form a national bar association. The annual meeting in February 1896 saw prominent Halifax lawyer Robert Laird Borden, vice-president, move a resolution “that a committee be appointed to report to an early meeting of the society the feasibility of forming a society of the bar of Canada or the bar of the Maritime Provinces and as to the desirability of otherwise securing closer relations between the bars of the various provinces of Canada.”33 The annual meeting unanimously adopted Borden’s resolution and appointed a committee comprising Charles Sidney Harrington (incoming vicepresident), John Thomas Bulmer,34 and Borden (incoming president). At July’s special meeting, called “to consider the advisability of forming a Dominion Bar Association,” the committee reported that they had “communicated with the bar [i.e., law societies] of the different provinces of Canada on the subject and have received the greatest possible encouragement. They beg to report that the formation of such a society is not only desirable but feasible.”35 The meeting adopted a resolution unanimously approving the proposal and struck a committee of ten with full powers to make all the necessary arrangements.36 In leading the formation of the Canadian Bar Association, the society was doing what it could, pending the achievement of self-regulation. One wonders what other Canadian law societies thought of a law society without full regulatory powers. It must have made the bar of Nova Scotia appear a laggard among leaders. The CBA initiative wears the look of a face-saving gesture intended to mitigate the society’s loss of face and sheer chagrin. Attorney General Longley, however, seemed to think that the situation could be rectified. Though an ex officio member of council for ten years, Longley might have had no further involvement but for his failure to defeat the incumbent Conservative MP in his home county of Annapolis in the federal general election of June 1896. Re-elected to the Nova Scotia legislature in August and reappointed attorney general

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Professional autonomy and the Public interest

after having resigned in order to run federally, Longley resumed his seat in January 1897; in two years he succeeded in putting an end once and for all to the chaos engulfing regulation of the legal profession. Despite being a social conservative in matters such as women’s suffrage, which he implacably opposed, Longley prided himself on being a progressive liberal when it came to law reform. It was an area to which he contributed significantly, especially during his second decade as attorney general, which ended only with his appointment to the bench in 1905. Longley took the view that there was nothing wrong with the common law that a statute could not fix.37 He was a particular advocate of statutory regulation of the learned professions, carrying through a new Medical Act though failing in his effort to regulate civil engineers. He also failed to have enacted an administration of justice bill, which would have established a separate court of appeal and merged the county courts in the Supreme Court – a reform not achieved until 1992! In 1900, however, he was successful in carrying through a new Judicature Act, which brought about much needed procedural reforms. To Longley, the chief problem with governance of the legal profession was that it followed the common law. As the only jurisdiction where the law society did not regulate the legal profession, Nova Scotia lagged behind the rest of the country. Legislative regulation, though shared with the society, was an antiquated system that reflected on government and province alike. Longley’s admiration for English and Ontario precedents – not to mention for Osgoode Hall law school (which he went to Toronto in order to attend) and his period of post-call study with Toronto’s Bethune & Hoyles (Newman Wright Hoyles)38 – marked him as the one to bring the Nova Scotia bar into harmony with modern times. He is even known to have consulted no less a figure than Sir Oliver Mowat – minister of justice in Laurier’s first cabinet – on legislation relating to Nova Scotia’s legal profession. In the dying days of the 1897 session, Attorney General Longley introduced a bill to amend “the law respecting barristers and attorneys.” Originating with council, the bill provided that lawyers who failed to pay their fees be barred from practising in any court in the province. An even more disturbing prospect was that their filings would be null and void.39 Conservative lawyers were outraged, one country member, John H. Jamieson (MLA, Inverness) going as far as stating that “the bill could not emanate from a more selfish source” than what he called the Bar Society of Halifax. Little information about the bill exists other than that

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it was one of a number of regulatory measures that council had under consideration during and after the society’s annual meeting in February 1897.40 So controversial was the bill that it did not advance beyond the committee on law amendments. By 1899 some of the more activist members of the society were losing patience with the slow pace of reform. In a letter to the editor of a Halifax daily, lawyer John Thomas Bulmer painted a vivid if unflattering portrait of the society at its nadir: Whoever wants to study the morbid anatomy of dead and dying societies ought to attend a meeting of the Nova Scotia Bar Society. The reports of the officers begin with recording the trivialities of the year, the mere humdrum working of one or two officials expending a few hundred dollars. Someone then moves a nondescript resolution about the constitution of the society, which elicits the information that it has neither constitution nor bylaws amounting to anything … Then the voting begins for officers and members composing half a dozen firms elect one another to office – mostly as on Saturday last [4 March 1899] the same officers over from year to year.41 Yet important developments were taking place that Bulmer, ever the frustrated idealist, failed to acknowledge. The third section of council’s report to the same annual meeting that Bulmer “left in disgust” stated, A committee, consisting of the president [Borden], Mr Harris and Mr Mellish,42 was appointed to wait upon the members of the commission now engaged in revising the statutes, in order to secure certain necessary amendments to the statutes relating to barristers and solicitors. A draft containing many clauses taken from the English statutes and those of Ontario, together with a revised draft of some of the provisions of our present statute,43 was presented to the commission. After considering the same, the commission informed the committee that the changes had better be embodied in an act to be introduced at the present session of the legislature. Accordingly the committee spent a good deal of labour upon the preparation of an act embodying the amendments above referred to. This draft act has been presented to the commission, and has

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Professional autonomy and the Public interest

obtained their sanction and approval, and has been handed to the attorney general [Longley] in order that it may be introduced at the present session.44 Attorney General Longley introduced Bill No. 137 “to amend and consolidate the acts relating to barristers and solicitors”45 in the Assembly on 27 February 1899. Some members of the society were unhappy with the indecent haste with which matters were moving forward and the lack of consultation with the membership, to whom the bill had been presented by council as a fait accompli. “A Barrister,” in a letter to the editor of Halifax’s Liberal newspaper stated, I attended the regular annual meeting of the society, held about ten days ago [4 March 1899], and said act was not submitted for the approval of the members of said society, nor were they furnished with copies thereof, nor notified of the contents of the same except by a short synopsis of the same in the annual report of the council. As there are some sweeping changes to be made I think before the legislature passes the act it should be at least submitted to and approved of by the members of the legal profession at a meeting called for the purpose. The council of the Barristers’ society are not appointed for the purpose of making such sweeping changes without the approval of the society, but to manage and control the finances, library, etc. … I would suggest that the legislature before passing this act should require it to be first submitted to a meeting of the barristers called for that purpose.46 The call went unheeded; no such meeting was ever held. The five-member council, who together with the president and vice-president saw themselves as the collective leadership of the bar, took a much higher view of their rights and privileges than some members of the society, not to mention non-members. Quite apart from sharply differing views between council and members of the society as to whether the proper role of council was to provide leadership to the bar or good stewardship to the society, it is clear that council did not have a mandate from the society to proceed with drafting a new legal profession act. Council was acting unilaterally, secure in the knowledge that they had the support of the one official whose support was de rigueur: Attorney General Longley.

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Whatever the circumstances of its origin, the Barristers and Solicitors Act passed both houses on 30 March and came into force on 1 July 1899.47 Its passage through the Legislative Council, where legal profession bills had often been delayed or even defeated, was no doubt facilitated by lawyer William Thomas Pipes, former Liberal premier (1884–86), now minister without portfolio and leader of the government in the upper house. The bill generated little public interest, let alone controversy, except in the Assembly’s committee of the whole, where it quickly became clear that anti-society sentiment persisted among country lawyers. Christopher Chisholm, the Liberal backbencher who represented Antigonish County, objected to the clause penalizing barristers practising without a certificate from the secretary of the society:48 He protested vigorously against the attempt of four or five lawyers in Halifax [council] to control the bar of Nova Scotia. They not only proposed to centralize all the law business in Halifax, but they proposed to create a monopoly, and the city barristers had no more right to a monopoly of law than the game society had to a monopoly of moose. Not all the legal wisdom … was concentrated in the village of Halifax. The lawyers in the country had no brains because they fed on oatmeal; the lawyers in the city had all the brains because they fed on the library. Why should the council of the bar society dictate terms to and control the lawyers of the country?49 More radical elements among the country bar, such as Chisholm, felt that the society was unfit to govern the bar. Though his was the minority view, even among small-town lawyers, Chisholm nevertheless carried his point; Attorney General Longley abandoned the objectionable clause. Another intervention by a country member, Edward Mortimer Macdonald, Liberal MLA for Pictou County, proved prophetic. Criticizing “taxation without representation,” which is how he characterized country lawyers’ paying to support the barristers’ library, Macdonald suggested that council should include lawyers from outside Halifax (a reform achieved in 1904). Though the public interest was hardly at stake, there was more bemusement than concern among members of the public (“It was so pleasant to see the lawyers at war when no client’s interests were at stake”50). What controversy the bill generated was between and among lawyers apprehensive about Halifax rule. Some evidently feared that vesting regulation in the hands

46

Professional autonomy and the Public interest

of council would prejudice the interests of the profession and undermine the independence of the bar. Yet the BSA attracted less, and less hostile, attention than the 1885 amendments to the former Barristers and Attorneys Act that had started the ball rolling. The more regulatory powers, however modest, council acquired between 1885 and 1889, the more it began to be accepted among lawyers that self-regulation was inevitable. Yet without a powerful advocate in government like Attorney General Longley, the time required to achieve it might well have been longer. The eighty-one sections of the Barristers and Solicitors Act, 1899, were divided into nine parts: precedence, admission, qualifications to practise, law stamps, the Nova Scotia Barristers’ Society, taxation of costs, remedies against solicitors, acknowledgment by married women of the execution of deeds, and transitional provisions. A schedule repealed all in-force legislation touching the legal profession. The fifth part (sections 41 through 66) dealt with the society. All resident practising lawyers were declared to be members of the society (s. 42). Sections 44 and 45 entrenched council and prescribed its membership as the officers of the society (other than the secretary) in addition to seven barristers, an increase of two. The attorney general continued as an ex officio member and was joined by the attorney general of Canada – if a member of the bar of Nova Scotia.51 The Barristers and Solicitors Act, 1899, was the outcome of a civil war within the profession between the society and the bar, one in which the proponents of self-regulation (who – critically – included lawyers in government) finally triumphed over its opponents (who included most of the bar). As in most civil wars, it was a pyrrhic victory. The vanquished retired from the field in good order but not with good grace and would not easily accept the new regime that had been imposed on them by government. Professional self-regulation was terra incognita, and the generality of lawyers feared the unknown. That Halifax was the devil they knew did not inspire confidence beyond the elite confines of the metropolitan bar. Anti-society sentiment remained strong among lawyers outside Halifax where most society members resided, as indeed did anti-council sentiment among members of the society. The 1885 amendments to the Barristers and Attorneys Act, which had changed little in the half-century of its existence, were broad in scope but limited in effect. The ensuing fourteen years brought slow but steady progress toward the ultimate goal. The Barristers and Solicitors Act, for its part, was a conservative reforming measure; its only radical innovation was to force lawyers into the society and impose

thE SOCiEty AND thE BAr

47

on them direct rule by council. Yet enactment of the BSA was the climax and culmination of the “professional renaissance” that historian Philip Girard argues the Nova Scotia bar underwent between 1850 and 1910. Without the society’s conquest of the legal profession, that rebirth could not have been perfected.

3

The Society under the Barristers and Solicitors Act

thE NOvA SCOtiA BArriStErS’ SOCiEty ExiStED for seventy-four years before becoming the regulator of the legal profession. From 1 July 1899, the society and the bar were no longer separate and distinct, except in theory. So familiar did the new arrangement become that lawyers still tend to identify self-regulation with the 1858 incorporation of the society.1 The achievement of self-regulation is retrojected to the mists of time, when the reality was utterly different. Other factors may have led to such a high degree of amnesia. The wholesale loss of pre-1896 records robbed the society of its corporate memory, so such a tradition was the more easily invented.2 An undocumented past lent itself easily to imaginative re-creation. Yet the years between 1858 and 1899 were not just transitional; they were transformational. Before 1899 the Nova Scotia bar and the Barristers’ Society were not only separate but at loggerheads. The bar was a house divided against itself. It could not endure half subject to the society and half not. Like Lincoln’s antebellum United States, it would have to become all one thing or all the other. After 1899 bar and society were one thing: “All barristers and solicitors of the Supreme Court of Nova Scotia, and all persons who shall hereafter be admitted as such barristers or solicitors, shall, so long as they reside and practise in the said province of Nova Scotia, be members of the society.”3 Such was the essential precondition of self-regulation, and it explains why the 1885 amendments to the former act, important though they were in themselves, failed to bring the society any closer to its goal. Government’s decision to hand over control of the bar to the Barristers’ Society was, in light of the long and lamentable history of bad relations between the two, a courageous one. The innovation scarcely represented

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Table 3.1 The Bar

% Increase

1824*

51

1825 1829

Admissions

–

1824

12

54

6

1825

16

76

41

1829

8

1839

116

53

1839

10

1849

148

27.5

1849

5

1859

160

8

1859

8

1869

197

23

1869

15

1879

234

19

1879

10

1889

306

31

1889

12

1899

405

32

1899

21

Source: Belcher’s Farmers’ Almanac

Source: Barristers’ rolls, NSA

*Earliest year for which records exist

the views of the bar, who were not consulted, nor, for that matter, members of the society, who were also not consulted. Lawyers outside the greater Halifax area saw enactment of the act as yet another example of aggressive metropolitanism. No evidence exists as to what percentage of the Nova Scotia bar were members of the society on 1 July 1899 when all resident practising barristers automatically became so. The size of the bar and its rate of increase over the years from the society’s establishment through the achievement of self-regulation are easier to document (see table 3.1). Passage of the BSA corresponded with a spike in calls to the bar, which had been rising steadily for more than a decade. Did the new regulatory regime, in the making since 1885, inspire confidence among intending lawyers? Did the rising generation view self- regulation as less a curse than a blessing, as signifying modern times in a profession undistinguished by progressive governance? The society itself was less a microcosm of the bar than a Halifax-based and Halifax-dominated organization in which officers and council were all Halifax lawyers. Of Nova Scotia’s resident barristers in 1899, fully 37 per cent were in Halifax.4 It seems probable that most if not all of those 129 who resided in the greater Halifax area were already members of the society. The metropolitan bar would continue to dominate the society for years to come through the annual meeting (until 1951 invariably held in Halifax), which elected both officers and council

50

Professional autonomy and the Public interest

from among those Halifax barristers attending. In short, the new order benefited the self-perpetuating oligarchy of Halifax lawyers who comprised council. In 1899 the composition of the society changed fundamentally; council’s did not. The society’s vastly increased responsibilities obliged it to address emerging challenges facing the bar. Though the evidence is impressionistic, established lawyers naturally resented the prospect of increased, more intense competition from new lawyers hungry for business; thus, the most pressing challenge was market oversupply. Dalhousie University’s Faculty of Law was turning out too many intending lawyers – 23 in 1899 – not to mention those articled clerks who gained admission to the bar through apprenticeship; legal business was in a trough, and there was not enough work to go around.5 The inevitable result was out-migration.6 Among the more distinguished emigrants was Frederick Tennyson Congdon, member of council and author of a famous Digest of Nova Scotia case law. Congdon went west, where in 1903 he became commissioner of the Yukon Territory. A few years later he was followed by William Bruce Almon Ritchie, number two in R.L. Borden’s law firm and president of the society in 1905–07; Ritchie spent the rest of his career and life in Vancouver.7 Another expatriate was John W.P. Ritchie, who resigned as treasurer of the society in 1911 on moving to Calgary. Yet another was Thomas Reginald Robertson, Ritchie’s number two in the successor firm to Borden’s. He too migrated to British Columbia where he became city solicitor of Victoria in 1912. Finding the west not to his liking, however, he returned after a few years to Halifax where he served as president of the society 1925–27. The minutely procedural character of the Barristers and Solicitors Act meant that professional regulation proceeded along two parallel tracks – the statute and council. Council was given the power to regulate, but the BSA defined pretty narrowly how those powers would be exercised. The legislature, moreover, continued to interfere, almost every year enacting bills amending the BSA whether council had requested them or not, while some of the society’s legislative proposals were ignored or rejected. In February 1900, for example, the annual meeting adopted a resolution seeking repeal of those provisions in the BSA that required “practitioners to render signed accounts for the period of one month before action can be brought upon them.”8 No such bill was introduced in the legislature, and the existing provisions were not repealed. The sessional year 1900 was

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51

the first for many years in which no bill to amend the legal profession act was introduced in either house of the legislature. Amendments in 1901 revealed that a weakness of the BSA was procedure on complaints of professional misconduct. Section 79 was largely a rehash of the 1885 amendments to the former act, tacked on to the end of the BSA almost as an afterthought. Council had authority to investigate complaints and to censure, suspend, or expel an offender from the society – but could not disbar. Council could recommend disbarment, but only the Supreme Court could impose it – and that without the interposition of council. As subsection 79(3) made clear, “Nothing herein contained shall prevent an application being made in the first instance to the court to strike the name of a barrister or solicitor off the rolls under the present practice” – a reference to the 1885 amendments to the former act that sustained the court’s common-law privileges. The upshot was that a new section 58 (procedure on complaint investigation) was added to the BSA.9 By 1902 the error of failing to entrench in the BSA penalties for lawyers practising without annual certificates was becoming clear. Nearly 43 per cent of the bar were in arrears on their fees.10 Council informed the annual meeting that year that uncertificated lawyers would be prosecuted, but it is not known whether any defaulters actually were.11 In later years lawyers failing to pay membership dues would face suspension. Nineteen days before the annual meeting in February 1901, John Thomas Bulmer died very suddenly, and the society lost its superego and conscience. Though he had never held office or stood for election to council, Bulmer rarely missed or failed to address a meeting of the society; they realized what they had lost.12 Bulmer’s passionate public-spiritedness drove him to the view that the practice of law had no justification other than the public interest; he endeavoured to hold the society to a higher standard of service, the first claim upon which was the public good. He may be said to have devoted his entire career to trying to convert the society from a self-serving professional association to a public-interest agency. More pragmatic idealist than cranky ideologue, Bulmer believed that the society could be a force for good in relation to the rule of law in a democratic state. It was ironic that Bulmer lived just long enough to see the society come into its own and be clothed with the power and authority that would have enabled his vision for it to be realized. Five years after the BSA was passed, a second, successful attempt was made to turn council into a representative legislature; the proposal had been

52

Professional autonomy and the Public interest

rejected by the 1899 annual meeting. In 1904 council, without seeking an amendment to the act, unilaterally added members representing counties outside Halifax; it was a frank admission that council “represented” only the Halifax bar, though of course its purpose was not to represent the bar but to govern it. Sixteen counties – assuming they all had resident barristers – would henceforth have one member each, while Cape Breton County, given the size of its bar, would have two members. At one stroke, council more than doubled in size, from seven to eighteen. No barrister outside Halifax had ever served as a member of council, but the reform served mainly to conciliate barristers in Cape Breton, who in 1901 formed their own association separate from the Nova Scotia Barristers’ Society. Council was apprehensive lest a regional bar association weaken or undermine the provincial one to which all barristers by law belonged. A bill to incorporate the Cape Breton Barristers Association passed the House of Assembly in 1902 but failed in the Legislative Council. The proposed bill was before the annual meeting of the society in March 1903, where it generated some controversy. An attempt to kill it with kindness – appointing a committee to confer with the promoters of the initiative “with a view to coming to a satisfactory agreement” – failed, and the association was incorporated in April.13 The Cape Breton Barristers’ Society has flourished ever since. The year 1904 also saw Robert Borden, MP, leader since 1901 of the federal Conservative Party, relinquish the presidency, which he had held for eight years – longer than any other president in the society’s history except John William Ritchie. Not only had Borden served continuously on council since 1887, but he also had played a large role in the genesis and enactment of the BSA, adroitly overseeing the full and final transition of the society to professional regulator. An account published while the BSA was making its way through the legislature described Borden as president having “taken great care in framing and watching legislation affecting his profession.”14 In 1908 a number of amendments to the BSA were enacted, among them one whose purpose was to settle the fee arrears problem once and for all. The grace period during which council might waive the payment of arrears was extended by ten years. Henceforth, no certificate would issue unless the annual fee was paid. Firms were also barred from having more than one member among the officers or on the council, and the president was barred from serving more than two terms unless two years had elapsed since the last one. Most significantly, council was empowered to appoint

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53

ad hoc committees of three or more of its members to investigate and report on complaints against lawyers.15 This was the remote origin of the discipline committee. In 1910 the BSA was amended to make the chief justice an ex officio member of council.16 So reactionary and retrograde a move was extraordinary. Though the judges had been restored to the council as honorary members in 1894 – they had ceased to be full members in 1885 – even that privilege was withdrawn when the BSA was enacted five years later. To all intents and purposes, the judges no longer played any role in governance. The rationale is puzzling and, in the absence of pre-1911 council minutes, impossible to establish. Did the government wish to impose judicial oversight of council’s exercise of its regulatory power? The chief justice, Sir Charles James Townshend, seems not to have initiated the move. It is clear that between 1911 and 1929, when the provision was repealed, the chief justice never attended in person but was occasionally represented by puisnes such as Benjamin Russell, a former president of the society. This curious anomaly remains unexplained. In 1913 yet another attempt was made to solve the intractable problem of fees in arrears. The grace period was extended from 1908 to 1913, and uncertificated lawyers and their firms were barred from recovering fees or taxing costs. Library privileges were also withdrawn from delinquent lawyers as well as from their articled clerks.17 The annual meeting that year saw a determined effort to democratize the government of the society. A resolution to elect both officers and council by ballot of the whole membership rather than the annual meeting (which, until the early 1920s, out-of-town lawyers rarely if ever attended – unless they were in Halifax on court or other business) was passed, but legislation to amend the BSA was deferred for a year.18 In 1914 the amending bill made it as far as the committee on law amendments before being given the three-month hoist.19 It would be nearly ninety years before council was directly elected by the membership and almost as long before the president was. Little activity of consequence occurred during the Great War, which distracted everyone. In December 1922 the president, Walter J.A. O’Hearn, was appointed attorney general. O’Hearn, a prominent criminal defence counsel, was a legal activist who took his new obligations as head of the bar very seriously. In 1923 the BSA was substantially amended with regard to law studentship, bar admission, and the standing of lawyers from outside the jurisdiction wishing to be called in Nova Scotia.20 Attorney General

54

Professional autonomy and the Public interest

O’Hearn went to the bench in 1928, and the remainder of the decade saw little constructive change initiated by or affecting the society. In 1931, however, the annual meeting passed a resolution asking council to consider establishing a legal aid committee.21 The initiative was twenty years ahead of its time. “This question has come into prominence through the debtors inquiry which has been carried on for the past few weeks and the society, as a whole, felt that it should do everything in its power to aid debtors who are unable to employ legal assistance.”22 The matter was of some delicacy because debt collection was bread and butter in many lawyers’ practice. When the socially conscious former society president who had raised the matter in the first place, Robert Harper Murray (the Collection Act inquiry commissioner), tried to raise it again, council stated it had no power to grant money toward the legal defence of indigent prisoners facing criminal trial.23 Discipline matters continued to engage council’s attention. The annual report for 1930–31 lamented, “The members of council have been called upon to deal with several complaints against practising barristers and have found themselves hampered on account of the present procedure being both inadequate and cumbersome.”24 In 1932 subsection 58(1) of the BSA was repealed and replaced in order to remedy defects in complaint investigation procedures.25 In 1933 the discipline committee was established to investigate complaints. More and more responsibility for managing the discipline process was falling on the shoulders of the society’s solicitor. By 1936 the solicitor was acting as prosecutor in council proceedings arising from discipline committee reports. These proceedings were adjudicative, along the lines of a military court martial, in which both the society and the barrister complained against were represented by counsel.26 In 1939 council formally authorized the discipline committee to retain and brief the society’s solicitor whenever the need arose.27 This was very much in keeping with the solicitor’s original role – a solicitor was first appointed in 1914 – which was to deal with complaints against lawyers. It was also in 1939 that the forty-year-old Barristers and Solicitors Act underwent its first and only systematic revision and consolidation.28 The regulations had been overhauled in 1904, 1914, and 1922, but the BSA itself had not been opened up.29 Hence, modernization and streamlining were long overdue. Council’s legislative committee had had revision of the BSA under consideration since autumn 1937. According to council’s annual report for 1939–40, “For many years it has been felt that a comprehensive

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55

revision of the Barristers and Solicitors Act was necessary. This year the Council appointed a special committee to deal with the matter, and this committee, in conjunction with the law officers of the province, and with assistance of the solicitor, drafted a new act which was duly passed by the Legislature.”30 In fact, the society’s solicitor – F.W. Bissett (a future president) – did most of the work. The Barristers and Solicitors Act, 1939, drastically reduced the scale of the former act, which had grown and spread like a weed over the four decades of its existence. Nearly all procedural matter was eliminated. A much leaner BSA emerged when the new act was passed in April and came into force in October 1939. Though the number of parts increased from nine to fifteen, the number of sections fell from eighty-seven to forty-six. Among the new parts were “Council of the Society,” “Finance,” and “Library,” while Misconduct and Remedies was renamed “Discipline.” A new part, “Regulations” (section 44), set out the ten areas in which council was empowered to regulate; they included a residual clause (“such other matters as shall be deemed necessary for the carrying out of the purposes of this Act”). Despite that the interpretation section made clear that regulations meant and included “regulations, rules and by-laws made by the council,” the heading was corrected in 1946 (“Powers of the Council”) in order to make yet more certain that the BSA did not implicitly authorize cabinet or the attorney general to make regulations under the act.31 The disappearance of procedural matter from the BSA clarified that council’s power to regulate was, and had to be seen to be, absolute. Henceforth, the legislature would no longer enact procedure when council had the power to make regulations covering the same ground. The legislature’s role would be limited to defining the regulatory power. The new BSA also authorized council to suspend uncertificated barristers without having recourse to the courts. (Nothing short of the threat of suspension seemed adequate to deal with the perennial problem of fees in arrears.) The Supreme Court in banco (court of appeal), however, still had the final say when it came to disbarment. It was obliged to consider the society’s ex parte application for an order to disbar but might refuse or vary it. Though forty years’ worth of accrued amendments – many no longer relevant – were pruned, the BSA broke no new ground. Its main achievement was to better define the scope of council’s regulatory power. Otherwise, there was little substantive change. Council, for example, baulked when

56

Professional autonomy and the Public interest

the junior bar proposed adding a new section defining the practice of law – for fear “that the addition of such section might jeopardize the bill when it came before the legislature.”32 It is more likely that council feared that defining the practice of law in the statute as opposed to regulations would not only limit the scope of what lawyers could or might want to do but unduly limit council’s discretion to regulate in that area. They preferred to define the practice of law empirically. Whatever a lawyer did in the professional line lay within scope; that was, so to speak, the common and customary law of the legal profession. Conspicuous by its absence from the “discipline” part of the new BSA (ss. 26–30) was the discipline committee, which, despite being a permanent standing committee of council, was vaguely referred to as “a committee.” It nevertheless appeared in full regalia in the revised and consolidated regulations that accompanied the act. This oversight, which could hardly have been accidental, probably reflects debate or disagreement within council or between council and Attorney General MacQuarrie as to the wisdom of enshrining any committee in the BSA. Since 1914 (or 1904) committees were matter for regulation, though the committees regulation had no explicit basis in the regulatory power as defined by the act. The debate as to whether the discipline committee would comprise three members of council appointed annually to investigate complaints went on for two years.33 In March 1941 Attorney General MacQuarrie introduced a bill amending the BSA in order to entrench the discipline committee and, more important, enable it to find guilt or innocence rather than merely report and recommend to council.34 Moreover, the discipline committee’s investigative powers were to be those of a commissioner appointed under the Public Inquiries Act – in other words, a justice of the Supreme Court. Progressive voices had prevailed over traditionalists who believed that the only regulatory committee could be council itself. Delegation of discipline power implied, if it did not actually incur, risk. No other committee was ever enshrined in the BSA. In 1951 the discipline committee grew from three to six members, and it was authorized to instruct the secretary-treasurer to lay a complaint on behalf of the society if evidence warranted.35 As the number and variety of complaints against lawyers continued to increase, so too did the demands on the discipline committee. Finally, in 1965, three past presidents were added to its membership, and council ceased to play any further direct role in the discipline process. Thenceforth, the discipline committee not only

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57

found guilt or innocence but also decided what action would be taken on a finding of guilt.36 One matter over which council and the discipline committee could not agree was whether to disbar automatically a lawyer convicted of a criminal offence resulting from dishonesty or professional misconduct. That was farther than some members of council, including the discipline committee, were prepared to go.37 In 1943 council directed the committee to consider amending the regulations to provide for the automatic disbarment of any lawyer convicted of a criminal offence.38 Nothing seems to have come of this initiative, but the rash of criminal convictions of lawyers that had taken place during the Second World War caused concern among the judiciary. In December 1944 Chief Justice Chisholm wrote the president of the society, querying procedure on disbarment. Council responded by appointing the president and members of the discipline committee to a committee to confer with the judges “with a view of settling upon some definite principle upon which to act in such cases.”39 One gets the impression that both the judges and the discipline committee thought disbarment should never be automatic, not even on conviction for a Criminal Code offence, but that each case should be weighed on its merits. A mere vote of council to disbar – with or without a prior finding of guilt by the discipline committee – seemed arbitrary and an abuse of process. Five years after rejecting the junior bar’s call to define the practice of law in the Barristers and Solicitors Act, council reversed its position in response to changing circumstances. By 1944 encroachments on professional business had become a burning issue. Reports from lawyers that commercial companies and officialdom were practising law induced council to prepare and send to the legislature an amendment to the BSA that spelled out “the practice or profession of a barrister.”40 Trust company employees, chartered accountants, registrars of deeds and probate, justices of the peace, and even magistrates were allegedly “encroaching upon professional business” by doing conveyancing and other solicitorial work. In earlier days, when the lines of demarcation were less clear, such encroachments seemed not to have been deemed a threat. In 1918, for example, council refused to support a bill in the legislature prohibiting anyone but solicitors from drafting deeds.41 A quarter-century later the professionalization of work such as public accountancy had altered the landscape.42 The upshot was that a special meeting of council was held and a select committee set up in March 1944 to deal with the problem.43 The

58

Professional autonomy and the Public interest

source of the amendments as originally drafted were twofold: a proposal prepared by the society’s vice-president, J.A. Hanway, who, as chair of the Public Utilities Board, had a vested interest in prohibiting laymen from appearing before administrative tribunals on behalf of other persons; and recent amendments to Manitoba’s Law Society Act that both prohibited non-lawyers from practising law and defined the practice of law.44 Bill No. 68 was a draconian measure that generated much public attention and controversy.45 Intended chiefly to prevent trust companies and chartered accountants from offering solicitorial services to clients, in its original form Bill No. 68 would have prevented a company-employed lawyer from practising law outside the company. It would also have had the effect of doing away with professional arbitrators and insurance adjusters who were not lawyers. That was going too far and would have jeopardized the bill’s passage had it not been “sharply modified.” Press opposition to the measure was bipartisan – an unusual feat in itself. Both the Conservative Herald and the Liberal Chronicle ran critical editorials.46 According to the Chronicle’s chief editorial writer, a former United Church minister turned lawyer,47 Certain provisions of Bill No. 68 now before the legislature, as a proposed amendment to the Barristers and Solicitors Act, call for more than casual scrutiny. For if the bill in its present form becomes law, it will undoubtedly work grave hardship upon not a few members of the legal profession in this province. The restrictive character of the proposed legislation is apparent on its face. Section 4B(1), for example … would deprive every member of the bar of Nova Scotia who happens to be in receipt of a fixed salary of any sort and from no matter what source, of the privilege of practising law except on behalf of the person, firm or corporation which pays him that salary. Thus, if a fully qualified barrister happens to combine professional duties with other responsibilities for which he is paid a salary, he would at once be liable to penalties for professional misconduct.48 Given the negative publicity and the groundswell of popular opposition, the legislature’s law amendments committee took the unusual step of holding a public hearing on Bill No. 68. Appearing before the committee to explain and defend the measure, the president and the society’s solicitor

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59

downplayed its radicalness. F.W. Bissett (who drafted the bill) stated that it was merely aimed at preventing “a lot of people from carrying on legal work who are unqualified to do it”49 and to protect lawyers from poachers. But it seemed as much aimed at lawyers doing non-legal work as at non-lawyers doing legal work. Bissett might equally truly have claimed that the bill was aimed at preventing unfair competition from other lawyers. Certainly the president and the solicitor were the bill’s only public advocates. Its opponents took the view that Bill No. 68 was contrary both to the public interest and to the professional interest inasmuch as it tended to damage the reputation of the bar in the eyes of the public. Frank B.A. Chipman, KC, (a trust officer at Eastern Trust) made the company-employed lawyers’ case against the bill, which he deemed discriminatory. He called it “hasty” and “uncalled for” and “feared the reaction of a public against a profession which found it necessary to legislate practice into its own hands.”50 Though no transcript of the public hearing survives, the best lines clearly belonged to Chipman, who asked whether it had been suggested that “members of the bar alone were clothed in virtue. At another point he said that the public, since restrictions were being imposed upon it, might ask in turn that barristers be bonded as they were in some other countries.”51 Given the extreme delicacy of the subject of bonding, which most lawyers fiercely opposed and the society had recently rejected, Chipman could not have proposed a more incendiary quid pro quo. Attorney General MacQuarrie, though in sympathy with the essence and purpose of the bill, was at pains to distance himself from it, making clear that neither he nor his department had had anything to do with it; Bill No. 68 was strictly a society production. In the end, however, it was the attorney general who, in his capacity as chair of the law amendments committee, cut the bill down to a manageable size and tolerable content. The legislature could not have swallowed that camel. The society’s annual meeting, taking place a week after the bill passed, authorized council “to deal with all matters arising out of Bill 68 and to enforce its provisions and prosecute its violations.”52 Lawyers were ordered sent the printed act and encouraged to undertake surveillance on behalf of council – in other words, to spy on and report suspected encroachers. Bill No. 68 as revised and enacted53 prohibited corporations and non-lawyers from practising law and defined the practice of law as conveyancing, preparing testamentary documents, preparing documents relating

60

Professional autonomy and the Public interest

to any process under the Companies Act and any document to be entered in a legal proceeding, and appearing before a court or administrative tribunal on someone else’s behalf.54 “Soliciting” or “canvassing” for professional business was also forbidden. The amendment imposed penal sanctions under the Summary Convictions Act for any violation of the new section 4A, though no proceeding thereunder could be taken without the consent of the attorney general.55 Nor are any known to have taken place. The most that probably did happen, or realistically could ever have happened, was that council took disciplinary action against a member of the society for advertising or against a company for “holding out.” The 1944 amendment, which (with one exception) stood until 2004,56 was the most important in the entire history of the Barristers and Solicitors Act. It legislated a monopoly, turning the practice of law into a guild or closed shop. In 1965 the definition of the practice of law was enlarged to include “giving legal advice to any person.”57 Discipline and practice issues aside, the makeup of council became a bone of contention during the Second World War. In 1942 a bill to reform its composition was drafted, but no action was taken until after the war.58 In 1945 the long-time treasurer resigned on being elected vice-president, and the office of treasurer was permanently united with that of secretary. Provision for this had been made in the Barristers and Solicitors Act as originally passed, but the arrangement had only been tried once before, in 1900; it was reversed in 1905 because the statute barred the secretary from council. The 1946 amendments to the BSA 59 added a second vice-president from outside Halifax County, and the dean of Dalhousie Law School was made an ex officio member of council.60 For greater certainty, all the officers of the society were confirmed as members of council. We would know a great deal more about the society under the BSA during the crucial formative years if council minutes 1899 through 1911 had survived. Likewise, we would know a great deal more about how the society prepared to respond to the postwar world if council minutes 1945 through 1949 had survived.61 While barristers and articled clerks enlisted and served in the armed forces (as they had done in the First World War) – some forty-five by 1941, sixty-two by 1942, and eighty-seven by 194362 – the society endeavoured to keep the home fires burning. Boosting morale among lawyers and law students on active service was close to the heart of the society’s leadership class and older generation, many of whom had served in the First World War, some with great distinction.63 Lawyers

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on active service who found themselves stationed in or passing through Halifax had a standing invitation to attend the annual dinner, which was a staple of the society’s annual meeting. In April 1941, for example, when George Drew, Conservative leader of the opposition in Ontario, addressed the annual dinner, among those attending “were 60 members of the various bar associations [law societies] now serving in the armed forces. Every bar in Canada was represented and 30 barristers in the uniforms of the three services from the other eight provinces attended.”64 The society’s war may be said to have ended symbolically on 28 April 1945 – two days before Hitler’s suicide. The annual dinner that evening had for its keynote speaker none other than James Layton Ralston, CMg, DSO, KC, MP – then in private practice in Montreal where he had lived since 1931. Called to the bar in 1903 without a law degree, Colonel Ralston was a founding partner of the elite Halifax firm that is now Burchells LLP and a former vice-president of the society. He served in, and ultimately commanded, the storied 85th Battalion (Nova Scotia Highlanders) during the First World War in which his younger lawyer-brother Ivan was killed. He also chaired the federal royal commission on Soldiers’ Pensions and Re-establishment (1922–24) and, during a thirty-year political career, served as MLA, MP, and minister of finance and was twice minister of defence in the Mackenzie King government. In a rousing big-picture speech, Ralston warned that it would not be business as usual after the war. The Great War generation, still in charge, would have to be prepared to stand down and make way. Canada’s postwar needs would be met by returning veterans whose “initiative and resourcefulness” had to be embraced.65 The banquet at which Ralston gave the keynote address marked the society’s 120th year, a milestone to which the incoming president, Gordon McLaren Daley, drew attention. He spoke of the history of the society and suggested that the anniversary should be commemorated “in some important way.”66 Alas, the records that would have told us whether it was no longer exist. One is left wondering which records Daley may have had access to that enabled him to speak to the history of the society since 1825.

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Brave New World

POStwAr CANADA wAS A DiFFErENt PLACE. The Second World War transformed the legal profession by expanding its role in the public sector and, generally speaking, mobilizing its resources in aid of the war effort. Many Nova Scotia lawyers, including Dean Vincent MacDonald of Dalhousie Law School, served as “dollar-a-year” men in the burgeoning federal bureaucracy. For the first time in its history, the Canadian bar began to regard social responsibility as an aspect of the public interest in the practice of law. The winds of change were already blowing in April 1945 when the Nova Scotia Barristers’ Society at its annual meeting elected a woman to council; Grace Wambolt was the first female bencher of a law society in the country.1 The society’s annual dinner in April 1947 heard that pragmatic idealist James Chalmers McRuer, chief justice of Ontario’s High Court of Justice and president of the Canadian Bar Association, deliver an address, “Expanding Horizons of the Legal Profession.” It must have pleased Dean MacDonald, who introduced McRuer, to hear him state, “the graduates of Dalhousie Law School were considered experts in their profession, and their achievements were famous across Canada.”2 According to McRuer, the practice of law was in the first instance public service, and lawyers had a duty to society to discharge. The winds of change were still blowing in 1950 when Charles P. McTague addressed the society’s annual dinner. McTague, a former justice of Ontario’s Court of Appeal, expert in industrial relations, and “dollar-ayear man” who had been chair of the War Contracts Depreciation Board and then the National War Labour Board, was directing an ambitious survey of the legal profession in Canada.3 According to McTague, who knew whereof he spoke,

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It is only a matter of common sense that if we in a legal way are to enjoy a monopoly as far as the administration of justice and practice of law goes, we must take stock and do some house-cleaning if we don’t want the government to take over … Today we have a world of big government, big business and big labour, and we have got to project ourselves into it or time will pass us by … [The legal profession] has an obligation to the public to see to it that the practice of law, and the administration of justice, is carried out in a manner that produces efficiency and a deal that the public is entitled to … The service given by lawyers on a purely charitable basis is a matter of great comfort, and makes one proud to be a member of the profession.4 Legal aid had only just arrived in Nova Scotia, so McTague’s allusion to pro bono work did not fall entirely on deaf ears. So conservative was the province’s legal culture, however, that the society at large saw themselves not as “architects of the future” (McTague’s vision) but as preservers and transmitters of the past, keen to restore the status quo ante bellum. For example, a proposal to link the bicentenary of the founding of Halifax to hosting the 1949 annual conference of the Canadian Bar Association and celebrating the 125th anniversary of the founding of the society came to naught. Typical of the old outlook was resistance to council’s progressive measures, among which was putting an end to bar admission based exclusively on law office training. Council rescinded the controversial repeal of the regulation when it became a flashpoint at the 1951 annual meeting.5 One prominent king’s counsel, R.M. Fielding, a provincial Liberal cabinet minister and recent former president of the society, strenuously objected to the abolition of the age-old method of admitting students to the bar who are trained in a law office. I do not deny the value of a university education, but some of the best lawyers in this province today did not come from a university. Two outstanding lawyers of this City [Halifax] are the products of admission to the bar by this method which has been repealed.6 I can think of another man in this province who did not take his degree from the law school but gained admission under this system and is a most outstanding member of this bar today. I submit that this method of admission to the bar produces a workman in the law. I fail to see why we should

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make it easy for a man who has failed in law school and give him credit for time when he is not qualified, which merely amounts to the lowering of the standards of the profession, and repeal this method which has produced noted barristers.7 Fielding, an LLB himself, had been called to the bar at a time (1922) when a majority of Nova Scotia’s lawyers probably did not hold the LLB – though most of his contemporaries did. Another instance of the society’s backwardness was its half-hearted response to efforts of the Canadian Bar Association to establish its bona fides among Nova Scotia’s lawyers; this was certainly ironic in that the original (1896–98) CBA had been an initiative of council, it had held its annual meeting in Halifax in 1936, and a former treasurer of the society, Halifax lawyer James McGregor Stewart, had recently been president. In March 1952, when a mere 18 per cent of the members of the Nova Scotia bar belonged to the Canadian Bar Association, Dean Read of Dalhousie Law School, vice-president of the CBA for Nova Scotia, offered this cheery prognosis: There are substantial grounds for predicting progress in the Nova Scotia section [of the CBA] this year. One ground is the progressive spirit and ongoing program of the Nova Scotia Barristers’ Society from which the affairs of this association cannot be divorced. Owing to fortunate leadership since the war the interest of Nova Scotia lawyers in their Bar Society has steadily increased, and the recent results have been beneficial both for the profession and the public. A notable result has been establishment of a legal aid clinic in Halifax that has been functioning successfully for several months … It is believed there is a justifiable basis for cautious optimism and expectation that the new vigour of the Nova Scotia Barristers’ Society will infuse the complementary program of the provincial section of the Canadian Bar Association.8 Despite his being an ex officio member of council, it is unlikely that Dean Read was expressing council’s view of relations between the society and the CBA, membership in which was strictly voluntary. Neither then nor later did the society require lawyers to join the CBA, as was the case with other law societies across the country. As far as council was concerned, the society represented as well as governed lawyers because all lawyers were by

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definition members of it. The society did not take a back seat to anyone in looking after the interests of its members. In sharp contrast, the society’s enthusiastic embrace of legal aid marked its first venture in social responsibility. The committee tasked with preparing a report on it saw legal aid as good public relations9 (we would now say standing forth in the public interest). No sooner had the Canadian Bar Association at its annual meeting in September 1947 passed a resolution advocating the provision of free legal aid to needy persons than council took action in response. The scheme recommended was similar to that in use in Manitoba,10 which council accepted and the 1948 annual meeting approved. Council established a legal aid committee in 1950, and by September 1951 a weekly legal aid clinic had become a “permanent part” of the society’s mission and outreach in metropolitan Halifax. The 1952 regulations included eighteen “rules for legal aid.”11 So successful was the program that by 1962 it was being described as enhancing the prestige of the society like no other initiative.12 In 1965 the outgoing president described legal aid as “the greatest service the society can render to the general public.”13 Facilitating greater access to justice was perhaps the chief means whereby the society could help improve the administration of justice. In 1969 the Nova Scotia government began to support the program financially, enabling council to appoint a provincial director of legal aid. Amendments to the BSA in 1970 empowered council to make regulations respecting “the organization and administration of legal aid, including the raising and disbursement of any moneys required therefor.”14 In June 1970, in light of the general recognition that there was no viable alternative to public funding of legal aid, the government appointed a blue-ribbon committee to investigate and report. Chaired by A. William Cox, the society’s second vice-president, it included among its seven members the chair of the society’s legal aid committee. The change of government in October 1970 impeded progress but not for long. In April 1971 the Legal Aid Planning Act was passed, and the society’s twenty-year involvement in legal aid (defined as “the providing of legal advice, assistance and services by members of the society”15) became entrenched in law. In September the society’s legal aid committee drafted for the attorney general a memorandum entitled “Legal Aid: An Introductory and Trial Plan for Nova Scotia.” In October 1971 the society entered into a renewable legal aid agreement with the province whereby the government would fund and the society control, but no longer deliver, legal aid. An arm’s-length executive

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director was appointed and the new program inaugurated in February 1972. The arrangement, however, worked to the satisfaction of neither party. It was unclear who was really in charge – the attorney general or council through the legal aid committee – and what the lines of accountability were. The society was placed in the invidious position of spending public money to manage a program that it was no longer actually delivering. In 1977 the legal aid agreement with the society was terminated at the province’s request. A new Legal Aid Act was passed, which set up the Nova Scotia Legal Aid Commission, seven of whose fifteen cabinet-appointed directors were to be from among persons nominated by council.16 The chair of the society’s legal aid committee became a director, while another of the society’s director-nominees, F.B. (Ted) Wickwire, a former chair of the legal aid committee, was appointed first chair of the commission. After more than twenty-five years, the society was finally out of the legal aid business altogether. Legal aid went from being a public program managed by the society to a government service delivered by a quango. Government and the society agreed to disagree over how best to deliver legal aid, and something had to give if the service were to continue. Government control was inevitable because the attempt to deliver a public service by means of a public–private partnership had not worked. Still, the society would not wean off its firstborn. The society’s legal aid committee, made redundant as of the Legal Aid Act’s coming in to force on 1 November 1977, was reconstituted a year later with a public-interest brief “to monitor and report on legal aid services in the province.”17 The society’s directors on the board of the commission did not report to the legal aid committee as Nova Scotia Legal Aid had done. The society’s committee evolved into a sort of liaison body between the Legal Aid Commission and the attorney general, to whom the commission reported, as well as a clearing house for complaints from lawyers about legal aid service delivery. In 1981 the committee took the giant step of proposing that it should be authorized “to deal with complaints of the public concerning availability and delivery of legal [aid] services.”18 Council agreed, and the committee became for all practical purposes a legal aid ombudsman. It took a new lease on life in 1982 when, in light of funding cutbacks, “the attorney general asked the society what, if any assistance it can render in ensuring that the high quality of legal aid available to the public is maintained.”19 That seemed a throwback to an earlier time, implying that the Conservative government of John M. Buchanan, a

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former legal aid lawyer and director of the program in Halifax at the time of his appointment to cabinet in 1969, might have been willing to see the society resume responsibility for the program. It was exceptional enough that the attorney general was communicating with the society about legal aid matters rather than directly with the commission, which after all was responsible. But the society was in no mood to take back a program that the previous government had arbitrarily taken away from it a mere five years before. An essential public service vested in a public body had to be adequately resourced by government. The society, moreover, did not have the necessary resources to play an active role, nor was there any question of abolishing the commission and vesting its powers in the society. That would have had the effect of turning the clock back to the very beginning. The legal aid committee gradually became moribund through the 1980s, only to be revived in 1991 in response to a crisis. In May 1991 legal aid lawyers in metropolitan Halifax, where the commission did not provide duty counsel as off-hours’ cover, went on a work-to-rule strike, withdrawing their services from all but existing clients.20 Three months later, an accused who had been unable to retain a legal aid lawyer to represent him was acquitted in Provincial Court of a charge of impaired driving on the grounds that his Charter 10(b) right to counsel had been breached. The Crown successfully appealed the decision in R. v. Prosper to the Nova Scotia Court of Appeal,21 but in 1994 the Supreme Court of Canada reinstated the acquittal.22 According to its inaugural annual report, the new legal aid committee “was reconstituted this year [1991] because of the view of many lawyers that the society should take an interest in the delivery of legal aid services in the province. The society was very involved in the deliberations that led to the creation of Nova Scotia Legal Aid in the early 1970s [1972] but in recent years its role had been allowed to diminish.”23 The elephant in the room was that the society did not have any continuing obligations to the public in the field of legal aid. Assumptions to the contrary, they had ended in 1977. In 1993 the committee passed, and council approved, a resolution recommending the establishment of a duty counsel system in Nova Scotia; nothing came of it.24 The legal aid committee expired – again – in 1996. Its swansong was the legal aid review project, established in December 1995, apparently at the committee’s behest, and headed by its chair; the review team included the society’s executive director. Neither the review’s terms of reference, nor any of its thirty recommendations, nor the society’s own

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submission envisaged any role for the society in the provision of legal aid.25 A partial revival occurred in 2002 when the access to justice committee was established and given a mandate that included assisting with “developing and maintaining a strong legal aid program.”26 The rediscovery of its legal aid heritage was part and parcel of the society’s graduated response to the report of the Marshall Inquiry, which helped to refocus attention on the society’s social responsibility as an aspect of serving the public interest. Apart from Marshall, nothing so well defined the society in the second half of the twentieth century as the rise and fall of legal aid. Inaugurated during the heady postwar years when everything seemed possible, legal aid exemplified council’s assertion in 2000: “commitment to public service has been an important part of the history of the Nova Scotia Barristers’ Society.”27 Legal aid was the first and for long the only practical articulation of that commitment. The early 1950s also saw the society begin to emerge, however tentatively, from its Halifax cocoon. The sense of estrangement and alienation among lawyers at the greatest distance from Halifax was pronounced. Cape Breton Island had its own regional association, as did the western mainland counties, but county barristers’ associations did not begin to appear until the late 1960s. Just as Halifax was the capital of the province’s legal profession, so too was it by regulation the “permanent seat” of the society.28 As early as 1936 this centre–periphery dissociation led lawyers in the Annapolis Valley and on the South Shore 29 to establish the Western Counties Barristers’ Association. It was a hard lesson that barristers on Cape Breton Island had learned thirty years before: in order to safeguard their right to equal treatment by the society, lawyers outside the greater Halifax area had to organize for collective action to protect their interests. Though from the beginning the Western Counties Barristers’ Association advocated tirelessly for annual meetings outside and presidents from elsewhere than Halifax, matters did not improve overnight. In 1950 Yarmouth lawyer Irving Pink observed, “we outside of Halifax feel on the outside of the society, as our many requests for the annual meeting to be held outside of Halifax have been refused.”30 In 1951, however, for the first time in the society’s history, the annual meeting took place elsewhere31 – at the Hackmatack Inn in touristy Chester on the South Shore. Excepting only 1971 and 1993, the annual meeting would continue to be held elsewhere than Halifax until the 2000s. The 1993 annual meeting as originally planned fell victim to the fiscal crisis, some members feeling that

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resort-meetings “are elitist and too expensive.”32 The more fundamental problem was whether the annual meeting satisfactorily served the purpose intended by the regulations, which was to transact business. No sooner had the annual meeting begun to take place at resort hotels than social events, which hitherto had been confined to the annual dinner, began to intrude. Forty years later the society’s executive director was advocating a return to the original concept: the annual meeting should serve a serious purpose rather than a frivolous one.33 In 1952 council’s first meeting outside Halifax was held in Sydney. A proposal to alternate Halifax presidents with non-Halifax ones was promoted by country members but defeated.34 Finally, in 1955, Peter Lorimer Judge, formerly a partner in the Yarmouth firm where Irving Pink began his career, became president.35 Judge had been elected country vice-president in 1949 and again in 1953 and in 1954 first vice-president. His election to the presidency the following year was the first occasion on which the modern concept of the succession of officers was applied.36 The quid pro quo was that no “country” vice-president was elected that year; both of the vice-presidents were Halifax barristers, who duly succeeded Judge. Judge’s ascension to the presidency did not inaugurate the practice of alternating presidents between Halifax and elsewhere, nor did it bring about automatic vice-presidential succession to the presidency. In 1960 the BSA was amended to provide that either the president or one of the vice-presidents had to reside outside Halifax County.37 Thenceforth, a president from outside Halifax would usually be elected every second or third year.38 Nevertheless, more than half of the presidents who followed in the fifty years after Peter Judge were from metropolitan Halifax. For most of that time the first vice-president was considered to be the vice-president and was more or less assured of succeeding as president. The “country” vice-president, on the other hand – the spare or alternate – had no assurance of succeeding as first vice-president and sometimes did not. That situation remained unchanged until 2004 when the Legal Profession Act provided that the second vice-president succeed the first vice-president and the first vice-president the president.39 Decisions affecting the society continued to be made by the Halifaxdominated council, whose majority out-of-town members rarely if ever attended the monthly meetings (“The president stated that it was almost impossible to get any of the outside members of council to attend the council meetings during the year”40). The centre of gravity remained where

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it had always been. As for Irving Pink, he became honorary president of the society. Three of his sons became lawyers, and all located to Halifax, where they achieved conspicuous success. The continuing migration of ambitious and talented young “country” lawyers from home to Halifax highlighted the problem. Feelings of alienation among lawyers outside Halifax persisted. As late as 1972 the outgoing president, a prominent Halifax qC, observed in his report to the annual meeting, “I have been troubled by a feeling that seems to exist that the bar of the province is divided into two parts [town and country]. I do not think that this is a reality, but nevertheless every effort should be made to make all members feel that they are equal members of the society.”41 Council’s half-hearted outreach to the bar in the rest of the province heightened dissatisfaction among country members and ultimately led to a significant reorganization. The matter was first raised at the 1958 annual meeting by Halifax lawyer R.A. Kanigsberg. According to press reports, “several counties … were never represented at council and he [Mr Kanigsberg] felt that zones should be considered, rather than inflexible county representation.”42 The issue of council membership and attendance at annual meetings had bedevilled the society from the earliest days of self-regulation; no member of council from outside Halifax had ever been elected other than (since 1904) the county representatives. The 1959 annual meeting decided to replace the county system with one of proportional regional representation.43 The eighteen counties, Halifax only excepted, became five multi-county districts: district 1 Cape Breton Island (Cape Breton, Inverness, Richmond, and Victoria counties) – five members; district 2 (Antigonish, Guysborough, and Pictou counties) – three members; district 3 (Halifax County) – nine members; district 4 (Hants, Colchester, and Cumberland counties) – three members; and district 5 (Lunenburg, Queens, Shelburne, Yarmouth, Digby, Annapolis, and Kings counties) – five members.44 Halifax County and Cape Breton Island, which together accounted for 59 per cent of practising lawyers, increased their representation at the expense of the rest of the province, especially the Annapolis Valley and south and southwestern Nova Scotia. Equal representation outside Halifax and Cape Breton counties, which had been the rule since 1904, disappeared. Council increased by one member, while the secretary-treasurer was removed and the immediate past-president added. The rationale for excluding the secretary-treasurer was that since 1954 the post had been filled by a non-lawyer.45

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Representative government was not democratic government, nor was the governing body intended to be representative of the governed. Council may have been a legislature, but it was not accountable or answerable to the membership that elected it. The essence of the polity was responsibility for, not responsibility to: public rather than professional accountability. The society was still forty years away from a council wholly elected by the membership rather than by those members attending the annual meeting. Halifax hegemony persisted, the metropolitan county having more and more active members than any of the other districts. As if to reinforce the point, in 1969 Halifax was given two more, bringing it to eleven, almost half the membership of council.46 Arguably, of course, that simply reflected the demographic of the profession. Finally, in 1977, the work of reconstituting the council was resumed.47 There were to be thirty-four members elected by district, as well as eight members-at-large, elected by the whole bar regardless of where resident.48 The members-at-large were to be complemented by “not more than five persons, who are not members of the society, and who may be appointed by the council on which they will serve.” Though the 1976 annual meeting had strongly supported a resolution to that effect,49 immense reluctance on the part of successive councils to appoint lay members meant that action was deferred for nine years. As late as 1982 the nominating committee presented council with an “exhaustive study” of the subject in which it recommended against appointing lay members; council concurred with the recommendation. It took nothing less than a presidential canvass of delegates to the annual meeting of the Federation of Law Societies of Canada in August 1984 to set the ball rolling. By then it appeared that most law societies already had lay benchers and were “happy with them.”50 Two lay members were appointed in 1985.51 One wonders whether the president’s hailing of 1984–85 “as the beginning of a major transition for the Nova Scotia Barristers’ Society”52 referred to the appointment of lay members to council. It was a belated but nevertheless symbolically important step, engaging directly with the public interest, which it was the society’s obligation to protect.53 Lay members of council were subsequently styled “public representatives.” Council’s increasing size and unwieldiness was also creating governance problems. The larger it became, the less efficient it was. It was assumed that the larger the bar, the larger the governing body had to be. That was a false assumption but a very old one that had become a tradition taking root

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especially among lawyers outside metropolitan Halifax. Size undermined efficiency, which in turn undermined effectiveness. Having begun a century earlier with seven members, by the 1990s council had ballooned to 48 – the largest number of benchers of any law society in the country, governing one of the country’s smaller legal professions. Economies of scale were needed. It was, moreover, possible to be representative without being too big to work. Yet the very idea of reducing council membership provoked the fears of Halifax hegemony that had so convulsed the society throughout the long struggle for self-regulation and persisted long afterwards. Any reductions that might be made would not come at the expense of the Halifax district, where most of the province’s lawyers and its premier law firms were situated. The proposal by the 1993 ad hoc committee to review society programs to reduce council membership to thirty proved so controversial that council took the extreme step of prohibiting discussion of it. The survey of lawyer attitudes toward law societies conducted by Canadian Lawyer that year revealed that in Nova Scotia “the only ongoing issue” was the composition of council.54 Despite the promise of direct election, the nominating committee still put forward a slate of candidates for council, which was routinely rubber-stamped by the annual meeting. While members of council generally favoured retaining the status quo, the situation was continuing to deteriorate. For all practical purposes, the governing body’s work was being done by the executive committee and the society’s senior staff. In July 2000 Craig Garson, the new president (not to mention the first democratically elected one), wrote, “It has been six years since we have taken a hard look at how we govern ourselves. Last September … council voted to reduce its own size by a third – but more needs to be done. What may have been right six years ago may not be right today – or tomorrow.”55 But there was no backtracking. Legislation later that year eliminated the regional districts, replacing them with the four judicial districts into which the province had been divided by the Court Reform Act, 1992,56 and eliminated the members-at-large – for a total of 21. The six ex officio members remained, while the lay representatives were reduced from five to three.57 The 1977 amendments to the BSA did not address reforming the antediluvian method of “electing” the officers of the society. Like members of council, the candidates were put forward by the nominating committee (appointed by the president), whose report was invariably rubber-stamped. By then it was customary that the second vice-president should succeed

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the first vice-president when the latter became president. But custom was sometimes more honoured in the breach than the observance. In 1978 both of the vice-presidents had to be replaced; no records survive, so we know not why or how it was done, though only the executive committee had the clout to engineer it. In 1982 the first vice-president was appointed a justice of the Supreme Court and was succeeded not by the second vice-president but by a member-at-large of council. More of the same was to follow. A week after being elected at the annual meeting in June 1990, the new president stepped down, having accepted appointment to the Supreme Court. The first vice-president (and acting president) became president, but no such courtesy was shown the second vice-president – a legal aid lawyer from out of town. In an apparent effort to block his succession, council filled the vacancy with a senior partner in Halifax’s premier law firm. To add insult to injury, one of the three members of the nominating committee was a past-president of the society who was a senior partner in the same firm. A similar situation arose in August 1991 when the newly elected first vice-president was kicked upstairs to the bench and another lawyer parachuted into the post. The moral claim of the second vice-president (a woman) to become first vice-president was ignored.58 The nominating committee was understandably reluctant to shed its power to choose the members of the executive committee. In 1992, however, the BSA was amended to empower the council to make regulations for “the election and appointment of the council.”59 This cleared the way for eliminating the anomaly whereby the officers of the society were in effect appointed while members of council were elected. In 1993 regulations were enacted providing for the direct election by the membership of the second vice-president. Nothing happened. Finally, in 1998, a second vice-president elected by the membership became first vice-president the following year and president the year after that. The autocracy of the nominating committee was trimmed; choosing the officers of the society would be up to the membership.60 The late twentieth century saw the resurgence of an old problem. As far back as 1959 “encroachments on professional business” had become so great a source of concern that in April the ad hoc committee to study alleged encroachments became a permanent standing committee. The rationale for taking such a step was that the public interest would be better protected against encroachers if the public at large were better informed about how important it was that legal work be done by lawyers.61 It had been reported to council that mortgages were being drafted by bank and finance company

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employees who were also executing deed transfers, conducting title searches, and probating wills.62 Registrars of deeds were conveyancing and magistrates drafting wills. Clearly, the 1944 legislation defining the practice of law lacked teeth or was not being enforced. Though the Summary Convictions Act applied to violations of the BSA, no proceeding thereunder could take place without the approval of the attorney general, nor could he give his approval “if in his opinion the circumstances existing in any case are such as to render compliance with this act impossible, unreasonable or oppressive.”63 The bar for exercising prosecutorial discretion was set very high. Recommending to the 1959 annual meeting that council establish a permanent committee to monitor encroachments, a prominent Halifax lawyer observed, “If we enjoy a monopoly, it is designed for no other reason but to protect the public.”64 Another prominent Halifax lawyer (and the incoming president) pointed out that the society had an obligation to educate the public as to the necessity for professional legal services. Yet little changed. By spring 1972, shortly after the unauthorized practices committee had been set up to deal with the problem, “the situation of lay people doing legal work throughout the province” was being described as “a prevalent custom.”65 The society was willing to assume some of the blame for poor public relations. Though public legal education lay in the future, the acceptance of the need for better communication with the general public led to the revival in 1959 of the society’s public relations committee. In 1963 the society retained a public relations firm, which provided the services of a professional media adviser to handle communications and issued its first press release.66 The effect was immediate and positive, but the momentum could not be sustained. Traditionalists who considered lawyers themselves the chief and only protectors of the public interest in the practice of law saw no need to defend their actions or views in the court of public opinion. Paternalism and patriarchy were the rule. The contract with Oceanways Limited was not renewed, and the society fell back into attempting to manage its own communications. Therein lay the problem, which would only grow worse as the years passed. A public relations plan approved in principle by council in 1980 was never implemented. Despite poor and deteriorating “Pr,” the society did not again retain a media relations consultant until 1990 in an effort to finesse its reaction to the Marshall Inquiry report.67 The post of director of communications recommended by the 1993 administrative review did not materialize, though in 1990 a communications committee

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was set up that included among its terms of reference media relations. It was not until 1997 that a communications officer was appointed. Raising public awareness of the positive role of lawyers in society and of the law society as public interest protector remained a constant challenge. By the 1960s discipline and liability issues were again coming to the fore. Discussion at the annual meeting in 1962 “centred on the powers of the society to investigate the affairs of a barrister against whom complaints had been made by members of the public or other barristers and to take remedial action.”68 As early as 1950 the society’s solicitor had warned council, “the number of complaints now being received against members of this society has reached a serious stage which requires a diligent study by the council for the protection of the public and the name of the society.”69 The discipline committee was concerned enough that the annual meeting that year voted an annual fund of $1,000 “to make good defalcations by any member of the society with the defaulting member being suspended until repayment to the society.”70 Not only was the fund too small, however, but council was extremely reluctant to make client compensation payments from it. As one prominent out-of-town lawyer (and future president) observed, “We should have a broader point of view. We are trying to clean up the society. We should lean over backwards to re-establish ourselves in the public eye.”71 Setting up a client compensation fund, however small, was the lesser of two evils; the greater was bonding. In 1940 the society had rejected a proposal to require all practising barristers to be bonded and to keep separate trust accounts accompanied by regular inspection of them in favour of “aggressive” discipline against defaulters and defalcators.72 Bonding was again under consideration at the annual meetings in 1950 and 1951, but no decision was reached; there was, however, general agreement that an indemnification fund was the bare minimum required to protect the public interest. At the annual meeting in 1951, the president posed the question of whether practising lawyers, on pain of a finding of professional misconduct, should not be required to maintain separate trust accounts. So distasteful did members find the proposal that a motion passed that the matter not be discussed again for six years. The 1952 regulations authorized council to establish a contingency fund “to reimburse persons who have sustained loss from the misappropriation of moneys by solicitors.”73 No such fund was established, however, perhaps because of the draconian conditions imposed: no payment could be made

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unless the defaulting solicitor had first been disbarred. Finally, in 1958 the BSA was amended to establish a reimbursement fund to compensate “in whole or in part persons sustaining pecuniary loss by reason of the misappropriation or conversion of money or other property entrusted to or received in his professional capacity by any member of the society practising in the province.”74 Given that the fund was to be financed solely by revenue from investment of member annual fees, the question arose as to whether the society could meet its commitments if a substantial claim were approved for payment. It soon became clear that a client indemnification fund without lawyer indemnity insurance was not viable. Chronic shortfalls in the reimbursement fund inevitably led to mandatory liability insurance. In 1970 the BSA was amended to authorize council to create a professional liability claims fund financed by an annual levy on every practising lawyer.75 Though several insurance schemes had been considered and tried over the years, by then most lawyers carried private professional liability insurance. In 1970 the society retained its own insurers, and in 1971 liability insurance became mandatory for all practising lawyers. Finally, in 1980, the professional liability claims fund was established, and in 1988 the society became a charter member of the Canadian Lawyers Insurance Association. In 1990 the fund was renamed the Nova Scotia Barristers’ Liability Claims Fund and re-established as an arm’s-length corporation with directors appointed by council.76 The 1962 annual meeting saw a recent former president of the society present this far-reaching resolution: whErEAS the society recognizes its responsibility for assistance in maintaining the high standards of the profession and its good relations with the public which it serves, and notes with pleasure that during this past year there have been no occasions for disciplinary action against a member of the society and no claims against the society’s reimbursement fund. AND whErEAS it is desirable, nevertheless, to continue to review and, if necessary, strengthen the regulations of the society respecting discipline and respecting protection of persons who may in rare instances be affected by the inefficiency or defalcation by a member of the society. BE it rESOLvED thAt the incoming council inquire into, report upon, and take such action as it deems fit in the following matters:

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1. The adequacy and suitability of the Barristers and Solicitors Act relating to the reimbursement fund and the regulations made thereunder; 2. The desirability of extending in Nova Scotia the practice in many provinces of arranging either ‘spot audits’ of or requiring auditors’ certificates from practising solicitors to assist them in maintaining proper trust accounts and adequate accounting practices; 3. The adequacy of liability insurance policies to which most lawyers subscribe and also the possibility of supplementing the society’s reimbursement fund by some form of insurance; 4. The desirability of amending the act and regulations so as to ensure that, when a solicitor dies, or becomes incapacitated or is disbarred, his practice is properly wound up and settled in the interest of his clients.77 The resolution was a charter for the future, but it also addressed various matters on which action could no longer be deferred. In 1963 regulations were enacted dealing with trust accounts and the investigation of misappropriation further to a complaint. So controversial were these regulations, however, that council was divided and they had to be moderated. As the outgoing president reflected sadly in his annual report, “It is perhaps unfortunately significant that the discipline committee found it necessary to consider action under the new regulations against a member of the society at its first meeting held after the passing of the regulations.”78 The 1964 annual meeting revisited the thorny and divisive issue of spot audits of lawyer trust accounts and whether lawyers should be bonded.79 The chair of the discipline committee came down firmly on the side of action to safeguard the public interest: “lawyers owe it to the public to have certificates of financial responsibility such as personal bonding.”80 In 1965 the BSA was amended to empower council to enact regulations respecting “the accounts to be kept by barristers, investigation of the accounts and financial records of barristers, and the financial responsibility and bonding of barristers.”81 The experience of the preceding twenty-five years had shown that discipline alone, however aggressively pursued, did not work. Such measures were reactive and remedial rather than pre-emptive or deterrent. Effective policing in the form of crime prevention was required. Yet opposition persisted to the discipline committee’s launching pre-emptive strikes

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against suspected defaulters. Finally, in 1976, council approved random audits of lawyer trust accounts, but implementation of the measure was indefinitely postponed. In 1965 the outgoing president suggested that a general meeting in addition to the annual be held during the year to discuss matters of concern that could not be adequately or appropriately dealt with at the annual business meeting.82 The idea had traction; the biannual meeting – usually held in late autumn or early winter – immediately became, and remained until 1993, a fixed feature of the society’s outreach to its members. The first such gathering, which took place in December 1965, heard the chair of the discipline committee outline “several instances over the last four months where the committee had heard complaints of professional malpractice.”83 It was feared that a recent “rash of defalcations,” one of which led to a criminal conviction and disbarment, had shaken public confidence in the honesty of lawyers. A prominent out-of-towner (and future president) warned that if the society did not put its own house in order, the government would do it for them, taking it over and turning lawyers into paid servants of the state, like physicians. The meeting passed a resolution that council take the necessary action to enforce spot audits of trust accounts by chartered accountants retained by the society, require practising lawyers to file annually an auditor’s certificate as a condition of receiving a certificate, and raise the annual fee in order to top up the reimbursement fund. The fee rose to an astounding eighty dollars a year, fully half of which was to go toward replenishing the reimbursement fund.84 Though the society could sue lawyers to recover client claims against them paid out of the fund,85 that was not done; by the mid-1960s the scheme was severely underfunded. In 1966 the annual levy increased fourfold, while cancellation of the fund’s insurance coverage in 1966 led to imposition of a cap on claim compensation.86 Council appointed a committee to study the resolution from the 1965 biannual meeting but otherwise took no action. Discipline’s “difficult year” was still reverberating at the annual meeting in July 1966 when the chair of the public relations committee observed in his annual report, “The society has probably received the poorest publicity during this period than [sic] it has for many years through the Ignatius Kennedy affair, and the defalcations of society members.”87 A resolution passed, asking council to enact regulations compelling lawyers to keep separate accounts of any trust properties administered and have their account books available for “spot”

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auditing. No lawyer would receive a practising certificate without first providing an auditor’s certificate or submitting a declaration to the effect that he administered no trust properties. Some attendees took umbrage, pointing out that honest lawyers were being tarred with the same brush as dishonest ones; a large majority, however, agreed with the outgoing president’s observation: “history would establish most defalcations had occurred with people who failed to keep proper records.”88 It was simply a matter of ensuring that lawyers with trust accounts did not neglect good and timely record-keeping. By 1972 a justice of the appeal court who had been president of the society when establishing the reimbursement fund was under consideration was warning the biannual meeting that lack of accountability could endanger the society’s independence.89 The old outlook, according to which lawyers policed themselves and the society need only step in when a lawyer failed to do so, came under pressure in the decades following the Second World War as the bar began to expand geometrically and defalcations mounted. The society was slow to shift its emphasis from compensating clients to preventing defalcations. By the late 1960s, despite its inherently conservative culture, the society was flexing its muscles and spreading its wings; it was prepared to look at new ways of doing new things. In April 1969 the Law Foundation of British Columbia was formed with a view to financing renewal of the legal profession through revenue generated by “Interest on Lawyers Trust Accounts” (iOLtA). The concept was not new, but it was radical enough to raise eyebrows in the Nova Scotia legislature. In April 1970, despite its having been drafted by the society’s solicitor, Attorney General Donahoe declined to introduce Bill No. 66 to establish a law foundation except as a private member. After a rough ride through the committee on law amendments, of which the attorney general was ex officio chair, the bill was unanimously given the three-month hoist. Committee members apparently feared that lawyers would rebel against the society’s appropriating for its own purposes the interest accruing on client trust funds deposited in chartered banks. The Nova Scotia Barristers’ Society was only the second law society in Canada to attempt to set up a law foundation. In 1976 the Law Foundation of Nova Scotia finally became a reality.90 In 1971, after some twenty years’ peregrinating among remote country inns, the annual meeting returned to Halifax to celebrate the christening of the new Halifax law courts. It was an achievement for which the society had been tirelessly advocating since 1954 when the annual meeting went on

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record as favouring the building of new premises for the Supreme Court and the County Court. Council also set up a special court house committee, which recommended the site that was ultimately selected (“ferry plaza”). Perched upon an elevated terrace on Halifax’s harbourfront, forty years later it remains a strikingly eerie venue. One feels above the clouds – as if the scales of justice were so perfectly celestially balanced as to be removed from human experience altogether. The society erected a fountain in the forecourt, alas now long gone.91 Tradition and expediency dictated that both the Barristers’ Library and the society’s offices be accommodated in the new law courts. In 2016 the library remained there, though the offices had long since relocated. The opening of the law courts was the centrepiece of the first annual Atlantic Provinces Law Conference during which all four regional law societies held their annual meetings. Premier Gerald Regan (a lawyer himself ) used the occasion to promote his vision of a legal “Atlantic Union” – regional free trade in law.92 The idea was not new, but neither then nor later did it have any traction.93 It also heralded a growing political distance between the society and the new Liberal government, elected in October 1970. By far the most prominent Conservative in the upper echelons of the society was the premier whom Regan had defeated, George Isaac (Ike) Smith, who became second vice-president in 1974 after retiring from provincial politics. The partisan tone had been set at the historic annual meeting in July 1971, which the president opened by extending “a very warm welcome” to the ex-premier, “which was greeted with thunderous applause.”94 Earlier that year Smith had stepped down as leader of the Progressive Conservative Party. For much of the eight-year Regan premiership, the society had to look on in embarrassed silence while their legislative initiatives were routinely ignored. As if to reinforce the point, the speaker at the annual dinner inaugurating Smith’s presidential year, 1976–77, was none other than Robert Stanfield, MP, until recently leader of the federal Progressive Conservative Party and Smith’s predecessor as premier of Nova Scotia. In a rousing, quasi-political speech, Stanfield went out of his way to criticize an influential provincial Liberal cabinet minister (who was not a lawyer) for observing that there were too many lawyers in the provincial legislature.95 The society did not have a good working relationship with the Regan government, which lasted until 1978.96 The high political profile of Ike Smith – he became a senator in 1975 while first vice-president – could not have helped matters;

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indeed, it made council appear more one-sidedly partisan than it actually was.97 Yet the most significant pieces of legislation affecting the society – the 1971 Legal Aid Planning Act and the 1977 Legal Aid Act – did not originate with the society but with Attorney General Pace. Though the BSA remained largely unamended from 1971 to 1976, the Regan government was more receptive to the law foundation concept than the Smith government had been. It is unlikely to have been mere coincidence that the bill to establish the law foundation finally passed in 1976 when the president of the society was a prominent and partisan Liberal, J. William E. Mingo, who had just become national treasurer of the Liberal Party.98 In March 1973 a small-town lawyer against whom a complaint had been lodged but dismissed on investigation published an article in the student magazine of Dalhousie Law School in which he denounced the discipline committee as a “kangaroo court,” the procedure of which defied the principles of natural justice.99 He then proceeded to sue both the client-complainant and the society for malicious prosecution, alleging conspiracy to harm. According to the minutes of the annual meeting that year, [a]n unprecedented situation of having the society as a defendant in a civil action was reported by the president … [A] practising barrister from Amherst has commenced action through his solicitor against an insurance company and the society. He is claiming that because of the discipline proceedings involving him a year or so ago he has suffered damage to his business and professional reputation, and is claiming compensation therefor. The society’s solicitor … disqualified himself as he had been involved in the disciplinary action, and the society has engaged the services of R.A. Kanigsberg, Q.C.100 At trial, plaintiff maintained that his former client had neither grounds to complain nor the discipline committee reason to investigate the complaint. The court ruled that the society could not be sued for malicious prosecution for any proceeding by the discipline committee and dismissed the suit with costs. The discipline committee was an administrative tribunal that exercised statutory powers, so there was no question of abuse of process.101 Matters had come to a head during the society’s biannual meeting in November 1972 at which the lawyer concerned entered motion after

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motion condemning discipline committee procedure, which were either disallowed or defeated.102 Even the society’s solicitor, however, had to acknowledge that imputations “were being made from [by] some members at this meeting that the discipline committee was not carrying on its function in a proper manner.” A motion was made and passed “that the council be directed forthwith to fully examine and review the regulations and procedures of the discipline committee, and to make such changes therein that are considered advisable.” Not since the 1951 annual meeting, when abolition of law office training as a path to the law was rejected, had the annual meeting delivered such a stern rebuke to the governing body. Though the society prevailed at trial and no appeal ensued, council accepted that something had to be done lest confidence in the discipline process be further eroded. Accordingly, a fundamental restructuring of the discipline committee, confirmed by amendments to the BSA in 1977, took place almost immediately.103 The number of members was increased from six to twelve and the committee divided into two subcommittees. Both exercised all the powers of the discipline committee, but they alternated investigative and adjudicative functions; one subcommittee investigated the complaint and, in its discretion, laid a charge, while the other conducted the formal hearing if a charge were laid. Discipline committee members continued to be appointed from among council until 1983 when membership was thrown open to any member of the society104 (council retained its power of appointment). Though the Supreme Court had long since relinquished any first-instance role in discipline proceedings, new subsection 32(13) of the BSA spelled out the scope of “intervention” – judicial review, in other words – by the appeal division. The appeal court could interpose itself at any point in a discipline proceeding on an ex parte application from the subject of the investigation, an officer of the society, or a member of either discipline subcommittee. This provision remedied a serious lacuna in the law – whether proceedings of the discipline committee as a body with adjudicative powers were reviewable by the appeal court – but the subsequent exercise of the jurisdiction was conspicuously restrained. No such intervention was ever undertaken except by the subject of the investigation, and in all cases the court found for the respondent.105 In 1974 there was more litigation, though unrelated to discipline. Both the society and the attorney general intervened in an action by a member of council against a provincial magistrate who had refused to allow him to appear ungowned in his court (“The issues raised by this application

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are of such importance that the attorney general and the Nova Scotia Barristers’ Society sought permission to be heard as friends of the court, and this permission was granted”).106 The judge concerned had sought to compel the county bar to gown in his court, and the debate went on for some time. The situation became very difficult and unpleasant, even to the point of threats by the judge that clients of non-complying lawyers would suffer (for example, no adjournments to accommodate local fishermen) if they refused to gown. The society’s 1973 annual meeting supported the traditional practice of not gowning in provincial magistrate’s court, unanimously adopting a resolution “that barristers appearing before any magistrate in any county in the province not be required to gown.”107 Barristers in Queens County had gone along with the judge’s wishes, but the lawyer concerned had not. One day he appeared in court properly dressed – but not gowned. The judge asked him whether he wanted time to gown and he replied, “No, your honour.” The judge then ordered him to gown and adjourned the case to another day for that purpose. This led to an action in the Supreme Court in which the plaintiff lawyer was successful, the court holding that gowning and its associated traditions were the prerogative of the bar, not the court. While the courts might well have jurisdiction to enforce standards of decency and decorum in extreme cases of abuse, that was not the situation before the court, and thus the traditions of the bar were upheld. The defendant judge filed notice of appeal, but it did not proceed. Despite the attention focused on discipline and liability, the issue dominating the society at the end of the 1970s was lawyer advertising, a delicate topic that seemed to raise hackles everywhere. The society had no regulations on advertising because none were needed; since 1944 the BSA had banned “soliciting” and “canvassing” on pain of prosecution under the Summary Convictions Act. But times were changing; the profession of law was becoming a highly competitive business. Traditionally, however, advertising was beyond the pale. Lawyers could self-identify in order to facilitate contact and communication with prospective clients; information-sharing of this nature was clearly in the public interest and unexceptional. Drawing attention to services available from lawyers, such as money-lending or debt collection, a staple of legal business in the late nineteenth and early twentieth centuries, was accepted because there was no official determination of the scope of what quasi- or non-legal work lawyers might undertake. Lawyers and lawyers alone decided what the practice of

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law was by what they did as part of it. That all changed in 1944 when the activities of non-lawyers doing what lawyers considered to be legal work were expanding to an unacceptable degree. Perhaps it was no coincidence that the same amendments to the BSA that defined the practice of law also banned advertising. The Canadian Bar Association’s Code of Professional Conduct (1974),108 which the society adopted, dealt with advertising under the rubric “making legal services available.” The CBA rule read, “Lawyers should make services available to the public in an efficient and convenient manner which will command respect and confidence and by means which are compatible with the integrity, independence and effectiveness of the profession.”109 Advertising had been before council as early as April 1939 when the president drew attention to a lawyer advertising in a local newspaper. “It was decided to write the barrister in question that such advertising is not in line with the best form of legal ethics.”110 The matter was again before council in March 1963: The president drew the attention of council to a need for clarification of the position of members of the society in connection with advertising. There had been instances of public announcements and solicitation which were beyond the normal use of professional cards. During discussion it was noted that it was considered unethical and not dignified to conduct business advertising, that our members were conducting a public service and announcements should be limited. It was agreed that the matter would be considered further by council to provide guidance for the members of the society.111 Further consideration resulted in the enactment of “rules respecting advertising and soliciting,” which were printed in the 1964 regulations112 – they were not advertising regulations in the strict sense, which were hardly needed given that the statute spoke loud and clear on the subject. There the matter rested for the next thirteen years, during which time the status quo remained undisturbed. Early in 1977 the unauthorized practices committee, whose usual brief was lay persons doing legal work, was tasked with studying the question of advertising in the legal profession throughout Canada. The findings of the committee member who conducted the study, L.K. (Larry) Evans, a young lawyer from Port Hawkesbury, were published verbatim in the society’s annual report for 1976–77.

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The next shot across the society’s bow was fired when the president of the CBA, addressing the 1977 annual meeting, posed “the question whether the present ban on advertisement by the legal profession best serves the public interest.”113 Even Boyd Ferris himself, however, who practised in Vancouver, seemed in two minds about lifting the ban, concerned that regulatory action might do more harm than good. Ultimately, advertising was a matter of professional culture, and it was up to the profession as a whole to decide whether lawyer advertising would undermine the honour and discipline of the bar.114 In May 1978 a two-day public forum on lawyer advertising, sponsored by the CBA in collaboration with the Federation of Law Societies of Canada, was held in Toronto; the society sent three delegates – the executive director and the vice-chair of the public relations committee, while Larry Evans participated as a panelist.115 The society’s 1978 annual meeting heard the incoming president predict that lawyer advertising would be “the most topical issue the society will have to deal with during the coming year.” It raised the question of whether law societies “should have any rules regarding advertising by their members or suggested fee scales. In making the public aware of the services available, some system has to be worked out that will be of service to the public as well as being acceptable to our members and meeting reasonable standards of professionalism.”116 The unauthorized practices committee, of which Evans was a member, was tasked with preparing a report with recommendations for presentation to the biannual meeting in February 1979.117 The committee’s report recommended an end to advertising as an unauthorized practice, but consensus could not be achieved; powerful vested interests were opposed.118 Nothing was done except to call a special meeting on advertising two months hence with a view to breaking the deadlock; the report was ordered circulated to all members.119 Exasperated, the chair of the reporting committee declared, “It would seem to me that the society would be able to better deal with the situation if lawyers could know the limits allowed them, instead of having to rely on the whims of a council.”120 The special meeting in April 1979 agreed to broaden the scope of informational advertising, limiting it to print media, but did not agree to advertising either preferred-practice areas or fees. A special committee on advertising was struck to study developments in other jurisdictions and ascertain the views of Nova Scotia lawyers on the subject.121 By 1980 lawyer advertising was being described as a matter of “legitimate public concern.”122 For example, should lawyers

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be allowed to publicize areas of practice specialization? Divergent views existed on whether doing so would improve public access to legal services or open the gates to commercialized competition. In March 1980 the new advertising committee tendered a conservative report that urged retention of the status quo. The straw that broke the camel’s back came in December 1980 when the society charged a young Dartmouth lawyer (called in 1975) with professional misconduct and conduct unbecoming a barrister for violating the BSA’s ban on advertising.123 No such proceeding had ever taken place before, and it triggered a special meeting of council to deal with the advertising issue. Council would not permit posting fee schedules but agreed that preferred areas of practice might be designated, the areas to be determined and approved by council.124 The advertising committee was tasked with preparing a report and recommendations for preferred-area advertising, which went before the biannual meeting in February 1981. Preliminary advertising regulations went into effect in April 1981. Finally, in May 1982, council enacted regulations authorizing advertising in general and fee advertising and also dealing with firm names and preferred areas of practice.125 Nova Scotia was the fifth jurisdiction to do so – after Alberta, British Columbia, Ontario, and Manitoba.126 Three months later, in Jabour v. Law Society of British Columbia, the Supreme Court of Canada settled the law by deciding that law societies could regulate lawyer advertising.127 Advertising ceased to be a discipline matter when law societies recognized that it benefited the public interest without encouraging unfair competition among lawyers. In 1990 the society’s new code of ethics128 devoted a chapter to “seeking business,” which was inclusively defined as “advertising, making public appearances, being interviewed, circulating literature or directly or indirectly initiating contacts with a party with the aim of attracting legal work.”129 The approach was to prohibit what was unacceptable rather than recite what was acceptable, which would not have been practicable given the already rapid pace at which information and communications technology and public relations were evolving. According to the rule, “A lawyer has a duty not to seek business in a manner that (a) is inconsistent with the public interest; (b) detracts from the integrity and dignity of the profession; or (c) does not comply with the regulations or rulings of the society.” The rule was further elaborated in a series of seven “guiding principles” together with a “commentary” on public accessibility to legal

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services and constraints on seeking business. The quiet resolution of the years-long advertising controversy in 1981–82 neither required nor resulted in any amendment of the BSA. Inevitably, such was not the case with discipline and related or contingent matters. A 1979 amendment130 provided for the custodianship of the practice of lawyers who had abandoned it by choice or necessity. In 1980 miscreant lawyers were given the opportunity to resign from the society – a form of voluntary self-disbarment in anticipation of the likely result of a formal hearing.131 (The same amendment gave the secretary-treasurer, who laid formal complaints on behalf of the society, a deputy with full powers to act.132) By the late 1970s, the number and variety of complaints against lawyers were accelerating. In 1979 council appointed Lloyd Caldwell, a former president, “complaints officer” to vet complaints received and determine whether they were disciplinary in nature and, if so, serious enough to warrant referral to the investigative subcommittee. In his report to the 1980 annual meeting, Caldwell stated that he had met with the secretary-treasurer “once a week to deal with the increasing number of complaints against members of the society. Many of these complaints come from clients who are not satisfied with the work performed by a lawyer, particularly in the area of litigation, but only a small number of these complaints develop into discipline matters.”133 Nevertheless, the number of those that did was relatively high and rising, and they tended to be serious in nature. Few complaints that Caldwell deemed serious enough to merit investigation by a discipline subcommittee failed to advance to a formal hearing. Between 1973 and 1986 the Nova Scotia bar more than doubled in size. There were not perhaps too many lawyers, but there were many more of them. In order to be successful sooner, or remain successful longer, lawyers were ceasing to be general practitioners and becoming specialists in their preferred areas of practice. Generally speaking, the society at the end of the 1970s was a self-assured organization confident that by building more and better lawyers they were protecting the public interest. CBA president Gordon Henderson was not merely talking about information and communications technology when he admonished the 1980 annual meeting that “lawyers must learn to adapt to society’s fast-paced progression.”134 Despite Henderson’s admonition, the 1981 annual meeting heard the incoming president declare himself “basically happy with the direction in which the Barristers’ Society is headed, and perhaps only the emphasis

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will have to change.”135 At the end of his presidential year, the incumbent reiterated that “ensuring professional standards and competence of lawyers is, and will remain, the chief concern of the society.”136 Events later in the decade and beyond would prove that he did not possess the gift of prophecy. Throughout the 1980s times were changing, but the society was not. Inward-looking and almost entirely self-focused, it viewed the public interest as something that the society had the right, if not the obligation, to define. And it was defined narrowly, not rising above an ethical breach or discipline matter. Nor did it embrace social and cultural change in the wider world. The executive committee and council were sometimes ahead of the membership in their thinking, sometimes behind. The decade got off to an inauspicious start. In April 1980 the society disbarred, for having converted client funds to his own use, a prominent Halifax criminal defence lawyer who was about to go on trial for rape. In September a well-connected Halifax journalist published in Canadian Lawyer an article condemning the society’s treatment of the lawyer concerned and other victims of the discipline process.137 Council was incensed and considered that the executive committee should make an equally public response; nothing came of it. Ten years later the same lawyer was in the news again when he applied to the qualifications committee for reinstatement. Council rejected the committee’s report and recommendation that he be reinstated. The whole matter was the more embarrassing in that the lawyer concerned had, during a distinguished ten-year political career, served as speaker of the House of Assembly.138 The 1982 annual meeting refocused attention on protecting clients from negligent or dishonest lawyers. Proposed measures such as bonding and a liability insurance scheme sponsored by the society were designed not only to protect the public but also to protect the profession – lawyers from themselves and from each other. Referring to recent massive defalcations in Alberta, which the Law Society of Alberta could not cover without calling directly on its members, the incoming president commented, “I must emphasize that nothing of that order has happened here.”139 Yet the Alberta situation was so serious that the reimbursement fund committee was investigating the possibility of insuring the fund. Worse was to come. In 1983 the largest defalcation in the society’s history to that time was uncovered, involving nearly a quarter-million dollars.140 The lawyer alleged to have converted client funds to the use of a Halifax brokerage house (behind which he was “the guiding and

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directing force”) was suspended for three months and then disbarred after twenty-one charges against him were laid under the Criminal Code.141 Two years later, he was tried and convicted on eleven counts of fraud, theft, and breach of trust and sentenced to four years in the penitentiary.142 His appeals against conviction and sentence were unsuccessful. As far as the appeal court was aware, “four years is the longest sentence imposed in this province against a professional person for offences of this nature.”143 The material impact on lawyers was not long in coming. In 1984 the annual assessment for the reimbursement fund increased fourfold. Over the next twenty years the frequency and size of lawyer defalcations caused claims against, payouts from, and member contributions to the reimbursement fund to increase commensurately.144 The accused defalcator’s trial was in progress during the society’s annual meeting in 1985 and cast a giant shadow over the proceedings. How best to prevent such situations – stricter bar admission standards; better regulation, oversight and reporting of trust accounts; greater emphasis on continuing professional development; or all three?145 The annual meeting went as far as to contemplate mandatory continuing professional development; twenty-seven years would elapse before that dream became a reality. Interviewed by the press just after taking office, the new president “conceded that not all lawyers agree with the concept of shelling out money for another lawyer’s actions. But ‘if the public gets burned, all lawyers suffer.’”146 A theft of such historic proportions (“we’ve been lucky … we haven’t had a really serious defalcation until now”) focused attention on the number of complaints against lawyers having risen by 30 per cent over the previous year. Bar admission and quality management standards for practitioners were not keeping pace with the rapid growth of the bar and the proliferation of younger lawyers largely if not entirely untrained in ethics and professional responsibility. Lawyers did not have a Hippocratic oath; they were not enjoined to “do no harm.” The likelihood of ethical lapses, especially among unmentored lawyers in small or sole practices, was increasing. Acting on the assumption that lawyers behave dishonestly toward their clients because they are unskilled as to their ethical obligations, the society re-established the legal ethics committee in June 1986. The issue ultimately was how to shake lawyers out of their self-righteous complacency and sense of entitlement. Not everything lawyers did was done in or with regard to the public interest or even the professional interest properly construed. Nor was the society necessarily on the side of

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the angels; the misconduct of individual lawyers tended to reflect on the professional regulator. By the mid-1980s the gene pool from which the society drew its collective leadership was in need of replenishing. In 1986 it seemed as if generational transition might be taking place. That year, at age 37, Lawrence Kenneth (Larry) Evans became the youngest president in the society’s modern history and the first not born or raised in Nova Scotia. Regardless of how one views his meteoric ascent from bar admission to the presidency of the society in thirteen years, by the standards of his time Evans was unique. One would have to go back to the very beginnings of the society in the 1820s to find a chief executive younger than he. Few presidents had been elected with less than twenty or even thirty years at the bar. Evans was not just representative of younger lawyers; he was also without baggage. As an outsider, he was not a product of the system; he was not a graduate of Dalhousie Law School, as many outsiders were. (For example, Dalhousie’s law graduating class of 1972 – the same year Evans graduated law – showed 59 per cent from outside Nova Scotia, most of whom were from outside Atlantic Canada and seven from the west.) A native of Toronto, in 1964 Evans had moved with his family to Saskatchewan, where he graduated from the University of Saskatchewan in arts and law. In 1972 he relocated to Port Hawkesbury, which twenty years earlier had given the society its first woman secretary-treasurer.147 As an intending lawyer from “out West” – Nova Scotia lawyers traditionally travelled in the opposite direction – Evans brought with him new energy and new ways of thinking. Though it was fifteen years since a barrister from Cape Breton Island had been president, Evans was an unusual choice. Not only had he been at the bar a mere thirteen years, but he also lacked a qC (unheard-of for a president). Worse still, he was not a native or returned Cape Bretoner so lacked what mattered most in terms of local credibility – roots – “who’s your father?” He had no personal experience of the tribalism that permeated life there. But in a dozen or so years he succeeded in putting down deep roots. Evans articled in Port Hawkesbury at the law firm of Doucet, Davidson & Kelly (now Evans MacIsaac MacMillan). The senior partner, Gerald Doucet, had been an influential provincial cabinet minister under premiers Stanfield and Smith and an unsuccessful candidate at the 1971 convention that elected John M. Buchanan party leader in succession to Smith. Another politically active senior member of the firm was F.B.

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William Kelly, who ran unsuccessfully for the Conservatives in two federal elections.148 Larry Evans was called to the bar in January 1973 and two years later became partner in the Doucet firm. Though Port Hawkesbury had been undergoing a decade-long boom thanks to the paper mill at nearby Point Tupper, it was a long way from Sydney, the regional metropolis and heart of the island’s legal establishment. Evans soon became active in the Nova Scotia Barristers’ Society. By 1976 he was a member of council and in 1978 became chair of the unauthorized practices committee, in which capacity he made a name for himself during the advertising controversy. By 1982 Evans was chair of the administration of justice committee and by 1984 second vice-president. While serving as first vice-president the following year, in addition to chairing the discipline committee, Evans also chaired the discipline policies and procedures committee, the finance committee, and the reimbursement fund committee. His election as president at the annual meeting in June 1986 made news in a way no such election had ever done. As he himself told an interviewer at the time, “I was very surprised when I was asked to be on the executive two years ago because I really never thought of them approaching somebody as young as I was, with as few years at the bar.”149 The meeting that elected Evans president began on a sour note: the society had just suspended and fined a prominent Halifax qC whose conduct on behalf of the petitioner in a divorce action had been severely criticized by the presiding judge. Evans chaired the formal hearing by the discipline subcommittee that made the decision. That Larry Evans was an “outside-the-box” thinker with progressive ideas was clear from his determined advocacy of lawyer advertising at a time when the issue was extremely delicate and opinion within the profession tended to divide sharply along generational lines. He also supported strengthening the society’s administration, upgrading bar admission requirements, offering counselling services for lawyers confronting personal problems, and developing a fee schedule to guide lawyers’ billing – replacing the tariff abandoned in 1981.150 Among the achievements of his presidency was amending the BSA to permit permanent residents of Canada to become articled clerks and to pay “from the reimbursement fund expenses directly related to the administration of the reimbursement fund including spot audits ordered by the council or the discipline committee.”151 The discipline regulations were revised and the assistant secretary-treasurer (responsible for discipline) tasked with handling low-grade complaints resolvable without investigation by either the complaints officer or the discipline

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subcommittee. Work also began on developing a discipline policy manual. During his presidential year, Evans was called upon by the media to speak for the society on a variety of sensitive issues, including the relationship between the bar and the judiciary. In January 1987, for example, a long-serving Family Court judge whose bizarre religiosity prompted public outrage was removed from the bench.152 Despite the fact that the society suffered “no major crises” during Evans’s year in office,153 one was brewing. In October 1986 the Nova Scotia government reluctantly ordered a public inquiry into the 1971 wrongful conviction for murder of Donald Marshal, Jr, a Cape Breton Mi’kmaq. In recognition of his achievement, Larry Evans, despite lacking the standard fifteen years at the bar, was made queen’s counsel midway through his presidential year.154 He was also made an honorary life member of the Law Society of Saskatchewan, a unique distinction for a lawyer who had never been a member of it. Evans’s presidency was symbolically important, but its full impact would not be felt for years to come. After Evans, the society reverted to form in its choice of presidents. The transition had been more apparent than real – at least for the time being.155 A decade would elapse before generational change not only took place but took hold. Under immense pressure to “contemporize,” the society would eventually shed the conservatism and paternalism of lawyers called to the bar in the 1950s – or earlier. Born in Ontario, growing up and studying law in Saskatchewan, and practising law exclusively in Cape Breton gave Larry Evans a breadth of experience and perspective that few other lawyers his age or indeed older could match. The inertia that seemed to pervade the society during the course of the Marshall Inquiry (1986–89) was reflected in the strikingly poor attendance at annual meetings: the year 1988 drew all of 100 registrants out of a 1,700-strong bar. Small wonder the “location and timing of future annual meetings” was added to the agenda.156 The new president, who had been at the bar for thirty-two years, wisely pointed out that the society needed a “sharper focus” if it were to realize its goal of setting “important achievable priorities.”157 Eighteen months later, the Marshall Inquiry report would turn the society’s focus from blurred to razor-sharp. The society would shortly be confronting new affairs and matters that it had not encountered before. It would also begin to see itself in a different way, recognizing the primacy of upholding the public interest and promoting a stronger sense of professional responsibility among lawyers.

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The society’s tendency towards self-absorbed introspection was evident at the 1989 annual meeting, which could find little of substance to discuss except the appointment process for queen’s counsel.158 In February of that year the executive committee circulated among the membership an extensive, five-point memorandum on qC appointments.159 Interest in the subject, on which society members were known to “hold strong and diverse points of view,” had been burgeoning since January 1988 when government, without consulting the society but claiming to have done so, reappointed a former queen’s counsel who had been defrocked.160 Protests were made and letters written, and council instructed the society’s president to write the attorney general expressing concern at the step that had been taken.161 Reinstatement as qC was treated as appointment de novo. Though it was in perfect compliance with the BSA, the action taken by the attorney general in 1988 elicited a protest from council162 and ignited a three-year controversy that issued in reform of the qC appointment process. No queen’s counsel appointments were made in 1989 or 1990 – the latter with one exception: the society’s immediate past president, who more or less had to be appointed because society presidents by custom and tradition were always qCs.163 By November a new merit-based queen’s counsel appointment process was in place and the attorney general’s advisory committee appointed. The first new-model qCs – a mere twelve – were created in May 1991. Under the old system, had the current average held, some fifty-four lawyers would have been eligible for appointment that year.164 Henceforth, an advisory committee comprising queen’s counsel, appointed annually by the attorney general and chaired by a justice of the Supreme Court, recommended appointments. The society was not involved except administratively. Its queen’s counsel candidate review committee vetted all nominee information pertaining to discipline, competence, and professional liability insurance on the records of the society. Between the end of the Second World War in 1945 and the summoning of the Marshall Inquiry forty years later, the society changed, though not greatly. Legal aid aside, the status quo ante bellum had been painlessly enough restored. The Marshall Inquiry report and its aftermath would turn the society’s focus outwards. There would be greater emphasis on ethics and professional responsibility and, in the public interest line, far greater emphasis on improving the administration of justice and promoting social responsibility among lawyers. The society would come to a new, enlightened understanding of the relationship between professional

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interest and the public interest and learn to appreciate that the rationale and justification for self-regulation was protection of the public interest. The privilege of professional self-regulation imposed on the society the obligation to be good stewards of the public trust.

5

Back to the Future

thE 1990S wOULD SEE thE NOvA SCOtiA BArriStErS’ SOCiEty transformed almost beyond recognition. Previously, it had essentially been a boys’ own club where woman lawyers were tolerable in the upper echelons of administration but not as members of council, much less as officers. Despite the rapidly increasing number of woman lawyers from the 1970s onwards, thirty years would elapse before a second woman followed Grace Wambolt as a member of council. Woman members of council were rare before the 1990s. Perhaps the most conspicuous highlight of the decade was the election in 1993 of Halifax lawyer Jill Hamilton as the society’s first woman president.1 (Before the decade was out, there would be a second.) The queen’s counsel contretemps of the late 1980s proved to be the swansong of the old order. One would not have had to be a soothsayer to discern that the 1990s would be far more defining for the society than the 1980s. It was about to undergo, so to speak, a cultural revolution. The real world would impinge in a manner it had never done before. The 1990s, like the 1890s, would be the decade in which the society reinvented itself. As the second vice-president wrote prophetically in February 1990, Practice in Nova Scotia … is facing rapid change, technological and otherwise, characterized by growing law firms with expensive overheads. There is stiff competition for work. There are “marketing” committees and soon, marketing consultants to devise strategies to attract work. There are recruiting strategies to attract students and associates to do the work. It is commonly said that the practice

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of law is now a business. We are seeing national and even international law firms. This will no doubt intensify as we approach the 21st century.2 In autumn 1989 council repaired to Oak Island Inn on Nova Scotia’s touristy South Shore for a weekend retreat of “critical introspection.” The new president, in the first “President’s Report” for the society’s journal, candidly observed that the society “is becoming involved in issues that 5 or 10 years ago were not even blips on the horizon.” So pressing and unfamiliar were these issues that he suggested, “There may be days when we look back with fondness at the tempest in a teapot created by the Q.C. issue!”3 The memory of the frisson generated by the qC issue had given way to nostalgia. In 1998 a later president could write, “Perhaps the most heated debates ever seen on bar council in recent memory occurred during the 1990 period when now Justice Goodfellow4 chaired a committee which made recommendations as to how the position of queen’s counsel should be dealt with.”5 By then council was dealing with much graver issues than precedence at the bar. Not every lawyer was inclined to welcome the new order: Unfortunately, there are still some members who are convinced that the role of the bar society should be restricted to admissions, licensure and such other matters as promote the accretion of wealth and power by our profession. A recent national magazine cited one of our members [a Halifax lawyer] as suggesting that self-regulation may not be worth the expense, if protection of the public interest comes first and the interests of lawyers are made secondary.6 The comment referred to appeared in the report of a comparative survey of law societies conducted by Canadian Lawyer.7 Survey results for Nova Scotia shed revealing light on the society toward the end of the 1980s:8 Lawyers on Rolls Annual Levy Errors and Omissions Insurance Premium Compulsory Insurance Coverage Number of Conduct Complaints [1988] Lawyers Disciplined [1988]

1,780 $770 $950 $1,000,000 113 3

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Full-Time Investigation Staff? Elected Women Benchers/Total Elected Number of Lay Benchers Bar Admission Term (Months) Practice Advisory Service? Public Convocations? Open Discipline Hearings?

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No 10/39 2 1.5 Yes Yes 9 No

The random sample of some 220 lawyers countrywide conducted by Canadian Lawyer in the summer of 1989 showed “that just under half of all lawyers surveyed feel the law society doesn’t represent their views. The survey … suggests many lawyers see them as remote, elitist bodies. A general apathy is particularly apparent among sole practitioners, corporate and government counsel, legal aid lawyers and small firms.”10 Did lawyers in Nova Scotia view laissez-faireism on the part of the society as undermining their interests? The Marshall Inquiry’s ground-breaking report, released in January 1990, intensified the already intensifying focus on discipline.11 The scope of disciplinary action, which once rarely involved anything other than theft of clients’ money, was expanding into wrongdoing in a very broad sense (the old “conduct unbecoming a lawyer”). The society’s ability to respond satisfactorily to this new reality required increasing sophistication in terms of both process and personnel. Discipline was becoming pre-emptive and remedial as well as reactive. The investigating subcommittee could now also counsel and/or caution the barrister or articled clerk against whom a complaint had been made and in its discretion instruct the secretarytreasurer to lay a formal complaint on behalf of the society.12 Generally speaking, the 1990s were a black eye for discipline. In 1992 further major changes were made to the professional responsibility regime.13 Settlement agreements for lawyers who admitted guilt and who wished to avoid an embarrassing and expensive formal hearing were introduced, and the range of penalties enlarged to include paying a fine of up to $20,000, making restitution, and – in addition to, or in place of, the standard penalties (disbarment, suspension, resignation or reprimand) – accepting “conditions on the right to practise.”14 These improvements did not register benefits overnight. By the end of the 1992–93 fiscal year, client compensation payouts and discipline process administrative costs had risen so high as to cause fees to spiral upwards by some 33 per cent.15 The

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economic consequences of “bad lawyering” were so dire that they were undermining the society’s finances. In 1993 the society had to deal with client claims totalling nearly $500,000 as the result of defalcations by three lawyers. Between 1996 and 1998 three more lawyers misappropriated client funds, resulting in approved claims totalling nearly $700,000.16 The situation had deteriorated to such an extent that in October 1998 council established a task force “to consider measures and bring forward recommendations for reducing the risk of misappropriation by lawyers from estate and trust funds, a problem which has reached critical levels over the past eight years.”17 In 2001 the discipline committee was restructured. There would still be two subcommittees, but they would no longer alternate the investigative and adjudicative functions. Instead, each became permanently all one thing or all the other: the investigative subcommittee and the formal hearing subcommittee from whose ranks the members of the panels would be drawn. As of June 2001 the discipline process was operating under a new system intended to resolve complaints more quickly and provide more information to members complained against as well as complainants. The executive director was authorized to dismiss or resolve complaints that were ultra vires, lacked merit, or did not allege facts sufficient to prove a discipline infraction. As the volume, variety, and frequency of complaints soared, streamlining the complaint management process in this way promised economies of scale. Negative publicity attending high-profile discipline proceedings continued to haunt the society.18 Perhaps the worst involved an immigrant woman lawyer of colour, called in 1985. Suspended from practice a decade later, she pursued the society unsuccessfully through the courts, ultimately failing in her application for leave to appeal to the Supreme Court of Canada.19 On the eve of the society’s annual meeting in June 1998, she took out a defamatory advertisement in both of the Halifax Herald newspapers, which the proprietor quickly retracted and apologized for publishing.20 But the damage was done. During the course of executive committee deliberations, the executive director “expressed his concerns over the press coverage the society has experienced over the past several months. Even a retraction makes the situation even more prominent. This results in a bad image for the society and ultimately the profession.”21 The executive committee decided to sue the Halifax Herald Limited for damages, but the action had not proceeded very far before it was settled out of court for a token monetary consideration.22

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The sheer public embarrassment and “bad Pr” occasioned by such events accelerated renewed calls for open discipline hearings. As long before as September 1990, the society’s president, F.B. (Ted) Wickwire, told a meeting of council that the time was coming for open discipline hearings, which most law societies already permitted.23 Wickwire’s premature death in office in March 1991 precluded timely action, and it was not until May 1992 that council held a debate in which members were asked to go on record with their views as to open hearings. The proposal was defeated, leaving the society the only law society in the country except New Brunswick’s with closed discipline hearings.24 In a “scathing” editorial, Halifax’s Mail-Star denounced the society for holding what it called “secret tribunals behind bolted gates.”25 The president responded that the public interest was adequately protected, given that the decisions per se were a matter of public record. Reflecting on the outcome in his annual report, the president stated, “The debate about formal discipline hearings was truly a highlight of the last year. The discussion took place in the context of the most significant changes to occur in the society’s discipline process in the last decade.”26 For a lawyer of the old school such as he, called to the bar in the late 1950s, open discipline hearings were just one change too many, too soon, and unjustified. Over the ensuing decade, however, council gradually accepted the view that a Charter challenge to current practice was inevitable and could not be withstood.27 A legal opinion to that effect was obtained from the society’s solicitor. Finally, in late January 2002, council approved new regulations establishing an open formal hearing process.28 As the retiring president, a staunch proponent of open hearings, had remarked in his final “President’s View” in June 2001, “Though the public’s insatiable appetite for bad news about lawyers is likely to continue, I’m guardedly optimistic that our uncanny ability to continually provide fodder will diminish.”29 Another striking departure from past practice involved the incorporation of law firms, which had been banned since the 1944 amendments to the BSA. The idea had been under consideration since the 1960s when a thaw in relations between lawyers and chartered accountants led to candid discussions as to how these professions could cooperate. As firms like Stewart, MacKeen & Covert, specializing in corporation law, and big business lawyers like Frank Covert came to dominate the urban legal profession, accountants were no longer viewed as prospective encroachers on legal business but as natural allies serving the needs of big business

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clients. In 1970 British Columbia became the first jurisdiction in Canada to authorize professional corporations.30 Nova Scotia had no such law, but separate acts governing the professions authorized both architects and engineers to incorporate their practices. Why should lawyers be confined to partnerships? The society’s annual meeting in 1970 received a “detailed report” on law practice incorporation, but no action was taken except to strike a committee to study the matter further.31 In 1974 the annual meeting approved legislation amending the BSA to permit law firms to incorporate, but nothing came of it.32 Finally, in 1983, a special committee recommended against the society’s seeking legislation enabling law firms to incorporate.33 A decade later, the worm had turned. Council struck another committee in spring 1994, and there was no opposition at all to developing those legislative proposals, which came to fruition in January 1996.34 By August eight permits (licences) to corporations to carry on the practice and profession of law had been issued.35 The society’s begrudging and belated response to law firm incorporation mirrored its response to interprovincial law firms. Nova Scotia lawyers feared that this new creation heralded, as it were, an invasion of the body-snatchers – the aggressively expansive “national” law firms based in Toronto or Montreal.36 The 1983 annual meeting took a determined stand, viewing interprovincial law firms as a toxic phenomenon that would open up a Pandora’s Box of unfair competition from big dogs outside the region. Two senior lawyers, however, counselled caution lest the society be seen to be substituting insularity and parochialism for its duty to protect the public interest, but to no avail.37 Council duly enacted regulation 47G prohibiting interprovincial law partnerships. The writing was soon on the wall. In January 1986 the first major intercity law firm merger took place in Nova Scotia, to be followed three years later by the first interprovincial law firm merger in Atlantic Canada.38 That was in direct response to the Supreme Court of Canada’s judgment in Black v. Law Society of Alberta,39 which struck down the ban on the interprovincial practice of law on constitutional grounds. In October 1989 council’s committee to study the issue reported that interprovincial law firms were “inevitable” in Nova Scotia.40 It was accepted that regulation 47G would have to be repealed. By 1996 there were four interprovincial law firms in Atlantic Canada, and fears that the national megafirms might invade and conquer the region had proved groundless. The Wild West, not the Mysterious East, was the land of opportunity for “national” law firm expansion.

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In July 1996 John Merrick began his presidential year by asking the fundamental question, “Why are we a self-governing society?” It was a very appropriate question to ask as the society was on the cusp of the centenary of professional self-regulation. Despite that, the historical perspective never dawned. Over the course of Merrick’s presidential year, council as the governing body posed some leading questions, such as: whether the society exists to advance the interests of its members or to protect and serve the public. Often the two objectives are served by the same action, but not always. This is an issue that will underlie many other decisions … In the years to come there may be suggestions raised that the two interests cannot be properly served by one organization and there will be talk of letting the society regulate and another organization promote the interests of practising lawyers. That would of course make a profound change to the society as we know it.41 On the face of it, the society did not exist to promote the interests of practising lawyers. The other organization whose role that was, was the Canadian Bar Association. By the 1990s, however, the CBA was focusing much more on public interest than on professional interest issues, such as the administration of justice. Yet Merrick’s point was well taken. Unlike physicians, who had the Medical Society (now Doctors Nova Scotia) to advocate for and represent their interests while the College of Physicians and Surgeons regulated the medical profession, the Nova Scotia Barristers’ Society was doing both. The reasons for this were historical: the society had come late to self-regulation, its having been before 1899 a Nova Scotia bar association. Advocacy was inherent, self-regulation acquired. The society had a dual personality. It discharged two fundamental responsibilities that were not necessarily or always compatible. The practice of law was changing, or threatening to change more rapidly, as the millennium approached.42 From time to time during his presidential year, Merrick used the president’s column in the society’s journal to articulate pre-millennial angst: I believe that the biggest challenge facing us as a profession as we go into the 21st century is going to be to define just who we are and what it is that we do. Up to this point, there have been established

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professions and occupations with clearly delineated territories, that have generally been respected. But from here on, the landscape will be one of fluidity. Any endeavour that shows signs of profitability will immediately attract participants from a variety of backgrounds.43 How could lawyers preserve their monopoly if no one, including they themselves, knew for sure what they were monopolizing? It would be no coincidence that the new Legal Profession Act, passed in 2004, would include a far denser and broader definition of the “practice of law” than had been added to the BSA in 1944.44 At the time it would have been presumptuous, not to say impossible, to try to prevent encroachments on professional business by non-lawyers without explicitly stating what the practice of law was. Then the impetus was entirely negative – to illegalize unfair competition from outsiders. Sixty years later, defining the practice of law was a positive enterprise, undertaken with a view to safeguarding the public interest rather than conserving professional interest. The 1990s were years of upheaval for the society. Beginning with the response to the report of Marshall Inquiry and a massive administrative overhaul, the decade concluded with the final steps toward achieving a goal first set as long before as 1913 – direct election of the officers. Democratic accountability ran against the grain of a profession in which self-regulation, in practical terms, meant a self-perpetuating oligarchy sustaining itself through co-option. The choice of officers was made by an appointed committee of which the immediate past president was chair. The nominating committee did what it pleased, and its word was law. Attitudes underlying the status quo could not be changed overnight. As the first directly elected president, Craig Garson, wrote in his annual report (2000–01), One of the reasons I wanted to become president was to change the way some of our lawyers viewed the society. To some members, the thought of serving on a committee, let alone ever becoming president, was nothing more than wishful thinking. Is it any wonder, therefore, that some members consider themselves outsiders and are sceptical of the society? To these members, the society was nothing more than a closed circle of courtiers, caught up in a cocoon of their own making, which mistook the chatter of the palace for the voice of the people.45

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The society began the third millennium and its 175th year with its second woman president, which seemed to augur well for the future. The society’s millennium project turned out to be a new legal profession act to replace the one first enacted in 1899. In the midst of the transition from the Barristers and Solicitors Act to the Legal Profession Act fell the 2004 bisesquicentenary of the establishment of the Supreme Court of Nova Scotia. Planning for the anniversary had begun in 1998, and it was much celebrated. An academic conference at Dalhousie Law School was held and a volume of historical essays published, as was a biographical directory of superior court judges. The Legal Profession Act received royal assent on 18 October 2004. Four days later, it being the 250th anniversary of the enthronement of Jonathan Belcher as first chief justice of Nova Scotia, the chief justices of Canada and of Nova Scotia, together with the justices of the Court of Appeal and the Supreme Court and members of the bar, processed from historic St Paul’s (Church of England) to the law courts in a commemorative re-creation of the events of 22 October 1754. Despite having ignored all its own anniversaries – centenary (1925), sesquicentenary (1975), and 175th (2000) – the society wholeheartedly embraced the Supreme Court’s milestone. The president observed that the society was “only 205 years old [1799].”46 In fact, the society (1825) was much younger while the bar was (1749) five years older than the Supreme Court. The coming into force of the Legal Profession Act in May 2005 was also cause for celebration. But rain fell on the parade. A well-respected qC with a distinguished history of participation on council and committees was disbarred for robbing client trust funds of more than $1.3 million. It was the largest defalcation in the society’s history. The society’s 145th annual meeting was held on 18 June 2005 at Keltic Lodge (Ingonish Beach, Cape Breton), where the society had first met for its annual meeting in June 1954.47 The attendance was embarrassingly poor – all of 43 – and a sense of ennui and tristesse seemed to pervade the gathering. Little business was transacted. Though the LPA had been proclaimed less than a month before, this history-making achievement was completely overshadowed by the drastic action that council, having devoted two meetings to discussing client compensation, had had to take to cover the monster defalcation. In order to pay approved claims of more than $1.4 million, the cap on the reimbursement fund had been removed and a $400 per member levy applied to the coming year’s fees in order to replenish the fund.48 According to the president’s report,

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One of the concerns that was repeated by many [members of council] was that we are not able to limit or predict the criminal behaviour of a member or members, and there is a limit to what members can do to mitigate the damages. This is why, when the reimbursement fund was created, the caps and annual limits were put in place. However, it was decided by council that in the … case, all approved claims should be paid.49 The irony of historic achievement in tandem with major disaster could not have been lost on anyone. Would the society in the twenty-first century fulfil the promise of the Legal Profession Act as it had that of the Barristers and Solicitors Act in the twentieth?

Part Two

Part II is thematic, comprising six chapters dealing with separate subjects that bear directly on important aspects of the society’s history. Two are milestone-related, two are structural, and two are programmatic. Excepting only the achievement of self-regulation in 1899, the most far-reaching and influential event in the society’s history was its response to and the impact of the report of the Marshall Inquiry. Chapter 6 deals with the report, which convulsed the society and led to a searching re-examination of the ethical standards of the profession. Chapter 7 deals with the replacement of the century-old Barristers and Solicitors Act by an up-to-date Legal Profession Act. Chapter 8 discusses the mechanics of self-regulation. Chapter 9 examines the society’s administration, chapter 10 its role in legal education, with which the society has been concerned ever since its inception, paying particular attention to the society’s sometimes fraught relationship with Dalhousie Law School over 120 years. The eleventh and final chapter deals with the origin and development of what used to be called “continuing legal education,” paying particular attention to the rise and fall of the Continuing Legal Education Society of Nova Scotia (1977–2002).

6

“Nova Scotia’s Watergate”: The Society and the Marshall Inquiry Report

ON 25 OCtOBEr 1986 thE COUNCiL of the Nova Scotia Barristers’ Society held its regular monthly meeting in Sydney, where, fifteen years earlier, a murder had been committed for which a First Nations teenager, Donald Marshall, Jr, was wrongfully convicted and imprisoned for eleven years. The Marshall case was not on the agenda of the meeting – why should it have been? – but three days later the cabinet ordered a public inquiry into the Donald Marshall, Jr, prosecution, which would remake the administration of criminal justice in Canada and shock the Nova Scotia Barristers’ Society into a profound and far-reaching self-assessment. It was a development that some lawyers, including Marshall’s own, had been calling for in the years after his 1983 acquittal by the appeal court.1 Even though it had been the subject of much debate after Marshall’s acquittal, the society took no position on the miscarriage of justice, and establishment of the royal commission in October 1986 went unnoticed. The society had neither standing nor observer status at the inquiry, unlike the Nova Scotia branch of the Canadian Bar Association. The CBA (“it was natural for the Canadian Bar Association to become involved”) also submitted a substantial brief, which was published as an appendix to the inquiry report.2 If it were natural for the CBA to become involved in the Marshall Inquiry, how could it not have been so for the society? Indeed, given the inquiry’s sharp focus on the actions of some thirteen lawyers, one would have expected the society to have sought, and been granted, standing. The society’s reaction to the Marshall Inquiry report was altogether at variance from its general lack of interest hitherto. The society had not been

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criticized in the report, nor was it called upon to take any action against those lawyers who were. It was as if the society was embarrassed by the commission’s accusing lawyers involved in the Marshall case of incompetence or racism or both. Simon Khattar and C.M. (Moe) Rosenblum, were, respectively, a former president of the society and – for the second time – its honorary president. (Rosenblum also served as Marshall’s counsel during his trial and unsuccessful appeal.) Khattar testified at the inquiry, but Rosenblum did not, dying at age 82 a month after public hearings began in Sydney. Such was Rosenblum’s prestige that the hearings adjourned for his funeral.3 There was, according to his obituary, “a peculiar misfortune in the timing of his death. It has turned out that the most famous criminal case of his career, the unsuccessful murder defence of Donald Marshall in 1971, is now the subject of intense scrutiny by a royal commission. On Monday [26 October 1987], the very day of Rosenblum’s death …, an inquiry witness raised the first question about Marshall’s trial defence.”4 In October 2009 the society’s journal featured a twentieth-anniversary symposium commemorating the 1989 report of the Royal Commission on the Donald Marshall, Jr. Prosecution.5 The society’s consciousness of the Marshall Inquiry had risen only very gradually and largely in tandem with the imminence of the release of its report. None of the several research studies commissioned by the inquiry addressed the role and responsibility of the society. Indeed, the society was barely mentioned at all, except incidentally in specific recommendations calling upon it to promote anti-racism initiatives and visible minority sensitivity training for lawyers and judges.6 Despite not having participated in the inquiry, however, the society responded to the inquiry report in a timely and energetic manner. The symposium demonstrated how much the society had learned in the twenty years after – but also how little it had learned in the nearly twenty years between Marshall’s wrongful conviction and release of the report. Why did the Nova Scotia Barristers’ Society respond to the report of a public inquiry in which it had played no role and during the course of which it was barely mentioned? Lack of standing and observer status aside, the society submitted no brief. All but one of the presidents between 1971, when Marshall was wrongfully convicted, and 1986, when the inquiry was set up, were still active, but none testified, nor did either of the presidents in office when the public hearings were in progress. Over the year elapsing between conclusion of the hearings in November 1988 and completion of the report in December 1989, the society appears to have begun to

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reconsider its position. Lawyers were implicated in the prosecution and wrongful conviction of Marshall, law was a regulated profession, and the society was responsible for regulating it; if the society could escape participating in the inquiry, it could hardly escape responding to the report. The imminence of its release prompted the society to prepare for the fallout that would accompany the report.7 Almost overnight the society went from being an uninterested bystander to being a major player willing to take decisive action. As a law professor at Dalhousie University aptly observed at the time, “The bar seemed to want to start off on the right foot in the post-Marshall era, having been mainly inert previously.”8 So great was the tendency to over-compensation, if not over-reaction, that the society’s initial response to the report was rendered a mere five days after the report was released, preceding the attorney general’s response by a full week. The president of the society on whom this burden chiefly fell, Bruce MacIntosh, had been called to the bar in 1974 when Donald Marshall, Jr, was languishing in Dorchester Penitentiary. In those days the society took no stance on any public issue; to do so would have been deemed a breach of professional etiquette, if not ethics, and tending to undermine the honour and dignity of the bar.9 The society had only ever spoken to a matter of public interest if it bore on professional interest, such as criminal convictions of lawyers, high-profile disbarments, or substantial defalcations – and not necessarily even then. A rare younger-generation holder of the presidency (the other was Larry Evans), MacIntosh held advanced views as to what constituted the society’s responsibility for safeguarding the public interest. Had it been up to him, the society would probably have participated in the Marshall Inquiry. Bruce MacIntosh served on the executive committee throughout the inquiry and its aftermath and was thus in a unique position to guide the society’s response to the report.10 By the time the public hearings began in September 1987, MacIntosh was second vice-president. Earlier that year the executive committee agreed that a submission from the society was unnecessary “particularly in light of the fact that George MacDonald is counsel to the Commission.”11 The reasoning is not transparent, though one may assume that the committee was confident that MacDonald, a partner at what is now McInnes Cooper, would hold an informal watching brief on the society’s behalf. In September 1988 then-president John Moore suggested that a committee should be appointed to assist him “in dealing with the publicity which will result from the Marshall Inquiry report.” Opinion differed as to whether the

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committee should be struck immediately or when the report was released. The matter was deferred and no committee appointed for nearly a year.12 There was as yet no question of a response. By October 1988, however, the secretary-treasurer was advising the executive committee that the report was expected to be released in spring 1989 (in the event, it took several months longer). The president indicated that formulating a response would require assistance from those knowledgeable in criminal law and litigation.13 No sooner had Bruce MacIntosh taken over as president in June 1989 than he set up an advisory group whose mandate was “to discuss what concrete steps should be taken by the Nova Scotia Barristers’ Society when the Marshall Inquiry report is released.”14 The society’s budget provided some $25,000 for the purpose of retaining professional public relations assistance.15 In his first “President’s Column” for the society’s journal, MacIntosh stated, Foremost amongst our priorities in the coming months must surely be our reasoned public response to the findings of the Marshall Inquiry. “Access to Justice” will be the buzzwords on the lips of all who use or administer our legal system. Responsible Nova Scotians will be publicly discussing issues that will go to the very foundations of our justice system. We have been examined microscopically and we will undoubtedly be found wanting in some areas. In the midst of this introspection and impetus for reform, where will we find the Nova Scotia Barristers’ Society? Hopefully, in the forefront of constructive dialogue.16 Though the society had not been a focus of microscopic examination during the Marshall Inquiry, a few months before the report was released MacIntosh was correctly anticipating that it would include a critical commentary on lawyers involved in the Marshall case. The advisory group met on a regular, even frequent basis. How best to prepare for the pending release of the report was on the agenda of the “bench and bar” meeting early in October as well as the two-day council retreat later that month. Early in December the secretary-treasurer cautioned the executive committee, “the society has not dealt with the mechanics of what to do when the Marshall Inquiry report is released.”17 As a result, it was agreed that once the report was released, the society “should take its time in responding.” Ironically, the very opposite happened; the

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society took no time at all in responding, standing forth in advance of anyone else. For reasons that remain unclear, the executive committee excluded council from any role in developing and vetting the society’s response. An initial proposal to hold a special council meeting when the report was released was quietly dropped. December 1989 also saw a singular event occur off-stage. The former chief justice, Ian M. MacKeigan, attempted to steal the inquiry’s thunder by laying a complaint of professional misconduct against commission counsel; they had criticized the tone and tenor of the appeal court’s decision in the 1983 reference that resulted in Donald Marshall’s acquittal.18 The complaint was investigated by the society but dismissed.19 The very day the report was released – Friday, 26 January 1990 – council met and was told that the executive committee would meet on the 28th to review the findings and recommendations and prepare the society’s initial response.20 The president was designated society spokesman. Earlier in January Jamie W.S. Saunders, who had served as counsel for the attorney general during the inquiry, was appointed chair of the society’s special committee on responding to the report.21 The committee appears never to have functioned – but soon morphed into the standing committee on race relations, which served a much broader purpose. The president of the Nova Scotia Barristers’ Society met the press on 31 January, announcing that the society would undertake a “comprehensive review” of the conduct of lawyers whose ethics or competence had been criticized in the report. Bruce MacIntosh stated, All we can tell you is that a lawyer is a lawyer is a lawyer, and there are no magic time limits from which lawyers aren’t held accountable … We will have to weigh very carefully just who should be held accountable for what, and how we measure standards of several years ago [by the] standards of today – that’s not an easy matter but we are not going to duck the issue … We will not flinch from submitting any of our members to the full extent of the disciplinary process in those cases where evidence amounting to professional misconduct exists.22 There was no statute of limitations, so to speak, on professional misconduct. The society’s news release, printed verbatim on the front page of January’s Society Record, was well received by the press, less so by the bar,23

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and perhaps too by the judiciary.24 Committing the society to investigating lawyers criticized in the report with a view to possible discipline action against them was a great leap forward. The government was thinking along similar lines. Nine days later, Attorney General McInnis wrote the Canadian Judicial Council asking them to investigate whether the appeal court judges should be removed from office for their conduct of the Marshall reference. An inquiry committee was appointed in April and reported in August 1990. Three of the five justices who sat – ex-Chief Justice MacKeigan and Justice Pace were no longer on the bench – were censured for having used “inappropriate language” toward Donald Marshall.25 Reporting to council in February 1990, MacIntosh adopted a softer line: [I]t was the executive’s view after lengthy discussion that our response to the Marshall report should be candid and non-defensive with a view to generating a positive public response to reform initiatives … The public were assured that the Bar Society supports the thrust of the recommendations of the Marshall commissioners and that every recommendation of the commissioners regarding the Bar Society has been either adopted already or is in the works.26 Very few of the commissioners’ recommendations related to the society, nor did they state or even imply that the society should undertake a comprehensive review of findings relating to those lawyers criticized in the report. There was no “specific finding” of professional misconduct that might have justified such a review, a point that MacIntosh made when interviewed by Toronto’s much-read Lawyers Weekly.27 Nevertheless, the policy direction laid out by the president at his press conference on 31 January led quickly to action. The society’s solicitor, together with the deputy secretary-treasurer (director of discipline), were tasked with carrying out a detailed review of the report in order to identify those lawyers who were still members of the society.28 The review identified seven lawyers singled out for criticism, including a former attorney general, and recommended one of them for disciplinary action.29 In his March 1990 report to second vice-president Ted Wickwire, chair of discipline subcommittee A, the solicitor warned presciently, “Our public image will not be enhanced if we commence an investigation and proceed to a formal hearing then fail to prove that any significant misconduct took place.”30 As matters turned out, the society’s public image was not

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enhanced when the society lodged a complaint, then quashed it after investigation because there was no likelihood of proving that any significant misconduct had taken place. The discipline approach favoured by MacIntosh was strongly opposed by the society’s solicitor and by both of the vice-presidents, one of whom described the president as having “very strong feelings about the findings in the Marshall report.”31 In an April 1990 memorandum, Wickwire expressed the view that initiating discipline action against any Marshall case lawyer so that an investigation could proceed on the basis of criticism made in the report was against the public interest: “Perhaps enough is enough and it is in the public interest to put the Marshall business behind us and to move forward in the hope that we have learned all we can from it. There will undoubtedly be criticism but no one expected this to be an easy decision.”32 Wickwire’s advice was not heeded. The society had already publicly committed itself to a course of action more extreme than anything contemplated by the report. No lawyer who testified at the Marshall Inquiry, as Gordon Coles did at length, received more ink or criticism in the report than the former deputy attorney general. In office from 1972 to 1987, Coles had been intimately involved in the Marshall case since the 1974 and 1975 reviews of Donald Marshall’s wrongful conviction. The report laid on Coles much of the blame for the failure of the Department of the Attorney General to handle the Marshall case “with the care and respect for fairness that it demanded.” Coles “failed to recognize the unique and tragic aspects of the Marshall case, and effectively prevented his department from treating Marshall with the appropriate respect of [sic] fairness.”33 Reaction was swift. Release of the report almost immediately put an end to Coles’s second career as special adviser to the cabinet on constitutional affairs. In February 1990, facing dismissal, he resigned from the public service. Attorney General McInnis, to whom fell the task of giving the government’s response to the report, was asking the rCMP to investigate whether criminal charges should be laid against Coles for obstruction of justice.34 At the same time, Coles also applied to resign from the bar. The executive committee forbore recommending that council accept Coles’s resignation in view of the fact that he was under a cloud and possibly facing discipline and instead ordered his application referred to discipline subcommittee A. In May 1990 the subcommittee decided to proceed, and in June a formal complaint of professional misconduct was laid against Coles “for the purpose of proceeding with an investigation.”

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Toward the end of his term, Bruce MacIntosh had achieved his goal of a substantive discipline response to the Marshall Inquiry report. His presidential report to the June 1990 annual meeting spoke volumes: When the Royal Commission on the Donald Marshall, Jr Prosecution sat for months few of us realized the impact its report would have on the justice system in this province. The legacy of its findings will influence us for many years. As a bar, our role was to encourage government to respond positively to the report. We did that. The provincial government embraced the report. Our role was to ensure that our own house was in order. We have done that and as I write this the process is still ongoing.35 Our role, and this for me was the most significant, was to contribute to the improvement of the treatment by the legal system of blacks, Mi’kmaqs [sic] and other minority groups in this province. We have started to do that. To improve relations among different races and ethnic groups will take time. As a bar society, our role is as a leader and not merely a passive observer.36 The week following the annual meeting saw Ted Wickwire unexpectedly become president of the society.37 Council’s public service announcement stated, “Mr Wickwire takes up his position as president at an exciting time in the legal history of Nova Scotia and at a time when the society has an important role to play in the administration of justice in this province.” In his first “President’s Column” after taking office, Wickwire mused, It has been said that a blind spot or period of darkness follows immediately in the wake of an historical or other momentous event during which one cannot with confidence and certainty read all of the consequences. The Royal Commission report on Donald Marshall, Jr. may be one such event. Controversy swirls over certain aspects of the report, being stirred, principally, by the Federal Judicial Council proceedings respecting the handling of certain aspects of the Marshall case by members of our Appeal Division.38 While Wickwire did not overstate the significance of the report, if controversy was swirling over certain aspects it was being stirred not by Canadian Judicial Council proceedings but by the society’s response to the report.

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In November 1990 discipline subcommittee A quashed the complaint against Gordon Coles;39 he escaped with nothing more severe than a caution.40 The executive committee recommended that his application to resign from the society be approved, and council accepted.41 Abundance of caution seems to have dictated that it would be “safer” to suspend proceedings against him than risk a formal hearing at which Coles might have been acquitted of professional misconduct. It was the lesser of two evils. In effect, and for all practical purposes, the society’s final response to the report had been made. Wickwire’s valediction is memorable for its subtlety and understatedness: The Marshall inquiry will be remembered specifically for laying to rest, for most intents and purposes, the mysteries surrounding the Marshall/Seale42 saga and for commissioning useful studies and making sensible recommendations on such matters as proper policing and police functions, proper crown attorney practices and the role and the functions of the attorney general, to say nothing of raising markedly the level of consciousness about race relations in Nova Scotia.43 For Wickwire, professional misconduct by lawyers involved in the Marshall case was not, nor ever had been, the issue. The Marshall case, the Marshall Inquiry, and the report had nothing to do with the Nova Scotia Barristers’ Society at all. Once committed, however, the society had to respond, though the scope and content of the response changed significantly between the initial and the final. On 13 March 1991 the society released to the media Wickwire’s five-page report to council on the society’s discipline review of the Marshall Inquiry report. No press conference was held, as had been the case in January 1990, nor was the document published in the Society Record:44 Upon the release of the report of the Royal Commission on the Donald Marshall, Jr. Prosecution, the Nova Scotia Barristers’ Society undertook to review the conduct of those members of the society who were criticized by the commission, and to report to the public its findings. In keeping with its commitments, the Nova Scotia Barristers’ Society is distributing copies of a report of the president of the society, F.B. Wickwire, Q.C. to bar council. The document

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was prepared by Mr Wickwire and includes the findings of the society’s discipline process and his personal comments. Neither Mr Wickwire nor any other representatives of the Bar[risters’] Society will be making further comments.45 Divided into four parts – preamble, “preliminary considerations,” “results of the society’s review,” and “conclusion” – the report was categorical: in all [seven] of the cases, save one [Coles], there was no need to proceed with a written complaint against the member and the files were closed. In respect of the one exception, [discipline] subcommittee A was not able to formulate a conclusion with a sufficient degree of certitude and considered a response from the member was necessary to shed more light on the matter. This response, by our regulations, is only available with the filing of a formal complaint and such a complaint was indeed prepared and served on the member. The complaint drew a fulsome response from the member and, on the strength of it, the subcommittee was satisfied that, as with the other cases, there was insufficient hard and cogent evidence that under our ethics and standards which prevailed at the time and under our jurisdiction, a conviction of professional misconduct or conduct unbecoming a barrister could reasonably be returned, although certain aspects of the practitioner’s conduct were sufficiently troubling to the subcommittee so as to prompt it to issue a letter of caution to the practitioner.46 Reading between the lines, one gains the impression that Wickwire wished to avoid an adjudicative hearing with all the attendant negative publicity for both the society and the subject of the complaint (whose identity was not disclosed) and that the only means to achieve that was to dismiss the complaint. One also recalls the solicitor’s warning, a year previously, that a discipline proceeding that failed to find guilt would do more harm to the society’s credibility than no proceeding at all. The society’s last word on the report provoked a firestorm in the press, where headlines resonated with a chorus of disapproval: “And Lawyers Lived Happily Ever After;” “Bar Clears Lawyers in Marshall’s 1971 Trial;” “Conduct OK, Barristers Rule – No Lawyers Guilty;” “Irrelevant Exercise;” “Lawyers Unerring in Marshall Case, Probe Determines;” “Marshall Case

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Lawyers Found Innocent of Misconduct;” “No-Fault Nonsense – The barristers have spoken; it now seems no one is responsible for the most notorious miscarriage of justice in Nova Scotia history;” and “Punishing of Lawyers Ruled Out.”47 The following Sunday Halifax’s Daily News responded to the society’s statement by reprinting Josh Beutel’s famous cartoon from Saint John’s Telegraph-Journal. It depicts two graves side by side, one closed (“Sandy Seale 1971”), the other open (“Marshall Inquiry 1990”) with the “Findings” book lying beside and about to be interred in the open grave. For the society, however, legitimate criticism of lawyers was one thing, a finding of wrongdoing another. The report certainly found wrongdoing but stopped well short of recommending discipline action against any of the lawyers concerned. That step had to be taken by the society itself. Whatever goodwill the society engendered in January 1990 by undertaking to investigate the lawyers criticized in the report dissipated in an instant. Wickwire’s statement probably did more damage to the society’s credibility than would have been done had the society decided against reviewing lawyer conduct or even responding to the report at all. A golden opportunity to reclaim the moral high ground and stand forth as the champion of the public interest had been lost. The most memorable rejoinder belonged to Daniel Paul, executive director of the Confederacy of Mainland Micmacs (and afterwards a lay member of council): “If professional people are not going to deal in a forthright manner with problems in the justice system, then they are maintaining the status quo. The judges have been let off the hook, the police have been let off the hook, and the lawyers have been let off the hook. Maybe we’ll need another inquiry.”48 In the words of Parker Donham, who had followed the Marshall case more assiduously than any other print journalist, “When the Marshall Commission report came out, members of the Barristers’ Society seemed genuinely chastened by its criticism of the legal community. Barely a year later, the society has come full circle. Now, none of its members did anything wrong.”49 The tenor of the society’s final response to the report was perhaps itself an accident of history. Ted Wickwire leapfrogged from second vice-president in charge of discipline subcommittee A (investigative) to president. After that unforeseen development, the whole approach changed. Wickwire, as strongly opposed to a discipline focus to the society’s response as MacIntosh favoured it, was suddenly in a position to guide the outcome of the process that MacIntosh had initiated. It is perhaps unsurprising that

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when a vice-president who opposed any discipline proceedings against lawyers criticized in the report became president, the sole proceeding in train would quickly derail. The standards and practices of 1990 were not those of 1971 when incompetence was not a discipline matter and bad luck, bad judgment, or a bad attitude did not amount to professional misconduct. The commissioners did not find misconduct on the part of the criticized lawyers, but perhaps, given the severity of the criticism, they implied it. If so, the society took the hint. But there was no unanimity. A discipline-focused response to the report was highly unpopular among lawyers. It made the society look as if it were delivering up its own members as “scapegoats or sacrificial lambs” (Wickwire’s metaphor) in order to assuage an aroused public opinion. Wickwire’s sobering observation in the preamble to his statement gives one pause: “The Marshall Inquiry report does not constitute a complaint against lawyers.” Days after his statement was released to the press, Ted Wickwire was dead in his fifty-third year – only the second society president to die in office and the first since Hiram Blanchard in 1874.50 At the special meeting of the society held to honour his memory,51 Chief Justice Lorne O. Clarke alluded to the society’s response to the report, praising Wickwire’s work toward “healing and reconciliation” through the “agonizing appraisal” that the province’s criminal justice system had been undergoing. “Never in the long history of law in Nova Scotia has there been such a need for rebuilding of confidence.”52 By June’s annual meeting, when Wickwire’s presidency would have ended, it was clear that the society’s direct engagement with the report had died with him. The society moved on, as indeed Wickwire said it should (“It is time to move on, to close the last chapter and to look ahead”). One of the 2009 symposium’s participants53 counted among “the most vivid recollections” he had from his work with the inquiry the “resolve” of society president Bruce MacIntosh, “who led the Nova Scotia bar in its response to the Marshall Inquiry.”54 MacIntosh undoubtedly showed exemplary leadership, but his approach was generally disapproved of and ultimately rejected by the society. After MacIntosh’s term as president concluded in June 1990, the society’s response to the inquiry report was managed differently and with a different end in view. Its final response, coming more than a year after the initial one, was as controversial among press and public as the initial one had been among lawyers and judges. If the complaint against Gordon Coles was not to be heard, what was

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the point of laying it the first place? Discipline subcommittee A could easily have decided against proceeding, as Wickwire, its then-chair, would undoubtedly have preferred. But the society had been placed in the invidious position of being damned if it did and damned if it did not. The question ultimately was not whether to respond to the report but how, and that without inconsistency. It was the justice system, not the Barristers’ Society, that failed Donald Marshall at every turn. The commissioners, despite findings critical of some of the lawyers involved, were not recommending an investigation based on their findings, much less one that might lead to discipline proceedings against any of the lawyers criticized. In the words of the society’s executive director,55 “The follow-up from Marshall was seminal for the society, not because of the discipline aspects but because of the equity focus that came from it.”56 But progress was slow. Perceptions and attitudes did not change overnight, nor did the reality. The 1997 executive summary of the report of a survey of visible minority lawyers commissioned by the society’s race relations committee – itself an important aspect of the follow-up to Marshall – did not mince words: The Bar Society is ultra-conservative and this, of course, has an institutionalized racist component. To a significant degree, it is a prisoner of its own membership in which large [Halifax] firms have an influential role. Some of those involved want to bring about change without disturbing the Bar Society as a whole. It can’t be done.57 In October 1996 council held its regular monthly meeting at an elementary school in North Preston, an historic African-Canadian community outside Dartmouth. President John Merrick, who somewhat unusually was also chair of the society’s race relations committee, was candid enough to acknowledge that “the society … is viewed by members of the black community as being closed and indifferent to its needs.”58 A more substantive response came the same year when the society hired a lawyer as equity officer (afterwards a full-time permanent staff position) to cover both race relations and gender equality. In December 1998 the executive director went on record as stating that the government should apply affirmative action standards when awarding contracts for legal services.59 But when government’s new process for promoting employment equity in law firms

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was finally delivered, in January 2001, council – influenced by small firms and sole practitioners outside metropolitan Halifax – resisted it.60 The society’s “report card” ten years after the Marshall Inquiry report came in the form of its October 2000 response to the report of government’s employment equity guidelines committee.61 The introduction cited recommendation eight of the report (“One reason Donald Marshall, Jr. was convicted of, and spent eleven years in jail for a murder he did not commit is because Marshall is an Indian”)62 and continued, It was with these blunt words that the commissioners investigating the wrongful conviction of Donald Marshall, Jr. shook the administration of justice and the legal profession in Nova Scotia to their core. If discrimination in the justice system had previously been ignored, that was no longer possible in the post-Marshall era.63 Two further pages were devoted to “The Aftermath of Marshall.” The implications of the commission’s report seemed much graver in retrospect than the inquiry itself did when it was announced and in progress or when the society was trying afterwards to decide whether and, if so, how best to respond to it. The postmodern history of the Nova Scotia Barristers’ Society may be considered to have begun with the Marshall Inquiry report. By any standard the report was a watershed. It took trenchant criticism of prominent lawyers to make the society see that it should have engaged much more closely and constructively with the inquiry when it was underway. The report raised a serious question relating to governance and professional responsibility – to what extent was the society responsible for the conduct of its members when, however discreditable, it did not necessarily amount to grounds for discipline? Perhaps the most remarkable incident of the entire affair was that among the witnesses testifying at the public hearings in Sydney in November 1987 was a newly called woman lawyer. On 28 May 1971, as a young teenager in Sydney, she was one of the last people to talk to Sandy Seale the night of his murder. In 2003 that lawyer, Gail Rudderham Chernin, became the third woman president of the Nova Scotia Barristers’ Society. She writes, “I did know Junior Marshall and I knew Sandy Seale very well. It was a traumatic event in my life because I was one of a handful of people (all teenagers) to see Sandy minutes prior to his death and I always questioned what would have happened had he joined our group to return home instead of the route he took.”64

7

Made in Manitoba: The Society and the Legal Profession Act

iN hiS PAth-BrEAKiNg hiStOry OF thE LAw SOCiEty of Upper Canada, Mark Orkin pointed out that the LSUC “waited some 57 years – from 1912 to 1969 – before attempting a major revision of the Law Society Act, but the pitcher went many times to the well during that period.”1 The Nova Scotia Barristers’ Society waited a century, and the pitcher went many more times to the well during that period. It is therefore fitting that this history of the society should include a milestone and a watershed – the 2005 coming-into-force of what was originally conceived to be “a new Barristers and Solicitors Act.” The BSA, first enacted in 1899, had been substantively consolidated only once, in 1939. The 1952 act to amend and “consolidate” the BSA was not really a consolidation at all,2 nor did council intend it to be. The BSA had been amended only four times since 1939,3 and there was not enough new material to warrant a consolidation. Council was seeking only two further amendments: one permitted articled clerks to appear on behalf of their principals in order to make motions in the lower courts; the other confirmed that the secretary-treasurer was not an officer but an employee of the society appointed by council who held office during good behaviour.4 Why Attorney General Patterson took it into his head to consolidate an act that had undergone a massive revision and modernization just thirteen years earlier remains a mystery. None of his successors would take a similar path, even when the necessity of doing so became obvious. Patterson’s BSA would stand for 52 years, subject to more or less continual amendment. By the late 1960s it was clear that the BSA was not ageing gracefully and that a second substantive consolidation comparable to 1939’s was badly needed. Concern was expressed, motions passed, and resolutions proposed,

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but no action was taken.5 The longer the BSA remained unconsolidated, the more amendments proliferated. Between the 1954, 1967, and 1989 editions of the Revised Statutes6 (as well as between 1989 and 2000), rarely a year went by without amendments, some of them highly significant and substantial; the BSA had outgrown its skin and was in danger of collapsing under its own weight. There would have to be either a massive renovation and rebuilding or a new structure altogether. The framework of the BSA, unchanged since 1899, could no longer accommodate the sheer number, extent, and complexity of amendments accruing.7 The deeper the BSA declined into senescence, the harder it became to amend. A new BSA was needed, one that reflected the accumulated wisdom of the twentieth century as effectively as the original BSA had done the wisdom of the late nineteenth. Though a creature of its time and circumstances, the BSA had changed with the times while remaining fundamentally the same. The 1999 centenary of self-regulation may have passed unnoticed, but by then it was clear that the legislative infrastructure was in urgent need of renewal. In November 2000 the last amendments to the BSA were enacted.8 These amendments eliminated the dead-letter prohibition against advertising; authorized the executive director to apply for an injunction against anyone undertaking the unauthorized practice of law; reduced the number of regular members of council from thirty-four to twenty-one and of lay members from five to three and eliminated both the eight members-at-large and county-based regional representation; renamed and further revised the constitution of the professional liability claims fund; and deleted or substituted references to “taxing master” and “taxing officer” by adjudicators in the Small Claims Court. In June 2001 the last of these amendments came into force, as did the wide-ranging new discipline regulations. In July, in his first column for the society journal, the new president stated, “With … substantive changes in our discipline process, recent changes in our election process and the expected report of the governance task force a complete review of our legislation is needed, to ensure all aspects are in keeping with the way we now govern our legal profession.”9 Taken as a whole, BSA was no longer in keeping with the way the legal profession was governed. In both form and substance it was obsolete. The regulatory power especially was defective by its generality, especially in relation to professional responsibility. It was also seriously out of date, retaining the long-disused power to make regulations respecting legal aid, law reporting, and Dalhousie Law School’s legal aid clinic. Council

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had also enacted regulations in areas where it had no authority to do so. The 1982 advertising regulations, for example, coexisted with the fortyyear-old statutory prohibition against advertising, which in turn went unrepealed for nearly twenty years after the regulations were enacted. The regulatory power underlying discipline (“professional responsibility”) had not changed since 1885.10 Not until 1939 did the consolidated regulations include a “discipline” section. Despite being the most extensive and most complex unit of the regulations, the discipline regulations had the weakest foundation in the BSA’s regulatory power. The tipping point – probably the deepest concern driving the legislation development project – was that the BSA lacked a regulatory framework strong enough to support the new discipline regulations. That was potentially a serious matter that might very well have led to a legal challenge to council’s exercise of its powers in relation to discipline. Council’s annual work plan for 2001–02 included the following action item: “Review and complete overhaul of the act [BSA] with priority given to the discipline regulations so they can be presented to the legislature.” (What was meant, of course, was the discipline regulation-making power.) The prescribed outcome was to adopt a “modern and up-to-date Legal Profession Act.”11 While council’s annual planning session in June 2001 downplayed the BSA review as “more of a housekeeping matter,”12 the executive committee, to which the annual plan assigned responsibility for the project, took a more nuanced view. “It has been [six] decades since the last overhaul of the Barristers and Solicitors Act, even though it has been amended on numerous occasions. Issues such as the definition of the practice of law, the legislative structure governing discipline and admission of lawyers, and the society’s mandate will be considered as part of this process.”13 Initially, nothing more was intended or attempted than a systematic revision and consolidation of the BSA. Gone were the days, however, when the society’s solicitor simply put pen to paper and wrote out a new act, as F.W. Bissett had done in 1939. Overhauling the BSA was almost continuously on the executive committee’s agenda from July 2001 onwards. The question and challenge facing the committee was how to deliver on the annual plan’s commitment. Logistically, reviewing and revising the BSA would be time-, labour-, and cost-intensive, as the Law Society of New Brunswick had discovered when they replaced their governing legislation in April 1996.14 The first vice-president “expressed his concern that a global

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review of the Barristers and Solicitors Act would take quite some time” and emphasized that a revision of the regulatory power as it affected the discipline regulations was the higher priority.15 A tentative decision was reached to refer each of the BSA’s fifteen parts to review by the appropriate committee. After deliberating on strategy throughout summer and autumn 2001, the executive committee decided that the best course of action was to outsource the legislative development project. Accordingly, a request for proposals (“Revisions to the Barristers and Solicitors Act”) was drafted, setting forth the objectives for a revision, scope of work, timetable, and budget. As the overview of the society provided in the rFP correctly observed, “The Barristers and Solicitors Act, although amended many times since its initial enactment, has not been subject to a complete revision in many years [sixty-two] and is now not the type of legislation required to govern the legal profession in the 21st century.” In December the executive director wrote the managing partners of the larger metropolitan law firms, announcing council’s decision that the time had come to rewrite completely the BSA and soliciting responses to the request for proposals by 18 January 2002. Five firms responded. The winning proponent was Marjorie Hickey, qC (co-managing partner of the Halifax office of Patterson Palmer and a future president of the society).16 The president and the executive director also met with the minister of justice “to alert him to the fact that we were looking at doing a complete rewrite of the Barristers and Solicitors Act.” The minister, Michael Baker – a small-town lawyer with council experience with whom the executive committee had a good working relationship – was cautiously optimistic about the prospects for such an undertaking, advising that a significant degree of public consultation would be necessary.17 In March 2002 Hickey sent the executive director a substantial memorandum detailing preliminary matters for inclusion in the proposed legislation, specific items for which council input was sought, a schedule (the draft bill to be ready for review by the Department of Justice in December), and stakeholders to be consulted. At the council meeting later that month, which received and reviewed the proposal, the society’s ancient and venerable name became an issue. The executive director pointed out, “Nova Scotia is the only society called the ‘Barristers’ Society and all others are law societies,” eliciting the predictable response from a traditionalist from out of town that nothing should change but what had to.18 The riposte proved ironically prophetic; almost everything changing except the name

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of the society. That included the name of the act, which would cease to be Barristers and Solicitors Act and become not “Law Society Act,” which was standard across the country, but the innovative “Legal Profession Act.” In May the forty-three-page Hickey report (“Discussion Paper regarding a Proposed Legal Profession Act in Nova Scotia”) was presented to the executive committee and then to council.19 In twenty-three short chapters, the discussion paper dealt concisely with the possible or necessary features of a new act, including whether paralegals should be referenced in or regulated under the act, as was the case in Ontario. The conclusion stated, The nature and number of matters for direction which are outlined above will necessitate significant consultation and dialogue with all stakeholders involved with new legislation for the governance of the practice of law in Nova Scotia. It is to be emphasized that this discussion paper is only the beginning of this consultation process, and as draft legislation is developed based on policy direction received from … council, further opportunities will be provided for additional input.20 Released early in June, the discussion paper was widely circulated – among the county bar association presidents, the managing partners of the ten largest law firms, and the heads of six of the other self-regulating professions; it was also posted to the society’s website. Comments were called for by 20 September. Few were received, and in any case by then the discussion paper had been made redundant. Council’s annual plan for 2002–03 saw completing the review of the BSA shoot to the top of the priority list. During the society’s annual meeting in June 2002, council held a workshop in order to deal with a number of issues identified in the discussion paper and to give broad policy direction for drafting a new legal profession act. The intent was to use council’s direction to begin the process and then incorporate comments received from the membership and other stakeholders as drafting proceeded. The workshop itself was not entirely satisfactory, one prominent qC remarking that the discussion “was very contradictory.”21 The new president wondered whether a special meeting of the society should be held to discuss the revisions (none was). The assigned solicitor in the legal services division at the Department of Justice suggested that the draft act should go to Justice before it went to council. The “final” draft – in the end there were

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eight – would not be final until Justice had vetted it as to content and the legislative counsel as to form. In his first “President’s View” column, Raymond Larkin wrote, The biggest single challenge that I face as president this year [2002– 03] will be to make sure that the society delivers on the first item in … council’s annual plan: a comprehensive review of the Barristers and Solicitors Act with a view to drafting a modern legal profession act for Nova Scotia. The Barristers and Solicitors Act was enacted in 185822 and has been amended piecemeal since that time. However, the challenges of self-government of the legal profession in the 21st century have outgrown the framework of our 19th century statute.23 Then a bolt from the blue changed everything. In June 2002 Manitoba introduced Bill 48, the Legal Profession Act, to replace its Law Society Act.24 Sometime between June and August, when Bill 48 was enacted, it was decided to adopt Manitoba’s LPA as Nova Scotia’s.25 The executive committee met the very day – 9 August 2002 – the Manitoba act was passed, but legislation development was not on the agenda; it no longer needed to be. Marjorie Hickey was advised of the new policy direction and assigned the task of adapting Manitoba’s LPA to fit Nova Scotia. Her question, “Where do we go from here?” had been answered in a manner she could hardly have anticipated. In the apt words of the executive director, “the policy was dealt with first, then the language.”26 The Gordian knot of a lengthy and potentially difficult legislation development process had been cut. The BSA would not be revised but replaced by an off-the-shelf, ready-to-wear substitute from another jurisdiction. Manitoba’s LPA ideally suited the president’s vision: “The new legal profession act should reflect the reality of a modern, progressive, self-governing legal profession in Nova Scotia in both its symbols and its content.”27 Not only was Manitoba’s LPA brand-new, it was also the most advanced and up-to-date in the country. From there came the plainlanguage initiative, the purpose clause, “lawyers” instead of “barristers and solicitors,” restoring the attorney general of Canada as an ex officio member of council,28 making articled clerks (law students) members of the society, a complaints investigation committee entirely separate from the hearing committee, and distributing regulatory powers among the sections of the act to they which they pertained. It was a more efficient

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and economical use of time, not to mention both human and financial resources, to adapt a legal profession act from another jurisdiction comparable in size and with the same urban/rural split as Nova Scotia. A drastically compressed approval and implementation schedule became feasible. There was suddenly no need for a council round table to settle policy direction or a stakeholder focus group to discuss the discussion paper. That Manitoba’s LPA bill was easily available in electronic form on the website of the Legislative Assembly of Manitoba greatly facilitated its adaptation.29 As in Manitoba, so in Nova Scotia, the bill replaced the existing act regulating the practice of law, updated the language, and simplified the schema. While it did not carry forward new provisions for appointing queen’s counsel, it included provisions continuing the Nova Scotia Barristers’ Society and its governing body; defining who may practise law in Nova Scotia; concerning protection of the public in the delivery of legal services; and continuing the Law Foundation of Nova Scotia. Collating the structure of the two legal profession acts is revealing (see table 7.1).30 The policy direction settled, events began to move quickly. By 17 September 2002 Marjorie Hickey had produced the first working draft of a Nova Scotia LPA. It came too late, however, to go to council in September, while council’s October meeting was cancelled. In November council was presented with a fait accompli: the president and executive director had reviewed the bill for structure and content, and the minister and deputy minister of justice had been briefed. Hickey did not exaggerate when she remarked, “virtually every section has changed [from the BSA] and needs to be looked at.”31 One member of council wondered where the draft had come from. Another queried why a new act had been drafted before council had set the policy to do so.32 The LPA went piece by piece to the relevant committees for consideration, while in December the president wrote the membership announcing it: There is no more important work on the council agenda than its development of a new legal profession act to replace the Barristers and Solicitors Act. Since the act was first incorporated [passed] in 1858 [1899], it has had many amendments over the years.33 I think that anyone who is familiar with it would agree that now amendments will not work; it needs to be updated and modernized in its entirety.

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Table 7.1 Manitoba LPA

Nova Scotia LPA Short Title – Interpretation

Part 1 Definitions

Part I The Nova Scotia Barristers’ Society

Part 2 The Law Society

Part II Authority to Practise Law

Part 3 Authority to Practise Law

Part III Protection of the Public

Part 4 Law Corporations

Part IV Lawyers’ Fund for Client Compensation

Part 5 Representation in Highway Traffic Matters

Part V Lawyers’ Insurance Association of Nova Scotia

Part 6 Protection of the Public (Divisions* 1–12)

Part VI Legal Fees

Part 7 General

Part VII The Law Foundation of Nova Scotia

Part 8 The Manitoba Law Foundation

Part VIII General

Part 9 Transitional Provisions, Consequential Amendments and Coming into Force

Part IX Transitional Provisions

* “Divisions” were subdivisions of Part 6 of the Manitoba LPA (“Protection of the Public”). They were ultimately dropped from the Nova Scotia LPA, as they did not conform to the Nova Scotia style of legislative drafting.

The process to date has resulted in a draft form of a new act. In writing to you now, I invite you to make comments on the proposed act which will be considered by council as part of its review in the coming months.34 That very month the society found itself dealing suddenly and unexpectedly with a new minister of justice who was not a lawyer. Though arrangements were made for the president and executive director to meet with him, the timing and outcome of the cabinet shuffle could hardly have been worse for the society’s purposes. Michael Baker would not resume the portfolio until August 2003.

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By early January 2003 the draft LPA had been posted to the society’s website, and the president was soliciting comments from the membership. Larkin’s circular drew attention to a number of features,35 most – though not all – of which would make their way into the LPA as enacted: a proposed new name for the Society (Law Society of Nova Scotia); a clear, succinct purpose clause; clarification that council is the governing body; a new and improved definition of the practice of law; regulation of law firms; clarification of the authority and procedures for the discipline process; a statutory appeal provision for the discipline process;36 clarification regarding confidentiality and privilege in the discipline process; [and] clarification regarding taxation and collection of fees. In order to conserve time and “fast track” the bill’s introduction, the bar’s review proceeded in tandem with council’s, which began its work in January with the governance aspects: Parts 1, 2, 3, 5, and 6 (Divisions 1, 2, and 3), “Protection of the Public.” March’s meeting continued the discussion of Part 6 – the very heart of the act – encompassing the entire professional responsibility process. By May council was ready to pass a resolution approving the eighth working draft of the LPA for submission to the Department of Justice.37 Later that month, the draft was sent to the Justice solicitor assigned to conduct the review. The executive director wrote in his covering letter, “Overall this has been a very inclusive process of drafting which has resulted in some significant compromises, but also a piece of legislation which we feel reflects the views of the profession and its desire to have a modern piece of legislation which gives the Society what it requires to effectively govern in the public interest.”38 Despite council’s hope and request that the legal profession bill be introduced in the legislature “at the earliest opportunity,” momentum seems to have been lost. The new minister, a professional educator and only the second non-lawyer to serve as attorney general, had no particular interest in or knowledge of the matter, nor was the measure in any sense a political or other priority for the Progressive Conservative government of Dr John Hamm (a physician). The Assembly, moreover, had just risen, so there was no possibility of the bill’s being introduced before autumn 2003 at the earliest. Little progress was made between July 2003 and August 2004. Council’s annual plan for 2003–04 saw the project fall from top priority

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(“Liaise with government39 to encourage introduction of the proposed Legal Profession Act and in consultation with government and other affected parties, develop the applicable regulations”). There was, of course, little the society could do until Justice had completed their review. The general election call early in July 2003 induced the executive committee to postpone any further work on the LPA until the new government was sworn in. August’s provincial election saw the Progressive Conservative majority government reduced to a minority, but Michael Baker fortuitously resumed the post of attorney general and minister of justice, which he had lost the previous December. It was a good omen, and the society lost no time renewing the relationship. As late as September, the executive committee still hoped that the bill could be introduced at the autumn session, but it was not to be; the LPA bill did not form part of the government’s “ambitious legislative agenda” when the legislature opened on 25 September. The day before, Baker told the president that the legal profession bill would not go forward until spring 2004. Meetings were held with the justice critics of both opposition parties with a view to obtaining bipartisan support for the bill. No further progress was reported December through April, other than that by the end of 2003 the legal profession bill was in the hands of the legislative counsel. Review and revision of the draft continued into 2004. The bill was not ready to be introduced at the spring session, though as late as January, when the minister addressed council, he was still hopeful that it would be.40 A full year after it had been submitted to legal services at the Department of Justice, the LPA bill was still awaiting introduction in the legislature. By the time the LPA project was in its third year, 2003–04, concern was being expressed as to whether the new act would enhance or diminish self-regulation. In Canada, as well as elsewhere in the Commonwealth, questions were being raised about whether the independence of the bar depended on self-regulation and, if so, whether traditional models of professional regulation were adequate. High anxiety among lawyers resulted when in 2003 the Australian state of Queensland removed from its law society the authority to govern the bar and vested it in an independent commission. Worse still, in September 2003 the British government inaugurated the process – completed in 2007 – of removing from the 178-year-old Law Society of England and Wales its exclusive right to regulate the solicitorial branch of the legal profession. Members of the Nova Scotia Barristers’ Society were asking themselves, “Could it happen here?” If the society did

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not regulate the practice of law in the public interest to the satisfaction of government, then self-regulation would be out the door and with it – so it was assumed – the independence of the bar.41 In February 2004 two professors in Dalhousie University’s faculty of law published in the Society Record a thinly disguised satire, which began thus: “2004 has dawned in the sleepy shire of Nova Scotia and all seems well. There is some talk of reforming the Barristers and Solicitors Act but there is consensus that the changes will be minor … modest refurbishings, little else. Self-regulation, if mentioned at all, is only discussed in shadowy corners.”42 A few years later one of the authors, Richard Devlin, returned to the subject with a vengeance. In the introduction to his contribution to the 2007 centenary conference of the Law Society of Alberta, he observed, “For example, in Nova Scotia in the early 2000s, it was decided that it was necessary to modernize the legal regime governing the legal profession, as the Barristers and Solicitors Act was fast closing in on its 150th [100th] birthday.43 Not once in the process was there any serious discussion of the appropriateness, or otherwise of self-regulation.”44 Though the point was well taken, evaluating the merit of self-regulation as a model for professional regulation was not the aim of the exercise. Nor was there any question that the Legal Profession Act was far more than a redrawn BSA. The regulatory regime had been significantly upgraded. Among the action items in council’s annual plan for 2004/05 was to get the LPA introduced in the legislature and passed without delay. Then and only then could regulation development commence. Early in September 2004 the president and the executive director met with the minister of justice and the deputy minister; given the amount of time that had elapsed, it was agreed that council would have to reapprove the final draft of the proposed LPA before its introduction.45 It became clear at council’s September meeting that certain matters of substance still remained outstanding. Among them was fitness to practise – the hottest of hot-button issues – on which Justice wished further discussions. Subclause 36(2)(h), to which the minister took strong exception, had to be toned down, and was: where there is reason to believe that a member of the society may be suffering from a physical, mental or emotional condition, disorder, dependence or addiction that may impair the member’s ability to practise law with reasonable skill or judgment, [the complaints

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investigation committee may] order the member to submit to physical or mental examination by a person or persons qualified to do so.46 One other offending section aside, council gave final approval to the bill in the form in which it would be presented. The legislature opened on 23 September 2004, and on 8 October the minister of justice presented Bill No. 130, the Legal Profession Act. The president and the executive director, both of whom were present in the gallery, were introduced by the minister and welcomed by the speaker – all under the watchful eye of James W. Johnston, the society’s first chief executive, whose portrait by Henry Sandham hung in the chamber. According to the accompanying media release, “Lawyers in Nova Scotia would operate under more modern principles and guidelines in legislation introduced today.”47 The bill was to have a much briefer and smoother ride through the legislature than it had had through council and the Department of Justice. Ten days after first reading, it passed with but one substantive amendment. In his speech moving second reading the minister stated, this bill is a result of an exhaustive review of the current act that governs the legal profession in this province, the Barristers and Solicitors Act. This bill is intended to replace that act, and is intended to provide an enhanced governance model for the society as it goes about its business in the future. The primary role and responsibility of the Nova Scotia Barristers’ Society is to regulate the legal profession in the public interest. That is the most fundamental duty of the society, and one which is enshrined in this piece of legislation.48 While it was scarcely true that the LPA had resulted from an exhaustive review of the BSA, despite that having been the original intention, the minister’s comments touched on an issue much discussed when the legislation development project was underway: whether the purpose of the society was to regulate the legal profession or the practice of law. According to the LPA, it was the latter. Neither the leader of the official opposition nor the leader of the Liberal Party, lawyers both, spoke to the bill. The NDP house leader/justice critic led for the opposition and was complimentary in his remarks. The same

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could not be said for the Liberal justice critic, another lawyer, who spoke at greater length than anyone else and did not mince words: I have met with the president of the Nova Scotia Barristers’ Society, Mr John McFarlane, whom I want to thank for his helpful interventions on this legislation and I made it clear that there were specific aspects of this bill which I was not comfortable with. As a parliamentarian, one of the aspects of the bill which caused me concern is the vast amount of regulation power that is being given to the society in this legislation. Now, I have realized that as parliamentarians we do not want to tie the hands of societies from being able to administer their affairs but, at the same time, if your goal is to have the protection of the public interest, you want to make sure that the public has the sense of comfort that their interest is being protected and any changes to such legislation would have to come before the House. Does this bill strike that proper balance? Only time will tell, Mr Speaker, but I can tell you I have expressed those concerns and I still do hold those concerns as to how the bill itself is structured.49 Michel Samson (called 1998) went on to procure the only substantive amendment to the bill, making the president of l’Association des juristes d’expression française de la Nouvelle-Écosse (AjEFNE) an ex officio member of council. He was followed by a second NDP front-bencher – a social worker by profession – who was the health critic and approached the bill from the perspective of both regulated and unregulated health and health-related professions: So when I learned that this legislation was being brought forward this fall, my question was, well what, frankly, is so special about the legal profession that isn’t so special about some of these other groups, and I want to put on the record, so that perhaps the government will pay some attention to some of these other groups that they are ignoring in the process here in the legislature.50 Maureen MacDonald was followed by a third member of the official opposition, a prominent lawyer who offered this well-meant but unhelpful history lesson:

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We do have to remember that the barristers and solicitors of Nova Scotia are historically, I think, the first self-regulating profession here. Legislation first passed this House to deal with the profession in 1858. There has been continuous self-regulation since that time. What that means is that there’s extensive experience that’s been gained by this profession in self-regulation, in incorporating the public interest and in dealing with the complicated questions that come along with that obligation.51 Lawyers were the first regulated profession but not the first self-regulating, which was the medical. Legislation first passed the House to deal with the legal profession in 1811. The legislation passed in 1858 incorporated the society; it had nothing to do with regulating the legal profession. Self-regulation had been continuous only since 1899.52 That intervention concluded debate on the bill, which passed second reading and went to the committee on law amendments. On the 18th it went to the committee of the whole house on bills. Later that day it came up for third reading; the executive director was present in the gallery to hear the minister congratulate him as “one of the chief architects of the drafting of this bill today.”53 He was followed by both the official opposition and the Liberal justice critics. The latter, speaking partly en français and lamenting that while the society could now be referred to as “Le Barreau de la Nouvelle-Écosse,” the LPA was published only in English; not even its title was rendered en français (a significant departure from the Manitoba LPA, which was rendered fully in both official languages). Michel Samson also spoke to his amendment, which received bipartisan support.54 The bill passed third reading and received royal assent on 18 October.55 It was to come into force on proclamation. Though a far cry from a Barristers and Solicitors Act redux, the LPA included all the relevant amendments to the former act passed since 1988, refining them where necessary. Former regulatory material deemed inappropriate for the regulations, such as the society’s “Objects” clause (renamed “Purpose”) and open formal hearings, were added to the act. The LPA included a new definition of the practice of law (borrowed from the American Bar Association), a framework for mandatory continuing education for lawyers, a framework for the regulation of law firms, a fine-tuning of the powers and procedures governing the disciplinary role of the society and trust accounts, and a new absolute limitation period on

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actions against lawyers. One change recommended but not made was to the society’s name; in May 2003 council voted down “The Law Society of Nova Scotia” in favour of the traditional moniker. Another holdover from the BSA was the appointment of queen’s counsel (section 78), which was left unchanged, excepting only that the fifteen-years’ standing unofficial requirement replaced the former ten. The immediate past president ceased to be an ex officio member of council, while the executive committee failed in its quest for statutory entrenchment. On paper at least the executive committee was just another committee, provided for by Section 12 (committees) of the LPA and the committees regulation (§2.9). Proclamation of the Legal Profession Act depended on when the new regulations were drafted and approved by council. A five-member regulations task force was established in November 2004, chaired by past president Ray Larkin (2002–03) and including both the executive director and Marjorie Hickey.56 Council’s role was not to draft but to review and approve the new regulations. The task force brought forward the regulations in batches for consideration by council in January, March, and April 2005. This eminently sensible approach was dictated by the structure of the LPA, which linked the regulatory power directly to specific areas such as “general,” trust accounts, and professional responsibility. By April regulation preparation was complete. All that remained was further consultation on some outstanding issues with the Department of Justice. Among them was that the minister still had concerns “about medical fitness and mental health, noting that questions about mental health are felt to be discriminatory.”57 In April 2005 the executive director wrote the deputy minister of justice, formally requesting that the LPA be proclaimed in force as of 31 May.58 The draft regulations, having been approved in principle by council, were being circulated among the membership, together with an explanatory covering memorandum; they had also been posted to the society’s website. It was anticipated that council would review the regulations and grant final approval on 27 May, with a view to promulgation on the 31st when the LPA came into force. Though the minister was willing to ask cabinet to proclaim the Legal Profession Act, there was a caveat. In correspondence with the executive director, the deputy minister stated, As you know, throughout the development of the Legal Profession Act and in the course of reviewing draft regulations, Minister Baker

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expressed a number of concerns with respect to the appropriate role of the society in identifying, monitoring and supporting members and prospective members who have a history of mental health or addiction issues. Unfortunately, these concerns have yet to be laid to rest. He has therefore asked that I strongly urge council to establish a committee to consider whether the society’s regulations, practice and procedures in this regard … comply with the Human Rights Act and the Charter, and to recommend to council any changes that might be needed.59 In view of what was at stake, the response had to be swift and sure. The following day, the first vice-president replied, assuring the minister that a task force would be set up to address his concerns.60 On 27 May 2005 an order-in-council was passed proclaiming the LPA in force on 31 May.61 The society celebrated its achievement in June’s issue of the Society Record, whose cover featured three of the four presidents who had been directly involved in the adoption of the new LPA.62 Fittingly, Larkin, who as president in 2002 had promoted the Manitoba transfer, contributed the lead article: For nearly 150 years [105], the lawyers of Nova Scotia have governed themselves as members of the Nova Scotia Barristers’ Society under the framework of the Barristers and Solicitors Act. First enacted in 1858 [1899], the Barristers and Solicitors Act has been much amended, but it was not until the spring of 2003 [2001] that bar council decided to do a comprehensive review of the Barristers and Solicitors Act with a view to drafting a new Legal Profession Act.63 What began as a project to rehabilitate the BSA led to its replacement by an act imported from another jurisdiction. The society had glimpsed a star in the west – new governing legislation from a law society that had been responsible for professional self-regulation some twenty years longer than the Nova Scotia Barristers’ Society. From first to last, Manitoba’s LPA proved highly adaptable and an excellent fit. The decision to import it was inspired. History will determine whether Manitoba’s LPA in its Nova Scotia iteration proves as durable a milestone as its predecessor did. The same issue of the society’s magazine that celebrated the cominginto-force of the LPA posed the question, “Does Nova Scotia’s new Legal

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Profession Act address the issues facing the practice of law in the 21st century?” The respondents were a professor at Dalhousie Law School, for whom the LPA did not go far enough, and a private practitioner in a smaller metropolitan law firm, for whom the LPA went much too far (“I believe that the new act and regulations go beyond what is reasonably necessary to regulate the legal profession in Nova Scotia in the 21st century”).64 When does regulation, especially relating to medical fitness, become excessive and threaten discriminatory interference? Was the benchmark the bare minimum necessary to protect the public or the maximum possible to protect lawyers from themselves? Did the society trust its own members to regulate themselves? In some respects the LPA was both the product of and the response to the society’s sanguinary “long 1990s” experience of discipline disasters. It was clear from the start, and even clearer at the end when the society was dealing with a massive defalcation, that the whole legislation development project had been driven by the pressing need to construct a regulatory infrastructure robust enough to ensure that discipline regulations could be as strong as they needed to be. The professional responsibility focus had shifted decisively from remediation and rehabilitation to monitoring and prevention. Inevitably, given the number of stakeholders – the bar, council, the executive committee, the minister, and the Department of Justice – the LPA represented a compromise among different points of view not easily reconciled. Equally inevitably, some unfinished business was deferred in order to ensure timely passage of the bill. Indeed, there were some areas in which consensus was not only difficult but nearly impossible to achieve. Not everything that needed to be done (or redone) could be dealt with at once. A mere five years after coming into force, the LPA underwent significant amendments. By 2010 different environmental factors were in play. Michael Baker left office in February 2006, to be succeeded by another non-lawyer, this time a former police officer. Three years later, the New Democratic Party came into office, and the new minister of justice was another non-lawyer and former police officer. Whatever the impact of these developments, the 2010 amendments suggested that the LPA was not working as well as intended or that five years’ operational experience had shown that it could or needed to work better. In May 2010 the minister of justice introduced Bill No. 63, An Act to Amend the Legal Profession Act. The Department of Justice was at pains to distance itself from the initiative,65 which included at least one

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provision – establishment of a new regulatory committee – that six years earlier would have been extremely controversial. According to the explanatory note, the amendments extended the professional responsibility mandate of the Nova Scotia Barristers’ Society to include capacity; altered the composition of the council of the Nova Scotia Barristers’ Society; added the Lawyers Assistance Program to the mandate of the Lawyers Insurance Association of Nova Scotia; established a fitness to practise committee and a credentials appeal panel; protected the confidentiality of complaints against a lawyer; and corrected typographical and grammatical errors.66 “Capacity” was code for medical fitness, a significant stumbling-block in 2004 and an issue about which Attorney General Baker and the society had agreed to disagree in order to get the LPA passed. In keeping with council’s determination to reduce its size and emphasize its democratic character, four of the six ex officio members of council (apart from the officers of the society) were removed: the Attorney General of Canada (or representative), the president of the Nova Scotia Branch of the Canadian Bar Association, the president of the Association des juristes d’expression française de la Nouvelle-Écosse, and the chair of the board of directors of the Lawyers’ Insurance Association of Nova Scotia (formerly the Nova Scotia Barristers’ Liability Claims Fund). The hearing committee was also empowered to act as a credentials appeal panel, which formerly had been the role of council. Removing the president of AjEFNE as an ex officio member of council was a politically sensitive measure that required the most careful management. No sooner had the minister resumed his seat after moving second reading of the bill than the justice critic for the official opposition Liberals was on his feet objecting in strong terms to deleting from the LPA the very provision he had personally sponsored, with all-party support, in 2004.67 Michel Samson believed that removing AjEFNE’s president from council was a backward step that reflected on the society (“almost an insult to the House”) and complained that the society had not responded to his expression of concern. Though Samson did not carry through on his promise to have the offending provision quashed when the bill reached the committee on law amendments, AjEFNE’s opposition to the measure delayed passage of the bill by seven months.

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The executive committee was already negotiating with AjEFNE, which in the end acquiesced in the forfeiture of its council seat68 – subject to a quid pro quo that the society reluctantly conceded. A further amendment was added, to the purpose clause of the LPA: “[In pursuing its purpose the society shall] seek to improve the administration of justice in the province by regularly consulting with organizations and communities in the province having an interest in the society’s purpose, including, but not limited to, organizations and communities reflecting the economic, ethnic, racial, sexual, and linguistic diversity of the province.”69 Despite an unsuccessful attempt to amend the amendment by specifying AjEFNE as an organization that must be consulted, the proposed amendment was carried in the committee on law amendments and incorporated in the bill as passed. AjEFNE candidly reported that despite their best efforts they could not prevent their removal from ex officio membership of council.70 Most significantly of all, the LPA amendments saw “incapacity” (medical unfitness) become the fourth ground for discipline. This set the stage for the establishment of a fitness to practise committee, with broad powers to investigate incapacity or an allegation thereof on reference of the executive director or the complaints investigation committee (CiC). The new committee might also refer a matter to the CiC, whereupon it became a complaint. Like the complaints investigation committee, the fitness to practise committee had “all the powers conferred by this act and the regulations in the discharge of their functions as well as the powers, privileges and immunities of a commissioner under the Public Inquiries Act.” Moreover, the CiC was empowered to require any member who was the subject of a complaint investigation to undergo a medical assessment. The amending bill was finally passed in December 2010 and, unlike the LPA, came into force on royal assent.71 After nearly ten years, the project to replace the Barristers and Solicitors Act was finally complete. By then Marjorie Hickey, who had adapted Manitoba’s LPA as a madefor-Nova Scotia solution, was president of the society. Her sense of history had not deserted her. Speaking to the recent LPA amendments in the “President’s View,” she began by drawing attention to the bicentenary of statutory regulation: “The year 2011 marks the 200th anniversary of the first legislation to regulate lawyers in Nova Scotia.”72 For all but eleven of those years (1825–36), which coincided with the society’s infancy and childhood, the legal profession had not lacked for statutory regulation. The society, for its part, possessed the longevity and uninterrupted continuity

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that self-regulation did not. Yet tradition may still trump history. In 2014 Hickey, lead counsel for the respondent society in Trinity Western University v. Nova Scotia Barristers’ Society,73 a case relating to the scope and exercise of council’s regulatory power, alluded thus to the society’s historical role: “The society was formed in 1789 and since that time has had the authority to regulate the practice of law in Nova Scotia.”74 The society was formed in 1825 and since 1899 has had the authority to regulate the practice of law in Nova Scotia. Statutory regulation of the legal profession is older than the society, and the society older than self-regulation. What legislation did not do, though it might very well have done in 1789, 1811, or 1825, was bring the society into existence. Had that been the case, the chain-link between the society and the authority to regulate the practice of law might well have been forged long before 1899.

8

The Society and Professional Regulation

ON FriDAy, 3 MArCh 1911, thE COUNCiL of the Nova Scotia Barristers’ Society met in the offices of its re-elected president, James Johnston Ritchie,1 for the inaugural meeting of the new society year (which in those days ran February through February). The minutes of the previous regular monthly meeting were read and approved. The standing committees – library, legislation, law reporting – were appointed. Council recorded its opposition to a draft bill to amend the Collection Act to provide for the appointment of two commissioners with exclusive jurisdiction to examine debtors and authorized the call to the bar of a Dalhousie LLB who had not served his full term of articled clerkship.2 The minutes that were read and approved that afternoon do not survive, nor do those of any meeting of council from its beginning in February 1860 to February 1911. In short, no evidence exists of council proceedings for its first fifty years, a critical period during which council came to a modus vivendi with Dalhousie Law School and began to acquire those regulatory powers that led in 1899 to its becoming the governing body of the legal profession. Even more seriously, the loss of council minutes 1899–1911 deprives historians of any significant evidence of how council governed the bar during the early, formative years of self-regulation. For example, we do not know why the offices of secretary and treasurer were merged in 1900, only to be separated anew in 1905; why in 1904 council acquiesced in the expansion of its own membership without an amendment to the BSA authorizing it;3 or who or what was behind the bizarre 1910 amendment to the BSA that saw the chief justice become an ex officio member of council.

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Council existed for nearly forty years before it became the governing body of the legal profession. From 1860 to 1899 it was the governing body of the Barristers’ Society, not the bar – this at a time when the society and the bar were separate institutions and most lawyers did not belong to the society. Upon reorganization of the society in February 1860, council replaced the former committee of three benchers as the executive committee. The society’s new constitution4 increased the number of members of council from three to five while the president and vice-president of the society became de facto chair and vice-chair, respectively. Council, tasked with “the general management of the affairs of this society,” was also empowered to arbitrate disputes among society members (subject to appeal to a general meeting called for the purpose) and to hear and adjudicate complaints of rule infringement and professional misconduct by one member against another. Council had no enforcement powers, but its decisions after complaint investigation were not appealable. Though membership in the society was strictly voluntary, those lawyers nominated and elected committed themselves to observing this primitive disciplinary regime, which represented a considerable advance beyond the status quo ante. The 1885 amendments to the Barristers and Attorneys Act extended to the entire bar the disciplinary powers that the reorganized society’s 1860 constitution conferred upon council. The Barristers and Solicitors Act, 1899, extended council’s powers to the entire field of professional regulation and forced the bar into the society, thus making all lawyers directly subject to the authority of council. The number of members of council increased from five to seven; the treasurer of the society, though not the secretary, was added, the president and vice-president, as well as the attorney general, continuing ex officio. Section 54 of the BSA conferred on the council “the general management of the affairs of the society [and provided that it] may from time to time make rules for the government of the society and its affairs and all other purposes connected therewith.” Section 56 set forth the specifics of council’s powers with respect to professional regulation.5 Section 57 empowered council to deal with professional misconduct, though it stopped short of permitting council to suspend or disbar any lawyer found “unworthy to practise.” That power remained vested in the Supreme Court (ss. 58, 59). The continuing supremacy of the common-law model of professional regulation was reiterated in section 77, which entrenched the residual power of the Supreme Court to disbar any

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lawyer guilty of an offence for which striking off the rolls had customarily been the penalty. The genie of the common law could not be put back into its bottle quite so quickly or easily. Section 60 set forth specifics of council’s administrative rule-making power, specifically in the following areas: membership fees, powers and duties of the officers, library, council and society meetings, expenditure and borrowing, office facilities, and law reporting. The Barristers and Solicitors Act conferred on council blanket authority over gate-keeping, discipline and practice, and legal education.6 Its complaint investigation powers now encompassed any professional misconduct complaint made against a barrister, not just one made by a fellow member of the society, as had been the case previously.7 Overnight, as it were, council went from being powerless to all-powerful, an administrative tribunal with subpoena power whose resolutions and orders took effect once filed with the Supreme Court. Though council was now the governing body of the legal profession, nowhere did the BSA expressly state that that was the case. It had to be inferred from the breadth of council’s new powers. The pull of judicial regulation and the reluctance of the bar, given its highly conservative culture and historically bad relations with the society, help to explain why council’s unaccustomed new role went unacknowledged. Indeed, the BSA said next to nothing at all about council beyond prescribing its membership and defining its powers. Unlike the society, which was “continued,” the council was treated as if created out of nothing (“There shall be a council to be known as the council of the Nova Scotia Barristers’ Society”8). The explanation for this dichotomy lies in the respective histories of society and council and in the sheer unique impact of the grant of self-regulation by the BSA. The society had been a statutory body corporate for forty years while council, despite existing nearly as long, had received only statutory acknowledgment. This explains the language of the act, which ignores council’s continuous existence. More significantly, while the society, apart from an increase in its membership, was unchanged, council was transfigured; it had become, so to speak, a new creation. In cultural terms, the idea that lawyers en masse could be railroaded into the Nova Scotia Barristers’ Society, ruled and regulated without accountability by the council of the society and forced to pay for the privilege, was as much a novelty in late nineteenth-century Nova Scotia as it would have been in the late eighteenth. The BSA – an initiative of council on which neither the bar (nor, it would appear, the society)

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had been consulted – added injury to insult. In those early days, lawyers outside the society (probably the majority) considered that the greatest threat to the independence of the bar was self-regulation. Simply put, peer control meant oligarchy – the tyranny of the few. Nor did the BSA make any mention of the relationship between council as governing body and the society that elected it. Did the annual meeting recommend action to council, instruct council to take action, or take unilateral action that affected or bound council? Over the years all three seem to have happened. A striking example occurred in 1904 when the annual meeting voted to increase council membership from seven to eighteen, a step authorized by neither the BSA nor the regulations and only retrospectively recognized by regulation and confirmed by statute. (It is almost certain that the now-lost consolidation of the regulations known to have taken place in August 1904 was spurred by this action on the part of the annual meeting six months earlier.9) The fundamental issue was whether council held old powers augmented – no one inside or outside the society would have questioned its authority over society members – or altogether new powers over the whole bar. The fundamental flaw in the BAA amendments of 1885 was that it gave council limited regulatory powers without the authority to exert those powers over lawyers who were not members of the society. The BSA’s failure to assert council’s absolute primacy seemed to suggest that council’s role was passively to administer the BSA, densely procedural as it was in both character and content. Council’s first venture into regulation-making was enacted on 3 July 1899, two days after the BSA came into force.10 The regulations, fifty-two in number, dealt with fifteen subjects;11 examinations predominated, unsurprising in view that council had been regulating in that area since 1872 (it was the first regulatory power council possessed and until 1885 the only one). Ironically, these inaugural regulations that council drafted and approved said nothing about council itself. That oversight was remedied in October 1914 – perhaps as early as August 1904 – when new consolidated regulations were passed that dealt with council.12 Council remained stable throughout the lifetime of the BSA, fundamentally unchanged except in respect of expanding membership, proliferating committees, and the extension and diversification of the regulatory power. Throughout the life of the BSA, the focus was on defining council’s regulatory power. No explicit power respecting the constitution of

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council existed until 1992 when council was authorized to regulate around the election and appointment of its own members. The Revised Statutes, 1923, conveniently assigned most of council’s regulatory powers to one section of the BSA.13 Nineteen in number, the most significant new areas had to do with educational and other requirements for bar admission, which represented reforms separately legislated in 1923.14 No further changes occurred until 1939, when the BSA was thoroughly revised. Council’s regulatory powers were rationalized and the number of areas, some of which had become obsolete, reduced from nineteen to ten. A 1946 amendment confirmed, for greater certainty, that council managed society business between general meetings, absent any specific power to act.15 In 1958 council was empowered to regulate for the maintenance and administration of the reimbursement fund.16 In 1965, reflecting the bitter and divisive fifteen-year debate over whether, and if so how and to what the extent, the society should intrude into lawyers’ offices, council’s 1885 power to make regulations respecting “all matters relating to the discipline and honour of the bar” was expanded to include “the accounts to be kept by barristers, investigation of the accounts and financial records of barristers, and the financial responsibility and bonding of barristers.”17 Regulations sometimes anticipated, sometimes accompanied, and sometimes followed enactment of the power to make them or amendments to the BSA that modified existing programs such as professional liability insurance or established new instruments such as law corporations. The bare existence of a regulatory power did not necessarily mean that regulations would be made then or later or had not already been made if the matter were urgent. Sometimes regulations appeared to contradict the BSA, as in 1982 when advertising regulations were enacted further to the general power to regulate for the honour and discipline of the bar – while the section of the BSA that prohibited advertising remained unrepealed for eighteen years. As the governing body, council assumed it had, or needed, broad discretionary power and exercised it broadly. Not for nothing did the Barristers and Solicitors Act, 1939, conclude its recitation of “regulations” by adding that council shall have power to make regulations respecting “such other matters as shall be deemed necessary for the carrying out of the purposes of this act.”18 From the 1960s onwards enhancements of council’s regulatory power reflected, almost as if in a mirror, changing and complicating times within

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both the Canadian legal profession and the wider world. In 1970 council was empowered to make regulations respecting legal aid (a program that the society had been operating since 1950, though entirely without statutory or regulatory authorization), law reporting (dropped in 1939), mandatory professional liability insurance (a new program), and the exchange of barristers between Nova Scotia and other jurisdictions.19 In 1971 council was empowered to regulate around Dalhousie Legal Aid Service, a law-clinic program established in 1970 by means of a trust agreement between Dalhousie Law School and the society.20 In 1980 council was empowered to make regulations respecting the resignation of barristers and the readmission of those barristers who had resigned from the society.21 Three years later council was empowered to make regulations respecting professional competence.22 In 1990 the venerable power to regulate for the honour and discipline of the bar was amended to include “investigation of the standards of practice of barristers.”23 In 1992, when council was debating the very hot issue of its own size and composition, the BSA was amended to empower council to make regulations respecting the election and appointment of its members.24 If constitutional reform were to occur – it took nearly ten years for council to become a wholly democratically elected body – council needed an explicit and unconditional power to effect it. In 2000, in order to reconcile the BSA with this new regulatory power, the act was further amended to make clear that the number of members of council per judicial district and the election process therefor would run according to “the manner prescribed in the regulations.”25 After an entire century, council membership was “translated” from act to regulations, in one sense finally making council supreme in its own house. Council did not just administer the BSA; it governed the legal profession further to the plenary regulatory power conferred on it. As the executive, legislative, and judicial branch of the society, council governed the legal profession through those regulations that the BSA authorized it to make. By 1939 its principal mechanism for doing its work, but not making decisions, was the committees, appointed by council and initially comprising only members of council.26 It is clear from the earliest surviving records that council’s first committees were non-regulatory while most of council’s work was regulatory. In the credentials area especially, council was its own committee of the whole, and most of council’s work for the first twenty or so years for which records exist was qualificationsrelated. Absent the minutes prior to 1911, we do not know exactly when or

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why council began to appoint committees. Though it seems unlikely that permanent standing committees existed before 1899 when council became the governing body, ad hoc special or select committees were certainly struck to address matters arising. Indeed, one such was appointed to draft the BSA itself. Committees first appeared in the regulations in 1904.27 From that day forward, the number, name, and mandate of standing committees has been matter for regulation.28 When committees first became the subject of regulation, they could be appointed by a general meeting of the society as well as by council, but that provision had lapsed by 1939. Amendments to the BSA in 1941 entrenched the discipline committee (established 1933) and authorized council to appoint other committees.29 Thereafter, the BSA spelled out the power to appoint while the regulations spelled out the committees – name, number, and mandate. By 1941 there were four permanent standing committees, two of which were regulatory: qualifications (“to examine the qualifications of candidates for admission to the bar and, if satisfactory, to approve the same on behalf of the council; and also consider and report on the submissions of any applicant whose qualifications require the consideration of the council”); and discipline (“to investigate and deal with any complaints regarding the professional conduct of members of the society and articled clerks”).30 Amending the BSA to entrench the discipline committee and to authorize council to appoint committees was a reflection of and response to the troubles of the times. That this step was not taken in 1939 was a concession to tradition and the status quo. Committees had never been in the BSA before and were deemed matter for regulation under council’s residual power. The tipping point was the Second World War, which produced more and more serious discipline cases, as well as a division of opinion within council between traditionalists in favour of laissez-faire and ultramontanists like H.P. MacKeen (president at the time) who believed that lawyers convicted of a criminal offence involving dishonesty or professional misconduct should be suspended or disbarred automatically. This debate found its way into the minutes of council,31 which had traditionally downplayed its disciplinary responsibilities, forbearing to take action unless they had to and imposing no more severe sanctions than necessary. The situation was aggravated by the discipline committee’s being neither separate from nor independent of council. But it was not just another committee. The 1941 amendments to the BSA represented a compromise between conflicting views. The discipline committee achieved statutory entrenchment – the

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only committee that ever did – and the right to find guilt, while council retained the power to impose sanctions. It was an important step toward the discipline committee’s eventual emancipation from council. Regulatory committees did not develop overnight. Mindful of the controversy engulfing their disastrous attempts to assert discipline powers in 1885 and 1888, which probably delayed the achievement of selfregulation, council after 1899 came to their role as disciplinarian very slowly and reluctantly. Despite possessing full authority to act, council was loath to do so, preferring to leave complaint resolution to the courts.32 The years following 1899 saw that outlook change only gradually, due in part to the BSA’s provisions respecting discipline procedure being rather vague and unhelpful: “Whenever a person being a barrister or a solicitor … is found by the council after due enquiry by a committee of their number or otherwise, guilty of professional misconduct, or of conduct unbecoming a barrister, solicitor or articled clerk …”33 Though as early as 1908 the BSA was amended to authorize council or a committee of at least three members thereof to investigate complaints of professional misconduct,34 council felt ill-equipped to deal with a situation made worse by the absence of specific discipline regulations and a standing discipline committee. The interwar years, moreover, saw a spike in complaints, leading to both suspensions and disbarments. Finally, in 1933, the discipline committee was formally established as a permanent standing committee of council. Six years later, discipline regulations were enacted.35 The earliest-known discipline proceeding under the BSA occurred in 1923 when Herbert Charles Moseley (called 1903) was disbarred for professional misconduct on complaint of the Cape Breton Barristers’ Society.36 Brazenly attempting to be reinstated after less than five months, which council refused to consider, Moseley took the matter to the appeal court, which unanimously found that at least a year had to elapse before a disbarred lawyer could apply for reinstatement.37 Two years later another case tested council’s mettle. In 1925 Arthur Hawthorne Russell, one of the lawyer sons of Benjamin Russell, a former president of the society and just-retired justice of the Supreme Court, was convicted of a Criminal Code offence. Having failed to overturn the conviction in the appeal court, he sought leave to appeal further to the Judicial Committee of the Privy Council (then Canada’s court of last resort). The lawyer opposite filed a complaint of professional misconduct, but council deferred hearing it until the projected appeal case was concluded. It did not proceed, however, and council was

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faced with a situation of extreme delicacy. A complaint investigation panel was struck. (How many other ad hoc discipline committees would have comprised both the president and the vice-president as well as the immediate past president, who was also a former deputy attorney general?) Russell, a king’s counsel called in 1908, was found guilty and sentenced to three months’ suspension from practice.38 The entire proceeding must have had a chilling effect on council in its discipline capacity and probably led to the decision to establish the discipline committee. Cases such as Russell had proved it was no longer feasible for council to serve as its own discipline committee. The four committees of 1939 remained static until 1949 when the social committee was established; that did not last long, and by 1952 legal aid was added to the permanent standing committees. The only other change was that the limit of three members per committee was dispensed with. By 1964 the number of committees stood at six and by 1967 at eleven – finance, public relations, “refresher course,” society services,39 and research (law reform) having been added. By 1979 the number of committees had more than doubled, to thirty. In 1984 the committees regulation was amended to provide for twenty-three committees, those that had become inactive or redundant, such as advertising, subject to reappointment if circumstances required.40 By 1997 the number had risen to twenty-five. By 2002 there was one less, the bar admission course committee having merged with qualifications. At the end of the BSA’s life, there were twenty-four committees. Regulations enacted under the Legal Profession Act, 2004, reduced the number to fourteen.41 Apart from discipline and qualifications, the most significant committee was the executive committee, which unlike the others was not a committee of the society but a committee of council. Comprising the president, the vice-presidents, the honorary president, and, by courtesy, the immediate past president, it was formed in summer 1974 at a time when council was already too large and too unwieldy to operate efficiently. (Eventually, the immediate past president was dropped and two members of council – “directors-at-large” – added.) The mandate of the executive committee (“to carry on the general business of the society and to make recommendations to council”) both revealed the poverty of administration and gave some indication of the committee’s consequential importance. It also highlighted the truism that council’s real job was to govern the profession, not manage the society. Acting as a management board, the executive committee vetted

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what matters came before council, in what form and when, prepared or reviewed the agenda for meetings of council, and governed the society between council meetings. The executive committee filled the vacuum that existed at the top. The officers of the society needed to be something more and something separate from council, of which they had been members since 1860. A structure was needed that would enable them to act collectively if not quite independently. Over the years the executive committee’s real and virtual power grew and grew until it was dealing with matters that would otherwise have had to be, and would have been, dealt with by council. The most outstanding example is the Legal Profession Act, largely the concept and the achievement of the executive committee. The committee, so to speak, was council’s council, an inner cabinet that for all practical purposes was responsible for running the society. According to regulations enacted under the Legal Profession Act, the executive committee was “to assist the officers in carrying out their responsibilities, to review matters to be dealt with by council to ensure they are ready for council consideration, and to undertake those matters that are delegated to it by council.”42 Subsequent amendments eliminated the redundancy (“to assist the officers …”) and provided that the executive committee may “act on behalf of council in matters of urgency.”43 Thirty years of hand-to-mouth reactive or crisis management had produced a committee of cabinet, so to speak, ready and able to take charge and trouble-shoot whenever the need for quick action arose. The executive committee was implicitly a substitute for or alternative to council, demonstrating beyond a shadow of a doubt that a smaller governing body – the smaller the better – would be more efficient. So long as council remained large – at its peak in 1993 with 48 members the largest body of its kind in the country – the executive committee remained indispensable to governance. More a talking shop and focus group than a governing body, council in those days could scarcely govern itself let alone the profession without the assistance of the executive committee. Yet the purpose of council had never been to represent the profession but to govern it. That false assumption caused it to grow and grow and grow – to the detriment of the exercise of its primary responsibilities. Broad representativeness was no substitute for efficiency. The fast-accelerating growth of the bar did not require enlarging the governing body. Indeed, the opposite was true. The executive committee, small by definition and unchanging in number, proved an effective “governing body” of council.

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“Council functions by its committees,” observed the president in his annual report for 1985–86. The history of the society in the fourth quarter of the twentieth century makes clear just how accurate Robert Huestis’s observation was. More committees were added, altered, merged, or reconstituted than dropped; their increasing number reflected not only council’s growing size and unwieldiness but also the complexity and novelty of the issues faced by the governing body. The larger council became, the greater the need for operational committees (the number of regulatory committees remained static at two – qualifications and discipline). At least one committee had a foot in both worlds. The bar admission course committee began in 1969 as a subcommittee of qualifications, only to become a committee in its own right and ultimately merge with qualifications and be renamed credentials. Committees offered economies of scale, helping to reduce council’s workload to manageable proportions. As think tanks, committees were smaller and more focused, concentrating on process rather than outcomes while leaving council free to approve and implement policy developed in committee. Government by committee was not ideal, of course, but council could scarcely have functioned any other way. Committees also suffered from “scope creep,” tending to proliferate as council delegated more and more work. Every serious issue or pressing problem became a committee rather than being dealt with promptly in council, which might have been feasible if council were much smaller and more cohesive. By March 1990 several exasperated members of council were expressing the view “that the society has more than enough committees and that members of the bar are already being policed, studied and reviewed too much.”44 The searching self-examination occasioned by the Marshall Inquiry report was already beginning to extract a psychological toll on lawyer morale. Permanent standing committees are almost certainly as old as selfregulation and perhaps older. Their history is written in the extant minutes of council and in the pages of the society’s annual reports, which survive from 1931. Subject as they were to council oversight, no source sheds better light on how, and how well, the society delivered core programs and services to its members than the committees. It is ironic that despite having omnibus regulatory powers since 1899, council felt no need for regulatory committees until 1933, by which time matters of credentials and discipline had become too numerous and complex to be dealt with by council in committee of the whole or through striking ad hoc committees to deal with matters arising.

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While the Barristers and Solicitors Act made council the governing body of the legal profession, it was a century and more before the Legal Profession Act made council’s role as professional regulator explicit: “The council under the former act is continued and is the governing body of the society.”45 In other respects, however, the LPA simply confirmed and perpetuated the existing system of self-regulation. There would not be a second revolution in professional governance such as the BSA had wrought. The so-called “medical model” developed differently. While the Nova Scotia Medical Society (now Doctors Nova Scotia), incorporated three years after the Nova Scotia Barristers’ Society, was the professional association representing the province’s doctors, when the regulatory function was conferred it was vested not in the medical society but in a separate board (now the College of Physicians and Surgeons of Nova Scotia). Since the grant of self-regulation, the Barristers’ Society has endured a split personality – it is both bar association and governing body. Perhaps eventually a third act replacing the LPA will invoke a legal model that involves severing the regulatory function from the society’s other activities. The regulatory arm would look after legal services, professional responsibility, credentials, and protection of the public, while the associational arm would protect and promote member interests. The society would essentially revert to the status quo ante 1899 when it was a bar association with benefits, not the professional regulator. Therein may lie council’s future as a body corporate separate and distinct from the society – a provincial legal board, or college of lawyers of Nova Scotia. The society would thus be emancipated from its own too-complicated history of bifurcation and dualism.

9

The Society and Administration

BEtwEEN 1860 AND 1899 thE COUNCiL of the Nova Scotia Barristers’ Society governed the society, not the bar. From and after 1899, however, council wore two hats. In addition to remaining the governing body of the society, it became the governing body of the legal profession. Over its first seventy-five years, since its founding in 1825, the society had been a small organization – so small and marginal, indeed, that its records were deemed not worth preserving. Though membership increased geometrically as a result of the BSA, and professional regulation became a huge new responsibility, administration stayed the same. It seems doubtful whether the society even had an office, other than the law office of the secretary or a corner in the already overcrowded and dilapidated Halifax County courthouse. Successive councils viewed administration as a necessary evil, its only saving grace being that, unlike the barristers’ library, it was not a money pit. While the barristers’ library, deemed an essential member service at a time when good law libraries were scarce or inaccessible to most lawyers, was adequately resourced, society administration was severely under-resourced. It was taken for granted that the secretary/secretarytreasurer effortlessly managed the society while council governed the profession. Neither assumption was entirely correct even in its own time, and both were spectacularly disproved by the explosion in the size of the bar beginning in the early 1970s. In terms of program delivery and core functionality, the society came under immense stress, which by 1989–90 would lead to a managerial revolution. Though the BSA authorized council to engage full-time, permanent staff, until 1920 the society’s only salaried employee was the librarian. The

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secretary and treasurer (who were officers of the society) were both busy lawyers who “moonlighted” and were provided an honorarium in return for their services. The secretary was the chief administrative officer while the treasurer was the chief financial officer. In short, the former kept the records while the latter kept the books. The secretary was expected to transact all the business of the society in the professional line and to give administrative support to council. In addition to being the recording secretary for council and society meetings, the secretary acted as registrar, accepting filings of articles of clerkship and of complaints and issuing certificates of admission or standing as well as all public notices. The secretary also maintained current annual lists of practising barristers and kept the register of articled clerks. In 1930 the separate post of librarian lapsed, and the library was added to the secretary’s responsibilities. It remained so until 1951. The evolution of the secretary/secretary-treasurer from officers to senior officials of the society began with the second and final merger of secretary and treasurer in April 1945. There appeared to be no reason for this action other than serendipity: the long-serving treasurer had resigned on becoming vice-president, and no one could be found to replace him.1 Given that the burden of responsibility had more than doubled, the vesting of the new office in the secretary proved unfortunate. L.S. Whinyard (called 1917), secretary since 1939, was an elderly bachelor with a serious heart condition and three jobs. Business efficiency and record-keeping suffered, and council was concerned enough to order an external audit of the society’s books, which raised some disturbing questions.2 More sinisterly, no sooner had Whinyard taken over as secretary-treasurer than current minutes of council meetings (as well as annual reports) went missing – permanently. Whinyard suffered a severe heart attack in January 1949 and, after a lengthy medical leave, was obliged to resign in March 1950. Whinyard was the last of the old school and gave way to the shock of the new. He was succeeded by a young woman lawyer – the first in the country to hold such an office. Though Eileen MacLean (called 1948) served just over two years before leaving Nova Scotia, her tenure marked the beginning of modern administrative management for the society. The post became full-time. MacLean professionalized the entire operation, putting it on a businesslike footing. Council paid for performance, increasing MacLean’s compensation by nearly 50 per cent. Under her the annual report was much enlarged and printed, a monthly letter to members introduced, and stenographic reports of council meetings provided.3 To the dismay

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of officers and council alike, MacLean followed her lawyer husband “out west” in 1950. Her successor, Bryant H.H. Balcom (called 1951), lasted just eighteen months before apparently falling victim to alcoholism4 and was succeeded by a layman. For the first time in its nearly 130-year history, the society was without a lawyer as secretary/treasurer. It was a backward step, which, despite the diligence and energy of three successive lay incumbents over a 25-year period, would cause trouble. In 1952 the secretary-treasurer ceased to be an officer of the society, becoming an employee appointed by council and serving during good behaviour. Finally, in 1960, the secretary-treasurer was removed from council. By the 1970s it was clear that twenty years’ continuous lay occupancy had undermined the post. The society’s offices could not function properly without a lawyer at the top and in charge. Among the “pressing requirements” identified by the president in his April 1972 letter to council summoning them to a two-day special meeting in May was the appointment of an executive director to conduct legal research “and perform many services now being done by the society’s solicitor.”5 In his report to the annual meeting in June, the president stated, “it is imperative for us to begin now to reorganize the operations of the society and to provide the tools with which to produce solutions to such problems.”6 Every lawyer in the province was subsequently circularized on the proposal to create an executive director post intermediate between council and secretary-treasurer; the matter was also brought before the biannual meeting of the society in November 1973.7 (The formation in August 1974 of an executive committee to interpose itself between council and administration may be considered a response to the management crisis engulfing the society). In his report to the annual meeting in June 1974, the retiring president lamented, “The big disappointment is that we are not reporting the appointment of an executive director for the society although at one point the executive had made a decision on a recommendation for council, but unfortunately circumstances did not permit. The position is still open and the new executive will welcome applications from any interested practising barrister.”8 By July the new president, who was also chair of the finance committee, was expressing “great concern and urgency in the appointment of an executive director. There is so much work to be done which committee chairmen do not have the time to do, and the work of [the] discipline committee alone is a most time-consuming and onerous task which requires a solicitor’s services.”9

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Finally, in November 1974, council hired as executive director Lois Dyer, a young woman recently called to the bar. The duties of the new senior official were to work in the field of continuing [legal] education and society services, looking at programs which law societies in other provinces provide to their members and devising ways in which these programs could be provided to this society. She would be drafting regulations, doing research, coordinating the work of committees, acting as secretary to committees, [liaising] with the local bars and this society, working under the direction of the executive [committee] and working in cooperation with the secretary-treasurer.10 In effect, however, the relationship between the executive director and the secretary-treasurer would not be a partnership of equals. The executive director was christened “executive” not because she exercised executive functions (which lay with the executive committee) but because society staff reported to her. The secretary-treasurer, for thirty years the society’s senior official, was reduced to the level of accountant-statistician-record-keeper. Throughout its brief first life (1974–79), the post of executive director was not statutory, and the reporting relationship between it and the secretary-treasurer was not spelled out in the regulations. Signalling a division of labour with the secretary-treasurer, it was at least in part a reversion to the status quo ante 1945 when secretary and treasurer were separate offices, the former having greater responsibility but the latter higher standing. In addition to having proven communications and organizational skills, the executive director was expected to do everything a lay secretary-treasurer could not – for example, act as solicitor/counsel to the discipline committee and coordinate continuing professional development programs. Predictably, the ageing incumbent took the hint and resigned as secretary-treasurer within the year, her departure sweetened with a pension. On top of everything else, there was a generation gap; she and the executive director were of an age to be mother and daughter. That Lexie McKay was succeeded as secretary-treasurer by the executive director’s secretary, whom the higher-ups encouraged to apply for the post, spoke volumes.11 It is impossible not to feel a degree of sympathy for Miss McKay, unceremoniously demoted after a decade’s faithful and satisfactory service. The post of executive director was deemed a suitable

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job for a woman – provided she were a lawyer. Those who remembered Eileen MacLean were no doubt looking for another such as her. The first of the two executive directors resigned after two years and was succeeded by another young woman lawyer. In 1979, when the post of secretary-treasurer again fell vacant, the executive director was appointed to the position. Once the secretary-treasurer was again a lawyer – for the first time since 1954 – the need for a separate executive director evaporated. The position reverted to the status quo ante 1974, the secretary-treasurer again serving as both chief administrative and financial officer. In 1980 the BSA was amended to provide for the appointment of a deputy secretarytreasurer (another young woman lawyer) who could exercise all the powers of the secretary-treasurer.12 In 1981 yet another young woman lawyer was appointed “assistant secretary-treasurer” with special responsibility for administering the discipline process. The executive director could and should have been the real successor to the office of secretary-treasurer as it had existed during the exemplary but all-too-brief tenure of Eileen MacLean. It was also the shadowy shape of things to come when the need for a truly executive “executive director” was better understood and appreciated. Why the office of secretary-treasurer was not superseded and replaced in 1975, as it would be in 1990, remains an unsolved mystery. Appointing a lawyer secretary-treasurer and abandoning the post of executive director did not solve the problem but simply deferred its solution for ten years. More was required than change at the top, but the need for systemic multilevel organizational change was not recognized and therefore not addressed. An organizational and business flow chart appended to the 1979 revision of the regulations is remarkable for its mis-situating of council. Atop the hierarchy sits not council but “society membership” as if the governing body were answerable to the profession. Council did not derive its power and authority from the membership, and it was rather more than “generally responsible for governing the legal profession in Nova Scotia.” The reasons for this comprehension gap are of course historical. The society existed for thirty-five years before council, and council existed for thirty-nine years before becoming the professional regulator. Between 1860 and 1899 council in some sense was answerable to the membership, which did indeed conduct the affairs of the society at annual and special meetings.13 The grant of self-regulation changed everything. By the 1980s it was becoming clear that the society lacked the infrastructure to carry out effectively its mandate to govern the legal profession.

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In 1982 the planning committee decided to “review the existing structure of the society and its committees.”14 A recent past president was engaged to investigate and prepare a report, but nothing came of it. The society’s office at the time comprised two senior officials and a skeleton support staff. The secretary-treasurer was expected to be a jack of all trades and the master of them too. The bar, meanwhile, was continuing to grow faster than council’s capacity to govern it. The executive committee was becoming involved not only in management but also in administration. Neither committee chairs, regardless how knowledgeable or energetic, nor officers could properly undertake the work of senior management, nor could the secretary-treasurer/deputy secretary-treasurer do everything. By 1988 the need for organizational change was becoming critical and beginning to be recognized as such.15 The increasing complexity and sophistication of the practice of law in the late twentieth century, not to mention the continually rising number of lawyers, were making demands on the society that its late nineteenth-century infrastructure could not accommodate. Apart from the proliferation of committees, the structure had scarcely changed in ninety years. Through most of 1988 the executive committee pondered how best to initiate the process of organizational change; that autumn, despite misgivings on the part of the immediate past president and the second vice-president, the executive committee took action.16 Terms of reference/ call for proposals for an “administrative review” of the society were issued, and in November Doane Raymond’s invited proposal was accepted.17 Conducted by a team led by Keith Thompson, CA, managing partner in Doane Raymond’s Atlantic Canada management consulting group, the review would take nearly a year and transform the administration of the society from top to bottom. Thompson’s preliminary review enabled him to grasp the seriousness of the situation quickly and accurately: “the society exhibits the classic symptoms of an organization that has outgrown its administrative structure, and needs a more formal management system.”18 Hitherto, the management system had been more or less entirely informal, a situation which the ill-fated executive director experiment, 1974–79, was intended to address but failed to because the position was not vested with executive-director powers. The name was grander than the concept, the weakness of which compromised implementation. The administrative review proceeded in three incremental stages. Phase one involved preparing a detailed work plan that would “identify

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separately for each phase the subject matter, specific results to be achieved, related consultant activities and required consultant’s hours;”19 Phase two “described the professional [operational] and administrative recurring activities;” Phase three determined “an appropriate staff size, mix and organization structure to accommodate the society’s administrative workload [recurring activities and special projects]).”20 Approved by council in November 1988, the review was completed in September 1989; in November Thompson, having briefed the executive committee, attended council to present his formal recommendations.21 The proposed senior management model featured an executive director as chief executive officer leading a team of four directors: professional practice (discipline), administration, library services, and communications. The secretary-treasurer and deputy secretary-treasurer would be replaced by a truly executive executive director who would no longer be involved in administration or operations as the previous holder of that office had been. In the words of the report, “As the cornerstone for the future structure of the society, we recommend that the secretary-treasurer’s role evolve to that of executive director, with increased emphasis on internal/external relations and policy development.”22 Phase three’s report, dated 17 November 1989, was nothing if not timely. Appendix D dealt with the objectives and structure of project planning. Among the sample project plans was one providing for a society response to the Marshall Inquiry report (“Mir”). According to the scenario, “the Mir offers the society an opportunity to enhance its public reputation and visibility through the integrity and creativity and timeliness of its response.” It is unclear whether the project plan influenced the society’s decision to respond to the Marshall Inquiry report in the timely, if controversial, manner it did. The administrative review had been underway for a few months when the secretary-treasurer gave notice of her intention to resign as of 30 April 1990. A search committee was struck comprising the officers and two lawyers (one a former president) and chaired by another former president, J. William E. Mingo.23 When the secretary-treasurer post was upgraded to executive director, the incumbent was invited to rescind her resignation, but she declined to do so. By the second week of October 1989, an advertisement for executive director of the Nova Scotia Barristers’ Society was appearing in local and national newspapers. Conspicuous by its absence from the posting was the word “lawyer,” which suggests that the search committee had a well-defined concept of what was needed and were ready

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to consider a complete break with the past. Few lawyers, even managing partners of large law firms, could claim to be professional managers. The Nova Scotia Barristers’ Society invites excellent managers to apply for opportunity and challenge. Sharing leadership, provide [sic] professional management to a progressive professional society. The public expects the highest level of professionalism from members of the legal profession. The Barristers’ Society’s mandate requires us to ensure our profession meets those expectations. Societal and practice complexity have required us in recent years to broaden and intensify our activities. We place increased emphasis on strategic direction, policy and professional issues. We require professional management of our extensive organization of staff and volunteers. We want to hear from managers with proven success. Capable of developing a sense of organizational direction, you are equally capable of implementing policy and administering operations. You develop recommendations based on analysis and sound rationale; as appropriate, you persuade and build consensus. You equally accept team decisions and implement them enthusiastically.24 Some seventy-five applications were received and three applicants interviewed. While professional managers “with proven success” may have been among the applicants or even among those short-listed, none was hired. The choice fell on a young Halifax lawyer, partner in a large downtown firm, who was a quintessential insider. Darrel Pink (called 1979) was a member of council, vice-chair of the qualifications committee, and president of the Continuing Legal Education Society of Nova Scotia. Old hands expressed amazement that someone “in the trenches” with a promising future ahead of him should be willing to settle early in his career for a premature burial. No one but close associates in his own firm – one of whom was a member of the search committee and had to recuse herself – knew that he was interested in the post. After Pink applied, it is doubtful that the search committee searched any further. Despite not being a professional manager, he was exceedingly well-qualified in every other respect – and he enjoyed the confidence of both the executive committee and his colleagues on council. He was, as it were, the devil they knew. Realizing that history could be made if the right person were in the job, he took a long view of the prospects and potential of the office. Being the

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first incumbent in such a post offered him a unique opportunity to create the future and would at long last place the society on a par with other law societies across the country. There were also considerations that straddled the personal and the professional. When interviewed, Pink candidly told the search committee “that his involvement with the Marshall Inquiry led to some change in his perceptions and goals: the conventional practice of law interests him less and the evolution of the secretary-treasurer’s position is attractive to him.”25 Given the circumstances of the time – the Marshall Inquiry commissioners were less than two months away from releasing their report – such an admission would have resonated with the search committee. As counsel to the Department of the Attorney General during the inquiry, Pink was ideally suited to help guide the society through what was bound to be a difficult time once the Marshall Inquiry report was released. He knew the whole story from deep inside. The recommendation of the search committee was unanimous, as was council’s adoption of it. Leaping from the frying pan into the fire, Pink commenced work on 1 February 1990 – the onset of the furore over the society’s response to the report. No time was wasted carving the new order in stone. In June 1990 the BSA was amended to replace “secretary-treasurer” and “deputy secretarytreasurer” with “executive director,”26 though the corresponding regulations were left unchanged. The position description, however, was a good deal more au courant: “the executive director is accountable to council, through the executive [committee], to manage the society’s activities and resources to cost-effectively produce the services required by the membership and necessary to protect the public interest, at levels which meet their priority needs.”27 The executive director’s responsibilities and duties comprised planning and policy, organization and human resources, operations control, member and public relations, and council and executive committee liaison.28 The executive director would not be the familiar old secretary-treasurer – a chief administrative/operating officer – but a chief executive officer with leadership responsibilities. The cumulative impact of the new senior management arrangement was that the president ceased to be “CEO” and became chair of the board (council). The circle was closed and complete with the Legal Profession Act, which very considerably expanded the scope of the office: “The council … may, by regulation, authorize the executive director to do any act or exercise any power or jurisdiction that by this act and the regulations the council is authorized

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to do or exercise, except the power to make regulations.”29 In other words, council might delegate its powers, except in one instance, to the executive director. This had the effect, potentially, of giving the executive director a role in professional governance – which would have been unimaginable under the previous regime. Regulations enacted under the LPA confirmed that the executive director was the chief executive officer of the society “and under the direction of the council shall be responsible for the management and coordination of all phases of the operation, administration, finances, organization, supervision and maintenance of all activities of the society.”30 Early in 1990 council approved in principle the recommendations of the administrative review, which it then fell to the executive director to implement. The new organizational chart deployed a hierarchical management structure that followed but did not exactly correspond to the recommendations of the review. Given that the society had an ambitious publications program but had never paid over-much attention to public relations, the proposed director of communications with responsibility for publications became a director of publications. A director of insurance was also added, the professional liability claims fund then being still a part of the society rather than the arm’s-length body corporate it afterwards became. The director of library services remained in place, the barristers’ library having been more or less excluded from the entire review process. The five directors were supported by seven “administrators,” reporting to whom were the administrative support staff. In his first annual report as executive director (June 1990), Pink stated, Having nearly completed implementation of the administrative review we now have staff organized on a functional basis. With five departments, each led by a director, we are able to provide greater support to … council, the executive [committee] and committees. As well, the clear definition of responsibilities among staff has made for greater efficiency. Over the next year we will be fine-tuning the staff structure to continue with improvements aimed at providing the most professional assistance to members through all areas of society endeavours.31 Over the following years the organizational chart evolved as administration expanded and diversified and new management tools, such as council’s

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annual planning process and multi-year strategic framework development for the society, were introduced. It was almost inevitable that administrative review, or rather the costs and consequences of implementing it, would lead to an operational review (“program review”). Administration, after all, was not an end in itself; the end was improved program delivery. The terms of reference for the ad hoc committee to review society programs were approved by council in July 1992. Expenditure had been rising, and retrenchment was in the air (“One of the important objectives of this review is cost containment”32). In February 1993 the chair of the committee sent an open letter to society members in which he candidly addressed the severe financial and other challenges the society was facing; fees and insurance premiums for 1993–94 would exceed $3,000!33 Speaking to the work of program review in the annual report for 1993–94, the president observed that its purpose was to bring about radical change in organizational culture. First the structure, then the mindset. It was clear that professional governance and programming could not be neatly separated. The why, wherefore, and whither of programming had itself become an issue. The final report of the ad hoc committee to review society programs, issued in June 1993, divided society programs into four broad classes: professional regulation, member services, administration of justice, and external relations. Among the report’s specific proposals, though not its twenty-nine recommendations, was that the society enact an Objects Clause; it became a regulation in 1997. By far the report’s most controversial recommendation was the reduction of council’s size by one-third. It would take nearly a decade before that long-overdue economy was realized. Among the recommendations was less frequent but more intensive, longer, and better-organized meetings of council. No one would have disagreed that “it is important that the role of council be clearly described,”34 but the committee stopped well short of implying that council’s size was the main factor impairing its performance. There was more to the problem than poorly prepared, too-frequent, and too-short meetings that sometimes ended with important business being deferred rather than settled (“On other occasions, council is simply unwilling to make decisions on matters and they are tabled until a later meeting”). Governance aside, the report was a discreetly conservative document advocating little more than a limited rationalization and fine-tuning of

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existing programs and processes. Consensus within the small committee (six members) had been hard to achieve. Committees were left untouched, apart from a proposal to reduce the number of members per committee to a maximum of six. The reviewing committee chose not to go as far as its terms of reference authorized it to (“The committee may wish to consider whether a more far-reaching review of the Act [BSA] and regulations is merited”35). By comparison with the administrative review, which – decisively – was commissioned and external, conducted by management consultants, the program review unsurprisingly had less impact than it was intended to. It was somehow easier to accept and implement top-down organizational change, however radical; cultural change – altering how people think and behave – was the tricky bit. Program renewal also had mandate and governance implications, as the committee learned when trying “to identify the essential responsibilities and functions of the society.”36 They had trouble agreeing among themselves as to the content, if not the appropriateness, of an Objects Clause for the society. Program review simply prompted the question of which programs best served the mandate, which in turn led to the question of what the mandate was. By comparison with program review, administrative review was a cakewalk. The resulting organizational change, however, was not viewed as an unmixed blessing by everyone. In a report of disarming candour and eloquence, the society’s first woman president offered this retrospective on program review, the final report of which had kept the society in a state of suspended animation for most of her presidential year, 1993–94: “You will recall the committee was created to address the concerns expressed by some of our members that the society has too many staff members, costs too much and does not do anything for its members.”37 In other words, program review was a negative, if not hostile, reaction to the administrative review and its consequences. Fallout from program review, not to mention lingering suspicion of the newfangled bureaucracy to which administrative review had given rise, soon manifested itself in a “management” review. Costs were rising, mainly thanks to discipline expenses and client compensation claim payouts, revenues were falling, and there were now two more directors among senior staff, bringing the total to seven. The finance committee was taking a hard look at administrative overhead, its chair reporting to council apparent “widespread concern with the high administration costs.”38 In September 1994 council, responding to a recommendation from the executive committee,

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expressed a need for a full assessment of the society’s present administrative operations to determine whether the operations and structure of the society continue to be appropriate … Council was particularly concerned with the continuing pressure to control membership fees and the expectation that some traditional sources of funding will continue to decline. At the same time, the previous studies mentioned [program review] have shown a reluctance on the part of members to reduce or eliminate programs.39 The consultant sniffed the air and predictably recommended a reduction in the number of directors by two and of staff positions by four: “The Nova Scotia Barristers’ Society is very highly structured for an organization of this size. Twenty-two staff are divided into seven departments and there is one director for every two administrator positions.” The six “drawbacks,” according to the consultant, “are at least partly a result of structural constraints.”40 What no one could deny, however, was that the new management structure, regardless of the constraints under which it operated, was working well. Imposing a hierarchical management structure on an organization that never had one before could not be seen to have succeeded overnight. The benefits were cumulative. In less than five years the new management structure had proved itself sufficiently to attract the attention of naysayers focusing on its cost rather than its effectiveness. The management of the society was more efficient than council’s management of itself; the governing body was supposed to be the policy board but often found itself bedevilled by the details. Some members of the bar wondered why the executive committee could not run the society, as for all practical purposes it had done between 1974 and 1990.41 The shock of the new dissipated only gradually, and five years was long enough for nostalgia for a simpler and cheaper time to have set in. Even some directors, especially those with experience of the ancien régime, had to learn that they reported not to the executive committee or council but to the executive director. The audit, really a second administrative review, was perhaps intended to find more fault than there was or it did. In terms of sheer efficiency, the society was getting good value for money. The system was working. If there were problems they did not lie at the feet of senior management but higher up. Unlike the administrative review, offering solutions which in retrospect proved extremely successful, the program review exercise identified problems but offered few solutions. Of course,

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the latter task was much more difficult than the former, dealing, as it had to, with matters that politically were highly sensitive. No one had a vested interest in administration. Governance and operational programming were another matter. Taken as whole, the “long” 1990s – from the Marshall Inquiry report to the legislation development project – was a challenging and uncertain time for the society. It had had to become more “corporate” and businesslike in order to discharge more efficiently its responsibilities to the profession and to the public. The decade began and ended with four high-level reviews: administrative, program, management, and operations. None except the first can be said to have accomplished very much, so by 2000 the executive director was questioning whether further “reviews of society programs and operations” served any useful purpose.42 Indeed, they were bad for staff morale because they seemed to reflect on the society’s ability to do its job. The executive director’s brief to council in October 1999 was very revealing of how the system worked, or at least was supposed to work: Management of the society will be reporting to council on a variety of programs; he noted that because council is primarily involved in policy-making, they need to understand society programs. He noted that these are not committee reports. Rather, they are reports compiled by senior staff. It is by this method that council can hold him responsible for the society’s programs and the actions of the society’s staff.43 Program review might well have led to program renewal, as administrative review had led to infrastructure renewal, but the stakes were much higher and controversy and resistance potentially much greater. Council and the executive committee had to lead from the front.

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The Society and Legal Education We know from experience how little law is taught in offices, and I think for that reason the law school ought to be encouraged. Angus McGillivray, MLA, 1887

In 1918, in an address to the annual meeting of the Canadian Bar Association, Benjamin Russell, long-time professor in Dalhousie Law School and (since 1904) a justice of the Supreme Court, reflected on his experience of articled clerkship: I can very well remember what the system of education used to be in my province, when I was myself a candidate for examination, and I marvel sometimes to see how we produced, as we did, some extremely qualified and competent lawyers under that system, which was really at the time [1872] no system at all … The examination lasted a couple of hours. It was supposed to cover the whole range of English jurisprudence, and you can imagine how searching an inquiry might have been made in the course of two hours, if the poor candidate had gone over what was supposed to have been the work of three or four years’ study. In fact I remember when I was approaching the ordeal myself, I was confidentially taken into his residence by a friend of mine who was also about undertaking the trying ordeal, and I was shown a washtub full of manuscripts. I asked him what these were, and I was told that they were accumulated examination questions which had come down from generations of law students, and by the diligent perusal of that washtub full of examination questions, or even half of them (because they followed one another in the ordinary accepted groove from generation to generation, I suppose from the time that we first had examiners in

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the Province of Nova Scotia [1836]) – by diligently perusing and preparing to answer these questions the candidate would invariably pass, and be very likely to pass with high marks to obtain first class distinction with honours. It was a rather poor way of getting a student to acquire a profession, and it was a poor and wretched way of testing a student’s ability to practise his profession.1 As it happened, just six months before Russell was called to the bar, in April 1872, the Barristers and Attorneys Act had been amended to remedy the deplorable situation that Russell so vividly described more than forty years later. Annual examinations for law students were instituted.2 Nine years later, in 1881, Attorney General Thompson (then president of the Nova Scotia Barristers’ Society) engineered the establishment of a faculty of law at Dalhousie University. Russell became professor when Dalhousie Law School opened its doors in 1883 and remained one until 1921. Legal education as experienced and remembered by Justice Russell had not changed greatly since 1811 when the Lawyers’ Better Regulation Act was passed and law student apprenticeship lengthened from four years to five. Legal education in common-law Canada was, as Professor McLaren points out, very much a “practitioner’s tradition.”3 Though the Nova Scotia Barristers’ Society – unlike the Law Society of Upper Canada – was never an educator, it was concerned with bar admission standards from the outset. According to the society’s 1825 constitution, the chair of the committee of three benchers (executive committee) was to vet every admission as barrister or attorney (rule 10), with a view to ensuring that no admission was irregular or improper. Members receiving law students into articled clerkship had to register them with the committee, while the committee, if they were not satisfied with the candidate’s qualifications, could withhold certificates and refer applications to the benchers at large for final decision (rule 25). The secretary, for his part, was required to maintain a register of articled clerks (“students’ roll”). Law student incentives were even provided. Rule 28 states, Every encouragement which the society can offer shall be given to those students who serve [as articled clerks] under the members of the society. A reward not exceeding in value five guineas shall be bestowed upon any such student who shall at or before the [general] meeting after Michaelmas Term, give in to the secretary the best drawn-up report of the greatest number of cases of important trials

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or arguments, which shall have taken place in the Supreme Court during the year then preceding.4 What evidence there is suggests that the society saw its role as promoting rather than delivering legal education and controlling it indirectly through oversight of admission standards. The actual admission standards themselves had been subject to statutory regulation since 1811. Not until 1939, more than a century after the society was founded, did council’s regulation-making power in respect of gate-keeping become exclusive. For the first forty years of professional self-regulation, 1899 through 1939, council shared its rule-making powers with the legislature. The driving force behind the society’s 1860 reorganization was the sad state of legal education, largely unchanged since the eighteenth century and desperately in need of modernization.5 The prevailing view that legal education was simply a good general education supplemented by on-thejob vocational and technical training worked better in theory than in practice. The probationary-year model of attorneyship imposed by the Lawyers’ Better Regulation Act had little impact; the post-1811 attorney had no real standing except as a barrister in waiting, and as time went on the distinction ceased to be meaningful. A substantive measure of law student competence during and after articled clerkship was needed lest bar admission become an empty ritual reflecting mere pro forma eligibility rather than practical knowledge. Reforming legal education and the final decision – made in 1858 – to build new law courts for Halifax were each in their different ways aspects of that professional renaissance, the beginnings of which historian Philip Girard has dated to the 1850s.6 Not for nothing did the notice of the 1860 meeting to reorganize the society include among its objects “the necessity for the preliminary examination of persons desirous of becoming law students.”7 No sooner had the society been reorganized in February 1860 than Premier William Young, who displaced political opponent, John William Ritchie, as president, introduced in the House of Assembly a bill to amend the Barristers and Attorneys Act. A reforming measure, it befitted the new Liberal government headed by the former attorney general. Enacted in May and in force in June,8 the bill provided for a “preliminary law examination” for intending law students. The amendment also provided for a general rule of the Supreme Court prescribing the examination, which was to be conducted by a justice of the court and two officers of the society. According to the rule,

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It is ordered that no person shall hereafter be received as an articled clerk by any barrister of this court, until he shall have undergone an examination at Halifax before one of the Judges and two of the office-bearers of the Barristers’ Society as to his educational qualifications – such qualifications to comprehend a knowledge of geography, and of the leading events of English history, of the three first books of Caesar’s Commentaries, or the two first books of the Aeneid, or an adequate portion of any other Latin classic author, to be approved of by the examiners, and of the two first books of Euclid, the examination to be conducted orally, or by written questions …9 These new “pre-law” educational requirements, enacted at a time when few intending lawyers were university graduates, were so rigorous that no law student who had not been privately tutored or educated at grammar school or college could possibly have met them. (Latin was to remain a requirement for bar admission until 1949.) The “preliminary examination,” as it came to be known, lasted for ninety years. The preliminary examination effectively put an end to attorneyship by robbing it of the purpose with which it had been vested in 1811. Now that competence was being tested before a candidate was admitted to law studentship, there was no longer any need to extend articled clerkship by an additional year. In 1864 the Barristers and Attorneys Act was further amended to provide that “An attorney of the Supreme Court shall be entitled to be admitted a barrister immediately after his admission as an attorney.”10 The next step was the introduction in 1872 of annual law examinations, which shortened articled clerkship from five years to four; previously only those law students holding the BA or who had kept terms at the Inns of Court in London were eligible for such a remission. The society, however, unwilling to assume responsibility for examining law students without also acquiring the power to control bar admission, refused to carry out the law.11 They counterattacked again in 1874 by attempting – unsuccessfully – to set up a law university along the lines of the Halifax Medical College.12 In 1875 a compromise was effected whereby the annual examinations were dispensed with in favour of a preliminary and a final examination. In 1880 the Barristers and Attorneys Act was further amended to provide that every call to the bar would be moved for by the president of the society or, in his absence, the vice-president – a ceremonial that

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persists to this day. That year, too, the judges of the Supreme Court were relieved of the obligation to regulate for the preliminary law examination, but they retained until 1899 the residual right to approve all examination regulations enacted by council. In 1884 an intermediate examination was introduced. No sooner had Dalhousie Law School opened its doors in 1883 than the BAA was again amended to provide that a law student holding the LLB when applying to sit the final law examination could dispense with articled clerkship13 – hitherto the only path to the law in Nova Scotia. The 1881 act organizing a faculty of law at Dalhousie University14 was understandably silent on its relationship with council, which at the time had no substantive regulatory power. It is therefore a considerable exaggeration to observe, as one commentator has done, “From the beginning the university had the cooperation of the Nova Scotia Barristers’ Society. The society controlled the articles of clerkship and admission to the bar, but otherwise left it to the university to provide for legal education.”15 On the contrary, council controlled neither articled clerkship nor bar admission, both of which were prescribed by the Barristers and Attorneys Act and controlled by the Supreme Court. As much is clear from a bill introduced by Attorney General Thompson at the same session as the Dalhousie Law School Act. Bill No. 86 would have exempted from the preliminary examination law students from England or Scotland who had passed a corresponding examination previously to being articled there.16 The bill sailed through the House of Assembly, only to be given the three-month hoist by the Legislative Council.17 Council’s powerlessness was Dalhousie’s opportunity, and it moved swiftly to fill the vacuum. By 1887, just two years after council had begun to acquire regulatory power, tensions between the society and the fledgling faculty of law were beginning to rise. In April 1887 Attorney General Longley, an ex officio member of council and a firm friend and promoter of Dalhousie Law School who thought the LLB should be a requirement for bar admission, introduced in the House of Assembly a bill to amend the Barristers and Attorneys Act. The amendment affirmed council’s existing powers “in order to preserve the control of the said society [Nova Scotia Barristers’ Society] over the examination of law students, and the legal education of candidates for admission to the bar …”18 The bill’s real purpose, however, was to authorize council to substitute Dalhousie’s LLB for some or all of the professional examinations. Introduced without any consultation with council or the society at large, and opposed not only by the country bar but by the president of the society, the bill pitted those

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lawyers who opposed privileging academic legal education against those who favoured it. Lawyer William Frederick MacCoy, government MLA for Shelburne and a member of the society’s committee to vet bills affecting the profession that came before the legislature, led for the opposition: This bill proposed to make a very serious and grave alteration as regards the admission of gentlemen to the bar, which at present was solely in the hands of the council of the bar society, elected each year. It appeared to him that the principle proposed of dividing the responsibility between the council of the bar society and Dalhousie College, was not proper. He did not find the medical men passing over into the hands of third parties or of a college the responsibility of deciding who should be permitted to practise their profession here.19 During the course of debate on the bill, Premier W.S. Fielding (a non-lawyer) made the outrageous – but under the circumstances entirely understandable – observation that “there were two bar societies in Nova Scotia, and he would like to know which one the hon. member for Shelburne [MacCoy] wished consulted.”20 The shrewd premier knew only too well that the Provincial Barristers’ Association, set up in or about 1885 to resist the “hostile takeover” of the bar by the Nova Scotia Barristers’ Society, opposed the grant of any regulatory power to the society. A motion to give the bill the three-month hoist was defeated on a division, twenty votes to eleven, and the bill passed.21 Quite apart from council’s jealous protection and aggressive assertion of its regulatory powers, such as they were, the principal issue was council’s right to accredit “such institution of legal education” as may be offering the LLB. No one ever objected to the Harvard LLB, which several Nova Scotia barristers held; Dalhousie’s LLB was another matter. What attention should council or, for that matter, the legislature pay to Dalhousie Law School? Opinion among lawyers in the Assembly was divided. Not everyone shared Attorney General Longley’s enthusiasm for academic legal education. It seemed clear that Dalhousie Law School was not about to play an Osgoode Hall and exercise a monopoly of legal education in Nova Scotia. As far as council was concerned, Dalhousie Law School had no right to expect special consideration. Dalhousie University, or anyone else, might offer a law degree, but council alone would determine whether it was a credential.

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It was not until 1891 that council, doubtless under continuing pressure from Attorney General Longley, accredited Dalhousie Law School.22 The LLB graduate still had to sit the professional examination in procedure and practice, but the preliminary and final examinations could be waived. In 1892 an amendment to the 1891 amendment clarified that the LLB graduate had to have been an articled clerk for three years while a full-time student in law school if he were to be eligible for call to the bar.23 The 1884 provision (quite possibly Longley’s brainchild24), which might have relegated articled clerkship to the dustbin of history, had been forfeited. Council feared that even the perception of anything less than full control over legal education might impede the achievement of its ultimate goal of becoming regulator of the legal profession. Benjamin Russell’s accession to the presidency of the society in 1895 – he was then a professor at and secretary of Dalhousie’s faculty of law – probably smoothed ruffled feathers. But his close friend and collaborator, Dean Weldon, seems not to have had a good working relationship with council, nor did he, unlike his successors, make any effort to develop one. When Richard Weldon arrived in Halifax in 1883, he was not even a lawyer. In apparent anticipation of his new job, he had become a law student in his native New Brunswick, and timely amendments to the Barrister and Attorneys Act permitted him to be called to the bar of Nova Scotia in December 1884.25 Weldon had neither roots in the legal profession nor any interest in or sympathy for the aspirations of council to regulate it. Nor did his attitude toward the society change after 1899 when council became the governing body of the legal profession. Throughout his thirty years as dean of law, Weldon never served on council, while Russell shrewdly rejoined after council became the governing body and was enlarged from five to seven members. As far as Weldon was concerned, Dalhousie’s faculty of law might just as well go its own way – without reference, not to mention deference, to council. Russell, on the other hand, nearly thirty years at the bar, had traversed the ground and knew it far better than the dean; Dalhousie Law School could not have its cake and eat it – educate for the bar while ignoring the council of the Barristers’ Society. The two stakeholder entities were on a collision course, and the inevitable crisis eventually broke out. In 1895 council achieved full control over bar admission.26 The stage was set for the Barristers and Solicitors Act, 1899, which vested regulation of the legal profession in the council. But it also appeared to backtrack on

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other matters of substance. The BSA not only confirmed articled clerkship as the path to the law but also diminished academic legal education. A law student holding a BA at the time of being articled was entitled to a reduction of one year’s clerkship, while the law student holding the LLB at the time of applying for admission to the bar received exactly the same consideration. Every law student, moreover, now had to pass all three society examinations – preliminary, intermediate, and final – in order to qualify for admission. In these respects at least, the BSA represented a lost opportunity to reform the system of legal education. The issue now turned on the purpose of articled clerkship: if not pure apprenticeship – on-thejob training – then what? For years to come, Dalhousie’s LLB and articled clerkship would make strange bedfellows, the relationship between them uncertain and unclear. Regulations enacted under the BSA specified that a university graduate in arts or holder of a Class A public school teacher’s licence was exempt from the preliminary examination, while a Dalhousie LLB candidate who passed the second year’s examinations was exempt from the intermediate. Dalhousie LLB graduates were exempt from the final examination – provided they had served three years as an articled clerk before applying for admission.27 We do not know what changes may have been made by the missing 1904 regulations, but apparently the also-lost amendments thereto, enacted in 1908, rescinded council’s acceptance of the LLB examination in procedure and practice.28 Early in 1912 council determined that junior matriculation (Grade XI), the entrance examination for any university in Nova Scotia, and the first year of an arts course could substitute for the society’s preliminary examination.29 Later that year the student body of Dalhousie Law School petitioned council to restore its acceptance of the faculty examination in procedure and practice, but the initiative came to nothing.30 According to Professor Willis, the law school’s historian, council was so displeased towards the end of Richard Weldon’s long deanship in the spring of 1914 that it considered de-accrediting the Dalhousie law degree.31 Few members of council held LLBs, and those who were interested in university education tended to take a dim view of university legal education, rating the BA and the professional examinations more highly. The answer to Willis’s rhetorical question (“What was it that was bothering the council?”32) is that Dalhousie Law School’s admission requirements for LLB candidates were lower than the society’s for articled

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clerks. Indeed, it is no exaggeration that between 1883 and 1914 the law school had no academic admission requirements at all. In March 1913 council appointed the vice-president a committee of one “to interview the authorities of the law school and ascertain the subjects and number of hours, lectures delivered and all other information as to the [LLB] course.”33 Unfortunately, we do not know the outcome of this investigation because council minutes April through November 1913 have not survived. Evidence, however, may be found in the university calendar, which reprinted extracts taken from the amended (1908) regulations of the society respecting law students.34 In 1914 senior matriculation (Grade XII) became the minimum academic requirement for admission to the law school – shades of council’s preliminary examination. A series of crisis meetings between the university and council in March 191435 led more or less directly to Dean Weldon’s removal. In Willis’s wellchosen words, “In the spring of 1914 the council made it quite clear to the law school that it would have to fall in line if the council was to continue to recognize the results of its examinations.”36 The 1914 regulations reflect the compromise that retrieved the situation. New section 45 (“Arrangements with Dalhousie University”) provided for conjoint marking of Dalhousie LLB examinations by co-examiners appointed by council – the system survived until 1991! – and for a conjoint examination in procedure and practice. The quid pro quo was that council would waive both the intermediate and the final examination for any LLB graduate who had passed either the conjoint or the society examination in procedure and practice. In a telling departure from past practice, the next calendar of the university included for the first time, under the heading faculty of law, a detailed two-page description, “Relationship with the Nova Scotia Barristers’ Society,” intended “for the benefit of those who look forward to admission to the bar in this province.”37 Dalhousie Law School was now prepared to assume an attitude of proper deference towards council. The crisis had been resolved. An unspoken condition of the new modus vivendi was leadership change. The poisonous atmosphere for which Dean Weldon, a quintessential academician who had little sympathy for practising lawyers and looked down on council as the mouse that roared, was largely responsible did not dissipate overnight. Yet no sooner was he gone from the scene than matters began to improve. Weldon’s successor, Donald Alexander MacRae, was called to the bar in 1919, and from 1920 onwards the dean of Dalhousie Law School was elected to council pro forma, becoming in

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1946 a statutory ex officio member. MacRae had credentials and credibility, which Weldon lacked. He was a BA of Dalhousie, which at the time of his graduation in 1898 mattered far more to council than the LLB, whereas Weldon had no connection with the university at all before arriving as dean of law. More important perhaps, MacRae had been called to the bar of Ontario and had practised law in Toronto before coming to Dalhousie. He knew something of the challenges facing young lawyers. Weldon, on the other hand, was not a lawyer and had not practised law. The new broom swept clean. The “Law School revised,” as the university historian describes the spring cleaning,38 would be a very different place from what it had been under Dean Weldon. In fairness to Weldon, however, who lacked the intimate knowledge of the scene possessed by his close colleague and collaborator, Russell, one must keep in mind that for the first sixteen years of the law school’s existence council was not the governing body of the legal profession. The early years of Dalhousie Law School witnessed the fierce battle between the society and the bar over self-regulation, which only ended when government vested full powers in the society over the protests and against the wishes of the bar. It was an inauspicious time to be launching a university faculty of law. Weldon found himself stranded in the crossfire of opposing forces. Dean Weldon was never able to acculturate to the post-1899 reality when council made the rules and the decisions. The years between 1899 and 1914 saw the relationship between law society and law school, which had never been good, deteriorate further. When a social war threatened in 1914, cooler and wiser heads prevailed. Weldon, perhaps by then suffering from mental decline, finally faced reality and allowed himself to be quietly removed from the scene. Never again would the relationship between council and Dalhousie Law School, though often fraught with mutual misunderstanding and mistrust, be as difficult as it was during the tenure of Dean Weldon. Just beyond the midpoint of MacRae’s decade-long deanship, in 1920, the BSA was amended to authorize council to dispense with both the preliminary examination and articled clerkship.39 The 1922 regulations replaced the intermediate and final examinations with the first, second, and third professional examinations. Arrangements with Dalhousie University were maintained, but the professional examinations were linked directly to those of the first, second, and third years of the LLB course. Passing the LLB examinations meant that the professional examinations could be waived. Yet dissatisfaction persisted, leading in 1923 to extensive amendments to

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the BSA, 40 which reasserted the primacy of articled clerkship as council’s chosen means of controlling legal education. The timing was suggestive. Not since Sir John Thompson’s time had a sitting attorney general served as president of the society, and Walter J.A. O’Hearn (LLB 1900) seems to have held very decided views on bar admission requirements. Existing provisions around articled clerks were strongly reinforced, to the point of making status dependent on enrolment in the new register of articled clerks. The preliminary examination for intending students-at-law was continued while the 1920 amendment providing for its discretionary waiver was repealed and replaced. Under certain conditions one could be enrolled as an articled clerk without passing the preliminary examination, while one without status who had served in a law office could be exempted from articled clerkship. The LLB was conspicuous by its absence. Toward the end of MacRae’s deanship, in 1922, the minimum academic requirement for law school admission was raised to two years of the arts course. Council responded by changing the regulations so that Latin and French or another foreign language and one instead of two college years was sufficient to be exempt from the preliminary examination.41 There was clearly an interest in reconciling or at least aligning law school admission requirements with exemption from the preliminary examination. In 1933 the BSA was further amended to reduce articled clerkship from three years to nine months, to be served after law school graduation, while the holder of the BA (but not the LLB) at the time of being articled served three years.42 Interpolated clerkship for the LLB candidate was also authorized as an alternative to nine months’ consecutive service, provided the total made up nine months. Students-at-law without university degrees or college preparation still had to pass the preliminary examination and serve four years’ articled clerkship. This counter-reformation was completed in 1935 by the repeal of the section 15 provision of the BSA that authorized council in special cases to exempt candidates from passing the preliminary examination or serving under articles.43 In April 1933 council amended the regulations to set up a “committee on qualifications”: “Every applicant for admission as a barrister or solicitor of the Supreme Court shall be required to submit for approval all papers which are to be used on the application for such admission to a committee appointed by the council. This committee shall also be empowered to investigate and report to the council on the qualifications of any applicant whose qualifications require the consideration of the

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council.”44 The following year Vincent Christopher MacDonald, who had succeeded Angus L. Macdonald as professor in 1930, became dean of Dalhousie Law School. No sooner had he replaced the former dean on council in October 1934 than Dean MacDonald became a member of the qualifications committee and, in 1935, chair. His sixteen-year deanship – the longest apart from Weldon’s – was the most influential in Dalhousie Law School’s history and terminated only with his appointment to the Supreme Court in 1950.45 MacDonald cultivated deference to council and achieved a working relationship with council that was unexcelled. It was during his tenure, and probably thanks to his outstanding leadership and example, that in 1946 the dean of law at Dalhousie was made a statutory ex officio member of council, an honour hitherto conferred only on the attorney general, the attorney general of Canada (if a member of the Nova Scotia bar) and – briefly – the chief justice. MacDonald’s prestige helped to put the Nova Scotia Barristers’ Society on the national map, just as Dean MacRae had done with Dalhousie Law School. In November 1936 MacDonald led council in a discussion of the preliminary education of law students. Despite a consensus that the standard should be two years of arts without any compulsory courses, no action was taken.46 In August 1939, at the annual meeting of the Conference of Governing Bodies of the Legal Profession in Canada, MacDonald delivered an invited paper, “Bar Admission Requirements and Reciprocal Arrangements for the Transfer of Barristers and Students in the Common-Law Provinces.”47 Recommended for favourable consideration to all the member law societies, MacDonald’s paper was reviewed by council in February 1940 and a resolution passed recommending adoption of the scheme proposed.48 Ironically, thirty years would pass before one of MacDonald’s signature recommendations – that law school graduation be required in all cases – was implemented. Yet the decade 1929 through 1939 saw only one applicant for admission to the bar write the professional examinations.49 In the last paper he published before ascending the bench, Dean MacDonald observed, “the law school faculty must take law society regulations as the very premise of its programme.”50 The relationship was not one of equals, nor could it be. That was Weldon’s tragic miscalculation. Addressing the special convocation in October 1952 marking Dalhousie Law School’s belated arrival at the 1921 law building on Dalhousie’s Studley campus, Justice MacDonald gave full voice to his admiration for the wisdom of council:

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In a life full of paradox, it is notable that in all matters pertaining to curriculum and admission to practice, the school has been subject to the control of the Nova Scotia Barristers’ Society. Had the society been possessed of a narrow vocational approach to legal education, it could have aborted or warped the growth of the School. Fortunately, it never sought to keep the School in thralldom to such an approach. On the contrary it has been eagerly cooperative in the attempts of the School to provide a broadly-based education which – without despising professional ‘know-how’ – sought to embrace knowledge of law in all its implications and particularly as an agency of government.51 MacDonald, who graduated LLB in 1920 with the university medal in law, was a creation of Dean MacRae, from whom he had obviously learned much. To MacRae and his successors, MacDonald most of all, goes the credit for disabusing the society of its “narrow vocational approach to legal education,” which prevailed before and indeed long after the founding of Dalhousie Law School. As a consummate law teacher, MacDonald was adept at educating council on its responsibilities and how Dalhousie Law School could advise council on how best to discharge them. Among council’s achievements during MacDonald’s deanship was the 1939 consolidation of the Barristers and Solicitors Act. One can almost feel the touch of MacDonald’s fine hand purging the old BSA of all regulatory matter. Though he did not draft the act, MacDonald was almost certainly the intelligence and inspiration behind it. Henceforth, the admission of articled clerks to the study of law and of barristers to practice would be strictly a matter of having “complied with all the regulations.” According to the 1939 regulations, “Unless exempted therefrom in whole or in part under these regulations, candidates for enrolment as articled clerks must have passed examinations in the subjects from time to time prescribed by the faculty of law of Dalhousie University as prerequisites for the admission to that faculty of candidates for the degree of bachelor of laws including matriculation Latin.”52 MacDonald’s deanship also witnessed the beginning of “practica” in the law school environment. As early as the autumn of 1943, a joint committee of council and Dalhousie Law School was discussing “prerequisites for admission to the law school of returned men, a post-war curriculum of the law school and the establishment of a refresher course for those

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returned men who had completed their law course before enlisting and did not practise.”53 By July 1944 council had decided to offer a “refresher course” for returned veterans in cooperation with Dalhousie Law School. Its purpose was to give younger members of the bar who had not yet begun to practise the opportunity to upgrade existing skills and acquaint themselves with new federal and provincial statutes, income tax and labour relations law, and the Defence of Canada Regulations (further to the War Measures Act).54 Probably because a sufficient number of interested returned-veteran lawyers could not be found, the proposed course as conceived was not delivered. Instead, the emphasis fell on law-student veterans and the need for articled clerkship positions to accommodate them.55 The intended refresher course evolved into a practice course, offered by the society in 1946–47 and 1947–48 under the direction of Frank Manning Covert, DFC (called 1930) – a returned veteran and member of council who had received his king’s counsel while serving overseas in Bomber Command. This prototype of the bar admission course, still twenty years in the future, was such an outstanding success that Dean MacDonald strongly favoured its continuance. Council, however, for reasons unknown – the minutes are not extant – decided against it, on Covert’s recommendation. It was a backward step, the more so in that council, in July 1944, had approved the introduction of a mandatory oral examination “in practical subjects of the profession” for candidates for admission to the bar.56 By 1950 change was in the air. Despite nearly seventy years of academic legal education, council’s suspicion of it had not dissipated. Studentsat-law might still take their legal training wherever they found it, at the university or in a law office. The LLB remained strictly optional. Council was focused on practice skills and saw the LLB more as value-added than foundational. The younger generation, however – those LLB graduates called between the wars – were more advanced in their thinking and were ready to dispense with law office training as an alternative to the LLB. So it was that the qualifications committee, chaired by William H. (Bill) Jost and comprising Frank Covert and Dean MacDonald, was asked to consider the whole question of articled clerkship and report at the annual meeting. They recommended that consideration be given by the new council to [a] complete review of the rules respecting admission, to a comparison of the

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rules of this society with those of the other provinces, and to a revision of the rules wherever it is found that the present rules are inadequate or unsatisfactory. At the present time the requirements of this society are less in point of time than that of any other province with the exception of New Brunswick.57 The issue was that as long as apprenticeship continued on a par with and as an alternative to the LLB, articled clerkship would remain substandard, lacking in rigour, and resistant to modernization. The immediate postwar years witnessed a significant expansion of the role of the qualifications committee, the junior of the two regulatory committees. By July 1950 each application for bar admission had to be vetted by at least one member of the committee before it could proceed further.58 In August council appointed Frank Covert the society’s representative on Dalhousie Law School’s curriculum revision committee. Meanwhile Covert’s friend and colleague, Bill Jost, was appointed a committee of one to report on and recommend to council amendments to the regulations concerning the term of service of articled clerks and bar admission. Chief among Jost’s eight recommendations were extending articled clerkship from nine to twelve months and eliminating the four-year law-office training as qualifying an articled clerk for bar admission.59 Both recommendations were in the first instance accepted,60 but council capitulated in the face of a rebellion from below. The “antiquated provision” in the regulations enabling admission to the bar through law office training was rescinded, only to be reinstated after a terrific backlash at the annual meeting in June 1951. Instead, the period of articled clerkship for those applicants lacking a law degree was increased to five years – the 1811 standard – though afterwards reduced to three years, nine months.61 Rumours that the society continued to authorize the admission of candidates to the bar without a law degree were beginning to attract unwelcome attention from abroad – mainly from the visible-minority Commonwealth – which created embarrassment for the society.62 The whole brunt and burden fell on the qualifications committee, who desired that council should lead from the front and take decisive action to quash the anomaly. Once burned twice shy, however, council was not inclined to revisit the issue – perhaps the only occasion in the society’s documented history when council capitulated to the membership and reversed course. The qualifications committee would have to weigh each application on its merits. As late as January 1966 council

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was referring the matter back to the annual meeting for discussion. The annual meeting, for its part, having heard the chair of the qualifications committee recommend that council amend the regulations so as to make the LLB mandatory, referred the matter to the incoming council, which refused to deal with it.63 The issue was simply too hot to handle. Not until 1970 was articled clerkship through law office training dispensed with, together with the professional examinations, and the LLB made mandatory.64 Postwar generational transition helped to ensure that law office training as a path to the law disappeared not with a bang but a whimper. Some twenty years earlier, in 1952, the preliminary examination had ceased to be mandatory. One could become an articled clerk only if one had successfully completed the second year of the LLB course.65 A conservative reaction soon set in; since articled clerkship continued to be mandatory, eligibility for it was watered down. Until 1967 the faculty of law section of the Dalhousie University calendar carried under the heading, “Regulations of the Nova Scotia Barristers’ Society” (afterwards “Admission to the Practice of Law”) the following advisory: The Nova Scotia Barristers’ Society will exempt from its preliminary examinations students who have completed matriculation into Dalhousie or any other approved college or university and (1) have passed in the subjects required by the faculty of law of Dalhousie University as prerequisites for the admission of students to the said faculty … or in subjects deemed to be equivalent thereto by the society; or (2) who hold the degree of bachelor of arts, science or commerce from Dalhousie or any other approved college or university.66 In 1967 the law school’s admissions committee took charge, the preliminary examination disappeared altogether, and intending LLB candidates lacking the BA or equivalent had to have done a minimum of two full years at university leading to it. The 1964 regulations featured a new provision – “practical studies” – reflecting council’s attempt to deal with the inadequacy of the vocational and technical training that articled clerks were supposed to be receiving in their principal’s office. The society committed itself to a series of “practical lectures” in subjects to be determined by the qualifications committee in consultation with the faculty of law and delivered during the third year of

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the LLB course. Prospective graduates were to supplement class lectures by assisting legal aid lawyers and auditing trials both criminal and civil.67 These were at best half-measures, which did not really work. Calls for a proper bar admission course on the Ontario model were becoming shrill; council responded with deafening silence, stating in May 1966 that the society was not in a position to offer a bar admission course, “but that some steps should be taken towards the preparation of a comprehensive list of matters in which articled clerks should gain experience.”68 In 1967 the president of the Canadian Bar Association, A. Gordon Cooper, a former president of the society, went on record as favouring that law societies devote more attention to training LLB graduates in the nuts-and-bolts of law practice.69 The driving force behind the movement for a bar admission course was a young law teacher, Murray Fraser (called 1963), who did not sing the “N.S.B.S. Perennial Song”: “Why can’t they be like we were / Perfect in every way / What’s the matter with kids today.”70 As early as April 1967 Fraser, then associate professor at Dalhousie Law School, “had offered to work with the [qualifications] committee on a study of the training program for clerks, to check with other provinces, and to work out something more satisfactory for all concerned.”71 The upshot was that in November 1967 Fraser chaired a two-day conference of articled clerks at which they got their first taste of what being a lawyer “in the trenches” was really like.72 Fraser allowed that the law school would do its bit but “felt the program itself must be given the whole-hearted active support of the society.” In this view he was supported by the chair of the qualifications committee who recommended that the initiative become an annual project of the society. By April 1969 the president was reporting to council that meetings had been held with the law faculty with a view to setting up a bar admission course. Together with Fraser, J. William E. Mingo, partner at Stewart, MacKeen & Covert (and afterwards president of the society), briefed council on the background and progress of the initiative, and a bar admission course subcommittee of qualifications was struck with Mingo as chair and Fraser as vice-chair.73 Though Dalhousie Law School had again shown the way, the president of the society was quick to take the credit, stating in his report to the annual meeting in July 1969, A highlight of our year has been the setting up of a bar admission course, the initial part of which has already been put into effect.

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Many provinces have adopted a bar admission course. In Ontario it adds practically a year to the training of a lawyer. In the west there are more modest programs. Our plan envisages four day sessions through the fall months that will tie in with the usual time for admissions to the bar [“Call Day”]. For the first year the curriculum is a brave one. Lawyers who have been asked to assist have been helpful … This is a signal advance in the training of articled clerks. It is premature for congratulations but I have every hope, from the start made, that it will be a great help to students and, as often happens, a help to those who prepare it too.74 In 1970 the bar admission course became mandatory and the subcommittee of qualifications a permanent standing committee whose mandate was “to organize and administer a bar admission course each year.”75 The first year saw Mingo himself act as director of the course as well as chair of the committee. Murray Fraser duly became chair and continued actively involved in the work of the bar admission course committee until his departure from Halifax in 1974. The successful roll-out of the bar admission course was a cooperative undertaking, which in retrospect seems like the high-water mark of good relations between law school and law society. In September 1969 the retiring dean, W. Andrew MacKay, stated his feeling that “the relationship between the bar, the council, the dean and the law school was unique in Canada, and made for a very pleasant and beneficial situation for all concerned.”76 In 1972 legal education circles throughout common-law Canada were transfixed by the release of the MacKinnon Report. The report of the Law Society of Upper Canada’s Special Committee on Legal Education caused a sensation by recommending the abolition of articled clerkship and its replacement by an enhanced bar admission course. By January 1973 copies of the MacKinnon Report were in the hands of council, and the qualifications committee was about to commence their study of it. The president stated his view that “the Barristers’ Society in this province is not in a position at this time to consider abolishment of the articling system, and will not be in such a position until such time as the bar admission course is considerably extended.”77 It was in any case clear that Nova Scotia “cannot create a bar admission course on the scale of that proposed for Ontario.”78 The society did not have the resources to strengthen and adapt its bar admission course to the extent necessary to compensate for

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the elimination of articled clerkship.79 The whole purpose, after all, of the bar admission course was not to supersede articled clerkship but to revive and improve it. Though lawyers with an interest in and flair for teaching played a role in the law school’s continuing education program, 1973 through 1977, law faculty did not participate in the bar admission course. That was decidedly ironic, since Murray Fraser was largely responsible for persuading council to inaugurate the course. Professor and associate dean of Dalhousie Law School from 1969 and acting dean in 1971–72, Fraser contributed more to the cause of professional education than any senior member of the law faculty since Dean MacDonald. Fraser’s like would not be seen again, and he was much missed. In 1987 Dalhousie Law School honoured him with the Weldon Award for Unselfish Public Service. It is no surprise that under Murray Fraser as inaugural dean, the University of Victoria’s law school (est. 1974) made skills training a mandatory part of the curriculum. Such a course of action was proposed for Dalhousie Law School in 1985 but not adopted.80 The new dean, Ronald St John Macdonald (1972–79) was no Murray Fraser. Macdonald got off on the wrong foot with council, announcing that a member of the faculty would represent him at council meetings, as was the case with the Attorney General. The two were hardly comparable, the attorney general having been an ex officio member of council since 1885 and the BSA having been amended in 1960 to provide for either the attorney general or representative to serve. No such provision had been made for the dean of Dalhousie Law School. The response from council was that the dean could nominate a locum tenens but only the dean in person could vote.81 The situation was reminiscent of the dark days of Dean Weldon, another condescending outsider. No dean after Macdonald would attempt a similar stroke of lèse-majesté. (Macdonald afterwards began attending meetings of council.) The looming crisis struck in 1975 when Dalhousie Law School, apparently without consulting or even informing council, permitted second- and third-year students to design their own curriculum (“radical modification,” in Professor Willis’s words, having succeeded the “decisive change” of the late 1960s82). Things had been done differently in 1969 when Dalhousie Law School introduced a new LLB program that allowed students in second and third year to elect a majority of their courses. On that occasion, however, dean and faculty held discussions with the society’s

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qualifications committee.83 In the interim the ground had shifted, and council was livid. According to the minutes of the February 1976 meeting of council (which Dean Macdonald attended), “It was pointed out that the society accepted some responsibility for holding graduates of law school with nine months of [articled clerkship], as being competent to practise law. It was recommended that a liaison committee with the dean of the law school be struck.”84 Council approved the committee in principle but took no further action. It was not until September 1977 that the law school liaison committee was established. Dalhousie Law School was not keen on the initiative (though it seems to have originated with Professor Graham Murray) and probably would not have cooperated had council not designed the committee’s membership to be joint and balanced. It was to comprise four representatives each from the society and the law school with two from the Law Students Society. The society’s second vice-president as inaugural chair soon reported that the committee intended “to draft up a report on the distance between the law school and the practising bar. Hopefully something may be done to avoid greater difference in views developing between these two bodies.”85 The law school liaison committee, which immediately became a permanent standing committee, was intended to be a consultative ways and means committee on legal education.86 In light of its rather undistinguished fourteen-year history, however, the committee’s terms of reference seemed unrealistic or at the very least too broad and diverse to be practicable: (1) To consider law school course requirements in relation to practising competence, and to function as intermediary between the Barristers’ Society Qualifications Committee and the Faculty Council; (2) to review, and make recommendations as to the course content of the bar admission course; (3) to investigate ways of improving the availability of library resources; (4) to improve arrangements for student financial assistance; (5) to develop programs of lectures, seminars and panels on subjects of mutual interest;87 (6) any other functions proposed by any [either] of the sponsoring organizations and approved by the committee.88 The committee survived until 1992, when the law school was at a low ebb, and towards the end of its existence still debating the very issues that had brought it into existence: “the need for greater communication between the

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law school and the practising bar concerning any perceived loss of stature of Dalhousie Law School and the quality of legal education offered there.”89 The law school liaison committee failed, at least in part, because Dalhousie Law School did not take it seriously. Law school and law society did not have a special relationship, nor did the law faculty have special status under the BSA. Indeed, whether they had a relationship at all depended on the positive attitude of deans such as V.C. MacDonald and his immediate successors Read, MacKay, and Donald, who worked extremely hard – and successfully – to foster cooperation. No one understood better than they that Dalhousie Law School was not in a position to dictate terms to the society. By the later 1970s law school and law society were two solitudes, each trying, or wanting to be seen to be trying, to communicate effectively with the other. The committee never fulfilled the promise of its mandate. Indeed, its very existence was an admission of failure that it proved unable to surmount. Through the 1980s the relationship between Dalhousie Law School and the society deteriorated still further. The year 1983, for example, saw the Nova Scotia government appoint a royal commission on post-secondary education.90 Because the commission was to take into consideration “standards necessary for education of students wishing to enter the professions and the contemporary requirements of the professions,” its chair wrote the president inviting the society to submit a brief. The executive committee was opposed, preferring that the society not speak officially but leave it to individual lawyers to respond if they wished, but they were overruled by council.91 The chair of the law school liaison committee was appointed convener of an ad hoc committee to prepare a brief for submission to the commission. A hard-hitting document, it comprised “four main discussion areas”: undergraduate education, entrance requirements and practices at Dalhousie Law School, education practices at Dalhousie Law School, and responsibilities of the Nova Scotia Barristers’ Society. Thirteen pages in length, the brief stated in the first sentence of the introduction, “The Nova Scotia Barristers’ Society wishes to reaffirm to the commission that it has the ultimate responsibility for the determination of the suitability of educational qualifications of individuals seeking admission to the legal profession,”92 Highly critical of Dalhousie Law School and all its works, the brief had for its theme that the law school was failing in its responsibility to the legal profession. The only bright spot was the law school liaison committee, the importance of which could not be overstated. It is perhaps

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small wonder that the report of the commission, issued in 1985, covered every area of post-secondary education except education for the professions. In 1991 a serious management crisis in the midst of an interregnum in the deanship induced the Senate of Dalhousie University to conduct a review of the law school.93 By a happy coincidence the society’s nominee as external reviewer was not only a member of the law school liaison committee but would also go on to chair the special committee struck in July 1992 to prepare the society’s response to the review.94 Gerald Godsoe’s fifty-nine-page no-holds-barred report may be taken as a fair indication of council’s views.95 Among the major issues identified were: (1) trade school or academic faculty? (2) preparing practising lawyers for the public, (3) relationship with the “downtown bar,” (4) excellence in teaching, and (5) faculty research and outside consulting. According to Godsoe, a “breach” had developed between Dalhousie Law School and the society: Without question the view of the law school has been adversely affected by the notoriety given the faculty council meetings of January 1991 on the Dalhousie Legal Aid Clinic and the selection process for a new dean. These events persuaded the leadership of the practising bar [council] that the law school was out of control, possibly incapable of being managed, and that the interest of the bar in legal education required a careful examination of what was “going on” at the law school.96 The final report of the Senate review had little enough to say about the society, while the law school liaison committee was conspicuous by its absence. Godsoe, for his part, felt that the mandate of the committee should be expanded: “Currently the liaison committee routinely discusses the mechanics of articling interviews and not much else. The committee, which perhaps should be expanded to permit representation of a greater variety of views, has been a missed opportunity for both the law school and the society.” Perhaps there was no longer enough goodwill to sustain it. Two of the Senate review report’s eleven program-related recommendations advocated much closer cooperation with the society in relation to curriculum development and management: “The faculty of law should review the current mix of mandatory, core and optional courses in the LLB curriculum. This review should take into account any suggestions of the Nova Scotia Barristers’ Society, particularly with respect to the preparation of graduates seeking admission to the bar in Nova Scotia and elsewhere.”97

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The eight-page response of the society’s ad hoc committee on the faculty of law review was tendered in February 1993;98 it made only too clear that the same, or at least very similar, problems that had given rise to the law school liaison committee years earlier still persisted in one form or another: Liaison between the society and the law school should not be left to chance. It is important that the valuable contributions that the deans have made to … Council and that the downtown faculty make to the law school [as lecturers] be built upon. This year … Council will be meeting at the law school. The executive [committee] met earlier this year with representatives of faculty and students. These small measures will make a difference, but they must be part of an overall plan to ensure there is mutual understanding on important issues.99 Overlooked was that the dean’s ex officio membership of council was meant to ensure that liaison between the society and the law school not be left to chance. Why had the deans’ “valuable contributions” to council, post–Murray Fraser, not had that cumulative effect? The society’s response emphasized that it confined itself “to those matters which either directly or indirectly raise issues for the society or the profession.” On reading it one quickly gains the impression that the years following the 1983 centenary of Dalhousie Law School, in the celebration of which the society played only a minimal role, “saw a decline in the stature of the school.” In that context, the destruction of the law library by fire in 1985 must have seemed like Armageddon. The reasons for the perception are less clear. The society favoured more communication and better liaison between the law school and the practising bar. The role of the law school was to train not jurisprudents or legal scholars but practising lawyers, and that in newly critical practice areas such as business law (“This area is vital to the current practice of so many lawyers”). In 1991 council had established an ad hoc committee on recommended courses. The move was controversial, the committee’s report prompting a debate within council as to whether recommended courses should be mandatory or optional.100 (The report of the committee was not approved until 1994.101) In April 1989 Justice MacGuigan of the Federal Court of Appeal wrote that legal education had become a matter of more general interest as a result of “three publishing events,” the first of which was the publication in 1984 of Law and Learning (Arthurs Report) – the report to the Social

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Sciences and Humanities Research Council of Canada by the consultative group on research and education in law.102 The initiative found Nova Scotia well represented, Judge Peter O’Hearn of the County Court – the only scholarly intellectual the Nova Scotia bar has ever produced – serving as a member of the consultative group and J. William E. Mingo, a former president, serving as a member of the advisory panel, which was chaired by the chief justice of Canada. The third regional consultation, held in Halifax early in June 1981, was attended by the society’s first vice-president and the chairs of the advertising and legal aid committees. The report itself had little or nothing to say about law societies and was critical of law schools to the point of recommending a bifurcated degree with vocational and academic tracks. This proposal met with no favour from either council or Dalhousie Law School.103 The second of the three publishing events to which Justice MacGuigan alluded in his article was the proceedings of the National Conference on Legal Education, held in Winnipeg in October 1985.104 The chair of the qualifications committee, who served on the national consultative committee and liaison group for the conference, participated, as did the president, the secretary-treasurer and deputy secretary-treasurer, and the chair of the bar admission course committee. It is no exaggeration that this conference – unique in Canadian legal history – changed the direction of legal education in Nova Scotia, leading in the short term to the establishment of a legal education committee and in the longer term to a complete rethinking of articled clerkship and skills training.105 The society’s delegates recommended to council the formation of an ad hoc committee, which was organized in November 1985.106 Intended to operate as a think tank, the legal education committee was a joint one comprising representatives of Dalhousie Law School and the Continuing Legal Education Society of NS, as well as the society. Meeting for the first time in February 1986, it immediately began a “thorough evaluation” of the society’s pre-call education program, the focus and emphasis being on the bar admission course. The status quo at the time no longer reflected the original concept of the bar admission course (“post law school training”), which was to provide articled clerks with that practical training for which their law degree had prepared them.107 Over the years since it was first offered in 1969, the course, which was taught by practising lawyers rather than professional law teachers, tended to replicate instruction in substantive law

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and procedure – the practitioners’ perspective complementing or counterbalancing that of the law teacher. Limited structural change occurred in 1981 when council, responding to the joint recommendations of the qualifications and bar admission course committees, determined that the articled clerk’s term would be twelve consecutive months and that the bar admission course would take place at the end of articled clerkship.108 In 1984 the chair of the bar admission course committee, reporting to council on that year’s just-completed course (which four students had failed while another was obliged to repeat it in its entirety) stated, “the results of this year’s course had led to concern about the ability of the present system to screen applicants before admission to the bar … the bar admission course committee and the qualifications committee would be looking carefully at the whole program with a view to determining whether the present six-week bar admission course can accomplish the committee’s goals with respect to competence.”109 So concerned was the executive committee about the apparent lack of due diligence on the part of articled clerks’ principals that the president sent them all a stern letter, which council ordered published in the Society Record.110 E.J. (Ted) Flinn took the view that articled clerkship was preparation for the bar admission course and that principals had an obligation to ensure that their clerks were well-prepared for the bar admission course and the practice of law. According to Flinn (called 1960), “There was a time when the bar admission course was not taken seriously. We have been told by some students that their principals have told them not to worry about the course: there is nothing to it; nobody fails.”111 The fault, however, lay not with insouciant principals but with the course itself. A compressed version of the LLB program, in other words a crash course, which did not instruct articled clerks in the nuts and bolts of law practice, was unhelpful. Flinn was willing to admit that the future of the bar admission course “is one of the most significant problems to be faced by the Society.”112 By late 1984 the qualifications committee was seeking a mandate from council “to test the competence of applicants before admission to the bar,” a responsibility that the bar admission course committee thought belonged to them (“council had confirmed some years ago that competence is the mandate of the bar admission course committee of the society”113). A turf war was breaking out in which council sided with qualifications over bar admission course committee.114 That qualifications was regulatory while bar admission course was an operational or program committee

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decided the issue. December 1984 saw a member of the faculty of law at Dalhousie added to the bar admission course committee, apparently in order to represent the interests of the qualifications committee. Mounting concerns over the viability of the bar admission course explain the society’s heavy participation in 1985’s National Conference on Legal Education and the consequent establishment of the legal education committee, which went back to the drawing board. After fifteen years, the bar admission course badly needed close and critical examination in the broad context of professional education, both academic and vocational. In July 1986 the legal education committee, on the strength of an $11,000 subvention from the law foundation, commissioned James P. Taylor, professor in the faculty of law at the University of British Columbia and a recognized expert in the field, to study and report on professional legal education and training in Nova Scotia.115 Tendered in November 1986, the eighty-nine-page Taylor Report comprised four substantive chapters dealing with the status quo, competence, competence in the context of professional legal education, and recommendations. Though weak on the history – formal academic law schools appeared in the United States long before the end of the nineteenth century (p. 14), and articled clerkship in Nova Scotia never ran to six or more years (p. 16) – the Taylor Report pointed the way ahead and outlined the shape of things to come. That the bar admission course had become the continuation of law school by other means was clear to Professor Taylor: “The society presently dedicates the great majority of instructional time in the BAC to teaching substantive and procedural law. Given the similar responsibility undertaken by Canadian law schools, this seems odd.”116 The working assumption, of course, was that the instructors, practising lawyers themselves, possessed those vocational and technical skills basic to practising law and could and did impart them and that in any case they would “rub off” on articled clerks through the advanced education and job training that their principals were supposed to be providing in their offices. The reality was rather different. The bar admission course was a rehash of law school as experienced by its graduates rather than a means of testing whether articled clerks had mastered the essentials of law practice. Both the bar admission course and articled clerkship had to be brought into a closer and more symbiotic relationship in order to ensure that new lawyers were armed with those practice skills on which competence depended. Such was the main thrust of the recommendations of the Taylor report.

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In November 1986, while waiting for the Taylor report, the legal education committee reviewed and responded to the report of the task force of the Federation of Law Societies of Canada to follow up the National Conference on Legal Education. Council approved the committee’s response.117 By March 1987, having received and concluded their study of the Taylor report, the legal education committee was able to make a preliminary report to council. The committee, which was “in the process of reviewing the entire scope of pre-call legal education,” agreed “that major change to the bar admission course offers the best immediate prospect for significant improvement in legal education in Nova Scotia.”118 The essence of the committee’s report was that the bar admission course be a “skills training program” rather than a “substantive law program.” It had begun as the former and become the latter, as if substantive law taught by practitioners in addition to professors was a satisfactory substitute for skills training, which was being taught by neither, in the forlorn hope that articled clerks were learning skills by osmosis or example in their principals’ offices. The final report of the legal education committee was before council for consideration in November 1987;119 at its heart lay the proposal to restructure the bar admission course – both its organization and the course itself.120 Among matters addressed in the report were the structure of the course, content, evaluation, the articled clerkship process, and costs. The chair of the committee, committee member Brent Cotter, associate dean of Dalhousie Law School (“the backbone of the committee”),121 and Professor Taylor all made presentations. Tabled for information and discussion, the committee’s report was approved in principle in January 1988 and approved as to costing and implementation in May. The legal education committee was thereupon superseded and replaced by the legal education implementation committee. It met for the first time in August to plan the development of a new skills training program, which would be based on the Law Society of British Columbia’s professional legal training course.122 In 1990 the society contracted out development and implementation of the new bar admission course to the Continuing Legal Education Society, in which the legal education implementation committee was subsumed. Approved in principle in October 1990,123 the skills training program was deferred for a year because of the failure to staff the new post of director of legal education in time for the course to commence in 1990. The new bar admission course was given for the first time in June 1991.

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Revised regulations respecting bar admission, articled clerkship, and course requirements came into effect at the same time. In April the qualifications committee had commissioned a survey of articled clerks and principals “in order to assess the quality” of the articled clerkship experience. Reporting in August 1991, the survey concluded, The results of the survey provide valuable insight into the articling process in Nova Scotia. The majority of those surveyed favoured an increased role of the Barristers’ Society in the monitoring of the articling process. Many clerks indicated dissatisfaction with the quality of their articles and felt unprepared to commence the practice of law upon admission. In particular, many clerks complained they lacked exposure to practical legal skills and various practice areas … Similarly, most principals indicated the society should more closely monitor the articling process. However, some principals cautioned that too much intervention on behalf of the society would result in fewer lawyers willing to become principals. Clearly, a balance must be achieved whereby the society can ensure that principals are fulfilling their obligations to clerks without imposing procedures that will discourage lawyers from becoming principals. Overall, the survey revealed the need for a careful examination of the current articling process in Nova Scotia with a view to enhancing the quality of articles provided.124 The bar admission course was the tip of the iceberg. It was one thing to renovate the course, another to reinvent articled clerkship, of which the course was an integral part. There had not been a thorough investigation of articled clerkship for forty years. Another twelve would elapse before the “careful examination” recommended by the survey report took place. The focus remained fixed on the bar admission course as if it were the key to unlocking all problems associated with articled clerkship. There was to be no follow-up to the work of the legal education committee, no stage two that addressed the larger issue of articled clerkship and the place of the course within it or relationship to it. The new bar admission course had its share of teething troubles, severe enough that the skills course committee (renamed successor to the bar admission course committee) was asked “to conduct a review of the course to identify its strengths and weaknesses and, where possible, implement

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improvements.”125 The report of the review was tendered in May 1993. Worse was to follow. In June the society’s program review committee released its final report. Among the recommendations was that “the bar admission course be rethought from ground zero. The executive director [of the Continuing Legal Education Society] has instructed the course providers to begin preparations for this review.”126 The final report of the committee to review society programs gave three pages to the bar admission course, concluding with the recommendation, “By the end of 1993 … council should have completed a thorough review [of ] the bar admission course to determine if the present type of course should be continued or if not, what type of course should be offered.”127 A review committee had been established in June 1993 “to examine the bar admission course and to determine if the present BAC should be continued and, if so, how it should be paid for.” Chaired by the first vice-president, the committee reported in May 1994.128 Its report damned course delivery with faint praise while urging a “stay the-course approach.” The overriding concern was cost-effectiveness, value for money, and longterm financial viability. No one would have disagreed with the first of its conclusions: “It is the responsibility of the Barristers’ Society to take reasonable steps to ensure that newly-admitted lawyers are competent to practise law in Nova Scotia.”129 The awkward questions being asked over the eight months of the committee’s work probably hastened the resignations of both the director of legal education and the executive director of the Continuing Legal Education Society. By April 1994 the president of the Barristers’ Society was reporting that negotiations were underway to bring the bar admission course back under society control. The move came in response to a recommendation by the board of the Continuing Legal Education Society that the bar admission course be returned to the Barristers’ Society in 1995.130 It would not take that long; in July 1994 the Barristers’ Society reclaimed the bar admission course. The Continuing Legal Education Society was struggling to survive; divestiture and retrenchment had to take place sooner rather than later if it were to do so. Outsourcing the bar admission course, an expensive white elephant, had proved a failure. It had, after all, nothing to do with continuing professional development; it was part and parcel of education for the bar. Another casualty was the bar admission course committee, which had run the course for its first twenty years. It merged with qualifications to become the qualifications and bar admission course committee (now

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credentials). This was a rationalization that highlighted that any matter bearing on pre-call legal education needed to be addressed with one voice. The tendency, in administrative terms, to divorce the bar admission course from articled clerkship had had unfortunate repercussions. In December 1994 the new committee, acting on a recommendation from senior staff, approved the proposal for a new bar examination. After a development phase lasting some eighteen months, the new examination was first administered in July 1996. A screening committee (“Screeners”) was established to set and mark the examination and deal with appeals from articled clerks dissatisfied with the results. In November 2003 council approved the admission process objectives developed by the qualifications and bar admission course committee: “The objective of the Nova Scotia Barristers’ Society admission process is to ensure that applicants are competent and fit to be called to the bar.”131 Council’s annual plan for 2003–04 tasked the committee with reviewing the entire admission process with a view to proposing changes that would ensure that it provided students with the requisite knowledge, skills, and abilities to equip them to begin the practice of law.132 The report of the subcommittee established to conduct the review was adopted by the committee and approved in principle by council in May 2004. Implemented the following year, the new articled clerkship and bar admission regime brought about a complete change to both process and content. Among the protocols developed were a statement of purpose and principles, articled clerkship agreement, competency criteria, model education plan, and model articled clerkship plan, as well as a statement of purpose and principles of articled clerkship and the bar admission process. Under the new regime, which commenced 1 June 2005, any lawyer wishing to become principal to an articled clerk was required to complete an application to be approved as such. Each principal or lawyer wishing to hire an articled clerk was responsible for creating an education plan that set out the practical experience to be gained during clerkship. The committee assumed responsibility for approving all education plans and applications from intending principals as well as articled clerkship plans for individual clerks. Moreover, the new regulations required that the committee vet each application for admission when the articled clerk was ready to be called to the bar. The persistence of articled clerkship, though long devoid of its original purpose, equipped the society with a handy instrument to control bar

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admission. It was a flexible tool, both ancient and modern. The society’s biannual meeting as long ago as February 1972, when the bar admission course was still a novelty, was “enlivened” during a panel on legal ethics by a group of Dalhousie law students who wanted to protest the system of articled clerkship. J. William E. Mingo (one of the panelists), who had been the inaugural chair of the bar admission course committee, “while declining to enter [into] a full-scale debate with the students, said it was becoming more difficult to hire [articled] clerks. He said the system may eventually have to be dropped altogether.”133 Mingo, who died in 2005, lived to see the system, of which the law students of 1972 despaired, reinvented. Articled clerkship – long the only form of legal education – had taken a new lease on life. Rather than disappearing, as it might well have and perhaps should have done after ceasing to be sufficient for bar admission, it evolved and adapted to a completely different reality. Facing down all the challenges of systemic change, it not only survived but succeeded in reacquiring a significant educational component. Far from being a relic of the past, it had become a herald of the future. Law professors, law societies, lawyers, and law students do not view professional legal education and training in the same light. Their assumptions, needs, and perspectives are very different. After the advent of academic legal education, the relationship among stakeholders was never easy or uncomplicated. Yet the bar of Nova Scotia had come a long way since the Lawyers’ Better Regulation Act of 1811 and the society an equally long way since the opening of Dalhousie Law School in 1883 and the achievement, sixteen years later, of self-regulation. By 1899 Dalhousie’s LLB had been grudgingly recognized, but articled clerkship (apprenticeship) was still the preferred path. It was a long time dying, withstanding council’s first attempt to abolish it, and did not expire until both the LLB and the bar admission course became mandatory. Though articled clerkship no longer involves apprenticeship in the traditional sense, a defined term of service in a lawyer’s office is still necessary. We still have clerks and principals. And the good lawyer remains a master craftsman.

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The Society and Continuing Professional Development

iN hiS rEPOrt tO thE 1954 ANNUAL MEEtiNg, the president of the Nova Scotia Barristers’ Society stated, “The outstanding innovation of the year was the institution of a legal clinic or refresher course under the chairmanship of Mr Robert A. Kanigsberg qC … this refresher course was well attended and all who had the privilege of participating and attending the meetings were unanimous in their opinion that the course should be repeated another year.”1 Such was the beginning of continuing professional development in the Nova Scotia Barristers’ Society. The refresher course would run annually until 1995, by which time “CPD” was a fact of life for lawyers in Nova Scotia. In 2012 it became mandatory. In 1954 continuing professional development was indeed innovative, even visionary. Council’s attention remained intensely focused on legal education leading to bar admission. The previous year Kanigsberg, member of council and chair of the legal aid committee, had told council, What we need more than anything else is a legal clinic which should meet two or three times a year dealing with practical problems that come up every day before the average solicitor. The net result of our efforts over the past few years has been nothing. What we need is something … which would bring the members up to date with the changes in the legal world. I do not mean a clinic of people presenting papers on problems which the average solicitor never sees in the whole lifetime of practice. What I am talking about are practical problems and I am suggesting … a legal clinic meeting two or three times a year in the same way that the medical profession

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have their clinics. It would have great publicity value also as the public would then realize that the legal profession are trying to keep up with the times and not going along the same old fashion as we have for so many years.2 Kanigsberg (called 1933) saw “continuing legal education” – as CPD used to be called – as a means of modernizing the profession, enhancing competence, and promoting the public interest in the practice of law. His proposal was remitted to the legislative committee, which approved it and recommended that council appoint a committee “to institute and conduct legal clinics dealing with problems encountered in the day to day practice of law …”3 Council agreed and appointed Kanigsberg chair of the new committee, which also included both Dean Read of Dalhousie Law School and ex-secretarytreasurer Balcom. Kanigsberg’s report to council in December 1953 was deemed important enough that it was ordered printed in extenso in council’s monthly newsletter.4 In it Kanigsberg set forth the agenda of what was being called the “refresher course,” the purpose of which “is to discuss subjects of interest to the average practitioner.” The subjects comprised corporations (company law), mechanics’ liens, criminal law, and remedies available to collect debts and the procedure involved. Each seminar was to be given by a panel of four or five lawyers, eighteen having volunteered or been recruited to act as instructors.5 The event took place at Dalhousie Law School over a Friday and Saturday in March 1954 and attracted 100 registrants from all over the province; the proceedings were even tape-recorded.6 This “legal symposium” – a first for the society – was such a success that its continuation was assured. Bob Kanigsberg (afterwards the society’s first Jewish president) was proud of this largely single-handed achievement,7 professional development having previously consisted of occasional papers delivered at the society’s annual meeting. For twenty years, however, continuing professional development advanced no further, though the annual meeting regularly offered a “professional program” comprising panels or papers on practical subjects. Despite being a staple of society programming, the refresher course never took place outside Halifax, where (after 1965) it was tied to the biannual meeting – another initiative of Kanigsberg’s. Lawyers outside Halifax derived little or no benefit from a program that was, by definition, stationary. If the annual meeting could take place outside Halifax, which

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by then it invariably did, why not also the biannual meeting? By July 1970 the annual meeting was ready to accept a proposal that “lectures and seminars might be held throughout the province during the year.”8 In October 1970 council established a committee to inquire into continuing professional development and report to the biannual meeting in February 1971;9 unfortunately, no record of that meeting exists. At the annual meeting in July 1971, continuing professional development went unmentioned. The committee was inactive through 1971–72. According to its chair, Attempts were made … to formulate a program but it became apparent that a voluntary committee, while capable of formulating the broad policy and outlining the direction the program should take, is not a suitable vehicle for actual[ly] working out and arranging the many details necessary to present suitable programs. This matter was brought to the attention of council, and was one of the contributing factors in council’s desire to obtain the services of an executive director, who among other things, could devote the necessary time to detailed preparation of continuing legal education.10 The chair of the continuing legal education committee was supported in this view by the president, who in his annual report stated, “It is also time for us to give serious consideration to a program of continuing education designed to maintain continuing competence among our practitioners.”11 Dalhousie Law School filled the vacuum. Invited to address council in March 1973 on the subject of continuing professional development, a junior member of the faculty assured council that his colleagues “were most anxious to give whatever assistance possible to the society through the public services committee.”12 During the academic year 1972–73 the faculty of law launched an ambitious program of continuing professional development. According to its eloquently worded manifesto, The faculty of law at Dalhousie has unique responsibilities and unique opportunities for public service. The small size of our province and bar should be turned to our advantage. There is a largely untapped spring of goodwill in our alumni whose loyalty has for too long simply been taken for granted. We should seek to reinforce ties of sentiment with the practical bonds of continuing

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legal education at this, a time of rapid change for the profession. Our alumni should be entitled to find in this faculty a continuing well of educational experience long after they have formally graduated. The community at large should find in us a source of guidance and assistance at a time when public participation and involvement are often mired down by an inability to cope with the complexities of the legal system.13 Modern times may be considered to have begun in March 1973 when Rowland Harrison, assistant professor of law, offered a special seminar on petroleum resources law to members of the society. Dalhousie Law School would continue to offer professional development opportunities through 1977 when the Continuing Legal Education Society of Nova Scotia, in which it was a founding partner, was established. Until the early 1970s, when continuing professional development began to find its way onto the national agenda of the legal profession, it lay mostly beyond the society’s horizons. The assumption was that any lawyer practising law was competent to do so; the professionally incompetent would be eliminated through a Darwinian process of “natural selection” and “survival of the fittest.” The refresher course, though popular with metropolitan lawyers and always well subscribed, was not mandatory. Council’s priority was continuing professional education – the bar admission course as the bridge between law school and bar admission; continuing professional development was viewed as the individual lawyer’s need or preference, a matter of personal responsibility rather than a society member service. Unlike the bar admission course, which was mandatory, continuing professional development was a fringe benefit of attendance at the biannual meeting. Nevertheless, the timely initiative by Dalhousie Law School resonated with the membership. The annual meeting in June 1973 unanimously adopted a motion “that great urgency be placed on this matter [continuing professional development], and an extensive program be implemented at the earliest possible time.”14 Sill, council took no action. It took an energetic new chair, Brian Flemming, to get the continuing legal education committee up and running. The annual meeting in June 1974 saw the committee report for the first time, stating that council had decided “to make more serious efforts towards establishment of a full program of continuing legal education for the bar of Nova Scotia.”15 The committee’s membership was expanded to

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include the chairs of the bar admission course and the refresher course committees, strange bedfellows given the completely different purposes of articled clerkship and continuing professional development. June 1974 also saw the inauguration of what arguably was the committee’s greatest achievement: the periodical Nova Scotia Law News, which flourished for nearly forty years.16 The appointment of Lois Dyer as executive director of the society in November 1974 saw operational responsibility for continuing professional development assigned to her,17 where it remained until her resignation in July 1977. In 1975 the chair of the continuing legal education committee reported that it would be “greatly expanding” its activities and that two “substantial programs” would be offered biannually – in Halifax.18 That year saw the committee assume responsibility for the refresher course and the chair and the executive director attend joint meetings of the Federation of Law Societies of Canada and the Canadian Bar Association held in order to discuss the future of continuing professional development. In January 1976 the president, the immediate past president, and the executive director attended another joint conference of the FLSC and the CBA at which the future of continuing professional development was considered. A further meeting took place the following month, which both the executive director and the chair of the committee attended. Continuing legal education – “CLE” – was an idea whose time had come. Suddenly it was as fashionable as advanced education and job training for articled clerks had been a decade earlier when the need for continuing professional development was barely recognized. In November 1976 council took a decisive step toward the “institutionalization” of continuing professional development, agreeing that it “should be placed on a more formal and professional basis in future [and] should be properly funded and staffed.”19 The biannual meeting in January 1977 received the report of the joint committee on continuing professional development, which comprised representatives of the society, the CBA’s Nova Scotia branch, and Dalhousie Law School. The principal thrust of the seven recommendations was that a separate entity should be established to deliver continuing professional development programs. The meeting endorsed the proposal, which already had the support of the planning committee.20 Council immediately authorized the continuing legal education committee to proceed with incorporating a non-profit organization responsible for continuing professional development.21 In March 1977 council approved and adopted the draft constitution of the new entity, and on 10 May the Continuing Legal Education Society

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of Nova Scotia (CLESNS) was incorporated under Nova Scotia’s Societies Act. As a “separate administrative vehicle,” CLESNS was more or less an exact copy of the British Columbia organization of the same name, founded months earlier.22 The fifteen-member board included four representatives each of the society and the CBA Nova Scotia branch, while Dalhousie Law School had five representatives and there were two lay members. The chair of the continuing legal education committee became the first president, while the committee itself ceased to exist. The scope of the fourteen objects set forth in the memorandum of association seemed impossibly broad, comprising everything from public legal education to encouraging lawyers to pursue advanced academic legal studies.23 The one that stood out the most was the third: “To conduct, develop and operate bar admission courses and educational programs for articled students if and when requested to do so by the Nova Scotia Barristers’ Society.”24 (It was the shape of things to come.) CLESNS began operating in November 1977 with a newly called woman lawyer as executive director. By June 1978 the president could report to council that it had had “a very successful first year.”25 By 1980 CLESNS was doing well enough to express interest in assuming responsibility for the bar admission course. Its offer, though approved in principle, was not accepted.26 By the end of the decade, council would be taking a very different view of the matter. The incorporating documents of CLESNS were silent on its relationship with the society, to which it was not accountable. Council did not appoint the board, only its own representatives, and communication between the two organizations did not extend beyond council’s receiving monthly activity reports from CLESNS. A source of passing concern was that the years 1977–82 saw the number of society-appointed board members decline from four to three to two. There were other concerns as well. In July 1981 council responded to the recommendation contained in a recent report from the Federation of Law Societies of Canada by appointing a committee “to evaluate continuing legal education in Nova Scotia and its effectiveness.”27 According to the report, “To date, very little evaluation of C.L.E. has been carried out. The directors simply do not know whether their agencies’ offerings are assisting to promote competence or whether they might be improved. To some, the information contained on course evaluations has been of assistance in the improvement of instruction.” On that basis the report was recommending “that an instrument suitable for the evaluation of C.L.E. be developed and that research on the effectiveness of C.L.E. be undertaken.”28

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By September 1981 a small evaluation committee (chaired by the president and including the first vice-president) had been struck. By October a joint advisory committee comprising the Nova Scotia Law Foundation (the primary funder), the society, and CLESNS had been formed “to enhance communication and cooperation among these three organizations.”29 Reporting to council in January 1982, the continuing legal education evaluation committee recommended the formation of a joint professional education development committee in which CLESNS and the society would have equal representation. Of particular interest was that unlike the CLESNS board, on which the society’s appointees were mere representatives, the society’s appointees to the new committee would be plenipotentiaries.30 The evaluation committee also recommended and council approved that the executive [committee] undertake discussions with the Continuing Legal Education Society to ensure that the maximum amount of continuing legal education possible is available to members of the Barristers’ Society and to encourage the provision of public legal education in the most efficient way possible. It is the view of the members of the evaluation committee that the present organizational structure of the Continuing Legal Education Society does not work to the best advantage of all concerned to provide these two services.31 The only material outcome of these discussions, assuming they took place, was that the public legal education committee of CLESNS was, in November 1982, spun off into a separate organization – now the Legal Information Society of Nova Scotia – so that CLESNS could better concentrate its limited resources on delivering continuing professional development opportunities to members of the society. The issue of whether CLESNS was delivering the maximum amount of CPD possible remained unaddressed and unresolved. In May 1982 the professional education development committee, whose purpose was to determine the continuing professional development programming needs of the society, held its inaugural meeting. It was agreed “that council should have input in any matter dealing with legal education for the society.”32 In his report to the annual meeting that year, the president stated the committee’s mandate thus: “The function of the professional education development committee will be to finalize

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programs for professional education for the members of the society.”33 In other words, the committee would vet which programs were offered, and CLESNS would deliver them. The committee’s role as an oversight board in which CLESNS and the society were on an equal footing seemed to call into question the independence of CLESNS’s own board. Shortly after the committee began operating, CLESNS responded to the challenge by enlarging and restructuring its board, adding six members-at-large, at least four of whom would be lawyers co-opted by the board. Though society representation went back up to four, its appointees could always be outvoted. Council members expressed concern about the society’s lack of control over CPD program delivery, one cautioning against “allowing an independent body to make decisions for the Bar[risters’] Society on the subject of legal education.”34 That was precisely the situation that the professional education development committee was meant to remedy. But CLESNS weathered the storm. By the end of 1983 the committee that was meant to monitor it on the society’s behalf had disappeared without a trace. No records of the professional education development committee survive, and CLESNS carried on as before. At the annual meeting in June 1984, a prominent country-town lawyer who had been president of the society when CLESNS was getting underway reported a “groundswell” of opposition against continuing professional development among his colleagues, who felt that “the ones who need the program don’t go.”35 The issue, of course, was competence, the implication being that continuing professional development that was not mandatory was pointless. Everyone agreed that its rationale was to promote if not ensure professional competence, but there was no consensus on whether, in order to be effective, continuing professional development had to be mandatory. The following year the president in his annual report identified continuing professional development as an area in which “the society’s attention should be focused in the immediate future” and as “a matter of major concern.” It seemed to E.J. (Ted) Flinn that the solution to this problem – as difficult as it may be to administer – lies in some form of mandatory continuing legal education. One has to wonder if the present continuing legal education program – as effective as it is – is really serving those in the profession who require it most. At the very least all of the members of the profession in the province should be contributing to the cost

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of administering an effective continuing legal education program. If all of the members are bearing the cost of such a program, then perhaps more members would attend. This indirect method may serve somewhat the ultimate goal.36 By 1986 cracks in the CLESNS façade were beginning to show. According to the Taylor Report, the assertion by many lawyers that they actually “acquire” many of the professional skills and other competencies in practice … is potentially disturbing … particularly so in a jurisdiction offering little in the way of continuing legal education, and within that offering giving little attention to professional skills. (In the 1985 CLE ‘season’ there were five courses of which only one – the Advocacy Conference – dealt with professional skills.) This is not intended as a criticism. The programme offered in Nova Scotia undoubtedly reflects the resources available, and relative to the size of the bar, is a reasonably ambitious programme.37 By November 1988 the vice-chair of the qualifications committee, having met with both the executive committee and CLESNS, concluded it was time to reconsider the society’s relationship with CLESNS.38 What relationship? – there was none. CLESNS was an independent organization in the management and direction of which the society, one of three founding agencies, played no part. Those appointed to the board by the society, or who were its officers, had a personal role, but the society as such had none, despite the fact that the chief part of its mandate was to serve the continuing professional development needs of lawyers, whom the society regulated. The significance of that disconnection was not lost on the executive committee who by January 1989 were “considering the formation of a new legal education society to coordinate and implement all post-law school education in Nova Scotia.”39 Operationally, this would mean adding the bar admission course to CLESNS. The outcome was that the board of CLESNS was reconstituted, shedding three of its fifteen members and giving an absolute majority of appointees – seven – to the society. The rose-coloured imperative was that this would “allow the Barristers’ Society to retain control of the future direction of continuing legal education.”40 Packing the CLESNS board, however, did not amount to control over the future direction of the organization responsible for delivering continuing

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professional development opportunities to the society’s members. That was the real issue. The solution would not be to merge the bar admission course with CLESNS but to merge CLESNS with the society. According to the minutes of the society’s 1990 annual meeting, “the past year [1989–90] has been the first of a two-year transition for the CLE Society. This transition has included the restructuring of the board and the expansion of its mandate to include the Skills Training Program.”41 It would soon become clear that mixing the apples and oranges of pre- and post-call legal education was a recipe for disaster. The second year of the two-year transition was largely taken up with developing and preparing to implement the new bar admission course (“skills training program”). June 1990 saw the appointment of both a new executive director for CLESNS and a director of legal education.42 In August 1990 CLESNS and the society entered into a memorandum of understanding (“skills training course”), the intention of which “was to outline the guiding principles and mutual responsibilities as between the Nova Scotia Barristers’ Society (NSBS) and the Continuing Legal Education Society of Nova Scotia (CLE) respecting the provision of the skills training/ bar admission course (BAC).”43 Despite the fact that the society was paying for the bar admission course, time would soon tell that CLESNS did not have sufficient resources to deliver simultaneously both continuing professional development for lawyers and skills training for articled clerks. Council, which had discussed the possibility of mandatory professional development as early as May 1991, revisited the subject in January 1993.44 The meeting adopted a resolution “that the council … favours the development of regulations which would allow the society, its council or an appropriate committee to designate certain educational activities for compulsory attendance by some or all practising members in the province.”45 In February the president told council that the Nova Scotia branch of the CBA was considering a proposal to take over professional development altogether; discussions among the society, the CBA, Dalhousie Law School, and CLESNS were in progress. Then in March the society and the CBA established a joint task force “to examine the methods used for delivering continuing legal education in Nova Scotia and to make recommendations on the most effective delivery method for this type of education to the legal profession in Nova Scotia.”46 The task force, however, did not report. When at June’s council meeting a member asked for an update on its work, another member – the past president of CLESNS – replied that its executive

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committee, despite the financial crisis, “was working on a plan to continue the society [CLESNS] as an independent organization” and that the task force had been informed. He did not know whether any further task force meetings would be held, and it appears none were.47 The “hidden agenda,” which was to develop an alternative to CLESNS, was abandoned once it became clear that CLESNS would be continuing to provide professional development opportunities. The Nova Scotia Barristers’ Society was not prepared to force the issue – at least not yet. By 1993 reduced core funding and declining enrolments had precipitated CLESNS into a fiscal crisis.48 By February 1994 council was reviewing the society’s contract with CLESNS to operate the bar admission course. The executive director of CLESNS had just tendered his resignation, and the board was considering a recommendation of its executive committee that the contract be terminated as of April 1995.49 The matter was again before council in May. At that meeting some members suggested the Bar[risters’] Society should assume responsibility for continuing legal education. [The president] advised council the executive [committee] has debated the question, but felt the society was unable to take on that role as well as resume responsibility for the bar admission course, at least in the short term … Several members said the Bar[risters’] Society should have some control over the provision of programs, and noted that mandatory continuing legal education is an issue which must be considered. Others said regardless of what organization provides the service, high-quality programming is a must.50 Within weeks, the society retook control of the bar admission course. Retrenchment worked in the interests of CLESNS, or at least seemed to. It was leaner and meaner. “Little more than 12 months ago,” declared the recently appointed executive director in June 1995, “Council was considering what, if any future the Continuing Legal Education Society of Nova Scotia had as an independent entity providing legal education in the province.”51 In order to renew itself CLESNS had returned to its roots as a source of strength. It was refocusing on its original purpose and mandate. At the annual meeting in June 1994, the CLESNS board amended the bylaws to provide for equal representation from the society, the Canadian Bar Association, and Dalhousie Law School, as well as for a lay member and

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a judge. The revised and updated memorandum of association limited the society’s activities to continuing professional development. Gone were public legal education (which since 1982 had a society of its own), the bar admission course, and communicating with and coordinating “the efforts of the Nova Scotia Barristers’ Society, the Nova Scotia branch of the Canadian Bar Association and Dalhousie Law School, in matters relating to continuing legal education.”52 In other words, CLESNS was reasserting its independence and decisively rejecting the 1989 settlement with the society, which had been intended to keep one’s friends close and one’s enemies closer. The 1994 reform was a daring one that would backfire when the society, having finally come to the realization that its responsibility for continuing professional development was no less great than its responsibility for skills training, reclaimed the former just as it had the latter. CLESNS, nevertheless, had survived against odds to fight another day. Since 1992 the Nova Scotia branch of the Canadian Bar Association had been delivering its own professional development program, while Dalhousie Law School was long and well out of the business of CPD programming. Revealing of the new order was that in June 1995 the society’s annual meeting saw CLESNS present (for the first time) a continuing professional development workshop. The annual meeting the following year offered a day-long professional development workshop. Even more revealing was that council’s annual plan for 1996–97 included what role the society might play in continuing professional development; the item recurred in subsequent annual plans.53 Decisive for future events was the new regulatory Objects Clause, enacted in 1997; it committed the society to “providing programs, activities and services which ensure the highest standards of professional responsibility and competence of its members.”54 In other words, it was now contrary to the spirit, if not the letter, of the regulations for the society to outsource CPD programming. Council’s meeting in March 1998 saw a lengthy, and lengthily minuted, discussion of continuing professional development, the “overall consensus” of which “seemed to be that the status quo was working and that the organizations involved [CLESNS and CBA] should be left to continue to work cooperatively and to avoid duplication.”55 Things would remain as they were – for the time being. In the section of its 2000 report dealing with education, however, the task force on competence was critical of the society’s laissez-faire approach:

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The task force acknowledges that beyond the bar admission course the society’s involvement in educational matters is minimal. In terms of what is generally referred to as “continuing legal education” it is non-existent. The task force questions whether the society is properly fulfilling its mandate under regulation 1A [Objects Clause] which refers to “establishing, monitoring and enforcing standards for education … ” and “providing programs … which ensure the highest standards of … competence.” We acknowledge the value of the work done by both the Continuing Legal Education Society of Nova Scotia and the Canadian Bar Association (Nova Scotia Branch). However, our questions with regard to the role of the society in the development and planning of educational offerings led us to conclude that there appears to be a significant gap between these providers of continuing legal education and the self-governing body. That is not to say that the society could not delegate some of its responsibility to those organizations, but even that does not appear to be the case. Rather it seems that the society takes no responsibility for continuing legal education.56 The point was well-taken: if the society were responsible for professional competence under the Barristers and Solicitors Act, then it could hardly not be responsible for continuing professional development under the regulations. In 2000 the executive committee established a task force to review society operations. Its mandate was to revisit, reconsider, and, if necessary, revise and update the findings of 1993’s program review. Undertaken at a time when the society was not directly involved in either professional education or continuing professional development, the ad hoc committee to review society programs did not address either of those subjects. The successor task force took into account developments that had occurred since 1993 and decided to concentrate on five areas, the first of which was competence/continuing professional development.57 Reporting in May 2001, the task force concluded that CLESNS, “as currently constituted, no longer provides a sustained, comprehensive and purposive educational program meeting the threshold requirements necessary to satisfy the objective of the society. CLE provides the wrong programs, at too high a price, not in all the right locations and in a manner which is not conducive to adult learning.”58 The first of the task force’s sixteen recommendations was

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“that the society take responsibility for meeting the educational objectives set out in the regulations [1A] by taking direct responsibility for continuing legal education. Continuing education can no longer be delegated to others by the society.59 It is an issue which must be addressed by the society in order to meet its objects.” The task force was emphatic as to the need for reform, deploring in particular that CLESNS took a “metrocentric approach,” offering few if any professional development opportunities outside the greater Halifax area. It also drew unfavourable comparisons with the CBA, which, given its much greater resources, “was doing a much better job with respect to conference delivery.”60 That was the beginning of the end for CLESNS, which the task force clearly saw as part of the problem. Within nine months of the task force’s recommending that continuing professional development become a society operation, CLESNS had been taken over by the society. The recommendations of the operations review task force were approved in May 200161 at a meeting of council, which both the president and the executive director of CLESNS attended in order to respond to the task force’s recommendations. During the discussion, the question was posed whether CLESNS “could work with the society with respect to providing continuing legal education to the members.” The answer was yes, but it was too little, too late. It was noted that the task force did not consult with the CBA or CLESNS while developing their recommendation. Evidence of the alleged extreme dissatisfaction among society members about conferences and programs offered by CLESNS was impressionistic and hearsay. The second vice-president observed, “the statutory obligations as set out in the Objects Clause [Regulation 1A] are not being met, and expressed the view that council should defer to the recommendations of the task force; creating and presenting an operational plan to council, which would answer a lot of questions being asked today.” A June 2001 meeting between the presidents and the executive directors of the society and CLESNS made little progress.62 Later that month continuing professional development was discussed during council’s annual planning session (“Reports suggested to bring it in-house. This created a stir”63). Council’s annual plan for 2001–02 included the following action item under the heading competency/continuing professional development: “The society will fulfill its mandate to ensure that members have access to programs that ensure the highest levels of professional responsibility and competence. The society will determine the most effective delivery method

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for continuing legal education programs. Consider if there should be a mandatory component in the continuing legal education programs.”64 In her report to the annual general meeting of CLESNS in July – the last – the executive director devoted several paragraphs to relations between the society and CLESNS.65 The report concluded, The actual plans of the NSBS in this regard are not known, and neither is their time line for further consultation, decision-making and/or implementation. If they do decide to program and deliver CLE [continuing legal education], our operations would be significantly affected. In the absence of further information from the NSBS it is difficult to know how to proceed. At present CLE[SNS] is programming its fall and winter conferences, making the usual liaisons with other organizations and evaluating the results of our survey. Events then began to move quickly.66 In July senior staff of the society proposed, and in August the executive committee agreed, that the society should assume direct responsibility for continuing professional development.67 It was as if the year 2001 were the final year of a seven-year transition from CLESNS to the society: first the bar admission course was rolled back in, then continuing professional development. Early in September the business plan for continuing professional development was before the executive committee, where it was approved despite the immediate past president’s expressed “concern that the plan as outlined will not work.”68 Four days later – on the morning of 11 September 2001 – the president of the society delivered the news to the president and executive director of CLESNS. On the 21st continuing professional development was before council for a fractious discussion that occupies eight pages in the minute book.69 The business plan proved a non-starter, and the resolution to approve it had to be withdrawn. A significant potential stumbling-block was the CBA, which ran its own highly successful continuing professional development program. At first decidedly unenthusiastic, if not opposed, the CBA had to be reassured that the society’s absorption of CLESNS was not unfair competition or empire-building at their expense.70 According to the society’s executive director (a former president of CLESNS), common ground already existed: “Because both the society and the branch [CBA] agree that there is no longer a viable role for the

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Continuing Legal Education Society as it currently exists, it is agreed that the society will assume responsibility for the operations of the Continuing Legal Education Society and that the net assets of the society will be used to enhance educational and professional development programs for all lawyers in the province.”71 In November 2001 the society and the CBA entered into a formal memorandum of understanding for the provision of continuing professional development, which they agreed to share between themselves. The business plan for continuing professional development, as revised, was approved by council.72 The executive committee of CLESNS thereupon agreed to recommend council’s decision to their board, which met informally in December and approved the “transition.” On 8 February 2002 the board of CLESNS resigned en masse and were replaced as officers and directors by senior staff and officers of the society; CLESNS was not wound up but shut down, ceasing operations altogether while continuing to exist on paper.73 Responsibility for continuing professional development was assigned to the director of the bar admission course as head of a new professional education department within the society (now education and credentials), and a broadly based advisory committee on continuing professional development, to which the last president of CLESNS was appointed, was established to assist the society with carrying out its new responsibilities as lead provider of CPD. By April the first vicepresident had concluded that the society’s reclaiming continual professional development “has created bridges where none previously existed and is a very big contribution to the society.”74 CLESNS expired just short of its twenty-fifth birthday. It had come into existence at a time when the society recognized the importance of continuing professional development but lacked the will or the resources to implement it. The non-traditional was becoming mainstream, but the society was uncertain of its role, or indeed whether it had a role. Moreover, the link between continuing professional development and professional competence had yet to be forged. A quarter-century later it was clear that if continuing professional development were a member service (though not yet a member requirement), then the society had to assume responsibility for it. An arm’s-length solution had proved to be altogether inadequate. Changing views of professional incompetence, especially its evolution towards the unethical/disciplinary, led to a rethinking of how to instil and sustain competence. The 1983 amendments to the BSA elevating incompetence to grounds for discipline and authorizing council to regulate

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for professional competence75 committed the society to taking ownership of continuing professional development. By 1987 the discipline policies and procedures committee had determined that “competence problems are arising frequently and must be addressed.”76 Their response was to hold workshops focusing on areas where competence problems were most likely to arise. This in turn led to the formation in November 1988 of an ad hoc committee, which proposed in vain that an advisory committee on competence77 be established. Little more was done until 1999 when a task force on competency was appointed. With the new outlook came new language – “continuing professional development” rather than “continuing legal education,” which tended to suggest that CPD for practising lawyers and skills training for intending lawyers were two aspects of the same thing. The wisdom of hindsight had shown that a 1970s solution to a 2000s problem would not wash. Moreover, the 1997 enactment of a regulation binding the society to provide “programs, activities and services which ensure the highest standards of professional responsibility and competence of its members”78 was a game-changer. The decline and fall of CLESNS, which had not moved with the times, was for that reason inevitable. One wonders whether, had CLESNS been from the beginning an offshoot of council like the Nova Scotia Barristers’ Liability Claims Fund,79 the outcome of the experiment might have been very different. As it happened, control lost at the outset proved impossible to regain short of sacrificing CLESNS. As a wholly owned subsidiary of the society with a board appointed by council, CLESNS might have worked well from the start. The society’s taking charge of continuing professional development did not automatically resolve the issue of how best to sustain competence; was mandatory CPD the key? Indeed, the issue became more controversial in light of conflicting views on whether the whole bar should be held to ransom for the actions of the incompetent few. Regulations under the Legal Profession Act (in force 31 May 2005) authorized council to “from time to time prescribe mandatory training and educational requirements relating to the practice of law or a particular area of law.”80 A few months earlier, at the instance of the executive committee, council had set up a task force to inquire and report. The mandate of the mandatory continuing legal education task force was to make recommendations to council “about whether the society should institute a mandatory continuing legal education program, including options for a program and design components.”81 The

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task force never reported and perhaps never functioned. Instead, what we would now call a “rethink” occurred. Continuing professional development was reconceived as not an end in itself but rather a means to an end. In light of that, council struck a new task force, on continuing competency, which placed CPD in a broader context: self-assessment (“How do we help lawyers assess their own level of competence?”), education (“How do we help lawyers enhance their competence?’), and quality assurance (“How do we ensure the standards of competence are met?”).82 The task force, which reported in March 2007, recommended that lawyers receive a minimum of twelve hours’ formal professional development each year complemented by fifty hours of private study. CPD was evolving in the direction of lifelong learning. In 2012, forty years after “CLE” first found its way onto the society’s agenda, mandatory continuing professional development finally became a reality.

12

Conclusion: Self-Regulation and the Public Interest

LiKE MArK OrKiN’S DiSSErtAtiON ON thE LAw SOCiEty of Upper Canada, the chief purpose of this study has been to examine the selfgoverning function of the Nova Scotia Barristers’ Society as it developed during the period 1899–2005 and its relation to the public interest.1 It deals with the achievement of the society’s power of self-regulation, the extent to which what Orkin calls “professional autonomy” has been exercised consistently with the public interest – or not – and the forces combining to effect the result. According to the Nova Scotia Barristers’ Society’s current vision and values statement,2 “The purpose of the society is to uphold and protect the public interest in the practice of law.” The vision goes on to state, “The society is the independent, trusted and respected regulator of the legal profession.” What is the relationship between purpose on one hand and vision on the other, between public interest and self-regulation? Are they in fact related? If so, when did the relationship commence, and has it changed over time? As self-regulation came in for criticism in the wake of the society’s response to the Marshall Inquiry report, the public-interest rationale for professional autonomy became paramount and public-interest rhetoric the ruling discourse. But who watches the watchers? Lawyers are accountable to council as the governing body of the society, but to whom does the society render an account of its stewardship of the profession? Does council regulate lawyers (in current parlance, “legal services regulation”) in the public interest, the professional interest, or the society’s interest? Does the independence of the bar depend on self-regulation (in other words, the independence of the society)? The assumption, if it is not a myth, has been

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that self-regulation was the sine qua non of public-interest protection. To quote Orkin, over some 100 years the society “[has] carefully constructed its autonomous position. In the process it [has] insulated itself completely from the judges, the members of the profession and … from the state.”3 Perhaps the greatest, indeed almost the only, threat to that position was the Marshall Inquiry report, which was taken to mean – though it certainly did not state or even imply – that the society as professional regulator was failing in its duty to uphold and protect the public interest. Previously, protection of the public was viewed as the effect, rather than the purpose, of self-regulation. The purpose of self-regulation was to uphold and protect the professional interest. Yet assuming responsibility for professional regulation committed the society to protecting the public interest – despite the fact that, historically, the society neither saw itself, nor was it seen, in that light. People generally, who opposed the grant of professional regulation to the society, believed that it could not be trusted to safeguard the public interest. Lawyers who opposed it – they constituted the majority – believed that the society could not be trusted to safeguard the professional interest, let alone the public interest. Regulation was in the society’s interest, enabling as it did the flea to swallow the camel. That is why it was so controversial. Self-regulation brought with it power and authority, to say nothing of prestige, which the society had never possessed before. Moreover, the society’s concept of its acquired responsibility for serving the public interest originated and developed only after and on account of the grant of self-regulation. At first, public interest and professional interest were indistinguishable. What benefited the society – self-regulation being the prime example – by definition benefited both lawyers and the consumer of legal services. Self-regulation also meant that the society could define to its own satisfaction what the practice of law was and, by necessary implication, what constituted the public interest in it. The society as regulator had both the power and the responsibility to ensure that those professionals whom it regulated acted in the public interest. Put another way, the society acted in the public interest by regulating lawyers. The history of the Nova Scotia Barristers’ Society is the quest for professional autonomy, conferred as it was by government belatedly and over the general opposition of the bar. Where once it was dominant, self-regulation as a concept has no future except in reference and relation to the public interest. Professional interest no longer exists even as a concept because

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public interest criteria are normative. Public interest as first principle – the Legal Profession Act has an entire unit devoted to “Protection of the Public” – grew out of actual or perceived failures of the regulatory regime and has expanded to such a degree that it is the only justification for professional autonomy as the model of professional regulation. Placed in historical context, of course, the delegation of self-regulatory powers by the legislature to the society must have been determined to be in the public interest, for otherwise it would not have taken place; nor could the society have accepted the delegation of such wide-ranging powers except conditionally on public interest protection as the quid pro quo. Why that delegation was deferred for seventy-five years, however, raises the question whether self-regulation was ever really in the public interest – it was undoubtedly in the society’s interest, if not the bar’s – and is one of the enduring mysteries of the society’s history.4 The umbilical cord linking self-regulation and public-interest protection seems to fall somewhere between comfortable myth and useful assumption. It is difficult to separate the politics of professional regulation from stakeholder views of what constitutes the public trust and how best to identify, let alone preserve and defend, it. Government, the courts, lawyers, and the general public, whose interest the society exists to uphold and protect, have all been involved. The society in any case must always be seen to be responsive to the shifting sands of the public interest, as it was especially in the fifteen years elapsing between the Marshall Inquiry report and the Legal Profession Act. Again to paraphrase Mark Orkin,5 the new act affords a convenient vantage point from which to survey how the whole focus of law society autonomy has shifted decisively and permanently away from professional self-interest towards the public interest.

Appendices

AP PEN D i x A

Chronology

1 7 0 0S 1749 Bar of Nova Scotia established. – Nova Scotia’s first lawyer, Archibald Hinshelwood, called to the bar, 27 December. 1754 Bostonian Jonathan Belcher, Jr, an American member of the English and Irish bars, appointed chief justice of Nova Scotia and the Supreme Court established. 1788 Two American Loyalist lawyers suspended for contempt of court.

1 8 0 0S 1811 Lawyers’ Better Regulation Act passed; attorneys denominated “barristers.” 1817 First king’s counsel (Crown attorneys) appointed. 1818 Lawyers’ Better Regulation Act renewed for seven years. 1820 Cape Breton Island reannexed to Nova Scotia; members of the bar of Cape Breton not permitted to practise off-island unless called separately in the Supreme Court at Halifax. 1825 Society of Nova Scotia Barristers instituted, St Patrick’s Day (17 March). – Lawyers’ Better Regulation Act lapses. 1826 New barristers and attorneys rolls opened and new rule of court governing bar admission enacted. 1835 First library catalogue published. 1836 Lawyers’ Better Regulation Act restored after eleven years. 1844 Attempt to incorporate society fails. 1846 Lawyers’ Better Regulation Act renewed for ten years. 1851 Lawyers’ Better Regulation Act (renamed “Barristers and Attorneys Act”) made permanent.

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1853 Society’s first treasurer, Henry Hezekiah Cogswell (called 1798), becomes the senior member of the bar. 1858 Society incorporated; name changed to Nova Scotia Barristers’ Society. 1860 Society reorganized. Premier William Young becomes first “president” but resigns on being appointed chief justice in August. – Preliminary law examination for intending articled clerks introduced. – Law Students Society formed. 1870 John William Ritchie, longest-serving chair/president of the society, appointed to Supreme Court. 1872 Council given responsibility for law student examinations. – Medical doctors in Nova Scotia achieve professional self-regulation. 1874 Society president, Hiram Blanchard, dies in office. – Halifax School of Law incorporated. – Halifax Law Society (young lawyers’ fraternity) founded. – Society in general meeting passes resolution “condemning, in severe terms, the practice of canvassing for business as unprofessional and unbecoming.” 1875 Society president, William Alexander Henry, appointed puisne justice of the new Supreme Court of Canada. 1878 Society president, James McDonald, appointed federal minister of justice. 1879 Law stamp introduced. 1881 Attorney General John S.D. Thompson, president of the society, leads successful initiative to establish a faculty of law at Dalhousie University. 1882 Ex-Premier and Attorney General Thompson appointed to the Supreme Court. 1883 Dalhousie Law School opens. – Society’s act of incorporation amended to authorize issue of debentures in order to finance purchase of books for the library. 1884 LLB authorized as substitute for articled clerkship. 1885 Council given discipline powers over the bar. – Attorney general becomes ex officio member of council. – Society membership thrown open to all lawyers. – [Provincial Barristers’ Association established?]. – Justice Thompson (former president of society) becomes federal minister of justice. 1891 Council recognizes Dalhousie’s LLB.

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1892 Sir John S.D. Thompson becomes prime minister. 1893 Annual practising fees become mandatory. – President of society, Hugh McDonald Henry, appointed to Supreme Court. 1895 Samuel Leonard Shannon, treasurer, dies after 49 years’ continuous service. 1896 Society leads initiative to found the Canadian Bar Association. – Earliest society meeting minutes survive. 1897 Bill opening the Nova Scotia bar to women fails to pass the legislature. – Society hosts second annual meeting of Canadian Bar Association. 1899 Annual meeting defeats proposal to extend council membership to counties outside Halifax and combine the offices of secretary and treasurer. – Barristers and Solicitors Act passed and comes into force 1 July. All lawyers made members of the society and council the governing body of the legal profession. – Society becomes ex officio member of Halifax Court House Commission.

1 9 0 0S 1900 First African Nova Scotian called to the bar. – Offices of secretary and treasurer united. 1901 Robert Laird Borden, MP, president of the society since 1896, becomes leader of the federal Conservative Party. – Cape Breton Barristers’ Society organized. 1904 County representatives outside Halifax added to council. – Robert L. Borden, MP and leader of the opposition in Parliament, declines renomination as president after eight consecutive terms. – Regulations consolidated. 1905 Office of secretary-treasurer reverts to secretary and treasurer. – Immediate past president, Arthur Drysdale, appointed attorney general. 1908 President defeated in bid for re-election. 1910 Chief justice added to council. 1911 Earliest council meeting minutes survive. 1912 Society president, James Johnston Ritchie, appointed to Supreme Court. 1913 Librarian becomes registrar of Admiralty Court.

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1914 Regulations consolidated. – Council goes on record as “strongly opposing” abolishing or limiting the right of final appeal to the Judicial Committee of the Privy Council. – Council appoints standing solicitor for the society. – Conjoint marking with council-appointed examiners of LLB final examinations at Dalhousie Law School introduced. – Defunct Canadian Bar Association refounded. 1915 First woman files articles of clerkship. – First woman admitted to Dalhousie Law School. – Council inaugurates regular society meetings “of a social and literary character.” 1917 Declaratory amendment to Barristers and Solicitors Act confirms that women articled clerks may be called to the bar. – Council advocates the immediate introduction of daylight saving time. 1918 First woman and first Jewish person called to the bar. 1919 North British Society donates to society portrait of its first (1860) president, Sir William Young. 1920 William Rufus Foster retires as secretary after forty-six years’ service. – Librarian appointed secretary and two offices merged. – Dean of Dalhousie Law School begins to be elected regularly to council. 1922 Regulations consolidated. – Society president, Walter J.A. O’Hearn, appointed attorney general. 1923 First known discipline proceeding under the Barristers and Solicitors Act leading to disbarment. 1924 Solicitor (a former president) resigns when, contrary to his advice, council orders discipline proceedings against a lawyer convicted and imprisoned for perjury to proceed immediately. 1925 Society’s centenary. 1926 Society’s vice-president, James Layton Ralston, resigns on being appointed minister of national defence in the federal cabinet. – Council appoints one of its own members, Robert Harper Murray, vice-president. 1927 Conference of Governing Bodies of the Legal Profession in Canada founded; the society a charter member. – Hewart of Bury, Lord Chief Justice of England, visits Halifax as guest of the society. 1929 Chief justice removed from council. – Society withdraws from the Conference of Governing Bodies of the Legal Profession in

APPENDix A

1930 1931 1933

1934 1936 1937

1938 1939

1940

1941 1942

1944

1945

225

Canada. – Regulation 47 amended to the effect that council had to approve on its merits each application for bar admission Society rejoins the Conference of Governing Bodies of the Legal Profession in Canada. – Annual dinners commence. Earliest annual report survives. Discipline committee and qualifications committee established. – Council unanimously strongly opposes reinstatement by the appeal court of wSMK, a disbarred lawyer. Junior bar society organized. Western Counties Barristers Association founded. Member of council, Mather Byles Archibald, appointed to the Supreme Court. – Disbarred lawyer reinstated (probably the first). Society establishes $500 trust as lending fund for students at Dalhousie Law School. Barristers and Solicitors Act revised. – Regulations consolidated. – Discipline Regulations enacted. – Membership dues reduced by one-half. – Law Library renamed Barristers’ Library. Former president and current member of council, F.F. Mathers, appointed lieutenant governor. – Society publishes Justice R.H. Graham’s Digest of Cases in the Nova Scotia Reports 1907–1929. Barristers and Solicitors Act amended to entrench discipline committee. Law reporting committee discontinued. – Japanese-Canadian George Tamaki, LLB (Dal.), denied admission to the bar by vote of council despite “having satisfied all requirements.” Frederick Pennington Bligh (called 1881) attends his sixtyfourth consecutive annual meeting of the society. – Barristers and Solicitors Act amended to define the practice of law. – Candidates for admission to the bar required to pass an oral examination “in practical subjects of the profession.” First woman elected to council. – Treasurer becomes vicepresident. – Offices of secretary and treasurer combined. – Secretary becomes secretary-treasurer. – Barristers and Solicitors Act amended to provide for the defrocking of disbarred or suspended king’s counsel and to provide for reprimand as a disciplinary sanction.

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1946 Dean of Dalhousie Law School becomes ex officio member of council. – Halifax members of council reduced from seven to six. – Post of second vice-president established. – Presidential term limited to one year. – Society inaugurates “Practice Course” at Dalhousie Law School. – George Tamaki called to the bar. 1947 Society’s first (and immediate past) second vice-president, Vincent-Joseph Pottier, becomes first federally appointed Acadian judge in Nova Scotia. – Law revision committee and public relations committee established. 1948 Society president, Eugene Troop Parker, appointed to Supreme Court. 1949 Latin dropped as a requirement for law school admission and bar admission. – Society establishes at Dalhousie University two $500 scholarships for law and commerce students. – Social committee established. 1950 First woman secretary-treasurer appointed. – Legal aid committee established. – First legal aid service organized. – Lawyers’ wives attend annual dinner for the first time. – Nova Scotia becomes third jurisdiction, after Ontario and Saskatchewan, to appoint women king’s counsel. – “Defalcation” (client compensation) fund established. – Chartered accountants engaged to conduct audit of society’s books and financial records. – Proposed tariff of solicitors’ fees (1948) approved in principle. – Society funds accounting course at Dalhousie Law School. 1951 First annual meeting and first council meetings take place outside Halifax. – Regulation prohibiting bar admission exclusively through articled clerkship enacted but soon rescinded. – Operational responsibility for Barristers’ Library removed from secretary-treasurer and vested in library committee. – Nominating committee established as ad hoc committee for annual meeting. 1952 Regulations consolidated. – First council meeting takes place in Cape Breton. – Council monthly letter to society members introduced. 1953 Budget (later finance) committee and society services committee established. – Legal Research Board (law reform committee) established. – Annual meeting adopts scale of recommended fees for practising barristers.

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227

1954 Second vice-president for the first time becomes the vice-president. – Annual meeting takes place for the first time in Cape Breton. – Annual “refresher course” (continuing professional development) introduced. – Non-lawyer appointed secretary-treasurer. 1955 First president from elsewhere than Halifax elected. – Legal ethics committee established. 1957 Reimbursement fund established. 1958 Post of honorary president created. – Law Society of Upper Canada admits Dalhousie LLB graduates to bar admission course conducted by the society for candidates for admission to the bar of Ontario. 1959 Public relations committee revived. – Committee on “encroachments” (unauthorized practices) established. – First vice-president, Roland A. Ritchie, appointed puisne justice of the Supreme Court of Canada. 1960 Council regional districts created. – Secretary-treasurer removed from council. – Immediate past president added to council. – First president from Cape Breton elected. 1961 Chair of society’s legal aid committee represents five legal aid applicants on appeals to the Supreme Court of Canada. – Society’s long-time solicitor and a former president, F.W. Bissett, appointed to the Supreme Court. 1964 Regulations consolidated. – All practising lawyers required to be bonded. – First Jewish president elected. – Provisional schedule of fees adopted on trial basis. – Annual report begins identifying lawyers disbarred or suspended during the year. – Lieutenant Governor H.P. MacKeen, qC, former president and honorary president of the society, inaugurates formal Government House investiture of new queen’s counsel. – Society solicitor, Peter J.T. O’Hearn, publishes Peace, Order and Good Government: A New Constitution for Canada (Toronto: Macmillan), 325 p. 1965 Society inaugurates biannual (winter) meeting. – Three past presidents added to discipline committee. – Annual meeting proposes that attorney general establish a law reform advisory committee. – Society solicitor, Peter O’Hearn, appointed judge of the County Court for District Number One (Halifax).

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1966 Lieutenant Governor H.P. MacKeen becomes society’s first life member. – Nominating committee becomes permanent standing committee. – President made ex officio member of all society committees. – Indemnity bond not renewed. – Professor Arthur Meagher of Dalhousie Law School becomes society solicitor. – First call to the bar held in Sydney since Cape Breton Island reannexed to Nova Scotia in 1820. – Client compensation limit fixed at $5,000 for one claim and $20,000 for all claims relating to one lawyer. 1967 Joint annual meeting of New Brunswick and Nova Scotia law societies takes place at St Andrews, NB. 1968 Fifty-year members first honoured at annual meeting. – Hon. H.P. MacKeen, on ceasing to be lieutenant governor, resumes the practice of law. 1969 Government-supported legal aid system comes into effect. – Council appoints provincial director of legal aid. – Attorney general’s committee on legal aid established. – Nova Scotia Law Reform Advisory Commission established. – Revised schedule of solicitor-client fees comes into effect. – Bar admission course established. – Council retains librarian of Dalhousie Law School to help plan the Barristers’ Library in the new law courts. – Society resumes publishing the Nova Scotia Reports. 1970 Barristers and Solicitors Act amended to provide for professional liability claims fund. – LLB and bar admission course become mandatory for articled clerks; professional examinations abolished. – Bill No. 66 amending the BSA in order to establish law foundation fails to pass. – Dalhousie legal aid service organized. – Continuing legal education committee established. – Allan Sullivan resigns from council on appointment to new provincial Liberal cabinet. 1971 Regulations consolidated. – Professional liability insurance becomes mandatory for all practising lawyers. – Legal Aid Planning Act passed. – Society ceases directly providing legal aid. – New Halifax Law Courts open; Barristers’ Library and society offices relocate there. – First Atlantic Provinces Law Conference (regional law societies joint annual meeting) held in Halifax. – Unauthorized practices committee established. – Society’s former solicitor, a queen’s counsel, disbarred. – Junior bar invited to send two representatives to each meeting of council.

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229

1972 Nova Scotia Legal Aid inaugurated. – New executive director of NSLA proposed as ex officio member of council. – Former provincial director of legal aid demoted to senior counsel and resigns. – Young lawyers’ conference approved as committee of society. – Conference of Governing Bodies of the Legal Profession in Canada superseded and replaced by the Federation of Law Societies of Canada, of which society’s immediate past president, A. William Cox, becomes vice-president. – Matter of letter written en français from lawyer in Saint-Bruno, qC, to a local solicitor and returned “together with a rude reply” brought before council, which issues written apology. 1973 Ian M. MacKeigan, a former president of the society, becomes first chief justice of Nova Scotia appointed directly from the practising bar. – Discipline committee divided into two subcommittees. – Legislative committee absorbs research/law reform committee. – Prepaid legal services committee established. – Federal-provincial agreement for the provision of legal aid in criminal matters comes into effect. – Council of society and council of Canadian Bar Association (Nova Scotia branch) hold first joint meeting. – Member of council, Vincent J. Morrison, appointed to Supreme Court. – Annual meeting adopts resolution that lawyers appearing before provincial magistrates not be required to gown. 1974 Executive committee established. – “Executive director” appointed. – Unauthorized practices committee re-established. – Canadian Bar Association code of professional conduct adopted. – New schedule of minimum fees comes into effect. – Nova Scotia Law News commences publication. 1975 Planning committee established. – Committee on paralegals established. – Professional librarian appointed. – Society’s sesquicentenary (1825–1975). – Fifth and last Atlantic Provinces Law Conference held in Halifax. – Guidelines for county barristers’ libraries approved. – First vice-president, George Isaac (Ike) Smith, appointed to Senate. 1976 Law Foundation of Nova Scotia established. – Council approves instituting a system of random audits of lawyer trust accounts. – Policy statement on the employment of “Legal assistants” (paralegals) issued. – Representative of Dalhousie Law Students Society approved to attend meetings of council as observer.

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1977

1978

1979

1980

APPENDix A

– Bar admission course begins to charge registration fee. – Professional examinations reintroduced. – Annual meeting rejects compulsory membership in Canadian Bar Association. – Annual meeting approves appointment of up to five lay persons to council. First vice-president, G.R. Matheson, resigns on being appointed president of Cape Breton Development Corporation (Devco). – Member of council and chair, legal aid committee, Doane Hallett, appointed to Supreme Court. – Continuing Legal Education Society of Nova Scotia (CLESNS) established. – Nova Scotia Legal Aid Commission established; society relinquishes responsibility for legal aid. – Administration of justice committee established. – law school liaison committee established. – Honorary membership for non-practising lawyers of fifty years’ standing introduced. – Former president, R.A. Kanigsberg, publishes memoir. – Membership of committees (except discipline) thrown open to all society members. – BSA amended to authorize appointment of lay persons as members of council. – Society informed that it must, for the first time in 120 years, pay rent for office space in law courts. – Committee on precedents established. – Practice assistance committee established. Legal ethics committee re-established. – Legal aid committee reconstituted. – Librarian appointed to library committee. – Legislative monitoring program begins. – Society publishes The Supreme Court of Nova Scotia and Its Judges, 1754–1978. – Second vice-president resigns. Regulations consolidated. – Executive director appointed secretary-treasurer; former post eliminated. – Complaints officer appointed. – Society Record commences publication. – Committee on advertising established. – Insurance claims review committee established. – Professional standards committee established. – Computers and the law committee established. – Discipline procedures committee established. – First woman member of council appointed honorary president of the society. – Non-resident practising barrister membership category eliminated. Post of deputy secretary-treasurer created. – Professional liability claims fund established. – Professional liability insurance

APPENDix A

1981

1982

1983

1984 1985

231

committee takes over function of claims review committee. – Law Foundation begins providing start-up funding and annual operating grants for county barristers’ libraries. – Council reverses decision by qualifications committee to reinstate disbarred lawyer. – Society’s future first woman president elected to council. Nova Scotia’s legislative counsel becomes president, the first permanent civil servant to hold the post. – Lawyer referral service commences. – Suggested scale of minimum fees (1974) formally withdrawn from use. – Family Court judge sues the society. – Assistant secretary-treasurer appointed. – Prepaid legal services research project carried out and prepaid legal services plans report submitted. – Full-time professional librarian appointed. – Society begins providing start-up funding for county barristers’ libraries. First vice-president, Hilroy Nathanson, appointed to Supreme Court. – Articled clerkship extended from nine to twelve consecutive months; interpolated clerkship abolished. – Statutory costs and fees committee formed to develop a new system of party and party costs in Nova Scotia. – Public legal education committee of CLESNS separates and becomes the Public Legal Education Society of Nova Scotia. – Professional education development committee established. – Lawyers with practising certificates not actually engaged in active practice for five years obliged to requalify. – Nova Scotia Law Reform Advisory Commission ceases to operate. – Henry Borden gifts to society ebony walking stick presented to his uncle, Robert Laird Borden, in 1891 when a member of council. BSA amended to authorize members of the society who are not members of council to be appointed to discipline committee. – Former president, A. Lloyd Caldwell, is first recipient of Dalhousie Law School’s centenary Weldon Award for unselfish public service. – Society submits brief to Nova Scotia Royal Commission on Post-Secondary Education. Past presidents’ committee established. Regulations consolidated. – First lay persons appointed to council. – Society offices relocate to Keith Hall. – Society formally adopts the scales of justice as new logo. – Regular meetings

232

1986

1987

1988

1989

APPENDix A

between executive committee and chief judges commence. – Assistant secretary-treasurer made responsible for discipline administration. – Legal education committee established. – Public relations committee produces major report on “lawyer/ media contact.” – Council meets in Yarmouth for the first time; president deplores poor attendance. Readmission of disbarred lawyers policy adopted. – Fee guidelines committee appointed. – Barristers’ Society of New Brunswick reverts to its original name (Law Society of New Brunswick), leaving the Nova Scotia Barristers’ Society the only law society in common-law Canada with the word “barristers” in its name. – Royal Commission on the Donald Marshall, Jr. Prosecution established. – Halifax-Dartmouth Metro Community Law Clinic established. – Executive committee appoints president a committee of one to inquire into the cessation of government funding of Dalhousie Legal Aid Service. Society solicitor, John M. Davison, appointed to Supreme Court. – Council adopts revised Canadian Bar Association Code of Professional Conduct. – Prepaid legal services committee established. – Trust accounts committee established. New trust account regulations enacted. – Council approves new system to determine party and party costs as proposed by statutory costs and fees committee. – Discipline procedures committee renamed discipline policies and procedures committee. – Policy and procedures relating to credentials inquiries approved. – Society becomes charter member of Canadian Lawyers Insurance Association. – Development of new bar admission course (“skills training program”) approved. – Assistant secretary-treasurer resigns and post abolished; deputy secretary-treasurer assumes responsibility for discipline administration. – Ad hoc committee on competence established. – First administration of justice “summit conference” held; participants include the executive committee, the chief judges, the attorney general and deputy attorney general, and the president of the CBA, Nova Scotia branch. – Fee guidelines committee reports. Council decides against proceeding with fee tariff initiative. – Doane Raymond (chartered accountants) conducts “administrative review” of society. – Secretary-treasurer resigns; executive director post re-created to replace secretary-treasurer and deputy

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233

secretary-treasurer; former deputy secretary-treasurer becomes director of discipline. – New trust account regulations come into effect. – Council declines to appoint advisory committee on professional competence recommended by ad hoc committee. – Protocol for addressing complaints involving lawyers and judges established. – Paralegals committee established. – Two more lay members added to council. – Dalhousie Law School introduces mandatory third-year course on the legal profession and professional responsibility. 1990 Society’s new president, Walter R.E. Goodfellow, resigns after a week in office, having been appointed to the Supreme Court. – Member-at-large of council, Jamie W.S. Saunders, appointed to Supreme Court. – Report of the Royal Commission on the Donald Marshall, Jr. Prosecution released. – Race relations committee established. – Continuing Legal Education Society assumes responsibility for bar admission course. – Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia published. – Woman of colour and First Nations person appointed lay members of council. – First annual plan setting out priorities and goals for council developed and approved. – Thirteenth and final county barristers’ library established. – Society’s representative on the board of the Federation of Law Societies of Canada made ex officio member of council. – Nova Scotia Barristers’ Liability Claims Fund incorporated. – Advertising and public relations committee divided into advertising committee and communications committee. Library committee and Nova Scotia Law News committee combined. – Chairs of finance and qualifications committees added to executive committee for one-year trial period. – Discipline policies and procedures manual issued. 1991 Society president, F.B. (Ted) Wickwire, dies in office. – Woman becomes second vice-president. – First year in which the first vice-president does not chair finance committee and the vice-presidents, respectively, do not chair the discipline subcommittees. – Society issues report of review of conduct of lawyers criticized in Marshall Inquiry report. – New regulations governing articled clerkship and bar admission come into effect. – New bar admission course (“skills training program”) instituted. – Regulation 17 amended to authorize

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qualifications committee to hold credentials inquiries. – Legal ethics committee begins publishing “Legal Ethics Opinions.” – Legal aid committee revived. – Lawyers’ assistance program (“a completely confidential referral and counselling service”) introduced. – Gender equality committee established. – Two members of council added to executive committee as “directors at large.” – First visible-minority member of council appointed. – Conjoint marking of LLB final examinations at Dalhousie Law School abolished. – New independent Law Reform Commission established. – Reimbursement fund committee re-established as separate committee from finance. – Special committee on conflicts of interest established. 1992 Woman becomes first vice-president. – Reimbursement fund client compensation ceiling raised from $50,000 to $300,000 per lawyer defalcation. – Lawyer referral service taken over by Public Legal Education Society of Nova Scotia. – Member’s Manual commences publication. – Discipline Digest and Legal Ethics Reporter commence publication. – Qualifications committee issues “Articling Checklist: A Guide for Articled Clerks.” – Mentor program approved. – Ban on open discipline hearings reaffirmed. – Exchange of information within society policy approved. 1993 Jill Hamilton becomes first woman president of the society. – First Mi’kmaq person called to the bar. – Society responds to report of Dalhousie University Senate review of law faculty. – Ad hoc committee to review society programs issues final report (“Green Report”). – Revised policy on readmission of disbarred lawyers adopted. – “Gender Equality in the Legal Profession: A Survey of Members of the Nova Scotia Legal Profession” issued. – Biannual meeting held for the last time. – Annual meeting customarily scheduled for resort cancelled and moved to Halifax. – Internal audit program for lawyer trust accounts introduced. – Law Foundation ceases to fund county barristers’ libraries. – Society [member] services committee revived. – Policy on conflicts of interest adopted. – Council meets for the first time at Dalhousie Law School. – Executive committee holds meeting in van on highway. 1994 Regulation 47G prohibiting inter-jurisdictional law firms repealed. – Society resumes responsibility for bar admission

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235

course. – Qualifications and bar admission course committees merge. – “Retired” and “life member” membership categories created. – Society offices relocate to Centennial Building in downtown Halifax. – Professional standards committee reconstituted. – Council decides to fund county barristers’ libraries; library fund eliminated and assets transferred to general operations fund; centralized province-wide library system development project begins. – Gender equality implementation committee established. – Sexual harassment policy approved. – Reimbursement fund client compensation limit ($300,000) exceeded. – Loss prevention manual published. 1995 Society’s immediate past, and first woman, president appointed to Supreme Court. – Maternity and parental leave policy approved. – Reporting matters to the police policy approved. – Joint dispute mediation committee established by society and the Nova Scotia Medical Society [Doctors Nova Scotia]. 1996 Barristers and Solicitors Act amended to permit law firms to incorporate. – Society website goes live. – Equity officer appointed. – Trust accounts manual published. – New bar admission examination introduced. – Screening and appeals committee established. – Information sharing policy approved. – New Chapter 24 of Legal Ethics and Professional Conduct, the rule on discrimination, enacted. – Results of three-year survey of gender discrimination in Nova Scotia law firm hiring practices released. – Legal aid review project reports. – Legal aid committee disbanded. – Council adopts modified Policy Governance® Model of Board Leadership (“Carver Model”). – Housing and municipal affairs liaison committee established. – Members allowed to remit annual fees through quarterly preauthorized direct debit payments. 1997 Members permitted to nominate candidates for second vice-president. – Task force on council election process established. – Conflicts of interest policy approved. – $150,000 approved as professional responsibility reserve fund. – InForum (council’s biweekly electronic newsletter) commences publication. – Communications officer appointed. – Member equity education program established. – Equity officer post made permanent. –Society Objects Clause enacted as Regulation 1A. – First triennial membership survey conducted. – Membership

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and accounting systems review conducted. – Nova Scotia Association of Women and the Law inaugurates biennial Frances Fish women lawyers’ achievement award in honour of Nova Scotia’s first woman lawyer. – Nominating committee becomes permanent standing committee. – Council members’ handbook issued. 1998 First direct election for second vice-president; nominating committee’s candidate defeated. – Guidelines for alternative workplace arrangements approved. – Cost of law stamp increases to $25 in order to help fund centralized library system. – Practice assistance manual published. – Estates and trusts task force established. – Real property task force established. – Past presidents’ committee revived. – Society commences action for defamation against The Halifax Herald Limited. – Proposed amendments to Workers’ Compensation Act that would have made lawyers and law firms with two or more employees assessable under the act opposed by the society and abandoned. – Appeal by articled clerk and sitting MLA against ruling of qualifications and bar admission course committee denied by council. 1999 “The Principles for Creating a Council to Govern the Nova Scotia Barristers’ Society” statement approved by council. – Recent former member of council, Michael Baker, MLA, appointed attorney general. – Distinguished service award instituted. – Unauthorized practices committee revived after two-year hiatus. – Society Record goes online. – Competency task force established. – Investment policy approved. – Credentials inquiry policy approved. – Gender equality implementation committee commissions survey of lawyers’ professional and personal choices around the practice of law. – Employment equity guidelines committee established. – Decisions by qualifications and bar admission course committee cease to be appealable to council. – Image of lawyers task force established. – Council endorses reform of real property registration system: “Registry 2000 Initiative.” – Longest-running (four years) and most expensive discipline proceeding in society history culminates in disbarment of lawyer concerned. – “Formative Evaluation of the Nova Scotia Bar Admission Course” report tendered. – Centralized province-wide library system development project completed.

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237

2 0 0 0S 2000 First president directly elected by membership takes office. – Council reduced from 48 to 31 members. – Equity officer position made full-time and permanent. – Discipline/professional responsibility review task force reports. – Limited liability partnership task force reports. – Society operations review task force established. – Task force on professional civility established. – Admissions dinner (“new bar tradition”) introduced. – New society website launched. – Society joins CanLii (Canadian Legal Information Institute). – Second triennial society membership survey conducted. – Atlantic provinces law societies regional committee holds first meeting. – Reputation management plan approved. – Committee appointments process policy approved. – Revised mandate for legal ethics committee approved. – Competency task force reports. – Employment equity guidelines committee tenders report: Fostering Employment Equity and Diversity in the Nova Scotia Legal Profession. – BSA amended to permit society to obtain injunctions against those involved in the unauthorized practice of law. – Model contingency fee agreement approved. – Society adopts detailed communications plan: “Balancing Tradition and Technology: Improved Member Services through Integrated Communications.” 2001 Director of discipline replaced by director of professional responsibility. – Discipline committee restructured. – New discipline regulations enacted. – New complaints resolution model adopted. – Discipline review task force established. – New publication, Professional Responsibility Today, replaces Legal Ethics Reporter and Discipline Digest. – First democratically elected council takes office. – Election procedures task force established. – Second vice-president, John Murphy, appointed to Supreme Court. – Continuing professional development business plan approved. – Society and Canadian Bar Association execute memorandum of agreement regarding provision of continuing professional development for Nova Scotia’s lawyers. – Governance task force established and reports. – Policy on readmission following disbarment approved. – Library services committee re-established. – Joint meeting of executive

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committees of Atlantic Canada law societies held. – Biannual meetings between executive committee and managing partners of large Halifax law firms initiated. – Society operations review task force final report approved. – Real estate task force final report tendered. – Gender equality implementation committee tenders survey report, Professional/Personal Choices and the Practice of Law. – Contingency fee agreement practice advisory approved. – New trust account regulations require lawyers to report estate and related moneys as if trust funds. – Revised mandate for unauthorized practices committee approved. 2002 “Discussion Paper Regarding a Proposed Legal Profession Act in Nova Scotia” released. – Cyril Richard Coughlan, a former president and former honorary president of the society, celebrates his centenary and seventy-six years at the bar. – Ban on open discipline hearings removed; first discipline hearing open to the public held. – Society vision statement approved. – Access to justice committee established. – Library services three-year strategic plan approved. – Annual library operating grant from Law Foundation eliminated. – Ethics and professional responsibility committee supersedes and replaces legal ethics and discipline policies and procedures committees. – Amended mandate for Service Nova Scotia and Municipal Relations liaison committee approved. – Society assumes control of Continuing Legal Education Society, which ceases operations. – Advisory committee on continuing professional development established. – Joint meeting of governing bodies of three Maritime provinces law societies held in Moncton, NB. – Eastern mobility protocol approved in principle. – Task force on multidisciplinary partnerships established. – Task force on professional civility reports. – Election procedures task force reports. – Society logo changed from scales of justice with Latin motto to lawyer’s gown with tabs. – Society obtains injunction against subjecting lawyers to the federal Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations. 2003 First vice-president, Kevin Coady, appointed to Supreme Court. – Regulations consolidated. – National mobility accord adopted by all law societies except New Brunswick and Prince Edward Island; Nova Scotia the first participating law society

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239

to permit calls to the bar further to the agreement. – Society Record becomes bimonthly magazine and absorbs Nova Scotia Law News. – Presidential honorarium introduced. – Probate committee established. – Professional standards (family law) committee established. – Discipline/professional responsibility review task force reports. – Structured settlements task force reports. – Civility task force reports. – Guidelines for suspended or disbarred members and those permitted to resign approved by executive committee. – Society enters into Land Registration Act agreement with province. – Land Registration Act education program becomes society’s first mandatory CPD offering. – Third triennial society membership survey conducted. 2004 Legal Profession Act passed; Barristers and Solicitors Act repealed. – Discipline decisions policy approved for release. – Member assistance program (“MAP”) initiative launched. – Lay members of council renamed “public representatives.” – Library services committee undertakes comprehensive review of library and information services department. – Risk and practice management program introduced. – Privacy policy approved. – Major revamping of articled clerkship program authorized. – Real estate practices task force established. 2005 Legal Profession Act and regulations come into force. – Articled clerks become members of society. – Reimbursement fund renamed lawyers’ fund for client compensation. – Nova Scotia barristers’ liability claims fund renamed Lawyers’ Insurance Association of Nova Scotia (LiANS). – New definition of professional competence adopted. – LiANS assumes responsibility for lawyers assistance program. – New articled clerkship and bar admission course regime implemented. – Qualifications and bar admission course committee renamed credentials committee. – Largest defalcation in society’s history uncovered; cap on reimbursements removed in order to cover approved client claims. – New trust account regulations come into effect. – Task force on composition and effectiveness of council established. – Task force on multidisciplinary partnerships reports. – Task force on complaints investigation established. – Task force on future of annual meeting established. – Task force on mandatory continuing legal education established. – Task force on medical fitness

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established. – Gender equality committee’s maternity/parental leave proposal rejected by council. – Ethics and professional responsibility committee’s recommendation to approve regulations governing money-lending between lawyers and clients also rejected. – Gender equality committee renamed gender equity committee. – Certificates and awards policy approved.

AP PEN Di x B

Officers and Senior Officials

Ch Ai r

P rE S iD E Nt

1825, 1826 James W. Johnston 1827 William Blowers Bliss 1828 Charles Rufus Fairbanks 1829 William Hill 1830 William Quincy Sawers 1831, 1832 Samuel George William Archibald (attorney general) 1833–36 [Samuel G.W. Archibald?] 1837 James Finlayson Gray 1838, 1839 [James Finlayson Gray?] 1840 Charles Twining 1841 John Whidden 1842 Hugh Hartshorne 1843 James Stewart 1844 James Scott Tremain 1845 Charles Twining 1846 James Scott Tremain 1847, 1848 Charles Twining 1849, 1850 Hugh Hartshorne 1851–60 (Feb) John William Ritchie

1860 (Feb–Aug) William Young 1860 (Aug)–1866 John W. Ritchie 1867, 1868 Charles Twining 1869, 1870 (Sept) John W. Ritchie 1871–74 Hiram Blanchard† 1875 (Feb–Oct) William Alexander Henry 1875 (Oct)–1878 (Oct) James McDonald 1878 (Oct)–1879 Joseph Norman Ritchie 1880–82 (July) John S.D. Thompson 1883 Joseph Norman Ritchie 1884 Hugh McDonald Henry 1885 (March–Sept) Joseph Norman Ritchie 1885 (Sept)–1886 (Feb) Charles Sidney Harrington 1886 Wallace Graham 1887–93 (Feb) Hugh McD. Henry

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1893, 1894 Charles Sidney Harrington 1895 Benjamin Russell 1896–1903 Robert Laird Borden 1904 Arthur Drysdale 1905, 1906 William Bruce Almon Ritchie 1907 Robert E. Harris 1908 Benjamin Franklyn Pearson 1909 Robert E. Harris 1910, 1911 James Johnston Ritchie 1912, 1913 Humphrey Mellish 1914–15 John Thomas Ross 1915–17 Hector McInnes 1917–19 William Alexander Henry 1919–21 Walter Harold Covert 1921–23 Walter J.A. O’Hearn 1923–25 Stuart Jenks 1925–27 Thomas Reginald Robertson 1927–29 Robert Harper Murray 1929–31 Frederick Francis Mathers 1931–33 Thomas William Murphy 1933–35 William Chisholm Macdonald 1935–37 Francis David (Frank) Smith 1937–39 John Archibald Walker 1939–40 Charles Breckon Smith 1940–42 John Wilfred Godfrey 1942–44 Henry Poole MacKeen 1944–45 James Albert Hanway 1945–46 Gordon McLaren Daley 1946–47 Ronald Manning Fielding 1947–48 Walter DeWolfe Barss 1948 (Apr–Oct) Eugene Troop Parker

1948–50 William Campbell Dunlop 1950–51 Frederick William Bissett 1951–52 Leonard William Fraser 1952–53 Carl Palm Bethune 1953–54 Thomas Herbert Coffin 1954–55 William Nathan Wickwire 1955–56 Peter Lorimer Judge 1956–57 Arthur Gordon Cooper 1957–58 Gordon Stewart Cowan 1958–59 Cyril Richard Coughlan 1959–60 Ian Malcolm MacKeigan 1960–61 Simon John Khattar 1961–62 William Harry Jost 1962–63 George B. Robertson 1963–64 Robert F. McLellan 1964–65 Robert Abe Kanigsberg 1965–66 Lawrence Frederick Daley 1966–67 John H. Dickey 1967–68 David J.C. Waterbury 1968–69 Leonard Kitz 1969–70 Charles W. Burchell 1970–71 Roderick Roland McIntyre 1971–72 Arthur William Cox 1972–73 Lloyd Caldwell 1973–74 Raeburn Fraser McCunn 1974–75 Robert H.N. Blois 1975–76 J. William E. Mingo 1976–77 George Isaac Smith 1977–78 Kenneth LeRoy Taylor 1978–79 Ronald J. Downie 1979–80 Bruce M. Nickerson 1980–81 Alfred George MacDonald 1981–82 Graham D. Walker

APPENDix B

1982–83 David R. Chipman 1983–84 Kenneth M. Mathews 1984–85 Edward J. (Ted) Flinn 1985–86 Robert S. Huestis 1986–87 Lawrence K. Evans 1987–88 Harry E. Wrathall 1988–89 John D. Moore 1989–90 Bruce T. MacIntosh 1990 (29 June–5 July) Walter R.E. Goodfellow 1990–91 Frederick B. (Ted) Wickwire† 1991–92 Ronald N. Pugsley 1992–93 George S. Khattar 1993–94 Jill Hamilton 1994–95 Robert G. MacKeigan 1995–96 C. Richard Coughlan 1996–97 John P. Merrick 1997–98 Thomas J. Burchell 1998–99 Wayne Beaton 1999–2000 Estelle Theriault 2000–01 Craig Garson 2001–02 Mark McCrea 2002–03 Raymond Larkin 2003–04 Gail Rudderham Chernin 2004–05 John S. McFarlane 2005–06 Ronald J. MacDonald

h O N O r A ry PrESi DENt 1958–59 Charles Jost Burchell 1959–60 Charles Jost Burchell 1960–61 Henry Poole MacKeen 1961–62 Henry Poole MacKeen 1962–63 James Edward Rutledge 1963–64 James Edward Rutledge 1964–65 John Archibald Walker

243

1965–66 Winfred David Withrow 1966–67 Horace Emerson Read 1967–68 Harold Munro Chase 1968–69 Gordon McLaren Daley 1969–70 Hon. Eugene Troop Parker 1970–71 Hon. Vincent-Joseph Pottier 1971–72 Donald McInnes 1972–73 Judge Kenneth L. Crowell 1973–74 William Campbell Dunlop 1974–75 James Gordon Hackett 1975–76 Judge R.E. Inglis 1976–77 Winfred David Withrow 1977–78 Charles Moses (Moe) Rosenblum 1978–79 Hon. F.W. Bissett† 1979–80 Marjorie Grace Wambolt 1980–81 [No appointment] 1981–82 [No appointment] 1982–83 Hon. Thomas H. Coffin 1983–84 Hon. Thomas H. Coffin 1984–85 Bruce M. Nickerson 1985–86 Donald McInnes 1986–87 Cyril Richard Coughlan (Sr) 1987–88 C.M. Rosenblum† 1988–89 Irving Charles Pink 1989–90 John H. Dickey 1990–91 Ralph Lorne MacDougall 1991–92 Robert H.N. Blois 1992–93 James Kendall Kenney 1993–94 Charles W. MacIntosh 1994–95 Simon J. Khattar 1995–96 A. William Cox

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1996–97 Arthur J. Meagher 1997–98 J. William E. Mingo 1998–99 Robert S. Huestis 1999–2000 Harry E. Wrathall 2000–01 Edwin C. Harris 2001–02 Hon. William Johnston Grant 2002–03 Hon. Lorne O. Clarke 2003–04 Lawrence J. Hayes 2004–05 John W. Alward 2005–06 Thomas J. Burchell

vi C E -PrESi DENt[S] 1860 John W. Ritchie 1861 Hugh Hartshorne 1862–69 Charles Twining 1870 Hiram Blanchard 1871–73 James W. Johnston Jr 1874 Alexander James 1875 James McDonald 1876–78 Joseph Norman Ritchie 1879 John S.D. Thompson (Attorney General) 1880, 1881 Samuel Gordon Rigby 1882, 1883 Hugh McDonald Henry 1884 Charles S. Harrington 1885 Wallace Graham 1886 Robert Sedgewick 1887 Hugh McD. Henry 1888–91 Benjamin Russell 1892 Charles S. Harrington 1893 Benjamin Russell 1894–96 Robert Laird Borden 1897–1903 Arthur Drysdale 1904 William Bruce Almon Ritchie

1905, 1906 Robert E. Harris 1907, 1908 James Johnston Ritchie 1909 Humphrey Mellish 1910–12 James A. Macdonald 1913 John T. Ross 1914–16 John J. Power 1917, 1918 Stuart Jenks 1919, 1920 Walter J.A. O’Hearn 1921, 1922 Stuart Jenks 1923, 1924 Thomas Reginald Robertson 1925, 1926 (Oct) James Layton Ralston/Robert Harper Murray 1927, 1928 Frederick Francis Mathers 1929, 1930 Thomas William Murphy 1931, 1932 William Chisholm Macdonald 1933, 1934 Francis David (Frank) Smith 1935, 1936 John Archibald Walker 1937, 1938 Charles Breckon Smith 1939 John Wilfrid Godfrey 1940, 1941 Henry Poole MacKeen 1942, 1943 James Albert Hanway 1944–45 Gordon McLaren Daley 1945–46 Ronald Manning Fielding 1946–47 Walter deWolfe Barss (vice-president), VincentJoseph Pottier (second vice-president) 1947–48 Eugene Troop Parker, William Pitt Potter

APPENDix B

1948–49 William Campbell Dunlop/Frederick W. Bissett, George C. Nowlan 1949–50 F.W. Bissett, Peter Lorimer Judge 1950–51 Leonard W. Fraser, Hanson Dowell 1951–52 Carl P. Bethune, Malcolm S. Leonard 1952–53 Thomas H. Coffin, William Pitt Potter 1953–54 William Nathan Wickwire, Peter Lorimer Judge 1954–55 Peter L. Judge, A. Gordon Cooper 1955–56 A. Gordon Cooper, Gordon Stewart Cowan 1956–57 Gordon Cowan, Cyril Richard Coughlan 1957–58 C.R. Coughlan, Roland A. Ritchie 1958–59 Roland A. Ritchie, Simon J. Khattar 1959–60 Simon J. Khattar, William H. Jost 1960–61 W.H. Jost, George B. Robertson 1961–62 George B. Robertson, Robert Faulkner McLellan 1962–63 Robert F. McLellan, Robert Abe Kanigsberg 1963–64 R.A. Kanigsberg, Lawrence Frederick Daley 1964–65 L.F. Daley, John Dirk Orlando 1965–66 John H. Dickey, David J.C. Waterbury

245

1966–67 David J.C. Waterbury, Leonard Kitz 1967–68 Leonard Kitz, Gordon L.S. Hart 1968–69 Gordon L.S. Hart/ Charles W. Burchell, Alfred Osborne Gunn/Roderick Roland McIntyre 1969–70 Roderick Roland McIntyre, Arthur William Cox 1970–71 A. William Cox, Lloyd Caldwell 1971–72 Lloyd Caldwell, Raeburn Fraser McCunn 1972–73 Raeburn McCunn, Robert H.N. Blois 1973–74 Robert H.N. Blois, J. William E. Mingo 1974–75 J. William E. Mingo, George Isaac Smith 1975–76 George Isaac Smith, Gordon Robert Matheson 1976–77 Gordon Robert Matheson/Kenneth LeRoy Taylor, K.L. Taylor/Ronald Downie 1977–78 Ronald Downie, Keith Emerson Eaton 1978–79 Bruce Nickerson, Alexander George MacDonald 1979–80 Alexander George MacDonald, Graham Walker 1980–81 Graham Walker, David R. Chipman 1981–82 David R. Chipman, Hilroy Nathanson

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1982–83 Hilroy Nathanson/ Kenneth M. Matthews, Edward J. (Ted) Flinn 1983–84 Edward J. Flinn, Robert Stanley Huestis 1984–85 Robert S. Huestis, Lawrence K. (Larry) Evans 1985–86 Larry Evans, Harry Wrathall 1986–87 Harry Wrathall, John D. Moore 1987–88 John D. Moore, Bruce T. MacIntosh 1988–89 Bruce T. MacIntosh, Walter R.E. Goodfellow 1989–90 Walter R.E. Goodfellow, Frederick B. (Ted) Wickwire 1990–91 F.B. Wickwire/Ronald N. Pugsley, Albert Bremner 1991–92 Albert Bremner/George S. Khattar, Jill Hamilton 1992–93 Jill Hamilton, Robert G. MacKeigan 1993–94 Robert G. MacKeigan, C. Richard Coughlan 1994–95 C. Richard Coughlan, John P. Merrick 1995–96 John P. Merrick, Thomas J. Burchell 1996–97 Thomas J. Burchell, Wayne Beaton 1997–98 Wayne Beaton, Estelle Theriault 1998–99 Estelle Theriault, Craig Garson

1999–2000 Craig Garson, Mark McCrea 2000–01 Mark McCrea, John D. Murphy/Raymond F. Larkin 2001–02 Raymond F. Larkin, Gail Rudderham Chernin 2002–03 Gail Rudderham Chernin, Kevin Coady 2003–04 Kevin Coady/John S. MacFarlane, John S. MacFarlane/Ronald J. MacDonald 2004–05 Ronald J. MacDonald, Philip J. Star 2005–06 Philip J. Star, Catherine S. Walker

SE CrE tAry 1825–45 James Walton Nutting 1845–49 John McGregor 1849–60 William Howe 1860–61 Robert Grant Haliburton 1861–67 William Twining 1867–68 Samuel Head Gray 1868–72 John S.D. Thompson 1872–73 Charles Beverley Bullock 1873 Joseph Norman Ritchie 1874–1920 William Rufus Foster 1920–30 Jacob Lynds Barnhill 1930–39 Robert Ebenezer Inglis 1939–45 LeMert Stevens Whinyard

APPENDix B

t rEASU rEr 1825–36 Henry Hezekiah Cogswell 1836–42 James Walton Nutting 1842–[45?] John McGregor [1845?]–94 Samuel Leonard Shannon 1894–1900 Byron A. Weston [1900–05: Secretary-Treasurer] 1905–08 Hector McInnes 1908–09 Thomas F. Tobin 1909–11 John W.P. Ritchie 1911–12 Tecumseh Sherman Rogers 1912–15 John Lauchlin McKinnon 1915–17 James McGregor Davison 1917–18 Frederick L. Davidson 1918–19 James McGregor Davison 1919–23 James McGregor Stewart 1923–25 James Douglas Vair 1925–26 Robert David McCleave† 1926–28 William Marshall Rogers 1928–29 Richard A. McLeod† 1929–30 Robert E. Inglis 1930–45 Ronald M. Fielding

247

SE CrEtA ry - trE A SUrE r 1900–05 William Rufus Foster 1945–49 LeMert Stevens Whinyard 1949 Eileen MacLean [Acting] 1950–52 Eileen MacLean 1952–54 Bryant H.H. Balcom 1954–59 Thomas Keillor Bentley 1959–64 William Cummings Outhit 1964–75 Lexie McKay 1975–76 Lois Dyer [Acting] 1976–79 Mary Theresa Walsh 1979–90 Gail Salsbury

DE P Ut y SE CrE tArytrE A SUrE r 1980–90 Kerry Oliver

ExE CUtivE DirE CtO r 1974–77 Lois Dyer 1977–79 Gail Salsbury 1979–90 [No appointment] 1990– Darrel Ian Pink

AP PEN Di x C

The Barristers’ Library

iN 1946 thE Eighty-thrEE-yEAr-OLD ChiEF jUStiCE of Nova Scotia, Sir Joseph Chisholm, an enthusiastic legal antiquarian, published in the Canadian Bar Review a short article about one of his remote predecessors in which he made the following statement: “Sir Thomas [Andrew Lumisden Strange]1 is kindly remembered by the legal fraternity in Nova Scotia for he presented his library to the Halifax bar before his departure and it has formed the nucleus of the fine law library of the Nova Scotia Barristers’ Society.”2 The claim is false. Chief Justice Strange gifted his professional library to the province, not the bar, and it formed the nucleus not of the Nova Scotia Barristers’ Library but of Nova Scotia’s first public library.3 The Barristers’ Library was born not in 1797 (when Strange resigned), as is generally assumed, but in 1825 when the Barristers’ Society was founded. According to the society’s constitution, “There shall be established a library, which shall be the property of the society.” The secretary assumed the post of librarian, responsible for enforcing the stringent rules relating to use of the library.4 From the beginning the biggest problem was finding money to buy books. According to rule XIV, “There shall annually be devoted to the purchase of law books, as much money as can possibly be spared from the funds of the society.” That amount would have been small because the society had no sources of revenue other than member annual fees, which were about £2. In 1827 Secretary Nutting, on behalf of the society, petitioned the House of Assembly for money to buy books. The petition floated like a lead balloon. First, the House on a division declined to consider the petition, then on another division, in which the speaker had to cast the tie-breaking vote, ordered the petition dismissed.5

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The legislature was already paying for one, established public “law library”; they were not about to fund a private start-up. In 1879 the law stamp was introduced, the revenue from its sale to go toward supporting the library.6 In 1883 the society’s act of incorporation was amended to authorize the issue of debentures in order to finance the purchase of books for the library.7 In 1893 the Barristers and Attorneys Act was amended to provide that annual fees be appropriated “for the purpose of equipping and extending the barristers’ law library in the city of Halifax.”8 Perhaps these creative solutions worked; by 1895 the library reputedly held about 8,000 volumes.9 The duties of the librarian and library rules were set forth in the 1899 regulations (§§ 24–35) and appeared with variations in every iteration of the regulations through 2003. Under current regulations, further to the Legal Profession Act, the library was continued: Library 8.4 The library of the society shall be known as the Nova Scotia Barristers’ Library. Purpose of Library 8.4.1 The library shall support the work of the Society and the competent and professional practice of law by lawyers by (a) organizing and distributing legal information, and (b) maintaining collections of materials to achieve this goal. Library Policies 8.4.2 The executive director will ensure that policies governing the library are current.10 Though it is not known when committees of council began to be formed, the library committee was probably among the original three. When the committees regulation was first enacted in 1914 – possibly in 1904 – the library committee was mandated “to have, subject to resolution of the society or council … the general charge of the library and the purchasing of books for same.”11 The library committee survived until 1996, to be briefly revived in 2002 as the library services committee. Though no annual reports of the librarian or library committee earlier than 1931 survive, we know that in 1926 the Barristers’ Library became non-circulating.12 In 1920 Jacob Lynds Barnhill, a lawyer who had succeeded

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Sergeant-Major Swanson as librarian on his death in December 1910, was appointed secretary; in order to save money – the librarian was being paid an annual salary of $1,200 – the offices of secretary and librarian were united and remained so for more than fifty years. In 1928 council paid for Barnhill to travel to the United States “to get information in respect to a card index and information in respect to the purchase of books etc. for the library.”13 In 1951 the overworked secretary-treasurer relinquished operational responsibility for the library, and the library committee collectively became de facto librarian. In subsequent years the library gravitated back into the orbit of the secretary-treasurer. A professional librarian was appointed in 1965 as assistant to the secretary-treasurer, and a professional was appointed librarian in 1975. Until then there were no library services beyond rudimentary collections management: acquisition, conservation, and listing and indexing of books. Catalogues were published in 1835, 1907, and 1935. Professionalization of the Barristers’ Library may be considered to have begun in the summer of 1969 when council retained the librarian of Dalhousie Law School, Alan H. MacDonald, to assist with planning the Nova Scotia Barristers’ Library in the new law courts. In September 1969 the library committee recommended, and council approved, the following mission statement: “the establishment of a current, non-circulating library of practical usefulness to the practitioner, which will be well-supervised, catalogued, kept up to date and intact. This excludes any development towards the establishment of a research facility. The Dalhousie Law library performs this function and is also readily available to the members of the bar. The purpose of the barristers’ library is to serve the practitioner in a practical way.”14 In December 1970 MacDonald tendered his final report “on the organization, operation and quality of the Nova Scotia Barristers’ Library.” The first step in the process having been to define an acquisition policy, MacDonald’s Evaluation of the Library became the basis for future developments. It was in truth the library’s charter.15 The Barristers’ Library officially opened in its new home on 29 April 1975. Transfer of the library to the new law courts (where it remains) predictably raised the issue of economies of scale. While the society needed administrative offices, did it any longer need a central library serving only Halifax members? Could the expenditure be justified? The biannual meeting in February 1972 saw a prominent out-of-town lawyer (and future president of the society) suggest that “the court house library should not

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be maintained and the amount of money used for its operation be given to Dalhousie Law School and that all practitioners use that library.”16 The proposal attracted no support but seems to have led to the society’s taking stock of the situation facing lawyers outside Halifax in regard to the provision of library services. The issue, of course, was whether the continued existence of the library could be justified if it did not serve equally members living and practising outside metropolitan Halifax. In May 1973 Alan MacDonald was again retained to conduct a survey of existing law library facilities in the counties beyond Halifax where there were but two barristers’ libraries: Kings (Kentville) and Cape Breton (Sydney). His preliminary report was tendered in November 197317 and his final report in December 1974.18 Among its twenty-eight recommendations was that the society appoint a full-time professional librarian. But it was the first recommendation that was the farthest-reaching: “The Nova Scotia Barristers’ Society reaffirms that all members have a right to these services either in their own community or as provided from Halifax.” That was imagining a future more than twenty years hence. Immediate action, however, was forthcoming in other respects. In May 1975 the library committee recommended, and council approved in principle, establishing county barristers’ libraries under the auspices of the local bar associations.19 The library committee was authorized to make grants in kind in the form of books lent to county barristers’ libraries that met certain basic standardsrelated criteria.20 Alan MacDonald’s five-year association with the Nova Scotia Barristers’ Society ended in January 1975 when he stood down as consulting librarian (“library adviser”). His greatest contribution was to have persuaded council to employ a professional as librarian of the society. In April 1975 Mary Jo Poburko, librarian at Stewart, MacKeen & Covert, was hired as the society’s first professional librarian. Prior to obtaining her MLS at Dalhousie in 1974, Poburko worked in various libraries, including Fordham University, Harvard University’s Houghton Library, Saint Mary’s University Library, and the Nova Scotia Department of Development.21 She served until November 1980. In January 1981 the post of librarian became permanent and full-time. Until 1990 the librarian was accountable to the library committee. As a result of the 1989 administrative review, the library became a department of the society and the librarian the director of library services (afterwards, library and information services), reporting to the executive director.

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By 1983 the library was facing a financial crisis. The reserve fund had been depleted, and revenue from the sale of the three-dollar law stamp was falling far short of covering costs. Expenditure had been escalating for the previous three years at the rate of 30 per cent. The library committee felt “that the only way the library can survive is to curtail some of the services and the committee is looking at ways to do this with minimal decline in the overall quality of the library.”22 Economies of scale in the form of merging the judges’ library and the Barristers’ Library were considered but rejected. Council was left with no alternative but to increase funding on a major scale. Otherwise, the library would have had to be drastically downsized or even closed. The crisis passed, but the library continued to be the largest claim on the society’s financial resources, by 1993 “responsible for about 15% of the society’s comprehensive budget.”23 Ten years later it would be responsible for 24 per cent.24 In January 1985 council approved the first suite of library policies. Published in four consecutive instalments in the Society Record (January through April 1985), the statement of purpose read as follows: “To provide members and staff of the Nova Scotia Barristers’ Society with the best possible working lawyers’ library and information services within the scope of the society’s activities and resources.”25 In 1987 the library expanded its physical plant, taking over space on the seventh floor of the law courts vacated by the society’s offices on their relocation to Keith Hall. Beginning in 1988, when the library acquired its first computer, computer-assisted legal research and holdings management both enriched and helped to expand library services, while in the 1990s the Internet made user access to online databases and electronic service delivery a realistic possibility. Council’s decision in 1994 to create a centralized library system in which the county barristers’ libraries would be satellites of the central library in Halifax added a new dimension to the Nova Scotia Barristers’ Library. The system, comprising thirteen local or regional libraries, was complete by April 1999. In July 1998 the society entered into an agreement with the province to share law library resources, the quid pro quo being that county barristers’ libraries were given free accommodation in local justice centres. In 1999 the library policy was renewed. Much had changed since 1985 when there was no need for a public access or Internet policy. First and foremost, the Barristers’ Library was now a system of networked libraries with Halifax as the hub. The scope and depth of the library’s operations were much expanded. Its “objectives” were

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to provide current, practical, well-organized and indexed collections of library materials; to provide reference service to members throughout the province; to provide ongoing assistance and training to lawyers and articled clerks in the various research methods and materials; to provide access to Nova Scotia decisions to members. This is done through the publication (in print or electronic form) of digests, indexes and the distribution of full-text decisions; to provide a liaison with other legal and nonlegal information sources; to maintain a collection of materials to support the activities of the society.26 In 2000 council’s task force to review society operations identified the library as one of five areas on which it would focus. The task force report’s five pages of commentary began with the elephant-in-the-room issue that dominated every discussion of the library services before and after the 1990s: “With a budget of $586,740 for 2001–2002, the library constitutes the largest annual expenditure for the society.”27 Among the recommendations were that the library should adopt a renewable information technology plan, that the society should continue to pursue a merger of the Barristers’ Library and the judges’ library in order to create “a single integrated functioning library,” that a management review of county barristers’ library services should be undertaken, that a staff skills needs assessment should be conducted, that the society should reinstate the library committee, and that the committee should undertake a strategic planning exercise for the library.28 Most of the recommendations were implemented without delay, the strategic planning process getting underway in January 2002. A three-year library and information services strategic plan was approved by council in May 2002.29 The plan comprised three “strategic directions”: Delivery of information to lawyers’ desktops; integrate and cooperate with society departments, the courts and Atlantic [region] law society libraries in order to facilitate and standardize access to legal information; provide a comfortable and safe environment for lawyers and staff that includes an adequately-staffed library and information services department. In April 2003, however, in view of the fact that the strategic plan “did not really grapple with the rapidly escalating costs of library services,” further implementation of it was deferred pending a comprehensive

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review of library services to be undertaken by the reinstated library services committee.30 This initiative formed the first action item of council’s annual plan for 2003–04: “With the library strategic plan as a backdrop, undertake a comprehensive review of the Society’s library services, including county libraries, in light of the other library services and resources available to the legal community (including Dalhousie Law School, law firms and other libraries), and in particular determine what long-term direction should be pursued by the society in this area.”31 A strategic management consulting firm was engaged to conduct an external review, the report of which was tendered in December 2003;32 it offered no recommendations but instead described four alternative “strategic-option” models for service delivery. As part of the review exercise, a survey of practising insured lawyers was conducted in May 2004.33 The survey focused on both library usage and, more broadly, resources and tools for legal research. Of especial interest was use of the resources and services offered by the Barristers’ Library. The findings of the survey (“Future Directions in Legal Research”) assisted the library services committee in developing recommendations for council. In November 2004 the library services committee tendered its twentypage report, the most significant feature of which was the enunciation of six core principles: library and information services contributes to the competency of lawyers; access to authentic legal information is an important component of our justice system; the society minimizes duplication of its collection; service to the public is provided by the Nova Scotia regional public library system; the society fully integrates library services with other Nova Scotia Barristers’ Society services; user-pay for some services is acceptable above the “basic services” provided.34 Adopting the central library with desktop delivery service model spelled the end of the library system, which was an artefact of its time and a victim of the relentless march of information and communications technology. Only two county barristers’ libraries, Sydney and Kentville – the largest and best-established – would continue to be funded as “remote collections.” The broader issue of financial resource allocation was left unaddressed. “If adopted,” ran the report, “the new delivery model will provide substantial savings the first year. However, the cost of maintaining library and information services will continue to increase.”35

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To make matters worse, fiscal year 2002–03 saw the disappearance of the Law Foundation’s $50,000 operating grant to the Barristers’ Library. In June 2004 the president declared in her farewell “President’s View” that the status quo was untenable: Library services has been under the microscope this year. That it’s the largest budgetary item each year is only one reason. Legal research is changing dramatically … The cost of library services this year is approximately $850,000 and it’s growing at a rate of ten per cent annually … Council has recognized that the status quo cannot be maintained and library services must change … The society received over 500 responses to our “Future Directions in Legal Research” survey. We heard three things over and over: we still need books and print resources, we are ready for a primarily online research environment, and the Nova Scotia Barristers’ Society is blessed with dedicated, visionary, intelligent library staff. All your responses about research and your requirements for service and training are in the process of being analysed. They will be the biggest factor in the decisions to be made before a final model is determined, but there can be no doubt change must and will happen.36 The obvious question was, given the huge expenditure, whether the library was providing essential value for money. Eight years later, significant senior staff reductions occurred, but otherwise nothing much changed. In 2005 the library services committee disappeared – again – and library services ceased (for a few years) to appear in the society’s annual report. The Nova Scotia Barristers’ Library was both victim and beneficiary of its own history. It is sacrosanct, representing the most venerable of all society traditions and services to members, its reach extending back to the society’s very foundation in 1825. In purely practical terms, it came into being at a time when law libraries scarcely existed except among senior judges like Chief Justice Strange and elite lawyers, and a library was desperately needed by the profession at large and has endured through to a time when every lawyer or firm either has their own library or easy access to one. The library has survived and flourished against all odds and continues to serve the purpose for which it was created.

Bibliographical Note

ON 12 APriL 1945 thE COUNCiL OF thE Nova Scotia Barristers’ Society enacted amendments to Regulation 37 (term of service of articled clerks), which were recorded in the minute book at page 276. We would not know this if the matter had not been written up in detail in council’s annual report for 1945–46. The minute book concerned is missing, as are all of its predecessors prior to 1911 and 1945 through 1949. Few society records survive earlier than 1990 when the society’s administration was completely reorganized and computers began to take their toll of the paper record. What records have survived are all extremely valuable for historical purposes: minutes of meetings of the executive committee (est. 1974), council (from 1911) and general meetings of the society (from 1896), consolidated regulations, 1899 through 2003 (with one critical exception – 1904), annual reports (from 1931), and reports and publications. Some important records subsequent to 1990 are also missing. While the loss of all the minutes of society meetings previous to 1896 is regrettable, the loss of council minutes February 1860 through February 1911, April through November 1913, January 1945 through February 1949, and July through December 1951 is disastrous. All the records of the Continuing Legal Education Society of Nova Scotia (1977–2002), except a single volume comprising corporate records, are also missing. Though the prospect of writing an institutional history without access to many of the most important records of the institution was a daunting one, this book is nevertheless based on primary sources, both archival and printed, which are referenced in the notes. The society’s annual reports and its journal, the Society Record, which began publishing in

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1979, are invaluable, as is the “historical file” maintained by the Nova Scotia Barristers’ Library. An underused but extremely valuable resource is the Nova Scotia Barristers’ Society series in the fonds of Dalhousie Law School at Dalhousie University Archives and Special Collections.1 Halifax newspapers through to the early 1990s were consistently useful, as was the national legal press: Bench and Bar (Montreal) 1931–45, Canadian Lawyer (Toronto) 1977–, and Lawyers Weekly (Toronto) 1983– .

Notes

PrEFAC E 1 Mark M. Orkin, “Professional Autonomy and the Public Interest: A Study of the Law Society of Upper Canada” (unpubl. jSD thesis, York University, 1972), 349. 2 William H. Laurence, “A Literary Man & a Merchant: The Legal Career of Sir William Young” (unpubl. jSD thesis, Dalhousie University, 2009).

i NtrODU Cti O N 1 Commissioned by the prime minister in 1893, completed in 1899, and donated by his widow, Lady Thompson, the bust sits atop a pillar, which was plaqued by the society in 1942. It now stands in the foyer of the society’s offices in downtown Halifax. The bust’s existence – it is one of two originals, the other being in the National Gallery of Canada – was unknown to Thompson’s biographer: P.B. Waite, The Man from Halifax: Sir John Thompson, Prime Minister (Toronto, Buffalo, London, 1985), 383–4. 2 In 1885, the year Thompson stepped down from the bench to become attorney general and minister of justice for Canada, the Barristers and Attorneys Act (BAA) was amended to authorize the council of the society “to make rules and regulations for preserving and enforcing the honour and discipline of the Bar” (Statutes N.S., 1885, c. 20, s. 4). Between 1885 and 1899, this provision was more or less a dead letter. Yet it was carried over into the new act and remained until 2004 when the Barristers and Solicitors Act, 1899, was repealed and replaced by the Legal Profession Act.

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3 In the United States, however, state bars continue to be controlled by the state Supreme Court. 4 Pride of place belongs to Mark M. Orkin, “Professional Autonomy and the Public Interest: A Study of the Law Society of Upper Canada” (unpubl. jSD thesis, York University, 1971). The first, and for long the only scholarly study of a law society in Canada, it remains the gold standard. For broad context, see William H. Hurlburt, The Self-Regulation of the Legal Profession in Canada and in England and Wales (Edmonton, 2000). See also Bryan Williams, “Abuse of Power by Professional Self-Governing Bodies,” in The Abuse of Power and the Role of an Independent Judicial System in Its Regulation and Control (Special Lectures of the Law Society of Upper Canada, 1979), 345–66; G.D. Finlayson, “Self-Government of the Legal Profession – Can It Continue?” Advocates Society Journal (February 1985), 11–16; Harry W. Arthurs et al., “Canadian Lawyers: A Peculiar Professionalism,” in Richard Abel et al., eds., Lawyers in Society, vol.1, The Common Law World (Berkeley and Los Angeles, 1988), 123–85; Graeme Mew, “Lawyers: The Agony and the Ecstasy of SelfGovernment,” (1989) 9 Windsor Yearbook of Access to Justice 210; David A.A. Stagers et al., Lawyers in Canada (Ottawa, 1990), chapter 2 (“Governance of the Profession”), 29–53 passim; W. Wesley Pue, “Cultural Projects and Structural Transformation in the Canadian Legal Profession,” in W. Wesley Pue and David Sugarman, eds., Lawyers & Vampires: Cultural Histories of Legal Professions (Oxford, 2003), 367–99; Richard Devlin et al., “The End(s) of Self-Regulation?” Alta. Law Rev. 45, no.5 (2008): 169; Paul D. Paton, “Between a Rock and a Hard Place: The Future of Self-Regulation – Canada [Ontario] between the United States and the English/Australian Experience,” (2008) Journal of the Professional Lawyer 87, at 107–11 (“Regulation of the Legal Profession in Canada – A Primer”) and sources cited at 108n. 106; chapters 2 and 3 of Alice Woolley et al., eds., Lawyers’ Ethics and Professional Regulation (Toronto, 2008), 49–128; Richard Devlin et al., “Re-calibrating, Re-visioning and Re-thinking Self-Regulation in Canada,” International Journal of the Legal Profession 17, no.3 (2010): 233–81; Alice Woolley, “Why Do We Regulate Lawyers?” in David L. Blaikie et al., eds., Why Good Lawyers Matter (Toronto, 2012), 105–18; Laurel S. Terry et al., “Adopting Regulatory Objectives for the Legal Profession,” Fordham L. Rev. 80 (2012): 2685 at 2753; Deborah L. Rhode et al., “Comparative Perspectives on Lawyer Regulation: An Agenda for Reform in the United States and Canada,” Fordham L. Rev. 80 (2012): 2761 at 2773 (“The Canadian Disciplinary System”); Alice Woolley,

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“Rhetoric and Realities: What Independence of the Bar Requires of Lawyer Regulation,” (2012) U.B.C. L. Rev. 45: 145; and Laurel S. Terry, “Trends in Global and Canadian Lawyer Regulation,” Sask. L. Rev. 76 (2013): 145. An important older work remains P.J. Giffen, “Social Control and Professional Self-Government: A Study in the Legal Profession in Canada,” in S.D. Clark, ed., Urbanism and the Changing Canadian Society (Toronto, 1961), 117–34. Especially useful for comparative methodological purposes is David Sugarman’s historical essay on the Law Society of England and Wales: “Bourgeois Collectivism, Professional Power and the Boundaries of the State: The Private and Public Life of the Law Society, 1825–1914,” (1996) International Journal of the Legal Profession 3: 81. [C.D. Evans et al.], Just Works: Lawyers in Alberta, 1907–2007 (Toronto: Irwin Law 2007). “The society’s long-time secretary, W.B. (Bernie) Kelly, Q.C., was keenly interested in history. He saw repeating patterns in the attitudes of the profession, the public and government. Kelly died in 1988. Notes found on his desk outline a short history of the society, and they form the basis of this article” (p. 237). Alfred Watts, qC, History of the Legal Profession in British Columbia, 1869–1984 (Vancouver: Evergreen Press 1984). “Originally written as a History of the Law Society of British Columbia appearing 1973 – revised 1984” (p. iii). Cameron Harvey, ed., The Law Society of Manitoba, 1877–1977 (Winnipeg: Peguis Publishers, 1977). [D.G. Bell], The Law Society of New Brunswick: An Historical Sketch / Le Barreau du Nouveau-Brunswick (Fredericton: Law Society of New Brunswick 1999), published in celebration of the sesquicentenary of the society’s incorporation in 1846. Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797–1997 (Toronto, Buffalo, London: UtP, 1997). Iain A. Mentiplay, qC, A Century of Integrity: The Law Society of Saskatchewan, 1907–2007 (Regina: Law Society, 2007). The best account of the early years is D.G. Bell, “Maritime Legal Institutions under the Ancien Regime, 1710–1850,” Manitoba Law Journal 23, nos.1, 2 (1996): 103. For the literature generally, see Philip Girard et al., “Stratification, Economic Adversity, and Diversity in an Urban Bar: Halifax, Nova Scotia, 1900–1950,” in Constance Backhouse and W. Wesley Pue, eds., The Promise and Perils of Law: Lawyers in Canadian History (Toronto: Irwin Law, 2009), 75–102; ../../Files/canada_britsh_empire.pdf../../Files/canada_britsh_empire.

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16 17 18

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pdf../../Files/who%27s_afraid_of_canadian_legal_history.pdf; “The Maritime Provinces, 1850–1939: Lawyers and Legal Institutions” Manitoba Law Journal 23 (1996): 380–405; “The Making of a Colonial Lawyer: Beamish Murdoch of Halifax, 1822–1842,” in Carol Wilton, ed., Inside the Law: Canadian Law Firms in Historical Perspective (Toronto: University of Toronto Press for the Osgoode Society, 1996); “Themes and Variations in Canadian Legal Culture: Beamish Murdoch and his Epitome of the Laws of Nova Scotia”, Law & History Review 11 (1993): 101; “The Roots of a Professional Renaissance: Lawyers in Nova Scotia 1850–1910,” Manitoba Law Journal 20 (1991): 148 [also appeared in Dale Gibson and W.W. Pue, eds., Glimpses of Canadian Legal History (Winnipeg: Legal Research Institute, 1992), 155–88]; Lawyers and Legal Culture in British North America: Beamish Murdoch of Halifax (Toronto, 2011). See also William H. Laurence, “A Literary Man & a Merchant: The Legal Career of Sir William Young” (unpubl. jSD thesis, Dalhousie University, 2009); and Bernard F. Miller, “The Legal Profession in Late Victorian Nova Scotia,” in Nova Scotia Historical Review 11, no. 1 (June 1990): 57–90. For a useful pre-1995 bibliography, see W. Wesley Pue, “In Pursuit of Better Myth: Lawyers’ Histories and Histories of Lawyers,” Alta. L. Rev. 33, no. 4 (1995): at 739 and note 32. Pue considers that the Nova Scotia Barristers’ Society can boast “a long, impressive and relatively well-researched history.” He is, of course, referring to the bar, not the Barristers’ Society. “Introduction: Law, Professionalism and Ethics,” in Donald E. Buckingham et al., comp., Legal Ethics in Canada: Theory and Practice (Toronto, 1996), 3. The “directions … given by the Chief Justice for the conduct of practitioners” on that occasion have not survived; Thomas B. Akins, “History of Halifax City,” Collections of the Nova Scotia Historical Society 8 (1895), 45. See Jim Phillips, “The Court and the Legal Profession: Loyalist Lawyers and the Nova Scotia Supreme Court in the 1780s,” in Constance Backhouse and W. Wesley Pue, eds., The Promise and Perils of Law: Lawyers in Canadian History (Toronto: Irwin Law, 2009), 161–72. On this subject generally, see Barry Cahill, “The Origin and Evolution of the Attorney and Solicitor in the Legal Profession of Nova Scotia,” Dalhousie L.J. 14(2) [38]: 277. Chapter 3 of the Acts of 1811. Statutes of Ontario, 1797, c. 13. (The central Canadian province of Ontario was known as Upper Canada from 1791 until 1841.) Statutes N.S., 1874, c. 21.

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19 On this phenomenon in Ontario, see Orkin, “Professional Autonomy and the Public Interest,” 190–1. 20 Statutes N.S., 1870, c. 51. 21 Statutes N.S., 1873, c. 94. 22 Statutes N.S., 1882, c. 65. 23 An Act to Enable Daniel Malkin Fraser to Obtain Admission to the Bar of Nova Scotia, Statutes N.S., 1886, c. 142. 24 John Alder Davis (called December 1888); the bills, one of which was introduced by Attorney General Longley, both passed the House of Assembly but failed in the Legislative Council. 25 Charles Hazlett Cahan, afterwards a partner in what is now Stewart McKelvey. 26 Statutes N.S., 1880, c. 11, s. 9. 27 See Schedule to the Barristers and Solicitors Act, 1899 (chapter 27 of the Acts of 1899). 28 Statutes N.S., 1899, c. 27, subsection 21(1). 29 Statutes N.S., 1836, c. 89. 30 Sugarman, supra note 4, at 103. See also Professor Sugarman’s Brief History of the Law Society (London: The Law Society, 1995) commemorating the sesquicentenary of the grant of the society’s second, effective royal charter. 31 Statutes N.S., 1850, c. 13, “An Act to Authorise Her Majesty’s Subjects to Plead for Themselves or Others in All Her Majesty’s Courts within This Province.” See J. Murray Beck’s wonderful account in Joseph Howe, vol. 2, The Briton Becomes Canadian, 1848–1873 (Kingston & Montreal: MqUP, 1983), 28–9. Howe, who at the time was provincial secretary in the first Reform government, was no friend of lawyers: “Charged with pursuing his long-standing dislike of the legal profession …” The chief spokesman against the bill was the Tory leader, James William Johnston, qC, the most distinguished lawyer in the province, who had been the inaugural chair of the society’s committee of three benchers (executive committee) in 1825–26. 32 On this subject generally, see Colin D. Howell, “Reform and the Monopolistic Impulse: The Professionalization of Medicine in the Maritimes,” Acadiensis 11:1 (Autumn 1981): 3–22. 33 Statutes N.S., 1885, c. 20. Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797–1997 (Toronto: UtP, 1997), 152, describes this development as the granting of a “legislative charter.” The Nova Scotia Barristers’ Society did not acquire a legislative charter until the Barristers and Solicitors Act, 1899.

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34 Statutes N.S., 1899, c. 27, s. 41. 35 Report, 3, under heading “The Objects of the Society.” 36 [Frederick B. Wickwire, qC, et al., comp.], Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia (Halifax: Nova Scotia Barristers’ Society, 1990). 37 Among the eighty-two recommendations contained in the Commissioners’ Report was the following (Recommendation 27): “We recommend that a program of ongoing liaison between the bar – prosecutors, private defence and legal aid – and Native people, both on and off reserve, be established through the Nova Scotia Barristers’ Society. The Society must also educate its members concerning the special needs of Native clients” – Royal Commission on the Donald Marshall, Jr. Prosecution, vol.1, Findings and Recommendations (Halifax: Province of Nova Scotia, 1989), 177. The society had neither standing nor observer status at the inquiry. 38 LPA §4.1. 39 Minutes of Council, 22 February 1997; NSBL. Regulation 1A (22 February 1997). The Objects Clause was first proposed in the 1993 final report of the Ad Hoc Committee to Review Society Programs. A Purpose Clause was included in Part I of the new LPA (“The purpose of the Society is to uphold and protect the public interest in the practice of law …”), Statutes N.S., 2004, c. 28, s. 4. 40 Sugarman, “Bourgeois Collectivism,” 83. 41 Sugarman, “Bourgeois Collectivism,” 81 and 122n1, quoting C.W. Brooks, Pettyfoggers and Vipers of the Commonwealth: The “Lower Branch” of the Legal Profession in Early Modern England (Cambridge: CUP 1986), 287. 42 See Victoria Rees [Director of Professional Responsibility], “Transforming Regulation and Governance in the Public Interest / Prepared for Council of the Nova Scotia Barristers’ Society / October 15, 2013” (73).

Ch APtE r ON E 1 On the English background, see Mark M. Orkin, “Professional Autonomy and the Public Interest: A Study of the Law Society of Upper Canada” (unpubl. jSD thesis, York University, 1971), 17–22. 2 This is based on Yale University, Biographical Sketches [1796], 231; Middle Temple membership records; and Tucker’s 1811 memorial to Secretary of State the Earl of Liverpool: Great Britain. The National Archives [tNA] CO 217/88/ folio 189 (microfilm at Nova Scotia Archives [NSA]). 3 He killed time in the metropolis by writing a now-lost comparative doctrinal

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4 5 6 7

8

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treatise “just published” and advertised for sale in Halifax in April 1811: An Historical Essay on the Law of Imprisonment in Civil Cases, Or the Progress of Original and Final Process against Debtors Both in England and in This Province [Nova Scotia]. With a Particular Argument on the Legal Construction of the Provincial Writ of Execution – the earliest known piece of legal scholarship in Nova Scotia. This six-page holograph may be found at tNA CO 217/88/folios 189-92 (microfilm at NSA). See the correspondence with enclosures in tNA CO 217/88/folios 86-125, passim (microfilm at NSA). tNA CO 217/88/folio 246 (microfilm at NSA). Tucker afterwards gave up law for politics in which he became heavily embroiled. According to a political opponent, Governor Sir William Lumley, “‘The third lawyer is that most violent and abusive man John Harvey Tucker who is now [1821?] disowned by his own family …’ Yet at his best, Tucker was charming and fit company for any. Prof. Benjamin Silliman was among his friends. There is a story in the Tucker family that at the death of James Tucker, his son J. H. Tucker, who was insufficiently mentioned in the will for substance, but at too great length for freakishness, had his little girls dressed in red for the funeral, and some of these dresses remained in the family for generations”: Henry C. Wilkinson, Bermuda from Sail to Steam: The History of the Island from 1784 to 1901, vol. 2 (London: Oxford University Press, 1973), 425n1. NSA RG 5 vol. 4 series U (Unpassed bills). Unless otherwise indicated, this and what follows are based on the published Journals of the House of Assembly and the unpublished journals of the Council (legislative) in Nova Scotia RG 1 vol. 218. The other members of the committee were Samuel George William Archibald and William Hersey Otis Haliburton, who in 1817 became Nova Scotia’s first king’s counsel. The statute, 13 & 14 Geo III, c. 23, “underwent only minor modifications during its ninety-year existence”: W.N. Osborough, “The Regulation of the Admission of Attorneys and Solicitors in Ireland, 1600–1866,” in Daire Hogan and W.N. Osborough, eds., Brehons, Serjeants and Attorneys: Studies in the History of the Irish Legal Profession (Dublin: Irish Academic Press, 1990), 120. See also Daire Hogan, The Legal Profession in Ireland, 1789–1922 (Dublin: Incorporated Law Society of Ireland, 1986), chapter 2 passim: “The Profession at the End of the Eighteenth Century.”

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11 An alphabetical and chronological transcription of the barristers rolls is available in NSA: Supreme Court of NS at Halifax records, RG 39 series M, box 24A. 12 Statutes N.S., 1818, c. 19. 13 Statutes N.S., 1824, c. 5. 14 Bill No. 240 (21 February 1824). Hansard did not exist at the time, but proceedings and debates of the “provincial parliament” were reported in Halifax newspapers. 15 “Attorneys Bill,” Novascotian (Halifax), 9 March 1825. 16 The Council then included both the chief justice and two of the three assistant judges of the Supreme Court as well as Attorney General Uniacke and Solicitor General Robie, the lawyers most responsible for passage of the Lawyers’ Better Regulation Act in the first place. 17 Brenton Halliburton (afterwards chief justice) was then senior puisne justice of the Supreme Court and a member of the Council. His involvement suggests that the law society initiative had the approbation of both the judiciary and the government. 18 Novascotian (Halifax), 2 February 1825. 19 Rules of the Society of Nova Scotia Barristers (Halifax, 1825). 20 Given that one of the original members of the committee and its second chair, William Blowers Bliss, was admitted to the Inner Temple shortly after his call to the bar of Nova Scotia in 1818, it is reasonable to suppose that he returned from England aiming to replicate the Inns of Court in Nova Scotia. On this subject generally, see Clare Rider, “The Admission of Overseas Students to the Inner Temple in the 19th Century,” http://www.innertemple.org.uk/history/ historical-articles/35-admission-of-overseas (accessed 30 June 2014). 21 On this subject generally, see Brian Cuthbertson, The Old Attorney General: A Biography of Richard John Uniacke (Halifax, 1980). 22 Beamish Murdoch, Epitome of the Laws of Nova-Scotia, vol.3 (Halifax: Joseph Howe, 1833), 116–17. [1971 repr.]. 23 Thomas C. Haliburton, An Historical and Statistical Account of Nova-Scotia (Halifax: Joseph Howe, 1829), vol.2, 333 [1973 repr.]. 24 He refers to the 1826 Rule of Court governing bar admission, paraphrased in the text just above. The original rule, if recorded, has not survived. 25 Beamish Murdoch, Epitome of the Laws of Nova-Scotia, vol.3 (Halifax: Joseph Howe 1833), 117 [1971 repr.]. On this subject generally, see Philip Girard, Lawyers and Legal Culture in British North America: Beamish Murdoch of Halifax (Toronto, 2011).

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26 Rules of the Society of Nova Scotia Barristers (Halifax, 1825), 11 p. 27 Nova Scotia’s law list is given annually in Belcher’s Farmers’ Almanac, the numbers reflecting the previous year. 28 And the trend continued: successive early chairs of the executive committee were the crème de la crème of the rising generation of the bar: after James William Johnston and William Blowers Bliss (the chief justice’s son-in-law) came Charles Rufus Fairbanks and William Hill – the latter two both created king’s counsel in 1828. All four afterwards became senior judges. 29 See, for example, D.A. Sutherland, “Johnston, James William,” Dictionary of Canadian Biography, vol.10, 1871 to 1880 (Toronto, 1972), 383–8. 30 For the complicated legislative history of the bill, see the published journals of the House of Assembly and the Council (in legislative session), February– March 1836. 31 Chapter 89 of the Acts of 1836. 32 An exhaustive account appears in Arthur J. Stone, “The Admiralty Court in Colonial Nova Scotia,” 44 Dalhousie L.J. 17, no. 2 (Fall 1994): 363 at 407–9. 33 “Report of the Committee in Sutherland’s Case with Judge Fairbanks,” NSA Sir William Young fonds, MG 2 vol. 732 doc. 210. 34 On this subject generally, see J. Murray Beck, Politics of Nova Scotia, vol.1, Nicholson –Fielding, 1710–1896 (Tantallon, NS: Four East, 1985), 118–27. 35 “Provincial Parliament,” Novascotian (Halifax), 8 April 1844; the bill itself has not survived. 36 Ibid. 37 Chapter 42 of the Acts of 1846. 38 Chapter 85 of the Acts of 1858. 39 Acadian Recorder (Halifax), 4 February 1860. No minutes or proceedings of this meeting are known to have survived. 40 “Barristers Society,” Acadian Recorder (Halifax), 4 February 1860. See also “Nova Scotia Barristers Society,” British Colonist (Halifax), 31 March 1860. 41 See generally Bye-Laws of the Nova Scotia Barristers’ Society (Halifax: James Bowes and Sons, 1861). Though the judges remained honorary members of the society and members ex officio of council until 1899, they played no role in professional governance after 1885. 42 On this subject generally, see the excellent account by W.H. Laurence, “‘A Literary Man and a Merchant’: The Legal Career of Sir William Young” (unpubl. jSD thesis, Dalhousie University, 2009), 370–93.

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Ch APtEr t wO 1 The case went by way of appeal to the Judicial Committee of the Privy Council, which quashed the order to suspend. In re Wallace, (1866) 16 E.R. 269. For a brief account, see William H. Laurence, “‘A Literary Man & a Merchant’: The Legal Career of Sir William Young” (unpubl. jSD thesis, Dalhousie University, 2009), 373–80. 2 The text of Bill No. 39 does not survive. 3 The text of Bill No. 91 does not survive. 4 Journal of the House of Assembly, 27 March 1871. The bill did not proceed beyond second reading. 5 “Provincial Parliament [7 March 1872],” Morning Chronicle (Halifax), 19 March 1872. The text of Bill No. 30 does not survive. 6 The text of Bill No. 31 does not survive. 7 Statutes N.S., 1872, c. 19 (An Act to Amend Chapter 130 of the Revised Statutes, “Of Barristers and Attorneys”). 8 “The Bar Society,” Novascotian (Halifax), 10 February 1873. 9 Statutes N.S., 1875, c. 4[3?]. 10 Statutes N.S., 1874, c. 90. 11 Assembly Debates, 1 April 1874: 79, col. 2. 12 Ibid. 13 Statutes N.S., 1881, c. 18. 14 “Law Society,” Morning Chronicle (Halifax), 23 January 1874. First president of the society, which met weekly, was Lawrence Geoffrey Power, LLB Harv. (appointed senator 1877). 15 “The Bar Society,” Morning Chronicle (Halifax), 19 February 1877. 16 See, for example, “Eccentric Barristers vs. Juries,” Citizen & Evening Chronicle (Halifax), 21 March 1878. 17 Nova Scotia Legislature, Debates and Proceedings of the House of Assembly, 1878, 183. 18 A draft of Bill No. 35 appears among House of Assembly records (unpassed bills): NSA RG 5 series U vol. 28. The progress of the bill may be followed in the journals of both Assembly and Council and the parliamentary reporting in Halifax’s daily newspapers. See, for example, Legislative Council Debates, 7 April 1879, reported in Morning Chronicle (Halifax), 9 April 1879; and “The Barristers Act,” Morning Chronicle (Halifax), 14 April 1879. 19 Statutes N.S., 1880, c. 11 (An Act to Amend the Laws relating to Barristers and Attorneys).

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20 A further bill on the same subject passed the House in 1881 but failed in the Legislative Council: Assembly Bill No. 86 (1881). 21 McDonald, Rigby, Thompson, Ritchie, Townshend, and Graham. 22 The members of the firm were Edwin David King, qC (1884), called 1867, and William Lawson Barss, LLB (Harv.), who was admitted to King’s firm as partner on 1 January 1877. Barss’s son, Walter deWolfe Barss, also a lawyer, was both president and honorary president of the Nova Scotia Barristers’ Society. 23 Unless otherwise indicated, this and what follows are based on [Nova Scotia Barristers’ Society], Findings of Council, &c., on Complaint of Mr Meagher, Q.C., and Others (Halifax, [1885]), 16. The complainants were three Halifax lawyers: Nicholas Hogan Meagher (afterwards justice of the Supreme Court), James Johnston Ritchie (afterwards justice of the Supreme Court), and Thomas Ritchie. 24 “Professional Etiquette,” Morning Herald (Halifax), 27 March 1888. 25 Nova Scotia Legislature, Debates and Proceedings of the House of Assembly, 1885, 201. 26 1885, c. 20: An Act to Amend Chapter 108, Revised Statutes [1884], “Of Barristers and Attorneys.” 27 No records of the Provincial Barristers’ Association are known to have survived. 28 Royal Gazette (Halifax), 5 October 1887, 438. 29 “Professional Etiquette,” Critic (Halifax), 24 February 1888. 30 Nova Scotia Hansard, as reprinted in “Provincial Parliament,” Morning Chronicle (Halifax), 16 April 1888. 31 From 1889 to 1915, when he was appointed chief justice, the post was held by Wallace Graham who when at the bar had been active in the society and was president in 1886. 32 The move may have been intended as a compliment to Hugh McDonald Henry, president of the society 1887–92, who was appointed to the bench in February 1893. 33 This and what follows depend on the minutes of meetings of the Nova Scotia Barristers’ Society, on microfilm at Nova Scotia Archives (NSA). 34 On Bulmer’s leading role in this initiative, see Philip Girard, “Bulmer, John Thomas,” Dictionary of Canadian Biography, vol.13, 1901 to 1910, 132–4 and sources cited in the bibliography. 35 Minutes of NSBS special meeting, 27 July 1896 (on microfilm at NSA). 36 “Canadian Bar Society to Be Organized,” Halifax Herald, 28 July 1896. 37 For an excellent short account by a lawyer of the next generation who knew and admired Longley, see John Doull, Sketches of Attorney Generals of Nova Scotia, 1750–1926 (Halifax, 1964), 105–10.

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38 Hon. Justice Longley, “Reminiscences Political and Otherwise” [II], Canadian Magazine 56 (1 November 1920): 61. 39 This and what follows, unless otherwise indicated, derive from second-reading debates as recorded in Hansard, 99–101 (13 February 1897). 40 “The Bar Society,” Morning Chronicle (Halifax), 1 March 1897. 41 “The Bar Society,” Halifax Herald, 9 March 1899. 42 Afterwards Chief Justice Harris and Justice Mellish, respectively; both were members of council at the time. 43 Barristers and Attorneys Act, R.S., 1884, c. 108. Among the sources drawn upon would have been LSUC’s governing legislation: The Law Society Act, Revised Statutes of Ontario, 1897, c. 172. 44 Rendered in extenso in “Barristers in Council,” Morning Chronicle (Halifax), 6 March 1899. It may be significant for these developments that the second ranking member of the commission – chaired by Wallace Graham, Ej (a former president of the society) – was Frederick Tennyson Congdon, a member of council. 45 Solicitor was the English and Ontario term; after 150 years “attorneys” would never be heard of again. 46 “The Barristers’ Society Called Down,” Morning Chronicle (Halifax), 15 March 1899. 47 Chapter 27 of the Acts of 1899. 48 For this and what follows, see “Open Rebellion / Country Lawyer Throwing off the City Yoke / Won’t Stand the Halifax Tyranny Any Longer,” Daily Echo (Halifax), 11 March 1899. 49 See also “Stabbing in The Back / Christopher Chisholm Thus Describes a Clause in the Barristers Act before House / Monopoly of the Law / The Lawyers Had a Time of It in the House of Assembly and the Gallery Laughed,” Halifax Herald, 11 March 1899. 50 Ibid. 51 In the thirty years elapsing since Confederation, no less than four Nova Scotia lawyers had served as federal minister of justice – James McDonald, Sir John S.D. Thompson, Sir Charles Hibbert Tupper, and Arthur Rupert Dickey.

Ch APt Er th rE E 1 Typical of this popular misconception is the following statement: “For nearly 150 years, the lawyers of Nova Scotia have governed themselves as members of

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3 4 5

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the Nova Scotia Barristers’ Society under the framework of the Barristers and Solicitors Act. First enacted in 1858, the Barristers and Solicitors Act has been much amended”: “The New Legal Profession Act,” NSBS Society Record (June 2005), 13. Nova Scotia’s lawyers did not govern themselves as members of the society under the framework of the BSA until 1899. By way of example, the president elected at the annual meeting in 1960 reported at the end of his term: “The Nova Scotia Barristers’ Society is now completing the first century of its organization. As your centenary president…”: Annual Report, 1960–1961, 1; NSBL. He was confusing organization (1825) with reorganization (1860). BSA s. 42. Calculation based on 1899 law list. See, for example, “Too Many of Them / One of the Overcrowded Professions in Halifax / Rush of Young Men to the ‘Bar’ / Law School Turning Them out in Such Numbers That Business Is Hard to Find by Many,” Daily Echo (Halifax), 19 May 1899; “Many More Lawyers, Much Less Business / Mercantile Men More Than Formerly Are Able to Look after Some Phases of Their Own Legal Work, / Leaving Many Briefless Barristers / Yearly Accessions to Legal Ranks Contrasted with Diminishing Opportunities for Work as by Court House Officials –Then ‘Go West,’” Halifax Herald, 20 May 1899. For context and an overview, see Philip Girard and Jeffrey Haylock, “Stratification, Economic Adversity, and Diversity in an Urban Bar: Halifax, Nova Scotia, 1900–1950,” in Constance Backhouse and W. Wesley Pue, eds., The Promise and Perils of Law: Canadian Lawyers in History (Toronto: Irwin Law, 2009), 75–102. See Philip Girard, “Ritchie, William Bruce Almon,” Dictionary of Canadian Biography, vol.14, 1911–1920, 872–3. “N.S. Bar Society,” Morning Chronicle (Halifax), 5 Feb 1900; the provisions concerned are in that part of the BSA dealing with “remedies against solicitors.” Chapter 50 of the Acts of 1901; see also “Meeting of the Bar,” Morning Chronicle (Halifax), 1 March 1901. A standing solicitor was not appointed until 1914 but may have been provided for in the now lost 1904 redaction of the regulations. The 1914 regulations (Rule 30 – “Solicitor of the Society”) make no reference to the solicitor’s role in the discipline process, which was then fully statutory rather than regulatory. The society’s first solicitor was James McGregor Davison (called 1892), then a sole practitioner in Halifax. “Bar Society’s Annual,” Halifax Herald, 1 March 1902.

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11 Ibid. 12 See the memorial resolution; “Meeting of the Bar,” Morning Chronicle (Halifax), 1 March 1901. 13 Chapter 198 of the Acts of 1903. See generally “Judge Meagher and the Bar Society,” Morning Chronicle (Halifax), 2 March 1903. 14 “Robert L. Borden, Q.C., M.P.,” Canada Law Journal (15 March 1899), 178. 15 Chapter 23 of the Acts of 1908. 16 Chapter 17 of the Acts of 1910, Statute Law Revision Act, s. 14. 17 Chapter 38 of the Acts of 1913. 18 “Nova Scotia Barristers Meet / Members of Provincial Bar Will Be Asked to Vote on Important Amendment to Barristers’ Act,” Morning Chronicle (Halifax), 22 Feb 1913. 19 NSA RG 5 series B, vol. 105 Legislative Assembly bill book, 1914 (Bill No. 74). 20 Chapter 29 of the Acts of 1923. 21 Minutes of Annual Meeting, 30 July 1931; NSBL. 22 “T.W. Murphy K.C. Is New President,” Halifax Herald 31 July 1931. 23 NSBS council meeting minutes, 4 Oct 1932 (p. 369); on microfilm at NSA. 24 NSBS council annual report, 21 July 1931; among council minutes; on microfilm at NSA. 25 Chapter 34 of the Acts of 1932. 26 See, for example, proceedings against “O.R.R.” – council minutes, 7 January 1936 (pp. 14–15); on microfilm at NSA. 27 Minutes of council, 5 December 1939 (p. 106); on microfilm at NSA. 28 Chapter 9 of the Acts of 1939. 29 There is evidence that the 1899 regulations were revised and consolidated in 1904, but no trace of them remains. Nor are pre-1911 council minutes, which would have settled the matter, extant. 30 NSBS annual report of council, 9 April 1940 (among council minutes); on microfilm at NSA. 31 Chapter 44 of the Acts of 1946, s. 4. The same amendment reinforced the council’s residual powers and confirmed its authority to manage society business between annual meetings. 32 Minutes of council, 7 March 1939 (p. 69); on microfilm at NSA. 33 For background, see council minutes, 4 March and 1 April 1941; NSBL. 34 Chapter 52 of the Acts of 1941. 35 Minutes of council, 26 February 1951; NSBL. The first vice-president, who had been de facto chair since the committee’s establishment in 1935, became ex officio chair.

NOtES tO PAgES 57–60 36 37 38 39 40 41

42 43 44 45 46 47 48 49 50 51 52 53 54

55 56 57 58

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Chapter 20 of the Acts of 1965. Minutes of council, 4 March and 1 April 1941; on microfilm at NSA. Minutes of council, 5 August 1943 (p. 217); on microfilm at NSA. Minutes of council, 7 December 1944 (p. 263); on microfilm at NSA. Chapter 41 of the Acts of 1944. Minutes of council, 7 March 1918; NSBL. Introduced by Liberal Donald Alexander Cameron, KC, “An Act Relating to Conveyances and Conveyancing in the Province of Nova Scotia” did not even attain second reading before it was given the three-month hoist. Cameron practised on Cape Breton Island, where there were fewer lawyers and thus more opportunities for lay practitioners to draft deeds and other instruments. Though a Public Accountants Act was not passed until 1952, the Institute of Chartered Accountants of Nova Scotia had been incorporated in 1900. Minutes of council, 2 March and 15 March 1944; NSBL. The Law Society of Manitoba Act (new section 53), Chapter 29 of the Acts of 1943, section 3. Bill No. 68 as drafted may be found among legislative bills, RG 5 series B box 202 (1944); NSA. “First Consideration,” Halifax Herald, 6 April 1944; “Bill No. 68,” Morning Chronicle (Halifax), 5 April 1944. George Farquhar (called 1927) might well have been thinking of himself in going out of his way to provide a critique of the bill. “Bill No. 68.” “Change in Barristers Act Passed by House / Original Bill Is Sharply Modified / Meets Opposition,” Morning Chronicle (Halifax), 6 April 1944. “Barristers’ Bill Passed by House,” Halifax Daily Star, 6 April 1944; “Lawyers’ Bill Draws Protests at Hearing,” Halifax Herald, 6 April 1944. Supra note 48. Annual meeting minutes, 13 April 1944; NSBL. Chapter 41 of the Acts of 1944. Until then, lay agents or persons holding a power of attorney had been permitted to appear before adjudicative boards and commissions on behalf of individuals or groups. The next consolidation of the BSA, in 1952, expanded the sanction to include any violation of the act or the regulations. The ban on law corporations was lifted in 1996. Chapter 20 of the Acts of 1965 (s. 2). Council annual report, 1942–43; NSBL.

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59 Chapter 44 of the Acts of 1946. 60 The dean of the law school had been an elected member of council since 1920. 61 Responsibility for the loss of council minutes during and after the war must be laid at the feet of LeMert Stevens Whinyard, secretary since 1939. Whinyard was a bachelor with three jobs and a serious heart condition that killed him in May 1950 shortly after his deteriorating health had forced him to resign all his posts. See “Former Law Librarian Is Mourned,” Chronicle-Herald (Halifax), 22 May 1950. 62 Approximations deriving from the annual reports of council. Those for the years 1943–44 and 1944–45 are not extant. 63 Charles B. Smith, for example, president in 1939–40, rose from private to captain and was awarded the Military Cross. 64 “Nova Scotia Barristers Hold Annual Meeting,” Halifax Herald, 25 April 1941. 65 “Qualities of Servicemen Lauded by Col. Ralston,” Halifax Mail, 30 April 1945. 66 Ibid.

ChAP tE r F O Ur 1 Grace Wambolt (called 1925) was a sole practitioner in Halifax; created qC in 1950, she was appointed honorary president of the society in 1979. See, generally, J. Noelle Yhard, “M. Grace Wambolt: Lawyer, Activist and Legal Pioneer” (BA honours thesis, Saint Mary’s University, 2010). 2 “Praises Dal Law ‘Grads,’” Halifax Herald, 2 April 1947. For background, see Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer (Toronto, 1994), 270–7. 3 The survey was sponsored by the Canadian Bar Association. McTague began his nationwide tour of law society annual meetings in Nova Scotia, where he recruited Gordon S. Cowan, KC, as provincial director for the survey. The first of an intended six reports, released in September 1950, showed 269 practising lawyers in Nova Scotia, one for every 2,397 persons, well below the Canadian average: “Third of All Lawyers in Canada Practice Here or in Montreal,” Telegram (Toronto), 1 September 1950. Nova Scotia was represented on the survey’s twenty-one-member governing council by Dean Vincent C. MacDonald of Dalhousie Law School. See, generally, John T. Hackett, “Survey of the Legal Profession in Canada,” Can. Bar Rev. 26 (1948): 972; and Charles P. McTague, “Survey of the Legal Profession in Canada,” Can. Bar Rev. 27 (1949): 951. Unfortunately, the money ran out before the survey could be completed or the promised summary of it could be published. The records of the survey are not known to have survived.

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4 “Legal Survey Director Addresses Barristers,” Chronicle-Herald (Halifax), 1 June 1950. 5 “Can Qualify for Bar by Articling,” Chronicle-Herald (Halifax), 30 June 1951. 6 The reference is clearly to the Smith brothers from Sydney, Charles Breckon (Charlie) and Francis David (Frank), called in 1907 and 1910, respectively. Both former presidents of the society, they were for decades among the most soughtafter and successful litigators at the Halifax bar. In March 1967, on the occasion of the special convocation marking the formal opening of Dalhousie Law School’s new building, Frank Smith (“an exemplar for the practising lawyer”) was among those luminaries receiving honorary doctorates. That among his fellow honorees were Lady Beaverbrook (chancellor of the university), the president of Canadian Bar Association, the chief justice of Nova Scotia, the president of Canada Permanent, Canada’s minister of labour, and the dean of University of Toronto’s faculty of law gives some sense of the esteem in which Smith was held – despite lacking the LLB. Known as a “lawyer’s lawyer,” in 1936 and 1937 he served as president of what is now the Federation of Law Societies of Canada. Another distinguished lawyer who did not graduate law school was William Pitt Potter (called 1916), who served briefly as puisne judge of the Exchequer Court of Canada. 7 Minutes of annual meeting, 29 June 1951; NSBL. 8 Quoted in NSBS annual report 1951–52, 28–9. 9 NSBS council annual report, 1947–48; NSBL. 10 On legal aid in Manitoba, see Cameron Harvey, ed., The Law Society of Manitoba (Winnipeg, 1977), 158–75. 11 Regulations of the Nova Scotia Barristers’ Society / Barristers and Solicitors Act / Ch. 7 Acts of 1952 / Rules for Legal Aid / Passed and in Effect from / March 31, 1952 (Halifax, 1952), 41–2. 12 “Lawyers must steer between service and objectivity,” Chronicle-Herald (Halifax), 30 June 1962. 13 NSBS minutes of annual meeting, July 1965; NSBL. 14 Chapter 29 of the Acts of 1970, ss. 5(b). 15 Chapter 14 of the Acts of 1970–71, s. 2(a). 16 Chapter 11 of the Acts of 1977. 17 NSBS Regulations 1979, §8(1)(l). 18 NSBS annual report 1981–82, 38. 19 NSBS annual report 1982–83, 3–4. See, generally, minutes of council, 16 September 1982 (“legal aid cutbacks”); NSBL. 20 “Lawyers Asked to Ease Strain on Legal Aid,” Chronicle-Herald (Halifax), 7 August 1991.

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21 (1992) 113 N.S.R. (2d) 156 (NSCA). 22 [1994] 3 S.C.R. 236. 23 NSBS annual report 1991–92, 17–19. Prominent among the advocates of improved access to and better quality management of legal aid was veteran Halifax corporate lawyer, J. William E. Mingo, qC, a former president of the society and former chair of the legal aid committee, who had been one of the original society-nominated directors of the commission. Mingo became first chair of the revived committee. 24 Minutes of council, 22 January 1993; NSBL. 25 The report of the Legal Aid Review Project, a joint initiative of the Department of Justice and the Nova Scotia Legal Aid Commission, was published in April 1996. A comprehensive, though selective and unhistorical, overview of legal aid in Nova Scotia that seems to downplay the role of the society appears in chapter II: Review of Legal Aid Services in Nova Scotia. A Report by the Legal Aid Review Team (Halifax, 1996), 10–20. 26 See the access to justice committee’s draft mandate appended to minutes of council, 26 April 2002; NSBL. 27 Minutes of council, 24 March 2000. 28 NSBS Regulations 1899 §2. 29 Annapolis, Digby, Yarmouth, Shelburne, Queens, and Lunenburg. 30 NSBS annual meeting minutes, 31 May 1950; on microfilm at NSA. A seaport offering easy communication with the “Boston States” as well as being the shire town of Yarmouth County, Yarmouth was and had been for many years the metropolis of southwestern Nova Scotia. 31 The meeting was well covered by the press. Between 29 June and 2 July, the following articles appeared in the Halifax’s Chronicle-Herald: “Nova Scotia Barristers to Open Annual Today,” “Constitution Developed through Courts Is Seen,” “Can Qualify for Bar by Articling,” “Nova Scotia Barristers Meet at Chester,” “Erection of New Court House Urged for Halifax,” “Provincial Lawyers at Chester,” and “Barristers Name Slate; Conclude Annual Meet.” 32 Minutes of council, 24 September 1993; NSBL. 33 Minutes of council, 21 October 1994; NSBL. 34 Minutes of council, 21 February 1952; NSBL. Council had appointed a committee the previous summer to study and report. 35 Peter Lorimer Judge, qC (1902–1963) at time of his election to the presidency of the society was town solicitor for Yarmouth. Called to the bar in 1927, he practised for ten years with Yarmouth’s leading law firm, Landry Pottier. When that firm was dissolved in 1937, he went into practice for himself. Judge was

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among the founders and a former president of the Western Counties Barristers Association. This history-making event attracted an editorial in Halifax’s Chronicle-Herald: “A Precedent Is Established,” 5 July 1955. Chapter 16 of the Acts of 1960. The next was C.R. Coughlan, from Bridgewater, in 1958. Chapter 28 of the Acts of 2004, section 8(4). NSBS annual meeting minutes, 31 May 1950; on microfilm at NSA. NSBS annual report, 1971–72, 7; NSBL. “Barristers Elect Officers,” Chronicle-Herald (Halifax), 30 June 1958. Of Nova Scotia’s 300 or so practising lawyers, 43 per cent were in Halifax County, 16 per cent were on Cape Breton Island, and the remaining 41 per cent were scattered throughout the other thirteen mainland counties; see “Lawyers Wind up Annual Session,” Chronicle-Herald (Halifax), 1 July 1959. Excepting the addition of Kings, district 5 mirrored the makeup of the Western County Barristers Association. The first lay secretary-treasurer, Thomas Keillor Bentley, who served from 1954 to 1959, was prominent in the arts and culture sector. A graduate of Dalhousie University in music, he was superintendent of the Alexander Graham Bell Museum, Baddeck, Nova Scotia, 1959–64, and director of the Owens Art Gallery, Mount Allison University, Sackville, New Brunswick, 1976–89. See “T. Keillor Bentley, Director-Curator Owens Gallery,” Mount Allison University Newsletter, 19 November 1976. Chapter 27 of the Acts of 1969, ss. 1(1)(a). Chapter 23 of the Acts of 1977. In practice, however, that meant that outside Halifax County, where members were proposed by the council’s nominating committee, prospective members of council were nominated by the county bar associations. Metropolitan Halifax lacked such an organization. “Laymen May Be Included,” Chronicle-Herald (Halifax), 26 June 1976. NSBS council minutes, 21 September 1984. The 1976 annual meeting voted in favour of the change, which had been made in Ontario in 1974, but no action was taken until 1985; see “MacDonald, Adamson First Lay Members of NSBS Council,” Chronicle-Herald (Halifax), 7 June 1985. For a retrospective written at the conclusion of his three-year term as public representative, see Agar Adamson, “A Layman’s View of Bar Council,” Nova Scotia Law News 15(3): 44–5. NSBS president’s report, 1984–85; NSBL.

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53 Not until 1990 did the number of lay members of council reach the statutory maximum of five. 54 John Beaufoy, “Law Societies: A Cross-Canada Check-Up,” Canadian Lawyer (August-September 1993): 39. 55 “President’s View,” NSBS Society Record (July 2000). 56 Cape Breton Island, Halifax County, Northern, and Southwestern. 57 Justice and Administration Reform (2000) Act [Part II, Barristers and Solicitors Act], section 5; Chapter 28 of the Acts of 2000. 58 The appointment was made at a special meeting of council on 4 September 1991 the minutes of which no longer exist; see, generally, “Appointment of First Vice-President,” NSBS Society Record (October 1991). 59 Chapter 13 of the Acts of 1992 (section 5). 60 On one occasion only was a sitting president who reoffered voted out. At the annual meeting in 1908, Robert E. Harris (afterwards chief justice) was defeated by a political and professional rival. Harris resumed the post in 1909. 61 Minutes of council, 17 April 1959; NSBL. 62 “Object to Laymen’s ‘Invasion,’” Chronicle-Herald (Halifax), 30 June 1959. 63 R.S.N.S, 1954, Chapter 19, s. 5(3). 64 “Object to Laymen’s ‘Invasion.’” 65 Minutes of council, 21 April 1972; NSBL. 66 “Lawyers, Doctors to Air Problems,” Chronicle-Herald (Halifax), 2 July 1963. See also NSBS annual report, 1963–64; NSBL. 67 On this subject generally, see “Barristers Seek Improved Image,” Chronicle Herald (Halifax), 20 June 1985; “Lawyer-Media Relations Thorny,” Chronicle Herald (Halifax), 21 January 1985. 68 “Discipline Discussed by N.S. Barristers,” Chronicle-Herald (Halifax), 30 June 1962. 69 Minutes of council, 4 April 1950; NSBL. 70 Annual meeting minutes, 31 May 1950; NSBL. According to P.J. Giffen, “The Nova Scotia Barristers’ Society created a token fund in 1950 but discontinued it in 1952, without having paid any claims”: “Social Control and Professional Self-Government: A Study in the Legal Profession in Canada,” in S.D. Clark, ed., Urbanism and the Changing Canadian Society (Toronto, 1961), 119n4. 71 Council minutes, 25 August 1952; NSBL. 72 NSBS minutes of annual meeting, 25 April 1940, 113–14; microfilm at NSA. 73 Regulations of the Nova Scotia Barristers’ Society (Halifax, 1952), §62. 74 Chapter 22 of the Acts of 1958; see “Lawyers’ New Fund Will Protect Public,” Chronicle-Herald (Halifax), 27 June 1958. In 1978 the chair of the

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reimbursement fund committee observed, “Our past history has shown that we have had to go to the reimbursement fund on an average of once every second year and in those circumstances we end up paying out the maximum of $20,000. No one knows what the future will hold”: Council meeting minutes, 20 January 1978; NSBL. Chapter 29 of the Acts of 1970. Chapter 25 of the Acts of 1990. In 2000 the fund’s statutory provisions were revised; see Justice and Administration Reform (2000) Act, Chapter 28 of the Acts of 2000 (Part II). For an overview of the history of what is now the Lawyers’ Insurance Association of Nova Scotia, see http://www.lians.ca/about/ about_overview (accessed 28 May 2014). Minutes of the annual meeting, 1962, 3–4; NSBL; see also “Discipline Discussed by N.S. Barristers,” Chronicle-Herald (Halifax), 30 June 1962. NSBS annual report, 1963–64; NSBL. “Controversial Issue Debated as Lawyers Open Annual Session,” ChronicleHerald (Halifax), 4 July 1964. Ibid. Section 9(1), Chapter 20 of the Acts of 1965. “Law Reform Committee Proposed,” Chronicle-Herald (Halifax), 3 July 1965. This and what follows are based on NSBS Minutes of Special Autumn Meeting Held at Dalhousie University, 4 December 1965; NSBL. See also “Nova Scotia Lawyers Take Steps to Assure Honesty in Profession,” Chronicle-Herald (Halifax), 6 December 1965. “Cost of Working Going Up,” Chronicle-Herald (Halifax), 2 July 1966. “Barristers Plan ‘Trust Fund,’” Chronicle-Herald (Halifax), 1 July 1957. On this subject generally, see Mark M. Orkin, “Professional Autonomy and the Public Interest: A Study of the Law Society of Upper Canada” (unpubl. jSD thesis, York University, 1971), 260–2. NSBS annual report 1965–66, 15. According to the press release issued by the chair of the public relations committee, who was also a member of the discipline committee, “Mr Ignatius Kennedy has made a formal complaint to the Barristers’ Society concerning the professional conduct of one of its members. The discipline committee has conducted a formal hearing on the matter and in due course will file a report to the Barristers’ Society”: “Formal Hearing Is Conducted,” Chronicle-Herald (Halifax), 3 November 1965; see also “Kennedy ‘Sit-In’ at Halifax Courthouse Ends,” Chronicle-Herald (Halifax), 4 November 1965. At the time Kennedy was an independent candidate for Halifax in the federal general election, which took place on the 8th.

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88 “Lawyers Vote to Put Teeth into Self-Disciplinary Rules,” Chronicle-Herald (Halifax), 2 July 1966. 89 “Urge Lawyers to Uphold Professional Standards,” Chronicle-Herald (Halifax), 20 February 1972. A. Gordon Cooper was society president 1956–57. 90 Chapter 22 of the Acts of 1976. 91 “Justice Must Be Firm but Compassionate, Turner [minister of justice] Tells Opening,” Chronicle-Herald (Halifax), 10 July 1971. 92 “Cooperative Effort Asked by Premier of Law Group,” Chronicle-Herald (Halifax), 12 July 1971. 93 It was first raised by Justice Baxter of the Supreme Court of New Brunswick at the annual dinner of the Nova Scotia Barristers’ Society in March 1934: “Justice J.B.M. Baxter Suggests Uniform Bar For Maritime Provinces,” Bench and Bar (Montreal), April 1934. The idea was raised again in 1991 but again went nowhere: “The Law Society of New Scotia Island?” Canadian Lawyer (October 1991): 10. The emphasis by then was on portability of credentials and the interprovincial practice of law rather than law society integration. 94 NSBS annual meeting minutes, 10 July 1971; NSBL. 95 “Lawyers Make Better Politicians,” Digby Courier, 30 June 1976. 96 Two of the three – Pace himself and Allan E. Sullivan – became judges federally appointed by the Liberals. 97 Smith was called to the Senate in October 1975 while first vice-president. One source records that on arriving at a society meeting shortly after the narrow and unexpected defeat of his government in the provincial election of October 1970, Smith was greeted with a “thunderous ovation.” 98 According to Hansard, the opposition New Democratic Party suspected that Workers’ Compensation Appeal Board work was being directed to Mingo’s firm, Stewart MacKeen & Covert, which was headed by an even more prominent and partisan Liberal, Frank Covert. 99 G.H. MacNeill, “The Barristers’ Society, Has It a Useful Role?” Ansul (March 1973): 3–4. 100 Annual meeting minutes, 29 June 1973; NSBL. 101 Kanigsberg, a former chair of the discipline committee and former president of the society, was bemused enough to write about the case in his memoirs: Trials and Tribulations of a Bluenose Barrister (Halifax, 1977), 73–4. 102 Minutes of biannual meeting, 17–18 November 1972; NSBL. 103 Chapter 23 of the Acts of 1977 (s. 5) enacted the repeal and replacement of sections 28 through 32 of the BSA, Revised Statutes 1967 c. 18. 104 Chapter 17 of the Acts of 1983, ss. 2(1).

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105 The leading case is Pavey v. Nova Scotia Barristers’ Society, (2002) 198 N.S.R. (2d) 381 (NSCA). The 1973 case did not remain unique for long. In 1978 a lawyer who had been fined $1,000 for professional misconduct involving the improper use of trust funds appealed the adjudicative subcommittee’s decision. The appeal was unsuccessful, but the order was varied to exempt the appellant from paying costs (which were significantly higher than the fine imposed by the society); Hatfield v. Nova Scotia Barristers’ Society, (1978) N.S.R. (2d) 386, (1978) 49 A.P.R. 386, (1978) 95 D.L.R. (3d) 585 (NSCA). This was the first case in which a lawyer subject to disciplinary action sought and received a hearing under the Appeal Court’s new power to “intervene” in a discipline proceeding. See also Saunders v. Nova Scotia Barristers’ Society, (1982) 55 N.S.R. (2d) 1 (NSCA); and Markus v. Nova Scotia Barristers’ Society, (1989) 90 N.S.R. (2d) 156 (NSCA), in which a disbarred lawyer’s appeal on the grounds of natural justice and cruel and unjust penalty was rejected by the appeal court. In the former case (Edmund R. Saunders, qC) where the issue was suspension, not disbarment, leave to appeal to the Supreme Court of Canada was denied. 106 This and what follows are based on Bardon v. Carver, Decisions / Supreme Court (Trial Division), vol. 41, Tab 5 [1974 S.H. 03816]; NSBL; “Barristers – Robing,” Nova Scotia Law News (October 1974): 6, and private information. 107 Minutes of annual meeting, 30 June 1973; NSBL. 108 A prominent Halifax corporate lawyer, J. William E. Mingo, was a member of the CBA’s Special Committee on Legal Ethics, which produced both the original code and its successor. 109 Canadian Bar Association, Code of Professional Conduct (Ottawa, 1974), 51. This was already an internationally accepted canon. The plain implication was that advertising, as defined in Chapter XIII note 8 (p. 55), was integral to the public interest in the practice of law. The 1987 revision of the CBA’s code, which the society also adopted, was little altered beyond amplifying the title of the chapter concerned: “Advertising, Solicitation and Making Legal Services Available”: Canadian Bar Association, Code of Professional Conduct, 2nd ed. (Ottawa, 1987), 63–5. 110 Minutes of council, 4 April 1939; NSBL. 111 Minutes of council, 22 March 1963; NSBL. 112 Nova Scotia Barristers’ Society, Barristers and Solicitors Act, R.S.N.S. 1954, Ch. 19, and Regulations of the Society. Revised to November 1st, 1964 (Halifax, 1964), 54–5. 113 “Responsibility Key Element in Debate,” Cape Breton Post (Sydney), 25 June 1977.

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114 “‘Advertising by Lawyers Could Lead to Unethical Practices,’” Chronicle-Herald (Halifax), 25 June 1977. 115 “Advertising Symposium,” minutes of council, 2 June 1978, §7; NSBL. 116 “Barristers’ Society Head Sees Advertising as Issue,” Chronicle-Herald (Halifax), 26 June 1978. 117 “Barristers’ Society Studying Question of Lawyers Advertising,” ChronicleHerald (Halifax), 25 September 1979. For an incisive analysis, see Peter Meerburg’s Dateline: Canada column, “The Mystique Should Go,” ChronicleHerald (Halifax), 22 February 1979. See also Janice Darling, “Consumerism versus Conservatism – Legal Advertising in Nova Scotia,” Ansu1: Dalhousie Law Forum (May 1979): 9–11. 118 A notable example of anti-advertising sentiment among the older generation appears in the president’s report to the 1978 annual meeting: NSBS annual report 1977–78, 3; NSBL. 119 “Advertising Meeting,” NSBS Society Record (March 1979). 120 “Action Sought on Lawyer’s Ad Issue,” Chronicle-Herald (Halifax), 19 February 1979. 121 “Advertising Meeting,” NSBS Society Record (April 1979). The very first item on the first page of the first issue of Society Record (March 1979) announced a special meeting of the general membership of the society to be held “to discuss advertising by the profession.” 122 “Lawyers Must Challenge Problem of Advertising – Committee Chairman,” Chronicle-Herald (Halifax), 12 May 1980. 123 The lawyer’s response was to sue the society for damages and to apply unsuccessfully for an injunction to restrain the society from proceeding with the disciplinary action. In May 1981 the discipline subcommittee convicted the accused of conduct unbecoming a barrister and sentenced him to reprimand with costs. See NSBL Formal Hearing Decisions: Nova Scotia Barristers’ Society v. McFetridge, (1981) NSBS 1. See also McFetridge v. Nova Scotia Barristers’ Society, (1981) 45 N.S.R. (2d) 319 (NSCA); and McFetridge v. Nova Scotia Barristers’ Society, (1982) 48 N.S.R. (2d) 323 (NSSC). 124 NSBL council minutes, 13 December 1980. 125 Regulations 47A-47F (“respecting advertising and soliciting”), NSBL Nova Scotia Barristers Consolidated Regulations (1 July 1985), 53–6. See “Annual Meeting,” NSBS Society Record (June 1982), 1; and “Council Minutes,” NSBS Society Record (July 1982). 126 Abundance of caution dictated that council seek a legal opinion on whether the advertising regulations violated the BSA’s prohibition against “soliciting.”

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127 128 129 130 131

132 133 134

135 136 137 138 139 140 141

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The response was that they did not and that, in any case, lawyer advertising fell within council’s plenary power to make regulations respecting “all matters relating the discipline and honour of the Bar” [s. 52(1)(c)]. Subsection 5(4) of the BSA, as it became, was not repealed for twenty more years: Justice and Administration Reform (2000) Act: Chapter 28 of the Acts of 2000, Part II, section 3. [1982] 2 S.C.R. 307; see “Law Societies May Control Lawyers’ Advertising – Court,” Chronicle-Herald (Halifax), 10 August 1982. Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia (Halifax, 1990). For this and what follows, see Legal Ethics, chapter 20, 89–92. Chapter 11 of the Acts of 1978–79. In November 2012 the society’s executive director was quoted in the press to the effect that allowing a member involved in a formal complaint hearing “to resign is essentially the same as disbarment, but with less stigma”: “Bar Society Allows Veteran Lawyer to Quit,” www.allnovascotia.com 6 November 2012. Over the years following 1980, concern was expressed by some senior lawyers that the provision enabled the subject of a disciplinary proceeding successfully to evade it rather than seeing it through to the end. Chapter 25 of the Acts of 1980. “Annual Meeting,” NSBS Society Record (July 1980), 1. “Lawyers Must Cope with Social Change,” Chronicle-Herald (Halifax), 2 July 1980. “Lawyers also have to be aware,” Henderson pointed out, “that any mystique attached to the legal profession faded long ago.” “Barristers’ Society Plans New Emphasis,” Chronicle-Herald (Halifax), 29 June 1981. “Ensuring Competence Is Chief Concern of NSBS,” Chronicle-Herald (Halifax), 18 June 1982. Ian A. Thompson, “Self-Discipline: Stretching the Law’s Long Arm,” Canadian Lawyer (September 1980): 6. On this matter generally, see council minutes, May–December 1991; NSBL. “Client Protection Aim of Barristers,” Chronicle-Herald (Halifax), 19 July 1982. On this subject generally, see Kim Lockhart, “No Glory for Power: Ex-lawyer Tagged on 11 Counts,” Canadian Lawyer (September 1985): 5. “Halifax Lawyer Disbarred,” Chronicle-Herald (Halifax), 4 November 1983. The formal hearing decision is Nova Scotia Barristers’ Society v. Power, 1983 NSBS 1.

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142 As a result, the discipline provisions of the BSA were amended to require a member convicted of a Criminal Code offence to attend a show-cause hearing to determine why he or she “should not be subject to disciplinary action”: R.S. 1989 c. 30, ss. 32(5). 143 R. v. Power, (1986) 72 N.S.R. (2d) 253 (NSCA). 144 See, for example, “Law Body Digs Deep to Reimburse Clients,” ChronicleHerald (Halifax), 26 November 1992; see also “Barristers Society to Reimburse Defrauded Clients,” Chronicle-Herald (Halifax), 3 May 1994 (the defalcation amounted to nearly a half-million dollars); and “Lawyers to Review Client Reimbursement,” Chronicle-Herald (Halifax), 17 October 1992 (“A major misappropriation of client funds by two Nova Scotia lawyers is forcing the Nova Scotia Barristers’ Society to consider a six-fold increase in the cap on its client reimbursement fund”). 145 This and what follows, unless otherwise indicated, are based on the president’s report to the 1985 annual meeting; found among minutes of council, NSBL. 146 “Bar Society Quadruples Contribution,” Chronicle-Herald (Halifax), 15 July 1985. 147 Eileen MacLean (called 1948). 148 In 1984 the provincial Conservative government appointed Kelly to the Family Court and, nine months later, the federal Conservatives appointed him to the Supreme Court – a hitherto unheard-of elevation. 149 “N.S. Barristers Elect New Leader,” Chronicle-Herald (Halifax), 23 June 1986. 150 “Legal-Fee Guidelines Due in a Year,” Chronicle-Herald (Halifax), 21 June 1986. 151 Chapter 14 of the Acts of 1987. According to a later president’s report, Nova Scotia was “one of the first provinces to comply with the Supreme Court of Canada’s decision in Andrews by eliminating the citizenship requirement from our Statute”: NSBS annual report, 1989–90, 1. 152 As president of the society, Evans was an ex officio member of the Judicial Council, which ordered the judge removed from the bench. 153 “Annual Meeting,” NSBS Society Record (June 1987), 1. 154 Nova Scotia, Executive Council Office, Order in Council 1987–44 (13 January 1987); he was one of twenty-seven new queen’s counsel appointed. 155 The same year Evans relinquished the presidency – 1987 – a near contemporary, Bruce MacIntosh (called 1974), became second vice-president. He served as president of the society in 1989–90. According to MacIntosh’s website (accessed 8 August 2013), he “was the youngest member of the bar ever to be elected by his peers as President of the Nova Scotia Barristers’ Society”: http://www.macmacmac.ns.ca/our-lawyers/bruce-macintosh-qc.

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156 See, generally, “Annual Meeting Minutes,” NSBS Society Record (June 1988). 157 “Lawyers’ Group Needs More Focus – President,” Chronicle-Herald (Halifax), 27 June 1988. 158 “Lawyers Recommend Changes in qC Award,” Chronicle-Herald (Halifax), 24 June 1989. 159 Nova Scotia Information Service (press release) – Attorney General – “Queen’s Counsel,” 22 December 1988. 160 “Discipline,” NSBS Society Record (June 1986), 4; “Lawyer Sought Return of qC; Ag Denies Decision Concealed,” Chronicle-Herald (Halifax), 17 February 1988. See also NSBS executive committee minutes, 14 January 1988, 3 (“Additional qC Candidate”). 161 Executive committee minutes, 21 April 1988; see also minutes of council, 25 March 1988. 162 This and what follows depend on council minutes 25 March, 29 April, 16 September, 25 November 1988, 20 January, 21 January (society biannual business meeting), 17 February, and 31 March 1989; NSBL. 163 Bruce MacIntosh received his qC a week after relinquishing the presidency in June 1990; Nova Scotia Executive Council, Order in Council 90-850 (5 July 1990). A similar situation arose in 2004 when the immediate past president was created qC a few months after relinquishing the presidency. 164 Minute of council, 19 September 1986; NSBL.

Ch APt Er F i vE 1 “Jill Hamilton,” Canadian Lawyer (March 1994): 32. 2 Frederick B. Wickwire’s Foreword to NSBS, Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia (Halifax, 1990), ii. 3 “President’s Report,” NSBS Society Record (September-October 1989). 4 Then first vice-president of the society. 5 “What’s in a Q.C.?” NSBS Society Record (March 1998). 6 “President’s Report,” NSBS Society Record (November 1989); the reference is to Casey May, “Are Law Societies out of Touch?” Canadian Lawyer (September 1989): 25. 7 May, “Are Law Societies out of Touch?” 22–5, 33. 8 Adapted from “How Law Societies Compare” (table): “Are Law Societies out of Touch?” 24. 9 The question was misunderstood, convocation (in Ontario) meaning meetings of the benchers. In the Nova Scotia context “public convocations” would have

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meant open council meetings. Lawyers who were not members of council could attend but not participate; non-lawyers were not permitted to attend council meetings. May, “Are Law Societies out of Touch?” 22. “A Maritime lawyer agrees [that zealous investigators are pursuing too many petty infractions]. ‘Everything’s a discipline matter. There’s a lawyer a while ago in Cape Breton who was disciplined for swearing at another lawyer. He told her to “fuck off” in court, so she complained to the law society. Sure it’s unprofessional, but is that a discipline matter?’” “Are Law Societies out of Touch?” 24. Chapter 21 of the Acts of 1988. “N.S. Lawyers to Change Discipline Rules,” Halifax Chronicle-Herald, 30 January 1992. Chapter 13 of the Acts of 1992; “N.S. Lawyers to Change Discipline Rules,” Halifax Chronicle-Herald 30 January 1992. “The Far East – Bad Apples,” Canadian Lawyer (December 1993): 6; see also “‘Bad Lawyering’ Cited as N.S. Bar Fees Rise,” Lawyers Weekly (Toronto), 24 September 1993, 3. NSBS, Memorandum to Council from Executive Director and Director of Professional Responsibility re Reimbursement Fund – Aggregate of ****** Claims and Fund Caps, 28 February 2005. “Report from the President,” NSBS annual report 1999–2000, 2. See, for example, the case of Reeves Matheson, disbarred in 1998 for theft of clients’ money; it was accorded a chapter in Philip Slayton’s Lawyers Gone Bad: Money. Sex and Madness in Canada’s Legal Profession (Toronto, 2008), 199–214 – “Coal Miner’s Son and Rock Solid Guy.” Supreme Court of Canada Docket 26783 Ramey Ayre v. Nova Scotia Barristers’ Society. “jUStiCE? Mr Justice Gordon L. S. Hart [of the Nova Scotia Court of Appeal] Repeats Donald Marshall in Nova Scotia … Ramey Ayre for Justice in Nova Scotia”; “Apology & Retraction,” Halifax Chronicle-Herald, 18 and 19 June 1998. Mr Justice Hart appeared because he wrote the decision in Ayre’s appeal case. Minutes of executive committee, 3 July 1998; NSBL. “Discipline Temporary Files Re Ayre / Halifax Herald Defamation”: container 749, NSBS. Minutes of council, 14 September 1990; NSBS. See also “Nova Scotia Bar May Open Disciplinary Process to Public,” Canadian Bar Association National (December 1989/January 1990): 8.

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24 “Lawyers to Keep Discipline Hearings Private,” Halifax Chronicle-Herald, 4 May 1992. 25 “And When We Get Behind Closed Doors …,” Canadian Lawyer (August/ September 1992): 9. The editorial, “Secret Society of Barristers,” which appeared in the newspaper on 5 May 1992, accused the law society of being effectively freemasonry. 26 “Report of the President,” NSBS annual report 1991–92. 27 On this subject generally, see “Barristers’ Society Ponders Open Hearings,” Halifax Chronicle-Herald, 16 October 2001. 28 Dean Jobb, “Nova Scotia Barristers’ Society Adopts Regulations to Open Disciplinary Hearings to Public,” Lawyers Weekly (Toronto), 15 February 2002. For the history of the issue, see “Should We Have Closed or Open Discipline Hearings?” NSBS Society Record (October 2001). 29 NSBS Society Record (June 2001), 3. 30 Statutes of British Columbia, 1970, chapter 37, Professional Corporations Act. 31 The report is paraphrased in the annual meeting minutes, 4 July 1970; NSBL. The prime mover behind this initiative was Stewart Drury (1922–2006), who was neither a corporate lawyer nor a partner in a large law firm. He viewed incorporation as the most efficient form of law firm governance, which meant that it was in the public interest, indirectly at least, that law firms should be able to incorporate. 32 NSBS annual meeting minutes, 29 June 1974; NSBL. 33 NSBS annual report 1982–83, 6. 34 Chapter 18 of the Acts of 1995–96. See generally “President’s Column – Incorporation of Law Practices,” NSBS Society Record (October 1994). 35 See committee’s report in NSBS annual report 1995–96, 15. 36 On this subject generally, see Christopher Moore, “Megafirm: A Chronology of the Large Law Firm in Canada,” in Constance Backhouse and W. Wesley Pue, eds., The Promise and Perils of Law: Lawyers in Canadian History (Toronto, 2009), 103–26. 37 “Inter-provincial Law Companies Opposed,” Halifax Chronicle-Herald, 2 July 1983. 38 Halifax’s Kitz Matheson merged with Truro’s Patterson, Smith, Matthews & Grant to become Patterson Kitz. In 1989 Halifax’s Stewart, MacKeen and Covert united with Saint John’s McKelvey Machum to become Stewart McKelvey, then as now the largest law firm in Atlantic Canada. 39 [1989] 1 S.C.R. 591). 40 Minutes of council, 13–14 October 1989; NSBL.

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41 “President’s Report,” NSBS annual report 1996–97, 4. 42 A decade earlier a prominent Halifax lawyer published an article assessing “how the profession has reacted to external forces in the last decade and what the future holds”: Peter G. Green, qC, “The Pressure to Change,” Canadian Lawyer (April 1986): 44–8. 43 “Title Insurance and the Vanishing Profession of Law,” NSBS Society Record (March 1997). 44 Section 16(1). 45 “Report from the President,” NSBS annual report 2000–01. Garson (called 1982), an iconoclast who nearly became a professional football player rather than a lawyer, knew whereof he spoke. In 1987 the executive committee referred to Discipline Subcommittee A a self-promoting newspaper article based on an interview he had given: Michael Doyle, “Garson Loves a Challenge,” Halifax Chronicle-Herald, 16 April 1987. Thirteen years later he was president of the society. Garson was awarded his qC in 1998 and in August 2000, while president of the society, was designated by Canadian Lawyer one of “Ten Lawyers … Who Make a Difference.” 46 “The events of Friday, October 22, further strengthened the feeling of collegiality within our Bar,” NSBS Society Record (December 2004). 47 “Barristers Open Meet,” Halifax Chronicle-Herald, 18 June 1954. The attendance was 120. 48 Minutes of annual business meeting, 18 June 2005; NSBL. 49 NSBS annual report, 2004–05, 4; NSBL.

Ch APtEr S i x 1 Joy Mannette, “The Social Construction of Ethnic Containment: The Royal Commission into the Donald Marshall, Jr Prosecution,” in Joy Mannette, ed., Elusive Justice: Beyond the Marshall Inquiry (Halifax, 1992), 74n6. It is just possible that members of council were among those “who saw the necessity to ‘clean house’ and to do so publicly.” But the matter was never before council, nor did the society ever go on record as advocating a public inquiry. 2 Royal Commission on the Donald Marshall, Jr., Prosecution, Commissioners’ Report: Findings and Recommendations (Halifax, 1989), Appendix 15, 389–98. 3 “Hearing to Adjourn Early Today for Funeral of C.M. Rosenblum,” Cape Breton Post (Sydney), 27 October 1987. 4 “C.M. (Moe) Rosenblum,” Cape Breton Post (Sydney), 28 October 1987. 5 “Reflections: 20 Years after the Marshall Inquiry,” NSBS Society Record (October 2009), 17–25. A number of inquiry official participants contributed, including

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the chair (former Chief Justice Hickman of the Trial Division of the Supreme Court of Newfoundland and Labrador), Marshall’s junior counsel, commission counsel, counsel for the attorney general, and senior counsel for the Union of Nova Scotia Indians. See generally Joy Mannette, ed., Elusive Justice: Beyond the Marshall Inquiry (Halifax, 1992); see also J.A. Mannette, “‘A Trial in Which No One Goes to Jail’: The Donald Marshall Inquiry as Hegemonic Renegotiation,” Canadian Ethnic Studies : Special Issue Atlantic Canada 20(3, 1988): 166–80. In February 1988, while the inquiry was in progress, Dalhousie Law School co-hosted with the School of Public Administration a two-day academic conference, Commissions of Inquiry: Lawyers’ Values and Public Policy-Makers’ Values, the proceedings of which were afterwards published in Paul Pross et al., eds., Commissions of Inquiry (Toronto: Carswell, 1990). No scholarly history of the Marshall case exists. See, for example, Recommendations 13 (“Programs for Law Students, Lawyers, Judges”) and 27 (“Liaison with Bar”); Royal Commission on the Donald Marshall, Jr., Prosecution [hereafter, Marshall Inquiry], Commissioners’ Report / Findings and Recommendations (Halifax, 1989), 156, 177, (“The Society must also educate its members concerning the special needs of Native clients”). Another contributing factor would have been the release in September 1989 of Paul Cowan’s gripping film, Justice Denied. Based on journalist Michael Harris’s Justice Denied: The Law versus Donald Marshall (Toronto, 1986), this National Film Board docudrama had its premiere in Halifax on 26 September 1989. See generally “Justice Denied a Must-See for Most People in N.S.,” Mail-Star (Halifax), 26 September 1989. H. Archibald Kaiser, “The Aftermath of the Marshall Commission: A Preliminary Opinion,” Dalhousie L.J. 13, no. 1 (1990): 364, at 369. MacIntosh put the position very well in his inaugural “President’s Report”: “Historically, our Bar [sic] Society has perhaps placed too heavy an emphasis on professional diffidence, which discouraged us from taking public positions on policy matters that directly impact upon the legal system we serve. Perhaps that reticence has been part of the problem”: NSBS Society Record (SeptemberOctober 1989), 2. MacIntosh looks back on his achievement with pride; his website states, “He led the Nova Scotia Bar in its response to the Marshall Inquiry,” http://www. macmacmac.ns.ca/our-lawyers/bruce-macintosh-qc (accessed 11 August 2013). NSBS council (executive committee) minutes, 16 April 1987. George MacDonald, a partner at what is now McInnes Cooper, was chair of the society’s administration of justice committee. It is difficult to see how he could have held a watching brief for the society while serving as counsel to the inquiry.

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12 NSBS council (executive committee) minutes, 8 September 1988. 13 NSBS council (executive committee) minutes, 6 October 1988. The president, John Moore, was a corporate/commercial and real estate lawyer and partner since 1963 at what was then Stewart, MacKeen & Covert (now Stewart, McKelvey). In February 1989 Moore reported that the executive committee, which as president he chaired, had agreed “in the past not to get involved at this stage in the Marshall Inquiry”: NSBS executive committee minutes, 7 February 1989. 14 NSBS council (executive committee) minutes, 10 November 1989. 15 See generally NSBS council minutes, 28 April 1989 §5(m) Budget for 1989/90 (“A potential special project will be some response to the Marshall Inquiry Report”). 16 “President’s Report,” NSBS Society Record (September-October 1989), 2. 17 NSBS council (executive committee) minutes, 8 December 1989. 18 “Parker Barss Donham, ‘Best Defence Is a Good Offence,’” Sunday Daily News (Halifax), 10 December 1989. 19 “N.S. Barristers’ Society Dismisses Complaint,” CBA National, March 1990. 20 If such a meeting took place, it was held in camera, and no minutes were taken. 21 NSBS council (executive committee) minutes, 12 January 1990. The decision to establish the special committee, recommended by the advisory group, had been taken in December 1989. 22 Quoted in “Society Vows to Restore Faith in System,” CBA, National, February 1990, 3. See also “Lawyers Vow It Won’t Happen in N.S. Again,” Daily News (Halifax), 1 February 1990; “N.S. Legal Society Ready to Clean House,” MailStar (Halifax), 1 February 1990; and “Lawyers in Marshall Affair Face Review,” Cape Breton Post (Sydney), 1 February 1990. 23 The society’s solicitor did not mince words, writing to Bruce MacIntosh, “Your statement that your views do not reflect the general attitude of the Bar is quite correct. I have the feeling that most members of the Bar have reacted negatively to portions of your press release and that the Society is perceived by many of its members to have embarked on a witch hunt”: Stern to MacIntosh, 4 April 1990, in “Marshall Inquiry Report – Disciplinary Investigation” (NSBS file). 24 The society’s then–second vice-president was afterwards reported as having been told by a senior partner in one of the big Halifax firms of the “negative feelings” of the judges toward the society’s response to the Marshall Inquiry Report; NSBS council (executive committee) minutes, 7 September 1990. 25 Report to the Canadian Judicial Council of the Inquiry Committee Established Pursuant to Subsection 63(1) of the Judges Act at the Request of the Attorney

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27 28

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32 33 34 35 36 37 38 39

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General of Nova Scotia (27 August 1990). See “Marshall Judges Ruled Insensitive. Will Be Allowed to Stay on Bench despite Unprecedented Rebuke,” Globe and Mail (Toronto), 6 October 1990; “Council Chides Marshall Judges for Blaming Him,” Toronto Star, 6 October 1990. NSBS council minutes, 23 February 1990; NSBL. Of the commissioners’ 82 recommendations, only two had anything to do with the society, and not even they merited a heading identifying the society as concerned in either recommendation. The society was not a “player” in the inquiry, and its retrospectively attempting to become one was a high-policy or political decision taken with a view to reducing or neutralizing the report’s impact on the legal profession. “Marshall Inquiry Report a Bombshell in N.S. Justice System,” Lawyers Weekly (23 February 1990): 16. One such was the former director of prosecutions in the criminal branch of the Department of the Attorney General at the time of Marshall’s prosecution. Appointed to the bench in December 1971, Robert Anderson was one of several sitting judges to testify at the inquiry. Of course, they were all speaking to events occurring while they were still at the bar. “We have done a detailed analysis of the actions of each of the seven members that were the subject of criticism by the Commissioners. Individual reports and recommendations are attached for each of these lawyers”: Alan Stern to F.B. Wickwire, 20 March 1990. (This and what follows, unless otherwise indicated, are based on the file “Marshall Inquiry Report – Disciplinary Investigation”; NSBL. Alan Stern to F.B. Wickwire, 20 March 1990. Memorandum, F.B. Wickwire to File (“Dealing with the Marshall Report in the context of the Society’s Disciplinary Machinery”), 4 April 1990. See also Goodfellow (first vice-president) to MacIntosh (“Re Gordon Coles et al.”), 1 May 1990. Memorandum, Wickwire to File, 4 April 1990. Marshall Inquiry, Digest of Findings and Recommendations, 7. “McInnis Opens Door for Possible Legal Action – Ag ‘Deeply Troubled’ Coles Not Fired,” Micmac News (Truro), February 1990, 29. Emphasis added. NSBS Annual Report, 1989–1990, 1. The new president had had to resign on being appointed to the bench, and Wickwire, as first vice-president, succeeded him. “An Issue of Substance,” NSBS Society Record (August 1990), 2. NSBS council (executive committee) minutes, 14 December 1990.

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40 “Caution means a determination that a member has breached the standards of legal ethics or professional conduct expected of members but in circumstances where such breach does not constitute misconduct, conduct unbecoming or incompetence”: Nova Scotia Barristers’ Society Regulation 39(a). 41 NSBS council minutes, 18 January 1991; NSBL. 42 Sandy Seale was the black youth and acquaintance of Marshall’s whom he was accused of having murdered. 43 “President’s Column,” NSBS Society Record (November 1990), 5. 44 It was, however, published verbatim in Micmac News (22 March 1991): “Nova Scotia Barristers’ [Society] Inquiry Results.” 45 F.B. Wickwire, qC, “The Nova Scotia Barristers’ Society’s Review of the Conduct of Its Members Criticized in the Report of the Royal Commission into Donald Marshall, Jr. Prosecution” (11 March 1991). 46 “Society’s Review,” 4; emphasis added. 47 These articles appeared in Cape Breton Post (Sydney), Chronicle-Herald (Halifax), Daily News (Halifax), Mail-Star (Halifax), and Micmac News (Truro), 14–22 March 1991. 48 “Editorial,” Daily News (Halifax), 15 March 1991. 49 “No-Fault Nonsense,” Sunday Daily News (Halifax),17 March 1991. 50 “Top Lawyer Ted Wickwire Was ‘Legal Leader,’” Daily News (Halifax), 23 March 1991. 51 For some reason, no minutes were taken of this historic meeting, and the memorial resolution not recorded. 52 Lorne O. Clarke, as quoted in “Wickwire Remembered by Colleagues,” Chronicle-Herald (Halifax), 29 March 1991. 53 Afterwards Justice Jamie W.S. Saunders of the Nova Scotia Court of Appeal. 54 “Reflections on the Royal Commission,” NSBS Society Record (October 2009), 21. 55 Darrel Pink, then in private practice, served as counsel for the Department of the Attorney General during the Marshall Inquiry. 56 Darrel Pink, email to author, 21 November 2012. 57 [Nova Scotia Barristers’ Society, Race Relations Committee], Pursuing the Law: The Experiences and Perceptions of African, East Indian and Caucasian Canadians in Becoming Lawyers and in Practice in Nova Scotia (Halifax, 1997), 14. 58 NSBS council minutes, 18 October 1996; NSBL. There had never been a black lawyer member of council; the participation of black people had been limited to tokenist lay membership. 59 “Minority Legal Policy Needed – Pink,” Chronicle-Herald (Halifax), 4 December 1998.

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60 Dean Jobb, “N.S. Bar Blasts Proposal to Force More Hiring of Blacks, Natives,” Lawyers Weekly (27 October 2000): 24. 61 Workplace Equity and Private Law Firms: Nova Scotia Barristers’ Society Response to “Fostering Employment Equity and Diversity in the Nova Scotia Legal Profession” [August 2000]; NSBL Historical File, “Employment Equity.” The EEgC was established by Liberal Premier Russell MacLellan (a lawyer) in February 1999. 62 Commissioners’ Report, Findings and Recommendations, 148. 63 Workplace Equity and Private Law Firms, 5. 64 Gail Rudderham Chernin, qC, email to author, 2 August 2013. For Chernin’s testimony, see Commissioners’ Report, 21. The episode to which she refers is recounted in Michael Harris, Justice Denied: The Law versus Donald Marshall (Toronto, 1986), 40.

Ch AP tEr S EvE N 1 Mark M. Orkin, “Professional Autonomy and the Public Interest: A Study of the Law Society of Upper Canada” (unpubl. jSD thesis, York University, 1971), 186. 2 Chapter 7 of the Acts of 1952 was passed in March 1952 and came into force on royal assent; there was no proclamation. 3 Statutes of Nova Scotia 1941 c. 52, 1944 c. 41, 1945 c. 64, and 1946 c. 44. In all four instances, however, the amendments were substantive. 4 See generally NSBS council minutes, 22 January 1952; council minutes July– December 1951 are lost. 5 See, for example, NSBS, minutes of annual meeting, June 1974 , 4; NSBL. The solicitor was expressing concern about the vagueness of the BSA’s definition of the practice of law, untouched or nearly so since 1944. 6 See also the Consolidated Statutes, 1979, Chapter B-2. 7 Council could not always get desired or necessary amendments to the BSA introduced in the legislature in a timely manner – council minutes, 23 June 1989; NSBL. In 2002 the society drafted a class actions bill and placed it before government with a view to enactment. A Class Proceedings Act was not passed until 2007. 8 Chapter 28 of the Acts of 2000, Justice and Administration Reform (2000) Act, Part II. 9 “President’s View,” NSBS Society Record (July 2001), 8. 10 “The council of the Barristers’ Society are hereby authorized to make rules and regulations for preserving and enforcing the honour and discipline of the bar,” S.N.S., 1885, c. 20, s. 4.

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11 Nova Scotia Barristers’ Society Executive Director office file. 12 NSBS council minutes (annual planning session), 22 June 2001; appended to council annual plan, 2001–02. 13 “Review of the Barristers and Solicitors Act” [Annual Plan Highlights], NSBS Society Record (August 2001), 1. 14 Law Society Act, S.N.B., 1996, c. 89. The executive director had learned as much by consulting with his opposite number in Fredericton. See generally council (executive committee) minutes, 6 July and 7 September 2001. 15 Council (executive committee) minutes, 6 July 2001. 16 She was assisted by Michelle Higgins. In September 2013 Marjorie Hickey was honoured with the society’s Distinguished Service Award (“She was actively involved in the drafting of the Legal Profession Act and its Regulations”). 17 Memorandum, 28 January 2002, executive director to File (“Amendments to Barristers and Solicitors Act”); NSBS office files. 18 NSBS council minutes and background materials, 22 March 2002; NSBL. 19 NSBS council minutes, 24 May 2002; NSBL. A weird feature of the very first sentence of the discussion paper’s introduction was antedating passage of the BSA by some forty years, to 1858, when the society, then a private body with no role whatsoever in professional regulation, was incorporated (“Changes which have been made to the Barristers and Solicitors Act … since its initial passage in 1858”). The error, once made, was endlessly repeated. For example, the first draft (September 2002) of Nova Scotia’s LPA commenced with a six-clause preamble, afterwards deleted, which included as its first recital, “WHEREAS the legal profession has been independently governed by the Nova Scotia Barristers’ Society since 1858.” The tendency to confuse law society incorporation (1858) with professional self-regulation (1899) was perhaps understandable, given the loss of records and the pervasive ignorance of the society’s history that resulted. 20 “Discussion Paper,” 43; Historical File – Legal Profession Act; NSBL. June’s issue of the society’s journal, published just before the annual meeting, featured the discussion paper – “Revisions to the Barristers and Solicitors Act,” Society Record (May/June 2002), 1. 21 For this and what follows, see NSBS, executive committee minutes, 19 July 2002. 22 The society was incorporated in 1858; the BSA was enacted in 1899. 23 “Future Challenges,” NSBS Society Record (August 2002), 1. 24 The Legal Profession Act, Statutes of Manitoba, 2009, Chapter 44; Continuing Consolidation of the Statutes of Manitoba [CCSM], c. L107. A copy of Bill 48 was easily found on and copied from the Manitoba legislature website.

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25 Exactly when and by whom the decision was made is not clear, since executive committee minutes are silent on the point and the matter was never before council. 26 NSBS, executive committee minutes, 19 July 2002. 27 “Future Challenges,” 3. It is clear from his remarks that Larkin had been studying the Manitoba LPA. 28 A provision removed from the BSA in the 1939 consolidation. 29 http://web2.gov.mb.ca/bills/37-3/b048e.php (accessed 30 May 2014). 30 Both structure- and content-wise, the early drafts of Nova Scotia’s LPA followed Manitoba’s very closely. 31 For this and what follows, unless otherwise indicated, see NSBS, council minutes, 22 November 2002. 32 NSBS, council minutes, 22 November 2002; NSBL. 33 The society was incorporated in 1858; the BSA was enacted in 1899. 34 Raymond F. Larkin, qC, to members, 18 December 2002 (emailed letter), copy among executive committee meetings tabled material. On that date a similar letter went out to the heads of six other self-regulating professions. 35 Raymond F. Larkin to “Dear Member,” 6 January 2003. 36 What had existed since 1977 was a form of judicial review in which the appeal court could “intervene” at any point in complaint investigation proceedings, or after order made, on the application of any party. The power was rarely exercised. 37 NSBS, council minutes, 23 May 2003; NSBL. 38 Executive Director (Pink) to Jennifer L. Palov, 29 May 2003; NSBS office files – LPA Correspondence. 39 That is, the Department of Justice and the office of Legislative Counsel. 40 NSBS, council minutes, 23 January 2004; NSBL. 41 This way of thinking was well articulated by Gail Rudderham Chernin in her “President’s View” column in which she posed the question, “What lessons can we learn from our Commonwealth friends?” : “Keeping Our House in Order,” NSBS Society Record (February 2004). 42 Richard Devlin and Jocelyn Downie, “Self-regulation in the Shire,” NSBS Society Record (February 2004), 18. See also sources cited in endnotes. Ironically, when in 2001 the executive committee was trying to decide how to move the project forward, they considered inviting interested members of the Faculty of Law at Dalhousie to undertake it. For some reason the idea did not fly. Had it done so, a very different LPA might have resulted. 43 Once again the incorporation of the society in 1858 and its achievement of professional self-regulation in 1899 are conflated.

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44 Richard F. Devlin et al., “The End(s) of Self-Regulation?” Alta. L. Rev. 45, no. 5 (2008): 169, at 171. Nor is Devlin correct to argue, as he does elsewhere, that the most significant of the many changes that the transition from BSA to LPA involved “was the abandonment of the dual mandate – to regulate in the public interest and to promote the interest of the profession (an obvious and embarrassing conflict of interest)”: Richard Devlin et al., “Re-calibrating, Revisioning and Re-thinking Self-Regulation in Canada,” Int’l J. Legal Prof. 17, no. 3 (2010): 233, at 235. Both before and after the advent of self-regulation in 1899, the society only ever had a unitary mandate, though two quite separate and different and not necessarily connected. Before 1899 it was to protect the professional interest. Afterwards it was safeguarding the public interest, which was the quid pro quo for achieving professional self-regulation. In that regard the LPA was nothing new. It simply continued what had been the case since enactment of the BSA in 1899. 45 For this and what follows, see NSBS, council minutes, 24 September 2004; NSBL. 46 Subclause 36(2)(h) of the bill as passed read, “where a review conducted pursuant to clause (g) [“order a review of the practice of a member of the Society to be carried out by any person or persons”] identifies inadequacies in the member’s practice or conduct that pose a substantial risk that the member will face disciplinary action in the future, assist the member to remedy those inadequacies.” 47 Government of Nova Scotia news release, “Legal Profession Act Introduced” (Department of Justice, 8 October 2004). 48 Nova Scotia Legislature, Debates and Proceedings of the House of Assembly (“Hansard”), 15 October 2004, 5671. 49 Hansard, 15 October 2004, 5675. 50 Hansard, 15 October 2004, 5678. 51 Hansard, 15 October 2004, 5681. 52 The loss of almost all the records antedating passage of the Barristers and Solicitors Act, 1899, led to collective amnesia and created the conditions under which mythopoeia could thrive. 53 Hansard, 18 October 2004, 5765. 54 Hansard, 18 October 2004, 5765–6. 55 Chapter 28 of the Acts of 2004. 56 NSBS council (executive committee) minutes, 3 December 2004. See also Memorandum, Executive Director to Executive Committee, 2 November 2004, “Legal Profession Act [next steps].”

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57 NSBS council minutes, 22 April 2005; NSBL. 58 Executive Director (Pink) to Deputy Minister of Justice (Keefe), 29 April 2005; file “Barristers and Solicitors Act – Correspondence – 2003–2004,” NSBL. 59 Douglas Keefe to Darrel Pink, 16 May 2005; NSBS file “Request for Proposals – Barristers and Solicitors Act, 2001–03.” The issue seemed to turn on the new statutory fitness to practise committee whose expansive powers in relation to medical fitness were set forth in Subsection 36(2A) of the LPA. 60 Ronald J. MacDonald to Douglas Keefe, 17 May 2005; NSBS office files – LPA correspondence. The fitness task force was established in August and reported in 2006. 61 Nova Scotia Executive Council Office, Order in Council 2005–211 (27 May 2005). 62 For some reason, Mark McCrea (2001–02), during whose presidency the project commenced, was not included. 63 Raymond Larkin, “The New Legal Profession Act,” NSBS Society Record (June 2005), 13. In fact, the first comprehensive review of the BSA had taken place in 1939. 64 “You Be the Judge,” NSBS Society Record (June 2005), 32. 65 See Government of Nova Scotia news release, “Amendments Introduced to Legal Profession Act” (Department of Justice, 4 May 2010). 66 Nova Scotia Legislature, Legal Profession Act (amended), first reading, 4 May 2004, http://nslegislature.ca/legc/bills/61st_2nd/1st_read/b063.html. 67 Hansard, 10 May 2010, 2255–8. 68 AjEFNE (past president) to director, Legal Services Division, 29 November 2010; Nova Scotia Legislature, Committee on Law Amendments, 2010, Bill No. 63, written submission. 69 The “Purpose,” as amended, now forms clause 4(d) of the LPA. 70 AjEFNE, Rapport des activités 2010–2011, 5. 71 Chapter 56 of the Acts of 2010. 72 “Of Lawyers, Pickled Fish, Clotheslines and Elections,” NSBS Society Record (February 2011), 5. 73 2015 NSSC 25. 74 Respondent’s brief, 18 (paragraph 68), http://nsbs.org/twu-public-input.

Ch APtEr E i ght 1 In February 1912, eight days before his second term as president of the society ended, Ritchie, a former law partner of R.L. Borden, was appointed by

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Borden, who had become prime minister in October 1911, a puisne justice of the Supreme Court. Late in his career Harold Munro Chase would become honorary president of the society. The arrangement was not made statutory until 1939. Bye-laws of the Nova Scotia Barristers’ Society (Halifax, 1861). Regulations were enacted two days after the act came into force on 1 July: Rules and Regulations of the Nova Scotia Barristers’ Society (Halifax, 1899). See especially s. 56. BSA, s. 79. Statutes N.S., 1899, chapter 27, s. 44; hereafter BSA. NSBS Regulations, 1914, §11 is probably a mirror image of the corresponding 1904 provision. Members of council at the time were Robert L. Borden, MP (president), Arthur Drysdale (vice-president), Byron A. Weston (treasurer), Charles Sidney Harrington (former president), Robert E. Harris (future president and chief justice of NS), Frederick Tennyson Congdon (digester), Humphrey Mellish (future president), and Daniel McNeil. The two vacant positions on council had not yet been filled. Interpretation, seat of the society, seal, meetings, secretary, treasurer, library, preliminary examination, intermediate examination, final examination, general provisions as to examinations, admission of barristers and solicitors, forms, fees, and repeal. A schedule provided the prescribed forms. The Barristers and Solicitors Act and the Rules and Regulations of the Nova Scotia Barristers’ Society … (Halifax, 1914), §§11 through 18. Barristers and Solicitors Act (R.S., 1923, chapter 112), s. 56. Statutes N.S., 1923, c. 29. Statutes N.S., 1946, c. 44, s. 4. Statutes N.S., 1958, c. 22. Statutes N.S., 1965, c. 20, s. 9. Statutes N.S., 1939, c. 9, s. 44(j). Statutes N.S., 1970, c. 29, s. 5. Statutes N.S., 1970–71, c. 28, s. 2. Dalhousie Legal Aid was the first clinical law program in the country. See generally the February 2005 issue of NSBS Society Record (“Celebrating Dalhousie Legal Aid Service’s 35 Years of Commitment to the Community”); see also Joan M. Dawkins, “Living to Fight Another Day: The Story of Dalhousie Legal Aid,” Journal of Law and Social Policy 3 (1988): 1–20.

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Statutes N.S., 1980, c. 25, s. 4. Statutes N.S., 1983, c. 17, s. 7. Statutes N.S., 1990, c. 25, s. 2. Statutes N.S., 1992, c. 13, s. 5. At the time, lay members were appointed by council, the members-at-large were elected by ballot of the entire bar, and the district members were acclaimed after nomination by the nominating committee in the case of Halifax County and elsewhere designated by the local or county bar associations. Statutes N.S., 2000, c. 28, s. 5(1)(a). Not until 1977 was membership in committees thrown open to society members, though council retained – and still retains – the power of appointment and now also appoints the chair. The president of the society is an ex officio member of all committees. (Ordinary members of the society became eligible for appointment to the discipline committee in 1983.) The 1914 text almost certainly reproduces that of the lost 1904 iteration (“The Council, at its first regular monthly meeting after the annual meeting of the Society, shall from among its members appoint three committees of three each, viz. …”): NSBS Regulations, 1914, §18. The provision was imported into regulations made under the Legal Profession Act, 2004 (§2.9 Committees). Statutes N.S., 1941, c. 52, s. 1. BSA Regulations, 1939, §14(a)-(d). See, for example, the discussion in council, 1 April 1941, as per the minutes. See, for example, minutes of council, 7 May 1914; NSBL. The Barristers and Solicitors Act, 1899, §57. Statutes N.S., 1908, c. 23, s. 6. Rules and Regulations of the Nova Scotia Barristers’ Society (Halifax, 1940), 18–9; §§ 53–59. Minutes of council, 15 November 1923; NSBL. In re Moseley, (1924) 57 N.S.R. 209. The judges sitting for the appeal included three former presidents of the society. Minutes of council, 6 January, 23 April and 28 June 1926; NSBL. That is, services to members; initially in relation to group liability insurance. Minutes of council, 24 May 1984; NSBL. Administration of justice committee, client compensation fund committee, complaints investigation committee, credentials committee (formerly qualifications and bar admission course), executive committee, finance committee, hearing committee, gender equity committee, ethics and

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professional responsibility committee, nominating committee, professional standards committee, race relations committee, trust accounts committee, and unauthorized practices committee. §2.9.1(e). The regulations were enacted on 31 May 2005. §2.9.1(g); regulations as amended to 25 April 2014. Minutes of council, 23 March 1990. Section 6(1).

ChAP tEr N iN E 1 Council minutes of the time do not survive. 2 Minutes of council, 31 May, 30 June, 18 July, 14 and 22 November 1950; NSBL. 3 The society did not forget Eileen MacLean (Mrs George Yates). When she died prematurely in 1979, 27 years after her departure from the province, council passed a memorial resolution: “Eileen was a member of the Dalhousie Law School class of 1948 and was the only female member of that class. Shortly after graduation, she served with distinction for several [!] years as secretarytreasurer of the Nova Scotia Barristers’ Society. During the period in which she held that post, she was responsible for substantial improvements in the operation and efficiency of the society offices and for a renewed interest and enthusiasm in society affairs by the general membership”: minutes of council, 18 January 1980; NSBL. 4 Private information. Balcom gave up the practice of law, eventually emigrating to New York State, where he died prematurely, age fifty, in 1977. 5 Minutes of council, 12–13 May 1972; NSBL. 6 NSBS annual report 1971–72, 8; emphasis in original. 7 Minutes of semi-annual meeting, 16 November 1973; NSBL. 8 NSBS annual report 1973–74, 3. 9 Minutes of council, 19 July 1974; NSBL. So onerous was it that Professor Meagher found that he could not be both the society’s solicitor and the discipline committee’s solicitor in addition to his “day job” – and resigned. 10 Minutes of council, 22 November 1974; NSBL. Lois Dyer Mann’s online biography makes no mention of her having been the first executive director of the Nova Scotia Barristers’ Society: http://www.kbrs.ca/our_team/lois-dyermann (accessed 25 March 2014). 11 Private information.

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301

12 Statutes N.S., 1980, c. 25, s. 2. The position description made clear that this new “senior staff member” should preferably be a lawyer: “Position Available,” NSBS Society Record, March 1980. 13 NSBS Regulations 1979, Tab 5; NSBL. 14 Minutes of council, 19 November 1982; NSBL. 15 See, for example, Memorandum to Administrative Review File from SecretaryTreasurer, 23 November 1988, re Reasons for an Administrative Review Performed by Outside Consultant; NSBS office files. Gail Salsbury pointed out that the society had outgrown its administrative structure and that the workload had therefore become unsustainable. 16 See generally executive committee minutes, 6 October and 17 November 1988; NSBS. 17 Doane Raymond, now merged in Grant Thornton, was a Halifax firm of chartered accountants with whom the society had had a long relationship. 18 Minutes of council, 25 November 1988; NSBL. 19 Minutes of council, 25 November 1988; NSBL. 20 This and what follows, unless otherwise indicated, are based on Doane Raymond [Management Consultants], Nova Scotia Barristers’ Society Administrative Review report (1989). 21 Minutes of council, 24 November 1989; NSBL. 22 Phase three letter of transmittal, 17 November 1989. 23 President of the society in 1975–76, Bill Mingo had been in the forefront of efforts to modernize governance; the formation of an executive committee, appointment of an executive director, and establishment of a planning committee were all his brainchildren. “This report may sound complacent, but it should be remembered that, when he was president, Mingo did a great deal to improve and modernize our organization” – A.G. MacDonald, “Structure of the Society” (February 1983); NSBS office files. 24 “Report on Business,” Globe and Mail (Toronto), 11 October 1989. 25 Minutes of council, 1 December 1989; NSBL. 26 Statutes N.S., 1990, c. 25. 27 Administrative Review, Phase Four; NSBS office files. 28 Executive director original contract (1990), Appendix A; NSBS office files. 29 LPA §9.1. 30 LPA Regulations §2.1.1. 31 NSBS annual report 1989–90, 3; NSBL. 32 Emphasis in the original.

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33 Peter G. Green, qC, to society members, 11 February 1993; NSBS office files. 34 NSBS, Final Report of the Committee to Review Society Programs (June 1993), §1.7.2.6 “Role of Council,” 35. 35 Final Report of the Committee to Review Society Programs, Appendix A, Terms of Reference, §4. 36 “The Objects of the Society,” Final Report of the Committee to Review Society Programs, 3. 37 NSBS annual report 1993–94, 1. Cf. “One of the most common complaints I hear about the Society from members is that it costs too much because there are too many staff. Some of our more senior members say Lexie McKay ran it all herself and did it well for [ten] years, so why can’t it be the same now?”: “President’s Column – Responding to the Program Review Report,” NSBS Society Record (July 1993), 3. Those same senior members could hardly have forgotten that latterly Miss McKay was not running the society well precisely because she was running it all herself and for that very reason an executive director was hired to run Miss McKay. 38 Minutes of council, 23 September 1994; NSBL. 39 Deloitte & Touche, Nova Scotia Barristers’ Society Management Review (December 1994), 1. 40 Ibid., 17. 41 This ultramontane view of the prerogative of the executive committee, which was sometimes referred to – half in fun, wholly in earnest – as the “board of directors,” is reflected in the final report of program review: “The members of the Executive Committee are the leaders of the Bar”: Final Report of the Committee to Review Society Programs (§1.7.2.1), 30. 42 Executive Director (Pink) to President (Garson), 8 August 2000; NSBS office files. 43 Minutes of council, 22 October 1999; NSBL.

Ch AP tEr tE N 1 “Legal Education,” Proceedings of the Third [1918] Annual Meeting of the Canadian Bar Association, 118–19. Quoted in John Willis, A History of Dalhousie Law School (Toronto, Buffalo, London: UtP, 1979), 22–3, and paraphrased in P.B. Waite, The Lives of Dalhousie University, vol. 1, 1818–1925: Lord Dalhousie’s College (Montreal & Kingston: McGill-Queen’s University Press, 1994), 138. 2 Statutes N.S., 1872, c. 19 (passed 18 April 1872).

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303

3 See generally John P.S. McLaren, “The History of Legal Education in Common-Law Canada,” in Roy J. Matas and Deborah J. McCawley, eds., Legal Education in Canada (Montreal, 1987), 111, at 112. See also “Setting the Stage: Structures and Ideologies of Legal Education in Ontario, Québec and Nova Scotia since the Mid-Nineteenth Century,” being Chapter 1 of Melanie Pascale Brunet, “Becoming Lawyers, Gender, Legal Education and Professional Identity Formation in Canada, 1920–1980” (unpubl. PhD thesis, University of Toronto, 2005), 28–82. Especially useful for comparative purposes is D.G. Bell, Legal Education in New Brunswick: A History (Fredericton, 1992). 4 Rules of the Society of Nova Scotia Barristers (Halifax, 1825), 10. 5 On this subject generally, see Bell, Legal Education, 1–31. 6 See generally Philip Girard, “The Roots of a Professional Renaissance: Lawyers in Nova Scotia 1850–1910,” Manitoba Law Journal 20 (1991): 148 [also appeared in Dale Gibson and W.W. Pue, eds., Glimpses of Canadian Legal History (Winnipeg: Legal Research Institute, 1992)]. 7 Acadian Recorder (Halifax), 4 February 1860. 8 Statutes N.S., 1860, c. 35. 9 Royal Gazette (Halifax), 6 June 1860. 10 4. R.S.N.S., 1864, c. 130 s. 10 (“Of Barristers and Attorneys”). 11 For a brief discussion, see Willis, Dalhousie Law School, 23. 12 While it would be going too far to assert that it was officially a project of the society, Halifax Law School was almost certainly inspired by, if not based on, the second incarnation of Osgoode Hall Law School – the “Law School of Ontario” – which existed from 1873 to 1878. Contrary to Professor Willis’s account (Dalhousie Law School, 23–4), Halifax Law School was not the initiative of young lawyers but of senior members of the Halifax bar, three of whom were members of council and another the immediate past secretary of the society. It was not intended to be “technical or vocational,” and the likely reason for its failure was politics, not lack of money. (For the act of incorporation see Statutes N.S., 1874, chap. 90.) 13 Revised Statutes N.S. (5th ser.), 1884, c. 108, s. 13. In this regard Nova Scotia lagged behind neighbouring New Brunswick, which in 1867, without consulting the law society, had made New Brunswick the first Canadian jurisdiction to recognize the LLB; Statutes N.B., 1867, c. 7. See [D.G. Bell], The Law Society of New Brunswick: An Historical Sketch (Fredericton, 1999), 5, 9; idem et al.; “Travis, Jeremiah,” in Dictionary of Canadian Biography, vol. 14, 1911–1920 (Toronto, Buffalo, London, 1998), 1,004; and Bell, Legal Education, 43–50.

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14 Statutes N.S., 1881, c. 18. 15 Honourable Mr Justice Mark R. MacGuigan, “The Public Dimension in Legal Education,” Dalhousie L. J. 12, no. 1 (1989): 85, at 86. The error derives from C. Ian Kyer and Jerome E. Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers and Legal Education in Ontario (Toronto, 1987), 49. The Nova Scotia Barristers’ Society did not “operate under legislative authority to control preparation for the bar” until 1899, sixteen years after Dalhousie Law School began operating. The most likely reason that the society’s attempt to set up its own law school failed is that the Liberal government of the day was opposed to any initiative taken by the society. It would not have helped matters that the president of the society at the time, Hiram Blanchard, was the leader of the opposition Conservatives. 16 Nova Scotia Legislature, Debates and Proceedings of the House of Assembly [“Hansard”], 4 April 1881 (p. 130). 17 Nova Scotia Legislature, House of Assembly, Legislative Council, Journals, 1881. The council was the unelected senate of Nova Scotia’s then-bicameral legislature. 18 Statutes N.S., 1887, c. 24, s. 1. For context, see Willis, Dalhousie Law School, 42. 19 Stenographic report of the debates on second and third reading of the bill to amend the Barristers and Attorneys Act: “Provincial Parliament,” Morning Chronicle (Halifax), 14 May 1887. 20 Hansard, 23 April 1887. 21 Hansard, 25 April 1887. 22 Statutes N.S., 1891, c. 22, s. 4. 23 Statutes N.S., 1892, c. 14. 24 Longley, minister without portfolio, was one of the commissioners for revising and consolidating the statutes. 25 It perhaps comes as no surprise that Weldon’s death in 1925, despite his having been a member of the Bar of Nova Scotia for forty years and dean of the law school for thirty, was ignored by the society – this at a time when lawyers of far less distinction routinely received substantial memorial records in the minutes of council. Weldon, the perpetual outsider, was far more popular in the collective memory of his students than with the powers that were in the society. Concerning Dean Weldon, see Philip Girard, “Weldon, Richard Chapman,” Dictionary of Canadian Biography, vol. 15, 1921–1930 (Toronto, Buffalo, London, 2005), 1,064–7, and sources cited in the bibliography. 26 Statutes N.S., 1895, c. 30, s. 1. 27 NSBS Regulations, 1899, §§36–8.

NOtES tO PAgES 174–80 28 29 30 31 32 33 34 35 36 37

38 39 40 41 42 43 44 45 46 47 48 49 50 51

52 53 54

305

Willis, Dalhousie Law School, 73. Minutes of council, 5 January 1912. Minutes of council, 7 November 1912; NSBL. Willis, Dalhousie Law School, 71–3. Ibid., 73. Minutes of council, 17 March 1913; NSBL. Calendar of Dalhousie University … 1913–1914 (Halifax, 1913), 73–4. See Minutes of council, 12, 20, and 27 March 1914; NSBL. Willis, Dalhousie Law School, 72. Calendar of Dalhousie University … 1914–1915 (Halifax, 1914), 78–9. It includes the following statement: “If a student have taken and passed the Law School examination in Practice and Procedure previous to October 1908, he is exempted from the Bar[risters’] Society’s examination in ‘Procedure and Practice.’” Waite, Lord Dalhousie’s College, 228–31. Statutes N.S., 1920, c. 27. Statutes N.S., 1923, c. 29. [Annual] Report of the Council of the Nova Scotia Barristers’ Society, 21 July 1931; NSBL. Statutes N.S., 1933, c. 36. Statutes N.S., 1935, c. 29. Minutes of council, 4 April 1933 – new Regulation 47A; NSBL. V.C. MacDonald was the first full-time law teacher in Canada to became a superior court judge. Minutes of council, 3 November 1936; NSBL. This unpublished paper is available in the Archives of the Law Society of Upper Canada (Osgoode Hall, Toronto). Minutes of council, 6 February 1940; NSBL. MacDonald, “Bar Admission Requirements” (typescript), 16. V.C. MacDonald, “Professional Aspects of Legal Education” (1950) Can. Bar Rev. 160, at 166. Justice V.C. MacDonald, “A National Law School” (unpubl. convocation address, Dalhousie University, 1952), in Willis, Dalhousie Law School, Appendix III, 266. Articled Clerks Regulation (§28); Rules and Regulations of the Nova Scotia Barristers’ Society (Halifax, 1940), 12. “Bar Refresher,” historical files; NSBL. Paraphrasing “Refresher Course for Ex-Service Members,” Annual Report of the Council of the Nova Scotia Barristers’ Society (21 February 1946); NSBL.

306 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74

75 76

77

NOtES tO PAgES 180–4

On this subject generally, see Willis, Dalhousie Law School, 160–2. Minutes of council, 6 April 1944; NSBL. Report appended to minutes of annual meeting, 31 May 1950; NSBL. Minutes of council, 14 July 1950; NSBL. Minutes of council, 20 December 1950; NSBL. Minutes of council, 22 June 1952; NSBL. NSBS Regulations 1952, §33(c). See, for example, minutes of council, 21 October 1967; NSBL. Minutes of council, 21 January 1966; minutes of annual meeting, 1–2 July 1966; NSBL. Minutes of council, 15 May 1970; NSBL. Wholesale revision of Regulations §§14–20 (“Admission to the Bar”) also entrenched the bar admission course. NSBS Regulations 1952, §28(a). NSBS Regulations 1954, §28(b). See minutes of council, 16 July 1954; NSBL. NSBS Regulations 1964, §15. Minutes of council, 20 May 1966; NSBL. Murray Fraser, “N.S. Bar Admission Course?” Ansul (Dalhousie Law School), February 1969. “Fish or Cut Bait: An Open Letter to Members of the Nova Scotia Barristers’ Society,” Ansul (Dalhousie Law School), February 1969. Minutes of council, 21 April 1967. See minutes of council, 17 November 1967, 19 January 1968; NSBL. Minutes of council, 18 April 1969; NSBL. NSBS, Annual Report 1968–1969, 5; NSBL. A detailed report on legal education appears in the society’s annual report to the Conference of Governing Bodies of the Legal Profession in Canada, appended to minutes of council, 18 July 1969; NSBL. NSBS Regulations 1979 §8(1)(e). Minutes of council, 19 September 1969; NSBL. During the course of the biannual meeting, February 1972, the president of the society remarked that no other law society in Canada enjoyed as good a relationship with their law school as the Nova Scotia Barristers’ Society did with Dalhousie Law School. In his farewell letter to the society, Murray Fraser stated, “the very strong relationship between the Bar and the School is a strength unique in Canada, and we hope that the Law School and its facilities will continue to serve the Bar in the future”: Fraser to President (A.W. Cox), excerpted in minutes of council, 16 June 1972; NSBL. Minutes of council, 20 January 1973; NSBL. Cf. A.L. Caldwell, “The Nova Scotia Barristers’ Society,” Ansul (Dalhousie Law School), March 1973, 11.

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307

78 Undated fragment from Nova Scotia’s report, probably to the meeting of the Federation of Law Societies of Canada in Winnipeg in early February 1973, which the immediate past president, the president, the secretary-treasurer, and the society’s solicitor all attended. 79 Quoting and paraphrasing Law Society of Upper Canada, Report of the Special Committee on Legal Education (Osgoode Hall, 1972), 37 (Recommendation 7). 80 Dalhousie Law School Memorandum TO Faculty of Law FROM Acting Dean RE “Some Reflections on Skills Training” DATE 25 March 1993: NSBS, Bar Admission Course Review Committee 1993/94 file, container no. 236. 81 Minutes of council, 20 January 1978; NSBL. 82 See generally Willis, Dalhousie Law School, 241–2; minutes of council, 20 February 1976; and minutes of biannual meeting, 6 February 1976; NSBL. The “optionalized” curriculum had been a work-in-progress since 1969. 83 “Report on Behalf of the Nova Scotia Barristers’ Society to the Conference of Governing Bodies of the Legal Profession in Canada, Annual Meeting, Ottawa, 3 September 1969” (appended to minutes of council, 18 July 1969), 1. 84 Minutes of council, 20 February 1976. See also Willis, Dalhousie Law School, 241–2; Willis seems under the mistaken impression that policy decisions for the society were taken by general meetings. Their role was to brainstorm, not decide. 85 Minutes of council, 19 December 1977; NSBL. No such report is known to exist. 86 NSBS Regulations 1979, §8(1)(p). 87 A nod at continuing professional development, an area in which Dalhousie Law School a few years earlier had been a pioneer. 88 NSBS annual report 1977–78, 40. 89 NSBS annual report 1991–92, 16 90 MacLennan Commission, Order in Council 83-167 (10 February 1983). 91 For this and what follows, unless otherwise indicated, see minutes of council, 16 September and 22 October 1983 (“Brief to Royal Commission on PostSecondary Education”); NSBL. 92 The brief is among the records of the Royal Commission on Post-Secondary Education, RG 44 vol. 164 file 41; NSA. 93 The dean-elect, a member of the faculty, resigned when the Faculty Council decided to continue to massively fund the Dalhousie Legal Aid Service. Both the president and a past president served on the selection committee for the new dean; see generally minutes of council, 18 January 1991 (“Dalhousie Law School”); NSBL. 94 See generally “Committee on Faculty of Law Review,” NSBS annual report 1992–93, 8.

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95 Final Report / Senate Review of the Faculty of Law / August 1992: Senate records, 2004-027 file 4-4, UA 5, Dalhousie University Archives and Special Collections. This and what follows, unless otherwise indicated, are based on Appendix F, “External Review Report by J. Gerald Godsoe.” (The society, represented by the second vice-president and a past president, also met with the three external reviewers: minutes of council, 27 September 1991; NSBL.) 96 Godsoe report, 13. See also 27: “It is important for the Senate Review Committee to understand how much harm has been done to the Law School by the debates of January 1991 and the mishandling of the selection process for the new Dean.” 97 Final Report / Senate Review of the Faculty of Law / August 1992, 23 (Recommendation 7). 98 The society has not retained a copy; the report may be found among materials relating to the Law Faculty Review; Senate records, UA5, Dalhousie University Archives and Special Collections. 99 This and what follows, unless otherwise indicated, are based on Report of Ad Hoc Committee on Faculty of Law Review / February 1993; NSBL. 100 Minutes of council, 24 June 1994; NSBL. 101 Minutes of council, 22 July 1994; NSBL. 102 Mark R. MacGuigan, “The Public Dimension in Legal Education” (1989) Dalhousie L.J. 12(1): 85. 103 Minutes of council, 18 November 1983; NSBL. 104 Roy J. Matas and Deborah J. McCawley, eds., Legal Education in Canada: Reports and Background Papers of a National Conference on Legal Education held in Winnipeg, Manitoba, October 23–26, 1985 (Montreal, 1987), 947 105 See generally minutes of council, 25 April 1986; NSBL. 106 Minutes of council, 22 November 1985; NSBL. 107 See generally “Bar Admission Course Committee Report and Recommendations,” NSBS Annual Report, 1975–1976, 19. 108 Minutes of council, 24 April 1981; NSBL. 109 Minutes of council, 2 August 1984; NSBL. 110 NSBS Society Record (June-August 1984), 15. 111 “Notice re Bar Admission Course” [July 1984?]. 112 Minutes of council, 21 September 1984; NSBL. 113 The stated view of the chair of the bar admission course committee: minutes of council, 27 May 1988; NSBL. 114 Minutes of council, 23 November 1984. 115 Taylor had been the first director of the Law Society of British Columbia’s Professional Legal Training Course; see “biographical data concerning author,”

NOtES tO PAgES 192–5

116 117 118 119

120

121

122

123 124 125 126 127

128 129 130

309

James P. Taylor, Report to the Nova Scotia Barristers’ Society on Professional Legal Education and Training (hereafter Taylor Report), 4–5. Taylor Report, 83. Minutes of council, 21 November 1986; NSBL. A detailed summary of the committee’s report is in minutes of council, 27 March 1987; NSBL. Report to the Council of the Nova Scotia Barristers’ Society on Professional Legal Education and Training / The Legal Education Committee (October 1987); NSBL. This and what follows are based on minutes of council, 20 November 1987; NSBL. The legal education committee’s twenty-six-page “Report to the Council of the Nova Scotia Barristers’ Society on Professional Legal Education and Training” (October 1987) is summarized at 15–25 of the minutes. So described by the chair of the legal education committee in her report to the biannual meeting in January: minutes of biannual meeting, 23 January 1988; NSBL. Cotter left Dalhousie Law School in 1991 after failing to be appointed acting dean. In 1992 he published an important monograph, Professional Responsibility Instruction in Canada: A Coordinated Curriculum for Legal Education (“Sponsored by the Joint National Committee on Legal Education of the Federation of Law Societies of Canada and the Council of Canadian Law Deans”). According to Murray Fraser, who was in a position to know, “the publication of Professor Cotter’s Report is a milestone in the history of the Canadian legal profession” (Foreword). “In 1991 Nova Scotia will introduce a new bar admission course … which owes much to the B.C. model”: Cotter, Professional Responsibility in Canada, 2–64. Minutes of council, 27 October 1990 and 16 February 1991; NSBL. “Report on the Articling Process in Nova Scotia” (26 August 1991), 58; historical file, NSBL. Chair, Skills Course Committee, to President, 11 May 1993, “Re: Review of Bar Admission Course;” NSBS office files. Minutes of council, 26 March 1993; NSBL. Final Report of the Committee to Review Society Programs (June 1993), Recommendation 12, 28. Section 1.5 of the report deals with Qualifications Programs – Articling, Bar Admission Course, Admissions. The conclusions are summarized in NSBS Annual Report 1993–94, 11–12. Bar Admission Course Review Committee / Report to Bar Council / May 1994, 13; NSBS office files. Minutes of council, 15 April 1994; NSBL.

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131 Minutes of council, 21 November 2003; NSBL. 132 This and what follows are based on the qualifications and bar admission course committee’s reports in NSBS Annual Report 2003–2004 and 2004–2005. 133 “Urge Lawyers to Uphold Professional Standards,” Chronicle-Herald (Halifax), 20 February 1972.

ChAP tEr ELEvE N 1 2 3 4 5 6 7 8 9 10 11 12 13

14 15 16

17 18 19 20 21 22

NSBS, annual report 1953–54, 1; NSBL. Minutes of council, 21 August 1953 (stenographic report); NSBL. Minutes of council, 18 September 1953; NSBL. Minutes of council, 18 December 1953; NSBL. Ibid. “Legal Clinic Held By N. S. Lawyers,” Halifax Mail-Star, 22 March 1954. R.A. Kanigsberg, Trials and Tribulations of a Bluenose Barrister (Halifax, 1977), 71. Minutes of annual meeting, 4 July 1970; NSBL. Minutes of council, 17 October 1970; NSBL. NSBS Annual Report 1971–1972, 18. Ibid., 6. Minutes of council, 16 March 1973; NSBL. Hudson N. Janisch, “New Emphasis on Continuing Legal Education,” Hearsay for Dalhousie Law Graduates (January 1976): 11; see also John Willis, A History of Dalhousie Law School (Toronto, Buffalo, London: UtP, 1979), 225–6. Minutes of annual meeting, 29–30 June 1973. NSBS Annual Report 1973–1974 (pp. 19–20); NSBL. See “About This Publication,” Nova Scotia Law News (June 1974): 12. (“In 1973 the Continuing Legal Education Committee … reviewed the state of continuing legal education in other provinces and found that we were neither the worst nor the best in our activities.”) See also Susan Jones, “Nova Scotia Law News marks the end of an era,” Nova Scotia Law News (April 2012): 59. Minutes of council, 24 April 1975; NSBL. Minutes of council, 17 July 1975; NSBL. Minutes of council, 26 November 1976. Minutes of biannual meeting, 28 January 1977; NSBL. Minutes of council, 28 January 1977; NSBL. Alfred Watts, History of the Legal Profession in British Columbia, 1869–1984 (Vancouver, 1984), 73–4.

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311

23 This and what follows, unless otherwise indicated, are based on documents in the CLESNS corporate record book; NSBS Director of Finance and Administration. 24 CLESNS Memorandum of Association, §2(c). 25 Minutes of council, 2 June 1978; NSBL. 26 Minutes of council, 15 February 1980; NSBL. 27 Minutes of council, 24 July 1981; NSBL. 28 Continuing Legal Education and Competence in Canada: Response of the Directors of Continuing Legal Education to Questions Raised by the Workshop on Quality of Legal Services (Calgary, 1981), 9. “This report is the result of three days of meetings by the Directors of C.L.E. in Canada held in Saskatoon between February 26–28 1981.” Among those preparing the report was the executive director of CLESNS and the society’s former executive director, Lois Dyer, then director of advanced legal education for the CBA. For background, see W.H. Hurlburt, ed., The Legal Profession and Quality of Service: Further Report and Proposals / Report and Materials of a National Workshop on Quality of Legal Services Held in Toronto in October, 1980, as a Sequel to the National Conference on Quality of Legal Services Held in Ottawa in October, 1978 (Montreal, 1981). 29 Minutes of council, 24 October 1981; NSBL. 30 Minutes of council, 22 January 1982; NSBL. 31 Ibid. 32 Minutes of council, 20 May 1982; NSBL. 33 Minutes of annual meeting, 18–19 June 1982; NSBL. 34 Minutes of council, 21 January, 23 April 1983; NSBL. 35 “Barristers’ Society Meeting Opens,” Chronicle-Herald (Halifax), 30 June 1984. 36 NSBS Annual Report 1984–1985. 37 James P. Taylor, “Report to the Nova Scotia Barristers’ Society on Professional Legal Education and Training,” 68; NSBS Director, Education and Credentials. 38 Minutes of council, 25 November 1988; NSBL. 39 See Minutes of council, 20 January 1989; NSBL. 40 Minutes of council, 27 May 1989; NSBL. 41 Minutes of annual meeting, 29 June 1990; NSBL. 42 The bar admission course, 1990 – the last under the old regime – was an unmitigated disaster as candidly reported to council by the president: minutes of council, 27 July 1990; NSBL. 43 A photocopy of the signed original is in the file “1990 Skills Course Committee,” box 311; NSBS. 44 Minutes of council, 24 May 1991 and 22 January 1993; NSBL.

312

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45 Minutes of council, 22 January 1993; NSBL. In his report to the annual meeting in June, the president asserted that one of “the important issues the Society must consider in the immediate future” was mandatory continuing professional development for lawyers with ten years’ standing; NSBS Annual Report 1992–93, 2. 46 Minutes of council, 26 March 1993; NSBL. 47 Minutes of council, 18 June 1993; NSBL. 48 “CLE: At a Crossroads,” NSBS Society Record (March 1993), 1–2. 49 Minutes of council, 26 February 1994; NSBL. 50 Minutes of council, 27 May 1994; NSBL. 51 “CLE: Reflections on a Year of Success,” NSBS Society Record (June 1995), 6; see also “CLE: Change and Rejuvenation,” NSBS Society Record (August 1994), 2; and “New Director, New Directions for CLE,” NSBS Society Record (August 1994), 1–2. 52 CLESNS Memorandum of Association [1977], §2(a). 53 See, for example, “Consider the appropriate role for the Society in delivery of continuing legal education programs in general and in particular the appropriate role for a separate Continuing Legal Education Society and the Canadian Bar Association [Nova Scotia] branch”: minutes of council, 27 March 1998; NSBL. 54 Regulation 1A §(b)(ii). 55 Minutes of council, 27 March 1998; NSBL. 56 NSBS Competency Task Force Report/Discussion Paper (January 2000), §§6.4.0-6.4.2, 15-6; Historical File, “Task Forces,” NSBL. 57 This and what follows are based on the Competency Task Force Report/ Discussion Paper. 58 Operations Review Task Force Report – draft “for review only.” The language in the final approved version of the report was significantly toned down, though its import was clear. (This and what follows, unless otherwise indicated, are based on Society Operations Review Materials, container 813, NSBS.) 59 This sentence was ordered deleted: minutes of council, 25 May 2001; NSBL. 60 Memorandum, Chair to Members, Society Operations Task Force, 22 February 2001; Society Operations Review Materials, 2001. 61 This and what follows are based on minutes of council, 25 May 2001; NSBL. 62 NSBS minutes of executive committee, 6 July 2001. Ironically, at the time of becoming executive director of the society in 1990, Darrel Pink was president of CLESNS.

NOtES tO PAgES 211–14

313

63 Council annual planning session, 22 June 2001 (informal reportage); NSBS executive committee files. 64 Appended to minutes of council, 20 April 2001; NSBL. 65 NSBS annual general meeting, 18 July 2001, executive director’s report (“NSBS/ CLE”); CLESNS corporate record book, Director of Finance and Administration, NSBS. 66 This and what follows, unless otherwise indicated, are based on the file “Continuing Legal Education (CLE) Re: General/Cumulative 1992–2001;” container 740, NSBS. 67 NSBS minutes of executive committee, 10 August 2001. 68 NSBS minutes of executive committee, 7 September 2001. 69 Minutes of council, 21 September 2001; NSBL. 70 See, above all, memorandum from CBANS president excerpted in minutes of council, 21 September 2001. 71 Memorandum, Executive Director (Pink) to President, CBANS (Tabor), 25 October 2001; NSBS executive committee agenda papers, 9 November 2001. It was fully recognized that the society’s initiative could not proceed without the concurrence, or at least acquiescence, and cooperation of CBANS. 72 Minutes of council, 23 November 2001; NSBL. See also “New Continuing Professional Development Program Approved,” NSBS Society Record (December 2001), 1. 73 Service Nova Scotia, Registry of Joint Stock Companies ID 1258380 (accessed 5 June 2014). 74 Minutes of council, 26 April 2002; NSBL. 75 On this subject generally, see discipline committee report tabled at 1977 annual meeting. According to the committee chair, it had been council’s position since 1974, when the CBA’s Code of Professional Conduct was adopted, that incompetence amounted to professional misconduct and should be a matter for discipline. See also minutes of council, June 1977, 4–5; NSBL. 76 Minutes of council, 25 November 1988; NSBL. 77 See generally minutes of council, 13–14 October 1989 and 23 March 1990; NSBL. 78 Minutes of council, 22 February 1997; NSBL. Regulation 1A (22 February 1997). 79 Now the Lawyers’ Insurance Association of Nova Scotia. 80 §8.3.2 (p. 70). 81 Minutes of council, 28 January 2005; NSBL.

314

NOtES tO PAgES 215–48

82 Memorandum TO Council FROM Continuing Competency Task Force DATE 20 March 2007 RE Continuing Competence Options and Recommendations; NSBS office files.

CONCLU S iO N 1 Mark M. Orkin, “Professional Autonomy and the Public Interest: A Study of the Law Society of Upper Canada” (unpubl. jSD thesis, York University, 1972), vi. 2 To be found at www.nsbs.org. 3 Orkin, “Professional Autonomy and the Public Interest,” 327. 4 On this subject generally, see William H. Hurlburt, The Self-Regulation of the Legal Profession in Canada and in England and Wales (Calgary & Edmonton, 2000), 147–82, and sources cited. 5 Orkin, “Professional Autonomy and the Public Interest,” 327.

APPEND i x C 1 Chief justice of Nova Scotia, 1789–97. See generally Donald F. Chard, “Strange, Sir Thomas Andrew Lumisden,” Dictionary of Canadian Biography, vol. 7, 1836 to 1850 (Toronto, 1988), 832. 2 “Sir Thomas Strange, C.J.,” Can. Bar Rev. 24 (1946): 600 at 603. See also D.C. Harvey, “Early Public Libraries in Nova Scotia,” Dalhousie Review 14, no. 4 (January 1935): 430 (“Chief Justice Strange gave his private library to the province to found a library for the legal profession”); and Karen Smith, “Early Libraries in Halifax,” Journal of the Royal Nova Scotia Historical Society 7 (2004): 10. 3 As much is clear from a petition of Henry Hezekiah Cogswell and thirteen other lawyers presented to the House of Assembly in March 1823, asking for new accommodation for the “Law Library” in the Supreme Court (now the Legislative Library): Miscellaneous Manuscripts Collection, MG 100, vol. 175, item 32L, NSA. Strange’s books were afterwards dispersed, some apparently finding their way to Dalhousie University Library and others to the rare book collection at Dalhousie Law Library. Strange’s interest in a public library for Halifax is well documented; see Beryl Anderson, “List of Books for a Public Library in Halifax, 1793,” Nova Scotia Historical Review 12, no. 1 (1992): 119– 50. Strange hoped to achieve this goal by gifting his own library to the province. 4 Rules of the Society of Nova Scotia Barristers (Halifax, 1825), 6–9; §§XIV through XXIV.

NOtES tO PAgES 248–53 5 6 7 8 9 10 11 12 13 14 15

16 17 18 19 20 21

22 23 24 25 26

27

315

Journal of the House of Assembly, 16 February and 5 March 1827. Chapter 86 of the Acts of 1879. Chapter 67 of the Acts of 1883. Chapter 27 of the Acts of 1893 (§4). “The Libraries of Halifax,” Evening Mail (Halifax), 19 September 1895. NSBS Regulations Made Pursuant to the Legal Profession Act (amended to 25 April 2014), 80. NSBS Regulations 1914, §18(1). Minutes of council, 2 December 1926; NSBL. Minutes of council, 14 June 1928; NSBL. Quoted in NSBS, Evaluation of the Library (1970), 1; Historical File, Libraries – Halifax; NSBL. The library committee’s report, based on MacDonald’s Evaluation, was approved by council in January 1971. Minutes of council, 16 January 1971; NSBL. Minutes of biannual meeting, 18 February 1972; NSBL. Librarian to the Society (MacDonald) to Chair, Library Committee, 16 November 1973; Historical Files, Libraries – County; NSBL. “Survey of Law Library Resources in the Province and Proposals for Development,” Historical Files, Libraries – County; NSBL. Minutes of council, 20 May 1975; NSBL. Minutes of council, 27 September 1975 (“Proposal for Granting Funds to Local Bar Libraries”); NSBL. Poburko recalls being told “that one of the tasks set the librarian early in the society’s history was to start the fire going each day, presumably in the morning”: email to author, 16 May 2014. NSBS Annual Report 1982–83, 3 (Report of Library Committee). NSBS Final Report of the Committee to Review Society Programs (June 1993), 38. “2003–2004 Budget,” NSBS Society Record (April 2003), 3. “First Library Policy Approved,” NSBS Society Record (January 1985), 9; see also minutes of council, 18 January 1985, NSBL. Nova Scotia Barristers’ Society Library Services Policies – see minutes of council, 22 October 1999; NSBL. See also “President’s Column: The Nova Scotia Barristers’ Society Library System,” NSBS Society Record (January– February 2000), 3. Nova Scotia Barristers’ Society Operations Review Task Force Report (May 2001), 10; NSBL.

316

NOtES tO PAgES 253–8

28 NSBS Annual Report 2000–2001. 29 Minutes of council, 24 May 2002; NSBL. 30 “Nova Scotia Barristers’ Society – Library Services Committee. Presented to and approved by Council, November 19, 2004,” 6; NSBL. 31 Ibid., 1. 32 Blunden and Associates, “Stakeholders, Issues and Options: A Discussion Paper on the Future of Nova Scotia Barristers’ Society Library Services,” 33; NSBL. 33 This and what follows are based on Dale H. Poel, “Directions in Legal Research: A Briefing Note to the NSBS Library Services Steering Committee” (June 2004); NSBL. 34 “Nova Scotia Barristers’ Society – Library Services Committee. Presented to and approved by Council, November 19, 2004,” 8–10; NSBL. 35 Library and Information Services Committee Report, 17. 36 NSBS Society Record (June 2004), 5.

B i B L iO grAPh i CAL N OtE 1 See Archives of the Dalhousie Faculty of Law: A Guide [to] UA-13 (February 2014), DUASC.

Index

Ad hoc committee to review society programs (1993), 9, 72, 163–6, 195, 210, 264n39 administrative review (1989), 158–9, 164, 251 advertising, 60, 83–7, 91, 122–3, 145, 149, 190, 281n109, 282n118, 282–3n126 annual dinner, 25, 69; 1934, 280n93; 1941, 61; 1945, 61; 1947, 62; 1950, 62; 1976, 80 annual meeting, 49–50, 53, 61, 68–72, 92, 144, 199, 272n31, 299n27; 1873, 33; 1877, 35; 1878, 35; 1885, 37; 1896, 41; 1897, 43; 1899, 43–4, 52; 1900, 50; 1901, 51; 1902, 51; 1903, 52; 1904, 144; 1908, 278n60; 1913, 53; 1931, 54; 1936, 64; 1944, 59; 1945, 62; 1947, 65; 1948, 65; 1950, 75, 180; 1951, 63, 68, 75, 82, 181; 1954, 79, 103, 198; 1958, 70; 1959, 70, 74; 1960, 271, 271n2; 1962, 75–6; 1964, 77; 1966, 78, 182; 1969,

183; 1970, 100, 200; 1971, 68, 79–80, 200; 1972, 70, 155; 1973, 81, 83, 85, 201; 1974, 100, 155, 201; 1976, 71, 277n51; 1977, 85, 313n75; 1978, 85; 1980, 87; 1981, 87; 1982, 88, 204; 1983, 100; 1984, 205; 1985, 89; 1986, 91; 1988, 92; 1989, 93; 1990, 73, 114; 1991, 118; 1993, 68, 72, 312n45; 1995, 209; 1996, 209; 1998, 98; 2002, 125; 2005, 103 anti-lawyer sentiment, 22–3, 28, 38 anti-society sentiment, 8, 38, 45–6 Archibald, Samuel G.W., 28, 265n9 articled clerkship, 4, 21–2, 25, 27, 30, 33, 41, 50, 53, 60, 91, 97, 121, 126, 141, 147–8, 154, 167–71, 173–4, 176–7, 179–86, 190–4, 196–7, 202, 207, 253, 257 Association des juristes d’expression française de la Nouvelle-Écosse, 133, 138–9 Baker, Michael, 124, 128, 130, 135, 137–8

318

Index

Balcom, Bryant H.H., 155, 199, 300n4 bar admission course, 22, 180, 183– 6, 190–7, 201–3, 206–10, 212–3, 306n64, 309n122, 311n42 bar admission course committee, 149, 151, 183–4, 190–2, 195–7, 202, 308n113. See also qualifications and bar admission course committee; credentials committee “bar council.” See council Barnhill, Jacob Lynds, 249–50 Bar of Nova Scotia: founded, 4; growth of, 1824–99 (table), 49 Barristers and Attorneys Act, 7–8, 31–3, 37, 40, 46, 142, 144, 169–71, 173, 249, 259n2. See also Barristers and Solicitors Act; Lawyers’ Better Regulation Act; Legal Profession Act Barristers and Solicitors Act, 7, 9–11, 15, 45–58, 60, 65, 69, 72–4, 76–7, 81–4, 86–7, 91, 93, 99–100, 102–4, 121–7, 131–2, 134–6, 139, 141–9, 152–3, 157, 161, 164, 173–4, 176–7, 179, 185, 187, 210, 213, 259n2, 263n33, 270–1n1, 271n8, 273n55, 282–3n126, 284n142, 293n5, 7, 294n19–20, 22, 295n28, 33, 296n44, 52, 297n63. See also Barristers and Attorneys Act; Lawyers’ Better Regulation Act; Legal Profession Act Barristers’ Library, 4, 23, 25, 30, 44– 5, 53, 80, 153–4, 162, 248–55, 258, 314n3 Belcher, Jonathan, 4, 103

benchers. See council biannual meeting, 78, 199–201; 1965, 78; 1971, 200; 1972, 79, 81, 197, 250, 306n76; 1973, 155; 1977, 202; 1979, 85; 1981, 86 Bissett, Frederick William, 55, 59, 123 Blanchard, Hiram, 32–4, 118, 304n15 Bliss, William Blowers, 25, 31, 266n20, 267n28 Blowers, Sampson Salter, 5, 20, 24–6 Borden, Sir Robert Laird, 3, 41, 43, 50, 52, 297–8n1, 298n10 Buchanan, John M., 66–7, 90 Bulmer, John Thomas, 41, 43, 51 Canadian Bar Association, 41, 62–5, 84–5, 87, 101, 107, 138, 167, 183, 202–3, 207–13, 274n3, 312n53 Cape Breton Barristers’ Society, 52, 148 Chernin, Gail Rudderham, 120, 295n41 chief justice: as member of council, 7, 31, 53, 141, 178, 266n16 Chisholm, Sir Joseph, 57, 248 Church, Lott, 22–3 Cogswell, Henry Hezekiah, 25, 314n3 Coles, Gordon F., 113, 115–6, 118 complaints investigation committee, 126, 132, 139 complaints officer, 87, 91 Conference of Governing Bodies of the Legal Profession in Canada. See Federation of Law Societies of Canada

Index Congdon, Frederick Tennyson, 50, 270n44, 298n10 continuing legal education, 199–212, 214–5, 310n16, 312n53. See also continuing professional development continuing legal education committee, 200–3, 310n16 Continuing Legal Education Society of Nova Scotia, 160, 190, 193, 195, 201–14, 257, 312n53, 62 continuing professional development, 89, 134, 156, 195, 198–202, 204– 7, 209–15, 307n87, 312n45. See also continuing legal education; refresher course Cotter, Brent, 193, 309n121 council, 7–11, 13–4, 29–31, 33, 35–47, 49–57, 59–60, 62–78, 80–8, 91, 93, 95–6, 98–101, 103–4, 110–5, 117, 119–33, 135–66, 169, 171–91, 193, 195–205, 207–9, 211–6, 249–55, 257, 259n2, 266n16, 17, 267n41, 270n42, 44, 274n60, 277n48, 278n58, 282–3n126, 285–6n9, 288n1, 292n58, 293n7,10, 295n25, 298n10, 299n24, 26, 27, 300n3, 303n12, 304n25, 311n42, 313n75, 315n15; lay members of, 71, 117, 122, 278n53, 292n58, 299n24 Covert, Frank, 99, 180–1, 280n98 credentials committee, 151, 195. See also bar admission course committee; qualifications and bar admission course committee

319

Dalhousie Law School, 34, 40, 50, 60, 62, 64, 81, 90, 103, 105, 122, 131, 137, 141, 146, 167–8, 171–6, 178–83, 185–90, 193, 197, 199–203, 207–9, 250–1, 254, 275n6, 288–9n5, 295n42, 300n3, 304n15, 306n76, 307n87, 308n96, 309n21; dean of, see Fraser, Murray; Macdonald, Ronald St John; MacDonald, Vincent C.; MacKay, W. Andrew; MacRae, Donald Alexander; Read, Horace; Weldon, Richard Chapman Dalhousie Legal Aid, 122, 146, 188, 298n20, 307n93 discipline committee, 53–4, 56–7, 75, 77–8, 81–2, 87, 91–2, 97–8, 112–13, 115–17, 119, 147–9, 151, 155–6, 279n87, 280n101, 282n123, 288n45, 299n26, 300n9, 313n75 discipline policies and procedures committee, 91, 214 Donald Marshall, Jr., Royal Commission on the Prosecution of, 92–3, 107–10, 112–15, 117–20, 161, 289n10, 290n13, 292n55; report of, 10, 15, 68, 74, 92–3, 97, 102, 107–10, 111–15, 118, 120, 151, 159, 161, 166, 216–18, 264n37, 290n15, 290n24 Dyer, Lois, 156, 202, 300n10, 311n28 encroachments. See unauthorized practices committee

320

Index

Evans, Lawrence K., 84–5, 90–2, 109, 284n152, 155 examinations (society), 6–7, 27, 29, 33, 35, 40, 144, 167–71, 173–8, 180, 182 executive committee, 8, 25, 28–9, 31, 72–3, 88, 93, 98, 109–11, 113, 115, 123–6, 130, 135, 137, 139, 142, 149–50, 155–6, 158–62, 164–6, 168, 187, 189, 191, 202, 204, 206, 208, 210, 212, 214, 257, 263n31, 267n28, 288n45, 290n13, 295n42, 301n23, 302n41 executive director, 67, 69, 85, 98, 119, 122, 124, 126–9, 131–2, 134–5, 139, 155–61, 165–6, 200, 202, 249–50, 283n131, 294n14, 300n10, 301n23, 302n37, 312n62. See also Dyer, Lois; Pink, Darrel; secretary-treasurer Fairbanks, Charles Rufus, 27, 267n28 Federation of Law Societies of Canada, 71, 85, 178, 193, 202–3, 275n6 Fielding, R.M., 63–4 finance committee, 91, 149, 155, 164 fitness to practise committee, 131, 138–9, 297n59 Flinn, E.J. (Ted), 191, 205 Fraser, Murray, 183–5, 189, 306n76, 309n121 Garson, Craig, 72, 102, 288n45 Girard, Philip, 47, 169 governing body. See council Graham, Wallace, 269n31, 270n44

Halifax Law School, 33–5, 170, 303n12, 304n15 Halliburton, Sir Brenton, 23, 266n17 Harrington, Charles Sidney, 41, 298n10 Harris, Robert E., 43, 270n42, 278n60, 298n10 hearing committee, 126, 138 Henry, Hugh McDonald, 269n32 Henry, William Alexander, 34–5 Hickey, Marjorie, 124–7, 135, 139–40, 294n16 Howe, Joseph, 7, 30, 263n31 In re King & Barss, 36–7, 39–40 interprovincial law firms, 100, 280n93 Johnston, James William, 25–6, 28–31, 132, 263n31, 267n28 Judge, Peter Lorimer, 69, 276–7n35 Kanigsberg, Robert A. (Bob), 70, 81, 198–9, 280n101 Kennedy, Ignatius, 78, 279n87 King, Edwin David, 36, 269n22. See also In re King & Barss Larkin, Raymond, 126, 129, 135–6, 295n27 law courts, Halifax: opening of, 79–80 law firms, incorporation of, 99–100, 145, 273n56, 287n31 Law Foundation of Nova Scotia, 79, 81, 127, 192, 255, 204, 255 law library. See Barristers’ Library

Index law practice, defined, 58–60, 84, 102, 123, 129, 134, 293n5 law school liaison committee, 186–9 Law Society of New Brunswick, 4, 123 Law Society of Upper Canada, 5–6, 121, 168, 184, 216 law society survey, comparative (1989), 96–7 “law university.” See Halifax Law School Lawyers’ Better Regulation Act, 5–7, 13, 19, 21–4, 26–7, 29, 168–9, 197, 266n16. See also Barristers and Attorneys Act; Barristers and Solicitors Act; Legal Profession Act lawyers’ fund for client compensation. See reimbursement fund lawyer trust accounts, auditing of, 77–9, 91 legal aid, 15, 63, 65–8, 93, 122, 146, 183, 264n37, 276n23 Legal Aid Act, 66, 81 legal aid clinic, 64–5 legal aid committee, 54, 65–7, 149, 190, 198, 276n23 Legal Aid Planning Act, 65, 81 legal education committee, 190, 192–4, 200–4, 309n121 Legal Profession Act (Manitoba), 126–7, 134, 136, 139, 295n27 Legal Profession Act (Nova Scotia), 11, 15, 69, 102–4, 123, 125–39, 149–50, 152, 161–2, 214, 218, 249, 259n2, 264n39, 294n16, 295n42, 296n44, 297n59, 69, 299n28; compared with Manitoba LPA, 127, 295n30; (table 7.1),

321

128. See also Barristers and Attorneys Act; Barristers and Solicitors Act; Lawyers’ Better Regulation Act library committee, 249–53. See also library services committee library services committee, 249, 254–5. See also library committee Longley, James Wilberforce, 37–8, 41–2, 44–6, 171–3, 263n24, 304n24 MacCoy, William Frederick, 40, 172 MacDonald, Alan H., 250–1 MacDonald, George, 109, 289n11 Macdonald, Ronald St John, 185–6 MacDonald, Vincent C., 62, 178–80, 185, 187, 274n3, 305n45 MacIntosh, Bruce, 109–14, 117–8, 284n155, 285n163, 289n9–10, 290n23 MacKay, W. Andrew, 184, 187 MacKeigan, Ian M., 111–2 MacLean, Eileen, 154–5, 157, 284n147, 300n3 MacQuarrie, Josiah H., 56, 59 MacRae, Donald Alexander, 175–9 Marshall Inquiry. See Donald Marshall, Jr., Royal Commission on the Prosecution of Marshall Jr, Donald, 92, 107–9, 111–13, 119–20, 291n28, 290n42 McDonald, James, 36, 270n51 McInnis, Thomas J. (Tom), 112–3 McKay, Lexie, 156, 302n37 McTague, Charles P., 62–3, 274n3 Mellish, Humphrey, 43, 270n42, 298n10

322

Index

Merrick, John, 101, 119 Mingo, J. William E. (Bill), 81, 159, 183–4, 190, 197, 276n23, 280n98, 281n108, 301n23 Moore, John, 109, 290n13 National Conference on Legal Education (1985), 190, 192–3 nominating committee, 71–3, 102, 277n48, 299n24 Nova Scotia Barristers’ Liability Claims Fund, 76, 122, 138, 162, 214 Nova Scotia Barristers’ Society: founded, 5–6, 23–4, 26, 153, 248, 255; incorporation, 7–8, 28–31, 294n19, 295n43; 1860 reorganization, 8, 29–31, 142, 169 Nova Scotia Legal Aid Commission, 66–7, 276n25 Nutting, James Walton, 25–6, 248 Objects Clause, 11, 134, 163–4, 209–11, 264n39. See also purpose clause O’Hearn, Walter J.A., 53–4, 177 open discipline hearings, 99, 134 operations review task force, 210–1 Orkin, Mark, 121, 216–18 Pink, Darrel, 160–2, 292n55, 312n62 Pink, Irving, 68–70 Pipes, William Thomas, 39, 45 planning committee, 158, 202, 301n23 Post-secondary Education, Royal Commission on, 187–8

preliminary examination. See examinations (society) professional education development committee, 204–5 professional liability insurance, 76–7, 93, 145–6 program review. See ad hoc committee to review society programs (1993) Provincial Barristers’ Association, 38–9, 172, 269n27 public legal education, 74, 203–4, 209 purpose clause, 11, 126, 129, 134, 139, 264n39, 297n69. See also Objects Clause qualifications and bar admission course committee, 195–6. See also bar admission course committee; credentials committee qualifications committee, 88, 147, 149, 151, 160, 177–8, 180–4, 186, 190–2, 194–5, 206 queen’s counsel, 92–3, 95–6, 127, 135 race relations committee, 111, 119 Read, Horace, 64, 187, 199 refresher course, 149, 179–80, 198–9, 201–2. See also continuing professional development Regan, Gerald, 80–1 regulations: 1825, 23–5, 27, 168, 248; 1860, 29–31, 142; 1899, 9, 46, 142–4, 249, 272n29, 298n5, 11, 299n27; 1914, 56, 144–5, 175, 249, 267n41, 271n9,

Index 298n9, 299n27; 1922, 176; 1939, 54–5, 123, 145, 147–8, 169, 179, 295n28, 298n3; 1952, 65, 75, 121, 155, 273n55; 2005, 135, 214, 299–300n41 reimbursement fund, 76–9, 89, 91, 103–4, 145, 278–9n74, 284n144. reimbursement fund committee, 88, 91, 278–9n74 Ritchie, James Johnston, 141, 269n23, 297–8n1 Ritchie, John William, 30–1, 52, 169 Robie, Simon Bradstreet, 21, 24, 26, 266n16 Russell, Arthur Hawthorne, 148–9 Russell, Benjamin, 53, 148, 167–8, 173, 176 Samson, Michel, 133–4, 138 Saunders, Jamie W.S., 111, 292n53 Seale, Sandy, 115, 117, 120, 292n42 secretary-treasurer, 56, 70, 87, 90, 110, 121, 153–9, 161, 190, 199, 250, 277n45, 300n3. See also executive director self-regulation, 4, 7–14, 28, 31, 41, 46, 48–9, 70, 72, 94, 96, 101–2, 122, 130–1, 134, 140–1, 143–4, 148, 152, 157, 169, 176, 197, 216–18, 294n19, 295n43, 296n44 skills training program. See bar admission course Smith, Charles Breckon (Charlie), 274n63, 275n6 Smith, George Isaac (Ike), 80–1, 90, 280n97 Smith, Henry William, 32–3

323

Society of Nova Scotia Barristers. See Nova Scotia Barristers’ Society Stanfield, Robert, 80, 90 Strange, Thomas A.L., 248, 255, 314n3 Survey of the Canadian Legal Profession, 62, 274n3 Taylor, James P., 192–3, 308n115 Taylor Report, 192–3, 206 Thompson, Keith, 158–9 Thompson, Sir John S.D., 3, 34–6, 168, 171, 177, 259n1, 2, 270n51 Tucker, John Harvey, 19–20, 22, 264–5n3, 265n7 unauthorized practices committee, 74, 84–5, 91 Uniacke, James Boyle, 9, 28 Uniacke, Richard John, 21, 23–4, 29, 266n16 Wambolt, Grace, 62, 95, 274n1 Weldon, Richard Chapman, 173–6, 178, 185, 304n25 Western Counties Barristers’ Association, 68, 276–7n35, 277n44 Whinyard, LeMert Stevens, 154, 274n61 Wickwire, F.B. (Ted), 66, 99, 112–9, 291n37 Willis, John, 174–5, 185 Yates, Eileen. See MacLean, Eileen Young, Sir William, 9, 13, 30–2, 36, 169