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ices commissioners. Although you will hear many people say otherwise, lawyers in England and Australia are no longer independent. Over the years, I have treated lawyer independence as a discrete topic, assuming (as Lord Bingham confirmed in 2010) that independence of lawyers is an element of the rule of law (His Lordship used the word “ingredient”), and assuming that anyone who learned about the arrangements in Canada would promptly adopt the Canadian model, which is built on proud traditions of professional responsibility, and which (except in Quebec) supplies straightforward templates for effective self-regulation. Having read the IBA task force report, it is obvious to me that my work has been out of focus. I now see that as much as we need lawyers who can and will claim independence, first we need good people in every country to foster rule of law cultures. That is so because, in any country without a rule of law culture, there is no common commitment to right and rights. Without that commitment, lawyers who claim independence, in the pursuit of right and rights for their clients, and in the public interest, have no constitutional base on which to ground their claims. Achieving rule of law cultures should not be a forlorn hope, although the circumstances the task force relates are extremely distressing and depressing. We must believe that good will prevail. Lawyers around the world, and particularly lawyers who have experience with constitutional law, can play important roles in culture building. A few other points about the IBA report: (a) regrettably, too often the task force directs readers to “the relevant literature”, without saying what it is; (b) the task force seems to assume that lawyer regulation partnerships preserve lawyer independence, when it must be plain that lawyers cannot be independent when government is able to look over their shoulders whenever it wants. (This apparent assumption of the task force suggests that it does not accept my argument that self-regulation is an essential condition of independence); (c) the task force appears to concede that lawyer independence is a privilege when a strong case can be made for the proposition (I have made it repeatedly in my writings!) that independence is constitutionally mandated and therefore untouchable; (d) the task force, without commentary, accepts the Orwellian language of the current English regulators who claim to be “independent”, by which they mean they regulate lawyers independent 294 V O L . 7 5 P A R T 2 M A R C H 2 0 1 7 THE ADVOCATE


March Pages 2017
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