The public has a right to be able to obtain legal assistance from someone who is independent of the state and the citizenry and who can, therefore, put their clients' interests first without fear of constraint or punishment. In other words, the public has a right to an independent Bar which can protect the rights of individuals from being violated by the state or other citizens.

The independence of the Bar, like the independence of the judiciary, is essential to the maintenance of the rule of law and the proper functioning of the administration of justice, as well as being one of the hallmarks of a free and democratic society. However, whereas the independence of the judiciary is expressly guaranteed by the constitution, the independence of the Bar does not enjoy any such straightforward protection. While the need for an independent Bar has never been greater, the fragility of this ideal, particularly when faced with urgent public policy priorities, is apparent. The independence of the Bar is only as strong as the belief on the part of lawyers, the public, the judiciary, and the government that it is worth preserving and promoting.

The rationale for the Law Society of Upper Canada launching the Task Force on the Rule of Law and the Independence of the Bar was to enhance public understanding of, and commitment to, the independence of the Bar and to contribute to the ongoing debate on the limits of this independence. The Task Force commissioned six background studies from some of the leading academic voices on the legal profession from across the country. The papers represent the most comprehensive and in-depth exploration of the concept of the independence of the Bar ever undertaken in Canada. They also represent a significant resource for those who wish to build on and extend this research.

The first paper examines the history of the ideas and practices associated with the independence of the Bar, in England and Canada, from about 1650 to 1950. The second looks at the experience of lawyers in different parts of the world, emphasizing that threats to an independent Bar are not the preserve of developing countries. It also examines alternative regulatory models in Australia and England. The next chapter reviews written and unwritten elements of the Canadian Constitution that provide protection for the principle of an independent Bar. It concludes that the legal profession's independence from government is protected but not its self-regulating status.

The fourth paper explores the impact of Parliament's security certificate procedures on solicitor-client confidentiality and examines alternative, less rights-infringing models. The following chapter explores the legal profession's resistance to legislation—in particular money-laundering and corporate governance—which would require lawyers to blow the whistle on client misconduct. The final chapter explores the relationship between images of lawyers in popular culture, the generalized negative public image of lawyers, and the perception people have of their own lawyers.

Cover Photo by Julia McArthur

Table of Contents

Task Force Membership

Statement of Principles on the Rule of Law and the Independence of the Bar
Protecting the Public through an Independent Bar: The Task Force Report
Preface - Lorne Sossin

4. The Independence of the Bar in Historical Perspective: Comforting Myths, Troubling Realities - Philip Girard
5. Death Squads and "Directions over Lunch": A Comparative Review of the Independence of the Bar - W. Wesley Pue
6. The Independence of the Bar as a Constitutional Principle in Canada - Patrick J. Monahan
7. The Independence of the Bar and the Public Interest: The Scope of Privilege and Confidentiality in the Context of National Security - Michael Code & Kent Roach
8. The Independence of the Bar and the Public Interest Imperative: Lawyers as Gatekeepers, Whistleblowers, or Instruments of State Enforcement? - Paul D. Paton
9. Polling and Popular Culture (News, Television, and Film): Limitations of the Use of Opinion Polls in Assessing the Public Image of Lawyers - Angela Fernandez

Contributors