of self regulation? - The Law Society of Upper Canada

model of regulation, is much too blunt an instrument to effectively and efficiently get
results; 170 the only viable strategy is to develop a hybrid and nuanced constellation of
civil society/market/state based regulatory instruments that can be synergistically
deployed (in an increasingly intensified way from co-operation to coercion) in a
contextually sensitive manner. For the purposes of this paper, we will call this “calibrated
regulation.” 171 One common metaphor is that there should be a “pyramid of regulatory
controls.” 172 Another is that the state should “steer” rather than “row.” 173
If one stands back and looks at the various regulatory functions relevant to the
legal profession it becomes apparant that “calibrated regulation” is indeed an apt
characterization of the beast. William Hurlburt, for example, has provided a very helpful
170 Julia Black provides the following synthesis of the debate:
That the instruments used (laws backed by sanctions) are inappropriate and unsophisticated
(instrument failure), that government has insufficient knowledge to be able to identify the causes
of problems, to design solutions that are appropriate, and to identify non-compliance (information
and knowledge failure), that implementation of the regulation is inadequate (implementation
failure), and that those being regulated are insufficiently inclined to comply, and those doing the
regulating are insufficiently motivated to regulated in the public interest (motivation failure and
capture theory). (Supra note 1 at 3)
Parker, OC, provides the following additional helpful synopsis of the alleged weaknesses of the command
and control model:
• a tendency towards unnecessarily complex rules that are too difficult or costly for business to
access, understand and comply with;
• over-regulation, legalism, inflexibility and unreasonableness in design and implementation that
tend to break down the natural willingness to comply with reasonable, substantive objectives;
• evasion and ‘creative’ compliance by taking advantage of technical and detailed rules, rather than
compliance with the substance and goals of regulation;
• ‘capture’ of regulatory agencies by regulated entities;
• dependence on strong monitoring and enforcement where sufficient resources, exp ertise and
strategy are not necessarily available. (Supra note 173 at 8.)
171 See also Wilkins advocating that, in light of the fact that there several types of lawyer client-interactions
and differences in enforcement contexts, then it is essential to have multiple centres of professional control,
a “multi-door enforcement system.” Supra note 100 especially at 814-819, 851, 873.
172 Gunningham & Grabosky, supra note 167; Parker JL, supra note 100 at 147, 162-167.
173 D. Osborne & T. Gaebler, Reinventing Government: How the Entrepreneurial Spirit is Transforming the
Public Sector (Reading Mass.:Addison Wellesley, 1992) at 25; McConkey & Dutil, supra note 2
“Introduction” at 1.
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