Law Society of New Brunswick Executive Director Marc Richard Click here to see full sized version.

The Law Society of New Brunswick (LSNB) has become the last remaining province in Canada to open the doors of its disciplinary hearings to the public.

The new level of transparency was ordered by the New Brunswick Court of Queen’s Bench last year after Brunswick News, publisher of the Telegraph-Journal in Saint John, challenged the closed hearings as unconstitutional. The court agreed and gave the law society several months to put a new process in place that would welcome and inform the public.

Despite the unequivocal finding, the court order was not the primary impetus for changing the rules around disciplinary hearings, LSNB Executive Director Marc Richard told The Lawyers Weekly. "We noticed throughout the years that people were starting to open up their disciplinary hearings. We looked at doing this, but first we did a full review of our act. It took us a while."

The amended Law Society Act was rolled out earlier this year. Among the changes: disciplinary hearings are now smaller. They now consist of three members instead of five, two lawyers and a public representative. That latter position is not new; there has been one public representative on disciplinary hearing panels in New Brunswick since 1986. However, decisions and the names of lawyers involved were never made known. Plans to change that approach were well in the works when the law society’s process was challenged.

"When Brunswick News brought us to court, we told them not to waste their money. But they did not want to wait," Richard noted.

The wait is clearly over. Disciplinary hearings in New Brunswick are currently open to the public and announcements of hearings are posted on the society’s website, including a list of charges laid against the lawyer in question. As well, decisions will be available online at both the LSNB website and on CanLII.

The names of complainants and witnesses will be identified by initials, but "the lawyer’s name will always be there," stressed Richard.

The open-door approach will benefit both the public and the legal profession, said David Townsend, interim dean of law at the University of New Brunswick. "Obviously the biggest benefit is confidence [arising] from the transparency," he noted.

When the public is confident in the actions of the profession, the profession benefits. Openness of processes like disciplinary hearings are the only things that will dispel the public’s growing sense of cynicism toward legal professionals, said Townsend. "Nothing brightens like transparency. I think [this] will be seen as a big step."

There is still a need to step carefully, he added. "One of the downsides is that the public doesn’t always understand the proceedings they are seeing."

Lawyers, however, do. The public spotlight may transform disciplinary hearings into something they were never intended to be. "There is a concern we could politicize behaviour in the law society such as you see in the U.S.," said Townsend.

"The spectacle aspect is something we don’t want to happen," he added.

In an interview with the Times & Transcript, Stéphane Viola, a founding partner of Bossé Viola LeBlanc in Moncton and New Brunswick spokesperson for the Canadian Bar Association in the area of auto insurance, raised the issue of lawyer-client confidentiality. If client information was revealed during a hearing, solicitor-client confidentiality could be breached, he noted, adding that the CBA has yet to comment on the matter.

Personally, Viola added, the open hearings do not concern him. He is not alone in his acceptance of the new process. "We haven’t had any negative feedback," said Richard. But "we have been telling our lawyers for the last two years that this is coming."

Ultimately, member dissatisfaction might not actually matter. "At the end of the day, the law society is there to protect the public not the interests of our members," said Richard.

And the law society is leading the way within the province. While all other law societies in Canada have open disciplinary hearings, in New Brunswick, the LSNB is among the first professional organization to adopt this approach.