Lawyer Guild Privileges: The Next Unwritten Principle?

Through the lawless device of striking down legislation on the basis of "unwritten constitutional principles", the legal profession has obtained tax free status in British Columbia. But if you want to see where the game will be played next, it is wise to look at the law reviews.

In "Unwritten Constitutional Principles and the Enforceability of the Indpendence of the Independence of the Bar" (2005), 30 SCLR (2d) 463, Blakes associate and former clerk to Chief Justice McLachlin Roy Millen calls on the Court to establish "the independence of the bar" as the latest unwritten principle.

Shaw pointed out that all professions are conspiracies against the laity. For the most part, they are effective enough that few governments do much about them. But occasionally, the public may demand some constraint on the interests of a profession. If the Court takes up Millen's proposal, then lawyers will still be able to lobby politicians to avoid regulatory scrutiny, as pipefitters and doctors do, but will be able to ask the highest lawyers in the land to reverse any lack of success.

The Pithlord recognizes that there are some reasons for the guild privileges of lawyers, and that these need to be balanced against the benefits of external regulation. But he thinks the legal profession is strong enough to take its lumps in the political arena. The profession's guild privileges are based on the premise that lawyers are genuinely willing to uphold the rule of law. If the Dominion's barristers and solicitors are prepared to throw out hundreds of years of British/Canadian constitutional law to win perquisites for themselves, then the Pithlord is going to have to learn some lawyer jokes.