A word of advice. You should avoid standing in front of the exit door at the Nova Scotia Barristers’ Society office. Otherwise, you might get run over by the latest lawyer on their way out.
The most recent? Bernadine MacAulay, the society’s first in-house general counsel — hired in 2019, supposedly to cut down on those too-expensive fees being paid to by-the-hour hired-gun lawyers — has been fired after just two years on the job.
“My employment with the society was terminated on February 23rd. I was not provided a reason,” MacAulay told allnovascotia.com last week in an email.
Allnovascotia, the subscription business news website, remain the best source of information on the what — if not the why — of whatever is happening inside the society.
Better certainly than the society itself.
“Bernadine MacAulay is no longer general counsel with the Nova Scotia Barristers’ Society,” Acting Executive Director Jacqueline Mullenger unhelpfully explained to allnovascotia’s Eva Hoare. “The society will in time seek to fill this role. As this is a personnel matter, we will respectfully limit providing any further detail.”
The society — of course — wished Ms. MacAulay “all the best” as it pushed her out the door.
Let’s circle back to the beginning of MacAulay’s time at the society.
She was hired in 2019 by then-Executive Director Tilly Pillay. Pillay was the first person of colour to hold the society’s top job, a fact of which the society seemed justifiably proud at the time.
On November 17, 2017, the bar society boast-posted on Facebook:
A warm welcome to Tilly Pillay, QC.: NSBS Council announced today that Tilly will be the next Executive Director of the Nova Scotia Barristers’ Society!
But if you follow that Facebook link today to what one assumes was once the official announcement of her appointment, you get the message, “Requested Page Not Found.”
Pillay resigned last spring for reasons that have never been fully explained.
Between Pillay and MacAulay, the society’s director of professional responsibility, Andrew Taillon, also left after less than a year on the job. No explanation was provided for his departure either.
They weren’t the only ones. Members of the society’s governing council have been jumping ship with shocking frequency.
- Jim Rossiter, the council’s president, quit early in 2021, less than seven months into his one-year term, vaguely noting that the stress of the job had become more than he “could bear.”
- The second vice-president, Denise Mentis-Smith, quit early too, without publicly explaining why.
- In November 2021, Josie McKinney — an Indigenous lawyer, Nova Scotia’s first fulltime human trafficking prosecutor and the co-chair of the society’s racial equity committee — quit “as a result of the direct and systemic racism and discrimination that I have experienced during my time on council.”
- That same day, Rod Wilson — a former president of the Nova Scotia College of Physicians and Surgeons who was a volunteer public representative on the council — resigned too, describing his experience at the bar society as “one shit show after another for the last two years. NSBS has been by far the most dysfunctional organization and least rewarding” of the many boards he’d served on.
What is going on here?
There seems to be, as I wrote in May 2021, a continuing thread running through the story of the ongoing turmoil inside the bar society.
One incident appears to have triggered much that has followed.
Start back on June 30, 2020, just 10 days after a white police officer in Minneapolis, MN, murdered a Black man named George Floyd by kneeling on his neck for what only seemed like forever. The incident triggered worldwide protests — but also reflection. Corporations, politicians, communities, organizations suddenly came forward to acknowledge their own systemic, institutional racism and promised to do better.
The bar society almost did that. It said in a statement, again on its website, that it was “saddened by the recent tragedies.” Claiming it has been “deeply committed to addressing issues of systemic racism, including anti-Black racism in the justice system” since publication of the Marshall inquiry report 30 years before, the society acknowledged the need for continued “action and education” on the issue. It promised it would “lead Nova Scotia’s legal profession by example.”
Laura McCarthy read that statement. McCarthy is a member of the Nova Scotia bar society, a lawyer, a Black lawyer. Her life partner, and former legal partner, Lyle Howe, is a former Black lawyer who was disbarred by that same society in 2017 after the longest, most expensive and controversial hearing in the society’s history. (You can read the backstory to the case in the Examiner’s series “Who is Lyle Howe? And Why Are So Many People Saying Such Nasty Things About Him?” Part I and Part II.)
In the end (though there do seem to be endless appeals working their way through the judicial system), the society’s white-only hearing panel acknowledged it could indeed see some “connection” between Howe’s perception of a system biased against him and “historic and systemic racism” in Nova Scotia. But it nonetheless concluded there was “little evidence of actual, discriminatory attack” against Howe and proceeded to disbar him for at least five years, even initially insisting he fork over $150,000 to the society before it would consider reinstating him.
Less than a month after the society’s George Floyd moment, McCarthy fired off a broadside in response, declaring herself “deeply offended” by the bar society’s “empty words” about anti-Black racism.
“The NSBS has demonstrated to me that they are like many other institutions within the justice system and institutions across North America, using the law as it suits them whilst holding down Blacks. The NSBS cannot move into a new chapter of trust and equality with their marginalized members and the public when there is so much discrimination dirt still under their rug.”
In April 2021 — after the still unexplained resignations of Rossiter and Mentis-Smith and the departure of Pillay, not to forget all the internal reckoning triggered by McCarthy’s letter — the society belatedly issued a mea culpa.
We acknowledge and regret the existence of systemic discrimination in our justice system and within the Society [emphasis mine] … We have heard the voices of those dissatisfied with our efforts to date and we accept that we must do more.
To help figure out what “do more” meant, the society appointed Doug Ruck, a former provincial ombudsman and a well-respected labour and human rights lawyer, to head up what it called “a comprehensive external, independent review of our regulatory policies and processes to identify and address any areas of systemic discrimination that exist within the society.”
At the time, the society estimated the review would take “at least eight–10 months” but promised it would “share a final report, including the reviewer’s findings and recommendations,” as well as providing its own “short-and long-term goals, solutions and changes required to eliminate or mitigate systemic discrimination in the Society and encourage an organizational culture free of bias.”
While we wait for that review and how the society’s intends to do better, the society itself appears to be continuing to implode.
- J. McKeough, a Sydney Mines lawyer who was suspended recently by the society for 10 months for various and sundry ethical breaches, is suing the legal regulator for what he calls its “negligence and systemic failings,” as well as for running its affairs like an “untouchable Old Boys Club.”
- And Donn Fraser, the New Glasgow lawyer who was suspended by the society last year, is threatening legal action if the society doesn’t publicly explain the departures of MacAulay and Taillon, two key players in the disciplinary actions against him.
Not to forget Lyle Howe, who is still fighting his suspension.
All of which raises what is a different — and larger — question even than Doug Ruck’s review mandate: Should Nova Scotia lawyers continue to be privileged to regulate themselves?
In a 2015 paper for the Canadian Bar Foundation, John Pearson, then general counsel for the Attorney General of Ontario and formerly Nova Scotia’s first independent director of public prosecutions, made the case that “the only justification” for legislators to hand regulation of the legal profession over to its practitioners “is the public interest.” But Canada’s self-regulating legal profession, he argued, “was born out of professional self-interest.”
Thanks to a growing consensus among lawmakers in England and most Commonwealth countries that legal regulators had “abandoned their public interest mandate in favour of acting as lobbying organizations for lawyers,” lawyers there have been “stripped of their exclusive authority to govern themselves and a legislated co-regulatory regime was imposed.”
Canada, in fact, is a “last bastion of self-regulation.” Even the Canadian Bar Association mused in a 2013 report that public demands for us to follow the rest of the Commonwealth “may only be a matter of time.”
That time, based on the recent record of the Nova Scotia Barristers’ Society, is past.
The NS Barristers Society needs a complete legislative and operations overhaul….First, the disciplinary function should ber removed and legislation enacted by the NS House of Assembly to establish a discipline body with jurisdiction over discipline of lawyers in the full scope of their delivery of legal services….lAll other NSBS activities should be placed either with the NS Bracch of the Canadian Bar Association or a newly established organization with a mandate to provide education and social activities for the benefit of practicing lawyers…It is most important to have an Independent tribunal with jurisdiction over and responsible for qualifications and discipline.
There needs to be distinction between self regulation and regulating the disciplinary mechanisms with respect to lawyers. There are a number of common law jurisdictions where lawyers engage in self regulation with respect to practice rules, but the development of rules of professional responsibility and disciplinary measures against lawyers are handled by the court systems. Attached is an American Bar Association Report on disciplinary enforcement, which was published in 2018. https://www.americanbar.org/groups/professional_responsibility/resources/report_archive/mckay_report/
I want to know who are the “bad guys” left standing– those left standing must have done the dirtywork.
The case of Lyle Howe should still plague the Barristers. How dare they disbar him, nearly bankrupt him and try to destroy him?
Canada is the “last bastion” of self-regulation for many professions actually, and it’s long past time to consider whether granting professions the right to regulate entry, establish standards and discipline members is always in the public’s best interests. A few years ago, the Nova Scotia government established a policy for assessing when it’s appropriate to grant a profession the powers of self-regulation (which is accessible on its website here: https://novascotia.ca/treasuryboard/manuals/PDF/100/10310-01.pdf) but it’s not clear to what extent the policy has been implemented. In theory, the policy could be used as a starting point for reviewing existing professions as well, but I would be surprised if Mr. Houston – himself a member of a regulated profession – has much interest in pursuing that possibility, unless it will help address issues in the healthcare sector, where self-regulation of medical professions is the norm. If I recall correctly, something like half of all self-regulated professions in NS (and there are a lot of the) are in the healthcare sector.
My own sense is that one of the reasons self-regulated professions have proliferated in Canada is that, when government recognizes a profession needs to be regulated, self-regulation is viewed as the most “cost-effective” option. Often, however, that cost-effectiveness is illusory. Even when government bears no direct cost for regulating a profession, it often bears the costs indirectly – particularly in the healthcare sector.
Of course the Bar Society will not\ cannot deny any of this. Perhaps all self-regulating professions have similar problems.