Regulating ’s Information in a Digital Age: Publication and Access to Lawyer Disciplinary Information

Shane Sackman, B.A.(Honors), B.A.(Distinction), J.D. The author is currently Research Counsel at the of . The views in this paper are provided for discussion and information purposes and do not necessarily represent the views of the now or in the future.

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Introduction Legal regulators are purveyors and collectors of a body of sensitive and important information about their members. Increasingly, in Canada and elsewhere, the public has come to expect readily available “google” access to information about members in a profession. This is understandable. Individuals are accustomed to ready access to information to make their consumer choices, and that predilection spills into choice of legal service provider. These increasing pressures for access to information, in turn, raise issues for professional regulators. Regulators must assess how to be responsive to public demands, while still acting as fair and model regulators. Professional regulators are increasingly being looked to as facilitators of information that the public needs to make informed choices. It is cliché at this point to note that the Internet has forever changed how we use and disseminate information. The Internet enables anyone to access a vast range and scope of information almost effortlessly. The struggle in the information age is not availability of content, but critically assessing and sorting the content.1 There are a wide variety of social benefits to having broad availability to information, and individuals can make more informed decisions than ever before. However, the digital age has also brought its share of social ills. There are increased risks to individuals as information can now be accessed by a larger audience than ever before, and individuals often struggle to properly assess the reliability of information. This has given rise to the legal and social idea of a right to be forgotten (RTBF).2 While Canada does not presently have a RTBF, the conceptual building blocks of this type of right have slowly been emerging in Canada over the last few years, raising new concerns for legal regulators.3 This paper will focus on one area where the digital age is raising new considerations for legal regulators in Canada – publication of a member’s disciplinary history and corresponding access to that information for the public. The handling and dissemination of this type of information brings into focus the debate around the RTBF and the public interest in easy access to meaningful information about professionals they may wish to use. For example, how long should disciplinary information be readily available? Should disbarred members of the profession forever be listed in a readily accessible public space? How is the public interest in knowing about the professional they may hire best facilitated? As will be outlined below,

1 For an in-depth review of information literacy and its evolution see Eisenberg, Michael B. et al, Information Literacy: Essential Skills for the Information Age, 2nd Ed (Greenwich Publishing: Westport, 2004). 2 See Rosen, Jeffrey, The Right to be Forgotten, 64 Stan L. Rev. Online 88 (2011-2012) and Bennett, Steven, The “Right to be Forgotten:” Reconciling EU and US Perspectives, 30 Berkley J Int’l 161 (2012) for some general discussions of this topic. 3 See Fasken Martineau Privacy and Information Protection Bulletin, The “Right to be Forgotten” has a three-piece suit tailor- made in Canada? From Quebec to British Columbia, (March, 2017). Available at: http://www.fasken.com/en/the-right-to-be- forgotten-has-a-three-piece-suit-tailor-made-in-canada-from-quebec-to-british-columbia/ accessed September 13, 2017. See also Google Inc v Equustek Solutions Inc, 2017 SCC 34, which is the appeal of Equustek Solutions v Google, 2015 BCCA 265 mentioned in the article. The Supreme Court of Canada upheld the British Columbia Court of Appeal decision in a 7-2 majority. The Office of the Privacy Commissioner of Canada also commissioned a discussion paper called Online Reputation: What are they saying about me? Available at: https://www.priv.gc.ca/media/1810/or_201601_e.pdf accessed September 14, 2017. This paper also discussed the RTBF at pp 5-6.

2 regulators should be aware of how their many choices in this area affect public consumption of information. The purpose of this paper is to provide an overview of how several Canadian regulators publish registry and disciplinary information about members, and to guide discussion on this emerging issue.4 All regulators benefit from being cognizant of the fact that they play a major role in assisting the public navigate information about the members they regulate. Gone are the days of simply keeping hard copies in a backroom. Regulators are now forced to enter the digital sphere, but with that comes added concerns about how and where information is accessed. This paper will outline these access issues in three parts below. Section 1 will expand on the general debate between access to information proponents and the emerging RTBF in Canada. Section 2 will provide a more detailed overview of how some jurisdictions in Canada publish certain types of member’s information – such as registry and disciplinary information. Finally, the paper will end by discussing several potential parameters to consider when publishing member information in the digital age.5 1. Access to Information versus Privacy by Obscurity The focal consideration for legal regulators will be how to balance a RTBF with the public’s right to access information.6 This section will outline the two sides of this debate, as they are evolving in Canada. a. Access to Information In Canada, the public increasingly wants “google” access to information about , particularly disciplinary information. Some members of the public view failure to make this information readily available as akin to hiding it. Public confidence can be eroded when regulators fail to meet the legitimate expectations of the public they serve. Public regulators share a common responsibility to be responsive to these concerns. What is paramount for all legal regulators is to protect the public interest and maintain public confidence. This has been emphasized repeatedly in legal authorities and statutes, and it is the

4 In Canada, there has been an increased push for uniformity between each of the legal regulators operating in the country. Canada has thirteen separate jurisdictions: ten (10) Provinces and three (3) Territories that all have their own territorial legal regulators. The structure is similar to Australia or State Bar Associations in the United States. This paper will focus on Alberta, the author’s home jurisdiction, but will also include comments regarding other jurisdictions where applicable. It is worth noting that there is broad homogeneity between each of the different jurisdictions enabling acts and regulations in Canada regarding this particular issue. This is an emerging universal consideration for legal regulators across Canada. 5 In particular, (i) scope of digital footprint? (ii) are there time limits on how long information will be publicly linked? and (iii) consideration of whether publication should form part of sanction considerations. 6 See for example Rosenstock, Michael, Is there a “right to be forgotten” in Canada’s Personal Information and Protection and Electronic Documents Act (PIPEDA)?, available online at: http://www.it-can.ca/wp-content/uploads/Rosenstock-Right- Forgotten.pdf accessed September 13, 2017 and see also Gratton, Eloise and Polonetsky, Jules, Droit a l’oubil: Canadian Perspective on the Global “Right to be Forgotten Debate” (March 31, 2017). Colorado Technology Law Journal (Spring 2017, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2944012.

3 focal point for legal regulators in Canada. For example, in Pharmascience inc v Binet, 2006 SCC 48 the Supreme Court of Canada stated clearly:7

[36] This Court has on many occasions noted the crucial role that professional orders play in protecting the public interest. As McLachlin J. stated in Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 S.C.R. 232, “[i]t is difficult to overstate the importance in our society of the proper regulation of our learned professions” (p. 249). The importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them. Also, it should not be forgotten that in the client-professional relationship, the client is often in a vulnerable position. The Court has already had occasion to address this point in respect of litigants who entrust their rights to lawyers (Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45 (CanLII), at para. 17). The general public’s lack of knowledge of the pharmaceutical field and high level of dependence on the advice of competent professionals means that pharmacists are another profession in which the public places great trust[…]

The reality is that expectations have changed in the digital age, and regulators must address these demands. The Courts in Canada also recognize this reality. Appellate Courts have noted that the public has a “legitimate interest” in knowing their chosen professional’s “efficiency, skills and motivation”. Further, the public should not have to play a “game of 20 questions” to try and access this information.8 The public relies on legal regulators to help them navigate what they need to know about their chosen lawyer. It is not realistic to expect individuals to copy file folders during regular business hours any longer to find this information.

Further, there can also be broader benefits to readily accessible members’ information. Another issue that has arisen in Canada is that some former lawyers try to forum shop for a new jurisdiction to practice in.9 This was possible because these members would fail to disclose their previous enrollment or disciplinary history. The legal regulators in Canada do not have linked electronic databases for this information, this information must be confirmed manually. The reality for many jurisdictions in Canada is that they do not have the resources and time to confirm this type of information in an application. It is assumed, to some degree, that applicants are not being actively deceitful. Transparent readily accessible information can help curtail this problem in a digital age. This helps protect the public from members who seek to move to other jurisdictions to escape sanctions. In the age of increasing cross-border movement of lawyers, this may also help protect members of the public across the globe.

b. The Right to be Forgotten

On the other side of this debate, is whether members have some RTBF. It is still unclear whether this will become a fulsome right in Canada, but it is an important fairness principle for legal regulators to consider nonetheless. This principle originated in the European Courts that have

7 This is Canada’s highest Appeal Court. 8 See Zakhary v College of Physicians and Surgeons of Alberta, 2013 ABCA 336. 9 A related issue is that some lawyers also continue to practice despite their suspensions, and readily available status information helps ensure members of the public can check to see if their lawyer is a member.

4 recognized a right that allows individuals to stop data search engines or other third parties from providing links to information about them deemed “irrelevant, no longer relevant, inadequate, or excessive”. This is not a right to fully remove or purge information from the public, but to simply not facilitate ready and easy “google” access.

This principle comes from Google Inc v Agencia Epanola de Proteccion de Dotas, 2014 ECR 131, commonly known as Google Spain. In Google Spain a Spanish lawyer discovered that google searches of his name linked him to an old newspaper article about old bad debts that he had long since repaid. He petitioned to remove this linking arguing that he had a right to be forgotten, as this continued to harm his reputation. The Court ruled that the publications could remain on the newspaper’s website, but Google was to delete any link connecting these articles back to the lawyer. 10 The standard developed by the European Court was that information deemed “irrelevant, no longer relevant, inadequate, or excessive in relation to those purposes and in the light of the time that has elapsed” should be delisted.11

This principle is not law in Canada, but increasingly there is debate about whether some version of it will be imported in Canada. Recently, AT v Globe24h.com, 2017 FC 144 (Globe) received significant attention in the information privacy world in Canada for potentially opening the door to a RTBF.12 In Globe, a Romanian website had gathered together links from publicly available legal databases.13 These decision repositories are delisted from general google searches, but this Romanian webpage added hyperlinking to publicly available court and administrative tribunal decisions. The Federal Court ordered that they remove this hyperlinking noting that:14

[75] […] In making this argument, the Commissioner relies on the Canadian Judicial Council’s (CJC) Model Policy for Access to Court Records in Canada (Model Policy) and the OPCC’s own guidance document to federal administrative tribunals. The CJC Model Policy discourages decisions that are published online to be indexed by search engines as this would prevent information from being available when the purpose of the search is not to find court records. The policy recognizes that a balance must be struck between the open courts principle and increasing online access to court records where the privacy and security of participants in judicial proceedings will be at issue.

[76] The CJC has struck a balance by advising courts to prevent judgments from being discovered unintentionally through search engines. To this end, the CJC has recommended that judgments published online should not be indexed by search engines. The OPCC notes that CanLII and other court and tribunal websites generally follow the CJC’s Model Policy and prevent their decisions

10 See Case C-131/12, Google Spain Sl v Agencia Espanola de Proteccion de Datos, 2014 ECR. The foundational statutory regime for this is European Directive 95/46/EC, quoted at some length in the decision. 11 Ibid, at paras 93 and 94. 12 See for example http://blog.privacylawyer.ca/2017/02/did-canadian-federal-court-take-first.html accessed September 13, 2017 and Sookman, Barry, PIPEDA’s Global Extra-Territorial Jurisdiction: AT v Globe24h.com (February, 2017). Available at: http://www.canadiancybersecuritylaw.com/2017/02/pipedas-global-extra-territorial-jurisdiction-a-t-v-globe24h-com/ accessed September 13, 2017. 13 The most popular free service in Canada is CanLII, a free database that emulates the structure of Westlaw. 14 It should be noted that Global involved individuals who were ransoming others for money to take down their webpage that was facilitating hyperlinking. This extortion tactic certainly factored into the decision, but the general principles in Global still mirror the idea of a RTBF.

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from being indexed by search engines through web robot exclusion protocols and other means. Indeed, the Federal Court has taken such measures to prevent our decisions from being indexed. That does not bar anyone from visiting the Federal Court website and conducting a name search. But it does prevent the cases from being listed in a casual web search. The respondent’s actions result in needless exposure of sensitive personal information of participants in the justice system via search engines.

The Supreme Court of Canada has echoed this sentiment in other privacy decisions noting that “the objective of providing an individual with some measure of control over his or her personal information is intimately connected to individual autonomy, dignity and privacy, self-evidently significant social values”.15 There is a burgeoning body of law that supports the idea that individuals may have some RTBF.

To be clear, legal regulators in Canada have broad powers to permissibly collect, use and disclose personal information of its members without their consent in order to discharge their regulatory mandate.16 This is not really in dispute. However, collection, use and disclosure powers in Canada are subject to a general “reasonableness” standard.17 This is a nuanced area of law that is beyond the scope of this paper, but legal regulators in Canada generally assess whether the collection, use and disclosure of information is reasonable in the circumstances.

The principles set out in Google Spain and Globe impact the work of legal regulators. In the pursuit of greater access to information for the public, regulators should be conscious of the reach of their publications and use of information. The public certainly has an interest in relevant and germane information regarding what professional to use, but it is also important to consider if there is a point where this information becomes “excessive or no longer relevant”. If a member has been removed from the profession for a decade, is any purpose served by continuing to create a google friendly link to them? This concern becomes more acute if this link continues to hamper this former member’s employment prospects outside of the profession.

Further, there is a reason why most of the RTBF case authorities have developed in the context of Google. Google is one of the most trusted sources for finding information. With that added

15 See Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 at paras 22-24. 16 For example, the Alberta Personal Information and Privacy Act, SA, 2003 c P-6.5 (PIPA) places information restrictions on any personal information, which is broadly defined in PIPA, absent an exemption that allows for collection, use or disclosure. The Law Society of Alberta qualifies for two different exemptions to collect, use and disclose personal information. Personal information can be collected, used or disclosed if it is authorized by a statute of Alberta or Canada or it is authorized by a “legislative instrument of a professional regulatory organization”, see Section 20(i) and (iv) of PIPA. A legislative instrument of a professional regulatory organization is defined as “means a bylaw, resolution or rule that is (i) enacted or otherwise established by a professional regulatory organization under an Act or a regulation of Alberta, and (ii) of a legislative nature”. There is little doubt this applies to rules and conduct manuals made by legal regulators. 17 There are limited case authorities that assess “reasonableness” in the circumstances. The case authorities do note, however, that more is needed than simply pointing to a valid reason, some evidence that the disclosure advances that purpose is required, but the stated method used need not be the “best” or most desirable means of accomplishing a policy goal. See for example Penny Lane Entertainment Group v Alberta (Information and Privacy Commissioner), 2009 ABAB 140 and Leon’s Furniture Ltd v Alberta (Information and Privacy Commissioner), 2011 ABCA 94. These are Alberta authorities, but the other statutory regimes in Canada are similar on this point.

6 status comes added responsibilities and considerations. Legal regulators are no different. Members of the public turn to professional regulators for help digesting what information is important and germane about professionals. There has never been such permanency and volume of information in the past.18 Regulators should be mindful of their role in helping the public review the information they need to make informed choices, not simply be a conduit of everything the regulator does.

c. The Case of “John Smith”

A hypothetical example might illustrate this point. We have all had the experience of getting a misleading google thumb tab before. A potential client might search “John Smith” and get:

…disbarment… John Smith attended before the hearing committee… allegations of trust account… found there was a lack…

The link might then take you to a large search page, where it is difficult to find the source of the thumb you found. The sources turn out to be a lengthy PDF document, and the potential client gives up searching further or reading the case and chooses a different lawyer. The full text of the paragraph might read:

[71] As for sanction, disbarment was suggested by Counsel for the Law Society. John Smith attended before the hearing committee and showed regret of failing to respond to the Law Society promptly. The allegations of trust account misappropriation were not made out. We found there was a lack of evidence to corroborate those claims […]

This is an artificial example, but it hopefully highlights the point about information synthesizing in a digital age. Ease of access online can sometimes have unintended consequences, especially for sensitive information.

2. Canada’s Disciplinary Publication Regime

a. Overview – General Structure In Canada legal regulators are given broad statutory mandates to publish and deal with member information. For example, the Legal Profession Act, RSA c L-8 (LPA) in Alberta provides broad powers to publish member information. The Law Society of Alberta can make broad rules regarding what information and content it can collect in the public registry of lawyers, called the roll.19 The Executive Director then has broad powers to publish this information.20 Similar

18 See Greene, Tim, Schneier: fight for Privacy or Kiss it Good-bye, (March, 2010). Available at: https://www.cio.com/article/2419910/security0/schneier--fight-for-privacy-or-kiss-it-good-bye.html accessed September 13, 2017. Mr. Greene wrote an interesting piece about how human beings are naturally inclined to forget information and over time records and memories fade. However, in a digital age we risk living in a terrifying world that “never forgets” a prospect that was never realistic or possible before. 19 See Section 7(2)(f.1) of the LPA. 20 See Section 30 of the LPA.

7 provisions and statutory structure can be found in other jursidictions in Canada as well.21 This homogeneity stems from the National Discipline Standards of the Federation of Law Societies of Canada22 that stipulates that:

19. There is a directory available with status information on each lawyer or Québec notary, including easily accessible information on discipline history.23

Generally, in Canada legal regulators typically have24: (1) a publicly accessible list of its members; (2) historical information about its members, with discretion about how much of this information is shared and how it is accessed25; and (3) a requirement to post disciplinary tribunal decisions and orders, with broad discretion on how this information is published and stored.

At each of these steps, regulators must grapple with how to deal with this information in a digital age. There is little controversy in Canada that there should be a publicly accessible roster of members online. Every jurisdiction in Canada has an electronically accessible list or roster of

21 See Section 11 of the Legal Profession Act, SBC 1998, c 9 and rules 2-12, 2-14, 3-46, and 4-47, 48,49 of the Law Society of British Columbia Rules for British Columbia. See Section 28(3) of the Legal Profession Act, SS 1990, c L-10.1 and Rules 187(5), 400, 400.1 and 495(2) of the Law Society of Saskatchewan Rules for Saskatchewan. See Sections 43 and 80 of the Legal Profession Act, CCSM 2002, c L-107 and Rules 5-96(9), 5-96(10), 5-100 of the Law Society of Rules for Manitoba. See Sections 27.1, 35, 44 and 62 of the Law Society Act, RSO 1990, c L-8 and Section 10 of Law Society Upper Canada Bylaws 8: Filing Reporting Requirements for Ontario. See Section 60 of the Act Respecting the Barreau du Quebec, C B-1 and Sections 108.8, 133, 180 and 182 of the Professional Code, CQLR, c C-26 for Quebec. See Sections 16 and 61 of Law Society Act, SNB 1996, c 89 and Rules 81 and 98 of the General Rules under the Law Society Act, 1996 and Professional Conduct Policy 3.0 for New Brunswick. See Sections 28(3) and 46 of the Legal Profession Act, SNS 2004, c 28 and Rules 4.6.9, 4.8.1, 4.8.5, 4.8.7 of Regulations Made Pursuant to the Legal Profession Act, SNS 2004, c 28 for Nova Scotia. See Sections 6(2) and 41 of the Legal Profession Act, RSPEI 1988, c L-6.1 and the National Disciplinary Standard, Section 19 for Prince Edward Island. See Section 51 of the Law Society Act, SNL 1999, c L-9.1 and Rule 9.28 of the Rules of the Law Society of Newfoundland and Sections 3.1.4 and 4.1 generally of the Professional Responsibility Policy: Publication-Discipline Proceedings for Newfoundland. See Section 6 of the Legal Profession Act, RSY 2002, c 134 and Rules 144, 145 and 146 of the Rules of Law Society of the Yukon for the Yukon. See Sections 8 and 32.2 of the Legal Profession Act, RSNWT 1988, c L-2 and Rules 32.2 and 70 of the Rules of Law Society of the Northwest Territories for the Northwest Territories. See Sections 8 and 32.2 of the Legal Profession Act, RSNWT 1988, c L-2 – shares the same Act as the Northwest Territories and Rule 69 of the Rules of the . Nunavut has also adopted the federation model code. 22 The Federation of Law Societies of Canada plays a coordinating role among its member law societies, promotes the development of national standards, encourages the harmonization of law society rules and procedures, and undertakes national initiatives as directed by its members, among other activities, see http://flsc.ca/about-us/ accessed September 15, 2017. 23 See http://flsc.ca/wp-content/uploads/2014/10/DisciplineStandardsJune2016.pdf accessed September 14, 2017. 24 It is also worth noting that there are many relics in various provincial regulatory regimes in Canada. Newfoundland, for example, still references that “newspaper” publication is how information regarding member disciplinary information will be published, see Section 51(3) of the Law Society Act, SNL 1999, c L-9.1. Alberta also still calls its membership registry the “roll” in its enabling statutes. This is a historical reference to a large rolled parchment from the United Kingdom that held the names of all members of the bar. It is not unfair to say the legislative regimes in Canada are not terribly helpful in providing guidance on how to deal with the broad range of information each regulator keeps. Canadian regulators have to forge their own path and rules. 25 Some jurisdictions have more detail or requirements on this point, but generally it is open ended.

8 members.26 It is very helpful for the public to be able to quickly input a name to confirm if that person is a lawyer or not. The debate becomes more nuanced when considering how much additional disciplinary and other similar information should be linked to these postings. b. Public Registry Details The level of detail on members available digitally in each registry in Canada varies significantly. There are, broadly speaking, three different types of registry regimes in Canada: (i) fulsome searchable databases with direct links to disciplinary information; (ii) partial information databases with some information and (iii) minimalistic registries with little member information. It should be noted that most disciplinary decisions are available publicly through services like CanLII. Below are some examples of each of these registry regimes: (i) Searchable Database: British Columbia has a detailed lawyer directory that provides direct links to disciplinary decisions and reasons regarding members under each member profile.27 There is also information about practice status and current investigations of lawyers.28 Member information regarding disbarred members is removed after two (2) years. This is one of the more google friendly databases. Saskatchewan also has a broad searchable database for members. Any member who has disciplinary information has a note indicating that there is a “disciplinary history” for the member. However, there is no targeted link to these decisions or reasons.29 There is no information regarding members who have been disbarred. (ii) Partial Information: Alberta includes practice status information about a member and any disciplinary information since 2015 on the publicly available electronic registry.30 Alberta has a publicly available list of decisions and orders, separate from the registry for older information. Ontario has a registry system very similar to Alberta, but with more categories of status that provide more details about why members are suspended or inactive.31 For both Alberta and Ontario, the public has to seek out older disciplinary information.

Newfoundland & Labrador has a similar regime that sets out practice status information, but no direct links to disciplinary information. There are no former

26 It should be noted that the level of detail and how up-to-date these registries are does vary. 27 This goes back historically until the 1990s. 28 See https://www.lawsociety.bc.ca/lsbc/apps/lkup/mbr-search.cfm accessed September 14, 2017 29 See https://lss.alinityapp.com/WebClient/registrantdirectory.aspx accessed September 14, 2017. 30 See https://lsa.memberpro.net/main/body.cfm accessed September 13, 2017. 31 See http://www2.lsuc.on.ca/LawyerParalegalDirectory/loadSearchPage.do accessed September 13, 2017.

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members available online. There is also no readily accessible organized disciplinary database for members provided.

(iii) Minimalistic: Quebec has a minimal registry that only provides basic contact information of members.32 There is no status information or disciplinary history. There is also no readily searchable database for disciplinary history. Further, the registry is not up-to-date, so members of the public still have to call to verify if a member is an active member.33 Each of these regimes started from a similar place, with broad powers to craft access to information parameters.34 Each of these regimes navigated this public access question differently with varying degrees of transparency. These choices have a large impact on access for members of the public. For example, Alberta and Newfoundland & Labrador have fairly similar member information sections, but Alberta has a searchable disciplinary list a click away from the registry. Historical information is close at hand. Conversely, Newfoundland & Labrador has a less accessible disciplinary database, and the public directed to CanLII to find information. It is an interesting question to consider how far a member of the public will go to verify information. All of these details may seem small. However, remember that companies and organizations pay individuals significant sums of money to optimize search functions and “googlability”. The search example of “John Smith” above illustrates why this might be important. Disciplinary decisions in Canada have traditionally followed a model similar to the Court, they were posted briefly and then stored in a fairly inaccessible way for the general public. Now the public expects to find this information digitally and easily. It was mentioned previously in this paper that regulators have a responsibility to help the public review pertinent and helpful information about professionals. It is important to unpack what that might mean in a digital age. Regulators are a trusted source, how our digital footprint manifests itself matters.35 In Saskatchewan, for example, when you search for a member on the public registry, there is a small link letting individuals know if the member has a disciplinary history. There is no direct link to the details of what the disciplinary history might be. A member of the public may search a lawyer and see “disciplinary history” and then decide to not hire that lawyer without digging further into the details, because it takes extra work. Having a disciplinary history at all contains a certain stigma.

32 See http://www.barreau.qc.ca/en/barreau/bottin/ accessed September 14, 2017. Interestingly, Quebec has some of the most stringent privacy legislation in Canada. 33 See http://www.barreau.qc.ca/en/public/protection/vrai_avocat/index.html accessed September 14, 2017. 34 See footnote 21. 35 See https://www.internetsociety.org/tutorials/your-digital-footprint-matters/ accessed September 14, 2017 for some interesting interactive quizzes and information about this topic.

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In Manitoba, the regulator distributes summaries of decisions online, and the links to full decisions are more difficult to access.36 Perhaps a more curated disciplinary history is desirable, it may even better assist members of the public assess what is helpful. Others may view this vetting as too paternalistic. Regulators have a responsibility to assist the public by giving them pertinent information, and should give real consideration on how to best achieve this goal. c. Lawyer Referral Services There is another type of broadly requested information that helps illustrate this point. Members of the public often contact regulators in Canada for lawyer referrals. Several regulators offer a lawyer referral service, but it is prefaced with the caution that the referral information is not an endorsement of that lawyer’s skills or abilities. In Alberta, lawyer’s sign-up by practice area for the referral service. If a member of the public calls, they are given a list of three (3) members on the roster practicing in the area. This is not a recommendation of the lawyers, and skills and desirability are not assessed by the regulator.37 Other legal regulators do not provide a referral service at all.38 The rationale for this caution is summarized on the Law Society of Alberta’s webpage as follows:

As the regulator of Alberta lawyers, the Law Society must remain objective and does not provide referrals based on credentials or experience. Alberta lawyers have the option to sign up for the service and referrals are made based on the area(s) of law they indicate they are practicing.39 Regulators assist the public in navigating the process, but they must remain objective. The same idea should be kept in mind regarding publication of all manner of information regarding members to the public. The public would likely be very receptive to a quality control assessment from the regulator, but this has been resisted by regulators in Canada. Disciplinary information is different, but the concept is similar. People want disciplinary information to get a sense of who they are hiring. Regulators assist in this process, but they should be cognizant of how their publication and access choices affect public market choices. Whether the answer is free and unfettered access or some type of controlled, yet accessible, publication is an open question. 3. Considerations for Publication The purpose of this paper is not to come to a definitive recommendation, which is not possible given the multiplicity of concerns each regulator will grapple with. The purpose is to discuss competing concerns and provide examples of how these matters are handled in Canada. This

36 See http://www.lawsociety.mb.ca/lawyer-regulation/discipline-case-digests/alphabetical accessed September 14, 2017. 37 See https://www.lawsociety.ab.ca/public/lawyer-referral/ accessed September 14, 2017 for Alberta. Quebec and Ontario offer a similar service, see http://www.barreau.qc.ca/en/public/trouver/avocat/ accessed September 15, 2017 for Quebec and https://www.lsuc.on.ca/lsrs/ accessed September 14, 2017 for Ontario. 38 See Saskatchewan, Manitoba and Newfoundland as examples. 39 See https://www.lawsociety.ab.ca/public/lawyer-referral/ accessed September 15, 2017.

11 paper will conclude with a few tools that emerge when you look more closely at what Canadian regulators are doing. a. Gating Information Online database services such as CanLII delist their webpages to avoid google hits. A number of regulators in Canada also do not have easily googled disciplinary databases. However, a number of the public bulletins for disciplinary matters can be caught by google functions. The John Smith example helped illustrate how this can be a problem. When acting as a public posting board for member information, it is important to account for how that information is accessed and digested by the public. b. Length of Time The main thrust of Google Spain and similar cases is not that information should disappear from the Internet, but instead that accessibility should be useful and not overbroad or no longer useful. In Canada, several jurisdictions have time limits on how long disbarred members remain in their public registries. In British Columbia, former members remain in the registry for two years and in Ontario they are removed after three years. In Manitoba, brief summaries of disciplinary information are published, and detailed overviews of hearings are placed in non- indexed hearing databases such as CanLII. How long this information remains useful is a difficult question. Egregious offenders may need to remain up indefinitely because of a public risk they may attempt an authorized practice. Minor reprimands, however, may cease to have much relevance overtime. More regulators in Canada are grappling with how much, how long and what level of detail is most helpful for the public to properly assess their chosen legal professionals. While it is outside of the legal regulator sphere, it is interesting to note that other professional organizations in Alberta such as doctors, dentists, accountants and veterinarians have term limits for all types of member disciplinary information. Most of the other professions have regulatory or statutory time limits between six (6) to two (2) years, on average, for the retention of disciplinary information.40 c. Is this a type of Sanction? The other matter to consider, that is directly engaged by Google Spain and Globe, is whether it is desirable to think about publication breadth as a type of sanction. The public wants access to useful and germane information. In a digital age this implies some level of assistance from legal regulators to help the public find what they need. In some cases, is the public interest really

40 See for example Dentists Profession Regulation, Alta Reg 254/2001, section 35, the Chiropractic Profession Regulation, Alta Reg 277/2006, section 33(d), the Physicians, Surgeons and Osteopaths Profession Regulation, Alta Reg 350/2009, section 42 and Bylaw 1502 of the CPA bylaws at http://www.cpaalberta.ca/Protecting-the- Public/~/media/CPA%20Media/CPA%20Files/PDFs/Protecting%20the%20Public/CPAA%20Bylaws%20Dec%207%202016.pdf accessed September 22, 2017.

12 served by keeping a minor disciplinary note on a member’s file indefinitely? This may engage debate about paternalistic concerns; maybe the public should be left to make their own choices based on everything. There are no easy answers to this, but the best way to come to definitive conclusions about these issues is to consider them clearly and make consistent choices.

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