january 30 , 2015 • THE LAWYERS WEEKLY Focus 13 BUSINESS LAW This legal niche a perfect storm of law Corporate lawyers advising self-regulated bodies need expertise in everything from administration to litigation Even the very large firms may not have lawyers who deal with corporate law from this perspective, and if a firm does, it would likely be one or two lawyers... Cathi Mietkiewicz n Ontario, a number of profesIincluding sions are self-regulated, lawyers, many healthcare professions, and such professions as accountants, architects, and foresters. All of these self-regulated professions have professional bodies such as the Law Society of Upper Canada, or any one of the health regulatory colleges responsible for their regulation. Also, various industries are regulated in one form or another, and have some kind of oversight body responsible for that regulation. Naturally, these regulators rely on lawyers to assist with a variety of regulatory issues related to complaints, discipline, and registration. However, these regulators also need corporate advice, and that advice needs to be tailored to comply with their regulatory responsibilities. I advise regulators on corporate and governance issues. For me, practising corporate law in the regulatory world is one of the most interesting and unique challenges of traditional corporate law. Very few lawyers practise in this perfect storm where corporate law, regulatory law, and administrative law intersect. Even the very large firms may not have lawyers who deal with corporate law from this perspective, and if a firm does, it would likely be one or two lawyers where this niche is only a small part of their practice. I served on the board of a regulatory college for nine years, six of them as president, and after becoming a lawyer, practising in this perfect storm made sense. In addition to the usual considerations, when regulators enter into contracts they must take into account their public protection role, public policy considerations, the impact on the regulator’s ability to regulate the profession, and other legislative restrictions. A contract that is perfectly acceptable from a corporate perspective can often create a host of problems if a regulator enters into it. Something as simple as who has the authority to execute agreements and bind the corporation (and in what circumstances) may not be obvious. A lawyer who fully Cathi Mietkiewicz Steinecke Maciura LeBlanc mstay / iStockphoto.com understands the special issues that regulators need to take into consideration is needed in order to avoid these pitfalls. Regulators are also responsible for implementing standards of practice, policies, and practice advisories to govern the profession for which they are responsible. In creating these kinds of guidance and regulatory documents, a regulator has to ensure that any policy or guideline will be effective when used in a complaint or discipline matter. These documents are considered “soft law” in the sense that they are not legislation or case law. Regulators will use them to guide various committees in such areas as complaints or quality assurance. Although these documents are not directly enforceable at a discipline proceeding, they can assist an expert witness who is testifying at a discipline hearing. Some regulators also have the authority to propose regulations to their enabling act. Such regulations are directly enforceable in discipline, and must be crafted in order to allow for meaningful interpretation and enforcement. A thorough understanding of administrative law and litigation is necessary for a corporate lawyer to assist in drafting these kinds of documents. Like all corporate organizations, regulators need bylaws to govern the administrative affairs of the organization. But unlike other corporations, regulators often have distinct restrictions on the types of bylaws they may enact. Generally, regulators are incorporated by way of statute, meaning they do not have articles of incorporation that set out their objects and restrictions; these must be determined by reading and understanding the relevant act. As well, their administrative bylaws may not only impact the running of the organization, but significantly impact the professions and industries being regulated. For example, health regulatory colleges in Ontario may include provisions in their bylaws setting out what type of information about their members, such as discipline history, will be accessible to the public. Recently in Ontario we have seen increased media pressure being placed on regulators to publish more information about the members they regulate. Amendments to a regulator’s bylaws can be made to accommodate this increased transparency; however, the bylaws must comply with any confidentiality provisions in the controlling act. Another difference between bylaws for regulators and for other not-for-profit organizations can be the rights and qualifications of membership. Typical, not-for-profit bylaws will usually set parameters regarding how members can meet membership requirements and how those members can be disqualified from membership. Not-for-profits are usually given great discretion in setting up these parameters, but this is not true for regulators. The requirements for membership are usually set out in statute or regulation, and disqualification usually means some sort of formal discipline process must take place. Lawyers who draft administrative bylaws for regulators need to be aware of the limitations and influence of those bylaws; the bylaws are anything but “off the shelf.” Cathi Mietkiewicz is an associate with Steinecke Maciura LeBlanc who advises regulators on issues involving board governance, contracts, privacy, as well as developing regulations, policies, bylaws and standards of practice. She was previously president of the College of Opticians.
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