Bar association, law society respond to B.C. proposals on regulatory modernization

By Ian Burns

Law360 Canada (December 8, 2022, 1:50 PM EST) -- Representatives of the legal profession in British Columbia have made their voices heard in response to proposals from the provincial government on regulatory modernization.

In September, the B.C. government issued an “intentions paper” which proposed bringing all legal professionals under the umbrella of a single statute and by a single regulator, a clear mandate which communicates the regulator’s purpose to its licensees and the public and a modernized governance framework. It sought feedback on the proposals from members of the profession and the public to help guide its decision making in building the statute.

And one organization which responded to the call was the Canadian Bar Association, B.C. Branch (CBABC), which said it supports a single regulator model for the legal profession “as long as these changes do not impact lawyer’s independence and self-regulation.” CBABC president Aleem Bharmal said the issue of independence is critical because “clients need to know that the relationship with their lawyer cannot be interfered with, or influenced by, government.”

“This is a critical cornerstone of the rule of law and democracy, and lawyers have a fundamental obligation to uphold the rule of law and need to remain independent and self-governing to do so,” he said. “We need to know that there is no appearance of the regulator being able to interfere or influence lawyers in terms of their advocacy against government.”

The CBABC is also calling for setting strong parameters for both scope of practice and criteria for education and competencies; an effective investigation and discipline framework; and the provision of satisfactory insurance coverage. It also said it supports a “smaller, more agile” law society board of directors, comprised with a majority of lawyers, along with public appointees, notaries, at most two seats for paralegals, as well as at least one seat reserved for an Indigenous person.

“Also, it is not clear what paralegals are hoping to do right now or how it would be implemented, and until more is known we don’t recommend that the legislation at this point include a scope of practice for paralegals,” he said. “But that will be something that needs to be addressed, including scope of practice criteria and standards of practice.”

Lisa Hamilton, Law Society of British Columbia

Lisa Hamilton, Law Society of British Columbia

The intentions paper was also a subject of discussion at the Law Society of British Columbia (LSBC)’s December bencher meeting. The LSBC is calling for an independent regulator where lawyers constitute a majority of board members, ensuring the board is of a sufficient size to reflect the diversity of the B.C. public and saying any new legislation should enable the regulator and not fetter the broad authority to regulate the competence and integrity of B.C. legal service providers.

The law society also said there should be a “flexible, modular and competency-based approach” for the licensing of paralegals, rather than a defined minimum scope of practice. President Lisa Hamilton said defining a limited scope of practice for paralegals would be contrary to access to justice “in some ways,” saying participants in the LSBC’s innovation sandbox, which considers proposals from individuals seeking to address unmet legal need in the province, are likely “providing a much broader scope of practice in helping the public already.”

“I would say most of the groups [responding to the intentions paper] seem to want to reach a collaborative resolution,” she said. “I am a mediator by nature, and I wholeheartedly think this should be resolved without litigation. I hope this will be the case over the next year, and I hope that a collaborative resolution is possible — because the need for service providers is urgent.”

At the same bencher meeting, B.C. benchers gave the nod to having law society staff explore a “triage hub” model through which people facing a legal problem can obtain information, guidance and preliminary advice about their issues. If adopted, the law society said the model would create hubs staffed by legal service providers who could meet with people who need advice with respect to a problem that they are facing. Simple legal matters to be addressed on site, if possible, much as legal aid clinics do, with referrals being made for more complicated matters.

Access to justice advisory committee chair Lisa Dumbrell said the reality is most people in British Columbia are dealing with their legal issues without assistance, a situation which is exacerbated by the fact that many programs and clinics offering help are undersubscribed.

“What we are proposing would allow people to obtain information and preliminary advice on a very expansive basis, but we are envisioning a combination of brick-and-mortar as well as phone assistance because not everyone is tech-savvy or able to come in person,” she said. “This is a very preliminary type of resolution, but it will allow staff to have those meetings and start looking at this.”

The December LSBC bencher meeting marked Hamilton’s final one as president. She passes the torch to the law society’s first vice-president Christopher McPherson in January.

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