Divergent opinions in legal profession about impact of proposed B.C. regulatory law

By Ian Burns ·

Law360 Canada (May 14, 2024, 3:52 PM EDT) -- The B.C. government has been faced with stiff opposition since introducing its plan to overhaul the legal profession, with the provincial law society and bar society both arguing it represents an attack on the independence of lawyers. But this opinion is not a unanimous one, with other legal observers saying it has the potential to make access to justice more accessible in British Columbia.

Bill 21, the Legal Professions Act, would create a new single regulatory body for lawyers, paralegals and notaries public in the province and create a new category of legal service provider called a regulated paralegal. The scope of notaries public would also be expanded to cover more day-to-day legal matters, such as helping clients with the probate process or preparing wills that have a life estate component.

At the time of the bill’s introduction, Attorney General Niki Sharma said it would give people more options and help level the playing field for people trying to resolve legal issues, with fewer self-represented litigants trying to navigate a Byzantine system.

But the legislation met with the ire of both the Law Society of British Columbia (LSBC) and the Canadian Bar Association, B.C. Branch (CBABC), both of whom called it an attack on lawyer independence. Of particular concern was the issue of governance at the new regulator — under the legislation, the 17-member board will be composed of a majority of lawyers but only five of them will be elected. The remaining four would be appointed by the board, with three directors appointed by the province.

And CBABC president Scott Morishita said that does not adequately protect lawyer independence.

“A key component of lawyer independence is self-regulation, and in order for self-regulation to be preserved, the governing board of the new regulator must contain a majority of lawyers that are elected by lawyers — and that must be more than just a slim majority,” he said. “And this composition of the board in the legislation does not meet that requirement.”

LSBC president Jeevyn Dhaliwal

LSBC president Jeevyn Dhaliwal

Morishita’s concerns were echoed by LSBC president Jeevyn Dhaliwal, who said the independence of the profession and the independence of the regulator are inextricably linked together.

“The legislation is also overly prescriptive — it requires the board to do things it’s been doing for a long time under the current legislation and takes a lot of our rules and puts in the new Act itself. So, right there is a lack of ability for the regulator to be nimble,” she said. “When it determines there are issues to be addressed within the practice, we as benchers have been able to amend the rules — and the new regulator will not have that ability to be nimble in that way.”

Both Morishita and Dhaliwal decried what they called a lack of consultation on Bill 21. Dhaliwal noted there is only a passing reference to the public in the Act, and no significant outreach has been done to public interest groups to ask what they think regulation of the legal professions should look like.

“And that concerns us greatly because any erosion of the independence of the regulator and the profession has significant downstream consequences for the public and its access to legal services,” she said.

Morishita said he feels that the current government has not been particularly open to widespread consultation on legislation in some instances, pointing to the decision to bring in a no-fault automobile insurance system.

“I think that seems to be a trend, at least from my observation, of how this government operates — there was really no meaningful consultation with the CBA or the trial lawyers over no-fault,” he said. “When it comes to this bill, the government really should have consulted more broadly and much earlier in the process.”

When it comes to the new responsibilities being granted to paralegals and notaries, Dhaliwal noted the law society has operated its “innovation sandbox” for several years, which allows for different legal service providers to serve the public in some matters — and that person will receive a letter from the law society that says it will take no action against them as long as the services are provided competently and do not harm the public.

“There is no opposition from the law society to providing more options for the public to access legal services, but if you follow the messaging that’s been provided for this Act that it provides a modern regulatory framework and that will increase access to justice — these are things we’ve already been doing, and quite simply could have been done with a few tweaks to our current Legal Profession Act without abolishing the law society and its 150 years of operational expertise,” she said.

Morishita said he takes issue with any narrative that says opposition to the legislation is just lawyers defending their turf. He noted CBABC does not oppose bringing notaries and paralegals under one regulator and is not against non-lawyers providing some legal services, provided there are adequate protections in place for the public.

“But this legislation does not include anything dealing with scope of paralegals. What the government has done is they have said they would like to the newly formed regulator to figure out that scope, but they’ve also left it as an option that government can set out the scope by regulation,” he said. “So, that scope will be something that’s very critical because they have to figure out a way to set out a scope that allows for more people to come in to provide legal services to British Columbians while ensuring they are protected and safe.”

But the bill does have its supporters in the profession. Former law society president Nancy Merrill said it will benefit the public by improving the efficiency and transparency of the regulation of the legal profession, and Access Pro Bono Society of B.C. executive director Jamie Maclaren opined that it will enhance the diversity, number and affordability of legal services.

Robert Lapper, the Lam Chair in Law and Public Policy at the University of Victoria, said the legislation will promote a much-needed expansion in the range of service providers who can help with legal problems and innovations in the way legal services are delivered — which will lead to making justice in B.C. more accessible.

“Access to justice is a complex problem and really requires multiple paths to find solutions, and this will be one piece of that. It certainly won’t solve the problem entirely, but it will expand the number of people who are able to provide legal services — some of whom will do that at a lower cost than lawyers, and some of whom can do things that lawyers probably don’t need to be doing like filling out forms,” he said. “Expanding the nature of legal services provided and the number of service providers, and that will undoubtedly help to lower the cost.”

Lapper, who previously served as the CEO of the Law Society of Upper Canada (now the Law Society of Ontario), said he doesn’t see a direct line between the need for independence in the lawyer-client relationship and what is being proposed.

“There’s a general sense that because we don’t have a majority of elected lawyers, that somehow means the regulator won’t be independent,” he said. “But I don’t see a line drawn between that and asking how this actually affects a lawyer’s ability to independently advise and advocate for their client.”

Attorney General Sharma was unavailable for an interview, but a spokesperson for the B.C. government said it is aware of the concerns raised by the law society and the CBABC but added the level of engagement with the legal professionals, Indigenous partners and the public on Bill 21 has been extensive and has spanned more than two years. And there is no credible argument that the model proposed by Bill 21 implies greater government control, the spokesperson said.

“We understand and agree with the critical importance of ensuring that lawyers can continue to provide legal advice and representation to their clients without fear of interference from the government that could undermine their commitment to their clients’ causes,” the spokesperson said. “This bill does not impede lawyers in their ability to fearlessly represent their clients [and] continues a model of self-regulation for legal professionals with lawyers having a majority voice on the regulator’s board and licensees occupying 14 of the 17 positions on the board.”

Despite these assurances, the law society has said that it plans to challenge the constitutionality of Bill 21 unless it is changed. Dhaliwal said the level of appropriate government involvement in a legal regulator is a matter that has never been decided by the courts.

“But understand that this is not our first choice in this matter — we don’t want to be in a position having to launch a court challenge to consider the constitutionality of this Act,” she said. “But the public deserves that we take these steps because we feel that it so fundamentally affects the independence of the regulator and thereby the independence of the profession.”

The Legal Professions Act has passed second reading at the B.C. legislature and is currently before provincial lawmakers.

If you have any information, story ideas or news tips for Law360 Canada please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.