The structure and function of the law society, including the possibility of regulating alternative business structures, is a key question as the Law Society of Alberta’s members vote in their bencher election this week.
The province’s law society is currently seeking input from the profession regarding possible changes to its governance and adjudication models as well as possible amendments to the Legal Profession Act to allow for the regulation of alternative business structures. The LSA has scheduled town halls across the province to engage with lawyers on these issues.
Rob Armstrong, privacy counsel and manager of access and privacy with the Calgary Police Service, was elected bencher in 2014 and is running for re-election. He says these elections are attracting more attention than usual.
“Entity regulation, alternative business structures, specifically non-lawyer ownership of law firms, that’s a real issue of interest to a great many people in the profession,” Armstrong says. “That’s attracted the attention of the profession . . . and made people more engaged than they have been in the past.”
The LSA is seeking input on how it needs to adjust to serve a changing legal landscape, says Arman Chak of Edmonton’s Forensic Law. He is running for his second term as a bencher. He practises in human rights, employment, administrative and civil litigation.
If alternative business structures are going to offer legal services, they need to show they have the proper expertise, Chak says.
“I’m not a fan of letting clearly legal issues become part of an unregulated body,” he says. “But I am also not a fan of excluding good ideas from becoming part of our new legal norm.
“If we allow non-legal entities to do what their expertise is, we shouldn’t be quick to say, hey! That’s only for lawyers.”
Chak says the legal system already relies on expert input from counsellors, psychologists, accountants and others and that the legal profession should not restrict informed involvement from, for example, a family counsellor in a family law case.
“I would say where there’s the expertise that’s required and where those individuals have put forward a really good, really healthy plan, I would totally support them,” he says.
Armstrong says there are organizations in Alberta offering legal services that are “offside” according to the current legislation, but they are helping to address unmet legal needs.
Armstrong cites the family law incubator at the University of Calgary Faculty of Law, a project that offers law school graduates a two-year term, including their articling year and first year as a lawyer, where they provide legal services to clients who cannot afford legal help or are representing themselves. Armstrong says the LSA is not equipped to regulate such a model, as many in the program are not yet lawyers.
“As a regulator, we’re in a position of basically having to turn a blind eye to these practice models because we don’t have the power to regulate the entity that is the organization,” Armstrong says.
The LSA is currently consulting with lawyers about adjusting its regulatory approaches so it can oversee an ABS such as this. That could result in working with the provincial government to amend the Legal Profession Act.
“We don’t think we can just bury our heads in the sand and say ABS will never be an issue for us and it will just go away. At some point, ABS is going to be an issue,” Armstrong says.
“Either we as a law society are going to step up and make decisions and regulate it or the government’s going to do it,” Armstrong says. “It’s not about allowing non-lawyers to deliver services — that’s not what we’re talking about. This is about lawyers delivering services in different ways,” he says.
Other key issues in this bencher election include diversity and improving access to justice.
Don McGarvey, a partner at McLennan Ross LLP, says that lack of access to justice has partly contributed to the rise of self-represented litigants, which McGarvey says are tying up courts with “abusive and vexatious claims.”
The year 2016 saw “unprecedented demand” for legal aid in Alberta, according to the Legal Aid Alberta 2016 annual report.
On top of greater demand is lack of resources. The huge decline in the price of oil has hurt the investment income on which Alberta’s legal aid relies for funding.
Armstrong also says that the LSA is considering decreasing the number of board members and separating those who govern and those who adjudicate.
“There is a body of literature out there that suggests there is an inherent conflict in being both the policy setter and policy enforcer and that the best practice is to have those two functions separated,” he says.
But decreasing the number of board members would also make another task more difficult, says Armstrong, since there is more opportunity to elect a diverse group with a bigger board.
“Unfortunately, those who have been courageous enough to put their name forward do not reflect the diversity in our society because our bar doesn’t reflect the diversity in our society. That’s a problem. To me, that’s a big problem,” says McGarvey.