British Columbia lawyers attending the Law Society of B.C.'s annual general meeting voted to support a resolution that if adopted by benchers would block the implementation of alternative legal service providers known as licensed paralegals.
The Dec. 4 AGM vote saw 861 lawyers in favour, 297 against and 62 abstaining on the controversial but amended Resolution No. 3 submitted by members Peter Leask and Karen F. Nordlinger. The amended resolution requested the benchers ask the B.C. government to refrain from forming any regulations relating to licensed paralegals until the benchers had a greater period to consult on the issue and secondly asked the benchers to not proceed with licensing paralegals in the family law practice area.
The move comes after B.C. Attorney General David Eby pushed through legislative changes to the Legal Profession Act that would establish a class of licensed paralegals, which the LSBC's benchers had been instrumental in requesting.
LSBC president Miriam Kresivo, who chaired the AGM and headed the LSBC's Alternate Legal Service Provider Working Group, which advocated for the use of non-lawyers, says benchers would have to give the membership decision "serious consideration."
“It will have to be considered as part of the consultation process,” she says, but she added that she would not be involved in that process.
The LSBC is calling for submissions from lawyers until Dec. 31 on whether the LSBC should regulate and credential alternate legal service providers with the first providers realized in the family law area. The submissions will be considered by the LSBC before making recommendations to the benchers.
However, the role the benchers plays may be a moot point as they are not bound by an AGM resolution, but the B.C. government's rapid ascent or final reading of amendments of the Legal Profession Act also limits the ability of benchers to dictate who practises law.
Leask, who addressed the Vancouver session, says he amended his earlier Resolution No. 3 (which asked benchers to withdraw their request to government to have the Legal Profession Act changed to include licensed paralegals) as Eby had already successfully introduced statute amendments that turned the Legal Profession Act into the Legal Professions Act. Eby introduced Bill 57 - 2018: Attorney General Statutes Amendment Act in mid-November, which outlined changes including a class of licensed paralegals, and by Dec. 1, the new statute was passed.
The Leask-Nordlinger resolution is grounded in the argument that licensed paralegals would not be able to handle complex family law legal issues without a combination of experience and legal training that non-lawyers could not achieve.
At the AGM, Leask warned that Eby's legislative changes with regulations in place takes away the ability of benchers to decide who could practise law in B.C. A change in the new Legal Professions Act states that “a resolution is not binding on the benchers if to implement the resolution would require the benchers to enact, rescind or amend a rule made under section 15.1.” (This amendment section now includes licensed paralegals.)
Following the AGM, one member called the changes to Legal Professions Act "the writing on the wall" as Eby had earlier addressed the profession at an earlier October AGM, (which was aborted because of technical voting glitches), and asked members not to support the Leask-Nordlinger recommendation. At that time, he said more legal alternatives were needed to support those in the family law area who could not afford the services of a lawyer.
At the AGM, a member speaking remotely from Victoria compared the legal profession's inability to accept change as standing on a railway track with a speeding train heading toward it.
“This train is coming fast," said the member. "We need to slow the train and get on it,” adding that, by doing so, there was the ability to steer it in the right direction rather than be run over.
Bill Veenstra, who serves as past president of the B.C. branch of the Canadian Bar Association but prefaced his remarks as his own personal views, warned that it was clear that the B.C. government was moving in the direction of providing alternate service providers and that the profession risked its independence if it did not respond. The monopoly that the profession enjoys is rooted "in the willingness to put the public first," he says, adding the profession with its high cost of lawyers is not serving that public need.
"People are simply not getting the help they need to resolve their family law problems," he says.
He says that if the profession does not act, then the government will figure out a solution that could be outside the realm of the LSBC. "It is up to the legal profession to become part of the solution."
Speakers, including Leask, said the solution lies in providing more legal aid funding into the system, but Veenstra and others at the AGM called the argument "a red herring" as the segment of society that needed alternative solutions did not qualify for legal aid but could not afford the rates charged by lawyers.
Leask says one solution to consider might see legal aid paying part of the cost of a lawyer with the individual involved in the dispute paying the remaining fee.
Nordlinger, a long-time family law practitioner, says she is concerned that women and children will lose much of the momentum gained in achieving evolving legal rights if a lesser degree of legal expertise is relegated to dealing with their family law disputes. "These are new rights and very fragile rights," she says, expressing concern for their sustainability if licensed paralegals were allowed to practise family law independent of a lawyer's oversight.
"Family law would become nothing," she says, without a strong bar and judiciary continuing to lead the progress in law in this area. She says she doubts that training could provide the combination of expertise and experience needed to deal with family law issues and it was common to see junior lawyers working under the guidance of a senior lawyer in this field.
Nordlinger is skeptical that providing licensed paralegals will solve the access-to-justice issue because there is research indicating a lack of credible evidence as to what exactly is the access-to-justice problem and how it is measured.
Former 2012 LSBC president Bruce LeRose says the opinion by lawyers that the LSBC cannot credential and regulate licensed paralegals is "hog-wash" as it has been regulating the profession for 135 years. He says it is time for the profession to face the realities that exist as the public feels lawyers are too expensive and government funding is not enough.
"Legal aid will never be completely funded. What is wrong with having a model with a licensed paralegal that could work with small firms or sole practitioners?" LeRose says.