Move would directly regulate paralegals for the first time
The BC government has outlined its ideas for creating a single regulator in the province for lawyers, notaries, and paralegals but vows it has “no intention” of interfering with the legal profession’s independence.
“The importance of an independent bar to the functioning of a free and democratic society cannot be overstated,” the Ministry of the Attorney General states in an intentions paper outlining its suggestions for modernizing the regulation of the legal profession in BC.
However, it stresses that “it is not proposing, and has no intention of implementing, changes that would interfere with the ability of a lawyer or other legal service provider to fearlessly advocate for their client and provide independent legal advice to their client, even, and especially, when their client is at odds with government.”
The ministry adds it would not implement changes that would see a shift away from “what is commonly referred to as ‘self-regulation.’” But self-regulation “does not mean no oversight or involvement by government – it means that the legislature has made a policy decision to assign a professional regulator the primary responsibility for the development of structures, processes, and policies for regulation.”
Chad Rintoul, CEO of the BC Notaries Association, which represents 96 percent of practising BC notaries, says the group “has been advocating for expanded scope of practice for notaries in areas of non-contentious law for several years.” He adds that the provincial act governing notaries is outdated and “requires modernization” to address expanding the scope of practice for the profession.
The association supports the province’s initiative, Rintoul says, “with the understanding that the governance structure of the new regulatory body for legal professions will provide equal representation on the Board of Directors from each of the legal professions to be included under the new legislation.”
Before the release of the intention paper, the association told the government that “the unique identity of BC notaries must be retained in new legislation and regulation.” A legislative review task force study will study the intentions paper should report back to the association’s board during the week of October 3.
The Law Society of British Columbia wrote in an email, “It is early in the board’s consideration of the ministry’s intentions paper” but plans to provide a “formal response in due course and certainly prior to the stated deadline.” A discussion of the intentions paper is on the agenda at a society bencher meeting this Friday.
The Canadian Bar Association BC Branch said in a statement that it has "long been supportive of a single regulator of lawyers, notaries and paralegals as it would allow for better coordination and regulation of the professions who provide different kinds of legal services."
The statement added: "Lawyers must continue to be self-governed and self-regulated to establish the framework for entry to the profession, the standards professionals must meet, and the investigation and consequences when standards are not met."
While the discussion around creating a single regulator has gone on for years, the latest endeavour started in March 2022. That’s when the attorney general’s ministry announced a project to modernize the regulatory framework for legal service providers in BC to help make it easier for the public to access legal services and advice.
Between March and June 2022, the ministry held several meetings with representatives of the LSBC, members of the notaries association, and a representative of the BC Paralegal Association.
The result of those discussions was a paper that summarized the ministry’s intentions and a suggested template for obtaining input from the public and stakeholders, such as Indigenous groups and legal professionals. A refined proposal would then go to the legislature for consideration.
“The rationale for change is simple,” the government document states, “far too many people in BC cannot afford the cost of a lawyer.” A survey conducted for the LSBC by Ipsos in 2020 found as many as 60 percent of those in BC with a legal problem get no legal advice about their situation. More than half of those who get advice get it from someone other than a lawyer.
The government has added approximately $40 million to the annual budget of the Legal Services Society and has been funding eight new legal clinics in the province. However, the paper says, “we cannot rely solely on legal aid and pro bono work done by lawyers as the complete solution to the gap in access to legal services.”
Access to legal services is, in part, a regulatory issue because rules around who is allowed to provide what services impact the availability (and cost) of those services to the public, the intentions paper says. “Access to legal services is also a governance issue because it requires a governance framework that prioritizes the public interest over the interests of the professionals it regulates.”
The CBABC said in its statement that it differs from the government's view on whether a single regulator will significantly impact access to justice. "The biggest opportunities to increase access to justice. . . include investments in family law legal aid, digital transformation of the courts and tribunals, and public legal education to prevent disputes and increase self-directed resolutions."
While there have been previous efforts to provide more ways of providing legal service to the public, they have “either been unsuccessful or have been approached on a smaller-scale or piecemeal basis.” These include the LSBC’s “innovation sandbox.”
This initiative allows individuals and organizations to propose a new technology, structure or legal service they want to provide to the public. If a proposal is accepted, the proponent is issued a “no action” letter which means that the LSBC will not prosecute the proponent or seek an injunction against them for the unauthorized practice of law. As of August 2022, there are 27 proponents of innovative services.
However, the report says there are limits to such a “no action” regulatory model for both proponents and the public. “From a proponent’s perspective, licensing can help establish credibility with the public, and from the public’s perspective, licensing helps assure them that the services are provided by competent and insured providers. It also provides a regulator with a more extensive set of regulatory tools when the services provided are unsatisfactory.”
The report notes that paralegals are not directly regulated in BC. Under the LSBC’s rules, a paralegal may provide some legal services, but they must work under the supervision of a lawyer responsible for their conduct. The LSBC also allows a lawyer to supervise up to two “designated paralegals” who can perform additional duties but remain subject to the oversight of the supervising lawyer.
In 2018, the BC legislature amended laws governing lawyers to create a new category of legal services providers called licensed paralegals, which would have given the LSBC the authority to make rules establishing the scope of practice of licensed paralegals or a class of licensed paralegals. However, these amendments still need to be in force.
The report states that BC’s notaries are also unique in Canada. They must complete a master’s degree program and have a broader practice authority than notaries in other jurisdictions.
Although their current scope of practice includes matters that are otherwise typically limited to lawyers (including drafting of some wills and real estate work), notaries are regulated under a separate statute from lawyers and by an independent regulator. Some notaries have been seeking an expanded scope of practice for many years.
Over the last decade, many efforts have been made to improve legal regulation and increase access to legal services for British Columbians. These efforts include attempts to amalgamate the two current regulators and other initiatives.
In 2012, the BC government asked the LSBC and the notaries group to develop a proposal for the government’s consideration on the “direction for regulatory reform of legal and notary services in the province.” In response, the two regulators advised that a single, unified regulatory body that oversees the regulation of all legal service providers was the optimum model. However, despite that consensus, no final agreement emerged.
The proposed reforms in the latest intentions paper include:
- A single regulator that would govern all current and future regulated legal service providers and ensure a consistent expectation of professional accountability regardless of the specific professional.
- A clear mandate for a regulator would have the broad authority to regulate the competence and integrity of legal service providers in BC and promote the rule of law. It would establish conditions or requirements of licensee registration, reinstatement and renewal, establish enforcement standards of practice and the professional responsibility of licensees;
- A modernized governance framework that would build a structure and election/appointment process to ensure the regulator’s board reflects all British Columbians, including Indigenous representation.
- A flexible licensing system that ensures the public can find the kind of legal services that meets their needs, whether through a lawyer, notary, licensed paralegal, or otherwise. It is also adaptable, giving the regulator the tools and discretion needed to respond to the changing legal landscape.
- An enhanced focus on the public interest through statutes that include public accountability suitable for regulating in the public’s interest and not that of a membership-driven association.
- An efficient discipline framework that ensures the public understands the types of complaints a regulator can address and that there be transparent and “culturally safe” support for historically underrepresented groups and vulnerable individuals to participate.
The ministry is also asking for feedback on the proposals contained through an online survey available at this website until November 18, 2022. Written submissions may also be emailed to [email protected] until November 18, 2022.