BC undermining lawyer independence with Legal Professions Act: LSBC, CBA BC Branch

Legislation combines notaries, paralegals, and lawyers under one regulator

BC undermining lawyer independence with Legal Professions Act: LSBC, CBA BC Branch
Scott Morishita, Niki Sharma, Jeevyn Dhaliwal

The NDP government of British Columbia has introduced legislation that would amalgamate the Law Society of BC with the regulators for notaries public and paralegals.

If Bill 21, the Legal Professions Act receives Royal Assent, the Law Society of British Columbia plans to mount a constitutional challenge. The Canadian Bar Association BC Branch (CBABC) also says it does not support the “problematic” legislation.

CBABC president Scott Morishita says that when the government announced its intention to make these legislative changes, his organization’s primary concern was preserving the bar’s independence. The CBABC is not opposed to bringing paralegals and notaries under “one modernized statute,” he says.

“The condition being that with any change, lawyer independence has to be preserved. In our view, this new legislation does not adequately protect the independence of the bar. The fact is it clearly undermines the independence of the bar.”

Morishita spoke with Canadian Lawyer the day after the legislation became public and adds that the CBABC is still assessing the details and has yet to consult membership, the profession, government, and other stakeholders. He says the CBABC will consider whether to participate in the law society’s litigation as an intervenor.

The law society said in a news bulletin that it is “deeply concerned” that Bill 21 will have a “detrimental effect on the ability of legal professionals to represent the public.” Lawyers represent people whose interests are often opposed to those of government, and the law society must maintain independence from government influence, said the regulator.

Bill 21 is intended to modernize the lawyer regulation, increase access to justice, and “squarely situate the regulator in the public interest,” says BC Attorney General Niki Sharma.

“The independence of legal professionals is built into this legislation,” she says.

The regulator’s board of directors will include five directors elected by lawyers, two elected by notaries public, two paralegals either elected by paralegals or appointed by the other directors, three directors appointed by the Lieutenant Governor in Council, and five directors appointed by a majority of other directors – four of whom must be lawyers.

In total, 14 of the 17 directors will be legal professionals, and the government appoints three, says Sharma. Nine of the directors will be lawyers, five of whom will be elected by lawyers.

“We feel that the governing board of this new regulator should be composed of a majority of lawyers who are elected by lawyers,” says Morishita. “And it has to be more than a slim majority. That's a necessary condition in order for independence of the bar to be preserved.”

Sharma says the legislation is aligned with legal profession independence. Decisions about how discipline is conducted and how the regulator engages with the professional membership will all occur without government interference, she says.

“Lawyers need to be able to independently represent their clients without government interference. Setting up a self-regulator that acts in the public interest is the way you accomplish that.”

“With this bill, we've protected that. The jurisprudence has also been clear that there is a role for the legislature when it comes to protecting the public interest.”

Law Society of BC president Jeevyn Dhaliwal says the regulator is concerned about the content of the bill and the lack of consultation that occurred during its development.

“It represents a seismic change in the regulation of the legal professions in British Columbia, and it warrants much more daylight than has been shone on the intended legislation.”

In 2018, she says the law society was aware of the access to justice issue and asked the province to amend the legislation governing the regulator to allow for the licensing of paralegals. There has also been “significant discussion” over the years about bringing notaries under the law society’s umbrella as well.

Dhaliwal says the province could have brought all the stakeholders together to discuss how amendments to the Legal Profession Act could work before tabling legislation.

She says the attorney general has also been “short on detail’ as to how the bill would increase access to justice.

“I would like to draw attention to the fact that the government does have in its control a very tangible method by which to increase access to justice,” says Dhaliwal. “That's to take the nearly $6 billion that has been collected in provincial sales tax on legal services since 1992, when this tax was imposed on the provision of legal services, and direct that toward Legal Aid.”

That is a “solution waiting to happen,” she says.

Dhaliwal disagrees that the proposed Legal Professions Act would modernize the current statute because the latter has approximately 90 sections and the former has around 317.

“Creating more regulation rather than less regulation, in my mind, does not do anything to increase access to justice. In fact, it does the opposite. Where you are bound by more regulation, you are bound to have more difficulties in interpreting and implementing.”

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