BC's Bill 21 aids access to justice, sacrifices independence of legal profession, say lawyers

Province's proposed reform of legal regulator has sparked a firestorm among lawyers

BC's Bill 21 aids access to justice, sacrifices independence of legal profession, say lawyers
Jamie Maclaren, Michael Elliott, Jordan Furlong

Following the province’s proposal to reduce the number of elected lawyers serving on the Law Society of British Columbia, lawyers are debating the bill’s potential impact on the independence of the legal profession.

BC’s NDP government recently introduced Bill 21, the Legal Professions Act. In addition to altering the composition of the LSBC’s board of directors, the legislation will bring lawyers, notaries, and paralegals under one regulator.

Attorney General Niki Sharma told Canadian Lawyer that the bill is intended to modernize lawyer regulation, enhance access to justice, and allow the law society to operate in the public interest.

Under Bill 21, the board will be composed of 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, nine of the 17 directors will be lawyers.

As it is currently structured, the law society has 25 lawyer benchers elected by other lawyers and six benchers appointed by the government.

Critics of the legislation say it will undermine the independence of the legal profession because too few lawyers elected by other lawyers are on the board. If passed, the law society said it would respond with a constitutional challenge of the law.

“I understand the fear and apprehension that many BC lawyers have in relation to the proposed single legal regulator. Change is difficult,” says Jamie Maclaren, a civil litigator and founding executive director of Access Pro Bono. He spoke to Canadian Lawyer in his personal capacity, not as a representative of Access Pro Bono. “But making space for new legal professionals isn’t a zero-sum game. It’s not an exercise in depriving and denigrating lawyers. It’s meant to increase affordable legal service options for everyday people and serve many of their unmet legal needs.

“I expect the new class of regulated paralegals to be a real boon for pro bono and legal aid organizations in BC since it will expand their range of affordable options for serving clients of varying levels of legal literacy and need,” he says.

According to Michael Elliott, reducing elected lawyers to a minority on the legal regulatory board “ends self-regulation for lawyers in British Columbia.” He says it is the first time lawyers have lost self-regulated status in Canada. Elliott is a partner at Rice Harbut Elliott LLP in Vancouver and practises personal injury law.

“The loss of self-regulation significantly undermines the independence of the legal profession.”

Elliott says the bill “waters down and weakens” the bar’s independence and allows for more significant government influence and overreach, while an independent legal profession is supposed to function as a “check and balance” against the government. The province’s objectives – improving access to justice, modernizing the regulatory framework, and increasing Indigenous voices in the regulatory body – can all be achieved while still allowing lawyers to retain self-regulation and preserve the bar’s independence. He says there is no reason for the province to interfere with the board's composition other than to weaken its independence to give the government more influence.

“An independent bar is a foundational cornerstone in any functional democracy.”

Jordan Furlong is a lawyer, author, speaker, and strategic consultant to legal organizations. He is a former legal journalist and runs the blog “Law21: Dispatches From a Legal Profession On The Brink” and a weekly Substack newsletter.

Furlong notes that Bill 21 reduces the number of government-appointed board directors from six to three, making it difficult to argue that the proposed arrangement threatens the independence of the legal profession. He finds the proposed board composition problematic because it includes too many legal service providers.

“I've been saying to law societies and regulators for quite some time, the public interest has got to be the paramount consideration of any legal regulation body. It's very difficult to know how to act in the public interest if you have very few members of the public providing you with that perspective.”

He also believes that popular elections determining the members of a regulatory body’s board are inconsistent with the obligation to operate in the public interest because the interests of lawyers tend to overwhelm the public interest.

“All you have to do is take a look at bencher campaign materials, not just in BC, but across the country. I need hardly point out the fiasco Ontario has gone through for the last few rounds of bencher elections to see that it is the interests of the profession that dominate these campaigns.”

Suppose, says Furlong, that the National Energy Board was composed of 30 directors, 25 of whom were allocated to representatives of the oil and gas industry and elected by members of that industry. “How confident would any of us be, looking at a board so constituted, that they would act in the public interest rather than the interests of the industries they represent?”

Another of his criticisms involves proportionality. While notaries and paralegals represent around one-tenth of the province’s legal-professional population, under Bill 21, they have four of the nine seats allocated to elected legal professionals.

Bringing paralegals into the law society’s fold creates another tier of authorized legal service providers, says Furlong, which is a step in the right direction for access to justice amid an accessibility crisis.

“It's basic economics. You increase the volume of supply, reduce scarcity, bring down prices overall, and increase the depth of assistance available on the market.”

While no draft legislation is perfect, says Maclaren, Bill 21 is a good start in providing more affordable options in legal services for the BC public.

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