Province plans overhaul of regulatory structure, called 'most significant issue' since LSBC founding
As with any election, candidates in the recent BC bencher election espoused the importance of several different issues during their campaigns, but the most pressing topic was the future of the Law Society of British Columbia and the ability of lawyers to self-regulate. Other issues included better mental health and wellness among members of the profession and better support for articling students.
“I would say single legal regulator was the most dominant issue,” says Law Society of British Columbia president Christopher McPherson. “Understandably, because it is quite a significant change in terms of the regulatory structure for legal professionals in BC.”
Michael Welsh, a lawyer and mediator just re-elected as a representative in the Okanagan district, stresses that moving towards a single legal regulator is more than a single-election issue. “I think it is the most significant issue in legal regulation in British Columbia since the founding of the law society in 1869 as it will change significant parts of the legal landscape in terms of legal regulation in this province,” he says.
The provincial government has been promising to change how lawyers, paralegals and notaries are regulated, placing all three legal practitioners under a common regulatory body – one expected to come with government oversight and participation. Initially, the government promised to have its proposed legislation ready this year, but the deadline has been pushed to spring 2024. Currently, all that members of the profession have seen is a Ministry of the Attorney General intentions paper titled Legal Professions Regulatory Modernization.
“Access to legal services is at least in part a regulatory issue because rules around who is allowed to provide what services have an impact on the availability (and cost) of those services to the public. Access to legal services is also at least in part a governance issue because it requires a governance framework that prioritizes the public interest over the interests of the professionals it regulates,” the paper says while describing some of the motivations for this proposed change.
BC currently does not allow paralegals to be licensed independently. However, according to McPherson, the LSBC operates what it calls an “innovation sandbox” where people who can prove that there is an unmet legal need and who can prove they can operate with an acceptable level of risk to the public can apply to the law society for a letter saying the LSBC won’t pursue them for unauthorized practice. “It’s been reasonably successful… but there’s no real off-ramp. I mean what can you say to your clients? ‘Well, as of now, the law society says I can do this,’” says McPherson, adding that addressing this situation was one of the reasons the government is pursuing the single regulator path.
Another factor, according to Jay Michi, a trial lawyer and partner at Jensen Law Group in Kamloops who was just elected as a first-time bencher, is the desire by notaries to expand their service offerings. He explains that for over a century, notaries in the province have done conveyance work but are also lobbying to expand their service offerings to include wills and estate work. That, says Michi, has lawyers who practise in those areas “very concerned.”
While Michi explains that he has always wanted to be a bencher, he didn’t intend to do so at this point in his career, but the single regulator proposal forced him to adjust his timeline.
“Truthfully, I think I was about five years away from my original plan to go for bencher, but with the discussion about the single regulator and the impending legislative changes which we are expecting to come in the spring, it occurred to me that it might be my last chance if I’m going to be in Kamloops. ‘Will there be a bencher from Kamloops district in the future?’ is the question I ask myself, and there might not be.”
According to Michi, one of the concerns about the proposed change is the expectation to cut back on the number of representatives sitting on the new regulatory body. But how that will function while still ensuring representation from different geographical regions in the province and practice areas as well as a range of diverse members, in addition to paralegal representatives, notary representatives, and government-appointed members, has yet to be made clear.
As for why there is a need to have a smaller regulatory body, that idea comes from a report written for the law society in 2021 by Harry Cayton, formally titled “Report of a Governance Review of the Law Society of British Columbia, " better known as the Cayton Report. Michi calls the report “the driver” of the intentions paper when it comes to limiting the size of the regulatory board.
In addition to concerns about possibly being outnumbered by lay members on the new board, the question of independence is top of mind among lawyers, says Welsh. “We’re concerned that the new regulator will be independent of government and that there will be nothing that will compromise the independence of the bar as well. The government has given assurance that will be the case, but, of course, we haven’t seen what the actual legislation looks like,” says Welsh.
Welsh, who was first elected as a bencher in 2018, stated in his platform that having an independent bar and regulator was necessary, no matter what happens with the government. In his opinion, this election was more competitive than past races, with fewer acclamations. He says people’s concerns with the upcoming changes caused more people to run.
While the results of the bencher election will undoubtedly affect how the law society reacts to any proposed changes by the government, Welsh wonders if a scheduled provincial election (or perhaps one called earlier than the set date) might delay or stop the passing of this initiative. But even if it does not, he’s prepared to keep working as a bencher to promote the independence of the legal profession.
“We can’t stop the government, necessarily, from passing this legislation, but we can certainly take action to prevent anything that’s going to compromise the integrity of the independence of the bar. And it is my belief that we should do so if it comes down to that, even though I hope it doesn’t,” he says.
When or if a single regulator system is adopted, every process the law society is responsible for must be re-examined and reworked. McPherson says that will include everything from conducting credentials hearings to figuring out how disciplinary panels would work with fewer lawyers and more lay people sitting on them. The careers of law society employees will also be up in the air, which McPherson describes as an “awkward and difficult” situation.
Another major issue will be determining if BC lawyers will still have a place (and what that place might be) in the Federation of Law Societies of Canada.
“There are so many advantages of being part of the Federation of Law Societies of Canada, from model codes to speaking with one voice in certain circumstances, because they operate primarily by consensus amongst the law societies.”
As for what happens in BC, Michi suggests that lawyers in the rest of Canada pay attention to any changes that lead to adopting a co-regulation model. “This is not just a conversation that’s happening in British Columbia. It’s happening in various provinces and other jurisdictions across the common law world.”