On March 1, 2022, David Eby, BC Attorney General, wrote to the presidents of the Law Society of British Columbia and the Society of Notaries Public of British Columbia. Eby’s letter outlined several proposed changes to the existing regulatory framework.
What are the proposed changes?
Currently, how the Law Society operates is as all lawyers’ Regulatory agency – they collect our fees which include a large insurance component, and monitor our continued legal education, they receive and adjudicate complaints about lawyer conduct and administer any sanctions related to that, they monitor and sanction any unauthorized practice – such as supposed ‘family law’ consultants who do quasi-legal work for a fee with no legal training and take advantage of the public, they have committees that work on various initiatives for the public’s benefit such as ensuring the legal profession is diverse and represents interests of all groups of people that require representation and; finally, they have practice advisors to support lawyers who run into unique legal or ethical problems in their practice.
All of this is designed to protect the public and ensure that lawyers in BC, as a whole, are representative and doing their jobs and identifying and filling gaps where legal services are still needed. Presumably, this is also what the paralegal and notary society regulatory bodies are doing as well – these two groups are closely aligned in interest to lawyers and do many administrative functions that comprise legal work, such as real estate conveyancing and wills. The big distinction is that neither a paralegal nor a notary can give legal advice. According to the Law Society president, in 2012, the Law Society’s board recognized the value of a single regulator for all legal professionals delivering services to the public. What Mr. Eby is proposing an establishing independent regulator for lawyers, notaries, and paralegals with a specific mandate.
The initial working ideas that will now get developed as a first stage into a legislative proposal will involve:
● regulating all legal professionals in B.C. (lawyers, notaries, and paralegals) under a single statute and by a single regulator.
● establishing a mandate for that regulator that clarifies its duty to protect the public, including the public’s interest in accessing legal services and advice.
● establishing a modern regulatory framework that is consistent with best practices in professional regulatory governance.
● establishing clearly defined scopes of practice for each regulated profession with procedures to allow for expanded scopes as needed.
The proposed changes will also involve establishing a modern regulatory framework (or their operating manual) consistent with best practices in professional regulatory governance.
● Law Society CEO says: As we engage with the Ministry of Attorney General, the Society of Notaries Public of British Columbia, and others, we will work to ensure that the framework for a single regulator protects the public, improves access to legal services and continues to recognize the fundamental importance of independent legal professions.
● That is what the Law Society wants, but it isn’t aligning with what Mr. Eby wants.
What is it that the AG wants to accomplish with these changes?
● The Ministry of Attorney General’s statement says that it seeks to modernize the regulatory framework for legal professionals in B.C., including lawyers, notaries, and paralegals, to better protect people accessing legal services and help improve access.
● Having all legal professionals under one independent regulator will help ensure an efficient and centralized approach to closing the access to justice gap. The changes will also strengthen the governance framework for all legal professions.
● The specifics of these changes will continue to be refined by the ministry in collaboration with the Law Society of British Columbia, the Society of Notaries Public of British Columbia, and representatives of the paralegal profession.
What all of this says is
1) The AG does not see the Law Society and other governing bodies doing their jobs in a way that he thinks they should be doing. It is currently outside government control for the most part, although the AG is a Law Society Bencher.
2) By establishing a government agency or tribunal that provides oversight for lawyers, notaries, and paralegals, it will be like another CRT – staffed and paid for by the government and therefore under the government’s control.
What does this mean for the professionals who this proposes to further regulate?
● The great concern is the greater government oversight and control of lawyers.
● Back when the profession of lawyers was created, it was as an advocate of the people against things such as government tyranny, taxation, and policing.
● Lawyers protected people’s rights that were otherwise under the control of the government rules and laws.
● This is slowly being eroded – lawyers now gather information routinely and report it to government agencies – things such as residency status, for example, when buying or selling a home.
● Civil juries are suspended – a person’s right to have their matter decided by a jury of their peers is not permitted at this time.
● Now the government wants to establish what they are terming an ‘independent regulator’ to oversee all legal services provided. By independent, they mean independent of lawyers but rather run by a government-established tribunal or agency.
● It is going to be expensive to create and run a government-established and staffed tribunal to handle complaints.
● Currently, the Law Society operates with an unpaid 2-year term. Volunteer benchers who are voted in and are senior members from the profession and 6 unpaid public non-lawyer benchers appointed by the Lieutenant Governor in Council – currently, the 6 are Doctor; Paralegal; Business Consultant; Diversity Consultant; First Nation Strategist and a Community Association Executive. They are representative and economical.
● With a government-run and staffed agency, there will be more red tape for sure and the cost is going to be high – that alone is a concern.
● The greatest concern is that all justice and legal services will now be under government control – the independence of the legal bar will be eroded.
● That is not good for justice or holding the government accountable.
What repercussions can it have for the public?
The AG’s official reasoning is “Having all legal professionals overseen by one regulator improves consistency in the regulation of legal services which enhances protection of the public, creates efficiencies and aids efforts to improve access to legal services across the province”.
● Efficiencies are great but this is a red herring – efficiencies at a monetary tax cost, paid by taxpayers.
How does further governing lawyers, notaries, and paralegals improve access to legal services?
● It doesn’t – but it gives the government than the right to direct or mandate these 3 groups in a way that serves the government’s initiatives
● They may begin requiring more pro bono hours, giving greater legal responsibilities to paralegals and notaries.
● While these would improve access to justice in some instances, governments tend to put things in place without considering long-term consequences because they only have a 4-year mandate, while the rest of us have to navigate the justice system and legal community for our whole lives.
● The whole thing seems shortsighted and while there will be benefits to some, there always are, at what cost and the government is never very forthcoming with that information.