The attorney general of B.C. is forging ahead with a new single, legal regulator that is being hailed by proponents as a means to expand access to the justice system but also panned by organizations representing lawyers, out of fear independence from government will be eroded.
“I think we've really respected the independence of legal professionals while advancing really important things, which is access to justice, the public interest, reconciliation, making sure that underrepresented groups are better represented in our legal profession — all very important things and I think we struck the right balance,” Attorney General Nikki Sharma said Thursday after several organizations took aim at now-tabled Bill 21 to reform the Legal Professions Act.
In essence, the Law Society of BC is to be disbanded and a new regulator is to be established that also includes notaries public and paralegals, who will now be able to offer greater, more affordable legal services to the public; for instance, paralegals will be able to provide clients legal advice and assist them in navigating the court system while notaries will have expanded duties in conducting probate and drafting wills, among other matters.
“The cost of legal services and the complexity of our justice system have put justice behind a paywall,” noted Bill 21 supporter Robert Lapper, KC, chair of the University of Victoria faculty of law, via a government press release.
A new independent tribunal will also be established to impartially hear disciplinary cases involving all these professionals.
Control of new board root of controversy
Lawyers are self-regulated in B.C. so as to maintain their independence from government. This is widely accepted because lawyers represent individuals whose interests are at odds with those of the state.
Presently, the society is the independent body comprised of lawyers who elect a board to draft industry policies and regulations, dictating how lawyers operate. B.C. lawyers elect 25 of 32 society board directors, referred to as benchers. Six benchers, including non-lawyers, are appointed by the government and the attorney general acts as a bencher as well.
At issue is the composition of the new regulator’s board. Under the proposed bill, there will be 17 directors, including a minimum of 14 licensees (notaries, lawyers and paralegals), nine of whom would be lawyers (providing for a majority).
But a chief complaint from lawyer groups, including the society, is that the legislation guarantees only five of 17 directors will be elected directly by lawyers.
Among the 17 directors, nine would be elected within the profession (five lawyers and four notaries/paralegals), five would be appointed by the nine electees (including four lawyers) and three would be appointed by government.
This is an important oversight, said the society’s executive director Don Avison.
“The way it’s drafted is an intrusion on the independence and its regulation. These are inextricably linked. You can’t have one without the other,” said Avison, who noted the society is generally in favour of a new single legal regulator — just one with clear and explicit control by lawyers.
Avison said there remains “ambiguity” around the new rule development process, in part because the legislation was drafted “behind closed doors.”
Avison said the Canadian Federation of Law Societies is considering legal action against the B.C. government — “We and others are giving thought to that,” he said.
The Canadian Bar Association BC (CBABC) also opposes the new legislation.
“To be independent, lawyers must be self-regulated with more than a slim majority of lawyers represented on the regulator’s board. And those lawyers must be elected, not appointed,” said CBABC president Scott Morishita, who suggested the public was not provided an opportunity to provide feedback on these issues.
When asked about the new board composition, Sharma said there is a majority of lawyers who are elected members and it is those nine members (five elected lawyers) who then appoint four additional lawyers (from an unspecified merit-based process).
“Government is actually stepping back from its role,” said Sharma pointing out the attorney general loses its position on the new board and there are just three government appointees.
The Trial Lawyers Association of BC called Bill 21 “an egregious assault on the principle of lawyer independence” and “an enormous departure from the norms governing legal regulation in liberal, democratic societies.”
Problem accessing legal system in B.C. is 'staggering'
But not everyone is opposed to the new bill and many have expressed a positive attitude.
“The independence of lawyers is not under attack,” said John Mayr, executive director of the Society of Notaries Public of BC.
“One would think that if any government wanted to interfere with or direct how lawyers are regulated, having an MLA and attorney general as a director would create that opportunity,” said Mayr.
“Across the Commonwealth, the regulation of professionals has been undergoing significant change. Driven by concern that regulatory bodies were acting more like professional associations, advocating for members, and placing the public interest a distant second, governments have taken steps seeking to ensure that regulators understood their purpose — that they act in the public interest,” said Mayr.
The core matter to be mindful of, suggested Mayr, is that access to justice is in a crisis.
In 2022, noted Mayr, 22 per cent of cases at the B.C. Court of Appeal had a party that did not appear with a lawyer.
“The numbers in B.C. are nothing short of staggering. In 2021-2022, 66 per cent of small claims court matter, 40 per cent of family matters, and nine per cent of criminal matters were ‘lawyer free,’” Mayr told Glacier Media by email.
“It appears that lawyers and the law society are arguing for the perpetuation of a system that does not work for so many people,” said Mayr.
An Indigenous-focused regulator
In attempting to improve access to justice, the new legislation will put a particular focus on Indigenous access and representation: one government board appointee must be “an individual of a First Nation” while one merit-based appointee must be an “Indigenous person.”
Committees must also have Indigenous representation and the law calls for Indigenous initiatives.
The bill has support from Kory Wilson, chair of the BC First Nations Justice Council.
“From excluding First Nations people from becoming lawyers to failing to adequately investigate complaints from Indigenous clients of their lawyers. To adequately undertake its mandate of protecting the public, specifically Indigenous clients, the legal regulator must increase the number of Indigenous lawyers and address the gross overrepresentation of Indigenous people in the criminal justice and child apprehension system,” Wilson stated in a government press release.
