Legal Regulation at the Crossroads

Are we making the right choices?

Legal Regulation at the Crossroads

♫ I’m putting all my eggs in one basket
I’m betting ev’rything I’ve got on you...

— Music and Lyrics by Irving Berlin, recorded by Ella Fitzgerald.

Ministry of Attorney General is changing the regulatory framework for lawyers, notaries and paralegals by bringing them under a single statute and regulator. The government stated: “The rationale for change is simple. Far too many people in B.C. cannot afford the cost of a lawyer.”

The government quoted a survey conducted for the Law Society by Ipsos in 2020, which “[F]ound that as many as 60% of those in B.C. with a legal problem get no legal advice about their situation, and of those that do get advice, more than half get it from someone other than a lawyer.”1

One can ask, where is the evidence that bringing the providers of legal services under one regulator and statute will increase access to legal services and protect the public interest? The government stated: “That a modernized statute could advance principles such as promoting and protecting the public interest and facilitating access to legal services.”2 Is there evidence from other jurisdictions that similar steps have led to the desired outcomes?

The Canadian Lawyer Magazine3 stated: “The CBABC said in its statement that it differs from the government’s view on whether a single regulator will significantly impact access to justice.”

Dodek and Alderson in “Risk Regulation for the Legal Profession,” 2018 Alberta Law Review 621 at 628 stated: “The current approach to legal services regulation in Canada does not adequately meet the proclaimed purpose of protecting the public interest.” They stated: “The second reason for the inadequacy of the current system of legal regulation in Canada is that it has failed to provide sufficient focus on the content of the public interest.”

Richard Devlin, professor of law at Dalhousie University, in “Addressing the Legal Services Gap” in The National4 stated that legal reform in the UK “[C]ame about under a government which expressed the concern that citizens were not getting good value for their money from the legal profession. They approached it from the point of view of consumers’ rights.”

The UK went the furthest yet in addressing access to justice, the affordability, and availability of legal service providers.

legal service regulators in the UK

Solicitors are regulated by the Solicitors Regulation Authority; Barristers by the Bar Standards Board; chartered legal executives by CILEx Regulation; licensed conveyancers by the Council for Licensed Conveyancers; patent attorneys by the Intellectual Property Regulation Board; trade mark attorneys by the Intellectual Property Regulation Board; costs lawyers by the Costs Lawyer Standards Board; notaries by the Master of the Faculties; Chartered Accountants by the Institute of Chartered Accountants in England and Wales; and there are unlicensed providers that provide will writing, family, intellectual property and employment services.5

In 2009, the Legal Services Board in the UK launched the Legal Services Consumer Panel, which advises the LSB on issues of importance to consumers of legal services. That law permitted the launch of “alternative business structures” (ABS firms) owned or managed by non-lawyers — an attempt to open up the legal services market to competition, drive down costs and improve access to justice. ABS firms have been licensed in Arizona since 2021. Utah has permitted them in its regulatory sandbox since 2020 and market liberalization is being studied in other US states.6

In B.C., we are putting all our regulatory eggs in one basket and hoping that, this time, there will be a different result in increasing access to justice, the affordability, and availability of legal services. Other jurisdictions have decided that more of the same will not change the observed outcomes. Change focused on increase competition is seen as part of the answer.

Only time will tell. We are betting everything we got on it.

  2. Ibid;
  6. Ibid.

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