Changing the Regulation of the Legal Profession

The challenge of affordability and efficiency

Changing the Regulation of the Legal Profession

Try to see it my way
Only time will tell
if I am right or I am wrong
While you see it your way
There’s a chance that we might fall apart before too long
We can work it out

— Music and Lyrics by Lennon and McCartney, recorded by The Beatles.

The B.C. government has introduced Bill 21 which, if passed, will amalgamate lawyers and notaries, expand the role of paralegals and create an Indigenous Council in a far-reaching bill ostensibly focused on enhancing access to justice. In the process, it will drastically change how lawyers will be regulated, with some stating that the bill will undermine legal independence and self-regulation.

When reading between the lines, one can palpably feel the frustration of the government in trying to deal with the vexing problem of making legal services more affordable. When legal fees are $300-600 per hour, consumer-facing legal services (family, criminal, wills and estates, small claims and the like) are simply beyond the reach of a large slice of the Canadian population, particularly at a time when the public is expressing dismay at the high cost of living. The growth of self-represented litigants is certainly not a new phenomenon in the courts of B.C.

The government has granted the Law Society and the Notaries the opportunity to come up with solutions. Either they have run out of patience or out of time with their progress to date, or alternatively, they have decided to ride the wave that is changing how the legal profession is regulated world-wide.

In an article entitled, “Non-Lawyer Legal Services: An International Roundup” (2017, Merrow and Dusseault), it states: “Australia and the United Kingdom are experimenting with new regulatory systems in an effort to make legal services more accessible. Both have adopted innovative systems that allow non-lawyers to be involved in running legal practices or law firms.” It continues: “the UK also structures its licensing process differently, licensing eight different types of legal professionals: barristers, solicitors, notaries, patent and trademark attorneys, costs lawyers, and a group who function similarly to paralegals.”

Certainly, the types of changes adopted in Australia and the UK with regard to non-lawyer ownership of law firms and alternative business structures are seen as a way to expand the range of actors who can provide legal services and, in turn, increase competition and hopefully reduce costs.

Furthermore, Jeffrey Church in “Defining the Public Interest in Regulatory Decisions: The Case for Economic Efficiency,” states that: “It is time that governments across Canada refocus regulators with an explicit and singular mandate to improve economic efficiency.” (C.D. Howe Institute 2017). Although the paper focuses on the energy sector, the alignment of what is in the “public interest” with economic efficiency is clear.

Perhaps we have come to the end of an era and are witnessing the birth of another. The dust has not begun to settle over this dispute. The debate over how to modernize the legal profession will continue to be carried on, perhaps in the courts. We will see if the government and the law society can work it out.

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