Ian Mulgrew: COVID gives lawyers the shakes

  • January 10, 2021

By Ian Mulgrew for The Vancouver Sun 

The Law Society of B.C. is embarking on an ambitious journey to take advantage of pandemic disruptions and shake up the practice of law.

The society’s new Strategic Plan 2021-2025 is aspirational, but focused on achieving specific goals — particularly when it comes to reconciliation and access to justice, president Dean Lawton said Friday.

The profession recognizes the need for change if the relationship with Indigenous people is to be healed and the availability of affordable legal services improved, particularly for those struggling with access and further alienated as a result of public health orders.

COVID has forced lawyers to do things differently, whether they wanted to or not, and the benefits of some of those changes cannot be denied and must be embraced, Lawton emphasized.

“It’s pretty clear that both the Law Society and the courts have made some significant strides in dealing with audio-visual platform hearings,” he said as an example. “So we’re very alive to being flexible and I’m quite excited we’ve been able to bring this technology forward.”

A key player in developing the strategic plan, outgoing president Craig Ferris said the legal system is being forced to separate “principle, the things that we believe in,” from “practice, the way that we do things.”

As the report recommending the plan put it: “The Benchers need to recognize where changes are possible, and to be prepared to advance bold and innovative approaches to how law is practiced and regulated.”

Being bold, accepting change and innovation, however, have been anathema in a hide-bound profession trained to be cautious, to value precedent, and to defend its traditions.

“Today, the sad reality is that most British Columbians do not have access to legal services that they need or, frankly, that they deserve,” Ferris said when ending his term. “Addressing this problem has been described as an ethical duty of lawyers. I like to think of it more simply as just the right thing to do.”

Lawton believes the coronavirus has been transformative and points to the so-called “regulatory innovation sand-box” the law society is creating.

“That term, we didn’t make it up,” he insisted. “It is a way to describe an environment where regulatory authorities permit experiments that are in the public interest. It’s all about access to justice.”

The plan will allow paralegals, tech companies, entrepreneurs and others to offer some legal services that until now have been available only through a lawyer, but still under the governance of the law society.

“We want to control it, but alternate service providers can apply to the Law Society for an opportunity to experiment — again under a controlled environment with the public being protected — in terms of providing new initiatives,” Lawton said.

“We are already evaluating proposals. In another month or two, I can reveal what some of those might be. It’s designed to have some new flexibility in giving others an opportunity who have knowledge and skill to provide some alternate legal services.”

Lawton said the regulating body hoped to take the opportunity offered by the public health disruptions to introduce change while also responding to the Truth and Reconciliation Commission’s recommendations, in particular by improving the cultural competency of the profession.

“A year ago, we approved a plan to design a course for every lawyer in the province,” he explained. “There were some delays, but we’re anticipating the rollout will be in March this year. So that’s front and centre for me as a priority.”

Lawton said he did not believe follow-through on the strategic plan’s goals would be hampered by a lack of funding or commitment left in COVID’s wake.

There are concerns that like others, legal professionals will emerge too fatigued for courageous thinking and the government too debt-strapped to change its previously parsimonious attitude toward the legal system.

And there are some, like me, who fear the anemic replacement offered over the last nine months will become the norm.

“There’s a bit of irony in that worry,” Lawton said. “We were all pretty frightened and concerned about the impact of COVID and the inertia it might cause. But in some ways, that energized us. It has shown us that some of the innovations that we were considering but were a little shy of adopting have been adopted and will be maintained. I think going forward we will continue to look at new initiatives and continue to change. So in a strange sort of way, it has been helpful.”