By Ian Burns for Law360
The B.C. government has unveiled long-promised legislation to bring lawyers, paralegals and notaries under the umbrella of one regulator. But the provincial law society and bar association have both come out swinging against the proposals, saying they would erode the independence of the legal profession.
Attorney General Niki Sharma introduced Bill 21, the Legal Professions Act, in the legislature on April 10, nearly two years after B.C.’s NDP government said it was looking at how legal service providers were regulated in the province. Bill 21 will create a single regulatory body for lawyers, paralegals and notaries while establishing a new category of regulated paralegals to handle certain legal matters independently. The scope of notaries public will also be expanded to cover more day-to-day legal matters, such as helping clients with the probate process or preparing wills that have a life estate component.
Sharma said the legislation will bring more choice to people when they seek legal assistance, saying a person shouldn’t have to choose between straining their finances and navigating a complicated legal matter on their own.
“We’re giving more people more options and helping level the playing field for people trying to resolve their legal issues,” she said.
A working group has been established to provide recommendations about what legal services the new profession should provide. Lisa Trabucco, an assistant professor at the University of Windsor's Faculty of Law whose research focuses on legal paraprofessionals, has been appointed chair of the working group.
“Paralegals already perform a variety of legal work, and my research reveals that regulated paralegals are capable providers of legal services,” said Trabucco, who is also assistant dean for professional programs and community services at Windsor Law. “This new legislation will give regulated paralegals independence, so they can help more people with their legal problems and make justice more accessible.”
The legislation includes enhancements for Indigenous Peoples as legal professionals and as clients, with a minimum requirement for Indigenous membership on the new legal regulator’s board as well as the creation of an Indigenous council to work in collaboration with the board and staff to advance efforts toward reconciliation.
The province said the new regulator will be independent of government and have a mandate to govern the professions in public interest based on several guiding principles, including improving access to legal services. An independent tribunal will also be established to impartially hear disciplinary cases involving legal professionals.
But the government’s announcement landed like a damp squib with the Law Society of British Columbia (LSBC), which said the law will have detrimental effects on the ability of legal professionals to represent the public. It said the legislation “fails to protect the public’s interest in having access to independent legal professions governed by an independent regulator that are not constrained by unnecessary government direction and intrusion” and promised to launch a constitutional challenge of Bill 21 if it becomes law.
“The Law Society of British Columbia is steadfast in our commitment to protect the independence of the legal profession and of the regulator. We see one as inextricably linked to the other,” said LSBC president Jeevyn Dhaliwal. “The example we set here in Canada is particularly crucial in the context of increasing threats to the legal profession around the world. Independence is essential to the proper functioning of the administration of justice, and we cannot — and must not — permit its erosion.”
The Canadian Bar Association, B.C. Branch (CBABC) echoed the law society’s concerns, saying it did not support the Legal Professions Act as it currently stands. The association said the law “threatens a free and democratic society by undermining lawyer independence.”
“Lawyer independence refers to a lawyer’s ability to represent their client’s interests without interference from any source, including from government,” said CBABC president Scott Morishita. “If, for example, the government wants to take your land to build a road, and you want to challenge that action, you should have confidence that your lawyer is representing your best interests and is not limited in their ability to fight for you because of government interference.”
The CBABC pointed out that Bill 21 calls for a one-lawyer majority on the regulator’s 17-person board, with four of the nine lawyers being appointed by the province.
“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 Morishita. “And why did this legislation need to be prepared behind closed doors? We repeatedly asked government to make the draft legislation available so that the legal profession and the public could understand it and provide meaningful feedback. More time is needed for discussions with our regulator, with government, with the First Nations Justice Council, with notaries and paralegals and with lawyers.”
Bill 21 has passed its first reading and is currently before the B.C. legislature.