B.C. government faces court challenge over law changing legal regulations

The Law Society of B.C. fears Bill 21 threatens the independence of lawyers and democracy itself
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The provincial government faces a legal challenge from the society regulating lawyers in B.C. over Bill 21, so-called Legal Professions Act. It creates a single regulator for lawyers, notaries and licensed paralegals with an eye to improve access to legal services, but lawyers fear it undermines their independence. (Don Denton Photography)

The society regulating lawyers in B.C. has started legal actions against a law it says threatens democracy itself.

Bill 21 — the so-called Legal Professions Act — creates a single legal regulator for lawyers, notaries and licensed paralegals. It received Royal Assent on Thursday (May 16), the same day on which the Law Society of British Columbia announced it would file a constitutional challenge against the legislation.

Other groups representing lawyers and legal interests are also weighing their options.

The society argues that the legislation fails to protect the public’s interest by denying British Columbians access to independent legal professions governed by independent regulators free of “unnecessary government” direction.

“As legal professionals represent clients whose interests often diverge from those of government, there must be trust that the legal regulator is independent of government influence,” the society said in a statement dated April 10 — the day Attorney-General Niki Sharma tabled the legislation. “Any erosion of this principle in (B.C.) threatens our free and democratic society and may have impacts nationally and internationally.”

Speaking to Canadian Lawyer Magazine last month, Law Society of BC president Jeevyn Dhaliwal said the legislation represents a “seismic change” in the regulation of legal professions in B.C.

Central to the dispute is the composition of the board overseeing the new regulator.

The new board will consist of 17 directors, 14 of which are legal professionals. Lawyers will directly elect five of the 17 directors and the majority of the other directors will appoint four more lawyers. This means a majority of directors will be lawyers. But only five of them — a minority — will have been elected by lawyers themselves.

Critics say these changes undermine the independence of the profession, a point B.C’s United Michael Lee, a lawyer himself, made during debate, citing commentary from the Canadian Bar Association B.C. Branch.

“(That’s) not sufficient autonomy from the other board members’ government and political influence to be classified as independent — that is, the appointed board members themselves,” Lee said.

The board currently overseeing the law society consists of 25 lawyers all elected by lawyers themselves, as well as up to six non-lawyers appointed by government.

Attorney-General Niki Sharma said in response to Lee that the new structure strikes a balance in representing lawyers, along with notaries and paralegals. “Not only is there a majority of lawyers, the majority of the elected side are lawyers and it’s made up of a mix of appointed and elected members and it’s a smaller, more agile board,” Sharma said.

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She added that the new board not only includes representation from notaries and paralegals, but also reduces government’s appointment abilities. “The Attorney General is no longer a board member as of right and the government’s appointees, directly, go from six to three.”

“We think that this was a very thoughtful approach, based on the balancing of not only all the professions, but also the input that we received along the way.”

Sharma said the legislation improves access to justice, by facilitating access to legal services, advancing reconciliation and removing barriers to the practice of law for those currently underrepresented.

Jamie Maclaren, a civil litigator, told Canadian Lawyer Magazine last month that he expects the new class of regulated paralegals to be a “real boon for pro bono and legal aid organizations” because it will expand their range of affordable options serving clients of varying levels of legal literacy and need.

Another controversy surrounding the legislation is the use of closure by the B.C. NDP government to push it through the legislature.

“Not only did government fail to permit full and transparent consultation, they also closed debate on Bill 21 in a manner that suggests they never intended to permit a full and open discussion on the implications of seismic changes that we view as contrary to the public interest,” Dhaliwal said in her society’s statement following Royal Assent.

B.C. Housing Minister and Government House Leader Ravi Kahlon last week defended the use of closure. He said Bill 21 ranks among the most-debated bills in the last 20 years.

“We want to make sure the opposition has the opportunity to ask as many questions as they need,” Kahlon said. “But we have limited time and we need to make sure that we’re able to take the actions that British Columbians want us to take.”