BC Law Society says lawyers’ independence threatened, sues province

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A new BC law that removes the right of lawyers and other legal personnel to regulate their own profession is being challenged by lawyer groups in the BC Supreme Court on constitutional grounds.

On Friday, the day after the Legal Professions Act — or Bill 21 — received royal assent, making it law, the Law Society of BC filed a civil lawsuit against the attorney general and the province.

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The changes contained in the act threaten the independence of lawyers because lawyers who are elected to the regulatory board will no longer make up a majority of board members and the legal profession would no longer be self-regulatory, said Jeevyn Dhaliwal, president of the Law Society.

“Lawyers may not be able to freely represent their clients without regard to some possible consequences to them,” she said.

The Law Society, the old self-regulatory body, said in a news release that the independence of the legal professions and their regulators is a “fundamental democratic principle.”

Dhaliwal also said the government changed the act without adequate input from the legal professionals and the public.

The BC branch of the Canadian Bar Association said it expects to intervene in the court action because “there are fundamental flaws that should have been addressed before its passing,” president Scott Morishita said in a statement.

The government announced in 2022 its intention to bring in a single legal regulator to oversee lawyers, notaries and licensed paralegals. Under the old system, lawyers and notaries each had their own self-regulatory bodies and paralegals were unlicensed.

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The government said on its website it needed to change the way legal professionals were regulated because most British Columbians couldn’t afford a lawyer and therefore had limited access to the justice system.

It cited a 2020 Ipsos survey that found as many as 60 per cent of people in BC with a legal problem got no legal advice, and of those who did, over half got it from a non-lawyer.

Increasing access to legal services requires a “governance framework that prioritizes the public interest over the interests of the professionals it regulates, the government website says.

But Dhaliwal said the problem with access “can’t be laid on the feet of the legal professionals alone,” noting the government had in the past promised, but never delivered, on a plan to spend the GST collected on legal fees to help those who couldn’t afford lawyers.

After Bill 21 was introduced on April 10, the Law Society, Canadian Bar Association — BC Branch, the Trial Lawyers Association of BC and others strongly urged the government to consult more widely with the public and the legal professions before passing the bill.

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The Ontario Trial Lawyers Association, which is governed by a single legal regulator but one that is still self-regulating, has said it opposes the BC model “and the growing threat it poses to the principle of lawyer independence,” according to a letter released by David Denhoff, spokesperson for the Trial Lawyers Association of BC

The BC government has shrunk the size of the board of the regulator, included several government appointed board members, reduced the number of elected lawyer board members (called benchers) and reduced from a majority of the elected benchers to a minority of seats on the new board, said Denhoff in the email. He said the law also ended members’ right to call a referendum to decide an issue by vote and canceled annual general meetings.

The new act also includes guiding principles regarding reparations under the calls to action of the Truth and Reconciliation Commission, which include identifying and removing barriers to the practice of law that has had a disproportionate impact on Indigenous persons and others under-represented in the profession, according to the civil claim. And it calls for the establishment of a permanent Indigenous council.

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The law also directly regulates the conduct, competence and discipline of lawyers, and a lawyer can be forced to receive medical treatment or counseling or face up to two years in prison, according to the lawsuit.

Dhaliwal said the Law Society has implemented measures to align with the Truth and Reconciliation’s mandates and has measures in place to help members who need treatment for substance abuse, for example.

The province is reviewing the claim and will respond, Attorney General Niki Sharma said in an emailed statement.

The new law provides people with “more affordable choices” for legal problems, Sharma said. The independence of lawyers is “critical and fully supported by government. Lawyers will continue to be self-regulating,” she said.

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