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Opinion: B.C.’s Legal Profession Act falls short on lawyer independence

Access to justice not achieved by undermining lawyer independence
B.C.'s bar association warns of province's New Legal Profession Act

Whether it’s buying a property or agreeing on child support to take care of your kids, you expect your lawyer to have your best interests at heart. You expect them to advocate for you fearlessly and fairly without having to worry if by doing so they could face negative repercussions from government.

This fundamental principle of a free democratic society—known as lawyer independence—has come into question with the introduction of the new Legal Profession Act, which brings lawyers, notaries and paralegals under one regulator. And this should very much concern all British Columbians.

Let me be very clear. From the beginning, the Canadian Bar Association, BC Branch (CBABC) has supported the new single-regulator model, but with one very important condition—that lawyer independence is maintained. Unfortunately, what the government passed into law this spring fails in this regard. The new act undermines lawyer independence and a lawyer’s ability to represent their client’s interests without interference from any source, including from government.

In developing the legislation, the government claimed they have been careful to ensure the key elements of an independent bar are “maintained and even strengthened.” However, in recent years, government officials have repeatedly commented on justice system matters in a manner that shows either a lack of understanding, or worse, a blatant disregard for this principle.

The new Legal Profession Act changes who decides what lawyers can and cannot do. Instead of lawyers holding each other to account, an increased number of non-lawyers will be on the new Legal Professions BC board of directors. The problem is that non-lawyers are not trained to the same extent as lawyers and are not held to the same standards. The higher the proportion of non-lawyers, the greater the risk that rules will be changed in a way that is not in the interest of the public.

Without doubt, some elements of the Legal Profession Act should be celebrated. Designated positions on the board for Indigenous people is a positive step toward reconciliation. Likewise, an Indigenous council will play a meaningful and substantive role in the development of rules and processes that impact Indigenous legal professionals and clients. However, it is crucial that any such body be independent from government and include Indigenous lawyers. 

Despite the improvement of access to justice being the government’s rationale, I firmly believe changing the regulation of lawyers, notaries and paralegals will not solve today’s very real issues. The legal challenges British Columbians typically face relate to employment, housing, financial matters and family disputes. Yet, the proposed reforms offer no tangible solutions to bridge these gaps. Even if more legal service providers are created, those people will still charge for their services, and there is no guarantee their services will be cheaper than what lawyers charge today.

CBABC has long proposed changes to help solve the access-to-justice problem. The government could address the lack of legal aid representation for routine family law problems, like parenting arrangements and child and spousal support. British Columbia is the only province in Canada without legal aid for routine family law problems, with more and more people forced to represent themselves to have their legal issues resolved.

The very idea of lawyer independence and self-governance means that lawyers should have been meaningfully involved in the development of this legislation. However, the government kept access to the legislation under non-disclosure agreements, and then passed it with very little debate or discussion. Only 30 of 317 clauses were debated in the spring legislative session. It seems the government prefers to have the fight in court, wasting time and taxpayer money. The Law Society of BC filed suit on May 17, the day after the act received royal assent.

This is an election year. As British Columbians head to the polls in the fall, they need to be aware of what the government is doing and whether they agree so they can make an informed vote.

Scott Morishita is president of CBABC for the 2023-24 term. He has worked for over 15 years as a trial lawyer and is currently associate counsel at Rice Harbut Elliott LLP. The Canadian Bar Association represents 40,000 lawyers, judges and law students across Canada with over 8,000 members in B.C.