Mark September 14, 2022, as the beginning of serious reform of the regulation of legal services. On that date, the Ministry of the Attorney General of British Columbia released its Intentions Paper. This paper follows a Governance Review of the Law Society of BC by the internationally recognized leader in professional regulation, Harry Cayton, released late last year.
The Intentions Paper proposes some significant reforms in the regulation of legal services in the province. For example, all providers of legal services would be regulated by one regulator. This includes lawyers, notaries public, and paralegals. This could expand to include others, including legal technology service providers, as the outcomes of the current “sandbox” pilot projects become clear. This is similar to the approach that the British Columbia government took in respect of its regulation of financial services, the regulation of non-health professions, and is proposing to take with the health professions.
Related to this proposal is curbing over-regulation, leaving more activities in the public domain, expanding such current examples as “Native Court workers, non-lawyer mediators, and community advocates”.
One of the more significant reforms relates to the selection of “directors” (i.e., Benchers). The size of the Board would be reduced from 32 to, perhaps, 15. The directors would focus on policy and oversight and would not also sit on adjudicative committees. About one third of the directors would be appointed by the government (up from under 20% currently), one third would be elected by the professions, and one third would be appointed by the Board. All appointments would be through a rigorous competency-based process whereby necessary skills and experience are identified and suitable candidates would be recruited and screened. Even the elected candidates would go through a nominations process to facilitate competency and diversity goals. This proposal does not necessarily result in a 50/50 split (or even a majority of) non-professional directors seen elsewhere, such as for the regulator of Ontario’s teachers.
Similarly, the regulator’s structure (and the language of the enabling statute) would emphasize its public interest mandate. For example, regulated individuals would be called licensees, not members. Licensees would not be able to introduce resolutions purporting to direct the Board or its Directors (no longer the “Benchers”). In addition, licensees would not be able to approve or reject rules related to their regulation.
Consistent with the In Plain Sight report that addressed health regulators and the Professional Governance Act, which applies to many non-health regulators in the province, reconciliation with Indigenous Peoples is emphasized. Proposals include making this part of the statutory mandate for the regulator, mandatory continuing education of practitioners on Indigenous cultural competence, and requiring Indigenous participation on the regulator’s governing Board.
The Intentions Paper also discusses an effective and transparent complaints and discipline system including separation of the investigation/screening functions from the adjudicative functions. Few will find this part of the discussion ground-breaking.
The Intentions Paper also calls for a mandatory “future independent review of legal service provider regulation and its impact on access to legal services.”
However, even these reforms are not revolutionary. The Intentions Paper still chooses to use the “self-regulation” model, but with increased oversight. The reformed model still has the Legislature assign to a professional regulator “the primary responsibility for the development of structures, processes, and policies for regulation.” This reluctance to go further is based on the principle of the need to preserve the independence of the bar.
While the Intentions Paper will significantly modernize the regulation of legal services in British Columbia, it re-affirms more than it advances the modernization trend of professional regulation in Canada.