More lawyers join constitutional fight for right to self-regulation

Photo supplied/Law Society of B.C. via X

Publishers Note: This story originally appeared in the Nov. 29 edition of BC Today.

The Law Society of Manitoba is the latest in a growing list of legal groups to step into the simmering dispute over the Legal Professions Act, which lawyers argue effectively takes away their ability to self-regulate while handing more power to the government and outsiders.

“B.C. would be the first jurisdiction in North America where lawyers would lose the right of self-regulation,” said Mike Elliott, the president of the Trial Lawyers Association of B.C. (TLABC), which has filed a constitutional challenge to the new law.

The Legal Professions Act was introduced last April and given royal assent on May 16.

The government said the goal was to ensure better access to legal help by bringing lawyers, notary publics and paralegals under one regulatory body, giving people more affordable choices for legal services.

But this new regulatory setup ends the Law Society of B.C.’s (LSBC) almost 150-year oversight of the legal profession in the province. This body had an oversight board of “benchers” composed of 25 elected lawyers, up to six government appointees and the attorney general.

The new oversight board has 17 directors, with at least nine of those elected and no more than three appointed by the government. But of those nine, only five are to be elected lawyers, while the others can be notary publics or paralegals. The attorney general is not one of these in the new format.

A constitutional challenge
The government does not see this as a threat to the independence of the legal profession.

But the LSBC and TLABC do, and have filed two constitutional challenges to that effect. These challenges will be heard concurrently by the B.C. Supreme Court.

The civil claim filed by the TLABC argues that the law allows the government to give powers normally held by lawyers to people from other professions.

This includes the authority to create new legal professions and to oversee a chief executive with the power to investigate a lawyer’s competence, conduct warrantless searches of their offices and compel them to seek medical or mental-health care.

“What this does is give government more power over the only profession that is designed to keep government in check,” Elliott said.

In its response to the civil claim, the government says the Law Society already had these powers, and that the new directors would not be “conduits for state interference.”

Concerns cross provincial boundaries
Lawyers in Canada can practice law for up to 100 days per year in other jurisdictions, as they may be litigating issues that cross provincial lines.

The Law Society of Manitoba has expressed concern that B.C.’s new regulatory setup endangers the independence of B.C. lawyers to the point that it may not allow them to work in Manitoba.

“I believe that other jurisdictions recognize the threat that this bill poses to an independent bar and to the foundation of a democratic society,” Elliott said. “It threatens the mobility rights of lawyers across Canada.”

Because of this, the Law Society of Manitoba has applied to intervene in the case.

Elliott said he expects more intervenor applications before a hearing next fall in Vancouver. The case will be heard by Chief Justice Ronald A. Skolrood.

The government’s defence and opposition’s response
The B.C. attorney general’s office said it would not comment on the legal challenge because it is before the courts but pointed out some public messaging from the government explaining the change.

This includes the need for better access to legal help in B.C. and more Indigenous involvement in oversight of the legal profession.

The Indigenous Bar Association applauded the legislation because it establishes an Indigenous advisory council to oversee rule formation and mandates that two board members be of Indigenous descent.

The TLABC civil claim contends this is problematic because it means non-lawyers must agree to rules normally only made by lawyers.

The BC Greens and BC Conservatives oppose the new structure.

BC Conservative Leader John Rustad called the bill an “assault on the independence of B.C. lawyers” days after it was introduced in April.

The BC Greens say it reduces the independence of the lawyers in B.C. while failing to fix systemic problems.

The Greens also say members of the legal profession were not meaningfully consulted before the bill was introduced, and the full bill was not kept open for debate.

Elliott complained that while some members of the Law Society were consulted, they had to sign non-disclosure agreements.

“It wasn’t until the bill was tabled and the non-disclosure agreements no longer were applicable that they could voice their displeasure,” Elliott said.