Law Society of BC Recommendations May Have Significant Implications

On December 6, 2013, the Benchers of the Law Society of British Columbia unanimously approved in principle, three recommendations that, if implemented, have the potential to significantly alter the future legal services landscape in the province.

The recommendations were contained in the final report of the Legal Service Providers Task Force, a group formed by the Law Society in the fall of 2012. The mandate of the task force was to examine issues relating to the question of whether the Law Society of BC should regulate only lawyers, or whether they should regulate all legal service providers in the province. While the specific issue of regulating non lawyer legal service providers was given significant attention during the most recent Law Society Strategic Planning process, forms of this question have been considered as far back as 1989, when the Paralegalism Subcommittee recommended against the creation of a separately regulated, new paralegal profession.

The final report of the Task Force contains detailed analysis and conclusions on a number of key issues and makes the following recommendations:

1. That the Law Society and Society of Notaries Public of British Columbia seek to merge regulatory operations;
2. That a program be created by which the legal regulator provide paralegals who have met specific, prescribed education and/or training standards with a certificate that would allow them to be held out as “certified paralegals”;
3. That the Law Society develop a regulatory framework by which other providers of legal services could provide credentialed and regulated legal services in the public interest;

The first recommendation will come as no surprise to anyone who has been monitoring the legal services landscape in British Columbia over the last ten years. Notaries Public in British Columbia enjoy a more expanded scope of legal service than some of their counterparts across Canada that has allowed them to handle certain real estate, commercial and wills matters. In addition, the Society of Notaries Public of BC has long been advocating for an even greater expansion of service. Most recently in 2010, the Society of Notaries Public of British Columbia approached the Ministry of Attorney General to discuss an expansion in the scope of services permitted to include estate administration, incorporation of companies and certain family law related services. In addition to the requested expansion of services, the Notarial Profession in BC also underwent a significant change in 2009 when longstanding limitations on total number and geographically restrained notarial districts was removed in the province. In many ways then, the first recommendation is not surprising in the least and is a reaction to what I personally believe is an inevitable fundamental change in the role of notaries in the delivery of legal services in the province. A change that would likely have happened with or without the involvement of the Law Society of BC.

The second recommendation likewise is not surprising given the changing roles of paralegals in Canada. Consideration of the appropriate role of paralegals has been debated in British Columbia for many years and various working groups have been struck to consider the issue. Most recently, in January of 2013, changes to the Professional Conduct Handbook (now the Code of Professional Conduct), defined a “designated paralegal” and set out an expanded scope of service that these individuals could perform under the supervision of a lawyer. In other jurisdictions such as Ontario, paralegals are permitted an even greater scope of practice and come under the regulatory jurisdiction of the Law Society. In Ontario specifically, this regulatory change was precipitated by the existence of unregulated paralegals offering their services into the marketplace. Seen through this lens then, the second recommendation, like the first, is similarly addressing a state of affairs that is evolving with or without the Law Society of BC’s involvement.

The final recommendation is the most interesting of the three and also holds the most potential for altering the landscape of legal services in British Columbia. It is not explicitly clear who “other providers of legal services” refers to. The report makes reference to various groups such as mediators and commissioners but ultimately concludes that “…consideration of the regulation of other legal service providers should be deferred for now.”

The report notes that “…the Task Force consider that each of its recommendations is a first step toward an end result, and each will require further work, analysis, collaboration and consultation with other interested parties.” How these recommendations may be implemented and their impact remains to be seen. As discussed above however, while the recommendations have the potential to significantly alter the legal landscape in British Columbia, they are not surprising and I would propose are a reaction to changing market forces that are already in play. This fact will hopefully provide the necessary pressure to ensure that action is taken by the Law Society of BC to address the shifting legal marketplace and that the work of the Legal Service Providers Task Force is not relegated to the bookshelf.

The full text of the report can be found online.