The Gloomy Future of Access to Family Justice in British Columbia: Outcomes of the Law Society’s 2018 Annual General Meeting
In December 2014, the Benchers of the Law Society of British Columbia unanimously agreed to act on the recommendations of its Legal Services Regulatory Framework Task Force and pursue “an amendment to the Legal Profession Act authorizing it to establish and regulate new classes of legal service providers in order to address unmet and underserved legal needs.” The creation of this task force stemmed from the recommendations of the Legal Services Providers Task Force the previous year, which found that “to address unmet and underserved legal needs in our society,” it was necessary “to explore in more detail a liberalization of the market place concerning who can practice law.”
Consequent upon this decision, the Law Society established the Alternate Legal Services Providers Task Force, tasked with “identifying the appropriate scope of practice that alternative legal service providers would be permitted to undertake in order to address unmet and underserved needs for legal services.” The task force opted to start by looking at the area of family law, not because family law is “easy” but because it is an area of the law in which “a sizable segment of the population … have trouble accessing legal services.” (And to find evidence supporting that claim, look no further than any of the major access to justice reports issued in and after 2012, or the final report of the Family Justice Working Group of the National Action Committee on Access to Civil and Family Justice.)
The Alternate Legal Service Providers Task Force released a consultation paper in September 2018 which raised some penetrating questions about what legal services non-lawyers with adequate training should and shouldn’t be able to provide, including operating a trust account, giving legal advice, appearing in court, drafting agreements and so on. (Go to the schedule beginning on page 9 of the paper for a complete list of permitted and proscribed services.) The consultation paper rests on two key premises: that these non-lawyers “will be trained to standards set by the Law Society to ensure that they are qualified to provide the services contemplated;” and, that these individuals will be members of the Law Society and thus subject to its regulatory authority.
The consultation paper, as you’d expect, caused a not insignificant amount of consternation within the bar. With the Law Society’s Annual General Meeting in sight, a number of members’ resolutions were proposed, one of which sought to restrain the Benchers from pursuing any further steps toward allowing non-lawyers to practice law. Other resolutions sought to require the Benchers to continue to lobby government to properly fund legal aid in British Columbia and impose a mandatory pro bono service requirement on its members.
Let me pause to express some sympathy for the motivation behind that first resolution. When dramatic changes to the Family Relations Act were being discussed in 2010 and 2011, the Society of Notaries Public, sensing a business opportunity, approached the Law Society to discuss expanding the permitted scope of notaries’ services, including drafting documents like simple separation agreements. I bridled at this suggestion on the bases that there is no such thing as a “simple” separation agreement, as even the most basic agreement has the potential to damn families to perdition through thoughtless or ignorant wording, and that family law requires a significant amount of legal and other knowledge to practice competently. It was my view that the practice of family law was justifiably restricted to lawyers to preserve the public from the harm, even unintentional harm, that could be caused by potentially underskilled professionals.
My thinking has since changed, however.
Firstly, we as a profession have been keenly aware of the significant barriers to justice experienced by most Canadians for the last two decades or longer. The National Action Committee emerged out a shared sense that the justice system is at a breaking point, and I won’t belabour the issue except by referencing my first post on Slaw, “Deferred Discomfort and the Problem of Justice Reform.” The problem, though, is that despite this awareness, we really haven’t done anything of much significance or substance to address it. (Surely the quid pro quo to our statutory monopoly is that people be able to access the services provided by the members of the monopoly.) Yes, there are some movements in a number of provinces investigating systemic reforms to improve accessibility, and certainly British Columbia is one of the national leaders in this effort, but it’s now been five years since the final report of the National Action Committee, and what has come of it? Where are the radical reforms the report recommended? What has changed?
Secondly, the two premises on which the consultation paper rests – adequate training and accountability to a governing body – are profoundly consequential. With proper training and proper oversight, why shouldn’t non-lawyers be able to provide legal services? Or, to put the question another way, what makes lawyers so uniquely qualified to provide legal services? It’s not graduating law school; law school taught me very few of the skills that are necessary to be a good family law lawyer. It’s not having provided my solemn affirmation upon being called to the bar; anyone can feel bound by an oath or affirmation, especially when there’s a regulatory body waiting to discipline backsliders. It’s not that we’re especially or uniquely intelligent; the discipline records of the Law Society are a train wreck of bad decisions and wilful ignorance. It’s not that we can give binding undertakings; the consultation paper proposes that non-lawyers be able to do that too. It’s not being an officer of the court; a regulatory flick of the wrist will expand that class of individuals in a heartbeat.
With truly adequate training and professional accountability being required of and imposed on non-lawyers, I struggle to find a rational basis to limit the practice of law to lawyers, especially since we have so spectacularly failed to address the access to justice crisis afflicting such a large share of the population. I certainly object to the practice of law by uninformed amateurs, such would have disastrous consequences, especially in the area of family law, but that’s not what the consultation paper proposes.
Let me get back to the AGM, which began on 30 October 2018 but was adjourned to just a few days ago, 4 December 2018, as a result of failures in the system allowing people to participate by videoconference and vote electronically.
The three resolutions the membership addressed on the access to justice front were these:
1. Be it resolved that:
a. the Benchers be directed to continue to advocate for the adequate funding of legal aid, to be administered by an organization independent from government; and,
b. the Benchers be directed to take steps to encourage and reduce barriers to members to undertake legal aid and pro bono cases, within their field of expertise.
2. Be it resolved that membership directs the Benchers:
a. to request that the provincial government not pass regulations to bring the licensed paralegal amendments into force until the Benchers have had more time to complete their consultations regarding licensed paralegals; and,
b. not to authorize licensed paralegals to practice family law under the authority provided in the amendments to the Legal Profession Act.
3. Be it resolved that lawyers practising in British Columbia be required to perform a minimum of 10 pro bono hours per calendar year in order to maintain their practice status.
The first resolution passed, with 1,302 votes in favour, 21 against and 74 abstentions. I was one of the “against” votes, and I’ll explain why.
First, the Law Society and the BC Branch of the Canadian Bar Association have been hounding the government to properly fund legal aid for decades. Some may recall the crisis in 2002 in which the board of the legal aid society refused to implement the devastating cuts required by Gordon Campbell’s government and were summarily fired for their insolence. Not much has improved since those cuts, and adequate funding is nowhere in sight. Second, both organizations have likewise spent years encouraging lawyers to take legal aid and pro bono cases. Details of the Law Society’s past and continuing work on these issues can be found on the Legal Aid and Access to Justice page of the society’s website. I voted against this resolution because it is telling the Benchers to keep doing the things they’re already doing, albeit with tragically marginal effect.
The second resolution passed, with 861 votes in favour, 368 against and 59 abstentions. I was again one of the no votes.
It is a little known fact that at some point between the commencement of the AGM in October and its conclusion in December, the provincial government passed the Attorney General Statutes Amendment Act, 2018. Among other things, this new act changes the name of the Legal Profession Act to the Legal Professions Act – see how “profession” has been couched in the plural? Further amendments include paralegals in the definition of member of the Law Society, allow paralegals to practice law and give the society the power to regulate and govern paralegals, likely as recommended by the society’s Legal Services Regulatory Framework Task Force.
The writing, I suggest, is on the wall, whether we wish it to be there or not.
The amending statute clearly signals government’s intention to allow non-lawyers to practice law, and my fundamental concern on this point is that if we fail to embrace the inevitable and regulate the extent to which non-lawyers practice law, government will do it for us. We have already lost much of our moral authority on this issue as a result of our failure to address the access to justice crisis in a tangible manner, and the beginning of the end of our statutory monopoly is in sight.
It strikes me as foolhardy in the extreme to direct the Benchers to shirk the regulatory responsibility government intends them to have. There are many extraordinary minds within the civil service that supports government and carries out its will, but I would really prefer that it be the Law Society which crafts the terms on which our monopoly ends and ensures that non-lawyers have genuinely adequate training and genuinely meaningful accountability.
The third resolution was defeated, with 116 votes in favour, 937 against and 19 abstentions.
I have mixed feelings about this resolution. I suspect that most members perform this amount of service already, and if the work isn’t provided in a clinic setting then it’s being provided in the form of advice that isn’t billed, accounts that are reduced or written off, and informal assistance provided to bewildered lay persons in court registries and chambers. On the other hand, ten hours is really a de minimus level of pro bono work and I’m not sure that making this a requirement of membership would have an observable impact on the access to justice problem. On the other other hand, such a requirement could be interpreted as an important acknowledgement that we as a profession have an obligation to promote access to justice and understand that justice is for all rather than some.
At the end of the day, the results of the AGM are: a direction that the Benchers keep doing the things they’re already doing on the legal-aid-and-pro-bono file; a direction that the Benchers refrain from exercising their new statutory authority to regulate and licence paralegals, in the face of government’s clear intention that they do exactly that; and, a refusal to require lawyers to provide a trivial amount work on a pro bono basis. Honestly, I’m embarrassed by these results. The Law Society has been taking important steps to address the access to justice problem – the reports of the various task forces are really worth reading – and has done so in a completely transparent fashion. Its membership, however, has refused to do the same while suggesting no workable alternatives.
The scope of the “unmet and underserved legal needs in our society” is vast and affects a majority of Canadians. What are we going to do about it?
I await the tar-and-feather crew.
Addendum: Since writing this article, I’ve been contacted by Professor Jerry McHale of the University of Victoria’s Faculty of Law, and director of the university’s Access to Justice Centre for Excellence, who gave me permission to share a link to his 29 October 2018 submissions to the Law Society’s Alternate Legal Service Provider Working Group. Jerry presents a powerful argument, backed by research and his own prodigious experience, that is worth reading.
Addendum: And Canadian Lawyer has just published an interesting article, “Does the legal profession have a moral duty to innovate?” Although the title question is purely rhetorical and the answer is what you’d expect, the author quotes McCarthy Tétrault’s Matthew Peters speaking at the BC Legal Innovation Forum:
“If we are preventing innovation we are going to lose our social licence because, quite frankly, if I was an elected official, I would actually pass legislation soon if the profession didn’t wake up and say: ‘We need to solve this in a different way because you’re too self-interested’.”