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’.”

Comments

  1. “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.”

    I don’t find this a very compelling argument. To my knowledge, the government has not proposed regulating paralegals if the Law Society does not do so. There is no legislative proposal to do so, and it seems like a pretty serious regulatory expansion for the government to do it without relying on the Law Society. I do not think that lawyers should be scared into doing something that they consider unwise just because there is a vague prospect that some government, some day, might regulate non-lawyer practitioners.

    And if non-lawyer practitioners are going to be introduced, it may be better for the government to do it than the Law Society. The Law Society can only regulate the conduct of its members; the government could make accompanying legal changes that might make non-lawyer practitioners more palatable. For example, court or family law reform coupled to the introduction of non-lawyer practitioners might help improve access to justice issues in a way that introducing non-lawyer practitioners alone would not help.

    Further, if non-lawyer practitioners are going to be a disaster–and some argue they will be–it may be better for that disaster to be the fault of the government than of the Law Society.

    I think and hope that lawyers will look at this issue on its merits, and not be scared into making decisions based on a vague sense that the government will otherwise do something unpleasant.

  2. I agree that the government will move forward despite the protestation from BC lawyers…thank you for advancing an unpopular position with such a reasoned analysis…

  3. Every lawyer and law society response requires that the two key factors that must be changed in order to solve the access to justice problem (the A2J problem) not be changed: (1) law society management structure; and, (2) the way the work is done to produce legal services. All other manufactures of goods and services are forced to change those two factors to survive or remain financially healthy, but the legal profession does not understand that comparable change is mandatory for solving the A2J problem.
    And so our law societies struggle to defend the profession with a losing strategy, against these 3 forces that are taking over large parts of lawyers’ markets in the U.S. and Canada: (1) formally created various types of “legal service workers”; (2) the several large commercial producers of legal services such as the very successful LegalZoom; and, (3) the great many small “start-ups” that provide various automated legal services direct to the retail market.
    Law society management is like an elected government without a civil service. Such a government cannot govern, as is proved by the existence and worsening of the A2J problem. The major problems of law societies are not legal problems. As a result, law society management is inherently incompetent management by part-time amateurs. For example, they repeatedly ask government to fund Legal Aid better, which is a “blame your victim” strategy, i.e., asking government to take more tax money from that majority of the population that cannot afford legal services, (who are also the majority of voters), but not trying to give that majority an affordable lawyer. The A2J problem is a law society-caused problem that makes funding Legal Aid better politically very unwise if not political suicide.
    But you cannot expect a 19th century management structure to function competently in the 21st century. To be able to save the legal profession from drastic shrinkage, such as by the loss of the general practitioner and the continuing rapid decrease in the per capita number of lawyers in private practice, Canada’s law societies need a civil service. Then, benchers could competently act like government Cabinet ministers instead of trying also to be a law society’s civil service. How to finance it is explained in the articles listed at the end of this comment.
    I am in a superior position in dealing with the A2J problem, but only because I had a very unique experience, for 9 years, having to solve a small version of the same problem. If you had had that same experience, you would analyze the problem as I do—a problem concerning the economics of different methods of producing goods and services. Or more specifically, removing the fact that, “there are no economies of scale in the practice of law.”
    To gain the necessary understanding of the true nature of the A2J problem and its solution, read these articles. The first 3 are available by free pdf. download from the SSRN (http://ssrn.com/author=1398484):
    (1) “Law Society Accountability for the Access to Justice Problem” (SSRN, Nov. 27, 2018) 26 pages;
    online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3291699 (a paper soon to be expanded);
    (2) “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions (SSRN, Nov. 7, 2018) 153 pages); online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627;
    (3) “Alternative Business Structures’ ‘Charity Step’ to Ending the General Practitioner” (SSRN,
    September 30, 2018, 68 pages): online: https://ssrn.com/abstract=3020489;
    (4) “Artificial Intelligence: Will it Help the Delivery of Legal Services but Hurt the Legal Profession?” (Slaw, Nov. 21, 2018), online: http://www.slaw.ca/2018/11/21/artificial-intelligence-will-it-help-the-delivery-of-legal-services-but-hurt-the-legal-profession/.

  4. Hi Alex,

    I don’t know whether many lawyers have looked at this issue on the merits, but they have made their decision. The votes have been held and the question is now in the hands of the Benchers.

    As to the question about government’s intention to step in and regulate paralegals if the Law Society fails to do so, I was at the National Pro Bono Conference in Vancouver in October this year when the Attorney General offered some comments about the pending amendments to the Legal Professions Act. He said words to the effect that he would rather work with us on the issue than not, which seemed to me to suggest that government is prepared to proceed whether we are willing partners in the exercise or not.

    Perhaps Mr Eby was offering his personal view or perhaps I misinterpreted his remarks. Either way, we do know that government has been taking steps on the access to justice file for a number of years now, and the prospect of direct intervention to force a recalcitrant profession to change doesn’t strike me as at all out of line with the general trend of the steps taken to date.

    Thank you very much for your thoughtful comments.

    And Georgialee and Ken, thank you for yours as well.

  5. I voted against the mandatory 10 hours of pro bono work despite that fact that I estimate I do about 400 hours of pro bono work per year.
    When the Law Society tell me a member it must “volunteer” that is one step too close to the Law Society telling me what may or may not constitute pro bono work for its criteria. This would adversely effect my freedom to choose whom I believe are worthy of my charity ( my free time and money). It costs me $27 per hour in childcare costs for the luxury to be able to work. It costs me over $56 per hour in support staff costs to keep my office open 8 hours per day. If I am donating my time and my money, I want to be able to decide were I spend my two most valuable resources. This has absolutely nothing to do which willingness to do pro bono work. The vote was about freedom . No other occupation requires people to work for free. That is called slavery.

  6. Hi Kirsten,

    That’s an interesting perspective, which makes me wonder about the views of lawyers in those jurisdictions where a minimum level of pro bono work is required.

    You make the important point that pro bono work isn’t a revenue-neutral donation of time. In addition to the costs you incur per hour of work, paid and unpaid, there’s a further loss of the revenue you could have earned providing your time to a paying client.

    Thanks for bringing this up.

  7. On the topic of mandated pro bono services, my thought is this: I do hundreds of hours of free work per year. I’m sure most other lawyers do the same. Therefore, the only effect of mandating this obligation would be the added work for the Law Society and lawyers in formally recording pro bono services provided. Ultimately, this takes time away from provision of services available.

  8. That’s an excellent point, Elizabeth, and I agree about the likely pro bono contributions of many lawyers. Comparing the reporting requirements in BC to those Alberta, the *last* thing BC lawyers need is more reporting requirements. Good grief.

  9. I would like to add that a major issue that rarely is addressed is the fact that the LSBC has no authority to deal with the amount a lawyer bills as once the bill is rendered the jurisdiction to review the bill lies with the SC.

    As the rules and procedures involved with the review process are complex, the LSBC in fact cautions against clients dealing with a review on their own and recommends that the client retain a lawyer.

    Understandably, not many clients end up challenging the fees charged by their lawyer.

    The clients who pursue a review through the courts, even if successful, may end up owing their “new” lawyer more money than the fees that were reduced. Further, unless the bill is reduced by a certain amount, the client may be ordered to pay their former lawyer the costs of the review.

    A system that makes it very difficult for clients to challenge the fees billed by lawyers, and a system that rarely if ever operates based on informed consent between the lawyer and client, and a system that requires clients to pay money to the lawyer “in trust” which the lawyer can then use to pay his/her bill – even before the client has an opportunity to see/review the bill, for one reason or another have not been worthy of the LSLBC seeking changes that would make the review of a lawyers bill more “client friendly”.

    (I apologize for any typos/grammar)

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