At the end of last year, as John-Paul Boyd ably chronicled on this website, members of the Law Society of BC voted on three resolutions regarding access to justice. The second of these resolutions — directing the law society to bar paralegals from providing family law services under new provincial legislation and to postpone any other enlargement of paralegals’ scope of practice — received overwhelming approval.
While this was a disappointing outcome from an access standpoint, as John-Paul explains, it was hardly a surprising one, given lawyers’ entrenched opposition to expanding the scope of “law practice” beyond the legal profession. What was surprising, to me at least, was the response from the law society’s leadership, as reported in Canadian Lawyer:
LSBC president Miriam Kresivo, who chaired the AGM and headed the LSBC’s Alternate Legal Service Provider Working Group, which advocated for the use of non-lawyers, says benchers would have to give the membership decision “serious consideration.” “It will have to be considered as part of the consultation process,” she says…
Now, I’m old enough to remember when the overwhelmingly expressed will of a province’s lawyers was complete and sufficient cause to dictate the next steps of a law society. Here, however, a law society president says it will take the opinions of lawyers into account, along with the opinions of other parties — including, presumably, a government that passed a newly revised statute now called the “Legal Professions Act” (note the plural).
It seems to me that the duly elected members of the BC legislature and the duly elected leaders of the province’s lawyers are trying to send a message to the profession’s rank and file: You’re not in control of legal market regulation anymore. John-Paul puts the point bluntly:
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. (Italics in original)
Now, let’s move several hundreds kilometres down the coast — past Washington State, which pioneered the groundbreaking limited-license legal technician (LLLT) program back in 2015 — all the way to California. The State Bar of California was recently sundered, with its lawyer advocacy function hived off into the new California Lawyers Association and the regulatory side finally set free to focus solely on regulating legal services.
One of the new Bar’s first acts was to commission a report on the state of the legal market landscape by Professor William Henderson of the University of Indiana School of Law. You need only be glancingly familiar with Bill Henderson’s accomplishments and convictions to know that this report delivered a thorough and unflinching view of the current legal market’s failure to provide accessible justice to Californians. From the executive summary:
The legal profession is at an inflection point. Solving the problem of lagging legal productivity requires lawyers to work closely with professionals from other disciplines. Unfortunately, the ethics rules hinder this type of collaboration. To the extent these rules promote consumer protection, they do so only for the minority of citizens who can afford legal services.
Modifying the ethics rules to facilitate greater collaboration across law and other disciplines will (1) drive down costs; (2) improve access; (3) increase predictability and transparency of legal services; (4) aid the growth of new businesses; and (5) elevate the reputation of the legal profession.
This report accompanied the Bar’s decision to create the Task Force on Access Through Innovation of Legal Services. (Much as in BC, the title is revealing of the framer’s purpose.) Read the charter of the task force, and you’ll see that the following issues are squarely within its mandate to consider and evaluate:
- the consumer protection purposes of UPL prohibitions;
- the impact of the definition of “the practice of law” on AI-driven legal systems, online consumer self-help services, matching services, document production, and dispute resolution;
- lawyer advertising and solicitation;
- partnerships with non-lawyers;
- fee-splitting (including compensation for client referrals);
- entity regulation;
- non-lawyer ownership or investment in businesses engaged in the practice of law;
- multidisciplinary practice models; and
- alternative business structures.
That is to say: The task force’s remit is everything related to the traditional regulation of legal services.
Combine this with the membership of the task force (split fairly equally between people who are lawyers and people who are not), the bold nature of its founding document, and the fact that the newly focused State Bar has chosen this subject as its first order of business … well, I don’t have much doubt that when the task force reports at the end of this year, it could very well recommend a sea change in legal market regulation in California.
California is home to more than 250,000 lawyers. It has long been a harbinger of regulatory shifts in the United States. The likelihood that legal market liberalization in the US will stop at its borders seems remote.
What’s especially noteworthy for me, though, is the fact that a task force of this type was never convened — in fact, I believe could never have been convened — when California’s State Bar had conflicting mandates to serve both the interests of lawyers and the interests of the public. Take lawyers out of the regulatory equation — as California has done, and as BC evidently is doing right now — and everything changes.
Regulatory revolution is not confined to the west coast of North America, by any means. Nova Scotia, Illinois, Utah, Tennessee, and of course, England & Wales and Australia, are either talking openly about radical regulatory change or already far down the road towards making it a reality. But the two Pacific coast jurisdictions described above could very well represent the true tipping point in this process — the point at which our understanding of legal services regulation changes, fundamentally and permanently.
You’re free to decide, of course, whether you think this development is good or bad. But I’m here to say two things. One, legal market regulation is now moving beyond the control of the legal profession, and I don’t think we’re going to get it back.
Two, it matters very much what the legal profession, individually and collectively, decides to do in response. How hard we fight the battle to retain legal market control will determine how much good will or opposition we’ll engender when the fight turns, as it likely soon will, to lawyer self-regulation. The last word here goes to Matthew Peters of McCarthy Tétrault, quoted by John-Paul Boyd:
“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.’”