Access to justice has become so costly that as many as six in 10 British Columbians faced with a legal problem are foregoing seeking help, according to a 2020 Ipsos Reid survey on behalf of the Law Society of BC.
Today, only lawyers and notaries, in limited capacity, can provide legal advice, despite the likes of paralegals conducting legal work.
However, come fall, this may change, with the B.C. government intending to propose a single legal regulator for lawyers, notaries and paralegals — a move most recently championed by former Attorney General David Eby, now the province’s premier.
“The rationale for change is simple. Far too many people in B.C. cannot afford the cost of a lawyer,” stated the B.C. Ministry of Attorney General in its September 2022 intentions paper, putting forward proposed reforms.
In essence, whereas paralegals are presently unregulated and unlicensed, and notaries and lawyers have their own regulatory bodies, the government wants all of them under one big tent — a concept presently supported by the BC Paralegal Association (BCPA), Society of Notaries Public of BC and the Law Society of BC.
Law Society of BC executive director Don Avison said the expectation is for the regulator to expand the scope of work conducted by paralegals and notaries.
As such, said Society of Notaries Public of BC executive director John Mayr, “for the average person who can’t afford a lawyer, this new, single regulator will increase options, and affordable options, for them to receive legal advice,”
Elizabeth Kollias, president of the BCPA, says licensing paralegals will allow the public to access many services that would otherwise be costly coming from a lawyer — such as legal research, collecting information, preparing agreements and processing court files.
As an example, if someone wants to simply understand the course of action they may need to take in the court system, a paralegal — who presently works under the supervision of a lawyer — cannot provide advice.
Under the proposed system, “You could have a paralegal provide advice in family law,” for example, said Kollias.
“Let the lawyers do the substantive stuff,” added Kollias.
“Law is very intimidating for people and that’s not to say every lawyer is intimidating. But when you give people the opportunity to talk to another service provider who’s not a lawyer you can take that pressure away from the layperson.
“It’s a way to demystify the whole legal arena and administration of law,” said Kollias.
“Paralegals play a key role in providing affordable alternatives in accessing legal services,” added Kollias, noting some paralegals may still be expensive to many people and not all paralegals will choose to become licensed.
But, said Kollias and Avison, putting paralegals under a licensed and regulated system could pave the way for them to branch out from a law firm, where they are currently bound, to an independent office.
Avison said he’s disappointed the government, as announced this month, will not license paralegals (under the law society) before a new regulator is formed.
“There will inevitably be some transition period before the legislation is fully proclaimed and in force. And on that front, I’d say all we are losing is time,” said Avison.
Mayr says notaries tend to do “non-adversarial” legal work, such as powers of attorney, representation agreements, contract advice, document authentication and real estate conveyancing.
Mayr foresees the single regulator extending or lifting restrictions on some of the work notaries can do, such as more complex wills and probate.
“I think it will be a real benefit to the legal industry. It makes a lot of sense. We hope there will be a balance,” said Mayr.
How will the regulator work? Will lawyers lose independence?
The government claims a single regulator under a single statute will bring consistent standards for the services all three professions may offer; and combining the professions will allow the regulator to identify problems across the entire legal system. Furthermore, a single regulator eliminates a jigsaw puzzle, making it easier for the public to identify their legal needs and understand who to go to for help or to voice concerns about legal services.
A key controversy around the proposal is the independence of the existing legal regulator, the law society.
“The issue of independence from government will remain a fundamental point. That’s an issue that will be the most challenging,” said Avison.
“The preservation of that becomes more important in this interesting and challenging time,” said Avison, citing judicial independence concerns presently being witnessed in the U.S.
The Attorney General published some of the feedback it received, which it says is representative of the body of over 14,000 B.C. lawyers.
“These proposals are a severe encroachment on the independence of lawyers and thereby, an encroachment of the division between the executive and judicial branches of government,” stated one lawyer in the May 2023 What We Heard Report.
The ministry is specifically proposing the board of directors consist of licensed members, as elected by their peers, as well as non-members appointed by the elected members and government-appointed directors “in accordance with a fair, transparent, accountable and independent nomination process.”
Then comes board allocation. There are more than 14,000 lawyers but only 400 notaries and 900 members of the paralegal association.
The trick, said Mayr, will be finding the right proportion of professionals to allow all of them a voice at the table.
“Whenever there’s an elephant in the room, they tend to stomp on everyone else. So, notaries and paralegals need a voice at the table,” said Mayr, adding the attorney general “hasn’t indicated they will put lawyers in charge.”
Society benchers have voted to ensure lawyers hold a majority of votes at the new board, whereas paralegals have called for equal representation.
Today, the law society holds annual general meetings whereby resolutions may be passed to guide the benchers (society board of directors). But under the new regulator, many lawyers point out that right will be stripped away.
In fact, at the law society’s upcoming June 27 AGM, lawyers Cameron Johnson and Jason Ralph launched a resolution for benchers to call an expedited referendum whereby signatories oppose the government’s single regulator proposal.
The benchers rejected the proposal, claiming it “can too easily be characterized as lawyers looking out for lawyers and not acting in the public interest” and, “to the extent that this resolution and other objections to the practice of law by licensed paralegals plays into the narrative that lawyers may place their economic interests ahead of the public interest, it harms the credibility of our profession to self-regulate.”
Another issue is attorney-client privilege. All parties appear to agree this will be maintained, but the question becomes how to regulate notaries, said Mayr.
For example, B.C. notaries support having to report to the Financial Transactions and Reports Analysis Centre of Canada, unlike lawyers, who view this as an infringement of that privilege — a notion supported by the Supreme Court of Canada.
“That’s an interesting area,” said Mayr.
“We really embrace the AML (anti-money laundering) legislation. Money launderers don’t go to notaries because they know if they go to a lawyer they’re protected, although the law society is putting systems in place,” to help address the reporting gap, he told Glacier Media.
“There’s suggestions client-solicitor privilege be extended to all legal practitioners,” said Mayr. “In terms of AML and anti-fraud, I think it would be a step backward to do this.”