British Columbia’s sensible plan to reform how legal professionals are regulated is in the crosshairs.
The B.C. law society announced last week that it would challenge the constitutionality of the province’s proposed Legal Professions Act. The stated aim of the law is to improve public choice when hiring lawyers, notaries or paralegals and to consolidate oversight of these professionals into a single regulator.
These are worthy and important goals. So it is unfortunate to see powerful representatives of the legal industry lining up to oppose it.
Legal regulators have a statutory mandate to serve the public interest. And yet, the vast majority of Canadians cannot afford to hire lawyers, whose fees range from the low thousands for simple tasks to tens or hundreds of thousands for complex matters or trials. This has been the case for decades, despite years of talk by the profession about needing to improve access to justice.
What makes this talk frustrating is that the legal profession controls a key lever for affecting the affordability of legal services: the supply of legal professionals.Â
Specifically, legal regulators play a major role in determining who gets to practice. Basic economics tells us that if the supply of something increases while demand remains constant, prices will fall. This means that if more legal professionals are able to provide their services, the industry as a whole will become more affordable.
There are a couple of ways legal regulators can influence the supply of lawyers.
One is to expedite the process for internationally trained lawyers to become licensed. In Ontario, for example, internationally trained lawyers accounted for nine per cent of the province’s lawyers in 2020. Yet a significant percentage never practice due to bureaucratic, time-consuming and costly barriers to becoming licensed and employed.
Importantly, it is possible to speed up the foreign credential recognition process without compromising the rigour of the assessments. New York and California — two of the world’s leading legal jurisdictions — have more efficient processes for enabling foreign lawyers to practice while maintaining the integrity of the profession.
Second, legal regulators could entitle professionals with fewer years of training than lawyers — namely, notaries and paralegals — to take on more non-complex legal work. B.C. is proposing, for example, to enable regulated paralegals to handle more work independently and to expand the scope of notaries’ work “to cover more day-to-day legal matters.” Both types of professionals can offer services at rates well below lawyers’ eye-watering levels.
B.C.’s law society and the Federation of Law Societies (which represents all provincial and territorial law societies) are arguing the proposed changes will compromise the independence of the profession, without convincingly articulating how.
A statement by the B.C. law society says the proposed legislation “fails to protect the public’s interest in having access to independent legal professions governed by an independent regulator that are not constrained by unnecessary government direction and intrusion.”
Lawyers of course need to be independent of the government to be able to fearlessly represent their clients. But no one can seriously believe the proposed reforms would compromise lawyers’ abilities to do so.
The society raises a more legitimate concern about governance under the new system. Lawyers elected by their members would make up only 29 per cent of the regulator’s new board rather than the current 78 per cent.
It should be possible for the government to address these governance concerns without needing to scrap the reform altogether. Unfortunately, one gets the impression that the society’s argument masks a broader concern about lawyers losing the ability to regulate in their own interest, which is precisely what enables the profession to keep fees high.
In short, the B.C. government should be applauded for taking steps to address the acute access to justice problem. Legal regulators’ bleak track record on this issue suggests governments need to get involved. We would urge other provinces to follow suit.
But we are not optimistic such changes will be achieved, at least without a protracted fight. Lawyers are fierce advocates for their clients’ interests, especially when the interest they’re advocating for is their own.
