The Law Society of British Columbia made a fundamental 'watershed' decision on Dec. 6 with respect to the future direction of how legal services might be regulated and indeed offered in Canada's third largest province.
The society's governing body unanimously endorsed the recommendations of its Legal Service Providers Task Force, which recently concluded a study as to whether various legal services providers, including lawyers, notaries public and paralegals, should be brought under one regulatory umbrella.
This decision will have an effect on the business and business models used by providers of legal services, from sole practitioners to small law firms to large national firms. But it may also have an effect on B.C.'s notaries, paralegals and other legal and quasi-legal service providers who aren't lawyers.
The hope is that the consumers of legal services (i.e. members of the public) will inevitably be able to obtain better access to legal services from a wider variety of legal service providers more affordably than they can now.
The Benchers of the Law Society unanimously approved three recommendations from the task force's report. First, that the Law Society try to merge its regulatory operations with the Society of Notaries Public of British Columbia so that the Law Society would become the regulator of both lawyers and notaries in the province. Unlike other provinces, notaries public in B.C. can deal with land transfers, wills and certain other legal services. Notaries must obtain a Masters of Applied Legal Studies through Simon Fraser University and undergo thorough and rigorous training and examinations before they can qualify as notaries. Conceivably, the Task Force Report would mean that B.C.'s 330 notaries public could be regulated alongside the province's 12,000 lawyers by one common regulator.
Second, that a program be created so that the Law Society could provide paralegals who have met specific, prescribed education and training, with a certificate that would allow them to be held out as 'certified' paralegals.
And third, that the Law Society should develop a regulatory framework by which other existing providers of legal services, or new stand-alone organizations who are neither lawyers nor notaries, can provide approved and regulated legal services.
Access to justice is becoming too expensive and is slipping out of reach for many Canadians, forcing too many clients to represent themselves in court, and forcing others to resort to the Internet or unqualified persons for their legal advice. Numerous speeches have been made by B.C.'s leading judges about the accessibility and affordability crisis in B.C.'s courts. B.C.'s recently retired chief justice Lance Finch in 2010 said:
"Lawyers, as a profession…have a monopoly on the practice of law. However, the monopoly enjoyed by the legal profession also has the effect of constricting the supply of legal services…. While other changes aimed at increasing access to justice, including simplified court procedures, alternative dispute resolution, legal aid and multidisciplinary practices, have helped or will help to increase access to justice, consultation with a lawyer or legal advisor is still fundamental. High cost is a disincentive to obtaining legal advice. High cost discourages people from consulting lawyers early, when there may be more opportunity to avoid or minimize legal problems… No matter how much we may all wish to avoid the subject, high legal fees are an issue that must be addressed."
From a small business perspective, startup entrepreneurs may well be avoiding the use of lawyers because of perceived high costs, potentially risking the future of their businesses. They may be obtaining corporate law advice, advice on their contracts and other legal advice from unqualified and uninsured persons or from the Internet, where a legal advice website might provide advice only based on the laws of Delaware or Ireland, and not based on the laws of the jurisdiction where the startup entrepreneur does business.
And of course, it could be bad advice as well, because we all know not everything on the Internet is correct.
Members of the Task Force studied a number of regulatory models from other jurisdictions around the world and considered trends in the provision of legal services. They issued an interim report in June 2013 and then travelled the province to meet with interested groups, also offering the opportunity for the public, lawyers, paralegals and notaries to provide commentary online.
The task force was driven by the reality that the provision of legal services is changing, and fewer people are able to afford a lawyer to assist them with their legal problems or otherwise provide legal advice. Often enough, these individuals choose not to use a lawyer, leading many litigants to represent themselves in BC's courts. Some individuals provide services that would ordinarily be described as "legal services" under B.C.'s Legal Profession Act without being lawyers and without being regulated, creating a very uneven regulatory landscape where arguably, members of the public can be at risk through the use of unqualified and uninsured legal service providers.
However, it's abundantly clear that other organizations and individuals who aren't regulated are providing legal services in B.C. based on the perceived high cost of lawyers, so the issue of regulating these other service providers is of fundamental importance to the protection of the public.
The adoption of the Legal Service Providers Task Force Report is simply a first step. Among the significant work still to be done is to secure the agreement of the notaries, the agreement of the B.C. government to legislative amendments, and to work out the details of any merger agreement. Work will also need to be dedicated to determining the appropriate criteria to be met by paralegals seeking certification from the Law Society, as well as developing a regulatory framework by which other existing providers of legal services, who are neither lawyers nor notaries, could provide credentialed and regulated legal services.
Tony Wilson is a franchising, licensing and intellectual property lawyer at Boughton Law Corp. in Vancouver, he is an adjunct professor at Simon Fraser University (SFU), and he is the author of two books: Manage Your Online Reputation, and Buying a Franchise in Canada. His opinions do not reflect those of the Law Society of British Columbia, SFU or any other organization.