Legal Professions Regulatory Modernization

Proposed Reforms

1. Single Statute, Single Regulator

In recent years, the professional regulation landscape in B.C. and elsewhere has evolved and modernized across other many other sectors including health, finance, and the built and natural environment. Many of these shifts have involved the consolidation of multiple professions under a single statute and/or oversight body.

The Law Society and the Notaries Society have in the past agreed that a harmonized, single regulator is the optimum model to protect the public, increase access to legal services, and create efficiencies in regulation. They have also in the past agreed that reform should be viewed not only from the broad perspective of the provision of all legal services (i.e., not just lawyers and notaries), but also other potential future providers of legal services.

Legal regulators across Canada and elsewhere are broadening their oversight to include the regulation of paralegals and/or other legal service providers. B.C. already has the benefit of two well-established categories of legal service providers in lawyers and notaries; consolidating their regulation will ensure a centralized and efficient approach to meaningfully working towards enhanced and affordable legal services for people in B.C.

Benefits of a single statute and single regulator model include:

• A single statute will ensure there is a consistent expectation of professional accountability regardless of the specific professional. Consistent standards are important, particularly when different kinds of providers offer similar (or overlapping) services.
• A single regulator for lawyers, notaries, and licensed paralegals, particularly if that regulator has a clear mandate to facilitate access to legal services, will be well positioned to identify gaps in underserved areas and to regulate in a manner that addresses those gaps.
• It will avoid the need for coordination between regulators, which at best can be administratively challenging and at worst can lead to competition or turf wars.
• It will make it easier for the public to know what kind of legal help is available when faced with a problem and who to contact with their concerns about services they received.
• A single regulator for all legal professions may be better positioned to maintain the public’s confidence that it is regulating in the public’s interest and not in the interest of any one particular profession.

Finally, on a separate but related note, a shift towards a single regulator and a single statute raises a question as to whether the Law Foundation of British Columbia (Law Foundation) and the Notary Foundation of British Columbia (Notary Foundation) should also combine their operations.^{[Footnote 6]} Subject to further engagement with the two foundations and other stakeholders, it is anticipated that the optimal future model may also involve an amalgamation of those two entities.

Ministry Intentions

1.1 A single statute should regulate all current and future regulated legal service providers.
1.2 The statute should establish a single regulator, responsible for the regulation of all current and future regulated legal service providers.
1.3 The Law Foundation, the Notary Foundation and the Ministry should explore the possibility of a single foundation model for all legal service providers.

2. Clear Mandate

A regulator’s mandate provisions reflect the powers and responsibilities delegated to it by the Legislature. They must clearly communicate the regulator’s purpose to the regulator, its licensees, and the public. The optimal mandate for the new regulator would include several components.

First, it would assign the regulator the broad authority to regulate the competence and integrity of legal service providers in B.C. and to promote the rule of law.

Second, it would outline the regulator’s core responsibilities, including:

• establishing conditions or requirements of licensee registration, reinstatement and renewal;
• establishing, monitoring and enforcing standards of practice and professional responsibility of licensees;
• establishing, monitoring and enforcing continuing competency requirements for licensees including Indigenous cultural competence; and
• maintaining a register of licensees that shares key information with the public about each licensee.

Finally, the regulator’s mandate would also include guidance to the regulator on how it should carry out its duties. Both England and Wales and Ontario’s relevant statutes include key principles to guide how their legal regulators must discharge their mandate. This initiative presents an opportunity to adopt a similar approach in B.C. A modernized statute could advance principles such as:

• promoting and protecting the public interest;
• facilitating access to legal services;
• supporting reconciliation with Indigenous peoples;
• protecting the ability of all legal professionals to provide committed representation to all clients;
• encouraging diverse and effective legal professions; and
• regulating proportionately to risk.

Ministry Intentions

2.1 The statute should assign the regulator the broad authority to regulate the competence and integrity of legal service providers in B.C. and to promote the rule of law.
2.2 The statute should set out the regulator’s core responsibilities.
2.3 The statute should set out guiding principles to assist the regulator in its decision making.

3. Modernized Governance Framework

The current (separate) governance frameworks for notaries and lawyers are both in need of revitalization.

The Notaries Act has not been substantively revised in over 40 years, and the regulatory framework under which notaries operate requires modernization. For example, the current statute does not include a mandate provision for the Notaries Society and reflects an era when professional associations were responsible for disciplining members for professional misconduct as opposed to professional regulators. The Notaries Act also designates the Notaries Society as a society under the Societies Act, which has a member focus and is ill-suited to the task of professional regulation. Further, the only committee named in the Notaries Act is the discipline committee, and the statute does not clearly grant the authority to establish other committees consistent with those often established by professional regulatory bodies.

Regarding the governance framework for lawyers, in the summer of 2021, the Law Society, to its credit, commissioned independent governance expert Harry Cayton to undertake a governance review of the Law Society. Cayton’s report to the Law Society (Cayton Report) was presented to the benchers in December 2021.^{[Footnote 7]} The Cayton Report made numerous recommendations, many of which were accepted and adopted by the benchers at their meeting of March 4, 2022.

Cayton’s core recommendations included proposals for the reduction of elected benchers, an increase in the proportion of publicly appointed benchers and reform of the Electoral College model in a manner that would facilitate not only geographic diversity but also an optimum level of skill sets on the regulator’s board. He also observed that some of the reforms he thought necessary would require amendments to, or replacement of, the LPA.

In considering how best to structure the new regulator’s governing body, the Ministry’s intention is to assure a competent, nimble, and skills-based board, composed of a diverse group of legal service providers and others who individually and collectively have a deep understanding of the regulator’s public interest mandate. Diversity has a variety of meanings in this context; it includes diversity of skills, regions, backgrounds, professional designations, and genders. Both the Notaries Society and Law Society have in recent years achieved gender parity among governors, and in 2021, five Indigenous benchers were elected to the Law Society’s bencher table, a result described by the Law Society as “unprecedented”. ^{[Footnote 8]}

A modernized governance framework would build on these recent improvements by establishing a structure and election/appointment processes that will ensure the regulator’s board is reflective of all British Columbians because of, and not in spite of, the framework in place.

The Ministry believes that the public would be best served by a board composed of:

• “licensee” directors who are elected by licensees;
• directors who are appointed by the other members of the board in accordance with a fair, transparent, accountable and independent nomination process; and
• directors who are appointed by the government in accordance with a fair, transparent, accountable and independent nomination process.

The directors appointed by government should constitute a minority on the board. In addition, although it is important that communication channels be maintained between government and the regulator, that relationship need not and should not be based on the Attorney General’s membership on the regulator’s board.

One of the benefits of at least some director appointments, responsive to identified, or anticipated, skill gaps, is that it enables a more intentional approach to the overall board composition. Boards often establish a composition matrix that identifies the skills, experience, and backgrounds that the board as a whole should reflect. Appointments can then be made with a view to filling any identified gaps. Ensuring that a number of seats on the regulator’s board are filled by appointments will help ensure the board has the right mix of skills and diversity needed to fulfil its mandate. However, given the particular importance of Indigenous representation in legal professions regulation, and the gains that have recently been made in this respect at the Law Society, consideration should also be given to embedding an explicit requirement in the statute regarding Indigenous representation on the regulator’s board. A guaranteed Indigenous appointee (or appointees) would not and could not account for all the diverse perspectives of Indigenous peoples in the province, and any statutory minimum requirement would need to be supplemented by purposeful, merit-based election and appointment processes that promote additional Indigenous voices at the board table.

The size of the board would be balanced to address the dual objectives of diversity and functionality. On the one hand, the board would be large enough to ensure that all regulated legal service providers and the public are reflected in its composition, and to ensure a diversity of skills, perspectives, regions, and backgrounds are represented in its deliberations. On the other hand, the board would be small enough to be nimble and cohesive. As observed by Cayton and others, the current size of the bencher table at the Law Society is too large for effective discussion, deliberation or decision-making. In its submissions to Cayton as part of his Law Society governance review, the Canadian Bar Association, BC Branch recommended that the number of benchers be reduced to 15.^{[Footnote 9]}

Finally, the Ministry notes that the Cayton Report contains several recommendations aimed at ensuring the benchers can focus their attention on their key responsibilities and better avoid potential conflicts of interest. Both the Law Society and the Notaries Society have implemented measures to separate adjudicative and investigative functions; the Ministry would like to see the new regulator build on these initiatives in accordance with professional regulation best practices. This would include ensuring that as a principle, directors focus on strategic oversight as opposed to regulatory or operational matters. This would allow additional participation in those processes by other licensees (and members of the public).

Ministry Intentions

3.1 The regulator should be governed by a board composed of a statutory maximum number of directors, some of whom are elected by licensees, some of whom are appointed by the other members of the board, and some of whom are appointed by government.
3.2 The directors appointed by government should constitute a minority of the board, and the Attorney General should not sit as a member of the board.
3.3 Consideration should be given to a statutory requirement for Indigenous representation on the board.
3.4 The board and government should be required to follow nomination procedures that are fair, transparent, accountable and independent.
3.5 Director elections and appointments should be staggered, so that gaps on the board (with respect to, for example, diversity, skills, type of legal service provider) can be identified and filled.
3.6 The board’s role should be focused on strategic oversight.

4. Flexible Licensing Framework

A flexible licensing framework is one that ensures the public has the ability to find the kind of legal services that meets their needs, whether through a lawyer, notary, licensed paralegal, or otherwise. It is also one that is adaptable, giving the regulator the tools and discretion it needs to be responsive to the changing legal landscape and marketplace.

Lawyers

The LPA defines the “practice of law” which constitutes a practising lawyer’s scope of practice. The Ministry envisions a revised statute that maintains a statutory definition of the practice of law (which may be clarified but not changed in substance), and which will continue to constitute the scope of practice for practising lawyers.

Notaries

The Notaries Act sets out notaries’ scope of practice. The Ministry intends to maintain this core scope of practice for notaries in statute, but also build in mechanisms to enable that scope to be expanded without the need for legislative change. This change would allow, for example, scope to be expanded by both rule and regulation.

Licensed Paralegals

An ideal future state will likely enable one or more classes of licensed paralegals with a common scope or scopes of practice in specific areas, such as family and/or corporate law, and/or certain litigation matters. The Ministry is exploring establishing a minimum scope (or scopes) of practice for licensed paralegals in a revised statute, along with granting the regulator the authority to expand those scopes and create new ones. Another potential option is to require the regulator to establish a minimum scope (or scopes) of practice for licensed paralegals within a specified period of time.

Individualized Licensing

In addition to the potential of a minimum defined scope(s) for licensed paralegals, the Ministry is also exploring whether the statute should enable the regulator to license licensed paralegals and notaries on a case-by-case basis. This would allow the regulator to customize an individual licensee’s license based on their specific training and expertise, who could then provide those customized legal services directly to the public. As it relates to licensed paralegals specifically, granting individual licenses in discrete areas could help establish a common scope or scopes. Enabling a case-by-case approach to licensing would build on the sandbox initiative and would allow for the prospect of licensure for many of its participants immediately and outside of a defined scope of practice. It is also consistent with the approach taken in Saskatchewan, where a case-by-case limited licensing pilot is underway.

Other Future Categories

The statute should also enable the creation (and regulation) of additional future categories of legal service providers, to capture, for example, the potential future regulation of Commissioners for Taking Affidavits and/or technological legal services. With respect to the latter, several of the proponents in the Law Society’s innovation sandbox fall within this category, and other jurisdictions in Canada (specifically, Alberta and Ontario) are exploring how access to legal services can be enhanced by developments in technology.

A Caution Against Over-Regulation

As noted above, it is contemplated that the statute would include some guidance to the regulator on how its mandate should be discharged, including a reference to regulating proportionately to risk. This will require a commitment to avoiding over-regulation. If the provision of legal information and law-related assistance by certain individuals does not require regulation to protect the public, those individuals should not be regulated, or if some level of oversight is required, only regulated in a manner that is proportionate to the risk. Current examples falling within the category of no regulation include Native Courtworkers, non-lawyer mediators, and community advocates; it is possible that this list could be expanded in the future and the regulator should have the flexibility to do so.

Future Review

Finally, the Ministry is optimistic that a unified legal regulator, with a revitalized governance framework and clarified mandate, will ensure meaningful progress towards more access to, and more choice among, different kinds of legal service providers. However, in light of both the status of the 2018 amendments and the initiatives in progress across many other jurisdictions with respect to alternative legal service providers, the statute should require an independent progress review of B.C.’s regulation of legal service providers (and specifically, its impact on access to legal services) after a set period of time.

Ministry Intentions

4.1 The statute should continue to include a definition of the practice of law, which will also constitute the scope of practice for lawyer licensees.
4.2 Notaries should have a core scope of practice set out in statute. Mechanisms should be established to allow that scope to be expanded without the need for legislative change.
4.3 The statute should authorize the delivery of legal services through licensed paralegals by setting a minimum scope or scopes of practice or requiring the regulator to do so within a prescribed period of time.
4.4 The statute should enable the regulator to grant licensed paralegals and notaries a license on a case-by-case basis.
4.5 The statute should enable the creation of additional future categories of legal service providers that can be authorized to deliver specific legal services.
4.6 The statute should include a requirement for a future independent review of legal service provider regulation and its impact on access to legal services.

5. Efficient Discipline Framework

A key function of any regulator is to ensure that those it regulates are competent and to have processes in place to address concerns about a professional’s practice or conduct. Over the past several years, a body of best practices has emerged with respect to the manner in which concerns are addressed and resolved. Those best practices include, among other things:

• ensuring the public understands the types of complaints a regulator can address, and can easily access complaint processes;
• ensuring complaints processes are culturally safe;
• utilizing multiple pathways to resolve concerns fairly and in a timely manner (recognizing that not every concern should require a discipline hearing);
• ensuring that there is no conflict or overlap between a regulator’s adjudicative and investigative functions;
• ensuring investigation and discipline outcomes are transparent to the public;
• ensuring that appropriate information can be shared with other organizations or bodies, in the public interest;
• ensuring a regulator in one jurisdiction can rely on findings of discipline processes conducted in another jurisdiction;
• ensuring the regulator can take extraordinary action to suspend a professional’s license pending the outcome of an investigation if it is in the public’s interest to do so; and
• ensuring there is a clear “duty to report” on licensees to report other licensees when the public may be at risk.

Many of these practices are already in place at the Notaries Society and Law Society through statute, rule, bylaw or policy. The intention is to establish a framework that maintains these practices while expanding and adapting them to keep pace with best practices as they continue to evolve. This approach will likely require some matters to be spelled out in statute, with the regulator being granted the authority to address others by rule.

Finally, the Ministry notes that the Law Society is presently undergoing a review of its regulatory processes to ensure that these processes accommodate the full participation of Indigenous complainants and witnesses who may be experiencing marginalization and vulnerability.  The future regulator’s complaints and discipline processes should incorporate the recommendations that flow from this review, to ensure and support participation in these processes by historically underrepresented groups and vulnerable individuals.

Ministry’s Intention

5.1 The regulator’s discipline framework should reflect modern regulatory best practices, and should be flexible enough to accommodate changes in process as regulatory trends evolve.

6. Enhanced Focus on Public Interest

One of the key shifts in the professional regulatory environment has been an increased expectation of a separation between regulation and advocacy. For example, the BC Notaries Association was formed in recent years as the advocacy body for notaries, to ensure the Notaries Society could properly focus exclusively on regulation. As another example, the LPA was amended in 2012 to remove a reference in the Law Society’s mandate to “uphold and protect the interests of its members”. Although it is important that all legal service providers have an unconstrained ability to advocate, it is important that regulatory bodies only act in an advocacy role in accordance with the public interest and their overarching legislation.

One of the observations of the Cayton report is that although the Law Society is a regulatory authority, it remains fundamentally a membership-run association. This dynamic manifests through nomenclature (i.e., society vs. regulator, member vs. licensee or registrant) and through the powers granted to members, including the authority to bring forward resolutions at AGMs and to require the Law Society to hold referendums. Although these observations were directed at the Law Society, the Notaries Society shares many of these traits. These discrepancies can cause confusion for the public (and for those regulated) as to whose interests are being pursued (i.e., members’ interests or the public’s).

Ministry Intentions

6.1 The statute should refer to regulated individuals as licensees and not members.
6.2 The statute should include public accountability mechanisms suitable to that of a regulator that regulates in the public interest and not that of a membership-driven association.
6.3 Licensees should not have the authority to bring forward resolutions that purport to direct the actions of the regulator’s board.
6.4 Licensees should not have the authority to approve or reject the regulator’s rules as determined by the board mandate to address the public interest.

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The Ministry welcomes feedback on the proposals contained in this paper:

• An online survey is available at https://engage.gov.bc.ca/govtogetherbc/consultation/legal-professions-reform/ until November 18, 2022. 
• Written submissions may also be emailed to PLD@gov.bc.ca until November 18, 2022.

Please note that submissions may be subject to disclosure under freedom of information legislation.

The Ministry will take all responses into consideration before finalizing a legislative proposal for government’s further consideration.

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