Attorney general motion puts democracy on trial

In the coming weeks, the provincial government is expected to introduce legislation that would bring the services performed by lawyers, paralegals, and notaries under a single regulator—and lawyers are hardly celebrating the news.

Lawyers such as Bruce Hallsor of Crease Harman LLP, see the move as a challenge to an independent judiciary. He says he’s worried the move, in its subjugation of the legal profession to the government, will put democracy itself on trial.

“When people go to a lawyer, they are looking for an independent person who will represent their interests,” he says. “They're dealing with laws that are created by the state, and how those laws are interpreted and applied is a state interest.”

Hallsor says in every legal case there’s some sort of government interest, and the lawyer is the only person a client can absolutely trust to hold confidence and fight for their rights.

“And for all of history, lawyers have been independent of the state and have guarded that independence jealousy.”

In BC, lawyers are regulated by the Legal Profession Act, which allows the Law Society of British Columbia to license lawyers to practise law. Paralegals provide some legal services under the supervision of lawyers responsible for their conduct but are not directly regulated in the province. The regulation of notaries falls under the Notaries Act and their conduct is regulated by the Society of Notaries Public of British Columbia.

The Ministry of the Attorney General says the move will assure “the public’s confidence that the complete provision of legal services in the province is being regulated in the public’s interest and not in the interest of any one profession.”

‍ But does it really put public interest ahead of government interest?

The ministry says the main thrust of the Legal Professions Regulatory Modernization project is to improve public access to justice. Other potential benefits of the proposed project include ensuring consistent expectations of professional accountability regardless of the specific profession, the ability to identify gaps in underserved areas, and the elimination of the administrative burden of coordinating between regulators.

“This is a huge issue not just for lawyers, but for democracy,” Victoria lawyer and BC Law Society bencher James Legh, told Capital Daily. The project proposes regulatory implications that could represent a shift in the BC judiciary in ways he believes could “undermine its independence” and therefore, democracy in general. “This is a national issue,” he said.

Because of the necessity for rules around who is allowed to provide what services to whom, access to legal services is a regulatory issue. However, when it comes to defending public interests—sometimes against the government itself, as is the case in criminal and charter cases—who regulates them becomes a governance issue.

In its 2022 Intentions Paper related to the motion, the ministry claimed it is “not proposing, and has no intention of implementing changes that would interfere with the ability of a lawyer (or other legal service providers) to fearlessly advocate for their client and provide independent legal advice to their client even, and especially,when their client is at odds with government.”

Legh says lawyers already provide responsible oversight and are best qualified to ensure standards of competence and ethics are set and enforced in the practice of law. “We are confident that self-regulation of the legal profession would be held to be a principle of fundamental justice and that a majority of lawyers on the board is essential to self-regulation,” he said.

In his Feb. 3 submission to the attorney general, Legh outlined his opposition to the single regulatory authority on multiple grounds and within a broader context. The proposal runs counter, he said, to UN Basic Principle 24 of the Role of Lawyers established in 1990 which states “lawyers should be entitled to form and join self-governing professional associations” and “that the executive body of the professional associations should be elected by its members and function without external interference.”

‍ The last line of democratic defense is self-regulating lawyers

In its response to the ministry Intentions Paper, the Law Society of BC (LSBC) wrote “an independent bar can only exist when there is an independent profession of lawyers. In our view, independent lawyers can only exist if there is an independent profession of lawyers.”

Hallsor told Capital Daily “The idea that a college might discipline a lawyer because they spoke against the government takes away the last freedom we have. If you don't have the freedom to stand up to the state, when lawyers aren't allowed to vigorously pursue any argument, however distasteful it may be to the majority or to the government, then you've lost some part of our justice system.”