British Columbia court upholds law that replaces lawyer self-regulating authority News
Michal Klajban, CC BY-SA 4.0, via Wikimedia Commons
British Columbia court upholds law that replaces lawyer self-regulating authority

The Supreme Court of British Columbia upheld on Wednesday the constitutionality of a new law that establishes a single regulatory body for lawyers, notaries, and paralegals. Chief Justice Ronald Skolrood found that the law would not erode the independence of the legal profession.

Chief Justice Skolrood affirmed that the independence of the legal profession is an unwritten constitutional principle of the country. Lawyers must be allowed to act for their clients and perform their duties to the court without fear of governmental interference. This is consistent with the UN Basic Principles on the Role of Lawyers.

The Law Society of British Columbia (LSBC) argued at trial that self-regulation with a majority of elected lawyers is important to maintain the profession’s independence, as it prevents the regulatory body from external interference, especially from those who appointed the directors. Compared to the original 32-person board, of whom 25 are elected lawyers among their peers, there will be only five elected lawyers on the 17-person board under the new regulatory authority established by the act. The board will also comprise three notaries, two regulated paralegals, and three government appointees. These members will appoint the remaining four lawyers to form the full regulatory board.

However, Skolrood found no evidence suggesting that these appointed lawyers will act less independently than the elected lawyers. He concluded that the number of government-appointed board members is limited to three, and therefore limits the government’s ability to influence the new regulator. In addition, he rejected the submission that the Indigenous Council and the Transitional Indigenous Council will intervene with the profession’s independence.

Regarding the government’s power to make regulations, Skolrood found that it is only intended to allow the government to regulate legal services provided by non-lawyers. In the event that the government attempts to regulate the legal profession, which undermines its independence, the profession can challenge those decisions through judicial review.

The court also rejects all constitutional challenges. Skolrood held that the act does not engage with lawyers’ right to association and liberty. While the judge upheld a provision that authorizes the regulator to conduct warrantless searches, he maintained that the use of that power will be subject to Charter scrutiny.

The provincial legislature passed the Legal Professions Act in May 2024 to establish Legal Professions British Columbia. This new regulating body will replace the current LSBC and the Society of Notaries Public of British Columbia.

When Attorney General Niki Sharma tabled the bill, she explained that the legislation is intended to ensure sufficient Indigenous representation in the regulating authority. The BC First Nations Justice Council supported this amendment.

Another intended objective is to improve access to justice by allowing regulated paralegals and notaries public to handle certain legal matters. The Trial Lawyers Association of BC, however, asserted that the fundamental issue of the access to justice crisis in the province remains the provincial government’s lack of commitment to legal-aid system reforms and long-term funding.

The LSBC is considering an appeal against the ruling.

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