In late April, two groundbreaking decisions concerning legal regulators in Canada were announced — one by a court, and one by a law society.
The first decision came from the British Columbia Supreme Court, which ruled that the provincial government’s proposed overhaul of legal regulation in BC was constitutional and could proceed. I thought this was the obvious outcome from the outset, as I wrote here at Slaw two years ago, and I’m very glad to see the issue resolved — for the moment, anyway.
At the heart of BC’s legislative overhaul (and the lawsuit that challenged its constitutionality) was the BC government’s plan to replace the Law Society of British Columbia (LSBC) with a new body called Legal Professions British Columbia (LPBC), incorporating the Society of Notaries Public of BC in the process. The government won’t win any awards for the way it went about consulting the profession on this change, and there were a number of aspects of both process and content (which I won’t address here) that raised serious concerns for legal system stakeholders.
But the heart of the overhaul, and the crux of the legal profession’s unhappiness with it, was a fundamental reconfiguration of legal regulation governance. The LSBC, like every other law society, is governed almost entirely by lawyers who are elected to board of director positions (“Benchers”) by other members of the profession. LPBC, by contrast, would be governed by a mixed board of appointed and elected directors, a bare majority of whom would be lawyers.
I supported the overhaul because I had formed the opinion that in practical terms, most law societies put the interests of the profession ahead of the public interest, especially when it comes to non-lawyer delivery of legal services. This isn’t because law societies are governed by cackling evildoers; it’s because a professional regulator whose governors are directly elected by and from the profession it’s supposed to regulate is inherently compromised. If you are elected to a position, you have a constituency, and you cannot help but prioritize that constituency and its interests in your work.
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The Legal Profession’s Weakening Grip on Law Society Governance
