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Indigenous council and government appointees among Bill 21 concerns

Bill 21 imposes prescriptive rules on a new legal regulator that will in and of itself have fewer lawyers overseeing it, according to the Law Society of BC.
Attorney General of B.C. Nikki Sharma with B.C. Premier David Eby. Sharma is leading the charge in reforming the province's legal regulator, to include notaries and paralegals, who can provide more basic legal services.

B.C. lawyers and their self-governing regulator have filed their much-anticipated lawsuits against the provincial government claiming legislation to reform the latter is unconstitutional.

The lawsuits of the Trial Lawyers Association of BC and the Law Society of BC were expected following passage of Bill 21 last week; they provide greater details of the concerns surrounding alleged government creep into regulation of the legal profession.

As the society claims, Bill 21 “fails to protect the public’s interest in having access to independent legal professions, governed by an independent regulator, that are not constrained by unnecessary government direction and intrusion.”

Governments, the society argues, cannot and must not impose their will on lawyers; otherwise, it erodes the rule of law and a free society.

The society’s claim against the government, filed in B.C. Supreme Court May 17, argues government is imposing “guiding principles” on the new regulator, expected to be named Legal Professions British Columbia, which will oversee not just lawyers, but notaries and paralegals.

A key objective of the government's reform, according to the attorney general of B.C., is to broaden access to legal services, such as by having paralegals and notaries be able to provide more routine services at a lower cost to the consumer.

While the society’s claim outlines efforts it has taken to improve Indigenous participation and input in the legal profession, the claim highlights concerns about government mandating such matters on the new regulator.

A “narrow conception” of principles includes facilitating access to legal services by supporting the United Nations Declaration on the Rights of Indigenous Peoples and “identifying and removing” barriers that have a disproportionate impact on Indigenous persons.

A transitional board will be struck to create the new regulator’s first rules, which require consultation and approval from an Indigenous council, to be formed by the Metis Nation B.C. and B.C. First Nations Justice Council.

Bill 21 provides that at least seven of the 13 transitional board and Indigenous council members be Indigenous while there is no requirement they be lawyers.

“As a result, Bill 21 provides that the first rules governing the practice of law and conduct of lawyers in British Columbia post-transition to a new regulator will be established by non-lawyers,” the society claims.

Once established, the new regulator will be governed by not just lawyers but notaries, paralegals and potentially other new professions the government may envision in the future.

The new regulator’s 17-member board composition is a primary concern. While the bill provides for at least nine lawyers on the board, for a slim majority, lawyers will no longer form a “functional majority,” according to the society.

That is because some lawyers will be appointed to the board by a sub group of board members who are mostly appointed by government or who are non-lawyers, such as notaries and paralegals.

And, any of the new regulator’s post-transition rules must also be approved by the Indigenous council, the claim notes.

There is also no requirement for the board chair to be a lawyer, “let alone a lawyer elected by the membership of the bar.”

Furthermore, the society is concerned about the bill “directly regulating the conduct, competence and discipline of lawyers.”

Bill 21, for example, permits the new regulator’s chief executive officer (CEO) to conduct warrantless entry into law offices for the purposes of investigating whether a lawyer has practiced law “incompletely.”

The CEO may also compel a lawyer to receive medical treatment and counselling, the society claims.

Ultimately, the society states, the bill “removes the authority of the regulator to make fundamental decisions about the conduct of lawyers and the regulations of the practice of law” and this amounts to it being unconstitutional.

Meanwhile, the Trial Lawyers Association of BC launched a similar claim against the provincial government, on May 21.

“Without an independent bar there cannot be independent judges,” the association stated in its claim, which largely mirrors that of the society.

The association claims the bill “compromises lawyers’ ability to collectively challenge government action, exercise and advance other constitutional rights, and advance the rule of law and other constitutional values.”

Vancouver-based criminal defence lawyer Kevin Westell is attached to the association’s claim as a co-plaintiff.

The attorney general of B.C. has yet to file a defence against both claims.

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