Listen to Kerry Simmons, KC's interview on Jill Bennett Show (CKNW)
JILL BENNETT: Well, you might have heard this announcement from the BC Government putting out a release saying more options are coming for people needing legal help, saying people seeking legal assistance will have more choices with changes on how lawyers, notaries and other legal professions are regulated. The proposed Legal Professions Act, it says, will bring legal professions under a new single regulatory body and, depending on the legal matter, offers people the choice of hiring a lawyer, a notary public, or a new designation called a regulated paralegal to assist them.
So this was the government's announcement on this proposed legislation, saying it will give people more options and also help level the playing field when people are trying to resolve their legal issues. Well, that is not how the Canadian Bar Association is taking this. The BC branch announcing that it does not support the Legal Professions Act that has been introduced by the B.C. government.
And joining me to talk more about why is Kerry Simmons, executive director of the Canadian Bar Association’s B.C. branch. Kerry, thank you so much for being here.
KERRY SIMMONS: Thanks, Jill, for taking an interest.
JILL BENNETT: Well, it seems very different looking at the two descriptions of what is being proposed and how this could have an impact on people. So can you talk a little bit about the concerns you have and the B.C. branch has about this legislation?
KERRY SIMMONS: So our association's members support a single regulator by which we mean bringing lawyers and notaries and paralegals and others providing legal services under one statute, under one system - that we agree with. We also agree that there is a problem with access to justice and legal services in our province. But what we don't agree with is the assertion that this legislation will solve those problems. And our major concern is that what is proposed will undermine a principle called lawyer independence.
JILL BENNETT: And how would it undermine that?
KERRY SIMMONS: So the role of the lawyer in our society is to represent their clients and protect their rights. And our clients expect that their lawyers will follow the instructions. They expect privacy and confidentiality. And they want to know what they tell a lawyer is just between them and their lawyer.
And this legislation is going to change who's making the decisions about what lawyers can and cannot do and how they do it. And people with legal problems should be concerned about that.
JILL BENNETT: So it sounds like when you're talking about that lawyer independence, it sounds like it could put the whole idea of lawyer client confidentiality in jeopardy.
KERRY SIMMONS: The concern is that the way the board of the new regulator will be set up puts people in place who are not legally trained, who do not have an understanding of some of these principles, like solicitor-client privilege and confidentiality, and that there might be an undermining of those things going forward.
JILL BENNETT: And when you say there could be an undermining, how would that actually work, though? Would it be because the board is made up differently? And and I think it's a 17 person board because of the makeup of that. How would the makeup of that, though, actually change, say, have an impact on solicitor client confidentiality?
KERRY SIMMONS: Well, the board's going to be responsible for making rules about what lawyers can and cannot do.
So, for example, they could say that lawyers need to disclose more information about client matters. They could say that lawyers cannot represent people in particular with particular legal problems. There could be those changes that happen. Right now, lawyers regulate themselves. There's a board of 25 lawyers and six members of the public, and they hold each other to account to make sure that we're following the rules.
And under this new system of a board of 17 with only nine lawyers who are not all elected by their peers, it means that it can change what will happen. And is it because, as well, having these professions under one regulatory body that the other regulations that were included in this notaries as well, as I mentioned, the new designation, the regulated paralegal that notary publics and regulated paralegals, they don't currently have the same rules or those same rules in place as lawyers?
KERRY SIMMONS: That's right. In fact, right now our paralegals are employed by and supervised by lawyers. The legislation is saying in the future we should have a new category of paralegals called regulated paralegals, who can do things that we don't yet know what services they're going to be able to be provided. That has yet to be determined. But my concern is and the concern of our members is that to say that by having now regulated paralegals or notary publics will actually increase the public's access to services just isn't the case.
What we would really need to increase the public's access to services is a publicly funded family law legal aid system because there are many British Columbians who have everyday typical family law problems like getting child support or negotiating parenting agreements. And for those people who have low incomes, there's no assistance for them.
JILL BENNETT: You mentioned as well that that lawyers are self-regulated. And I think it said to that that lawyers need to be self-regulated. Why is that for the profession of lawyers?
KERRY SIMMONS: Well, our society is based on the premise that no person or government is above the law. And we've got checks and balances in our society to make sure that we've got some stability in our society. Media plays a role in those checks and balances, and lawyers also play an important role.
So lawyers are there to help people challenge laws or how the laws apply to them. And so when a client seeks help from a lawyer, they expect the lawyer to follow their instructions and not be influenced by anything that government is restricting them on. They want to make sure that their lawyer can act on their instructions, be private, and keep those things confidential.
And the problem is, is if lawyers are not regulating each other, that all can be lost.
JILL BENNETT: It sounds like as well that this legislation was was put together and what's been proposed what's been brought forward is came as a bit of a surprise to lawyers. And there were some concerns that it was it was done behind closed doors, that it wasn't open.
Do you think it could have been done in a different way where lawyers could have been more involved?
KERRY SIMMONS: Well, the Canadian Bar Association, BC branch asked the government to make this information and this proposed legislation public for everybody so that we could understand what was being proposed and understand what problems trying to be solved, because that's never been answered adequately.
And so we now have seen the legislation introduced just yesterday. Our association will be asking questions, seeking understanding, talking to our existing regulators to try and understand what is happening and why these changes are needed. But right now, it sort of puts us on our back foot because lawyers are just looking at this today and saying what is happening?
JILL BENNETT: And interesting when you say that trying to figure out this legislation, what problem it's trying to solve when it when it's put forward as helping people, getting people that are seeking legal assistance, more choices, more options to navigate the legal system. You mentioned what else could have been done or what's needed to be done to do that.
So. So is that is it a case of that? It's addressing a problem or maybe not addressing the actual problem?
KERRY SIMMONS: Well, what we know is people who have problems with employment matters, family law matters, poverty law matters where they're needing to get better government benefits. That's where the unmet need is. And nothing in this legislation is going to enable a publicly funded system for people with low incomes to be able to get the legal services that they need.
So that is the fundamental problem. It might create more people who can do some services, but we're still talking about a private market. Unlike health care, lawyers, paralegals, notaries are in mostly a private market, and they're not funded by government to help low-income British Columbians. And that's the real problem. And this legislation won't solve it.
JILL BENNETT: What happens at this point, then? Like you said, this was put out and now lawyers and people in these different professions are looking at this and looking at what the finer points are. What do you see happening next?
KERRY SIMMONS: Well, we're hopeful that the attorney general will meet with us and others, and we will be meeting with other people who share the concerns so that we can hopefully make amendments to this legislation and change how it's going to be implemented.
JILL BENNETT: Well, we will be watching to see what happens next with this. But thank you so much, Kerry, for joining us today and for going through what some of these concerns are. I appreciate it.
KERRY SIMMONS: Thank you.
JILL BENNETT: That is Kerry Simmons, the executive director of the Canadian Bar Association's B.C. branch.