By Jessica Mach for Canadian Lawyer Magazine
The province of British Columbia argued at trial on Wednesday that lawyers do not need to be self-governing to maintain their independence, telling the BC Supreme Court’s chief justice that lawyers’ independence relies instead on their ability to freely provide clients with independent advice and advocacy.
Emily Lapper, counsel for BC’s Ministry of Attorney General, said the court should take a “functional approach” when assessing lawyers’ independence, similar to the approach used for assessing judicial independence. That means ensuring that the legislature does not interfere with lawyers’ ability to carry out their duty to serve clients.
Lapper argued that because BC’s Legal Professions Act does not interfere with that ability, the controversial 2024 law preserves lawyers’ independence.
“Under the new Legal Professions Act, members of the public will continue to have access to independent legal advice,” she added.
Lapper’s argument formed part of the attorney general’s opening statements to the downtown Vancouver court on Wednesday morning, the halfway point of a 14-day trial over the Law Society of BC and Trial Lawyers Association of BC's challenge to the Legal Professions Act. Passed by the BC legislature last year, the controversial law is slated to replace the LSBC — which regulates lawyers — with a single regulatory body for lawyers, notaries, and paralegals in BC.
That regulatory body will be led by a governing board of directors that gives lawyer-elected lawyers less power than they currently hold at the LSBC. The LSBC and the Trial Lawyers Association of BC challenged the law in court, arguing it is unconstitutional and threatens the independence of the bar.
Lapper said the court’s task is to determine whether the Legal Professions Act – distinct from the Legal Profession Act that has been in force for decades – “interferes with… lawyer independence to such an extent that it is unconstitutional.
“The attorney general says that it does not,” Lapper said.
The LSBC presented its case to the court last week, arguing that the bar’s independence “can only be preserved by structures that ensure appropriate distance from the state.”
Summarizing those arguments on Wednesday, Lapper said the LSBC defined “self-governance” for lawyers to mean that their regulator must be composed of a strong majority of lawyers elected by lawyers. Lapper added that by “self-regulating,” the LSBC meant that any regulator for lawyers “must be completely free of influence by public authorities or any other source.”
However, she argued that “the plaintiffs have failed to articulate any clear legal path connecting lawyer independence to either concept.” She said neither self-governance nor self-regulation guarantees, maximizes, maintains, or is necessary to lawyers’ independence.
Lapper noted that the LSBC had conceded, in its written submissions, that the bar is independent in every province and territory in Canada. However, lawyers in many provinces or territories are regulated by legal provisions that are substantially similar to — or go further than — aspects of the Legal Professions Act.
Chief Justice Ronald Skolrood said that, according to his understanding of the LSBC’s position, the regulator was troubled by the fact that the Legal Professions Act would make it the only law society in Canada subject to the “cumulative” effect of several of those provisions.
Lapper responded that no constitutional doctrine says provisions that are constitutional in isolation can become unconstitutional simply by virtue of appearing together in a single law. “It’s a one plus one equals three submission,” she said.
She said on Tuesday, the Law Society of Manitoba, one of the intervenors in the case opposing the Legal Professions Act, noted that its governing board is not composed of a majority of elected lawyer benchers, and features more appointed benchers. Still, the Law Society of Manitoba said it functions independently of the provincial government.
The LSBC’s response to this contradiction argued that the Legal Professions Act “somehow combines too many of these provisions into one scheme such that it floods over… [and] somehow renders the act unconstitutional in BC,” Lapper said.
Later in the trial, Skolrood told BC’s lawyers that a theme throughout the case “is the glaring absence of a clear rationale for this change” to BC law.
“If you’re going to do what the plaintiffs say, which is upend 150 years of self regulation, one would have thought in this mountain of material there would be a clear rationale,” Skolrood added. “So far it seems glaringly absent.”
The BC attorney general is the latest party to present its position on the Legal Professions Act to Skolrood since the trial began on Oct. 14.
On Friday, the Trial Lawyers Association of BC began its submissions on how the Legal Professions Act violates the Charter of Rights and Freedoms. The organization argued the law does so by proposing to address lawyers’ mental health by introducing mandatory disclosure and coercive treatment measures, enabling warrantless searches of lawyer premises, compelling disclosure of privileged information, and more.
The intervenors in the case — the Canadian Bar Association, the Law Foundation of BC, the Law Society of Manitoba, the Society of Notaries Public of BC, and the Indigenous Bar Association — presented their arguments on Tuesday.