By Jessica Mach for Canadian Lawyer Magazine
By challenging a British Columbia law that opponents worry will erode lawyers’ ability to regulate their own profession, the Law Society of BC is not trying to stop the modernization of the legal profession or arguing that lawyers are immune from government regulation, counsel for the law society told a BC court on Tuesday morning.
“Let’s be very, very clear about what the law society is and isn’t saying,” Lawson Lundell LLP partner Craig Ferris told BC Supreme Court Chief Justice Ronald Skolrood.
Ferris noted that the LSBC favours having a single regulator for lawyers, notaries, and paralegals in BC. This is one of the main components of the 2024 Legal Professions Act, which the LSBC is challenging in court. The LSBC currently only regulates lawyers.
However, Ferris argued that other aspects of the law – like creating a governing board of directors for the new regulator that gives lawyer-elected lawyers less power than they currently hold at the LSBC – threaten the bar’s independence.
“An independent bar can only be preserved by structures that ensure appropriate distance from the state,” Ferris said.
“Without self-governance and self-regulation, there is an institutional opening of the door to government control and interference,” he added. “The manner in which lawyers are regulated impact the manner in which they carry on their duties to clients, courts, and the administration of justice.”
Tuesday marked the first day of trial proceedings in the LSBC’s challenge of the Legal Professions Act. The downtown Vancouver courtroom was packed with counsel for the LSBC, the Crown, and the Trial Lawyers Association of BC, which also filed a challenge to the law. Lawyers for the intervenors – including 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 – were also present in person and electronically.
Ferris told Skolrood the case hinges on several issues: whether the independence of the bar is an unwritten principle of the Canadian Constitution, what is the “meaning and content” of the principle of the bar’s independence, and whether enacting the Legal Professions Act is beyond the scope of the BC legislature’s power under the Constitution Act, 1867.
“This is a case of first instance where we need to get this right because the case will have consequences that will reverberate throughout this country,” he said.
Laura Bevan, a partner at Lawson Lundell who also represents the LSBC, told Skolrood that the crux of the law society’s challenge is “the government’s imposition… of a system of regulation that does not preserve the self-governance of lawyers,” which she argues is inconsistent with the Constitution Act, 1867.
“This is the first step in the elimination of self-governance… of lawyers,” Bevan said, adding that the Legal Professions Act “stands in stark contrast to how legal regulation has been approached in this province” historically.
The trial will last three weeks, and the Attorney General of BC, the TLABC, and the intervenors will present arguments.
The Legal Professions Act – otherwise known as Bill 21 – received royal assent in May 2024. The legislation calls for a 17-person governing board of directors for the new legal regulator that will replace the LSBC, including nine seats for lawyers. Five of those nine seats would be elected by lawyers throughout BC, and the board would appoint the remaining four lawyer seats.
In contrast, the LSBC is overseen by a board of 25 lawyers and up to six non-lawyers. Other lawyers elect those lawyers, and the Lieutenant Governor in Council appoints non-lawyers.
The LSBC and TLABC both filed challenges to the Legal Professions Act. In July 2024, the BC Supreme Court rejected injunction requests by both organizations to stop the BC government from implementing the law, which forced LSBC benchers to appoint four members to a transitional board meant to help the provincial government put the law into force.
In the province's written submission to the court before this month's trial, the province framed the issue in the LSBC and TLABC's challenges as "whether lawyers enjoy complete and total immunity from any kind of democratic regulation."
The province argued, "The plaintiffs’ position is indefensible in our representative democracy."
Last week, lawyers in the province voted 913-893 at the LSBC’s annual general meeting to bar the legal regulator from appointing benchers to the transitional board. The lawyers who brought the resolution to the meeting cited conflict of interest concerns, given the LSBC’s legal challenge against the Legal Professions Act.