Changes to Legal Profession Act include authority to regulate law firms
Law Society President Bruce LeRose, QC (left) and CEO Tim McGee, with Justice Minister and Attorney General Shirley Bond.
“Remember your involvement in this Act, because it is very significant. This is a milestone,” said Law Society Chief Executive Officer Tim McGee to the Benchers at their May meeting.
“This legislation is an important moment in our history,” added Bruce LeRose, QC, president of the Law Society. “And while a change in legislation may not sound riveting to the average person or even the average lawyer, this Act will have significant repercussions for both the public and lawyers.”
The amending act, as Bill 40, received third and final reading in the provincial legislature at the beginning of May, with both sides of the house voicing strong support.
Justice Minister and Attorney General Shirley Bond said in a press release, “These changes give the society more authority to take measures to protect the public on those occasions when substantiated complaints arise.”
Leonard Krog, a lawyer and the NDP’s critic for the Attorney General, told the house during the final reading, “I am satisfied that this bill represents good progress.”
The amending act, formally the Legal Profession Amendment Act, 2012, SBC 2012, c. 16, will have several implications for both the public and lawyers.
Regulating law firms as well as lawyers
Previously, the Law Society did not have the authority to regulate law firms – just the lawyers within them.
“We indirectly regulate firms through lawyers right now, but it’s awkward – it’s not transparent and in some cases not effective,” said Jeff Hoskins, QC, tribunal and legislative counsel for the Law Society, who led the society’s efforts to have the legislation amended. “We say ‘all lawyers must do this.’ They can rely on their firm to do it, but it’s their responsibility in the end.”
Just how the Law Society will regulate firms has yet to be determined. Over the coming months, the Law Society expects to complete the necessary work to develop new rules designed to provide appropriate guidance to law firms. The profession can also expect a significant communication effort around the changes.
“This is an important development,” reported Deborah Armour, chief legal officer of the Law Society. “Our goal is to reduce the number of complaints in the first place. If we can look to firms to share in the responsibility of ensuring an ethical and competent profession, we will be taking a much more proactive approach to regulation as opposed to simply reacting to problems through our complaints process.”
When it comes to investigations and discipline, the ability to regulate firms may assist the Law Society in situations where it isn’t always clear who is responsible for firm-wide activities, such as marketing or trust accounting. “We don’t yet know the specifics of how this will be done, but having the ability to regulate the law firm makes it more incumbent on the firm, itself, to abide by the rules,” added Michael Lucas, the manager of policy and legal services who, among other staff, also worked behind the scenes on the new act.
Changes provide for much improved investigations and discipline
The amended act will now give the Law Society the power to require people other than lawyers to answer questions and produce records.
“In carrying out an investigation, we were able to compel the cooperation of the lawyer through the rules, but previously there was nothing we could do with a client who didn’t want to comply,” said Hoskins. “Now, the Law Society can require people who are not lawyers to disclose documents and give sworn evidence.”
Another important development relates to discipline while investigations are ongoing.
“Significantly,” added Armour, “where it is necessary to protect the public, three or more Benchers now have the authority to suspend a lawyer or place conditions on a lawyer’s practice while an investigation is ongoing, rather than having to wait for a disciplinary hearing. This gives us the statutory authority to protect the public interest in extraordinary circumstances.”
There will also be a change to how medical examinations are handled. Now, three or more Benchers can order a lawyer to undergo a medical examination before there is a citation. This replaces the section that required the investigation to be complete before the Law Society could require such an examination.
“That’s important,” said Hoskins, “because it takes a medical issue, which often involves mental health concerns, out of the discipline process and puts it where it more properly belongs in the investigative stage.”
Public interest clearly paramount
As the regulating body of lawyers, it is already the Law Society’s responsibility to act in the public interest. But section 3 also said the society had a duty to “uphold and protect the interests of its members.”
“Public interest is no longer paramount – it is the thing,” said Hoskins, “which makes our mandate consistent with most other professions in BC. Our mandate is no longer two-tiered, in terms of weighing the public interest against the interests of lawyers. This change is intended to demonstrate to the world that this is a public interest body, and we don’t have the object of advancing the interests of lawyers, except to the extent that we do so by supporting them in meeting their requirements in the practice of law.”
There are now five things that the Law Society must do:
- preserve and protect the rights and freedoms of all persons;
- ensure the independence, integrity, honour and competence of lawyers;
- establish standards and programs for the education, professional responsibility and competence of lawyers and of applicants for call and admission;
- regulate the practice of law; and
- support and assist lawyers and articled students in fulfilling their duties in the practice of law.
Practice fee to be set by Benchers instead of by vote of members
One of the other important changes to the Act is to the process of setting the annual practice fee.
Previously, lawyers had the opportunity to vote on the practice fee, which in the normal course occurred through voting at the annual general meeting on a resolution containing a fee recommended by the Benchers. Under the new Act, the Benchers will set the fee.
This change will improve the timing of the Law Society’s budgeting activities and will also remove the regulatory conflict created by allowing the regulated members to determine the funding of their regulatory body. The change also brings the Law Society in line with the vast majority of regulatory bodies and all other Canadian law societies.
For his part, President LeRose is confident that this legislation will bring positive change for both the public and lawyers.
“This is a bit of a watershed, it’s a new modern era,” said LeRose. “We’ve had 14 years of experience with the Legal Profession Act. We knew where the weaknesses were and we’ve watched the rest of the world to see what the trends are and what tools other regulatory bodies are using. We’re confident these changes will help us provide the best protection we can for the public and help support lawyers in meeting the public interest.”