The Law Society’s unauthorized practice program:
protecting the public

book: Law Made EasyBrad Flewelling was getting desperate in early 2011 when he turned to the internet looking for legal advice.

Flewelling had been on the losing end of a lengthy legal battle with a Vancouver financial institution over a loan he and his business partners had used to support a business venture. Flewelling had hired lawyers in the past to help work on his case but eventually ran out of money, then represented himself at trial and lost.

“I felt I hadn’t properly represented the case,” said Flewelling. “I had to find some way to get back in front of a judge.”

On the website Craigslist, Flewelling came across an advertisement for a woman named Marlane Lauren. Lauren had obtained an LLB from the University of Saskatchewan and had done legal work in California.

They met, and Flewelling was impressed. He signed a retainer agreement with Lauren and began transferring money to her account. He expected to be back in court by the spring of 2012.

“I was excited,” said Flewelling. “I had lost my business, my home, my wife, everything. This was going to be my opportunity to get into court and salvage some of that.”

Unfortunately for Flewelling, he would not be back in court. In November, he tried to contact Lauren to ask a question about his case, but the telephone line had been disconnected.

He contacted the Law Society and was told Lauren was neither a lawyer nor an articled student in BC and was not authorized to practise law. What’s more, the Law Society’s Unauthorized Practice (UAP) program had been investigating complaints about Lauren since October 2010 and had obtained a court order prohibiting her from, among other things, giving legal advice and representing herself as a lawyer.

After spending years fighting his financial institution, Flewelling said this ­latest bit of information was the final straw, and he gave up. “I was not able to move ­forward from that period on,” said Flewelling. “It just completely sucked the life out of me.”

The Law Society ended up taking ­Lauren back to court and in May 2012, she was found to be in contempt of the earlier court order. She was fined and ordered to reimburse Flewelling for approximately $3,000 he had paid pursuant to the ­retainer agreement.

Enforcement

Flewelling’s complaint is one of approximately 140 received by the Law Society’s UAP program each year.

Under the Legal Profession Act, the Law Society is responsible for licensing lawyers and regulating the practice of law. The Law Society also protects the public by taking action against people who illegally offer legal services, or misrepresent themselves as lawyers.

The UAP program is a complaint-­driven process. The Law Society will investigate every complaint received and ­determine whether it is in the public interest to pursue.

Law Society unauthorized practice counsel, Michael Kleisinger says, in many cases, a simple letter from the Law Society to the unauthorized practitioner is enough to make them stop.

“We have a graduated system of enforcement,” said Kleisinger. “We’ll write a letter and inform the party of what the law says and ask them to stop. It’s only after that request is ignored, or if there is a serious danger to the public, that the Law Society will take further steps such as getting an injunction.”

Kleisinger says in some instances, even an injunction is not enough to stop an unauthorized practitioner from providing legal services.

“In those cases, we have to take a further step and get a contempt order, which can result in fines and even jail sentences,” said Kleisinger.

In 2012, the Law Society obtained 10 injunctions, two contempt orders and three Court of Appeal orders, in addition to 33 undertakings from unauthorized practitioners promising to stop offering legal services.

Access to legal services enhanced by other service providers

The Legal Profession Act prohibits people who are not lawyers from providing many legal services and representing themselves as lawyers. However, there are certain legal services that can be offered by people other than lawyers. These professionals play an important role in providing access to justice for the public.

  • Notaries: The BC Notaries Act allows notaries public to provide certain legal services, primarily with respect to wills and real estate. Notaries are regulated by the Society of Notaries Public of BC.
  • Immigration consultants: The federal Immigration and Refugee Protection Act and regulations allow registered immigration consultants to provide limited legal services as specified under that legislation (such as representing persons before immigration tribunals). Immigration consultants are regulated by the Immigration Consultants of Canada Regulatory Council.
  • Designated paralegals: Under regulatory changes recently enacted by the Law Society, designated paralegals who work under the supervision of a lawyer are permitted to provide certain legal services. Specifically, they can provide legal advice directly to clients, and they can make certain applications in some court registries in both BC Provincial and Supreme Court as part of a two-year pilot project.
  • Articled students: Under Law Society Rule 2-32.01, articled students working under the supervision of a lawyer may provide most of the services of a lawyer, so long as the student is competent and properly prepared.

Risks of unauthorized practice of law

The overriding purpose of the UAP program is to protect the public from those who are unqualified, unregulated and uninsured to practise law. From the Law Society’s perspective, unauthorized practitioners present a range of risks.

“For starters, some people simply get ripped off,” said Kleisinger. “They hire an unauthorized practitioner to perform a legal service, who then takes the money and disappears.”

Kleisinger points to a number of other risks, including:

  • a person could receive harmfully poor legal advice from an unauthorized practitioner that could negatively impact a case or claim;
  • unauthorized practitioners don’t carry insurance or trust protection coverage;
  • unauthorized practitioners aren’t subject to ethical and practice standards and other regulatory requirements;
  • unauthorized practitioners can slow down the legal process and clog the courts.

Impeding the functioning of the courts is a problem the UAP program is observing in connection with the anti-establishment Freeman on the Land movement. Freeman practitioners have appeared in court on their own behalf, and sometimes on behalf of others.

Problems with the Freeman movement are not limited to BC. In Meads v. Meads 2012, from the Court of Queen’s Bench of Alberta, Associate Chief Justice J.D. Rooke wrote at length about what he termed the Organized Pseudolegal Commercial Argument (OPCA) litigants, which include ­Freeman on the Land.

“OPCA strategies as brought before this Court have proven disruptive, inflict unnecessary expenses on other parties, and are ultimately harmful to the persons who ... attempt to invoke these vexatious strategies,” wrote Associate Chief Justice Rooke. “Beyond that, these are little more than scams that abuse legal processes.”

In BC in 2012, the UAP program initiated injunction proceedings against three Freeman practitioners, in addition to working with the RCMP and Society of Notaries Public to address the concern.

Getting the message out

In 2012, the Law Society’s Unauthorized Practice Committee, which oversees the UAP program, determined that protecting the public from unauthorized practitioners required more publicity on the topic.

“The public needs to know about UAP and the risks that are being addressed,” said Bencher and committee chair Lee Ongman.

To that end, the Law Society now issues news releases when the UAP program obtains an injunction or another court ­order against an unauthorized practitioner. It has also created a searchable, online ­database of unauthorized practitioners with links to court orders and reasons for judgement.

“Knowledge is power and we really want people to know whether the legal advice they’re receiving is coming from a trained, insured professional,” said ­Ongman.

Making sure

For members of the public who want to confirm whether the person they’re working with is a qualified and insured lawyer, Michael Kleisinger recommends they start by visiting the Law Society website.

“It has a search tool called Lawyer Lookup,” said Kleisinger. “You can punch in the lawyer’s last name and confirm their status, call date and contact details. If nothing shows up there, that’s a red flag and you should contact us.”

“Absolutely, check with the Law Society,” said Brad Flewelling. “Make sure the lawyer is registered, and if they’re not, don’t even go there.”


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