Upcoming legislative amendments

BC LegislatureFour amendments to the Legal Profession Act, introduced for first reading by Attorney General Wally Oppal, QC in the Legislature on April 25, will make the Law Society’s regulatory programs more effective.

The amendments are the result of an ongoing collaboration between the government and the Law Society to further enhance public confidence in the justice system.

“The Attorney General has identified, as one of his primary goals, the need to improve public confidence in the justice system,” said Law Society President Anna Fung, QC. “The Law Society shares this goal and we look forward to continuing our collaboration with the government to achieve the goal.”

The four amendments are:

Custodianships: Currently, the Legal Profession Act does not permit the Law Society to be appointed as a custodian of a lawyer’s practice. When a lawyer is unable to continue practising and has not made appropriate arrangements for his or her clients, the Law Society usually applies under s. 50 of the Act to the BC Supreme Court for the appointment of a custodian.

The Law Society has determined that in some cases it would be more efficient to have a staff lawyer appointed as the custodian. To facilitate this, it is necessary to amend the legislation to allow the Society to be appointed as the custodian and to carry out the custodian’s powers through a lawyer employed or retained by the Society for that purpose.

The Law Society handles about 15 custodianships a year.

Practice standards: Changes to the Act will allow the Law Society to impose remedial programs and practice restrictions on lawyers who do not cooperate with remedial efforts. Existing legislation only allows the Society to recommend remediation and restrictions. This hinders the Society’s ability to regulate the legal profession in the public interest.

While the Practice Standards Committee deals with only a small percentage of BC lawyers, and the vast majority of those lawyers readily agree with the committee’s recommendations, a small minority of lawyers either refuse or fail to carry out the recommendations.

Quorum for Bencher reviews: The Legal Profession Act contains no provisions permitting a Bencher review of a regulatory decision to continue if the Benchers lose quorum. The quorum for the Benchers is seven. Because of conflicts, disqualification rules and Bencher availability, it is often necessary to sit a bare quorum on reviews of discipline and credentials decisions.

If a Bencher reaches the end of his or her elected or appointed term, resigns (for example, upon being appointed to the Bench) or passes away before the conclusion of the review, the Benchers lose quorum and are unable to continue. The only option is to recommence the review at considerable cost and inconvenience, not only to the Law Society but to the lawyers and witnesses involved. It also results in a delay in resolving the complaint.

On three occasions in recent years, the Law Society has had to recommence a review. One involved a Lay Bencher who was not reappointed at the end her term. Another involved an elected Bencher whose term expired before the conclusion of the appeal. In the third case, the Benchers lost quorum when one member was appointed to the Bench. On two other occasions, when government-appointed Lay Benchers reached the end of their terms, the reviews were able to continue only because the government agreed to delay the appointment of new Lay Benchers until the two reviews were completed. This required the government to rescind the Order-in-Council making the appointments and then re-enact the Order-in-Council.

The amendments will allow the Benchers to continue a review if they lose quorum provided at least five members remain.

Evidence outside BC: The amendments will also allow Law Society hearing panels to obtain evidence outside BC. As the practice of law becomes more inter-provincial and international, the Law Society encounters, and is likely to encounter more often, situations where it is necessary to obtain evidence outside the province in order to prosecute alleged discipline violations.

The amendments are part of Bill 33, Attorney General Statutes Amendment Act, 2007. In the normal course, the legislation should be proclaimed in force by the end of May.