Unauthorized practice investigations
As part of its statutory mandate to uphold and protect the public interest in the administration of justice, the Law Society routinely investigates allegations of unauthorized legal practice.
The Legal Profession Act restricts the practice of law to qualified lawyers in order to protect consumers from unqualified and unregulated legal service providers. A legal decision, whether it involves the purchase of a house, the start of a business or the drafting of a will, is often one of the most important decisions a person makes in his or her life. It is therefore fundamentally important that he or she receives advice from someone properly qualified.
In addition, non-lawyers are not subject to any regulation. They have no educational standards, no errors and omissions insurance, no ethical standards, no defalcation coverage and no governing body to complain to should something go wrong.
Section 1 of the Legal Profession Act defines the practice of law while s. 15 states that only a practising lawyer is entitled to practise law. Section 85 makes it an offence to practise law if you are not a lawyer. It is important to note that the practice of law is defined as carrying out any of the activities listed in s. 1 “for a fee, gain or reward, direct or indirect.” A non-lawyer who provides or offers to provide legal advice but is not seeking a fee is not violating the statute.
There are, of course, exceptions. Notaries public in BC are entitled to provide a limited range of legal services — primarily real estate conveyancing, certain types of wills and affidavits. Immigration consultants are regulated by federal legislation and advocates appearing before workers’ compensation board tribunals are not regulated.
Information about unauthorized practice comes to the Law Society’s attention from a variety of sources. Occasionally, the Law Society receives calls from consumers who think the person they are dealing with is a lawyer and who want to file a complaint. Sometimes we hear from lawyers who have been retained to redo legal work that has been performed incorrectly by a non-lawyer. A surprising number of complaints arrive in the form of anonymous letters enclosing newspaper advertisements (usually for discount divorce services).
Examples of unauthorized practice range from the ridiculous (a man who claimed he could handle divorce cases because he’d been divorced two or three times and knew all about the law) to the profoundly serious (a man who was posing as a lawyer and visiting battered women’s shelters with offers of discount legal services). In the latter case, the police stepped in before the Law Society obtained its order and charged him with fraud. He was ultimately sentenced to 24 months in jail (he represented himself at trial).
In an unauthorized practice case, unless a client who is willing to swear an affidavit complains or the person providing the advice is publicly advertising his or her services such that it is apparent the person is providing legal services for a fee, the Law Society will retain a private investigator. The investigator will usually attend at the person’s office as a prospective client. It is necessary to do this so the Law Society can determine whether the person is engaging in unauthorized practice or if it was an isolated incident. In addition, if it is necessary to take the matter to court, the Law Society needs evidence of unauthorized practice.
If there is evidence that the person is offering legal services for a fee, the Law Society will write to the person asking him or her to stop and to sign an undertaking promising to refrain from doing so in the future. Often it’s a case of simple ignorance — the person does not realize his or her activities are prohibited by law — and he or she signs the undertaking. If a person refuses to sign an undertaking, the Law Society can take the matter to court pursuant to s. 85 of the Legal Profession Act and ask for a formal injunction. In rare cases, where a person breaches an injunction, the Society will bring a contempt application against the person. In some contempt applications, the courts have gone so far as to fine or even order jail time for repeat offenders (see for example The Law Society of BC v. McLeod (unreported, BC Supreme Court December 17, 1998, Vancouver Registry No. A952288)).
In the first 10 months of 2006, the Law Society investigated 71 allegations of unauthorized practice. These resulted in 26 undertakings, two BC Supreme Court consent orders and five injunctions.