B.C. law society approves action on paralegals, fee reductions at September bencher meeting

Law360 Canada (September 30, 2020, 9:29 AM EDT) -- The Law Society of British Columbia (LSBC) faced a full table of issues at its most recent bencher meeting, endorsing a proposal on the possible future role of paralegals and moving to reduce fees for individuals most affected by the COVID-19 pandemic.

The meeting, which was held via videoconferencing service Zoom Sept. 25 as the COVID-19 crisis has restricted in-person gatherings, saw an endorsement of steps towards possibly developing a licensing system for paralegals which was slightly different than the pathway initially envisioned. Trudi Brown, chair of the licensed paralegal task force, noted she and her colleagues decided to step away from the “top-down” model where the regulator defines categories of providers and a scope of practice to endorse a “grassroots” approach, where the law society looks to revise its regulatory scope to permit the provision of legal services by people who may already be providing them.

“In our consultations over the last year and a half we have come to the conclusion that [the top-down model] was not the appropriate way to do this,” she said, noting Washington state set up a program along those lines which has since been scrapped. “What we are now saying is the marketplace can in fact identify and create the business models and the proposals that work for people better than we can and impose them from the top down. Several other jurisdictions are all looking at this approach, which is affectionately referred to as the sandbox and it is a system, that says rather than ‘if we build it, they will come,’ let them build it and let us make sure the public isn’t harmed.”

Benchers then endorsed the task force’s proposal to further develop a “regulatory sandbox” which would permit individuals to apply to provide legal advice or services in an area where the law society determines there is a public interest in doing so and develop a system of “no action” agreements where those individuals would not be prosecuted for the unauthorized practice of law but would be evaluated to ensure no harm is being done. This sandbox would eventually provide the basis for the formal recognition of licensed paralegals who will be able to provide legal services directly to the public in identified areas of need, either working with lawyers or independently.

President Craig Ferris said any licensed paralegal would not be restricted to any area of law, noting the blowback which has been received from some sectors of the family law bar in the province against more paralegals in the system.

“What [this method] allows us to do is actually gauge what areas of law people can actually think that they can make a living doing this and provide a service which is useful to people,” he said.

But COVID-19 was not entirely off the table as benchers also took a look at the law society’s books. It was projected that there will be significant cost savings in 2020 to offset an expected revenue deficit of $1 million, leading to a positive year-end result in the budget. Practice fees will remain at $2,289.12, but benchers also approved a one-time fee reduction targeted at lawyers most heavily impacted by the pandemic, with a reduction of between 50 to 75 per cent of practice fees depending on the impact of income hit they have taken.

The impact of COVID-19 on the legal profession has been uneven, said Ferris, noting many individuals at larger firms have been able to manage adequately but those who provide service for more marginalized members of society have been hit hard.

“What we don’t want to do is come out of the pandemic with a larger access to justice problem than we went into it with and have people pushed out of the practice of law simply because it was expensive,” he said. “We felt that the best way to do that was not do an overall cut, because everybody would like to pay less, but really look at people who have been disadvantaged.”

Benchers also gave the go-ahead to a plan to explore and develop options for the creation of additional pathways to licensing separate from articles, which would provide aspiring lawyers an alternate means of obtaining pre-call training. The LSBC’s lawyer development task force will now review the licensing program and reach out to law schools and other stakeholders to examine other ways for a more rapid entry into practice.

“The current system of law school followed by articles in British Columbia has been in place since 1945,” said task force chair Steven McKoen. “While our education system has been fairly static for the last 75 years, the landscape of the profession has changed dramatically. The task force was asked whether we are due for a re-examination of our lawyer training system and our answer is yes.”

Ferris said the exploration of alternatives to articling involves taking a look at three issues: the fact that it takes a long time to become a lawyer, the fact many lawyers are practising in a way that makes it hard for them to take on students and the fact that sometimes the articling experience can be uneven.

“The task force was appointed last year to look at the idea of how to develop and maintain competent legal professionals, and one of the things that they looked at is this issue. We haven’t looked at articling for decades and whether this the best model,” he said. “So, this is another step in the process, they want to look at this ... and I would think they would come back next year with some further ideas.”

Benchers also endorsed an ambitious action plan by the law society’s equity, diversity and inclusion (EDI) action committee to help address racial discrimination in the legal profession. The plan includes a range of steps, including identifying additional methods to promote intercultural competence training, collaborating to increase the recruitment and advancement of diverse lawyers and reviewing both the law society’s rules and the provincial Legal Profession Act for possible improvements that might help to support diversity.

Ferris said the LSBC has five years of data from its self-identification survey which shows there has been some progress in increasing the diversity of the legal profession, but it still does not reflect the province as a whole.

“And obviously you see what is going on in the world around you, which gives you more of an impetus to push this forward,” he said. “The committee has put together a pretty comprehensive action plan to really try and do that.”

The next bencher meeting is scheduled for Oct. 31, with the law society’s annual general meeting set for Oct. 6.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.