Reasonable Doubt: Who does the Law Society of B.C. serve?

Comments5

We’ve heard a lot about the Law Society of B.C. lately amongst the uproar over Trinity Western University’s attempt to open a law school. Law societies must decide if they will recognize the school so that its graduates can practise law in their jurisdictions.

The fervor stems from the covenant that the Christian faith-based school would require its law students to enter. This covenant is guided by the values it wishes to promote but these fly in the face of fundamental LGBT rights. We have the charter right to freedom of religion at odds with the charter right to equality.

So, should the law society be endorsing a law school with such requirements? Some say yes—a law society’s refusal would mean imposing its own views on a school and would result in discriminating against individual students who hold TWU’s values. Last week, we, the Reasonable Doubt writers, voiced our collective opposition to TWU’s proposed law school. In doing so, we spoke out against the accreditation itself of a law school with institutionalized prejudices.

This story has legs to it. It is a fluid situation: the B.C. Law Society’s board of governors (called “benchers”) voted to recognize TWU’s law school on April 11. In less than two weeks, Victoria lawyer Michael Mulligan compiled and submitted over 1,500 signatures of lawyers to force a general meeting of the law society. This is set for June 10. And this week, the news reported that TWU was taking legal action against the law societies.

It’s clear from reading the comments on last week’s article that this story raises important questions and concerns. Several betrayed a deep suspicion of the Law Society of B.C. What is the law society? Why do they get such a say on this decision? What function does the law society serve? Whose interests should and does it serve?

The Law Society of B.C. is a regulating body of the legal profession. Its mandate is to the public and not its own lawyers. It acts to ensure that the public is well served by the province’s legal professionals. Like regulatory bodies for other professions, it does so by maintaining standards of practice. Some of its functions include:

  • deciding on whether to accredit a law school;
  • establishing bar admission requirements for law school graduates such as the bar exam; and
  • creating a code of ethics for practicing lawyers.

The law society also investigates complaints and takes disciplinary actions against lawyers. Its decisions are publicly reported on its website. Recent decisions include:

  • a two-week suspension for a lawyer’s discourteous remarks against a social worker;
  • a 30-day suspension of a lawyer for improperly commissioning affidavits and then misrepresenting to the court about them (failed to comply with his duty as an officer of the court);
  • disbarment of a lawyer who stole his client’s money;
  • disbarment of a lawyer who falsified invoices for services rendered; and
  • court order prohibiting a non-lawyer from further offering legal services and advice.

An important aspect of law societies is that it’s self-regulating. Most of the benchers are lawyers elected by lawyers (although there are up to six non-lawyer benchers appointed by the government). What is the reason? According to the law society website:

People sometimes question the wisdom of lawyers being self-governing, wondering whether self-regulating bodies can be entirely objective. However, self-regulation actually protects the public’s right to independent lawyers. A lawyer’s role is to provide advice on behalf of a client, often in disputes involving the government or based on laws created by the government. A lawyer’s role would be difficult, if not impossible, if the organization that regulated lawyers was directly or indirectly controlled by the government. As one writer has said:

“It is imperative that the public have a perception of the legal profession as entirely separate from and independent of the government, otherwise it will not have the confidence that lawyers can truly represent [the public] in its dealings with government.”

Therefore, the Law Society is independent of the government. It is not a government authority and is not part of the public sector. It is not subject to instructions from government, nor does it receive any public funding.

The website adds this about the independence of the legal profession from government:

“Lawyer independence” is a public right that protects the rule of law. It is not a lawyer’s right – rather, it is a fundamental right that the public has to be able to obtain legal advice from a lawyer whose duty is to the client, not to any other person and certainly not to the state. It guarantees that a client can be confident that his or her lawyer provides legal assistance without fear of interference or sanction by the government or other interests.

What’s the counter argument? Considering lawyers have long had a public relations disaster on its hands, it’s understandably tempting to mistrust a self-regulating law society. In a recent exposé, the Toronto Star concluded that the Law Society of Upper Canada in Ontario, after catching and disciplining lawyers for stealing from their clients, rarely reports such instances to the police. I can imagine the reactions: They say they look for the public interest but they’re just looking after their own!…They’re maintaining a monopoly over legal services!…They’re a bunch of out of touch elitists!

Is a governmental body a better alternative? The issue of self-regulation is the subject of academic papers and policy debates in many jurisdictions. For now, the law society must take public mistrust seriously. What are your thoughts? Could you trust your lawyer to do a good enough job, whether it’s to take on the Crown, a government body, or another individual, if the lawyer is being watched over by the government? Conversely, has self-regulation resulted in a lack of accountability of lawyers?

Comments (5) Add New Comment
R. Wroe
With greatest of respect, I do not think that you have stated the issue as clearly as you could have. If we delve into the Legal Profession Act, we find the definition of "practice of law" contains the following:

""practice of law"...does not include...any of those acts if performed by a person who is not a lawyer and not for or in the expectation of a fee, gain or reward, direct or indirect, from the person for whom the acts are performed,"

So, to be clear, the issue is regulation of those who wish to sell legal services, to put it in a few less words than the act. The Law Society's own Unauthorized Practice page says that

"People engage in the unauthorized practice of law when they perform or offer to perform legal services for members of the public for a fee"

So the issue is really who can charge for legal services.

Your article also suggests lawyers are independent from Government, but this is a bit confusing, is it not? The Legal Profession Act is an act of government, so how is it that lawyers can contend that their monopoly on legal services for a fee is not a grant of the government? Further, the Attorney General is a bencher. Absent that act of government, I fail to see how members of the law society would be the only ones able to charge fees. So at least in that respect, the law society depends on government to not alter the legal profession act to allow competition.

I favor a greater degree of independence from government: revocation of the monopoly on practice of law for fees currently enjoyed by law society members. If I want to hire someone to act as my priest and pay him to celebrate mass, I am allowed to do so. During much of history in many places, only licensed clergy enjoyed this power. If I am allowed to pay whoever I like to be my priest, why am I not allowed to pay whoever I want to be my lawyer? We would not tolerate the provincial government giving, for example, the Anglican Church a monopoly on celebrating mass in expectation of donations. Why do we tolerate the law society doing something so similar, albeit within the temporal sphere?
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Rating: +7
Rubbish
In England where our common law jurisdictoin comes from there is now an...

- INDEPENDENT Full Time Ombudsman's office to Investigate and Regulate 'Lawyers'.

The system of so called 'self regulation' is a farce and antiquated.
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Rating: +8
cuz
The law society's only serve the lawyers. They could care less about the public or justice. Just $$$ in their pockets - that's all they care about. You know what you call a million lawyers at the bottom of the ocean? A good start!
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Rating: -2
Chris Budgell
I recently filed a petition for judicial review of the Law Society of BC's handling of a complaint that I had filed last year on behalf of another person.

The Law Society retained an outside lawyer to deal with the judicial review petition. Before filing his Response he telephoned my associate, and on the basis of that phonecall I advised her to file a second complaint, which she did. This placed the Law Society in an obviously conflicted position, though I wasn't sure they would recognize that. However, they have implicitly recognized it by hiring another outside lawyer to deal with the initial assessment of the second complaint.

We may be in court for the hearing of the judicial review in August, by which time I expect to have assembled as damning a case as any law society has ever faced. And, for the record, I won't be sparing the judges.
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Rating: +3
Lorna greenwood
About Us > Governance > Part 1 Mission and Ends
Governance Policies
Part 1 – Mission and Ends
A. Mission

The principal aim of the Law Society of British Columbia is a public well-served by a competent, honourable and independent legal profession. The secondary aim is the promotion and protection of lawyers' interests provided it does not derogate from the principal aim. [10/1994]
B. Ends

1. Lawyers are qualified on entry to the profession.

(a) Applicants possess the knowledge, skills and attitude required to provide legal services competently and are of good character, repute and fitness.

(b) The knowledge, skills and attitude required to become qualified are articulated. [03/1994; 09/1994]
- See more at: http://www.lawsociety.bc.ca/page.cfm?cid=1329&t=Governance-Policies-Miss...

also
Complaints and Discipline > Complaints > File a Complaint
File a complaint

Information, online complaint form and other resources
Privacy of complaints

The Law Society has authority to review the conduct and competence of lawyers practising in BC, including lawyers in private practice, legal aid lawyers, government lawyers and Crown prosecutors. The Law Society can also review the conduct of a lawyer outside the practice of law if the conduct reflects badly on the legal profession.

We do NOT have the authority to

give legal advice;
intervene in a court proceeding or change a court decision;
insist that a lawyer take a case, remain on or withdraw from a case or do something specific in a case;
make a finding that a lawyer was negligent;
review a judge's conduct or review a complaint about a judge;
regulate the amount of a lawyer's bill or reduce your legal fees (If you believe the fees charged by your lawyer were not reasonable, there are steps you can take);
pay you money or make a lawyer pay you money because of a lawyer’s mistake (If you believe a lawyer has made a mistake you may wish to seek legal advice about your options. In those rare instances in which a complaint involves the misappropriation or possible misappropriation of trust funds by a lawyer, you should also be aware of the Law Society's trust protection coverage).

If your concern falls into any of the above categories, we recommend that you speak with your lawyer or seek the advice of another lawyer to help you with your case.
sums things up
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Rating: +4
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