Canadian Lawyer

14 N O V E M B E R / D E C E M B E R 2 0 1 8 w w w . c a n a d i a n l a w y e r m a g . c o m R E G I O N A L W R A P B R I T I S H C O L U M B I A PROPOSED IDEA FOR NON-LAWYER LEGAL SERVICE PROVIDERS MEETS RESISTANCE N ot everyone is happy with the Law Society of B.C.'s Alternative Legal Service Providers working group, which is recommending that the legal profession move toward new classes of non- lawyer legal service providers after the LSBC requested the B.C. government change the Legal Profession Act. Lawyers Peter Leask and Karen Nordlinger put forward a resolution to the LSBC's annual general meeting Oct. 30 that benchers withdraw their application to the provincial government seeking legisla- tive amendments to the Legal Profession Act to enable the law society to create, credential and regulate new categories of non-lawyer legal service pro- viders and direct the benchers to refrain from any further action to have non-lawyers practise law. Leask is a former B.C. Supreme Court justice, retired but still practising, while Nor- dlinger practises family law, arbitration and mediation. Increasing access to justice has been an ongoing concern for the LSBC, including recent initiatives that broadened the use of paralegals and allowed lawyers to offer unbundled services. Family lawyer Nancy Merrill, first vice president of the LSBC and member of the ALSP working group, said in a statement: "In 2014, the Benchers unanimously adopt- ed a resolution to pursue the creation of a new category of licensed professional to serve unmet and underserved needs of the public. Earlier this year, a decision was made to explore what limited ser- vices might be provided by people other than lawyers in the area of family law." The ALSP working group, chaired by Miriam Kresivo, identified seven key areas in a 21-page consultation paper besides family law where the public could benefit from changes, including employ- ment law, debtor and creditor law, advocacy before admin- istrative tribunals, advocacy in Small Claims Court, traffic court and acting as advisor or counsel at mediation and arbi- tration. The working group is now seeking feedback. The high number of self- represented court litigants made family law a focal point for the LSBC. "Family is an area where the unmet need is con- siderable and a new category of limited licence professionals could have the greatest impact," Merrill says. "Several studies have shown that only about 15 per cent of those who are deal- ing with a family law problem will seek out a lawyer to assist them. The rest are 'going it alone' instead, with some of them ending up as self- represented litigants in court." While the working group sets out the proposed criteria and the defined and limited scope, it doesn't ignore lawyers. "It also contemplates referrals to a lawyer for issues that are beyond the scope of the lim- ited licence," Merrill says. The initiative is not draw- ing applause from some Van- couver family law lawyers who believe it goes too far. "What is being proposed is that non- lawyers can practise law," says Angela Dunn, chairwoman of the Vancouver family law chapter of the CBABC's family law section. She says her mem- bers had circulated the Leask- Nordlinger resolution prior to the AGM. Dunn says the benchers are not bound by the resolution vote at the AGM. As a result, her chapter is planning to make a joint submission with the other B.C. family law chap- ters to voice their concerns to the working group by the Nov. 16 deadline set for feedback. Dunn's criticism of the LSBC's consultation paper, which she stresses is her own view and not of the entire CBABC family law section, is that it provides too broad a scope in empowering this category of alternate legal service provider to provide legal advice. There are areas where non-lawyers can provide advice such as in the Hague Convention (child abduction), relocation of children and pen- sion issues. "But it is very nar- row," she says. Dunn says there are juris- dictions where alternate service providers have been estab- lished but their scope is limited or under the auspices of a law- yer. The LSBC proposal, she says, is broad and individuals would operate independently. Family law can also touch on many other legal areas such as corporate, tax, pension, employment, immigration, estates and bankruptcy, Dunn says. "If you don't know that area, you won't know you are doing something wrong." Dunn says the issue is really about access to legal services and it should fall to the pro- vincial government to provide adequate legal aid funding. Thompson Rivers Univer- sity law school dean Bradford Morse says Canada and other countries have been shifting toward alternate service pro- viders. In September, mem- bers of the Washington State Bar Association provided a powerpoint presentation to the CBABC in Richmond on its use of licensed legal technicians. "They have gone that route and some of the LTTs work with lawyers or in their own small businesses," he says. The Ontario Law Society has licensed its para- legals, who are also regulated by the society and insured. While B.C. paralegals are not licensed, notaries have an area of expertise and associa- tion that regulates them. Morse says that, in theory, these new alternate service providers could work with lawyers and take over some of the unbundling tasks that don't require a lawyer. They might also benefit northern areas now losing retiring lawyers as individuals open the doors to new business startups, he says. — Jean Sorensen Thompson Rivers University law school dean Bradford Morse says that alternate service providers could benefit northern areas now losing retiring lawyers.

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