The Coming End of Lawyer Control Over Legal Regulation

On the finish of final yr, as John-Paul Boyd ably chronicled on this web site, members of the Legislation Society of BC voted on three resolutions relating to entry to justice. The second of these resolutions — directing the legislation society to bar paralegals from offering household legislation companies underneath new provincial laws and to postpone every other enlargement of paralegals’ scope of observe — acquired overwhelming approval.

Whereas this was a disappointing consequence from an entry standpoint, as John-Paul explains, it was hardly a shocking one, given legal professionals’ entrenched opposition to increasing the scope of “legislation observe” past the authorized career. What was shocking, to me at the least, was the response from the legislation society’s management, as reported in Canadian Lawyer:

LSBC president Miriam Kresivo, who chaired the AGM and headed the LSBC’s Alternate Legal Service Supplier Working Group, which advocated for the use of non-lawyers, says benchers must give the membership determination “critical consideration.” “It should be thought of as half of the session course of,” she says…

Now, I’m sufficiently old to recollect when the overwhelmingly expressed will of a province’s legal professionals was full and enough trigger to dictate the following steps of a legislation society. Right here, nevertheless, a legislation society president says it should take the opinions of legal professionals into consideration, together with the opinions of different events — together with, presumably, a authorities that handed a newly revised statute now known as the “Legal Professions Act” (word the plural).

It appears to me that the duly elected members of the BC legislature and the duly elected leaders of the province’s legal professionals are attempting to ship a message to the career’s rank and file: You’re not in management of authorized market regulation anymore. John-Paul places the purpose bluntly:

The amending statute clearly indicators authorities’s intention to permit non-lawyers to observe legislation, and my elementary concern on this level is that if we fail to embrace the inevitable and regulate the extent to which non-lawyers observe legislation, authorities will do it for us. (Italics in authentic)

Now, let’s transfer a number of a whole bunch kilometres down the coast — previous Washington State, which pioneered the groundbreaking limited-license authorized technician (LLLT) program again in 2015 — all the best way to California. The State Bar of California was not too long ago sundered, with its lawyer advocacy operate hived off into the brand new California Legal professionals Affiliation and the regulatory facet lastly let loose to focus solely on regulating authorized companies.

One of the brand new Bar’s first acts was to fee a report on the state of the authorized market panorama by Professor William Henderson of the College of Indiana Faculty of Legislation. You want solely be glancingly aware of Invoice Henderson’s accomplishments and convictions to know that this report delivered an intensive and unflinching view of the present authorized market’s failure to offer accessible justice to Californians. From the manager abstract:

The authorized career is at an inflection level. Fixing the issue of lagging authorized productiveness requires legal professionals to work carefully with professionals from different disciplines. Sadly, the ethics guidelines hinder this sort of collaboration. To the extent these guidelines promote shopper safety, they accomplish that just for the minority of residents who can afford authorized companies.

 Modifying the ethics guidelines to facilitate larger collaboration throughout legislation and different disciplines will (1) drive down prices; (2) enhance entry; (3) enhance predictability and transparency of authorized companies; (4) assist the expansion of new companies; and (5) elevate the popularity of the authorized career.

This report accompanied the Bar’s determination to create the Activity Pressure on Entry Via Innovation of Legal Companies. (A lot as in BC, the title is revealing of the framer’s objective.) Learn the constitution of the duty drive, and also you’ll see that the next points are squarely inside its mandate to think about and consider:

  • the patron safety functions of UPL prohibitions;
  • the influence of the definition of “the observe of legislation” on AI-driven authorized methods, on-line shopper self-help companies, matching companies, doc manufacturing, and dispute decision;
  • lawyer promoting and solicitation;
  • partnerships with non-lawyers;
  • fee-splitting (together with compensation for shopper referrals);
  • entity regulation;
  • non-lawyer possession or funding in companies engaged within the observe of legislation;
  • multidisciplinary observe fashions; and
  • various enterprise constructions.

That’s to say: The activity drive’s remit is the whole lot associated to the standard regulation of authorized companies.

Mix this with the membership of the duty drive (break up pretty equally between people who find themselves legal professionals and people who find themselves not), the daring nature of its founding doc, and the very fact the the newly centered State Bar has chosen this topic as its first order of enterprise … effectively, I don’t have a lot doubt that when the duty drive reviews on the finish of this yr, it may very effectively suggest a sea change in authorized market regulation in California.

California is residence to greater than 270,000 legal professionals. It has lengthy been a harbinger of regulatory shifts in the USA. The probability that authorized market liberalization within the US will cease at its borders appears distant.

What’s particularly noteworthy for me, although, is the truth that a activity drive of this sort was by no means convened — in actual fact, I consider may by no means have been convened — when California’s State Bar had conflicting mandates to serve each the pursuits of legal professionals and the pursuits of the general public. Take legal professionals out of the regulatory equation — as California has executed, and as BC evidently is doing proper now — and the whole lot adjustments.

Regulatory revolution will not be confined to the west coast of North America, by any means. Nova Scotia, Illinois, Utah, Tennessee, and of course, England & Wales, are both speaking brazenly about radical regulatory change or already far down the highway in direction of making it a actuality. However the two Pacific jurisdictions described above may very effectively signify the true tipping level on this course of — the purpose at which our understanding of authorized companies regulation adjustments, essentially and completely.

You’re free to resolve, of course, whether or not you assume this growth is sweet or dangerous. However I’m right here to say two issues. One, authorized market regulation is now shifting past the management of the authorized career, and I don’t assume we’re going to get it again.

Two, it issues very a lot what the authorized career, individually and collectively, decides to do in response. How laborious we battle the battle to retain authorized market management will decide how a lot good will or opposition we’ll engender when the battle turns, because it doubtless quickly will, to lawyer self-regulation. The final phrase right here goes to Matthew Peters of McCarthy Tétrault, quoted by John-Paul Boyd:

“If we’re stopping innovation, we’re going to lose our social licence, as a result of, fairly frankly, if I used to be an elected official, I might truly go laws quickly if the career didn’t get up and say: ‘We have to resolve this differently, since you’re too self-interested.’”

The Coming End of Lawyer Control Over Legal Regulation

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