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Law Society of B.C. proposes non-lawyers be allowed to do some legal work

The proposal calls for people who are not lawyers to be trained to handle certain family law matters in an attempt to alleviate access-to-justice problems that continue to plague the system.

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In a bid to alleviate access-to-justice issues, the Law Society of B.C. is proposing to establish a new category of legal practitioners who are not lawyers to allow them to do a limited amount of legal work.

B.C. Court of Appeal Chief Justice Robert Bauman, the province’s top judge, said in an online post Wednesday that while it is a “controversial” idea, it is worth considering given ongoing systemic problems. He encouraged input from lawyers, litigants and members of the public.

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In 2014, the Law Society Benchers asked the B.C. government to amend the law to allow the creation of a new category of licensed professional to serve unmet and underserved needs of the public.

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After getting indications the new government was preparing to move ahead, a working group was created by the society, which regulates lawyers, earlier this year.

A “consultation” paper prepared by the group and published in September notes that the cost of legal services limits the ability of many people to access lawyers’ services.

Research indicates that perhaps only 15 per cent of those facing a legal problem seek the advice of a lawyer, and as many as 70 per cent of those facing a problem seek no help at all, according to the paper.

That is helping to create a large number of self-represented litigants, a situation that places major burdens on the justice system.

While people often identify cost as the main reason they do not seek legal assistance, other reasons include inability to recognize a problem as having a legal aspect, not viewing the legal problem as warranting the help of a lawyer, and mistrust of lawyers, says the paper.

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The paper says that in anticipation of the possibility of obtaining the legislative amendments, the society had chosen to focus on family law where the public could benefit the most.

Under the proposal, a “family law legal services provider,” who would be fully trained and would be regulated by the society, would be able to provide a number of legal services, including conducting client interviews, advising clients about available legal options, acting as a mediator, and preparing orders.

The service provider, who would charge less than a lawyer, would also be able to appear in court on certain matters.

Other matters, including some of those involving children such as the relocation of a child and child protection concerns, would be excluded from the duties of a service provider.

In an interview Thursday, Bauman said he would like to hear more about the proposal and to hear ideas about addressing some of the issues that have arisen as a result of other people reviewing it.

“But the fact is … that you’ve got to talk about these possibilities,” said the judge. “You have to be open to at least considering them, because otherwise we’re sort of condemned to simply repeat our traditions of the past that don’t seem to have addressed the serious access-to-justice problem we are facing in B.C.”

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He said there remains an “unacceptably high” level of self-represented people in the courts.

“I think there’s a certain deep-seated concern that ordinary people simply can’t easily access the system. To me, that means that the viability of the system is at risk.”

Regarding his comment that the proposal was “controversial,” he said that some lawyers are going to be very concerned that it will not be possible to train non-lawyers to do the job.

“But the matter has been controversial in most jurisdictions in which it has been suggested. That’s OK, controversy is OK. But I think the risks that are identified by those who are resistant should be addressed, and have to be addressed.”

One of those who is concerned about the proposal is Vancouver lawyer Peter Leask, who is a former B.C. Supreme Court judge.

He has tabled a resolution going to the society’s annual general meeting on Oct. 30 that effectively asks the society to back off from their plan.

“I expect my resolution to pass,” Leask said Thursday. “I expect there to be a good turnout of family lawyers and other lawyers concerned about the idea that we’re going to deal with access to justice by providing a second-rate service to the public.”

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Leask said that part of the cure for the problem is a better-funded legal aid system.

But Victoria lawyer Kevin McCullough, who has his own resolution to the society calling for mandatory pro bono work to be done by lawyers to deal with access-to-justice issues, said successive governments have failed to properly fund legal aid, so it’s up to lawyers to take action.

“I think that the way that lawyers and the law society have gone about fixing the access-to-justice crisis has been a complete failure. We as a group have not taken any meaningful steps to stem the crisis.”

kfraser@postmedia.com


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