Answers to My Public Interest Questions to the 2023 Law Society of BC Bencher Candidates

Thirteen bencher (governor) candidates took time to respond (thank you very much) to what could be the last governor elections before the Attorney General tables changes to how the legal profession will be delivered in the new year. Every candidate was given the same questions, so I am hoping that everyone had some time to ponder over my questions. There are excellent points that have been advanced, regardless of which side you are on. The answers are listed alphabetically (by surname).

An election is being held to elect Benchers in Vancouver County (11?Benchers to be elected), Victoria County (1 to be elected), Westminster County (3 to be elected), District of Okanagan?(1 to be elected), Cariboo County (2 to be elected), Prince Rupert County (1 to be elected) and the District of Kamloops (1 to be elected) for a two-year term beginning January 1, 2024 and ending December 31, 2025.

Voting opened on Wednesday, November 1, 2023 and will close at 5:00 pm on Tuesday, November 14, 2023. Votes will be counted on Wednesday, November 15, 2023.

Here are my four questions:

1. On what public-interest basis would you oppose the absence of lawyer-majority control of the legal services?regulator?

Peter Ameerali: Given the single regulator is in place for the protection of the public, the constitution of the regulator should inspire faith that it knows what is doing.? The public is best served by a governance body that reflects, understands, and is representative of the profession it is governing.? It is a common sense that expertise is bred by experience: for the public to have faith in the professionalism of those in practice, it should have faith that they are largely governed by experts in the field.?

It? is not clear why the government appointees could not be lawyers or former lawyers or judges. If some of the appointees were selected from among the profession, it would allow government to have some appointees but still have those appointees have applicable experience.

Aleem Bharmal, KC: I firmly believe in upholding the independence of the legal profession and preserving the rule of law to serve the greater public interest. These are critical matters I championed as the immediate past Canadian Bar Association, BC Branch President (2022-23) and would continue to defend as a Bencher.

During my just completed term, CBABC held a series of roundtables gathering the feedback of our members and, working with our relevant Sections and Committees, provided a written submission to the BC government in response to its Intention Paper providing notice of its intention to develop legislation that would regulate all legal service providers under a single statute and regulator. One of our key points in response to the Intentions Paper was the critical importance of maintaining the independence of the legal profession as the government moves forward with its initiative.

“Independence of the profession,” just like “rule of law,” has various definitions, some broader and more wide-ranging than others, but, at its core, it entails adequately safeguarding the profession from political state interference. The oft quoted passage in support of this essential principle, fundamental to a free and democratic society governed by the rule of law, is from Justice Estey in AG Can v Law Society of BC, [1982] 2 SCR 307 at 335-336, 1982 CanLII 29, which we cited in our submission.

As we further pointed out in our submission, this core principle seems to be under attack, to varying degrees, around the world, and B.C. is, by no means, immune. I believe it is vital to the independence of the profession that lawyers be regulated by lawyers, and this means an independently elected, lawyer-majority controlled board of directors for the newly contemplated legal services regulator. I believe I have a proven track record in strongly advocating this principled approach and if litigation becomes necessary to preserve it, I will not hesitate to press for that at the Bencher table.

Chris Carta: Since lawyers are the last line of defence for he public against government action or mistakes which affect their lives, their rights, and their livelihoods, we cannot allow a situation where lawyers lose control of their regulation or are being dictated to by the very government we are duty-bound to stand up to when circumstances require it.

Nikki Charlton Thank you for your thoughtful questions.? I spent the weekend once again reviewing the 2021 Cayton Report as well as the Intention Paper.? I also read Mr. Legh’s submissions, which I tend to agree with (at least for the most part).

Ravi R. Hira, KC: I wholeheartedly support the position espoused by Mr. Legh in his thoughtful and powerful November 16, 2022 letter to the Attorney General and his responses to your questions.

Put simply, the September 2022 General Intentions Paper from the Attorney General is a dangerous assault upon the independence of the Bar.

Narindar Singh Kang K.C.: Mr. James Legh said it well. The practical effects of non-lawyer control in the regulation of legal services is evident on the federal side in the regulation of ‘immigration consultants’. It has been horrendous at times, to the point where a past Federal Government had to pass the ‘Cracking Down on Crooked Consultants’ Act.

James Legh: This the response to question number one is long as I have provided my submissions to the Intentions Paper , with respect to which, I have serious concerns.

Ben Levine: The publics' interest in living in a free and democratic society.?

Jay Michi: To the extent that this question is premised on the notion that self-regulation is antithetical to the public interest, I respectfully reject that premise. Perhaps I am misreading it. I think the public interest is protected and enhanced by the self-regulated model. There are presently six non-lawyer benchers, each probably more qualified than I am. I would welcome more. But rejecting self-regulation cannot be a panacea. The law has only become more complex and more specific since the Law Society's inception. The argument for Self-Regulation (in the public interest) has only become stronger.

James Struthers: While I am not convinced that independence and board majority are one and the same, benchers are society directors at the end of the day and their obligations are to act honestly and in good faith with a view to the best interests of the society in compliance with applicable law and its bylaws. The Legal Profession Act also mandates that the society ensure the independence of lawyers, among other things. I think that until the Legal Profession Act is amended, the benchers must advocate for a majority licensee board whether they want to or not (and most do). Independence of the bar is also an unwritten constitutional principle and with good reason. It wasn't too long ago the non ruling class of societies the world over we're fighting and dying just to have constitutions, and so the legal profession's zealous reference to and upholding of the constitution is well founded. There are few public interests more important than protecting people without power from people with power. In particular, I think we should heed the warnings of candidates that have seen just how oppressive governments can be (like Christina Cook in her work with the FN Justice Council and as an Indigenous person and Aleem Bharmal whom in his work with the UN assisted in building a more fair and just democratic system in Rawanda). We are privileged to live in a society with, in comparison to the majority of the rest of the world, a somewhat less oppressive government regime, which can swiftly change as we have been reminded by the very cranky elephant (and beyond) in recent years. All this said, Dom I am also not convinced that a non-lawyer board majority is required to see the type of change and positive impact to access to justice that you desire for British Columbians. I share many of your views and believe there are pathways to uphold the constitution, fulfill our (if elected) fiduciary duties, and make legal services more affordable and accessible for all. Board composition should reflect the totality of legal services providers and as long as licensure is fair and objective I see no reason why the board composition couldn't change over time as licensee composition changes. Right now lawyers are the only licensees and would be the vast majority of licensees at enactment of the new legislation. I also think we need to be careful not to allow the single regulator process to distract us from all the other priorities we need to be devoting attention right now. The public's insatiable need for legal services and justice will not subside while we negotiate with the province, and there are existential threats to the industry afoot other than board majority.?

John Turner: The Attorney General’s report? on “what we heard “ issued May 23 2023 relating to the Intentions paper was particularly instructive . To be clear to our voters I am not in principle opposed to a single regulator and recognize that most of our professional organizations canvassed are not opposed either. However I refer to an unattributed comment in the report that I entirely agree with which put the issue thus: “ An independent Bar is crucial because it allows lawyers to contribute to law reform , ensure a functional justice system and allows the judiciary to maintain their independence . All of these roles are critical for a free and democratic society governed by the rule of law. The principle of self regulation of lawyers must ensure that it is lawyers that make all the salient decisions . I have been a proud member of my profession since 1987 . I have absolute faith in my colleagues we will never regulate to protect are are own self interest rather than the public interest . This is not lip service . This is a time honoured obligation that has been observed for the 800 years of the common law . I know that access to justice? is a concern we all have but self regulation will never compromise this in my view.?

Roger Watts: There are a number of such bases for opposing that scenario, which would directly interfere with the independence of the Bar and its autonomy from government control.? Many of those reasons are very eloquently described in James Legh’s submissions in response to the Intentions Paper produced by the government, and include (as set out in those submissions) not only the importance of the Bar’s independence, but also issues of solicitor-client privilege, ensuring adequate representation of Indigenous society within the regulatory body, and potential improper influence over the judiciary.? In short, the notion of eliminating lawyer-majority control of the regulator offends the public interest on multiple levels.

Michael Welsh, KC:? An effective regulator has a deep understanding of the profession it regulates. Without that understanding, matters under the proposed jurisdiction of the single legal regulator, such as making rules and codes of conduct, assessing competencies and standards of practice, adjudicating discipline matters, and determining requirements for registration, will be difficult and may lack the nuances, that comes from being in the profession, necessary for them to be effective. If the board is mostly composed of people who are not lawyers, then it may also lose some of its governance independence, as it will need to rely on its legally trained staff more than the Benchers do at present.? The proposed single regulator will have three categories of legal service provider under its mandate, but the vast majority will be lawyers (some 15,000 vs. 500 notaries and at present no paralegals). Those lawyers practise in a wide variety of areas of law and geographical locations. Many lawyers (vs. notaries) act for clients who are in conflict with government in some fashion. The reasons for and importance of lawyer independence, so well set out as the object and duty of the Law Society in section 3 of the Legal Profession Act, is not well understood outside the legal profession. For all these reasons the majority of the board must be lawyers and those lawyers must not come to the board by government appointment.

2. What is one recommendation of the Intentions Paper that you?would implement and one that you?would oppose implementing?

Peter Ameerali: I think it is critical that a regulator be empowered to use modern regulatory best practices in the disciplinary framework (recommendation 5.1).

In order to protect the public, there must be clarity, certainty and consistency on what services a person is licensed to provide. To the degree that recommendations 4.4 and 4.5 lead to uncertainty or inconsistency, i would advocate for more clarity.

Aleem Bharmal, KC: I will not advocate opposing the general move, which is going to happen regardless of any opposition, of regulating all legal service providers under a single statute and regulator, as well as much of what that would entail in general terms, including “establishing a mandate for the regulator that clarifies its duty to protect the public, including the public’s interest in accessing legal services and advice”, which I support. The outlined intentions are very broad and, for the most part, not objectionable. However, the detailed implementation of them can have potential far-reaching negative impacts if not done carefully and properly.

I have discussed the critical importance of maintaining lawyer independence, and what that must include, above. As a lawyer working at a not-for-profit legal organization in the social justice sector, another critical piece will be defining scopes of practice for paralegals, a largely undefined category to date, and whether the legislation will maintain exceptions from any overly restrictive conditions for our many legal advocates working at public interest legal organizations, including with respect to specific qualification or insurance requirements. Not including such carve-outs would be something to which I would be opposed given its potential serious negative impact on access to justice for some of our most disadvantaged members of society.

Chris Carta: I would implement a single regulator for the legal professions and bring notaries and paralegals under our umbrella.

I would oppose implementing any change that allows or requires government appointed members of the board.

Narindar Singh Kang K.C.: The independence of the Bar is essential, and the AG’s paper is diametrically opposed to the Bar’s autonomy. It is an affront.

James Legh:?

2a. I would implement 5.1 The Regulator’s discipline framework should reflect modern regulatory best practices, and should be flexible enough to accommodate changes in process as regulatory trends evolve.

2b. I would oppose the rest, at this point.

Ben Levine: None. Further collaboration is necessary.

Jay Michi: I am opposed to the Single-Regulator. I do not believe in it as a solution to present or future Access to Justice issues. I am sure, even if elected, I won't be able to stop that bus. I also disagree with downgrading Lawyers from Members to "Licensees"!or "Registrants". That change seems particularly meanspirited. (I know you said to just pick one).? I do, however support many other aspects of the Intentions Paper and the Cayton Report which inspired it. A Clear Mandate will assist the Law Society moving forward and the net result of a streamlined and better functioning Law Society is an enhancement in the public interest. Reduction of Committees was identified in the Cayton Report and I definitely agree with that objective. And a more efficient discipline process is a must, for the public and for the lawyers involved. (I went over the limit again!)?

James Struthers: There is a lot to unpack here, but I support strongly the caution against over regulation not just for new categories of licensees but also for lawyers. I am a pragmatist and believe careful peeling back of regulation is one of the easiest ways to encourage limited scope, lowbono and probono service provision. I think the issue of market intermediaries is woefully under addressed in the intentions paper. I am concerned at the lack of attention paid to this essential issue and the rapid and unregulated entry into the market of for profit corporations offering legal services without any formal public interest commitment and whom have been subject to little if any regulatory action. I think we need to enforce our unauthorized practice rules with the same force we do our rules and code against lawyers in our disciplinary processes. I think we should be liberal with licenses issued to non-profits and charities with clear public interest mandates like Amici Curae and Access Probono (and with the funding and support they receive from lawyers), and very careful when considering giving for profit non law corporations access to the legal services market without proper regulation and without a clear public interest mandate.

Roger Watts: Increased efficiency in regulation is always a good thing, and certainly the Intentions Paper’s purported goals in that respect are laudable.? That being said, however, there is little evidence to suggest that the wholesale changes alluded to in the Intentions Paper would be either a necessary or effective means of achieving such goals.? It is unclear exactly how the current fundamental regulatory structure is incapable of adequate efficiency, or unable to undertake its own means to improve it.? So while I agree with some of the generally stated ends set out in the Paper, I have considerable issue with its proposed means.

Michael Welsh, KC: There are a couple I would implement and a couple I would oppose. One of the recommendations I would implement is to change the model from the present one of “members” of what might be seen as a professional electoral college, to “licensees” or “registrants”, and elimination of annual meetings. I am less taken with there being no mechanism for the governed to provide their position on actions or inaction by the regulator (such as happens with the non-binding AGM motions now). Whether set up by the regulator as a means to hear back from the regulated , or in statute, they would at most be recommendations for the Board’s consideration. While there is a mixed history of the utility of these resolutions, some have been important, such as the reconsideration of approval of the TWU law school.

One I would oppose is the somewhat opaque and unhelpful proposal that the new regulator board’s role “should be focused on strategic oversight” and not regulatory matters. This will effectively remove the board from the current important role played by the Benchers, through their committees, in active regulation of the legal profession, especially in core committees such as credentials, practice standards, and discipline. Without that practical knowledge it will be hard for board members to form strategic plans to advance the regulation of legal professions. Much changes quickly these days, and regulators must at least be at if not ahead of the curve.

3. Should the law society be more?focused?on governing the legal?profession?or on regulating access to legal services?

Peter Ameerali: The Law Society should be focused on governing the legal profession, to ensure that the legal services people access are safe and competent.? Occasionally, access to substandard legal services can cause more harm - to individuals and to the system - than not having a legal professional at all.?

Aleem Bharmal, KC: The Law Society should be focused on proper governance of the legal profession. This does not mean it cannot, at the same time, take strong initiatives designed to promote access to legal services. To maintain public confidence in the legal profession and our legal institutions, this is of critical importance and the Law Society must be fully engaged in this endeavour.??

Chris Carta: Tough question. It is important to do both and I do not believe that regulating access should come at the expense of accepting lower standards in the legal professions or while risking lower protections for the public. Access to legal services is an expense that many people cannot afford and I believe one of the best ways to address this is with a strong, financially secure, and independent bar that is able to devote time and resources to increasing access.

Narindar Singh Kang K.C.: While both are mandated, regulating access ought to now be a priority. However, historically the LSBC has taken its eyes off the task of regulating access to legal services with an undue focus on governance.

James Legh: The law society be more focused on governing the legal profession.

Ben Levine: The Law Society should focus on both.?

Jay Michi: The Law Society should primarily be involved in governing and regulating the legal profession. ?

James Struthers: I think this question is a red herring because the law society's mandate and purposes are expressly dictated in the legal profession act and the society's bylaws. They include both regulating lawyers and regulating legal services and there is no first among equals in society purposes from a corporate governance perspective. We can do much more to improve access to legal services and justice, though, and we need the government's help to deliver this to British Columbians. I hope that funding is a part of the discussions happening with BC right now, and if not, I would advocate for it. I would want to see this funding deployed to support those willing and able to meet needs that most lawyers cannot or will not meet.

Roger Watts: In my view, both are equally important aims of the Law Society.

Michael Welsh, KC: The two can stand together. Part of regulation is looking at what legal services are needed, how those services can best be delivered, and what training and experience is needed to do so competently and in the public interest. At present the main providers are lawyers and they are practising in a fast-changing world with many challenges. A regulator should not stand in the way of innovation but instead be ready to adapt its regulatory processes to incorporate innovation while simultaneously ensuring public protection. We are already doing that with initiatives such as the Legal Innovation Sandbox, and government needs to give us the regulatory tools to bring successful proponents out from that experimental environment and into a regulated one that will allow for a successful long-term model that meets the public interest and public protection. For this reason I also support the regulator determining the initial scopes of practice for licensed paralegals and other new legal service providers rather than the government doing so by statute.

4. In the event that the size of the board is reduced, how do you see a successful advancement of diversity, equity and inclusion within the profession that will provide practical and measurable goals?

Peter Ameerali: The board should, as best as possible, be reflective and representative of the public and the profession it serves. I don't think a reduced board will necessary hamstring that effort - there is no set size of the board that will ensure adequate diversity to be fully reflective of society. I think the reference in recommendation 3.5 can assist in filling out diversity representation gaps among the directors; a concerted policy or legislative commitment by government to have their appointments have diversity among the selection criteria would assist.? I also think that the indigenous representation position recommended at 3.3 should be supported.??

In addition, I would support some version of regional representation, similar to that proposed by the CBABC in their report.

Aleem Bharmal, KC: First, in order to continue advancing EDI on the board, we should be opposing any significant reduction in its size, especially if it will now be including members from other legal professions. Promotion of diversity in the candidates running for the board, a board that must be majority independently elected and not government appointed, is key. Great strides have recently been made in this area and it is important we fight to continue this progress while maintaining the independence of our profession, which, again, must mean lawyers regulated by lawyers. ?

Chris Carta: Look around. DEI in the profession has advanced significantly in the past couple of decades and it is accelerating. If the focus remains on electing the most qualified candidates to the positions, then I don’t know that in the coming years DEI will be something we need to worry about as their as so many well-qualified persons who meet DEI criteria in the bar as it exists today. There is every indication that DEI will continue to increase in the coming years and I am very hopeful that this as the bar becomes more diverse, the size of the board will matter less in terms of ensuring there is DEI. The suggestion in the Intention paper to ensure that there be Indigenous representation on the board is a good one given the special legal status of these communities in Canada and the unique interactions with different legal systems that this entails.

Narindar Singh Kang K.C.: It won’t happen. This issue is directly correlated with item 3 insofar that the LSBC has abandoned wholesale any efforts to protect the public interest in the immigration law realm. Basically, post Mangat v. LSBC, the interests of immigrant communities haven’t even registered vis a vis the main legal services they seek.

James Legh: I do not think it can be effectively or fairly accomplished.

Ben Levine: I don't see it.??

Jay Michi: The size of the Law Society Board and advancement of EDI objectives are linked but are not mutually exclusive issues. Board composition is important in terms of diversity (in no particular order: race, national, ethnic background, experience, sex, sexual orientation, gender identity and expression, regional, scope of practice), and the present board would seem to have a depth of diversity notwithstanding the structure in place that the government seeks to overhaul. A smaller board will likely result in less representation for some group of lawyers. But then again, the objective isn't to create a parliament of lawyers but rather a functional board to govern the Legal Profession with a view to the PUBLIC interest.? The Law Society (in addition to its pure regulatory functions) has a role in ensuring that the profession continues to develop as a more inclusive one, representative of the diverse province in which we live and practice. We need updated statistics from the 2012 EDI report in order to measure any gains since its issuance. I would also support the development of a mandatory module on EDI for CLE, like the Indigenous Intercultural Course, which I have found informative and beneficial in my practice.?

James Struthers: How involved are all benchers? Are all voices heard? Do we ensure all voices are given an opportunity to be heard? What initiatives are undertaken by the board, and how? Whom is involved? Are these initiatives revisited and updated? Do we track performance against objectives? The society's DEI goals and objectives including the practical components of implementation and what will be measured and reported on are set out in the Diversity Action Plan and in my view are divorced to some degree from board composition. While the report is exciting and a huge leap forward, I worry that the focus solely on racial diversity does not acknowledge the true scope of diversity present in society (gender, age, socioeconomic status, neurotype, mobility, etc.). Regardless of diversity in board composition, I think the Diversity Action Plan could be expanded to include additional categories of underrepresented and historically discriminated groups while retaining a key focus on race. Committee activities often include consultation with non-licensed experts and commissioning research reports which can be used to ameliorate diversity deltas arising from a reduced board size as well.

Roger Watts: I frankly cannot see how reducing the size of the Board would do anything to advance such issues.? Diversity of virtually any type would necessarily be undermined by the inclusion of fewer persons, and instead smacks of a narrower, more autocratic function of the Board (which in my view is to be avoided).

Michael Welsh, KC: This is a major concern, as a smaller board will likely reduce the diversity of its membership from the organically diverse membership of the present elected Benchers. Care must be taken to avoid tokenism in an appointment process, and for that reason I agree with the Intentions Paper that government appointees should form a minority. Ways to advance EDI may include having mostly elected, as well as a minority of appointed members, and for the board to look periodically at its composition and seek candidates, whether by election or appointment, in areas where it lacks representation. It will be a challenge for a small sized board to adequately represent the diversity of membership of the legal profession and the public, as there are different views and voices in every community; whether based on race, ethnic background, gender, Indigeneity, or sexual orientation to name some.