Law Society of Alberta Proposes Changes to Legal Profession Act

The Law Society of Alberta today announced that August 31 the Benchers had adopted what they are calling the “Key Features” of their desired amendments to the Legal Profession Act.

The motivations for these changes include access to justice problems, the march of technology, and new business models. I’m not sure if new business models are a driver of change, or a proposed form of change.

Under the heading of “Innovation in Legal Service Delivery” they request an expanded regulatory scope to include not just lawyers but also law firms and “other organizations with legal services that are provided by lawyers.”

They then mention moving from adjudicative functions to counselling and ensuring compliance.

Under “Governance Model” the LSA would like there to be fewer Benchers.

Under “Adjudication Model” they would like to be able to move adjudication functions into a single office instead of their being in multiple committees, and they would like more freedom on who to appoint as adjudicators in order to ease the workload on Benchers.

And that’s it? Wow. Brief.

My thoughts:

Whether the LSA should be authorized to regulate organizations in addition to lawyers is one question. I think probably yes. Organizations like law firms have a lot of opportunity to make things better or worse. Blaming lawyers for what their law firms instructed them to do puts the lawyers in a difficult position. This is the institutional regulation that the law society is seeking, and it has nothing to do with innovation in the delivery of legal services.

Whether it should be possible for people other than a lawyer to own a law firm is another question. I think probably yes. But I take it that the LSA would like to be the ones to pull the trigger on allowing non-lawyer-owned legal services bodies. But of course, the rules as to whether a non-lawyer can own a law firm are already set by the Law Society of Alberta. So as far as I can tell, that doesn’t require legislative change.

Maybe they feel it would be dangerous to include corporations in the definition of law firms unless the LSA was given additional powers to control those corporations. I worry about the incumbent-entrenching effect of having the majority of the Benchers be members of firms that would not necessarily welcome innovative corporate competition. But it does seem as though the LSA has seen the writing on the wall when it comes to business models.

I appreciate the steps that the law society has made toward moving away from adjudication and toward support. I think they are better for the public, and better for lawyers. But I fail to see what they have to do with legislative authority to regulate entities in addition to people.

Reducing the number of Benchers would likely be helpful from a governance perspective. Groups of more than 12 tend to be ineffective, studies have shown. But I do worry that there is already a diversity problem among the Benchers. Too few of the Benchers are people who work in the trenches dealing with access to justice issues like family law and immigration law. Sole practitioners on the Benchers are basically unheard of, even though small firms account for maybe 1/3 of the population of all lawyers in the province. I hope they could come up with some way of enhancing diversity among Benchers before reducing their number.

As for delegating adjudicative functions away from the Benchers, that makes a lot of sense. I understand that being a Bencher right now is essentially a half-time job, depending on the committee assignments that you receive. And the majority of that time is not compensated for. The Benchers are largely successful private lawyers whose firms with subsidize their participation in the governance of the profession. That’s generous on the part of the firms, but the non-compensation and high workload for Benchers also helps to ensure a lack of diversity. Lawyers with fewer resources, and no way to recover the income that they lose spending time acting as a Bencher are naturally less enthusiastic about running for election.

Instituting a realistic pay structure for Benchers would be a good idea, but that is probably within the LSA’s legislative powers already. Reducing the Benchers’ non-governance workload also seems a reasonable step to take to help.

What I am very surprised to see is what is not in the list. Access to Justice, which is the motivation the LSA claims for these amendments, demands that we increase the supply of legal services. We could do that by allowing certain legal services to be performed by people other than lawyers. That could be achieved by excluding those sorts of things from the definition of legal work to which lawyers have exclusive access. It could also be done by regulating paralegals, and giving paralegals scope to provide some of those services. There are other options, all of which would require legislative change, and none of which are addressed. Even the authority to regulate different sort of legal service entities is a potential solution, but the LSA wants to regulate only those where the legal services are provided by lawyers.

I am a little surprised that there is nothing about granting the LSA the authority to prosecute the unauthorized practice of law. I think in accordance with the supportive as opposed to disciplinary role that the Law Society is seeking to adopt it makes sense not to do that. But leaving non-lawyer legal service providers in this world where they are neither regulated nor excluded cannot be in the public interest.

There is also nothing in these suggestions that addresses the advent of technology. There is nothing speaking about how and whether the LSA should be able to regulate the provision of legal services in Alberta by people and entities outside of Alberta. If there is a jurisdiction in which the qualifications for being a lawyer are a $5 registration fee, and a corporation sets up a website for Albertans to receive automated legal services, does the LSA want to have the authority to regulate the quality of the advice received by Albertans in that context? There is nothing about how such regulations could be enforced.

There are also questions to be considered about what constitutes the practice of law in terms of technology. Right now, it’s not clear whether or not a person who builds an automated system capable of giving legal advice to individuals, including for a fee, is doing something that constitutes acting as a barrister or solicitor. It feels like they ought to be. Surely, lawyer robots ought to be regulated at least as much as lawyers. It is likely that effectively addressing that challenge will require legislative change, and I’m surprised not to see those sorts of issues addressed.

There is very little to hate in these recommendations, which is probably the low standard the Benchers were aiming at. But there is equally very little to love. These amendments are not focussed on access to justice and technology. They are focussed on inside-baseball, and the inability to regulate law firms directly except in limited circumstances, which has been a thorn in the LSA’s side since the legislation was first enacted.

It seems like a missed opportunity.

Written by

Lawyer, Round Table Law; 2018/2019 ABA Innovation Fellow; Sessional Instructor, University of Alberta; Computational Law (Symbolic AI) Researcher, CCLaw @ SMU

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