Focus On

Access to justice, diversity likely among issues to face new B.C. benchers, president says

Tuesday, November 12, 2019 @ 1:05 PM | By Ian Burns


With the vote underway to elect a new slate of benchers to govern the Law Society of British Columbia (LSBC), observers are noting that the successful candidates will be facing a number of challenges as they look to guide the law society over the next two years.

The new bencher term begins Jan. 1, 2020, and lasts until Dec. 31, 2021. Law society president Nancy Merrill noted benchers made a number of significant achievements over the past term, such as the task force on mental health in the legal community and advocating for more resources to be given to provincial legal aid, but she anticipates spillover on a number of important issues that will require continuing attention.

Law society president Nancy Merrill

“The number of lawyers who are suffering from mental health issues as a result of the stress and demands of the practice is absolutely staggering,” she said. “Right now [the task force] is looking at our own admission and discipline process to learn how to be more proactive about dealing with mental health and substance abuse issues, especially where clients are impacted. They are considering whether to bring forward recommendations to the benchers regarding a diversion option in some discipline cases.”

And addressing access to justice gaps is always something that is on the front burner, said Merrill. She noted the law society has formed a coalition with organizations such as the John Howard Society, West Coast Women’s Legal Education & Action Fund (LEAF) and the YMCA to find a more “holistic approach to identifying the root causes of people’s legal issues and brainstorm some innovative, cutting-edge solutions.”

“I also think, through our advocacy on legal aid, we helped in some small way to facilitate the agreement that was signed between the B.C. government and the Association of Legal Aid Lawyers,” she said. “But everybody is trying to work on the access to justice gaps, and I think a more across-the-board collaborative approach with justice system stakeholders is the only way to go. Every lawyer in the province could do 1,000 hours of pro bono work a year and it still wouldn’t address that problem — that requires more long-term thinking to address.”

Merrill, whose term as president ends Dec. 31, noted the law society’s work on truth and reconciliation and equity and diversity in the profession will be there “because those are issues that aren’t going to be solved overnight.” And she noted the law society’s licensed paralegal task force, which was struck earlier this year, will report to benchers in December. The task force came on the heels of a contentious debate during the law society’s 2018 annual general meeting, in which members voted to ask benchers to take a step back on its efforts to allow paralegals to have a limited scope of practice.

“The task force has been studying where the greatest unmet legal needs are, so they are looking at family but they are also looking at poverty law and administrative tribunal work. So, it’s a little more comprehensive look at what we originally started to do last year,” she said. “But I think if there is going to be this new class of legal service providers, we want to make sure they are properly trained, educated and regulated by the law society, because we recognize it is going to take time to get this right. So, we are moving cautiously, but we are moving.”

Jamie Maclaren, bencher seeking re-election

Jamie Maclaren, who is seeking re-election to his fourth term as bencher, said he felt the law society made good headway following up on the Truth and Reconciliation Commission (TRC)’s recommendation on cultural competency training for lawyers, which is scheduled to be voted on at the law society’s December meeting, and dealing with the mental health issue over the past two years.

“I also think there is more awareness around issues of equity and diversity,” he said. “But I don’t think the gains that have been made around equity and diversity in terms of awareness have really translated to full inclusion of diverse perspectives and backgrounds at the highest levels of [law society] leadership. But we are getting there — it’s one step at a time and I’m hopeful there will be more diverse background and experiences represented in leadership positions.”

Maclaren said he hopes the access to justice issue will remain at the forefront of law society thinking.

“I think that is one area where there has been very little progress made. There has been lots of talk and lots of study, but not a lot of actual progress,” he said. “I think every day that goes by is another day of limited access for many people.”

The duties of a bencher can be time-consuming, said Merrill, noting it adds up to be about 40 hours a month for committee work and meetings. She said she hopes all candidates are aware of the commitment required to be an effective bencher.

“We also have a fairly unique role as a bencher in B.C. We are also confidential advisers, so people in our city or our county can phone up a bencher and get some ethical or professional advice on a completely confidential basis,” she said. “It is a role most of us find very fulfilling; it can take a lot of time. But I’m not sure all potential benchers running for election understand that that is an important part of their job description.”

If the candidates don’t know the pressures and time commitments they will face by now they will when they get elected, said Maclaren.

“And the elected candidates will soon discover it’s a very collegial environment — and sometimes I think too collegial. The goal is toward consensus or unanimity in decision making, which I don’t always think is the healthiest approach because it translates into sometimes being pretty risk-averse and cautious,” he said. “But it’s an important responsibility and there are important issues at play, especially on the regulatory discipline side. When you are sitting in on hearings, these are important decisions you will make about the livelihood of fellow lawyers.”

And Maclaren said he feels there have been some “very impressive strides” over the last two or three elections in ensuring more diversity among benchers.

“Along elected benchers we currently have more women than men, and if you look around the table you will see more individuals with a visible minority or racialized background,” he said. “The Indigenous voice at the table has also improved, slowly but methodically. That’s been a definite improvement, so we are at a fairly good place in terms of equity and diversity around the table.”

Merrill said she is proud of the diverse makeup of benchers in the province.

“There is always more that can be done, but I certainly think the benchers reflect the makeup of the profession. We have Indigenous and visible minority benchers, and the women at the table outnumber the men,” she said. “One of the things that was on my to-do list this year was getting an equity and diversity audit of the law society underway to see if we needed to get our own house in order, and just to review whether any of our policies inadvertently create barriers for lawyers.”

Kyla Lee, lawyer seeking first term as bencher

But Kyla Lee, who is seeking her first term, said there is a “real lack of representation amongst the benchers from people like me.” Lee, a Vancouver-based criminal lawyer who is of Métis heritage and was called to the bar in 2012, said there are “unique challenges faced by young lawyers that I don’t think the law society understands or appreciates.”

“We know young lawyers are going to be using new technology in their practice, and we have all kinds of questions that are unanswered about what we can or can’t do with technology,” she said. “We don’t have consistent direction from benchers because they don’t necessarily understand the technology we are talking about. At the end of the day the benchers are there to represent the profession and make decisions about all sorts of things that affect you, and you also want people who understand what it is like to struggle financially — and those who are there now don’t represent the majority of the people who are starting to make up the profession, in my opinion.”

In 2018, the law society removed the requirement from its bylaws which said a candidate for elected bencher must have been a member of the law society in good standing for at least seven years. But Lee noted what she called an “abysmal” voter turnout rate: in the last general election, the turnout in Vancouver was approximately 28 per cent, and a November 2018 byelection saw 15 per cent of eligible voters cast their ballots.

“And if you don’t understand what is happening there, you need to elect people you think are going to represent what you want to happen,” she said. “I’ve struggled as a young lawyer learning things about rules and ethics, and having somebody who remembers what that is like is so important because they are ultimately the ones who are going to make a decision about whether you are going to be disciplined.”

More information about the election, including dates and links to candidate biographies, can be found here. Online voting for the 2019 election opened on Nov. 1 and will close at 5 p.m. on Nov. 14.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.