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B.C. legal consultant appealing injunction denying him ability to appear in court

Tuesday, February 04, 2020 @ 11:33 AM | By Ian Burns

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A B.C. man is pledging to fight an injunction sought by the provincial law society which prevents him from appearing in court, saying it was granted based on a too-narrow definition of what constitutes an employment relationship and that it flies in the face of the law society’s commitment to improve access to justice.

The case in Maddock v. Law Society of British Columbia 2020 BCSC 71 involves a number of complaints made against Jeremy Maddock. Maddock is a self-employed legal consultant who provides research and writing assistance to lawyers and is a graduate of the University of Victoria faculty of law, although not a member of the law society. He said lawyers that he worked for would introduce him to clients who needed assistance in places such as traffic court.

“They just couldn’t afford a practising lawyer, and there was also recognition on the part of practising lawyers these clients just couldn’t afford them,” he said. “In many cases, the lawyers are charging $300 per hour just to stay afloat, and people in traffic court with a $121 fine or $200 fine, it really doesn’t make sense to pay that.”

Section 15(1) of the provincial Legal Profession Act (LPA) says, with certain limited exceptions, no person other than a practising lawyer, defined as a member in good standing of the law society, is permitted to engage in the practice of law. The Law Society of British Columbia (LSBC) sought an injunction against Maddock to prevent him from violating the LPA, but he argued his appearances would be covered by s. 15(2) of the Act, which exempts persons “employed by” practicing lawyers who act under their supervision.

According to Maddock, the requirement in the Act that a person be “employed by” a practising lawyer means simply that “the person must ultimately be accountable to a lawyer,” and any financial relationship between a legal consultant and practising lawyer would qualify as long as there was some level of accountability, such as the ability of the lawyer to terminate the relationship with the independent contractor if he or she is dissatisfied with the quality of the work.

But B.C. Supreme Court Justice Palbinder Shergill ruled against Maddock, finding when he appeared in traffic court on behalf of lawyer Ali Yusuf, he did not become an employee by virtue of his contractual relationship, but rather he was employed to provide legal services for a fee. She added Maddock’s definition of “employed by” does not adequately address the overriding purpose of the LPA, which is to “protect the public by ensuring that persons who are involved in the practice of law are subject to regulatory oversight.”

“I find that the phrase ‘employed by’ must be taken to mean that the individual performing the act is in a type of employment relationship that enables the practicing lawyer to control the person’s work,” she wrote in her Jan. 21 decision. “Such control was absent in this case. While Mr. Maddock was accountable to Mr. Yusuf in the sense that his contract could be terminated if Mr. Yusuf was not satisfied with his work product, he was not under Mr. Yusuf’s control in the manner contemplated in s. 15(2). To the contrary, it was Mr. Maddock who was in control of the work he performed for Mr. Yusuf.”

Justice Shergill granted the law society’s injunction and added there was a good rationale for doing so.

“A non-lawyer such as Mr. Maddock is not required to meet minimum competency requirements, engage in continuing professional development, or comply with codes of conduct,” she wrote. “He is not subject to disciplinary action, required to get mandatory professional liability insurance, or required to comply with trust accounting rules.”

Maddock said he is appealing the decision, saying the law society’s actions against him seem to contradict their stated commitment to access to justice and allowing for more affordable legal services.

“The law society is on the record all the time that they are going to be licensing paralegals, but they’ve been saying that for 10 years and all the time I’ve been trying to deliver those services, lawyers have been discouraging and thwarting it,” he said. “Judicial justices in traffic court were perfectly happy to have me there, so I think that what the law society says it wants and what it is actually doing is completely inconsistent.”

The Legal Profession Act should be interpreted “according to the plain and ordinary meaning of the word employ, and not some narrow, legalistic definition,” said Maddock.

“There are multiple different definitions of employment depending on context. [The Act] states that the test is employment and supervision by a lawyer,” he said. “The law society’s view on that was that if a contractor were to work for a lawyer it should be exclusive to a single firm or a single lawyer, which in my view is quite out of step with the reality of sole practitioners and their needs. I’ve drawn an analogy to the difference between the taxi business and the Uber business — it’s a new business model, and established businesses will always be suspicious and may try and impede them.”

LSBC communications officer David Jordan said the outcome in the case was “pretty straightforward.”

“The fact is, in order to practise law, you have to be licensed and regulated. Mr. Maddock doesn’t believe he has to be licensed and regulated, and the court disagreed with him.,” he said. “The LPA specifies who can and cannot practise law in the province and there are reasons for that, mainly for protection of the public. Everyone has to be on a level playing field, and if you are going to practise law you are going to need to be accountable to somebody.”

Jordan noted the law society has been working on the bigger access to justice issue for many years and is currently undertaking a review on whether paralegals will be licensed and regulated.

“It may be that we introduce a new class of service providers, and if that were to happen Mr. Maddock could register and fulfill the requirements,” he said. “The task force expects to present its recommendations to benchers by the end of this year with regard with some regime for paralegals.”

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