Update on Law Society Initiatives – December 2018 Convocation

January 17, 2019

By Barbra Bailey, Director of Policy

Proactive Regulation of Law Firms

 The environment in which a lawyer practises can play a significant role in determining professional conduct, yet the entities through which lawyers provide services have been largely unregulated.  To address this, The Legal Profession Act, 1990 was amended in 2014 to include firms as members of the Law Society.  According to that Act, one of the duties of the Law Society is to protect the public by assuring the integrity, knowledge, skill, proficiency and competence of members, which implies that the Law Society should be proactive in taking steps to assist the membership to meet those requirements.  With the amendment to the Act, this duty now extends to law firms.

The Law Societies of Saskatchewan, Alberta and Manitoba (the “Prairie Law Societies”) have been working together to examine various approaches to regulating law firms (in addition to regulation of individual lawyers) and have determined that a proactive approach would allow both law firms and the Law Society to be more responsive to a diverse and profoundly changing environment, to enhance the quality of legal services, to encourage ethical legal practice and to foster innovation in legal services.  Accordingly, the Prairie Law Societies have been working together to develop a consistent regulatory framework that incorporates that approach across the prairies.

As part of that work, the Prairie Law Societies conducted a pilot project in 2017 to test a new resource aimed at helping firms assess the robustness of their practice management systems and firm culture. The Law Firm Practice Management Assessment Tool (the “Assessment Tool”) helps firms recognize their strengths and provides “things to consider” in areas where opportunities for improvement have been identified.  These include examples of how a law firm might put practices, policies or procedures into place, along with links to further resources that law firms can use to make improvements.  By its design, the Assessment Tool is intended not only as an evaluation mechanism, but also as a convenient source of best practice resources for firms. The content of the Assessment Tool is designed to help firms think about how to best serve their clients, their lawyers and their employees; an exercise that should foster both public protection – in terms of ethical, efficient practice – and good business practices.

The goal of the pilot project was to test the functionality of the Assessment Tool and determine how it could be used in helping firms work with the Law Society to ensure sound practice management systems are in place.  Pilot project participants were identified by randomly selecting firms of various sizes throughout the province, providing a representative sample of Saskatchewan firms.  Those firms were then invited to voluntarily participate in the pilot project. Ultimately, 22 Saskatchewan firms participated. A similar process was followed in Alberta and Manitoba.  Participating firms were asked to designate a representative to be the liaison for the pilot project.  The designated representative’s task was to ensure the firm undertook the self-assessment process, using the Assessment Tool, and report to the Law Society about things that the firm has been doing well and areas identified as needing improvement.

The designated representatives were then asked to complete an evaluation of the Assessment Tool and conduct an exit interview about their experience. Overall, the feedback about the Assessment Tool was positive.  The majority of participants said they thought the Assessment Tool would improve engagement with the Law Society (80%), increase general awareness and education related to the key objectives (84%) and help firms to improve their organizational policies and procedures (81%).  Participants also had the opportunity to comment on any improvements they felt should be made to the Assessment Tool and the process overall.  Much of that feedback focused on tailoring the Assessment Tool to ensure the content was appropriate for the size of the firm and making the process more efficient.  Based on that feedback, the Prairie Law Societies have been working to refine the Assessment Tool and develop an appropriate regulatory framework to guide this process.

The ultimate goal of this initiative is to foster a more collaborative relationship between the Law Society and its members, and to help lawyers and firms manage risk so that the likelihood of conduct leading to a complaint or negligence is minimized.  On December 7, 2018, the Benchers approved a framework for moving forward with law firm regulation that is centred on providing coaching and assistance through the Assessment Tool, but that would also allow the Law Society to address conduct issues at a firm level.  Work will continue in 2019 to develop the details of this framework and further updates will be communicated to the membership as they become available.

 Alternative Legal Service Providers

 In 2017, a Task Team was appointed to explore the possibility of allowing non-lawyers to provide some legal services and develop recommendations for consideration by the Benchers of the Law Society and the Ministry of Justice about the appropriate role, if any, of non-lawyers in the provision of legal services.   In carrying out its mandate, the Legal Services Task Team considered a wide range of possible approaches to address issues related to access to justice, consumer choice and effective regulation, all the while keeping the public interest central to its determinations.  To assist the Task Team’s examination, an extensive consultation with members,  legal organizations and other stakeholders within Saskatchewan’s justice system was conducted.

The Task Team released its final report in August 2018.  The report includes a number of recommendations on how to improve the regulation and provision of legal services in the province.

The recommendations include:

• providing greater clarity to service providers about what legal services are regulated;
• expanding the list of exceptions to the prohibition against practicing law to recognize existing service providers;
• providing the Law Society with licensing authority to allow service providers to practice law with a limited licence on a case-by-case basis;
• modernizing the legislation regulating legal services to provide more flexibility for future developments in this area;
• creating guidelines to help educate the public about legal services; and
• conducting pilot projects to help develop and test the recommendations.

The Benchers of the Law Society of Saskatchewan accepted the recommendations as outlined in the Task Team’s final report on September 14, 2018.  Bill 163, which would amend The Legal Profession Act, 1990 to enable the Law Society to implement the Task Team’s recommendations, was introduced in the Saskatchewan Legislature on December 3, 2018.  Subject to the passing of Bill 163, the Law Society of Saskatchewan will implement the recommendations on an incremental basis, first beginning with pilot projects to better inform the development of the regulatory framework.  The Law Society will continue to consult with the membership and other stakeholders throughout this process.