An Independent Bar Is a Public Good

There is a word that tends to appear whenever governments restructure professional self-regulation. That word is "modernization." It is useful because it is almost impossible to argue against. Who would want regulation to remain unmodern?

British Columbians have heard it several times in recent years. Engineers and geoscientists received the Professional Governance Act in 2021, placing a government-appointed Superintendent over their regulatory body. Fifteen health profession colleges were reduced to six through amalgamation, a process completing its final stages this spring. Allied health professionals from psychology to physiotherapy found their self-governing colleges absorbed into larger bodies with significantly restructured governance.

Each time, the rationale was familiar: improve public protection, increase accountability, reduce fragmentation. Each time, meaningful consultation with the affected professions was limited.

Now it is lawyers' turn.

The Legal Professions Act received Royal Assent in May 2024. Its transitional provisions are in force, with the remainder coming into effect by Order in Council later. The Law Society of British Columbia and the Trial Lawyers Association of British Columbia each brought constitutional challenges arguing that the Act violates both the independence of the bar and the Charter rights of every lawyer and member of the public in this province. The Canadian Bar Association intervened in both. The case was heard in October 2025, and reasons are pending.

The goals the government has articulated, improving public access to legal services and modernizing a fragmented regulatory landscape, are not unreasonable. The question is whether the mechanism is consistent with the constitutional principles that make an independent legal profession possible.

Under the Act, only five of the board's seventeen members will be lawyers elected directly by their peers. The legislation delegates the appointment of the remaining four lawyer-members to the board itself. In that secondary appointment process, the elected lawyers hold just five of twelve voting seats, meaning they can be outvoted by the other participants. The practical effect is a lawyer majority on the board, but the process that determines who fills almost half of those seats is one the profession does not control.

The professions brought together under this framework have distinct mandates, different client bases, and different perspectives on how legal services should be regulated. That is not a criticism of notaries or paralegals, who play important roles in B.C.'s legal landscape, but simply a recognition that a governance process blending those differing perspectives, in a way that prevents lawyers from selecting the lawyers who govern them, cannot reasonably be called self-regulation. Compare this to Ontario, where forty of fifty-three seats on the Law Society's board are held by lawyers elected by lawyers. British Columbia's departure from that standard is significant.

That departure matters because the legal profession is not like other regulated professions. The difference is not a matter of professional status. It is a matter of constitutional architecture. No other profession in Canada enjoys the protection that section 10(b) of the Canadian Charter of Rights and Freedoms extends to legal representation. When the state interferes with an individual's liberty, that person has a constitutionally guaranteed right to retain and instruct a lawyer. No equivalent right exists for doctors, engineers, or accountants. That right exists because lawyers occupy a unique role: they are the primary mechanism by which individuals assert their rights against the state. That guarantee depends in part on whether the lawyers it protects access to are themselves governed independently of the state.

The same logic extends to the judiciary. Canada's judges are drawn entirely from the legal profession, and the independence of the bench is inseparable from the independence of the bar that feeds it. As recognized in LaBelle v. Law Society of Upper Canada, the habit of independence is cultivated in the profession before it is expressed on the bench. The legal profession and the judiciary together form the institutional infrastructure through which democratic governance is kept accountable. Weaken one and you weaken both, not through any single dramatic act, but gradually, as the culture that sustains an independent bench erodes at its source.

Canada is not alone in recognizing why this matters. The United Nations' Basic Principles on the Role of Lawyers, adopted in 1990 and endorsed by Canada, require self-governing professional associations free from external interference, with disciplinary bodies that include meaningful representation from the profession. This principle has deep roots in Canadian law. In Canada (AG) v. Law Society of BC, the Supreme Court held that regulation of the legal profession must, as far as “human ingenuity” can design, be free from state interference.

Whether the Legal Professions Act meets that baseline is among the questions the court has been asked to consider. The fact that these principles are not binding treaty obligations makes the question more pointed, rather than less: the standard Canada accepted voluntarily deserves to be taken seriously at home.

When a client retains a lawyer to challenge a government decision, pursue a civil liberties claim, or hold a public institution to account, they need to trust that their lawyer answers to an independent regulator. That trust depends not on any specific act of interference but on the structure of the institution itself, and public confidence in legal independence is one of the central reasons a self-governing bar exists.

Across a number of established democracies in recent years, governments have moved to restructure oversight of their legal professions or judiciaries. The common lesson from those experiences is this: the concern is rarely about what a current government will do with its influence. The concern is that once the structural conditions for interference exist, they persist regardless of which government holds office.

The most consequential provisions of the Legal Professions Act have not yet been proclaimed. Every British Columbian who may one day need a lawyer to challenge a wrongful charge, hold a public body to account, or assert a right the state would prefer to ignore has a stake in this question. An independent bar is not a professional privilege. It is a public good.