In June 2012, the Benchers approved rule changes that allow BC paralegals to perform additional duties, as well as new definitions to clarify what they can do. The purpose is to help expand the public’s access to competent and affordable legal services.
“Paralegals” and “designated paralegals”
In the Code of Professional Conduct for BC, a “paralegal” is defined as a trained professional working under the supervision of a lawyer.
A “designated paralegal” is a paralegal who can perform additional duties under a lawyer’s supervision:
- Give legal advice to clients
- Give and receive undertakings, beginning January 1, 2013
- Make limited tribunal appearances, and courtroom appearances as part of a pilot project beginning January 1, 2013
Giving legal advice
Effective July 13, 2012 the Professional Conduct Handbook (which has since been replaced by the Code of Professional Conduct for BC) was amended to permit designated paralegals to give legal advice and appear before a court or tribunal as permitted. The provisions regarding legal advice are in effect and are not location specific.
- Supervising lawyers should engage in file triage to determine whether the designated paralegal has the proper experience and knowledge to give legal advice in a particular matter
- In situations where the lawyer deems it appropriate the designated paralegal may give legal advice directly to a client
- As with court appearances, the lawyer will be responsible for the conduct of the paralegal
- “Regulation” of the paralegal will occur through regulation of the supervising lawyer
The Law Society, the BC Supreme Court and the BC Provincial Court have partnered to create a two-year pilot project that will give designated paralegals a limited right of appearance in court. The goal is to identify whether lawyer supervised paralegals are able to perform certain procedural applications in court in an efficient and competent manner.
- Designated paralegals will only appear in family law proceedings
- In Supreme Court, the pilot project is limited to the Vancouver, New Westminster and Kamloops registries
- In Provincial Court, the pilot project is limited to the Cariboo/Northeast District and Surrey
- Designated paralegals will deal primarily with non-contentious procedural matters
- Supervising lawyers are required to provide the designated paralegal with an affidavit to be filed on first appearance.
- If the courts are concerned the designated paralegal is not prepared or competent to speak to the matter, the courts can require the supervising lawyer to attend. Supervising lawyers should also be available to the designated paralegal by telephone on the day of appearance.
- The Pilot Projects in each court will be evaluated (See below for instructions form the Provincial Court).
- The Law Society will also engage in an evaluation process and will collect information from two sources.
- In 2013 the Law Society will add questions related to designated paralegals to the Annual Practice Declaration.
- This information will be supplemented by a voluntary survey of lawyers who participate in the pilot project. It is anticipated the survey will occur through a web-based portal and lawyers who use designated paralegals will be encouraged to take part in the survey so the Law Society and the courts can better assess the pilot project.
- It is anticipated data will be analyzed at the end of 2013 and again at the end of the pilot project.
Provincial Court: Paralegals appearing in the Provincial Court must complete the first portion of the information form in advance and hand it to the court when the case is spoken to. The presiding judge will then complete the form and provide it to a judicial secretary for transmission to the Office of the Chief Judge.
The role of supervising lawyers
Supervising lawyers will determine whether a paralegal is “designated.” (See Code of Professional Conduct for BC, Appendix E, Supervision of Paralegals.)
- Lawyers can oversee a maximum of two designated paralegals at any given time (see Law Society Rule 2-9.2)
- Lawyers must be confident designated paralegals have the skills and training to perform an enhanced function, including training on court protocol, on the substantive aspects of the application being heard and although, not an officer of the court, on the meaning and duties of an officer of the court
- The material in support of the application must be complete and comprehensive. All facts which might be necessary for the Court to consider must be included in the affidavit material
- Important: The supervising lawyer should consider whether the application can be resolved by way of a desk order before opting to send a paralegal to speak to the matter. The paralegal should be prepared to answer questions as to why a matter that could be dealt with by way of desk order is being spoken to.
A designated paralegal is protected by the supervising lawyer’s insurance policy.
- A lawyer is responsible for mistakes made by employees supervised, so the lawyer’s Policy responds and the lawyer bears the financial consequences of any paid claim.
- As long as the designated paralegal or other assistant was acting within the scope of their duties, under the lawyer’s supervision and in a supporting role to and not independent of the lawyer, insurance coverage to pay or defend a negligence claim is available for the lawyer without any subrogation or claim over against the employee.
giving and receiving undertakings
On January 1, 2013 the Code of Professional Conduct for BC (BC Code) came into effect. The BC Code prohibits non-lawyers giving or receiving undertakings unless certain conditions are met. The relevant section reads:
6.1-3 A lawyer must not permit a non-lawyer to:
(c) give or accept undertakings or accept trust conditions, except at the direction and under the supervision of a lawyer responsible for the legal matter, providing that, in any communications, the fact that the person giving or accepting the undertaking or accepting the trust condition is a non-lawyer is disclosed, the capacity of the person is indicated and the lawyer who is responsible for the legal matter is identified.
The commentary makes it clear that the lawyer is responsible for the undertaking given or accepted. Further, the status of the non-lawyer should be communicated orally or in writing with clients, lawyers, public officials or the general public.