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Chapter 12 out of 14 chapters in the annotated Professional Conduct Handbook

 

CHAPTER 12 – SUPERVISION

 

Direct supervision required

1.  A lawyer has complete professional responsibility for all business entrusted to him or her and must directly supervise staff and assistants to whom the lawyer delegates particular tasks and functions.1

[rescinded and replaced 06/2012]

Annotations

Definitions

2.  In this Chapter,

“designated paralegal” means an individual permitted under rule 6 to give legal advice and represent clients before a court or tribunal

“non-lawyer” means an individual who is neither a lawyer nor an articled student;

“paralegal” means a non-lawyer who is a trained professional working under the supervision of a lawyer.

[rescinded and replaced 06/2012]

Delegation

3.  A lawyer must not permit a non-lawyer to:

(a) accept new matters on behalf of the lawyer, except that a non-lawyer may receive instructions from established clients if the supervising lawyer approves before any work commences;

(b) give legal advice;

(c) give or accept undertakings or accept trust conditions;

(d) act finally without reference to the lawyer in matters involving professional legal judgment;

(e) be held out as a lawyer;

(f) appear in court or actively participate in formal legal proceedings on behalf of a client except as set forth above or except in a supporting role to the lawyer appearing in such proceedings;

(g) be named in association with the lawyer in any pleading, written argument or other like document submitted to a court;

(h) be remunerated on a sliding scale related to the earnings of the lawyer or the lawyer’s law firm, unless the non-lawyer is an employee of the lawyer or the law firm;

(i) conduct negotiations with third parties, other than routine negotiations if the client consents and the results of the negotiation are approved by the supervising lawyer before action is taken;

(j) take instructions from clients, unless the supervising lawyer has directed the client to the non-lawyer for that purpose and the instructions are relayed to the lawyer as soon as reasonably possible;

(k) sign correspondence containing a legal opinion;

(l) sign correspondence, unless

(i) it is of a routine administrative nature,

(ii) the non-lawyer has been specifically directed to sign the correspondence by a supervising lawyer,

(iii) the fact the person is a non-lawyer is disclosed, and

(iv) the capacity in which the person signs the correspondence is indicated;

(m) forward to a client or third party any documents, other than routine, standard form documents, except with the lawyer’s knowledge and direction; 

(n) perform any of the duties that only lawyers may perform or do things that lawyers themselves may not do; or

(o) issue statements of account.

[rescinded and replaced 06/2012]

Annotations 


4. 
The limitations imposed by subrule (3) do not apply when a non-lawyer is

(a) a community advocate funded and designated by the Law Foundation;

(b) a student engaged in a legal advice program or clinical law program run by, associated with or housed by a law school in British Columbia; and

(c) with the approval of the Executive Committee, a person employed by or volunteering with a non-profit organization providing free legal services.

[rescinded and replaced 06/2012]


5. 
A lawyer may employ as a paralegal a person who

(a) possesses adequate knowledge of substantive and procedural law relevant to the work delegated by the supervising lawyer;

(b) possesses the practical and analytic skills necessary to carry out the work delegated by the supervising lawyer; and

(c) carries out his or her work in a competent and ethical manner.2

[rescinded and replaced 06/2012]


5.1  [rescinded 06/2012]


6.
Despite Rule 3 and subject to the Law Society Rules, where a designated paralegal has the necessary skill and experience, a lawyer may permit the designated paralegal

(a) to give legal advice; or

(b) to represent clients before a court or tribunal, as permitted by the court or tribunal.

[rescinded and replaced 06/2012] 


7 to 9.  [rescinded 06/2012]

 

Real estate assistants

10. In Rules 10 to 12,

"purchaser" includes a lessee or person otherwise acquiring an interest in a property;

"sale" includes lease and any other form of acquisition or disposition;

"show," in relation to marketing real property for sale, includes:

(a) attending at the property for the purpose of exhibiting it to members of the public;

(b) providing information about the property, other than preprinted information prepared or approved by the lawyer; and

(c) conducting an open house at the property.

[added 10/2004]


11.
A lawyer may employ an assistant in the marketing of real property for sale in accordance with this chapter, provided:

(a) the assistant is employed in the office of the lawyer; and

(b) the lawyer personally shows the property.

[added 10/2004]


12.
A real estate marketing assistant may:

(a) arrange for maintenance and repairs of any property in the lawyer's care and control;

(b) place or remove signs relating to the sale of a property;

(c) attend at a property without showing it, in order to unlock it and let members of the public, real estate licensees or other lawyers enter; and

(d) provide members of the public with pre-printed information about the property prepared or approved by the lawyer.

[added 10/2004]


FOOTNOTEs:

1. A lawyer may permit a non-lawyer to act only under the supervision of a lawyer. The extent of supervision will depend on the type of legal matter, including the degree of standardization and repetitiveness of the matter, and the experience of the non-lawyer generally and with regard to the matter in question. The burden rests on the lawyer to educate a non-lawyer concerning the duties that the lawyer assigns to the non-lawyer and then to supervise the manner in which such duties are carried out. A lawyer should review the non-lawyer’s work at sufficiently frequent intervals to enable the lawyer to ensure its proper and timely completion. A lawyer must limit the number of non-lawyers that he or she supervises to ensure that there is sufficient time available for adequate supervision of each non-lawyer.

If a non-lawyer has received specialized training or education and is competent to do independent work under the general supervision of a lawyer, a lawyer may delegate work to the non-lawyer.

A lawyer in private practice may permit a non-lawyer to perform tasks delegated and supervised by a lawyer, so long as the lawyer maintains a direct relationship with the client. A lawyer in a community legal clinic funded by a provincial legal aid plan may do so, so long as the lawyer maintains direct supervision of the client’s case in accordance with the supervision requirements of the legal aid plan and assumes full professional responsibility for the work.

Subject to the provisions of any statute, rule or court practice in that regard, the question of what the lawyer may delegate to a non-lawyer generally turns on the distinction between any special knowledge of the non-lawyer and the professional and legal judgment of the lawyer, which, in the public interest, must be exercised by the lawyer whenever it is required.

[rescinded and replaced 06/2012]


2. A lawyer must not delegate work to a paralegal, nor may a lawyer hold a person out as a paralegal, unless the lawyer is satisfied that the person has sufficient knowledge, skill, training and experience and is of sufficiently good character to perform the tasks delegated by the lawyer in a competent and ethical manner.

In arriving at this determination, lawyers should be guided by Appendix 7.

Lawyers are professionally and legally responsible for all work delegated to paralegals. Lawyers must ensure that the paralegal is adequately trained and supervised to carry out each function the paralegal performs, with due regard to the complexity and importance of the matter.

[added 06/2012]


*   *   *

ANNOTATIONS:

Rule 1 - Responsibility for all business

Lawyers may refer work that involves the practice of law to private contractors. The real issue is whether the lawyer can properly supervise the work and ensure confidentiality. The lawyer must consider, among other things, the trustworthiness of the contractor, the nature and sensitivity of information that might be imparted to the contractor, how that information is to be protected, and the environment in which the contractor will be working.
EC March 2005, item 4

Rule 2 - Matters requiring professional skill and judgment

A lawyer may accept instructions from an insurer regarding the use of non-lawyer staff in a matter provided the instructions are not contrary to the lawyer's professional obligations regarding the use of non-lawyer staff and do not compromise the lawyer's ability to provide adequate representation to the insured as well as the insurer.
EC April 1999, item 7

 

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Chapter 12 out of 14 chapters in the annotated Professional Conduct Handbook