Don’t help non-lawyers in illegal practice

Lawyers have a professional obligation not to facilitate the unauthorized practice of law. This sounds straightforward, and for the most part it is, but there are pitfalls.

Non-lawyers who offer legal services directly to the public have been known to seek referrals from lawyers, some form of association with law firms, or even employment as law firm paralegals, as a way of legitimizing their own services. Unfortunately, there are occasions when lawyers have not fully appreciated the risks involved.

Law Society Rule 2-10 makes clear a lawyer’s obligations:

Unauthorized practice of law

2-10 (1) A lawyer must not knowingly facilitate by any means the practice of law by a person who is not a practising lawyer or otherwise permitted to practise law under sections 15 to 17 of the Act.

(2) Without limiting subrule (1), a lawyer must not knowingly do any of the following:

(a) act as an agent or permit his or her name to be used or held out in any way that enables a person to engage in the unauthorized practice of law;

(b) send a process or other document to a person or do any other act that enables a person to engage in the unauthorized practice of law;

(c) open or maintain an office for the practice of law unless the office is under the personal and actual control and management of a practising lawyer.

Beware of associations and space-sharing with non-lawyers

Lawyers are not permitted to share fees with non-lawyers (see Chapter 9, Rule 6 of the Professional Conduct Handbook) and accordingly cannot enter into multi-disciplinary firms or associations with non-lawyers for shared profit.

Moreover, a lawyer should take care not to join any space-sharing arrangement or association with a non-lawyer that could cause any confusion among prospective clients or other lawyers or that could compromise client confidentiality.

Lawyers have an obligation not to facilitate the unauthorized practice of law by a non-lawyer under Rule 2-10. It is worth remembering that the practice of law includes offering legal services or making a representation that one is entitled to practise law. The risk of offending Rule 2-10 is real if the nature of a lawyer’s relationship with a non-lawyer gives other people reason to believe that the non-lawyer or the non-lawyer’s business entity is entitled to offer legal services.

A lawyer is not to carry on any business or occupation other than the practice of law in such a way that a person might reasonably find it difficult to determine whether in any matter the lawyer is acting as a lawyer or not: see Chapter 6, Rule 6 of the Handbook.

These restrictions are important for protection of the public, and a lawyer who fails to abide by them can face disciplinary consequences. A lawyer recently became the subject of a complaint and a conduct review for his role in facilitating unauthorized practice.

Make referrals with care

Most lawyers take great care in referring someone to another lawyer, out of concern for their own reputation and high standards of client service. They do not want a client to be disappointed with the recommendation, nor do they want the other lawyer to be unhappy the referral was made.

If lawyer-to-lawyer referrals are handled with such care, what of referrals to a non-lawyer?

The first reason to hesitate is that very few non-lawyers are permitted to offer any legal services to the public for a fee. The Legal Profession Act, section 15, states that only lawyers are entitled to engage in practice, with some stated exceptions. The practice of law is defined in section 1 of the Act to mean practising law for a fee but excludes certain activities, including the lawful practice of a notary public.

Before you make any referral to a non-lawyer, be sure that you know the person, his or her qualifications and the permitted scope of practice. For example, understand the limits on notaries public (see section 18 of the Notaries Act) and on any lay persons who offer immigration services according to recent court decisions. Do not rely on what non-lawyers tell you they are permitted to do. The Law Society encounters instances of notaries public acting outside their permitted area of practice and in some cases not understanding the scope of their authority. In the case of lay persons purporting to offer legal services, not only do they lack qualifications, but often have no understanding of why they represent a danger to members of the public who rely on them.

If in doubt, feel free to contact the Law Society Unauthorized Practice Program.

On the subject of referrals, it is also important to note that a lawyer cannot pay a fee to a notary public or other non-lawyer who refers a client to the lawyer (Chapter 9, Rule 2(a)).

Know your employees

Lawyers should not set up any employment arrangement that gives a non-lawyer employee scope to engage in the unauthorized practice of law.

The lawyer’s duties to supervise staff are set out in Chapter 12 of the Professional Conduct Handbook. When lawyers occasionally slip up on these requirements, it is often by failing to remember the nature of appropriate supervision, exacerbated by workload and other pressures.

While not a common scenario, there is also a risk that a non-lawyer may actively seek out employment in a law firm as a means of learning some legal skills and moonlighting in an independent practice. Remember, your non-lawyer employees are not allowed to represent clients separately and have no right to run files on their own, inside your office or elsewhere