Task Force recommends expanded role for law firm paralegals
BC lawyers should be allowed to delegate more work to their paralegals, including some solicitor’s services, limited advocacy in Provincial Court and advocacy before some administrative tribunals, according to an interim report of the Paralegal Task Force presented to the Benchers in April.
The Task Force recommends reworking Chapter 12 of the Professional Conduct Handbook to lift some of the prohibitions on delegation to paralegals and to articulate new principles to guide lawyers (see Draft principles of delegation to paralegals). In developing these principles, the Task Force sought to balance the risks of delegation against the benefit to the public of more affordable legal services in some circumstances.
“The key to making sure that the public is protected is to require the lawyer to oversee any work delegated and to only delegate work to employees whose training, education and experience is appropriate to the work being delegated,” the Task Force told the Benchers.
It would be for each supervising lawyer to oversee the services provided by a paralegal and to identify and address any issues requiring the lawyer’s professional judgement. “Because lawyers are responsible for all work entrusted to them, the services (of the paralegal) are regulated and insured,” the Task Force advised the Benchers. “The clients have recourse in the event that services are not properly delivered.”
The Benchers have not yet debated the Task Force’s recommendations, other than to take a straw vote against allowing paralegals to give or receive undertakings. A final report is expected back before the Benchers for consideration later this year or early next year, after the Task Force has consulted further with the Provincial Court on the possibility of permitting law firm paralegals in Small Claims Court.
The Task Force last reported to the Benchers in December, 2003. At that time, the Benchers considered but rejected the option of a paralegal certification program. The Task Force subsequently focused on two issues — whether the Law Society should expand the range of services that lawyers can delegate to their non-lawyer staff and whether the Society should define the qualifications of such staff.
Life Bencher Brian J. Wallace, QC, chair of the Task Force, together with Paralegal Task Force members President Ralston S. Alexander, QC, Life Bencher William J. Sullivan, QC and former Lay Bencher Jaynie W. Clark, have spent the past year on those questions.
As a starting point in its work, the Task Force defined a paralegal as “a non- lawyer employee who is competent to carry out legal work that, in the absence of a paralegal, would need to be done by the lawyer.”
After canvassing the current work of today's paralegals, the Task Force came out in favour of broadening the scope of delegation — to provide the public greater access to legal services.
What new services would be suitable for paralegals? The Task Force proposes to allow paralegals to meet directly with clients to take instructions on some solicitor’s services such as uncontested divorces and services provided by notaries public, including simple conveyances and simple wills. In the Task Force’s view, “it is appropriate for lawyers’ paralegals to provide services in relation to these matters where the issues are not complex and the amounts in question are not large, provided the matters are appropriately supervised by the lawyer.”
The Task Force also proposes that law firm paralegals should be permitted to represent clients before administrative tribunals if such representation is permitted by those tribunals and not prohibited by law. “The client is in a better position than if he or she retains a ‘consultant’,” the Task Force told the Benchers. “[T]he paralegal employed by a lawyer is supervised and the lawyer employer is regulated and insured and responsible for all work done by his or her employees.”
Following consultations with the Chief Judge and Associate Chief Judge, the Task Force has also identified some advocacy functions for paralegals in Provincial Court — (in criminal or quasi-criminal matters) uncontested interlocutory applications or “ticket offences” where there is no risk of imprisonment or significant fines or other serious consequences or (in family matters) on uncontested applications.
Another prospect is for law firm paralegals to represent clients in Small Claims Court. The Task Force notes that businesses are permitted to appear in Small Claims Court through an officer, director or employee. For many Small Claims Court litigants who might otherwise have to represent themselves, paralegals could offer another alternative — legal representation or assistance that is affordable and backed by training and regulation. The Provincial Court judiciary is reviewing this option in its own study, and the Task Force plans further consultations with the Court later in the year. Any change to allow law firm paralegals in Small Claims Court would require a legislative amendment.
Future changes to the scope of work open to law firm paralegals would also require Bencher approval of Professional Conduct Handbook changes. Since direct supervision of a paralegal by a lawyer would be inconsistent with some broader paralegal functions, the Task Force recommends that lawyers instead have responsibility for “appropriate supervision and review.” The Handbook would likewise need to accommodate a paralegal having a direct relationship with a client, acting finally without reference to the lawyer in some situations and giving clients legal advice.
In completing its work for the Benchers, the Task Force also considered whether to recommend specific qualifications for paralegals who engage in expanded practice. In the end, a lawyer must be satisfied that a paralegal is competent by determining that one or more of the paralegal’s training, work experience or education is sufficient for the paralegal to carry out delegated work. The Task Force recommends allowing each supervising lawyer to evaluate a paralegal’s abilities to perform the tasks delegated and that the Law Society not specify qualifications for such paralegals or approve particular paralegal programs.
The Benchers will be asked to consider the scope of practice for lawyers’ paralegals as recommended by the Task Force when this issue comes back to their table later this year or early 2006.
These draft principles have been extracted from the Interim Report to the Benchers on Delegation and Qualifications of Paralegals of the Paralegal Task Force. The Benchers have not yet debated the report or its recommendations, other than by taking a straw vote respecting Principle 4(c), as noted below.
It is in the interests of the profession and the public in the efficient delivery of legal services that lawyers be permitted and encouraged to delegate legal tasks to their paralegals.
By delegating work to paralegals, lawyers can ensure the legal services they provide are delivered cost-effectively to clients. A “paralegal” in this context is a non-lawyer employee who is competent to carry out legal work that, in the absence of a paralegal, would need to be done by a lawyer. A lawyer must be satisfied that the paralegal is competent by determining that one or more of the paralegal’s training, work experience or education is sufficient for the paralegal to carry out the work delegated.
A lawyer who delegates work to paralegals should do so in accordance with the following principles:
1. A lawyer is responsible for all work delegated.
2. A lawyer must be satisfied that a paralegal is qualified to competently carry out the work delegated to the paralegal by one or more of education, training and work experience.
3. A lawyer must appropriately supervise and review the work of a paralegal taking into consideration that person’s qualifications and skills and the tasks that the lawyer delegates.
4. The lawyer may, with the consent of the client, allow a paralegal to perform certain advocacy work on behalf of that client. Because a lawyer cannot directly supervise a paralegal’s advocacy work, the delegation of such work is permitted only as follows:
(a) A paralegal may represent a client in Provincial Court:
(i) in the Small Claims Division;
(ii) in criminal or quasi-criminal matters:
a. on uncontested interlocutory applications;
b. on those hearings that the Chief Judge of the Provincial Court assigns to Judicial Justices of the Peace¹;
(iii) in the Family Division, only on uncontested matters;
(b) A paralegal may represent a client on matters before administrative tribunals if permitted by the tribunal and not prohibited by legislation;
(c) A paralegal may give or receive an undertaking in a hearing described in (a) or (b) if the circumstances require it and only then. When a paralegal gives an undertaking, it is given or received on behalf of the lawyer.*
*[Note: A straw vote conducted at the April 8, 2005 Benchers meeting indicated that the Benchers were not in favour of allowing non-lawyers to give undertakings. The Task Force has agreed to take that feedback into account when making its final report.]
5. A paralegal must be identified as such in correspondence and documents that he or she signs, and in any appearance before a Court or tribunal on behalf of a client.
¹ Pursuant to Chief Judge Baird Ellan’s Assignment of Duties September 1, 2004 the following types of hearings are assigned to Judicial Justices of the Peace:
(a) Hearings in respect of all provincial offences in which proceedings are commenced by ticket information;
(b) Hearings in respect of all traffic-related municipal bylaw offences;
(c) Hearings in respect of any traffic-related offence under the Government Property Traffic Regulations and Airport Traffic Regulations made pursuant to the Government Property Traffic Act of Canada (adult only).