Benchers will look at expanding paralegal functions in law firms, but will not pursue certification

After considering a report from the Paralegal Task Force on November 7, 2003, the Benchers have decided against pursuing a Law Society certification program for paralegals at this time. The Benchers will instead ask the Task Force to review Chapter 12 of the Professional Conduct Handbook to consider whether paralegals working under lawyer supervision should be permitted to perform expanded functions and, if so, to consider defining those paralegals who would be entitled to perform such functions.

The Task Force's Report to the Benchers on Paralegals summarizes the consultations about paralegals undertaken with the courts, various administrative bodies and the legal community, including a survey of over 600 paralegals working under the supervision of BC lawyers. Those survey results reflect a very high level support for a Law Society certification program, with over 90% of respondents indicating they would apply for certification under a program proposed by the Task Force.

Reporting to the Benchers in November, Vancouver Bencher Robert Gourlay, QC said that Task Force members were divided on whether a certification proposal should proceed. Pivotal issues were whether there was a public interest reason for such a scheme, the cost and the most appropriate certifying body. The position of the Ministry of Attorney General was that the Law Society lacked the jurisdiction to certify paralegals, and the Task Force believed it would prove difficult to obtain the necessary authority.

Of the options outlined by the Task Force, the Benchers declined to pursue the option of paralegal certification. They instead asked the Task Force to review Chapter 12 of the Professional Conduct Handbook to consider whether paralegals should be permitted to perform new functions under the supervision of lawyers. In that context, the Task Force will also consider whether to define the paralegals who would be entitled to perform such expanded functions.

In endorsing a review of Chapter 12, several Benchers acknowledged the importance of helping lawyers remain competitive by taking advantage of appropriate delegation to paralegals.

On the issue of independent paralegals, the Task Force pointed out that the unauthorized practice provisions of the Legal Profession Act already prohibit independent paralegal practice in BC. Exceptions exist for notaries public, immigration consultants and - once Bill 37 (Skills Development and Labour Statutes Amendment Act) comes into effect - workers compensation consultants.

In the view of the Task Force, independent paralegal practice could not be in the public interest without paralegals being required to attain a high standard of competency through a combination of formal education, testing and experience or without appropriate regulation, insurance and defalcation coverage. Even then, allowing independent paralegals could lead to a two-tiered justice system and be misleading and unfair to the public.

The Benchers resolved to reiterate to the provincial government their concern about Bill 37. That Bill, which has passed third reading, introduces legislative amendments that will allow unregulated lay advocates to represent parties in workers compensation hearings, including non-unionized injured workers. While opposing this approach, the Society will offer its expertise to assist government in developing an appropriate regulatory scheme to help protect the public.