Richard S. Margetts, Q.C.
East to west: the paralegal paradigm
In a recent Globe and Mail article called "Justice is Greedy," Osgoode Hall law professor Allan Hutchinson challenged what he called the legal profession's monopoly over legal services, urging that lawyers' fees be controlled or that the delivery of legal services be fully opened up to paralegals. His controversial editorial comes in the wake of an Ontario paralegals study last May by the Hon. Peter deC. Cory, which recommended the creation of a self-governing body of paralegals. It also quotes expressions of concern uttered by the Chief Justice of Ontario, the
Hon. Roy McMurtry, over the high cost of legal services for the public: see www.attorneygeneral.jus.gov.on.ca/html/RR/..\cory\execsummary.htm for the Cory executive summary and recommendations and the February 6 Globe and Mail for the Hutchinson article.
The paralegal debate is provoking interest Canada-wide, although it is certainly not new. Some 10 years before the Cory report, there was the Ianni report, which also advocated a profession of independent paralegals in Ontario.
The Law Society of B.C. has followed the issue carefully, from a unique vantage point. Given our stronger legislation and vigorous unauthorized practice enforcement, B.C. has not experienced the same proliferation of entrepreneurial paralegals as in Ontario. Yet we know from our own studies that some people fail to consult a lawyer, even when they think they should. A few turn instead to non-lawyers. Fear of fees is a common concern.
How often have we heard it? The legal profession has priced itself out the of the market for the middle class. It's either cadillac service or no service at all. Are these criticisms true - or are they perceived as true by force of repetition?
Legal fees charged for common solicitor's services, such as drafting a will or completing a conveyance, are fiercely competitive and have not increased substantially for close to 20 years. Further, law firms usually try to allocate resources to a file that relates, as closely as possible, with the value of the issues to the client. In my own experience, I am perpetually weighing the effort needed to ensure a competent service to the client and the value of the overall service provided vis-à-vis the amount involved in the transaction or litigation. I have found most lawyers are very conscious of the client's ability to pay, and work within the parameters of what is a reasonable fee to the client. Where the value of the issue, the ability of the client to pay and the obligation of the lawyer to provide a competent service do not "line up," it is the lawyer, in many instances, who ends up carrying the loss.
Yet there are times when the cost of our help is clearly out of reach for some clients. Who has not had to deal with a litigation client whose file requires legal attention beyond the value of the amount in dispute? Or the small business owner who wants an overly complex deal put in writing, yet the lawyer's time in either papering it (or tearing it apart and starting over) will prove far too costly?
Our profession will come under increasing scrutiny over the issue of legal costs, and we have to be alive to efficiencies and alternatives. Recognizing that paralegals may have a more prominent role to play, let's take advantage of the opportunity before us - to ensure the maximum benefit from paralegals in the delivery of services, without the peril.
In B.C. we are fortunate not to be facing an immediate crisis of unqualified, unregulated paralegals, such as that now spurring the Ontario government towards creation of an independent paralegal profession. And in B.C., unlike Ontario, we have actually seen the reality of self-governing paralegals - in the form of notaries public. That means we can carefully consider whether that model works in the public interest or whether other options are preferable for the harmonious integration of paralegals into the delivery of legal services.
I am pleased that a Paralegals Task Force just completed a report to the Benchers outlining a number of options on the future of paralegals in B.C., for further study. The Benchers asked the Task Force to study options on legal assistants, specifically:
expanding legal assistant functions,
certifying legal assistants through their supervising lawyers,
certifying legal assistants through individual regulation under the auspices of the Law Society.
As for my own vision of the future, I see lawyers as managers in the delivery of legal services. In many respects they are already, especially in solicitor fields where legal assistants perform most of the routine work under supervision, and lawyers tackle the more complex issues and problems. In the area of litigation, however, lawyers have not been as resourceful as they might, which perhaps has opened niche practices for lay advocates, workers' advisors and immigration consultants. Our challenge as a profession is to identify a paralegal infrastructure that enhances both public access to affordable legal services and ensures public protection. How is that best done?
There is a philosophical issue for the Benchers and the profession: Is the Law Society the regulator of lawyers, or of legal services as a whole? It is a pivotal question when it comes to paralegals.
I believe that all legal services should fall under the auspices of the Law Society, which has the necessary regulatory expertise. By seizing the opportunity to move towards a governance model, we have the ability to impress on paralegals competency and ethical standards, akin to those we maintain over lawyers. Who better to determine the appropriate level of expertise required to address a legal problem than members of our profession?
The ability for certified paralegals to work under the direction and control of lawyers provides a framework for the delivery of cost-efficient legal services, while ensuring that appropriate professional standards are maintained.
If paralegals see a market opportunity for themselves to practise independently, if Ontario paralegals look beyond their own borders or if the idea simply catches on with a government hungry for votes, the legal profession risks being portrayed as having abandoned our responsibility to ensure that all members of our community have access to reasonably priced legal services - unless we take positive action.
As individual lawyers, we work with legal assistants in a tradition of cooperation and respect. This is a good foundation for us to build upon in developing the future of paralegals in this province. We need to look at new, creative ways to expand the partnership.
Whatever our ultimate approach on paralegals, we should be deliberate in our choices as a profession. To stand idly back on the sidelines is almost certainly unwise.