Preliminary Report from the Paralegals Task Force

October, 2002
(Report dated June 13, 2002)

Purpose of Document: Bencher discussion and decisions on recommendations
Prepared by: Paralegal Task Force

CONTENTS

I. Introduction 

II. Mandate of the Paralegal Task Force 

III. Legal Profession Act

IV. Task Force Consultation 

V. Option 1: Status Quo with Expanded Functions 

VI. Options 2 and 3: The Certification Component 

1. Model for Certification 
2. Examinations 

VII. Options 2 and 3: The Regulation Component 

VIII. Options 2 and 3: The Expanded Functions Component 

IX. Recommendations and Options for Further Consideration

Introduction

At their meetings of February 2 and March 2, 2001, the Benchers considered the Paralegal Working Group Report to the Benchers December 20, 2000 (Appendix "A") and struck the Paralegal Task Force to consider and report on three of the options contained in the Report. This is the preliminary report of the Task Force.

Paralegalism is one of the issues that has been before the Benchers regularly over the last 15 years. The Working Group Report sets out the history of the issue in detail and we will not repeat that history here. Since the Working Group Report there have been two developments of which the Benchers should, however, be aware.

The first development is the ruling of the Supreme Court of Canada in LSBC v. Mangat [2001] S.C.J. No. 66. In that case, the Supreme Court found that British Columbia's Legal Profession Act could not limit the meaning of the Immigration Act's provisions for representation by "barrister or solicitor or other counsel". The Court found that the federal legislation was paramount and that "other counsel" could not be limited to unpaid counsel by the Legal Profession Act prohibition against non-lawyers practising law for a fee. In the course of his Reasons, Gonthier J. also spoke approvingly of the Ontario Court of Appeal decision in R. v. Romanowicz (1999) 45 O.R. (3d) 506 which held that ss. 800 and 802 of the Criminal Code which allow representation on summary conviction matters by "counsel or agent" allow non-lawyers to appear for a fee.

The Mangat decision makes it clear that non-lawyers are entitled to practise law in British Columbia for a fee provided they do so pursuant to federal legislation that allows for representation by non-lawyers. The Task Force expects that more non-lawyers will start practising law in federal fields as a result of the Mangat decision. The Task Force notes with some irony that, given this decision, only paralegals employed by lawyers can't practise in these fields as they are prohibited from doing so by the Professional Conduct Handbook.

The second development is the announcement that the Law Society of Upper Canada and representatives of paralegal groups have developed a proposal for a regulatory framework for the Law Society of Upper Canada to regulate paralegals. The Report to Convocation (the Convocation Report) is attached as Appendix "B". The Convocation Report represents a significant departure from the recommendations contained in the report of The Honourable Peter deC. Cory, A Framework for Regulating Paralegal Practice in Ontario released May 31, 2000 (the Cory Report). The most notable difference is the Convocation Report's proposal that paralegals be regulated by the Law Society of Upper Canada rather than by an independent agency as the Cory Report recommends.

The Ontario situation is different from that in British Columbia. In Ontario, independent paralegals have, for a number of years provided a variety of legal services. Unlike the Law Society of British Columbia, the Law Society of Upper Canada has been limited in its ability to take action against non-lawyer practice. The move to regulate paralegals in Ontario has been driven by a desire to protect the public coupled with a demand from competent paralegals to distinguish themselves from their less respectable peers. It would appear from media reports that the proposal contained in the Report to Convocation is highly controversial and not acceptable to many paralegals in Ontario.

In British Columbia, there is little practice of law by non-lawyers principally because of the more stringent provisions of the Legal Profession Act, although as noted above, the Task Force anticipates there may be more independent paralegals practising in the wake of the Mangat decision.

In British Columbia, most paralegals are employed in law firms. Others are employed by various governmental and non-governmental agencies (e.g. the Legal Services Society, ICBC) and in larger companies with legal departments. In addition, there are paralegals who do not practise under the supervision of a lawyer but who are not in breach of the Legal Profession Act either because their services are not being provided in the expectation of a fee from the client or because legislation specifically allows it. These include such groups as LSS advocates (the Legal Services Society Act specifically exempts LSS advocates from the application of the Legal Profession Act), union employees who routinely appear as representatives on WCB matters, employer's and worker's advisors appointed under the Workers Compensation Act, etc.

In British Columbia at this time, there is no organized demand for paralegals to provide legal services independently of law firms. Both the British Columbia Association of Legal Assistants and the Canadian Association of Legal Assistants have confirmed their willingness to work with the Law Society in developing a system for certification and regulation of paralegals who work under the supervision of a lawyer.

In British Columbia, there is a demand for the recognition and certification of qualified paralegals as well as a demand for them to be allowed to provide services additional to those they are currently entitled to provide pursuant to Chapter 12 of the Professional Conduct Handbook.

Terminology

In past reports on this issue, the term "paralegal" has been used to describe independent paralegals and "legal assistant" has been used to describe paralegals who are employed by lawyers. Several of the submissions we received discussed how "legal assistant" has come to be used to refer to legal secretaries and discussed the confusion associated with the term. The British Columbia Association of Legal Assistants (supported by the Canadian Association of Legal Assistants and many others) argues that trained legal assistants should be called paralegals, and those who become certified (if certification is in place) should be called certified paralegals. The Task Force agrees with that submission and, accordingly, generally uses the term "paralegal" in this report.

II. Mandate of the Paralegal Task Force

The Task Force was asked by the Benchers to consider three of the options contained in the Working Group Report. The three options that the Benchers asked the Task Force to consider and report on were:

1. Maintenance of the status quo, with expansion of legal assistant functions:

Express prohibition against independent paralegals practising law would continue. Chapter 12 of the Professional Conduct Handbook would be revised to allow legal assistants to provide expanded services under the supervision of a lawyer. It would be essential to consult effectively with members and legal assistants on the specifics of such an expansion.

2. Certified Legal Assistants, regulated through their supervising lawyer:

Express prohibition against independent paralegals practising law would continue. This option introduces a new system of certified legal assistants, employed and supervised by lawyers, with expanded rights, subject to a system of Law Society accreditation. Regulation would continue, as at present, to be through the Law Society's regulation of the supervising lawyer rather than regulating the legal assistant directly.

3. Certified Legal Assistants, individually regulated:

Express prohibition against independent paralegals practising law would continue. This option introduces a new system of certified legal assistants, employed and supervised by lawyers, with expanded rights, subject to a system of Law Society accreditation and regulation, including possibly one or more of their own code of professional conduct, insurance, special compensation fund, and complaints and discipline mechanisms.

At the meetings referred to previously, the Benchers rejected the other options that were before them for consideration. These ranged from maintenance of the status quo to a system which would allow for independent, accredited, and regulated paralegals. Accordingly, the Task Force has not explored those options.

In addition to the mandate given to it by the Benchers, the Task Force has adopted the objective of developing a regime which would deliver to the public competent, regulated legal services with a view to enhancing the public's access to justice.

The Legal Profession Act

There is no clear authority in the Legal Profession Act for the Law Society to certify paralegals. However, s. 14(1) of the Act provides:

"(1) The benchers may make rules to do any of the following:

(a) establish categories of members;

(b) determine the rights and privileges associated with categories of members. . ."

It is possible that this provision of the Act would allow the Law Society to establish a category of members consisting of certified paralegals, but that is not clearly the case.

In the early 1990's, the Law Society sought to amend the Legal Profession Act to allow the Benchers to establish a program for the certification of legal assistants. The amendment was not granted because of a concern that the program might not have the support of legal assistants as well as concerns raised by the Ministry of Health about the implications for self-regulating bodies in the health field. When the Act was extensively revised in 1998, it was on the understanding that the revised Act did not contain extensive or potentially controversial changes and, accordingly, the amendment was not pursued at that time.

Given this history, if the Law Society wishes to pursue a certification program for paralegals under the Act as it currently exists, the Task Force recommends that the Law Society approach the Attorney General on the basis that the Society is of the view that s. 14(1) allows the Law Society to establish a category of members consisting of certified paralegals and to confirm that he has no objection to that interpretation of the Act. If the Attorney General disagrees with the interpretation, then the Law Society should explore amending the Legal Profession Act to allow the Law Society to put into place certification and regulation regimes for paralegals.

The Task Force notes that membership in the Law Society entails certain rights although the Benchers also have the power to make rules to determine the rights and privileges associated with categories of membership.

IV. Task Force Consultation

The Task Force sought input from a variety of groups with an interest in the issues. It sought submissions from legal assistant groups, educational programs, administrative tribunals, the Canadian Bar Association, the Legal Services Society, and the Law Foundation. For a list of all of the groups to whom the Task Force wrote, see Appendix "C".

The Task Force did not receive a great deal of response from many of the groups from whom submissions were sought. It did, however, receive a few thoughtful and extensive submissions. The Task Force also received submissions from several individuals who favoured a system of independent paralegals.

The submissions which the Task Force received were overwhelmingly in favour of the certification of paralegals. As noted above, the submissions were also in favour of calling paralegals, "paralegals" rather than "legal assistants". The submissions were divided on the issue of regulation and whether paralegals should be regulated directly or through the supervising lawyer.

V. OPTION 1: MAINTENANCE OF THE STATUS QUO, WITH EXPANSION OF LEGAL ASSISTANT FUNCTIONS

Only one person consulted expressed support for this option. Most of the submissions were against it as it does not address the problems with the current system. This option fails to eliminate the confusion surrounding the term "legal assistant" and fails to accord to paralegals recognition of their professional status. The Professional Conduct Handbook draws no distinction between trained paralegals and those with no training. The Task Force recommends against this option.

VI. OPTIONS 2 AND 3: CERTIFIED PARALEGALS WITH EXPANDED FUNCTIONS: THE CERTIFICATION COMPONENT

Both options 2 and 3 involve certified legal assistants. In the second option, the legal assistant is regulated through the supervising lawyer; in the third option, the legal assistant is separately regulated. In looking at both these options, The Task Force has chosen to focus on the certification aspect before the regulatory aspect.

As noted, the submissions received were overwhelmingly in favour of the certification of paralegals. The arguments advanced in favour of certification included:

  • Provides assurance to both the public and the legal profession of a minimum level of training/expertise;
  • Identifies and recognizes educated and competent individuals who can provide cost effective legal services not currently available to many residents in British Columbia;
  • Permits the expansion of the role currently performed by legal assistants by providing a process for identifying competency in the expanded areas of practice;
  • Eliminates confusion surrounding the terms legal assistants, paralegals, etc.;
  • Provides a recognizable professional credential for those demonstrating adherence to high ethical standards;
  • Encourages expanded utilization of paralegals by lawyers;
  • Instills consumer confidence in the certified paralegal;
  • Assists the legal profession to provide cost effective legal services to the public;
  • Provides a professional foundation for certified paralegals and the recognition of the professional status of a certified paralegal as an integral part of the legal team;
  • Provides a vehicle by which certified paralegals can continue to develop their professional expertise and enjoy career mobility;
  • Discourages unauthorized practice;
  • Assists firms in hiring paralegals; and
  • Establishes identity of paralegals as a professional group.

There were no arguments advanced against certification.

The Task Force recommends that the Law Society adopt a system for the certification of paralegals who meet good character requirements and education/experience requirements.

1. Model for Certification

Most of the submissions that the Law Society received which dealt with standards for certification agreed that certification should be granted to those who meet certain established minimum education requirements but that there should also be a provision to certify those without formal training who have certain levels of experience.

The Task Force recommends that the Benchers adopt a system to certify paralegals in two different fashions: a general unrestricted certification and a restricted certification which would allow a paralegal to be certified in a limited field.

The Task Force recommends that the Benchers adopt a system of certifying graduates of certain approved paralegal programs without any restrictions, upon the applicant satisfying good character requirements. The Task Force also recommends a system of certification of those with certain levels of experience or experience coupled with some education who pass specified examinations and who meet good character requirements. The Task Force expects that those paralegals who have been working in a particular field for a lengthy period would most often be certified in a restricted area; however the choice as to whether the applicants want to write the general examinations or only the examinations in a particular field should be left to them.

The Task Force received extensive information about the legal assistant programs currently available in the province. It noted that not all the legal assistant programs are equal. The most demanding program currently offered in the province is the Capilano College diploma program. The Task Force has used this program as the benchmark for the certification model that it is recommending to the Benchers

 

A. Graduates of Paralegal Programs

The Task Force recommends certification of graduates of intensive paralegal programs similar in structure and content to those which are currently offered at Capilano College. The Capilano programs were initiated in 1977 through consultation with the Law Society and members of the legal community and a review of paralegal programs in the USA and UK. The program has evolved over the years to meet the needs of the legal community through consultation with an advisory committee comprised of lawyers, legal assistants and academics.

Currently two different programs are being offered. The diploma program is a full- time two-year program which includes substantive law courses, procedural law courses and skills-based courses. It is followed by a six-month practicum.

The part-time certificate program may be taken by those with at least two years experience as a legal secretary. The students continue their employment as a legal assistant or secretary throughout the three years of the program. The program includes substantive law and skills-based courses but does not include the procedural component.

The Task Force recommends that graduates of the diploma program or of an equivalent program who meet good character requirements should be certified without further assessment. If the applicants have not recently graduated then they must prove that they have been recently employed as legal assistants.

The Task Force recommends that graduates of the certificate program or of an equivalent program who meet good character requirements should be certified upon completion of a specified course on procedure or successful challenge of the examination on procedure.

B. Alternate Paralegal Training

Individuals, with either no formal training or with alternate paralegal training not equivalent to the programs set out above, who meet the good character requirements and who have been performing the work of a legal assistant for five of the last seven years could qualify for general certification by writing the general certification examinations or for certification in a restricted area by writing the examinations in a particular field. The examinations would cover substantive law, procedural law and skills.

C. Lawyers From Foreign Jurisdictions

Lawyers from foreign jurisdictions whose credentials have been recognized by the Federation of Law Societies and who have practised in the foreign jurisdiction for at least one year would be able to write the certification exams for qualification either generally or in a restricted area. They would also be required to satisfy the good character requirements.

2. Examinations

These should be set by the Law Society through a Certified Paralegal Standing Committee. The examinations would follow the course subjects and criteria currently set by the legal assistant program at Capilano College and would include the assessment of substantive knowledge, procedural knowledge, and legal skills (interviewing, legal writing/drafting, legal research).

Any examinations would be administered by a recognized educational institution. The standard examinations should take place in various locations around the province at the same time which would allow applicants to be examined in various geographical areas.

The costs of the examinations should be borne by the applicant.

3. Supporting Components to the Accreditation Process

The Task Force recommends that the Law Society work with recognized educational institutions to develop primer courses to be available to individuals who wish to write the certified paralegal examinations.

The Law Society should also work with the Continuing Legal Education Society and recognized educational institutions to offer professional development courses for paralegals to be offered through Continuing Legal Education and recognized institutions.

VII. OPTIONS 2 AND 3: CERTIFIED PARALEGALS WITH EXPANDED FUNCTIONS: THE REGULATION COMPONENT

The Task Force was asked to explore two different systems by which paralegals could be regulated: either through their supervising lawyers or directly. The Task Force did not receive many submissions analyzing the alternative methods of regulation. It will be necessary to further analyze the costs and the systems of regulation.

The British Columbia Association of Legal Assistants, supported by the Canadian Association of Legal Assistants, favoured regulation by their organization. The Task Force recommends against a separate regulatory body for paralegals. If paralegals are to be regulated, it makes sense for the Law Society, which has extensive experience in the regulation of professionals delivering legal services, to assume the regulatory functions.

One argument advanced in favour of regulating paralegals directly is that if they are not separately regulated, they are not truly a professional group. Rather, certification would be the equivalent of a diploma. It was pointed out that if there is no regulation, then certification provides no assurance as to the individual's requirement to adhere to certain ethical standards. Thus, for example, a certified paralegal could be fired by a lawyer for gross misconduct and could go out on his or her own to provide services he or she is legally entitled to provide (e.g. immigration consulting services). That person could continue to hold him or herself out as having been certified by the Law Society as a certified paralegal. If the certification is to provide any assurance to the public of ongoing competence, membership in a regulated body, or any assurance of a requirement to adhere to certain ethical standards, then it will be necessary for the Law Society to introduce a regulatory regime.

It was noted that the regulatory regime would have associated with it a certain amount of expense although the true costs of regulation are difficult to determine. It is anticipated that, in the early stages, regulatory expenses would be fairly small as the number of certified paralegals would also be small. As the number of certified paralegals grows, the Task Force expects that regulatory costs would increase. The Task Force is of the view that the costs of any regulatory regime should be borne by the members.

The regulation of paralegals by the Law Society has implications for the governance of the Society. Certified paralegals who are members of the Law Society would expect to be represented at the Bencher table. Under the Legal Profession Act, members of the Law Society have the right to vote and take part in referenda, etc. The Task Force notes that the Legal Profession Act also gives to Benchers the right to determine the rights and privileges associated with classes of members.

Those members of the Task Force who were of the view that it was not necessary to have a separate regulatory regime for paralegals pointed out that most paralegals would be employed by and supervised by lawyers. Accordingly, the marketplace would prevent dishonest or incompetent paralegals from obtaining positions with other law firms. This does not, however, deal with certified paralegals who have independent practices providing services they are legally entitled to provide.

The Task Force recommends that the Law Society explore introducing a system to regulate certified paralegals directly. To that end, it recommends that the Law Society establish a Standing Committee on Paralegals to deal both with accreditation issues and to explore the introduction of a regulatory regime. The Standing Committee should consider the following: conduct guidelines, insurance, special compensation fund, and regulatory fees. It should, as well, consider the regulation of independent certified paralegals providing services they are legally entitled to provide. The Standing Committee should be composed of Benchers, Lay Benchers, lawyers, paralegal representatives and a representative from a recognized educational institution.

VIII. OPTIONS 2 AND 3: CERTIFIED PARALEGALS WITH EXPANDED FUNCTIONS: THE EXPANDED SERVICES COMPONENT

The submissions received were all in favour of expanding the services that properly trained paralegals could provide. The Task Force noted that having paralegals provide the services could enhance the public's access to justice particularly in areas where hiring a lawyer often does not make economic sense - e.g. traffic court, small claims court, administrative tribunals, etc. Certified paralegals working under the supervision of a lawyer would provide the public with an affordable alternative.

At present, the services legal assistants can provide are set out in Chapter 12 of the Professional Conduct Handbook (Appendix "D"). The Task Force considered two different approaches to the services that certified paralegals could provide.

In the first approach, while the services legal assistants could provide would be expanded, Chapter 12 would not draw a distinction between legal assistants and certified paralegals. It would be up to the supervising lawyer to determine in each instance whether the legal assistant/paralegal had the skills and ability necessary to perform the function. Certification, in that case, would function simply to give the lawyer some assistance in making his or her assessment.

The second approach would be to set out services that only certified paralegals, but not legal assistants, could provide. It should be pointed out that in either case, the employing lawyer or law firm would still be responsible for supervising the work of the paralegal. The difference is that only paralegals who were certified would be entitled to provide certain services. The Task Force noted that certification would provide some assurance of competence, etc., to clients and outside agencies who may be dealing with the paralegal, e.g. provincial court judges, administrative tribunals, etc. Being allowed to provide additional services they are not otherwise entitled to provide, would be an incentive to the paralegals (and their firms) for certification of the paralegal.

The Task Force considered on a preliminary basis the additional services that paralegals might provide. The list that follows is by no means exhaustive. The Task Force believes that the Law Society should consult with the groups who would be affected by any expansion of services to ensure that such an expansion is appropriate. The expanded services on the advocacy side might include:

  • Appearances before specialized boards and tribunals where lay representation is well established;
  • Debt collection matters in Small Claims Court (this would require an amendment to the Small Claims Act and Rules);
  • Appearances at Small Claims settlement conferences (this would require an amendment to the Small Claims Act and Rules);
  • First appearances and interim appearances on an uncontested adjournment in criminal matters;
  • Appearances at an arraignment (unless a guilty plea is entered);
  • Setting a trial date or attending a trial confirmation hearing in criminal matters;
  • Appearing on minor motor vehicle matters not involving loss of license or liberty;
  • Appearing on summary conviction matters pursuant to ss. 800 and 802 of the Criminal Code; and
  • Appearing on cost assessments in Supreme Court matters.

In addition, certified paralegals could be Commissioners for oaths (this would involve a change to the Evidence Act). The Task Force noted that most of the suggestions received for expanded services involved advocacy. This may be because legal assistants on the solicitor's side are already doing a great deal of the work associated with a transaction under the supervision of the lawyer.

The Task Force noted that supervising a paralegal in an advocacy situation was quite different from supervision of a paralegal in the office. The Task Force recommends that the Professional Conduct Handbook be revised to set out guidelines for supervision of paralegals who appear at hearings on their own.

IX. RECOMMENDATIONS AND OPTIONS FOR FURTHER CONSIDERATION

The Task Force recommends that the Law Society adopt a program to certify paralegals. The Task Force also recommends that the Law Society further explore a system for regulating certified paralegals. The Task Force makes the following additional recommendations:

  • Consult with the Attorney General on whether the Legal Profession Act allows the Law Society to certify/regulate paralegals and/or whether the Act should be amended;
  • Develop and establish standards and examinations for the certification of paralegals;
  • Explore and cost a system of regulating certified paralegals;
  • Consult with administrative tribunals, the court system, CBA groups, and the government regarding the possible expansion of duties of certified paralegals;
  • Establish a Standing Committee on Paralegals consisting of Benchers, Lay Benchers, Paralegals and a representative from a recognized educational institution.