Law Society moving toward certification scheme for paralegals
The Benchers have decided in principle to allow a broader scope of work for law firm paralegals who become certified under a proposed Law Society certification and regulatory program.
A special Paralegals Task Force recommended such a program, after canvassing three different approaches to paralegals, as requested by the Benchers. The options explored were:
1) to expand legal assistant functions, but without a certification scheme; 2) to certify legal assistants, with regulation through their supervising lawyers; and 3) to certify legal assistants, with those assistants to be regulated directly by the Law Society: For a copy of the Task Force report, see the Resource Library/Reports section of the Law Society website at www.lawsociety.bc.ca.
While the Task Force did not recommend permitting independent paralegals in BC, the Benchers decided it prudent to have the Task Force also investigate this issue further in light of pressures in other jurisdictions.
The Task Force study was spurred by developments in Ontario and other jurisdictions in which there are a significant number of unregulated independent paralegals in the marketplace. In May, 2000, the Honourable Peter deC. Cory issued a report to the Ontario Ministry of Attorney General, entitled A Framework for Regulating Paralegal Practice in Ontario (the Cory Report). Although that report recommended the regulation of independent paralegals by an independent agency, the Law Society of Upper Canada itself is considering whether to seek the authority for paralegal regulation.
Legislative restrictions on non-lawyer practice are stronger in BC than in Ontario, and the experience with independent paralegals differs in the two provinces. Still, the Task Force flagged the possibility of change ahead in BC.
In LSBC v. Mangat 2001 SCC 67, the Supreme Court of Canada found that the unauthorized practice provisions of the Legal Profession Act could not limit the meaning of the Immigration Act provisions that allow representation by "barrister or solicitor or other counsel."
"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 Paralegals Task Force reported to the Benchers, noting that more non-lawyers would likely start practising law in the federal fields as a result. "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 Paralegals Task Force recommendations focus on ensuring that members of the public in BC derive the full benefit of paralegals in the delivery of legal services, but without the risks posed by independent paralegals.
The primary recommendation is to expand the functions of paralegals (beyond what is now permitted by Chapter 12, Rule 4 of the Professional Conduct Handbook) if those paralegals work under the supervision of lawyers and if they are certified and regulated by the Law Society. (Following consulations with legal assistant groups, the Task Force has now adopted the term "paralegal" to mean trained legal assistants.)
Bencher Robert Gourlay, QC, a member of the Paralegals Task Force, told the Benchers in June that this approach provides assurance to the public that certified paralegals have attained an appropriate level of education - such as graduation from a recognized paralegal education program - to perform certain work. It further allows the Law Society to remain in control of the certification process and regulation.
Under such a program, certified paralegals could be encouraged to take on new functions. This could include some advocacy roles, such as appearing before specialized boards and tribunals where lay representation is well established; undertaking debt collection matters in Small Claims Court or appearing at Small Claims settlement conferences (both would require an amendment to the Small Claims Act) or handling first appearances and interim appearances on uncontested adjournments in criminal matters. The Task Force has asked the CBA sections to determine in what areas the role of paralegals could be expanded, and any other lawyers with views are most welcome to contact the Task Force through the Law Society office.
The Benchers have endorsed the Task Force's overall approach on paralegal certification, and specifically the Task Force's recommendations to:
- 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;
- consult with administrative tribunals, the court system, CBA groups and the government regarding the possible expansion of duties of certified paralegals;
- explore and cost out a system of regulating certified paralegals;
- develop and establish standards and examinations for the certification of paralegals; and
- establish a committee on paralegals consisting of Benchers, Lay Benchers, paralegals and a representative from a recognized educational institution.