Student rule changes

Firms encouraged to take advantage of new rules

Supervised students permitted to provide legal services and provide a lower-cost option to clients

On September 1, 2011, new rules take effect that allow articled students to provide certain legal services to the public, provided they are well supervised by a principal or another lawyer.

The changes were approved by the Benchers in May 2011 and stem from ongoing efforts by the Benchers to help make legal services more accessible and affordable for the public.

President, Gavin Hume, QC and others have brought this initiative to the attention of the Provincial and Supreme Courts and have received encouragement to proceed. Discussions are continuing to ensure the expanded role for articled students aligns with judicial requirements

It is well known that it is becoming increasingly difficult for many to obtain legal services for a number of reasons, including the limitations on eligibility and availability of legal aid and the inability of some people to find legal services they can afford. Others believe that they can get a better result by self-representing. The result has been an increase in the number of self-represented litigants and a reluctance of others to seek the justice to which they are entitled.

According to new Law Society Rule 2-32.01, an articled student may provide all legal services that a lawyer is permitted to provide, with some exceptions, but the supervising lawyer is responsible for ensuring the student is competent and properly prepared.

One exception is appearing as counsel in complex litigation, but subject to approval of the courts, which the Law Society hopes to secure in due course, students will be allowed to appear as counsel if they are directly supervised by a practising lawyer in the following proceedings:

  • an appeal in the Court of Appeal, the Federal Court of Appeal or the Supreme Court of Canada;
  • a civil or criminal jury trial;
  • a proceeding on an indictable offence, unless the offence is within the absolute jurisdiction of a Provincial Court judge.

Students are also allowed to give or accept an undertaking if the supervising lawyer has also signed or accepted the ­undertaking.

Since the authority granted to practising lawyers under s. 60 of the Evidence Act does not extend to articled students, they are not permitted to act as commissioners for oaths. (The Law Society has requested that the Act be changed to allow it.) Also, the rule changes do not expand the roles for students enrolled in temporary articles who will continue to be governed by Law Society Rule 2-43.

Principals and supervising lawyers responsible for student work

Lawyers have always been responsible for supervising staff, including articled students. However, now that students can perform enhanced functions, the issue of proper supervision by a lawyer becomes even more critical.

It is essential that supervising lawyers understand that they are responsible and accountable for the actions of articled students performing legal services and that failure to properly supervise a student can lead to the full range of disciplinary processes and potential sanctions.

The supervising lawyer is also liable for any mistakes made by the student while under supervision, and the financial consequences of any paid claim will flow through the lawyer’s professional liability insurance. Lawyers who fail to provide any supervision jeopardize their insurance ­coverage.

Lawyers must also ensure that students and all other employees understand the importance of solicitor and client confidentiality and privilege. Communications made by or on behalf of the client to an ­articled student for the purposes of obtaining or giving legal advice will attract solicitor and client privilege (see Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860 at 873).

Privilege extends to communications “made to the solicitor in person or to a clerk or subordinate of the solicitor who acts in his place and under his direction” (see, Wheeler v. Le Marchant (1881), 17 Ch.D. 675). Supervision and direction of the articled student by the lawyer is also critical to the preservation of solicitor and client privilege

The Delivery of Legal Services Task Force continues to work on changes to the Professional Conduct Handbook regarding expanded roles for paralegals and, until they are finalized, lawyers should not be using paralegals to perform the expanded functions now available to students.

For more information on the new rules, please contact a Practice Advisor.

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