Paralegals – Part of the access to justice solution

New rules will permit designated paralegals to make limited courtroom appearances beginning January 2013

Carol Hickman, QC and Michele McMillan at workIncremental, rather than revolutionary.

That is how the Law Society of British Columbia’s Delivery of Legal Services Task Force referred to its recommended changes to the rules and regulations that govern legal service providers in BC, specifically articled students and paralegals. The challenge was to strike a balance between increasing the number of options for reasonably priced legal advice, while still ensuring the people who provide that advice are professional, competent and honourable. As the Task Force’s final report notes, the changes will not cure all of the problems associated with access to justice, but they are a step in the right direction.

Last year, the Law Society implemented new rules that allow articled students to offer many of the legal services typically provided by lawyers. This year, the Law Society similarly enhanced the role of paralegals in a few key ways. Working under the supervision of lawyers, paralegals are now able give legal advice. That advice could come, for example, in the form of an opinion or in the preparation of a document, such as a contract or a will. Also, in January 2013, a pilot project is planned that will allow paralegals to make certain appearances in family court. The Law Society hopes expanding the role of paralegals will reduce the cost of some legal services and make justice more attainable.

Access to justice

Ensuring the public has access to competent, affordable legal advice is a concern for lawyers, legal regulators and governments in many parts of the world. Canada is no exception. The Right Honourable Beverley McLachlin, PC, Chief Justice of Canada, has spoken about the issue on a number of occasions, most recently at a conference of the Canadian Bar Association in Vancouver in August.

“Being able to access justice is fundamental to the rule of law,” said Chief ­Justice McLachlin. “If people decide that they can’t get justice, they will have less respect for the law. They will tend not to support the rule of law. They won’t see the rule of law, which is so fundamental to our democratic society, as central and important.”

In BC, ensuring the public has access to affordable legal assistance has been a top strategic objective for the Law Society. “Our goal is to lower barriers, especially financial barriers, to accessing legal services,” said Law Society president Bruce LeRose, QC. “If legal services are only available to the rich, or the poor through programs like pro bono work or legal aid, it won’t be long before there will be a public crisis of confidence in the system.”

A lack of confidence is not the only concern. LeRose points out the cost of legal advice causes many people to choose to represent themselves in court. “Self-representation is less effective than being represented by a trained lawyer or paralegal and can strain the system as a whole,” said LeRose.

A study being conducted by a University of Windsor law professor supports that point. Julie Macfarlane is researching the experiences of self-represented litigants in BC, Alberta and Ontario. Macfarlane found self-representation is frustrating for litigants and cumbersome for the courts. She says people who represent themselves in civil and family matters most often do so because of the high price of legal advice.

To better understand why legal assistance is slipping out of reach for many ­people, and what can be done to correct the problem, the Benchers created the Delivery of Legal Services Task Force in 2008. It set out to re-examine the model by which legal services are delivered to the public. The Task Force was the result of extensive committee work that suggested the time had come to expand the range of people who should be able to offer legal assistance. Ultimately, the Task Force narrowed its focus to a few key groups that could help improve affordability. One of those groups was paralegals.

Paralegals

The role that paralegals could or should play in the delivery of legal services in BC is a topic that has preoccupied the Law Society for decades. As far back as 1989, the Paralegalism Subcommittee set out to examine the level of paralegal activity in the province and to gauge the importance of paralegals to the practice of law. Since then, there have been several task forces, committees, and working groups that have studied the paralegal question and asked whether paralegals should be certified or given an enhanced practice role.

The Delivery of Legal Services Task Force took another detailed look at the issue and reported back to the Benchers with several recommendations. Combining those recommendations with subsequent work from the Ethics Committee, the Benchers in June 2012 approved an expanded role for paralegals, as well as new definitions that clarify what they can do.

In the Professional Conduct Handbook, a “paralegal” is a trained professional working under the supervision of a lawyer. A “designated paralegal,” meanwhile, is a paralegal who can perform some additional functions. Specifically, they are permitted to give legal advice and represent clients before certain courts or tribunals, subject to the approval of those bodies. Lawyers can oversee a maximum of two designated paralegals. And beginning in 2013, paralegals will also be permitted to give and receive undertakings.

Doug Munro, a policy and legal services lawyer with the Law Society, says the changes are designed to give the public more choice in obtaining competent, affordable legal assistance.

“Traditionally, paralegals were not permitted to give legal advice, so while the paralegal may have done much of the background work, it was the lawyer who finalized and gave the legal advice. That process can drive up costs,” says Munro.

“With these changes, the lawyer will always be available to the paralegal for review and analysis, but in matters where the lawyer considers the paralegal competent, and in which the paralegal does not feel he or she needs to ask the lawyer what to do, the paralegal can give the legal advice directly to the client.”

When it comes to paralegals appearing before the courts, the Law Society is ­finalizing the details of a pilot project scheduled to begin in January 2013. The project will provide designated paralegals a limited right to appear in family law ­proceedings to deal with uncontested procedural matters, such as seeking leave to amend pleadings or correction of an order, as well as certain contested matters.

In June, BC Supreme Court Chief Justice Robert J. Bauman wrote the Law Society to advise that the court had approved in principle the two-year pilot project in the Vancouver, New Westminster, and Kamloops registries. Discussions between the Law Society and the Provincial Court are ongoing.

Lawyer responsibility

What has not changed in all of this is the role and responsibility of lawyers to supervise paralegals. It is still the job of lawyers to decide on a case-by-case basis whether a paralegal has the skills, training and good character to perform an enhanced function. Ultimately, lawyers are professionally and legally responsible for all work delegated to paralegals. Lawyers are also ­accountable to the Law Society in the event of a complaint or insurance claim stemming from a paralegal’s work.

Paralegal Michele McMillan“We’re in support of it,” said Janet Crnkovic, Vice President with the BC Paralegal Association. “Instead of having a ­lawyer at his or her hourly rate doing something that a paralegal could do at a lower rate, right away it’s going to make it more accessible to a client. It’s going to leave lawyers doing things that are more appropriate to their level.”

Michele McMillan, a paralegal with Quay Law Centre in New Westminster, agrees. “A lawyer’s hourly rate is expensive and for the working population, sometimes it’s unaffordable. A paralegal’s hourly rate is much more affordable.”

McMillan has worked in the area of family law for close to two decades, and spent most of that time working with Life Bencher Carol Hickman, QC. “Our intention has been making sure the middle class has representation in court,” said Hickman. Hickman also sits on the Law Society’s Access to Legal Services Advisory Committee and helped work on the rule changes. “The success is going to be that files can be done at a lower cost for clients, or that more clients are actually getting representation.”

McMillan, meanwhile, hopes a successful pilot project in family law will open other doors for paralegals in the future. “I think we need to try this pilot project and see if it’s successful. Hopefully paralegals will obtain the proper and required training to make the project a success and then they can explore, are there other things that can be opened up to paralegals that again would be beneficial to the public?”

“These changes are not a silver bullet that will fix all of the problems associated with access to justice,” said LeRose. “Instead, they are another step in the ­evolution of the legal profession that we hope will better serve the needs of the public.”