Designated paralegals pilot project to begin January 1, 2013
Reforms aim to improve access to justice
Since the Benchers approved new regulations in the summer for lawyers who supervise paralegals, the Law Society’s Paralegal Pilot Project Working Group has been finalizing the details of the project in preparation of next month’s launch. In January, designated paralegals can begin to make appearances in court to speak to certain family law matters. That pilot project is in addition to the changes that allow designated paralegals to give legal advice, something that has been permitted since July.
When the Benchers’ Bulletin last wrote about the paralegal reforms in September, one of the chief unanswered questions was how the changes would be evaluated. At the October 26 Benchers meeting, the working group proposed a two-stream evaluation process to help gauge the success of the reforms.
The first stream will evaluate the new model from an access to justice perspective. The goal of the project is to help make legal services more affordable for the public, so it is important to measure whether the reforms are helping to meet that mark.
The working group suggested data should be collected via the Annual Practice Declaration and a web-based survey. The Practice Declaration will ask, for example, whether lawyers supervise designated paralegals, how many, and whether they give legal advice and/or appear in court. The survey will ask how many clients used designated paralegals, were the clients satisfied, and does the lawyer feel he or she could supervise more than two designated paralegals, the maximum currently allowed.
The second stream will focus on protection of the public. While the Law Society wants to increase the affordability of legal services, it cannot be done at the expense of effective regulation of the profession in the public interest.
The second evaluation will track and analyze complaints related to a lawyer’s use of designated paralegals. The data will be a sub-file within a lawyer’s complaint file and will list the name of the designated paralegals, their function, the area of law they were working in, and the number of designated paralegals the supervising lawyer was overseeing at the time of the complaint. This information will help inform future discussions about whether to modify the Law Society rule that caps the number of designated paralegals per lawyer at two.
Paralegals in family court
On September 24, Chief Judge Thomas J. Crabtree of the Provincial Court wrote President Bruce LeRose, QC to advise the court would participate in the two-year paralegal pilot project. Beginning January 1, 2013 the Provincial Court will grant designated paralegals a limited right of audience in family law matters in the Cariboo/Northeast District and Surrey.
Chief Justice Robert J. Bauman had already offered the Supreme Court’s willingness to participate in the Vancouver, New Westminster and Kamloops registries.
As designated paralegals begin to make their first court appearances, there are some important guidelines to be followed. At their first appearance in court, designated paralegals are required to provide the court with an affidavit from the supervising lawyer stating:
- the paralegal has the training and experience to deal with the issue at hand;
- the materials used by the paralegal have been reviewed by the supervising lawyer;
- the client consents to the application being dealt with by a paralegal.
Lawyers also need to be available to the paralegal by telephone during the day of the proceeding, and paralegals must be trained on court protocol before making an initial appearance.
The kinds of applications paralegals are allowed to address are intended to be procedural and straightforward. In Supreme Court, they include uncontested renewal of notice of family claim, uncontested application for alternative methods of service, and applications for which notice is not required.
Designated paralegals can also speak to a small number of contested procedural matters, including applications to compel production of documents for inspection and copying unless the objection to production is on the grounds of privilege, and applications to change the location of an examination for discovery.
In Provincial Court, designated paralegals may appear to deal with uncontested first appearances, uncontested consent orders requiring attendance before a judge, and uncontested applications for paternity testing.
They may also appear on certain contested procedural matters in Provincial Court, including contested applications to compel production of a financial statement or to compel production of financial documents.
Paralegals giving legal advice
The pilot project that allows designated paralegals to make limited courtroom appearances is one element of the Law Society’s initiative for lawyers who supervise paralegals. The other allows designated paralegals to give legal advice directly to clients, something that was not permitted prior to the changes made to the Professional Conduct Handbook.
In any area of law where a supervising lawyer deems a designated paralegal competent, the paralegal is now permitted to give legal advice to clients. For example, a designated paralegal could provide oral advice to a client during a meeting, or prepare a document such as a contract or will and provide it directly to the client.
Guidelines for working with designated paralegals
As lawyers move ahead with “designating” paralegals and allowing them to give legal advice and appear in court, they will be guided by the provisions and guidelines contained in the Law Society Rules and the Code of Professional Conduct (which replaces the Professional Conduct Handbook on January 1, 2013.)
Lawyers should remember they bear overall responsibility for the conduct of the designated paralegals they supervise. Any mistakes made by the paralegal are the lawyer’s responsibility.
The paralegal pilot project will run for two years. In 2015, a review will be conducted to determine what worked, what did not work, and whether it should be continued or expanded into other areas of law.
For more information about the new rules and regulations governing lawyers who employ paralegals, see the Law Society’s website.