Benchers refer report and recommendations to committees

Let lawyers delegate some court appearances to their paralegals, Task Force recommends

Lawyers should be allowed to have their employed paralegals make some appearances in Provincial Court, ­provided the court grants audience and provided that lawyers satisfy themselves their paralegals are qualified to do the work, a Law Society Task Force has recommended.

Life Bencher Brian J. Wallace, QC, Chair of the Paralegal Task Force, presented the report to the Benchers in May. He said the Task Force had initiated discussions with the Provincial Court on the types of court appearances that might be appropriate for paralegals. There was some consensus that it might be appropriate for law firm paralegals to appear on the same classes of cases that the Chief Judge assigns to Judicial Justices of the Peace and also on uncontested or consent applications in family matters.

On the civil side, the Chief Judge supported law firm paralegals becoming more involved in preparing files and witnesses, but expressed concern about them appearing in court. This is because Small Claims cases can be as complex as in Supreme Court — the only difference is the amount at issue — and judges already deal with unrepresented litigants well.

In the view of the Task Force, however, there are members of the public who do not wish to appear in court on their own. “[A]llowing paralegals employed by lawyers to represent clients in Small Claims Court would enhance the public’s right to affordable, trained and regulated legal assistance,” the Task Force told the Benchers. The Task Force was quick to emphasize that audience would be a privilege, not a right, for a paralegal.

The Task Force recommends pulling back on the delegation prohibitions in Chapter 12 of the Professional Conduct Handbook. If lawyers could delegate some appearances in court or before administrative tribunals to their paralegals, legal services could be made more accessible and affordable for clients, without sacrificing quality or putting clients at risk.

A future step, in Mr. Wallace’s view, would be for the Law Society to negotiate a protocol with the Court on how a lawyer might apply for advance permission to have a paralegal appear on a matter.

Practically speaking, lawyers could not directly supervise the advocacy work of paralegals, but they would have overall professional responsibility for the client’s case and for the work performed by their paralegals, including court work. Mr. Wallace noted that the Task Force had earlier raised the possibility of the Law Society accrediting paralegals employed in law firms, but the option did not find support at the Benchers table.

The Benchers have now referred the Task Force recommendations to various Law Society committees, including the Ethics Committee, for input. They plan to consult further with the Provincial Court and also the Supreme Court on what expanded role supervised paralegals might play.