Archive for the ‘Canada’ Category

Monday, October 7th, 2013

While paralegals and lawyers in the Ontario, Canada, Law Society sometimes clash and some misgivings about the involvement of the Law Society in the regulation of paralegals, a recent assessment by the Ontario Attorney General concludes that overall the new system is working well. Now the Attorney General has introduced a bill to increase the number of paralegals on the governing body. MarketWired.com reports:

Today, [October 1, 2013] Attorney General John Gerretsen introduced amendments to the Law Society Act that, if passed, will enhance access to justice and the effectiveness of Law Society governance by increasing the number of elected paralegal directors on the Law Society board.

“We are grateful to the Attorney General for his commitment to furthering the development of the paralegal profession,” says Law Society Treasurer Thomas Conway. “This is important for both the protection of the public and access to justice.”

Currently, five paralegals are elected by licensed paralegals, as members of the Paralegal Standing Committee. Two of the five are elected as benchers (directors), who fully participate in and vote at Convocation, the meeting of the Law Society’s board. The amendments to the Law Society Act will see all five paralegals elected as benchers.

The article also notes that The Law Society  regulates over 5,000 paralegals practicing principally in Small Claims Court, traffic and other provincial offenses, landlord-tenant and various other tribunals, and minor matters under the Criminal Code.

Canadian Experiment Report

Friday, July 6th, 2012

I’ve often discussed or referred to the particular form of regulation of paralegals established in Ontario, Canada.  That discussion has included comments about or from persons who do not view the program favorably. (See “Canada” category.) Under the program, regulated paralegals can perform many lawyer-type functions without the supervision of an attorney. The program has been in effect for five years now and the Law Society of Upper Canada has presented a report to Attorney General John Gerretsen, declaring it a success. Of course, those who object to the role of the Law Society in the program (and other more objective observers) will be somewhat cynical about the objectivity of the report.

Nevertheless, the report is important reading for those concerned about the future of paralegal regulation and indeed the paralegal profession itself in American. According to the press release,

…the report shows that paralegals and the public have both benefited from regulation.

The extensive review looked at whether Law Society regulation had established fair and transparent licensing processes, reasonable standards of competence and conduct, and fair and transparent investigative and disciplinary processes for paralegals. It also examined the effect that regulation has had on licensed paralegals and the public who have used their services…

As part of the review process, the Law Society solicited submissions from paralegals, lawyers, legal organizations and members of the public, and received 26 submissions – 12 from organizations and 14 from individuals. All of these submissions were considered in the preparation of the report.

A consultant conducted extensive research, including focus groups with paralegals and members of the public who have used paralegal services. Online surveys of licensed paralegals and users of paralegal services were also conducted. These research findings helped to inform the report’s analysis.

“Results show that paralegals are well on their way to establishing a prestigious and well-regarded profession,” said Law Society Treasurer Thomas G. Conway. “Paralegal regulation has provided consumer protection while maintaining access to justice. The Law Society is proud of all that has been accomplished in the past five years and we are pleased to present this report to the Attorney General.”

When I return to campus at the end of the month, I will try to get a copy of the complete report for further comment and discussion.

The Proper Tone of a Professional Communication

Wednesday, December 7th, 2011

Because paralegals are licensed in Ontario and can engage in limited practice of law without attorney supervision, they are subject to the “Paralegal Rules of Conduct” which can be enforced by the Law Society through the same process as is used to discipline lawyers. When the reports of discipline come out it seems there are far fewer for paralegal than attorneys, but I have no data to confirm that (and, of course, even if it is true there may be as many paralegal disciplinary proceedings portionate to the numbers practicing under each type of license, but those that do come through are generally fairly similar to those for lawyers. Here’s one that is a bit more interesting though:

KIMBERLY LYNN POLLOCK
From: City of Mississauga, Ontario
First hearing: November 21, 2011
LSUC Counsel: Jan Parnega-Welch
Paralegal not represented
Particulars of alleged professional misconduct from the Law Society’s Notice of Application filed June 7, 2011:
1. Contrary to Rule 2.01(2) of the Paralegal Rules of Conduct, you communicated with your former colleague, M.S., in a manner that was abusive, offensive or otherwise inconsistent with the proper tone of a professional communication from a paralegal, including three separate electronic communications on November 3, 2009.
2. Contrary to Rule 2.01(1) of the Paralegal Rules of Conduct, in your communication dated December 7, 2009, you attempted to mislead the Law Society when you unequivocally denied that you posted information about your former employer, C.R.S., on-line, when this representation was not true.

The result of the hearing:        Decision: The Paralegal was reprimanded.

More specifically the Law Society of Upper Canada website reports:

By Decision and Order dated November 21, 2011 the hearing panel ordered as follows:

The Paralegal is to be reprimanded.
The reprimand is to be administered to the Paralegal in person at the offices of the Law Society on December 19, 2011 at 1:00 p.m.
Costs of $1,000 to be paid by the Paralegal within one year of the Paralegal curing her administrative suspension.
Should the Paralegal fail to pay the costs within the one year period, the Panel orders that the Paralegal be suspended until such time as the costs are paid.
Should the Paralegal fail to attend to receive the reprimand on December 19, 2011 at 1:00 p.m., the Law Society shall be entitled to make further submissions as to penalty.

 Further information regarding the details of this matter do not appear to be available and is probably not real helpful anyway. However, I suspect that this rule, if applicable in the U.S., would get quite a workout!

Ontario Law Society Quandry: Does Disbarred or Suspended Attorney Have the “Good Character” to be a Paralegal?

Monday, November 28th, 2011

One aspect of the Ontario experiement in licensing paralegals that I posted about favorably here is the “good character assessment.” Commenting on an unusual case before a Law Society Appeal Panel, I noted,

The scary part is that there is nothing to prevent our own Nics from calling themselves paralegals here in the United States. We are hopeful that UPL laws will prevent them from operating independently, but depend on law firms to do the character assessment and background checks to keep Nic and his ilk out of the legal system. Unfortunately, this procedure all too often fails. Indeed, some paralegals are so un-reviewed and unsupervised that they are able to embezzle huge sums from the law firms themselves. One managed to grab $1.7 million before being caught!

Indeed, there is a concern that persons found unfit to be an attorney could become paralegals under our system, a concern I addressed in “If he smells bad there, he’ll smell bad here.” As noted in that post, it seemed that a paralegal licensing program that included a good character assessment would prevent corrupt attorneys from becoming paralegals after disbarment.

A recent article in the Law Times though makes it clear that not just any licensing regulations will do:

The Paralegal Society of Ontario says it’s “seriously concerned” about Law Society of Upper Canada regulations allowing disbarred and suspended lawyers to apply for paralegal licences, an issue that culminated in Mississauga, Ont., lawyer David Robert Conway’s successful appeal of his disbarment this month.

“As an organization, we’ve made it perfectly clear to the law society that we highly object to a lawyer applying to serve as a paralegal when they’ve been suspended or disbarred,” says Janet Wigle-Vence, treasurer of the paralegal society.

According to Wigle-Vence, while paralegals serve clients in a limited scope compared to lawyers, the regulator should hold both types of practitioners to a similar standard of character.

“If they can’t pass the test to serve as a lawyer, it doesn’t make sense that they would be allowed to serve as a paralegal,” she adds.

The problem lies in the particular way the regulations are written. They include “grandfather” and hearing provisions that do allow disbarred attorneys to have a hearing on a paralegal license application which could, in theory, find that they do not have the “good character” to be an attorney, but do have the “good character” necessary to be a paralegal!

The article implies, however, that this is more of a theorectical problem than a practical problem, noting through a statement by Harry Kopyto, himself a disbarred attorney, a subject of posts on this blog, and occasional communicator with this blog, few attorneys have been successful in taking this route back into legal practice precisely because of the good character requirement. Nonetheless, it seems odd that this would even be an option. The regulations should make it clear that disbarment or suspension as an attorney is itself sufficient indication that the applicant lacks the good character required to be a licensed paralegal.

International Understanding

Monday, August 8th, 2011

You may have heard that the ABA is holding its annual convention in Canada this year. ABAJournal.com announced today that “The ABA and Canadian Bar Put Their Special Relationship into Writing:”

The U.S. and Canada share perhaps the longest unguarded border of any two countries in the world, running from the Atlantic Ocean across the North American continent. There is an arch spanning one of the many border crossings in sight of the Pacific Ocean south of Vancouver. A message is printed on that arch: “Children of a common mother.”

If that message characterizes the relationship between the U.S. and Canada, it also describes the relationship between the legal communities of the two countries, said leaders of the ABA and the Canadian Bar Association at a special ceremony held today to commemorate that bond.

The ABA is also, according to the story, finalizing a cooperation agreement with the Korean Bar Association.

One thing the two legal systems does not have entirely in common is the utilization of paralegal as in many areas of Canada the term “independent paralegal” has real meaning whereas the ABA recognizes only paralegals working under the supervision of any attorney. Indeed, as many of the posts in the “Canada” category discuss, one Canadian province has started licensing paralegals for some services. Most United States bar associations treat any paralegal activity other than that supervised by an attorney as UPL.

The ABAJournal.com article reminded me that I also wanted to post about international cooperation among paralegals and paralegal associations. I’ve mentioned before the relationship between the New York City Paralegal Association and the Institute of Paralegal in England.  A recent (although not the current) issues of NYCPA’s Paralegal Buzz includes this news:

New York City Paralegal Association Board Members met with representatives from Japan Federation of Bar Association

WHAT’S NEW?
On June 28, 2011, a group of NYCPA Board Members met with the Japanese visiting scholar and representatives from Japan Federation of Bar Association (“JFBA”) on their study mission to the United States. In November 2011, JFBA will hold the 17th Symposium on Legal Practice Reform. At the Symposium, one of the topics of discussion will be “The Cultivation of Administrative Staff and Revitalization of Attorneys’ Services: Perspectives on How to Utilize the JFBA’s Training and Competence Accreditation System” on the reform of legal practice.

The mission of the visiting group is to gain a better understanding of the role of paralegals in the United States. During the two-hours meeting, we discussed the role of NYCPA in the community; why and how NYCPA was created; educational, networking and pro bono opportunities provided by NYCPA to its members and community; educational background and training opportunities for paralegals in NYC; accreditation system, work environment and job-based relationships between broad categories of administrative staff and paralegals and attorneys.

The efforts made by NYCPA to connect with their counterparts internationally is quite impressive. I suppose I should be more thrilled than I am with the ABA’s recent efforts. What would thrill me more though is a regular ABA Symposium on Reform of Legal Practice that focused on the utilization of paralegals to revitalize attorney services and help alleviate the access to justice problem.

 

Increase in UPL Complaints in Ottawa after Paralegal Regulation

Friday, July 1st, 2011

It should, perhaps, come as no surprise that when a jurisdiction requires a license to perform a service there will initially be an increase in complaints of that service being performed without the required license. We’ve followed the regulation experiment in a Canadian province fairly closely to see how paralegal regulation might work here, recognizing that the role of a paralegal in Canada was different from that in the United States prior to the inception of regulation. Here’s a report on the increased UPL complaints from thestar.com:

The Law Society of Upper Canada is taking aim against people practising law without a proper licence after a jump in the number of complaints.

New complaints rose from 134 in 2007 to 445 in 2009, but dropped to 330 in 2010 and have further decreased this year, according to a report by Zeynep Onen, the society’s director of professional regulation.

In 2006, the law society reduced the number of legal services paralegals were allowed to do without a licence in an effort to tighten professional regulation.

“The increase in the complaints reflects that legal services are now regulated and those individuals who seek to avoid being regulated or who can’t meet the qualifications are now more easily exposed as breaking the law,” said Roy Thomas, the law society’s director of communications.

For more on this, click on thestar.com link above.

Paralegals as Answer to Access to Justice Issue in Ontario

Wednesday, March 9th, 2011

The Law Society of Upper Canada continues to consider changes in its experiment of paralegal licensure and regulation to assist in remediating access to justice issues. At the moment there is controversy brewing because the LSUC is beginning its discussion of expanding the scope of permitted paralegal activity based on “a decade-old report that backed paralegal calls to practise in that area as the basis for a promised review of the scope of their practice.”

Here’s some of the back-and-forth as reported by Law Times:

Marshall Yarmus, the paralegal whose motion at the annual general meeting last year sparked the commitment to a review, says Cory’s report is a “good starting point.”

“In terms of family law, we’re looking for things beyond what he suggested because paralegals used to be allowed to make appearances in the family court for certain matters,” he says.

“But at least it also addresses other issues like wills, real estate, and other areas of law where paralegals are not currently allowed to practise and [that] he recommended.”

Chris Surowiak, president of the Paralegal Society of Ontario, welcomes the law society’s action on the scope of paralegal practice.

“The public needs assistance within many aspects involving family law and the public can only benefit in using the professional services of a paralegal in this area,” he says. “Expanding our scope of practice can be a win-win for lawyers, paralegals, and ultimately the public.”

But Cynthia Mancia, co-chairwoman of the Family Lawyers Association, isn’t so sure.
“The biggest underlying theme of justice Cory’s [report] was access to justice, and I think it’s a mistake to equate expanding the use of paralegals as an answer to the existing well-documented access-to-justice [issues] that exist,” she says.

“There is a perception out there that paralegals can provide the same services that lawyers provide but more cheaply. The fear family lawyers have is that that perception isn’t grounded in reality.”

I’m somewhat biased on this as I’ve been arguing for quite some time that paralegals should have an expanded role in plugging the access-to-justice gap.  So it may be no surprise that I take issue with Mancia’s characterization.  It seems to me that it is quite correct to equate expanded paralegal actions with an answer to access to justice issues.  The issue is not whether paralegals can provide the same service as attorneys. They cannot. However, there is no reason paralegals can’t provide some services now provided by attorneys at a lower cost thereby expanding access to justice for those who cannot currently afford any representation.

 The position of attorneys who oppose this type of role for properly educated, licensed, and regulated paralegals are contending that somehow people lacking any legal training at all who cannot afford an attorney are better off confronting the legal system on their own. This position is counterintuitive and I strongly suspect they cannot provide any data to back up the claim.

For more on these issues check out  the “Canada” and “Access to Justice” categories.

Ontario Paralegal and Law Society on Same Immigration Page

Tuesday, December 7th, 2010

Since many Ontario paralegals are licenses and practice independently of attorneys, issues can arise over potential competition between the two. As previously discussed here, some paralegals there object to the fact that paralegals are regulated by the Law Society of Upper Canada on this basis, i.e., lawyers regulate their competition. I’ve argued that in the United States, licensing paralegals for limited tasks would help solve the access to justice prob lem without causing competition because most of people with an access to justice problem simply cannot afford attorneys and are not serviced by them in any case.

A recent article in the Law Times, however, indicates that the Law Society of Upper Canada has successfully lobbied MPs to exempt paralegals from regulation as immigration consultants. According to the report, the paralegal society and the law society were “on the same page” on this. This may just be an example of the “common enemy” rule in practice, though. The issue is who is going to regulate paralegals providing immigration services. According to the article,

Bill C-35, the cracking down on crooked consultants act that’s currently winding its way through Parliament, is the federal government’s response to a string of controversies involving unqualified and unethical consultants who exploited prospective immigrants to the country.

The bill tightens up the rules on who can charge fees for immigration advice. In the meantime, hearings are underway to find a governing body to regulate consultants and thereby replace the Canadian Society of Immigration Consultants.

So people providing immigration services are going to be regulated by someone and the Law Society was essentially saying the turf was already covered:

After the government announced the legislation in June, the Paralegal Society of Ontario wrote to the federal government to request an exemption given the LSUC’s regulation of paralegals.

“We provide a valuable choice for the public and are recognized as a valuable provider of legal services,” wrote paralegal society president Chris Surowiak.

“Individuals wanting to immigrate to Canada can be assured they will have a qualified representative when they retain the services of a paralegal member of the law society.”

Last month, the law society backed him up, sending Treasurer Laurie Pawlitza to make the pitch for paralegals at the standing committee on citizenship and immigration.

She pointed to the law society’s 200-year track record of successful regulation and discipline and noted paralegals must carry professional liability insurance.

Surowiak tells Law Times the exemption will save paralegals who practise immigration law more than $3,000 per year in fees paid to remain members of CSIC.
Of course, not everyone is happy.

 “Sergio Karas, a past chairman of the Ontario Bar Association’s citizenship and immigration section, sees the whole bill as an erosion of lawyers’ territory but finds the law society’s move on paralegals particularly galling.

“I think it’s a scandal because it is invading areas that are traditionally the province of lawyers,” he tells Law Times. “The law society is undermining the role of lawyers.”

One does wonder how many people have not had access to justice for fear of “undermining the role of lawyers” and an unwillingness to buck tradition.

There’s More to Canada than Ontario

Saturday, November 6th, 2010

I tend to focus here on paralegalism in Ontario because that province has a regulatory scheme for paralegals, allowing them to act independently of attorneys in some instances. However, as I’ve noted previously, there is a lot more to Canada than Ontario. Paralegals from across the country belong to the Canadian Association of Paralegals (CAP), a thirty- year old organization which held its Atlantic conference last month in St. John according to the Telegraph Journal.

The announcement of the conference in this report shows the similarity of the paralegal profession and professional associations in Canada to those in the United States, including networking and an issue regarding professional identity similar to that being discussed currently on the Paralegal Today listserv:

“It’s a really wonderful opportunity for networking,” says Heather Tait, vice-president Atlantic provinces and board member of the national organization.

The conference is aimed at paralegals, law clerks and legal assistants and will be held at the Delta Brunswick Hotel. The “paralegal” designation is intended to standardize various designations, including legal assistant, legal technician, technical clerk, law clerk, etc., and to facilitate international exchange with paralegal associations in other countries.

CAP is a non-profit national organization dedicated to the professional development of its paralegals across Canada.

I found this to be of particular interest and look forward to hearing more about it:

Earlier this year, it oversaw the creation of a non-profit organization called Paralegals Without Borders Quebec, an initiative of CAP and its directors whose role is to contribute and actively participate in projects that respect and protect fundamental rights.

Paralegal UPL in Canada

Friday, November 5th, 2010

Licensing of paralegal does not, apparently, entirely eliminate the concern regarding UPL by paralegals, but may shift that concern to paralegals performing activities that go beyond their license as indicated by this report:

A disciplinary panel has reserved its decision to a later date whether to grant a former North Bay councillor her licence to continue practising as a paralegal.

The Law Society of Upper Canada which oversees paralegals and lawyers in Ontario held a four-day good character hearing in North Bay last month to determine if Maureen Boldt should be granted a licence.

Lawyers for the law society and for Boldt gave their closing arguments Tuesday at Osgoode Hall in Toronto.

Boldt started working as a paralegal in 1992 and has three law society convictions for the unauthorized practise of law by performing tasks that only licensed lawyers in Ontario are allowed to do.

The last conviction put her in contempt of court for ignoring an injunction to stop illegally practising law. She was sentenced to four months house arrest and lost her seat on city council when she missed too many consecutive meetings.

The law society began issuing licences to paralegals in 2008 and it has allowed Boldt to continue practising pending the outcome of the hearing.