While others are focused on Vancouver, I continue to follow events in Ontario. There Harry Kopyto is challenging the system that regulates paralegals. I’ve mentioned Harry before and the regulatory system has been the subject of several posts here.
I’m not really very interested in Harry himself. Rather it is the way this story highlights the various factors that must be considered in paralegal regulation. On the one hand we have this:
The provincial government vested the law society with the responsibility to govern paralegals over concerns that the public was exposed to the risk of harm at the hands of unscrupulous or incompetent practitioners.
“We heard lots of different horror stories,” says Steven Rosenhek, chairman of the Ontario Bar Association’s paralegal task force, adding that complaints against paralegals “came up fairly frequently and sometimes with disastrous results.”
The prevailing lack of any regulatory structure meant paralegals were free to operate without any disciplinary mechanism or minimum standards of education.
On the other, this:
In barring paralegals from family law, the current rules have made a dysfunctional system even worse, Kopyto charges.
Particularly vulnerable, he says, are women in divorce and custody litigation who don’t qualify for legal aid but can’t afford a lawyer.
“Now, these women are streaming into court without any representation and they’re being eaten alive by the [high-priced lawyers] of the world,” Kopyto says.
“It’s a zoo down there. People who have clearly meritorious cases are losing them.”
Ontario decided in favor of public protection over access to justice:
“There’s always tension between access to justice and public protection,” he [the chairman of the Ontario Bar Association’s paralegal task force] says. “We said and we will continue to say the paramount concern is public protection.”
These two factors are also at work in the debate over paralegal regulation in the United States. There is also concern here, as in Ontario, over disbarred attorneys practicing as paralegals.
However, we must also keep in mind that Ontario’s program was developed in different context for the role of the paralegal, many of whom had practices independent of attorneys unlike here where paralegals are required to have attorney supervision. In fact, paralegals were (and are) often viewed as competitors to attorneys. And therein may lie the virtue of Harry’s challenge. He states he is not opposed to paralegal regulation, but objects to the paralegal profession being regulated by the Law Society, i.e., by the lawyer profession with which it competes.
This is a very different perspective than that considered in a previous post here, which celebrated the paralegal profession being brought into the Law Society as a recognition of paralegals as legal professionals. There is, apparently some merit to that perspective. Judi Simms, president of the Paralegal Society of Canada, states on the one hand, “The only thing it’s accomplished so far is it’s restricted our capability to practise,” but also says “For many paralegals, particularly those who had established practices in small claims, landlord and tenant law, and traffic matters, regulation has legitimized their functions and advanced them professionally.” According to the most recent report in the Law Times News, “Simms, in fact, praises the LSUC for its “spectacular job” in bringing paralegals into the fold.”
I suspect that even in the context of competition, there are more similarities between the paralegal/lawyer professions in Ottawa and the United States that might immediately meet the eye. See for example the discussion here and on the Paralegal Today discussion forum, on Combating the “Hire an Out-of-work Lawyer as a Paralegal” Trend. “Independent” paralegals also claim that fear of competition and a desire for a monopoly is behind the efforts of bar associations to shut down businessess such as Efrem Martin’s.
So this competition in Canada should remain of interest to United States paralegals as more than just a spectator sport. I hope in the next few weeks to take a closer look at California’s regulatory system both in terms of its mechanisms and its implementations. Anyone who has a fact based opinion on either is invited to contact me at firstname.lastname@example.org.
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