The Empowered Paralegal

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.

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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.

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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.

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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.

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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.

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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.

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ABAJournal.com today has a post entitled, “Middle-Class Dilemma: Can’t Afford Lawyers, Can’t Qualify for Legal Aid.” There’s not much new in the article itself for regular readers here where access to justice has a category of its own. It says, in part,

Lawyers are just too expensive for many people needing legal help, a law professor says.

“You can hardly find a lawyer who charges less than $150 per hour, which is out of reach for most people,” University of Southern California law professor Gillian Hadfield tells the Wall Street Journal.

At the same time, people who can’t afford lawyers make too much money to qualify for legal aid. Most aid groups serve those at or below the poverty line, and budget cuts are forcing the organizations to turn away more people, the story says.

Comments to the post, not surprisingly, focus on “unbundling of services” as a possible solution. It is a possible partial solution. However, I continue to suggest that solving the access to justice problem will take more than attorneys. A real solution will find a way to maximize the  utilization of the talent, skill, and experience of professional paralegals.

 It might even include re-visiting UPL and allowing paralegals (suitable licensed) to provide limited legal services at an affordable cost without the supervision of attorneys. This approach is used in other jurisdictions. (Check the “Canada” category.) While many lawyers fear this options as opening the door to competition from paralegals, that approach does not make a lot of sense to me. After all we are talking about middle class people who are not able to afford attorneys. Even now with no competition, the lawyers are not getting that business. As the story notes:

The newspaper cites a survey of nearly 1,200 state trial judges by the ABA Coalition for Justice. Sixty percent of the judges reported that fewer people are represented by counsel in civil cases, according to results announced in a press conference earlier this month.

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Final exams and publication deadlines have delayed posts on such interesting topics as my discussions with Sallie Davis of Tulane University about that institution’s paralegal education program and with Vivienne Lawack-Davids, Executive Dean of Law at Nelson Mandela Metropolitan University in Port Elizabeth, South Africa, about paralegalism in South Africa and a possible paralegal education program at that university. However, this article headlined “Lawyers, paralegals mobilize for skirmish at law society AGM” could not pass without mention:

Family lawyers and paralegals are mobilizing for a clash at the Law Society of Upper Canada’s annual general meeting this week over the expansion of paralegal practice into family law, an issue one lawyer believes is putting “the future of the legal profession” at stake.

‘This isn’t just another sleepy AGM. What’s behind it is the future of the law society and the future of the legal profession,’ says James Morton.

A motion on the agenda for the meeting would, if passed, require the law society to report on the possibility of expanding paralegal practice to include “preparing family law documents, representing before the family court for certain matters, drafting incorporations, and drafting uncontested divorces,” a proposal that’s left family lawyers up in arms.

Now both sides are scrambling to gather enough supporters to pack the meeting and win the vote, which will be decided by a simple count of hands on Wednesday with no proxies allowed.

Nevertheless, a note from the secretary of Convocation this morning pointed out the motion isn’t binding. A law society bylaw “provides that no motion carried at the annual general meeting is binding on Convocation,” said
Katherine Corrick. “If passed, Convocation is required to consider the motion within six months.

“The paralegal scope of practice is an issue entirely within the authority of Convocation. Of course, an examination of this issue would include wide consultation with lawyers and paralegals.”

Follow the link for more.

I have previously posted on the concept of paralegals and lawyers as competitors rather than the legal team we have here in the U.S.  My hope is that we may yet find a middle ground where paralegals gain the maximum ability to aleviate the access to justice problem in the United States.

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The answer is, yes.  I knew that, of course, since I lived for over 30 years in Maine and spent substantial time in Nova Scotia and Quebec. The reason for this post, however, is that I’ve been reminded of this fact by an email from Ann-Marie Allen, Editor-in-Chief of The  East Coast Paralegal Magazine. Yes, the east coast does extend beyond Maine and there are paralegals there! I’ve only had a brief opportunity to scan through the magazine, but there are several good articles including information about the Ontario efforts at paralegal licensing.  I’ve included the link to the ECP blog in “Links” and here http://theeastcoastparalegal.blogspot.com.

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We’ve been following the effort of Ontario to intertwine the attorney and paralegal professions in their system of regulation. Those efforts include making paralegals part of the regulating body. Earthtime.org reports that the first elections have been held:

Ontario’s licensed paralegals cast their votes in the first-ever paralegal election last month, electing five of the 39 candidates nominated to run for the Law Society’s Paralegal Standing Committee. The committee plays an integral role in the governance and regulation of licensed paralegals throughout the province.

The elected paralegals are as follows: Cathy Corsetti, Paul Dray, Michelle L. Haigh, Kenneth C. Mitchell, and Robert Burd.

“This election marks a significant milestone in paralegal regulation,” says Law Society Treasurer W. A. Derry Millar. “The Paralegal Standing Committee plays a critical role in ensuring that the paralegal profession is regulated in the public interest. We congratulate the elected committee members and look forward to working with them.” …

Ontario became the first jurisdiction in North America to licence paralegals in 2007. Almost 3,000 paralegals in Ontario are now licensed by the Law Society. Licensed paralegals can help people with matters in small claims court, as well as traffic matters, tribunal hearings and minor criminal matters

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