Posts Tagged ‘Law Society’

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.

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.

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.

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.

Scotland: A clear routemap for paralegal professional progress needed

Tuesday, September 28th, 2010

An blog post entitled, “Time to recognise paralegals and reform regulation of their role” is circulating through the AAfPE listserv. Its basic contention is that “As more non-lawyers provide legal services, it is only right that paralegals be offered a clear routemap for professional progress.” Here’s the beginning of the post, while it refers to current events in Scotland, much of which will sound as familiar to paralegals in the U.S. as to those in Scotland:

They are the legal profession’s underclass. Nobody can say exactly what they do, or exactly how many of them there are. But they are set to become ever more central to the delivery of legal services. They are paralegals.

In a first for the UK, this week the Law Society of Scotland, in association with the Scottish Paralegal Association (SPA), formally launches its “registered paralegal” scheme, introducing across-the-board competencies and adherence to a code of conduct for paralegals working with solicitors.

Read more here.

The post also notes events in the rest of Great Britain and in Ontario, both of which have been discussed here several times. (See the “Canada” and “International Paralegalism categories.):

The issue is also important in the context of the debate sparked by my previous blog on the imbalance between the number of law students and available training contracts and pupillages, as many of those unable to progress their legal training are instead taking paralegal roles.

Though in essence they are people doing legal work without a full legal qualification, a core problem is that there is no accepted definition of what a paralegal is. This is why nobody knows how many there are, but applying a broad definition there are probably an awful lot, because many roles have a legal advice element. While the Scots are focusing on paralegals employed by solicitors, perhaps of greater concern are paralegals flying solo and unregulated in areas of legal practice that are not reserved for qualified lawyers. Will-writers, for example, are in effect paralegals.

In Ontario, Canada, the government has forced the provincial law society to take on the regulation of paralegals. They only need a licence if appearing before a court or tribunal, but it sets an example that Finland – the most liberal jurisdiction on earth in terms of who can provide legal services – is to follow. Neither the Ministry of Justice nor the Legal Services Board has yet to really address the issue here, and there is no sign of them doing so.

There is some solace in the notion that the paralegal profession is facing the similar challenges in many countries and there is much to be gained by following developments in each of these countries. However, there is also much to be gained by taking the lead rather than waiting.  I have previously suggested that a joint commission of the ABA, AAfPE, and the major paralegal associations be established to deal with issues such as certification. This joint effort of the Scottish Paralegal Association and the Law Society of Scotland indicates there is some merit to that suggestion.

Britain Studying Paralegal Qualification

Thursday, August 5th, 2010

The Law Society in Britain has commissioned a study to see whether there should be a paralegal “qualification” in Britain. The legal profession in Britain, despite our common heritage, is quite different than our. A law degree is the equivalent of a four-year undergraduate degree here. However, it qualifies the holder to enter an additional educational program which in turn qualifies the graduate to contract for final training with an existing law practice. Those who complete the training then qualify for status as either barristers or solicitors governed by The Law Society.There is another route for qualification as a legal administrator. According to a comment to the Lawyer.com story on this new study, “ILEX is the professional body representing around 22,000 qualified and trainee Legal Executives, and is recognised by the Ministry of Justice as one of the three core routes to becoming a qualified lawyer.”

One problem is that there are about twice as many law degree graduates each year as there are training slots, leaving a large number of graduates who will not qualify any time soon as either solicitors or barristers. Many of these persons create their own legal service and call themselves paralegals. As noted in a previous post, in Britain the public can choose their representation to a larger degree than here where only the licensed attorney can practice law.

However, there as in most other jurisdictions there is a tension between the goals of providing affordable legal services to the public and protecting the public from incompetent service providers. Thus, one possible reason for the new study is concern over protecting the public from incompetent service provides. Another, as noted in one comment to the story might be that The Law Society is trying to protect solicitors’ turf.

I also previously reported on a spat in Britain between the Institute of Paralegals (IoP) and the National Association of Licensed Paralegals (NALP) over who has launched the country’s first national training framework.” According to today’s story, IoP has endorsed this study:

IoP’s chief executive James O’Connell said: “This a very positive step for the future of paralegals in this country. They are often undertrained and underrecognised and being recognised by such a big player as the Law Society is just the type of backing the profession needs.”

Apparently the spat still exists. One of the comments, which responds not only to the story but to other comments, is from Amanda Hamilton. I had the pleasure of meeting Amanda and observing her teaching a class while in London researching paralegal professionalism there last summer. (IoP never responded to my requests, so I must confess to a bit of bias on behalf of NALP. Also NALP is a member of NFPA.) Here’s Amanda’s comment, which I am including in full because it fairly clearly (and I believe accurately) states the present state of affairs in Britain:

Referring to ‘Anonymous’ (30th July 12.56pm), we would like to point out that there are no such organisations as ‘The Licensed Institute of Paralegals’, ‘The National Paralegal Institute’ or the ‘Association of National Paralegals’.
There are only two professional bodies for paralegals: The NALP (The National Association of Licensed Paralegals) is the leading body and has been established for 23 years. The other is The Institute of Paralegals (IoP) formerly known as The Paralegal Association and formed around 2004.
We would also like to point out that the IOP’s ‘national framework’ is not the first ever framework for a paralegal career. The NALP has run one since 1989. It has been the forerunner for paralegal career development and its foundation qualification, the Higher Diploma in Paralegal Studies, has been (in the recent past) nationally accredited and recognised by The National Open College Network from 1995- 2002 and has been run by Further Education Colleges up and down the country.
More importantly NALP has recently gained Awarding Body accreditation and status from the Office of the Qualifications and Examinations Regulator (OfQUAL), the watchdog for qualifications in England. Furthermore the NALP’s Post Graduate Diploma in Paralegal Practice (the PPC), is specifically designed for Law Graduates to enable them to obtain the necessary understanding of legal practice (because a Law Degree does not cover any of it), has been successfully running for ten years and the NALP Higher Diploma (procedural law content) been incorporated (as an option) in Sunderland University’s Law Degree Programme for the past six years. NALP will of course be working closely with The Law Society in connection with its proposed study and is already working with Skills For Justice in a similar vain. Those persons who have responded negatively, above, to the need for Paralegals to be qualified are either not in the profession or do not want to improve their careers. Qualifications are very necessary as the majority of Paralegals do virtually the same work as Solicitors. The ‘pen pushing office fodder’ referred to by some are not Paralegals but merely administrative clerks.

Kopyto Communication

Tuesday, June 8th, 2010

I’ve been traveling and have had little internet access so posting has been, and will be, sparse for awhile. Among the many emails accumulated in my Inbox is on from Harry Kopyto. You may recall from previous posts, Mr. Kopyto is challenging the regulation of paralegals in Ontario, primarily because the regulation is by the Law Society, which is comprised primarily of lawyers and also regulates attorneys (although several paralegals were recently elected to the Law Society’s governing board.) Mr. Kopyto does not view the licensing and regulation of paralegals in Ontario as a step forward for the paralegal profession, but an attempt by attorneys to squelch competition. This effort, he contends, has the effect of diminishing access to justice for those without significant financial resources.

The article Mr. Kopyto sent me is too long to post here, but some excerpts follow. Please keep in mind that I have not vetted the statements for accuracy, Mr. Kopyto’s statements are likely to favor a particular position, and I am not endorsing that position by printing the excerpts.

The main rationale that the LSUC has given for its takeover of paralegals is the fact that “the public interest” requires it to ensure that incompetent paralegals are not foisted on the public market.  What the LSUC has done (and what is not apparent to the public) is that, as a result of bylaws passed by it immediately after the takeover ― the Law Society has basically eliminated paralegals as a profession able to provide a wide variety of services in competition with lawyers.

Prior to the enactment of the Access to Justice Act and the amendments to the Law Society Act, paralegals provided a wide range of services to the public.  They did so effectively and, according to former High Court Judge Peter Cory, at “significantly lower fees” then charged by lawyers.  In fact, within about 30 years, the number of paralegals working in Ontario flourished from a few hundred to an estimated 4,000. Many paralegals prepared wills, prepared incorporations, prepared leases, acted in undefended divorces, did simple real estate transactions and engaged in Family Court representation — subject to prior approval.   Some of their work was in “gray” areas, but unauthorized practice prosecutions were few and successful ones were even fewer.

What do the bylaws say?  Specifically, they restrict paralegals to provide legal advice only with respect to Small Claims Court, provincial offences, 6 months maximum criminal court matters and federal and provincial tribunals.  That’s it.  No more.  Everything else is verboten.  The bylaws thus further entrench lawyers’ fixed–price justice monopoly. An example?  While permitting paralegals to negotiate motor vehicle accident claims, the bylaws ban them from cases involving “catastrophic injuries” where large fees are to be earned.

No rationale is given for preserving this lucrative turf for lawyers alone.

Lawyers’ greed trumps affordable justice when lawyers control the game and hold all the aces.   The LSUC has tried to masquerade its dictatorial control over their twenty-first century serfs. In reality, paralegals have been disenfranchised inasmuch as they are  “members” of the LSUC who can’t vote for benchers.    The much-touted elections of paralegals to their LSUC Paralegal Standing Committee is a joke: the Committee is only administrative.  Similarly, the LSUC’s appointment of two paralegals to Convocation where they are outnumbered by 83 to 2 is a coup d’oeil, an illusion of democracy.

The issue is not yes or no to regulation.  Of course, regulation is in the public interest.  But regulation by whom?  Regulation for what purpose?  Regulation in whose interest?  And why regulation by a competing profession?