The Empowered Paralegal

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?

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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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My post regarding a legal challenge to paralegal regulation by the Law Society in Ontario received a pingback from none other than harrykopyto.ca. Harry is challenging the legality of that regulation in the context of the regulators denial of his request to be licensed based on his “lack of good character.”

In my previous post I saw the issue in terms of the choices that have to be made in balancing the increased access to justice that can be provided by paralegals and the need to provide protection to the same public that needs that access to justice. The challenge itself posits the thought that lawyers and paralegals in Ontario are competitors and this attempt to regulate paralegals is an attempt by the Law Society to prevent that compeition. Unfortunately, it does not seem that this challenge will lead to any real discussion of those issues in the near future, if at all.

Here’s on harrykopyto.ca describes the issues involved in this proceeding:

You know the background. Toronto paralegal Harry Kopyto is on trial facing professional capital punishment. The charge? Lacking “good character” to work as a paralegal. The real reason for the charge? Speaking truth to power for 35 years in Ontario courtrooms.

The proceeding is presently mired in what might be characterized as a discovery dispute. The hearing on that issue was scheduled for April 6 and 7, but has been postponed.

I will continue to follow this proceeding for whatever insight it can give to the regulation/licensing issue, but it does look as though real insight will most likely come from another source.

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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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As I wandered somewhat aimlessly through the Paralegal Society of Ontario’s website, my attention was caught by a link for the “Civility Forum Tour.”  This was of interest to a great degree because of my recent post regarding civility on paralegal discussion forums. Clicking the link,  I was brought to this notice:

Richard Lammers, V.P. Paralegal Society of Ontario attended the Civility Forum  held in Windsor Ontario on December 8, 2009.

” The forum was well attended and very informative. Paralegals will benefit  from this session. I urge each Paralegal to make best efforts to attend the forum when it hits your area.”

The forum discusses not only the importance of civility in our practice but the public’s perception on civility within the legal practice. If we recall from our last conference in Kingston Ontario, Associate Chief Justice Cunningham made reference to the importance of civility.

If you are attending, the PSO suggests you dress as you would appear before the Court.  Brochure hand out material will be supplied to those registered to attend the forums.

Now quite intrigued, I followed through to find that the forums are presented by the Law Society which regulates both lawyers and paralegals in Ontario. Here’s what they have to say on a page entitled “Civility Challenge“:

The mandate of the Law Society is to regulate lawyers and paralegals in the public interest. Civility and professionalism on the part of lawyers and paralegals in their dealings with the courts, their clients and each other are essential to the effective administration of justice. Because of this, the Law Society is committed to ensuring that lawyers and paralegals conduct themselves with the highest standards of civility and professionalism in accordance with the Rules of Professional Conduct and Paralegal Rules of Conduct.

Concerns that complaints relating to professionalism and incivility are on the rise have led the Law Society to embark on a number of initiatives designed to raise awareness of the issue and to promote higher standards of behaviour.

While this statement suggests that professionalism and incivility are two different things, further investigation revealed the Law Society’s perspective that civility is a cornerstone of professionalism:

Lawyers [and paralegals] have a responsibility, as outlined in the of Professional Conduct, reputation of the legal profession and to assist in the advancement of its goals, organizations, and institutions.”

Any incivility shown by lawyers diminishes the public’s respect for the court and the administration of justice, and can destroy the reputation of the lawyer and the profession.

With the loss of respect comes a loss of trust. When the public loses trust in lawyers and in the profession, access to justice is threatened.

The full Law Society paper on this issue is here.
While not yet ready to fully endorse the system of paralegal regulation in Ontario, I do endorse this perspective on civility and the Civility Forum Tour.  While the need may be somewhat less here than in Ontario because licensed paralegal can directly represent clients, while all United States paralegals must work under the supervision of an attorney, I am hopeful that the topic will be on the agenda of paralegal CLE seminars and professional association conferences here in the states.

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The Law Society of Upper Canada regulates the lawyers and paralegals of Ontario and is charge with ensuring that all licensed paralegals in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services provided. One recent case that I may discuss more fully in another post discusses the character of an applicant for a paralegal license because of “the good character requirements set out in s. 27(2) of the Law Society Act and By-Law 4, s. 8(1) 3.”

In The Empowered Paralegal I discuss character traits such as trustworthiness, reliability, work ethic, and honesty as they relate to professionalism. The decision of the Law Society panel in the matter of Nicolino Alessandro provides a formal definition of “good character” and the role it plays in the decision on whether to grant a license which I reprint here for your consideration as professionals:

Good character has been defined as follows.

[33] In Re Spicer, supra, at p.5-6, para. 15 (Tab 2, Book of Authorities):

Convocation accepts that character is that combination of qualities or features distinguishing one person from another. Good character connotes moral or ethical strength, distinguishable as an amalgam of virtuous attributes or traits which undoubtedly include, among others, integrity, candour, empathy, and honesty.

[34] In the article by Mary F. Southin, Q.C., What is “Good Character”, (1987) 35 The Advocate 129 (Tab 3, Book of Authorities) she states at p. 129:

Character within the Act comprises in my opinion at least these qualities:

1. An appreciation of the difference between right and wrong;

2. The moral fibre to do that which is right, no matter how uncomfortable the doing may be and not to do that which is wrong no matter what the consequences may be to oneself;

3. A belief that the law at least so far as it forbids things which are malum in se must be upheld and the courage to see that it is upheld.

[35] In Re Preya, supra, at p. 6:

The definition of good character is set out in previous decisions of Law Society admissions panels, and is an evolving definition. The definition is not exhaustive, and refers to a bundle of attributes which, when taken together, amount to good character:

Character is that combination of qualities or features distinguishing one person from another. Good character connotes moral or ethical strength, distinguishable as an amalgam of virtuous attributes or traits which would include, among others, integrity, candour, empathy and honesty.

[36] The purpose of the good character requirement is enunciated in Gavin McKenzie’s text, Lawyers and Ethics: Professional Responsibility and Discipline, Scarborough, Ont.: Carswell, 1993, at para. 23.2 (Tab 4, Book of Authorities):

The purposes of the good character requirement are the same as the purposes of professional discipline: to protect the public, to maintain high ethical standards, to maintain public confidence in the legal profession and its ability to regulate itself, and to deal fairly with persons whose livelihood and reputation are affected.

This, of course, does not definitively answer the question of how the purposes of a good character requirement are best met, i.e., by separate licensing requirements for paralegals or continuation of the present system of requiring attorney supervision. However, it does clarify what the issues are. It is one of the many ways in which it is helpful for those of us in the United States to watch and learn from the Ontario experiment.

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I continue to watch developments in Ontario with great interest. There paralegals are licensed and thus subject to regulation by the “Law Society.” There have been two developments recently with regard to the Law Society. One, the upcoming election by paralegals members of the five of their colleagues to join the Paralegal Standing Committee of the Law Society of Upper Canada was the subject of a very good post on Paralegal Gateway in November.  This is part of an overall effort to reform and modernize the Law Society as described in this article from marketwire.com.

The second relates to the appointment of a new Complaints Resolution Commissioner by the Law Society.  While this relates to my recent post on a disclipinary proceeding in Ontario, I am more interested in it as a follow-up to the discussion in my post and the comments to that post, “Help and Hurting Each Other,” in terms of the purpose of regulating the legal profession. The article on the appointment of the new Commissioner, also from marketwire.com, speaks entirely in terms of “public interest:”

The Complaints Resolution Commissioner plays a vital role in the Law Society’s complaints resolution process. In cases where a complaint against a lawyer or paralegal has been closed and the complainant is unsatisfied with this result, he or she can apply to the Commissioner to review the case. The Commissioner will review the file to ensure that the complaint was handled appropriately and the results were reasonable. This will often involve a face-to-face meeting with complainants, and the Commissioner also has the authority to provide alternative dispute resolution between lawyers or paralegals and their clients for issues that do not require a regulatory response.

The Law Society of Upper Canada regulates the lawyers and paralegals of Ontario in the public interest. The Law Society ensures that every individual who practises law or provides legal services in Ontario meets standards of learning, professional competence and professional conduct that are appropriate for the legal services provided.

The Law Society has a duty to protect the public interest, to maintain and advance the cause of justice and the rule of law, to facilitate access to justice for the people of Ontario, and to act in a timely, open and efficient manner.

That being said, as noted by William P. Statsky in his book Essentials of Paralegalism,  there are two main reasons an ocupation may want to be licensed by the government: to protect the public and to enhance the occupation’s own image.  He notes that this applies to all occupations that require knowledge and skills that most citizens do not have including electricians, brokers and nurse. He goes on to say:

A license serves as a measure of assurance (altough not a guarantee) that license holders are competent to perform their speicalized and often tenchincal servies. In addition to a desire to protect the public, an occupation may want licensing as a way enhance its self-image, credibility, a nd professionalism. The occupation often views licensing as a way to prevent less-educated and less-skilled individuals from working in the field.

As previously noted it may also help prevent the less-scrupulous individuals from working in the field.

This remains a difficult topic and many questions remain. While licensing may be the answer, might the same be accomplished through self-reguation by the profession itself? Who is in the best position to determine the criteria for regulation? And many more.

The point is that the basis for a profession to seek and/or engage in some sort of regulation of its members may be found not only in the public interest, but in the interest of the profession and each professional individual member of that profession. This is especially true if, as in Ontario, it results in a greater role for paralegals within the legal system and greater access to justice by the public.

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