The Empowered Paralegal

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 theempoweredparalegal@live.com.

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A while back I posted on a proceeding in Ottawa where an applicant was challenging The Law Society’s denial of his application for a paralegal license based on the good character assessment requirement of the licensing procedure. In that post I focused on the incompetence of the applicant based on his own filings in that proceeding. However, I ended with this:

Not surprisingly, the panel denied Alessandro’s application for a license. A bit more surprising is that an appeal panel recently issued this decision:

By Decision and Order dated November 24, 2009, the Appeal Panel ordered as follows:

The Appeal is allowed.
The Order of the Hearing Panel dated April 30, 2009 is set aside.
A new hearing before a different Hearing Panel is hereby ordered. The matter is to be expedited.

No reason is given for the decision, but based on my reading of the history of this proceeding I suspect the appeal was granted based on procedural grounds. It is quite likely the decision of the next panel will be the same, but I’ll be checking back to see the results.

Yesterday in a comment to that post we heard from Jack at torontoprosecutor.com with this update:

You are right sir! Nic Alessandro asked for an adjournment of the hearing and it was denied. The appeal was allowed on that basis only. At the new hearing, he was represented by counsel who again asked for another adjournment. That request was denied and again his bid to be licensed was denied. Nic(olino) and his brother Giovanni (Joe) Alessandro were convicted of criminal offences based on the way that they conducted their practice before licensing. For a fee of about $4,000 they guranteed people that they could get their convictions off of their driving records. In order to accomplish what they promised they forget court documents and sent them to the Ministry of Transportation. They were eventually caught, tried and convicted. If they had actually passed the good charatcer test most of us would have been shocked.

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!

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