Report to the Attorney General of Ontario

Transcription

1 Report to the Attorney General of Ontario Report of Appointee s Five-Year Review of Paralegal Regulation in Ontario Pursuant to Section 63.1 of the Law Society Act November 2012 Prepared and Respectfully Submitted by: David J. Morris, MBA

2 Ontario Ministry of the Attorney General ISBN (PDF) Queen's Printer for Ontario, 2012 Disponible en français

3 Executive Summary In the interest of striking some measure of balance between enhancing public access to justice and ensuring protection for those receiving legal advice from non-lawyers, on May 1, 2007, persons providing paralegal services in Ontario joined the province s lawyers under regulation of the Law Society of Upper Canada. Amendments to the Law Society Act that introduced paralegal regulation included the requirement that two reviews be conducted following its fifth anniversary, one by the Law Society and the other by an appointee of the Attorney General who is neither a lawyer nor paralegal. Each review was to consider the manner in which paralegals were regulated during the first five years, and the effect of regulation on paralegals and on members of the public. The Law Society delivered the report of its review to the Attorney General on June 28, This report presents the findings of the appointee review. The findings and recommendations presented in this report are based on a review of relevant documents and commentary that preceded and followed the introduction of regulation, including the Law Society s two- and five-year reviews. Additionally, submissions were solicited from paralegals, lawyers, legal organizations and members of the public. It is appropriate to view the first five years of regulation as the introduction of regulation of getting the mechanics of it firmly established. By any objective measure, the introduction has been a remarkable success. There is evident consensus in the province s legal community that regulation has elevated the reputation and image of the paralegal sector, and that the Law Society has proven to be the appropriate regulatory authority. Research commissioned by the Law Society indicates that paralegals are generally satisfied with the regulatory framework and how it was introduced. Satisfaction levels are also generally high among members of the public who have consumed paralegal services. The Law Society acknowledges that, despite its efforts to date, awareness in the general, non-consuming public has not kept pace with changes in the legal services market. In fact, in a submission to this review, a veteran lawyer described his challenges in determining the permissible scope of paralegal practice. The Paralegal Sector in a Snapshot As of mid-september 2012, there were 4,301 active paralegal licensees in the province, with another 596 inactive and former licensed practitioners. Remarkably, one-quarter of all licences issued have been issued since January 1, This leaves the sector somewhat evenly split between old hands who were licensed through introductory provisions of regulation (e.g., grandparenting ), and recent graduates of accredited community college programs. The split tilts increasingly in favour of the latter. 2 P age

4 Major areas of paralegal practice include Small Claims Court, Provincial Offences Act matters before the Ontario Court of Justice, Landlord and Tenant Board cases, and cases before administrative tribunals such as the Workplace Safety and Insurance Board. Forty per cent of paralegals who responded to a Law Society-commissioned survey are in private practice as sole practitioners. One-quarter are in private legal/paralegal practice as employees. Another 20 per cent list themselves as Otherwise employed: Other employment. The Changed Role of the Law Society As the regulator of two complementary professions, the Law Society s duty to facilitate access to justice for the people of Ontario does not simply expand upon its role as Ontario s centuriesold, self-regulating college of lawyers, it profoundly alters it. It is now incumbent upon the Law Society to drive the provision of legal services to the most accessible, appropriate level of the professions it regulates. Its challenge is in doing so without compromising professional standards or protection of the public interest. With the mechanics of paralegal regulation firmly and admirably established, the opportunity presents itself for the Law Society to more directly address the challenge inherent in its legislated duties. This observation frames my findings and the recommendations that I offer many of which are offered in support of initiatives that are already underway. Summary of Key Recommendations That exemptions to Law Society regulation for those providing legal services be minimized; That the governance structure of the Law Society be amended to reflect its requisite impartiality to the professions it regulates; That exclusionary language in the statutory environment that serves to impede the policy objectives of regulation be amended; That initiatives be undertaken to improve the standard of learning, professional competence and professional conduct of the paralegal sector, as well as public awareness of the sector; and That the scope of permissible paralegal practice remain as it is pending improvements in the standards of learning, professional competence and professional conduct of the paralegal sector. 3 P age

5 Contents 1. Requirement for this Report Methodology Background to Regulation Key Findings and Observations...10 The Paralegal Sector at Year Five...10 The Changed Role of the Law Society...13 Exemptions from Regulation...14 Law Society Governance...14 Exclusionary Language in Statutes...15 Paralegal Education and Training...16 Professional Conduct...17 Scope of Practice Conclusion Summary of Recommendations...20 Appendix A Submissions Received P age

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7 1.0 Requirement for this Report On October 19, 2006, the Province of Ontario s Access to Justice Act, 2006 received Royal Assent. In part, the legislation amended the Law Society Act so as to broaden the role of the Law Society of Upper Canada ( Law Society ) to include regulation of all legal services in the province. While the term does not appear in statute, the amendments are often characterized as the introduction of the regulation of paralegals. Amendments to the Act required the Law Society to twice review and report on regulation. Pursuant to section (2), the first review was required following the second anniversary of Royal Assent being given to the Access to Justice Act, Pursuant to section 63.1, the second review was required following the fifth anniversary of regulation coming into effect on May 1, The report of the Law Society s five-year review was delivered to the Attorney General on June 28, Section 63.1 required that an additional five-year review be conducted by an appointee of the Attorney General of Ontario who is neither a lawyer nor a paralegal. The findings of the appointee review are presented in this report. Each of the five-year reviews was to consider the manner in which paralegals in Ontario were regulated under the Law Society Act during the review period (May 1, 2007 April 30, 2012) and the effect that such regulation had on paralegals and on members of the public. The scope of the review reported upon in this document was further clarified in the Terms of Reference accompanying the reviewer s appointment by the Attorney General, the Honourable John Gerretsen: Assessment of the status of paralegal integration and regulation in Ontario. Consider the Law Society of Upper Canada s five-year report on paralegal regulation. Stakeholder feedback: analyze the perceptions and experiences of key stakeholders and the public. This should include meetings with the Law Society of Upper Canada, the Ministry of the Attorney General, the Paralegal Society of Ontario, the Ontario Bar Association and The Advocates' Society. Recommendations to the Ministry of the Attorney General and/or the Law Society of Upper Canada on options for enhancing the effectiveness of paralegal regulation in Ontario. 6 P age

8 Applicable sections of the Law Society Act follow: Reports after five years Definition 63.1 (1) In this section, review period means the period beginning on the day on which all of the amendments to this Act made by Schedule C to the Access to Justice Act, 2006 have come into force and ending on the fifth anniversary of that day. 2006, c. 21, Sched. C, s. 98. Review and report by Society (2) The Society shall, (a) review the manner in which persons who provide legal services in Ontario have been regulated under this Act during the review period and the effect that such regulation has had on those persons and on members of the public; (b) prepare a report of the review, ensuring that a portion of the report is authored by the Paralegal Standing Committee; and (c) give the report to the Attorney General for Ontario within three months after the end of the review period. 2006, c. 21, Sched. C, s. 98. Appointment by Attorney General (3) The Attorney General for Ontario shall appoint a person, other than a person who is authorized to practise law in Ontario or a person who is authorized to provide legal services in Ontario, to review the manner in which persons who provide legal services in Ontario have been regulated under this Act during the review period and the effect that such regulation has had on those persons and on members of the public. 2006, c. 21, Sched. C, s. 98. Review and report by appointee (4) The person appointed under subsection (3) shall, (a) review the manner in which persons who provide legal services in Ontario have been regulated under this Act during the review period and the effect that such regulation has had on those persons and on members of the public; and (b) prepare a report of the review and give the report to the Attorney General for Ontario within six months after the end of the review period. 2006, c. 21, Sched. C, s. 98. Application (5) This section does not require a review respecting persons who are licensed to practise law in Ontario as barristers and solicitors or persons who are permitted by the by-laws to practise law in Ontario as barristers and solicitors without a licence. 2006, c. 21, Sched. C, s P age

9 2.0 Methodology A documentation review was conducted. Primary sources included: The Task Force on Paralegal Regulation Report to Convocation, September 23, Report to the Attorney General of Ontario on the Implementation of Paralegal Regulation in Ontario, January 2009 (The Law Society s report on its two-year review of paralegal regulation). Five Year Review of Paralegal Regulation: Research Findings Final Report For the Law Society of Upper Canada, May 6, 2012, STRATCOM Strategic Communications. Report to the Attorney General of Ontario Pursuant to Section 63.1 of the Law Society Act (The Law Society s report on its five-year review of paralegal regulation). Interviews and submissions were solicited with/from paralegals, lawyers, and legal organizations. submissions were also solicited from members of the public through a posting on the Ministry of the Attorney General s website. Appendix A to this report lists interviewees and submissions that were received and considered in developing this report. 3.0 Background to Regulation In the interest of striking some form of balance between enhancing public access to justice and ensuring protection for those receiving legal advice from non-lawyers, successive Ontario governments had since at least 1990 considered the need for regulation of those offering paralegal services in the province. Key issues included the permissible scope of paralegal practice and the appropriate home of a regulatory framework. In 1990, the Ianni Task Force recommended regulation from within the Ministry of Consumer and Commercial Relations. Ten years later, Justice Peter de Carteret Cory would recommend the establishment of a publicly-funded, free-standing regulatory agency. An added sense of urgency was lent to resolving the matter in August 1999, just prior to the Cory submission, when the Ontario Court of Appeal commented in the case of R. v. Romanowicz: A person who decides to sell t-shirts on the sidewalk needs a license and is subject to government regulation. That same person can, however, without any form of government regulation, represent a person in a complicated criminal case where that person may be sentenced to up to 18 months imprisonment. Unregulated representation by agents who are not required to have any particular training or ability in complex and 8 P age

10 difficult criminal proceedings where a person s liberty and livelihood are at stake invites miscarriages of justice. Nor are de facto attempts to regulate the appearance of agents on a case-by-case basis likely to prevent miscarriages of justice. In July 2001, a working group came together in the legal community, composed of representatives from The Advocates Society, the County and District Law Presidents Association, the Law Society of Upper Canada, the Metropolitan Toronto Lawyers Association and the Ontario Bar Association, as well as the Professional Paralegal Association of Ontario, representing the Paralegal Society of Ontario, the Institute of Agents at Court and the Ontario Searchers of Record. In April 2002, the group circulated A Consultation Document on a Proposed Regulatory Framework that outlined agreement on key principles of a proposed framework. To some extent, the proposed framework languished until early 2004 when the then-attorney General, the Honourable Michael Bryant, asked the Law Society of Upper Canada to consider taking on responsibility for paralegal regulation. The Law Society established a task force under the chairpersonship of Bencher William Simpson. Using the earlier working group s proposed framework as a starting point and after a summer of consultation with the province s legal community and the general public the task force tabled a report containing 22 recommendations. The recommendations outlined a regulatory framework and scope of practice. The Task Force on Paralegal Regulation Report to Convocation was adopted by the Law Society on September 23, Upon reviewing the task force report, the government introduced Bill 14. The bill expanded the role of the Law Society to include regulation of paralegals in fact, to include regulation of all legal services in the province. The bill was given Third Reading and, on October 19, 2006, the Access to Justice Act, 2006, containing amendments to the Law Society Act, received Royal Assent. The Access to Justice Act, 2006, gave the Law Society six months in which to put in place the foundations of the paralegal regulatory framework. On May 1, 2007, the Law Society had put in place a registration process, application forms, insurance requirements and rules of professional conduct. During that same period, work was undertaken to develop a licensing examination and fee structure. 9 P age

11 4.0 Key Findings and Observations The Paralegal Sector at Year Five By any reasonable measure, the first five years of paralegal regulation should be viewed as the introduction of regulation of getting the mechanics of regulation firmly established. And by any objective measure, the introduction has been an unqualified success. This achievement is made that much more remarkable for: The cultural shift that one anticipates was required within the venerable Law Society of Upper Canada as it broadened its regulatory role to include paralegals; The six-month timeframe that was available to develop and implement the foundational components of regulation (e.g. the registration process, insurance requirements, professional development programs, etc.); The processing of 2,230 paralegals under grandparent provisions of regulation more than double the highest estimates of the number of paralegals practicing prior to regulation; Regulation having been introduced through a self-funding model. As the bastion of Ontario s legal community for over two centuries in fact, since prior to Ontario becoming Ontario the Law Society of Upper Canada assumed the role of regulator of paralegals as well as lawyers amid concern in some circles that the regulation of one profession by another, particularly one with potentially competing interests, constituted a conflict of interest. The Law Society s early adoption of the guiding principle that the regulation of paralegals should mirror the regulation of lawyers wherever possible, has not only returned operational efficiencies, it has chiefly muted such criticism. The contentious issue of scope of practice was sidestepped astutely, I suggest for the purposes of introducing regulation by allowing the boundaries of permissible practice to reflect the scope already permitted to agents in legislation and case law. As of mid-september 2012, there were 4,301 active paralegal licensees in the province, with another 596 inactive and former licensed practitioners. Remarkably, one-quarter of all licences issued have been issued since January 1, This leaves the sector somewhat evenly split between old hands who were licensed through introductory provisions of regulation (e.g., grandparenting ), and recent graduates of accredited community college programs. The split tilts increasingly in favour of the latter. 10 P age

12 Major areas of paralegal practice include Small Claims Court, Provincial Offences Act matters before the Ontario Court of Justice, Landlord and Tenant Board cases, and cases before administrative tribunals such as the Workplace Safety and Insurance Board. Forty per cent of paralegals who responded to a Law Society-commissioned survey are in private practice as sole practitioners. One-quarter are in private legal/paralegal practice as employees. Another 20 per cent list themselves as Otherwise employed: Other employment. Areas of practice most frequently cited by survey respondents were: Small Claims Court Ontario Court of Justice (Provincial Offences Act) Landlord and Tenant Board Workplace Safety and Insurance Board Other major areas of practice Workplace Safety and Insurance Appeals Tribunal Other Tribunals Summary Conviction Court (Criminal Code) Financial Services Commission Human Rights Tribunal Not currently practicing 43 per cent 37 per cent 27 per cent 18 per cent 18 per cent 15 per cent 14 per cent 13 per cent 12 per cent 8 per cent 5 per cent When asked to describe the nature of their practice, respondents reported: In private practice: Sole practitioner In private practice: Employee in a legal/paralegal practice Otherwise employed: Other employment Not employed in Ontario: Unemployed at this time Otherwise employed: Government In private practice: Partner In private practice: Associate Otherwise employed: Education Not employed in Ontario: Retired Not employed in Ontario: Reside outside Ontario 40 per cent 26 per cent 19 per cent 9 per cent 9 per cent 4 per cent 4 per cent 3 per cent 2 per cent 1 per cent Licensing examinations are available three times annually. In addition to having passed the examination, licensing candidates must be of good character a standard that is consistent for lawyers and paralegals. No one who meets the other licensing requirements can be refused a licence on the basis of good character without a hearing. Forty-five cases were referred to hearing during the grandparenting and transitional processes of regulation introduction. In 22 cases, a licence was denied. 11 P age

13 Licensed paralegals are subject to much the same regulatory framework as lawyers. This includes rules of professional conduct and requirements with respect to trust accounts, insurance, continuing professional development, payment into a compensation fund, and a complaints system that includes investigative and disciplinary processes. Paralegals are also required to file an annual report that includes demographic data, areas of legal services provided, trust accounts and other financial information, and an enumeration of their continuing professional development activities. Law Society resources that are available to paralegals include continuing professional development programs, a practice management helpline, and mentoring services. The Law Society has implemented a practice audit program that provides paralegals with practical advice to improve their practices. A quick review of professional fees in other sectors supports the Law Society s position that paralegals annual fees paid to the Law Society compare favourably with other sectors. The fee structure fully funded the introduction of regulation. Paralegals are integrated into the Law Society s governance structure through the Paralegal Standing Committee, established under the Law Society Act, consisting of five elected paralegals, five elected lawyer benchers, and three lay benchers. Research commissioned by the Law Society, which is presented comprehensively in the report of its five-year review the veracity of which I find no reason to challenge indicates that threequarters of surveyed paralegals view the Law Society as the appropriate regulatory agency, while only nine per cent do not. The remainder is unsure of the alternative. Submissions to this review, even those that raised concerns with aspects of regulation, suggest that the Law Society is universally viewed as the appropriate regulatory body within the broader legal community. The Law Society research, supported by key stakeholder submissions to this review and to the Law Society s five-year review, indicates generally high rates of satisfaction across multiple dimensions of regulation within the paralegal sector. Surveyed members of the public who have consumed paralegal services report similarly solid levels of satisfaction with the services received. The Law Society acknowledges, however, that awareness in the non-consuming public has not kept pace with changes in the legal services sector. Submissions to this review, including one in which a veteran lawyer describes his challenge in determining the permissible scope of paralegal practice, suggests that awareness may be low, even within the legal community. 12 P age

14 The Changed Role of the Law Society Sections 4.1 and 4.2 of the Law Society Act follow: Function of the Society 4.1 It is a function of the Society to ensure that, (a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and (b) the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario. 2006, c. 21, Sched. C, s. 7. Principles to be applied by the Society 4.2 In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles: 1. The Society has a duty to maintain and advance the cause of justice and the rule of law. 2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario. 3. The Society has a duty to protect the public interest. 4. The Society has a duty to act in a timely, open and efficient manner. 5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. 2006, c. 21, Sched. C, s. 7. As the regulator of two complementary professions, the duty expressed in section 4.2 (2) of the Act to facilitate access to justice for the people of Ontario does not simply expand upon the role of the Law Society as Ontario s centuries-old, self-regulating college of lawyers, it profoundly alters it. It is now incumbent upon the Law Society to drive the provision of legal services to the most accessible, appropriate level of the professions it regulates. Its challenge is in doing so without compromising its function as defined in section 4.1 or its duty to protect the public interest as defined in section 4.2 (3). With the mechanics of paralegal regulation firmly and admirably established, the opportunity presents itself for the Law Society to perhaps more directly address the challenge inherent in its legislated duties. This observation frames my findings and the recommendations that I offer many of which are offered in support of initiatives that are already underway. 13 P age

15 Exemptions from Regulation Subsection 1 (8) of the amended Law Society Act excludes from Law Society jurisdiction individuals acting on their own behalf, other regulated professions that engage in paralegal-type of activities in their normal course of work, in-house employees preparing documents for their employer, and trade union representatives acting in the interests of their members. It also extends the authority to the Law Society to grant other exemptions through its by-laws. It has granted a number of such exemptions in sections 28 to 30 of By-Law 4 of the Law Society Act. Certain exemptions appear easily justified with respect to facilitating access to justice without compromising protection of the public interest. Law students providing services through a pro bono program, under the direct supervision of a lawyer, is a case in point. However, certain of these exemptions, such as those granted municipal prosecutors, appear difficult to justify as anything but a fee-saving allowance granted to the individuals and/or their employers. These exemptions foster a double-standard that serves to undermine the legislated functions and duties of the Law Society. Recommendation 1: That the Law Society continues to pursue elimination of exclusions to its regulation that cannot be justified in terms of facilitating access to justice and/or protection of the public interest. Law Society Governance As previously noted, paralegals are integrated into the Law Society s governance structure through the Paralegal Standing Committee, established under the Law Society Act, consisting of five elected paralegals, five elected lawyer benchers, and three lay benchers. Two of the five paralegal members may be elected as Convocation benchers. The committee chair, elected from among the paralegal members, may attend Convocation with a voice but no vote, unless s/he is also one of the two elected paralegal benchers. Approximately 44,000 licensed lawyers elect 40 voting members of Convocation a ratio of 1,100:1. Approximately 4,300 paralegals elect two voting members a ratio of 2,150:1. This under-representation of paralegals is widely acknowledged, and is attributable to the underestimation of the number of practicing paralegals at the time of the introduction of regulation. Proportionally equitable representation is not simply just from a governance perspective, it is critical in allowing the Law Society to act impartially as it drives the provision of legal services to the most accessible, appropriate level of the professions it regulates as its duty-bound obligation to facilitate access to justice requires of it. 14 P age

16 Recommendation 2: That the Law Society Act be amended to provide for proportionally equal representation of lawyers and paralegals in its governance structure. Exclusionary Language in Statutes References in certain statutes to barrister, solicitor, member of the bar, etc. that predate the introduction of paralegal regulation can serve to exclude paralegals, even when that exclusion might, in fact, impede public access to justice and/or protection of the public interest. Provision in the Barristers Act with respect to the order of precedence at the bar, for instance, could prejudice clients right to be heard if they exercise the right to be represented by a paralegal. Exclusionary language in the Legal Services Act, 1998 prevents paralegals from directly accepting Legal Aid Certificates, even in matters that fall within the permissible scope of paralegal practice. This not only constitutes an unlegislated barrier to practice, denial of client s right to legitimate representation of his/her choice could most certainly be viewed as denial of access to justice. A variant on the matter of exclusionary language has to do with provisions in the Justices of the Peace Act that provide for the Law Society to recommend to the Attorney General a shortlist of lawyers from which appointments are made to the Justices of the Peace Appointments Advisory Committee and the Justices of the Peace Review Council. Although a preponderance of paralegals represent before justices of the peace far more than lawyers, suggests one submission to this review the Act does not provide for the recommendation or appointment of paralegals to either body. It bears mention that the Law Society has indicated its support for the appointment of paralegals to the Justices of the Peace Appointments Advisory Committee. In the report of its five-year review, the Law Society identifies the following statutes that have been or are being considered for amendment. Justices of the Peace Act Commissioners for Taking Affidavits Act Notaries Act Solicitors Act Barristers Act Juries Act Other statutes identified and potentially requiring amendment o Insurance Act o Private Security and Investigative Services Act, 2005 o Legal Aid Services Act, P age

17 Recommendation 3: That language in statutes that serves to exclude paralegals, when that exclusion cannot be justified in the interest of facilitating access to justice or protecting the public interest, is amended so as to include paralegals. Paralegal Education and Training The most striking aspect of this review was the universality of criticism of paralegal education. Among the most vociferous of critics are paralegals. Criticism centres around: Absence of prerequisite education, work and life experience, and/or demonstrated aptitude (i.e. an equivalent to an LSAT) for acceptance to the accredited two-year college programs; Inattention to the basic language skills that graduates will need to work effectively as paralegals; Inattention to the substantive legal knowledge graduates will need to work competently as paralegals, particularly with respect to advocacy and the presentation of evidence; Absence of any meaningful period of apprenticeship as a condition of licensure. The current education standard provides for an Ontario high school graduate to enrol in a twoyear community college paralegal training program that includes a three-week, unpaid work placement. Ethics and practice management are the key components of the training, which, following graduation, allows candidates to write a 100-multiple-choice-question licensing examination that focuses on these same areas. A freshly-licensed paralegal is then permitted to hang out a shingle advertising Legal Services and Advice, underscored by Licensed by the Law Society of Upper Canada. The Paralegal Rules of Conduct prohibits one from practicing in areas where one is not competent, however, there may be little in the paralegal s education, work or life experience that alerts him/her to his/her incompetency. It is telling that 70 per cent of paralegals responding to a survey commissioned by the Law Society as part of its five-year review indicated they were satisfied that their college program was adequate preparation for the licensing examination. Only half of the respondents were satisfied and 26 per cent were dissatisfied that their college programs adequately prepared them to practice as paralegals. We are, as it is said in pedagogical circles, teaching to the test. I quote from an external assessment report of the Paralegal Education Diploma program at Humber College Institute of Technology and Advanced Learning, which, submissions to this 16 P age

18 review suggest, is one of the more highly regarded in the province. The report was written by Small Claims Court Justice Pamela Thompson and paralegal Gary Parker: No other professional programme encourages twenty-year-olds to start a business on their own where the future of the client can be impacted financially (as with courts and tribunals) or socially (as with criminal & POA courts).[we] have serious concerns about the maturity of paralegal graduates from colleges and private schools. We are also troubled by the poor ability in English of paralegals who must navigate a system where spoken and written language is so important. In contrast to paralegal training, a freshly-licensed lawyer will generally have completed an undergraduate degree; three years of law school, during which s/he may have had the opportunity to intern over summer months with a law firm; and a ten-month articling period under the supervision of a lawyer, during which s/he is prohibited from providing the legal advice a paralegal is permitted to offer after two years of community college. This will be topped off with comprehensive, if not grueling, licensing examinations. Recommendation 4: That the Law Society undertakes a comprehensive review of the paralegal training and examination regime, beginning with a re-assessment of the competency profile that is appropriate for the legal services that are permissibly offered by newly-licensed sole practitioners. Recommendation 5: That the Law Society considers implementation of sub-classes of paralegal licences and/or other forms of accreditation to which, following specialized and substantive training, is attached the right to practice in specific areas of law (e.g. Small Claims Court). Professional Conduct The second most striking aspect of this review was the near-universal criticism of professional conduct within the paralegal sector, particularly with respect to unethical advertising practices. Again, paralegals are among the most vociferous of critics. Criticism revolves around: Paralegals advertising legal services they are prohibited from offering (and in some cases, then charging fees to refer unwary clients to duty counsel); Paralegals and paralegal offices advertising themselves as lawyers and law offices, particularly in languages other than English and French; Paralegals using business names and advertising campaigns that strain, if not violate, ethics with respect to the advertising of contingency fees. 17 P age

19 The introduction of paralegal regulation was hailed by the then-attorney General of Ontario Michael Bryant as the birth of a new profession. As the Law Society notes in its five-year review: In spite of extensive communications work by the Law Society, public awareness has not kept pace with changes in the legal services market, particularly with respect to awareness of the distinction between services provided by lawyers and services provided by paralegals. In such an environment, a complaints-based disciplinary system inappropriately shifts responsibility for protection of the public interest to an ill-equipped public. Beyond the risk to the public, the opportunity is lost to instill in the fledgling sector the culture of professionalism that could foster self-policing. Recommendation 6: That the Law Society undertakes a public education program that raises awareness of the legal services options available to Ontarians and the protection offered its consumers. Recommendation 7: That the Law Society allocates the necessary resources to actively enforce within the paralegal sector adherence to its standard of professional conduct. Recommendation 8: That paralegal licensees of the Law Society are required to include a Law Society-authorized description of their licence class (e.g. Paralegal ) and/or subclass in all marketing and communications materials. Recommendation 9: That paralegals are required at their first meeting with a client to obtain and file on record the client s acknowledgement of disclosure of the scope of the paralegal s services and legal advice. (To note: Ontario Real Estate Association s Working with a Realtor: The Agency Relationship might serve as a useful model.) Scope of Practice As noted earlier, the contentious issue of scope of practice was sidestepped for the purposes of introducing regulation by allowing the boundaries of permissible practice to reflect existing provisions for agents in legislation and case law. In 2002, the federal government amended the Criminal Code, one effect of which was the prohibition of agents from appearing on super summary matters where the maximum sentence is 18 months imprisonment. In 2008, when the maximum penalty for impaired driving increased to 18 months, paralegals lost access to a notable segment of the legal services market. There is an appetite in the paralegal sector for the business opportunities that would come with a broader scope of practice. Areas of interest most often mentioned are: 18 P age

20 Family Law preparing documents, drafting uncontested divorces Preparing simple wills Handling straight-forward real estate transactions Appearing on super summary matters Appeals of Small Claims Court decisions to Divisional Court Appearances in the Superior Court of Justice for the purpose of making or responding to an application for relief, pursuant to section 140 of the Provincial Offences Act. While it is the duty of the Law Society to facilitate access to justice, it is also its duty to protect the public interest. Calls for broadening of the scope of paralegal practice simply cannot be reconciled with the seemingly widespread criticism of the current paralegal education and training regime and standards of professional conduct. It is equally difficult to accept the seemingly pervasive rationale that deficiencies in professional standards and/or the meeting of professional standards is somehow acceptable when the potential consequence of incompetence is only six months imprisonment, rather than 18, or the forfeiture of only $25,000 rather than $25,001. Recommendation 10: That the Law Society continues to actively pursue opportunities to facilitate greater access to justice through broadening of the scope of permissible paralegal practice, but that such broadening is directly linked to the recommendations above with respect to paralegal education and training and professional conduct. Recommendation 11: Consistent with Recommendation 5 above, that the Law Society considers implementation of sub-classes of paralegal licences and/or other forms of accreditation to which, following specialized and substantive training, is attached the right to practice in specific areas of law that might currently fall outside of the scope of permissible paralegal practice. 5.0 Conclusion At year five, with the mechanics of paralegal regulation firmly and admirably established, the opportunity presents itself for the Law Society to more directly focus on the policy objectives that prompted its introduction. In the interest of facilitating access to justice and protection of the public interest: Exemptions to Law Society regulation for those providing legal services should be minimized; The governance structure of the Law Society should be amended to reflect its requisite impartiality to the professions it regulates; 19 P age

21 Exclusionary language in the statutory environment that serves to unnecessarily impede access to justice should be amended; Initiatives should be undertaken to improve the standard of learning, professional competence and professional conduct of the paralegal sector, as well as public awareness of the sector; and Opportunities should continue to be sought to broaden the scope of paralegal practice, but in lock-step with improvements in the standards of learning, professional competence and professional conduct of the paralegal sector. 6.0 Summary of Recommendations Recommendation 1: That the Law Society continues to pursue elimination of exclusions to its regulation that cannot be justified in terms of facilitating access to justice and/or protection of the public interest. Recommendation 2: That the Law Society Act be amended to provide for proportionally equal representation of lawyers and paralegals in its governance structure. Recommendation 3: That language in statutes that serves to exclude paralegals, when that exclusion cannot be justified in the interest of facilitating access to justice or protecting the public interest, is amended so as to include paralegals. Recommendation 4: That the Law Society undertakes a comprehensive review of the paralegal training and examination regime, beginning with a re-assessment of the competency profile that is appropriate for the legal services that are permissibly offered by newly-licensed sole practitioners. Recommendation 5: That the Law Society considers implementation of sub-classes of paralegal licences and/or other forms of accreditation to which, following specialized and substantive training, is attached the right to practice in specific areas of law (e.g. Small Claims Court). Recommendation 6: That the Law Society undertakes a public education program that raises awareness of the legal services options available to Ontarians and the protection offered its consumers. Recommendation 7: That the Law Society allocates the necessary resources to actively enforce within the paralegal sector adherence to its standard of professional conduct. Recommendation 8: That paralegal licensees of the Law Society are required to include a Law Society-authorized description of their licence class (e.g. Paralegal ) and/or subclass in all marketing and communications materials. 20 P age

22 Recommendation 9: That paralegals are required at their first meeting with a client to obtain and file on record the client s acknowledgement of disclosure of the scope of the paralegal s services and legal advice. (To note: Ontario Real Estate Association s Working with a Realtor: The Agency Relationship might serve as a useful model.) Recommendation 10: That the Law Society continues to actively pursue opportunities to facilitate greater access to justice through broadening of the scope of permissible paralegal practice, but that such broadening is directly linked to the recommendations above with respect to paralegal education, work experience, and professional conduct. Recommendation 11: Consistent with Recommendation 5 above, that the Law Society considers implementation of sub-classes of paralegal licences and/or other forms of accreditation to which, following specialized and substantive training, is attached the right to practice in specific areas of law that might currently fall outside of the scope of permissible paralegal practice. 21 P age

23 Appendix A Submissions Received Groups and Organizations The Advocates Society County and District Law Presidents Association Criminal Lawyers Association Law Society of Upper Canada* LawPRO Legal Aid Ontario Licensed Paralegals Association of Ontario Office of the Chief Justice, Ontario Court of Justice* Office of the Fairness Commissioner Ontario Bar Association Ontario Society of Collection Agents Ontario Trial Lawyers Association Paralegal Society of Ontario Paralegal Standing Committee, Law Society of Upper Canada* Peel Law Association Toronto Lawyers Association Workplace Safety and Insurance Appeals Tribunal Individuals Mark Brown Angela L. Browne Donna Chaplow Paul Duarte Charles Foster Lee-Anne Gadd William L. Grimmett Henry Lowi Dan McIntyre Stephen Parker Michael Pawlowkski Oleksandr Pichugin Ronald Rybowski Pamela Thomson & Gary Parker John Tory Shawn Weston Marshall Yarmus Anonymous * These groups were consulted but did not provide written submissions 22 P age