Under “Bill 14“, a statute passed on Oct. 19, 2006, the Law Society of Upper Canada (“LSUC”) now has a Paralegal Standing Committee in place to set policy and administer a regulatory scheme that will go into effect on May 1, 2007. Five of the 13 members are paralegals and three others are lay members of the Society. (Law Times, “LSUC sets up paralegal committee,” Nov. 27, 2006; LSUC News Release) According to the Ontario Attorney General, Michael Bryant:
“The Access to Justice Act will provide for paralegal regulation in order to give consumers a choice in qualified legal services while protecting people who get legal advice from non-lawyers. For the first time in Canada’s history, paralegals will be required to receive training, carry liability insurance and report to a public body that can investigate complaints.”
A Nov. 17, 2006 press release from the Ontario AG also asserts that “Ontario consumers looking for legal services are closer to having more choice and better protection, as the provincial government moves to solidify a new system for authorizing, empowering and regulating paralegals,” and goes on to explain (“New Era Begins with Pathbreaking Paralegal Regulation”):
“Under the act, the Law Society of Upper Canada, which regulates lawyers, will now also regulate paralegals. If authorized by the Law Society, paralegals will continue to provide the services they are currently authorized to provide including representation in small claims court matters, traffic infractions and other provincial offences, and tribunals.”
The Ontario Bar is, apparently, quite pleased with its new role as regulator of legal services provided by paralegals. (see LSUC Paralegal Information Page) However, it’s difficult for consumer advocates who have watched the regulatory style of lawyers (and most other professions), and the Bar’s broad dislike of independent paralegals, to be universally sanguine about the regulatory scheme that is being established as a model in Ontario. Many questions come to mind, but the most prominent are:
- Will the Bar unjustifiably restrict the roles/tasks that can be lawfully undertaken by paralegals?
- Will regulation significantly reduce the number of paralegals, resulting in higher prices for their services and a reduction in price competition with lawyers?
- Are the many costs of self-regulation justified by documented harm to consumers or the prevention of significant harm in the future? Also, is the true objective — of the bar and of paralegal groups — based on a “capture theory” that increases the income of those regulated or by a “public interest” theory? (see “What is the Objective of Professional Licensing? Evidence from the US Market for Lawyers,” by Turin University Professor Mario Pagliero, Nov. 2004, who found that the American legal profession is regulated under the captive theory.)
- Will lawyers regulate paralegals in the often torpid fashion that they regulate themselves (see, e.g., ethicalEsq, and HALT) or with overzealousness in their crusade to protect consumers from nonlawyers? That is: Will lawyers be sleepy watchdogs or hungry foxes as they guard the paralegal henhouse?
A quick bit of research today on the topic of Bill 14 and paralegal regulation in Ontario [we really could use Canadian contributors here at shlep!] produced a number of indications that the picture may not be totally rosy for the consumer of legal services. For example:
- The Paralegal Society of Ontario, issued a “White Paper on the Licensing and Governance of Paralegals” (Sept. 21, 2005) calling for self-regulation by paralegals and very skeptical of regulation that was administered by the Law Society.
- Eileen Barnes.the president of the Association of Legal Document Agents and the Paralegal Society of Ontario, told the committee hearing on Bill 14 last September, that “The sticking point has always been the definition of ‘the practice of law, which has caused so much consternation at these hearings. To be honest, it is not a difficult task. It is only difficult when one of the parties — that is, the law society — does not want to cede any ground to paralegals and fights tooth and nail to keep paralegals out of as many areas of legal practice as possible.”
- PSO President Barnes also told the legislative hearing: “The anger that some lawyers’ groups demonstrate towards the very idea of paralegals treading on their turf is palpable. I would remind you of what Mr. Justice Cory had to say in his report:
“I would emphasize that it is of fundamental importance that paralegals be independent of both the Law Society of Upper Canada and the province of Ontario. The degree of antipathy displayed by members of legal organizations towards the work of paralegals is such that the law society should not be in a position to direct the affairs of the paralegals.”
- Randall Bocock, representing the County and District Law Presidents’ Association, told the Bill 14 Legislative Hearing that they should not use the term “paralegal” because “It may in fact likely lead to the notion in the minds of the public of an additional professional designation and a new order of professionals, which is clearly not within the intent of the legislation nor, frankly, needed for the purposes of a regime of regulation.” In addition, Bocock opined: “Notably, non-advocacy roles such as the preparation and drafting of instruments, contracts, documents, wills, separation agreements, powers of attorney and the like should not be permitted for legal service providers. Errors in these areas, as mentioned by my colleague Orm Murphy, are discoverable much later in time, are not generally susceptible to remedial court orders for rectification, and result in irreparable and irrevocable harm where errors do occur.”
- An October 2004 report, by that Ontario Bar Association, on Regulation of Paralegals states “The Professional Paralegal Association of Ontario (PPAO) refused to meet with the Law Society and hired Frederick H. Zemans to write a position paper on their behalf, arguing against regulation by the Law Society and for paralegals being permitted to do “all” solicitor’s work.”
- Despite the claims in item #5 above, the Professional Paralegal Association of Ontario was apparently so derided by other paralegal organizations, and lost so much support even within its own membership, for failing to achieve more progress in the area of “non-advocacy” tasks, that it voted itself out of existence in January 2006.
- An advocate for tenants in Toronto voiced fears that “Less paralegals representing tenants means that either more lawyers will have to take the cases or those paralegals who do qualify to represent tenants will have to increase the fees they charge (to cover Errors & Omissions and Law Society fees, etc). Bad news for tenants? Possibly…perhaps more tenants will learn to represent themselves rather than pay even more for representation. I suspect a lot of tenants will go unrepresented and the building owners will take advantage of the fact and tenants could end up paying even more in their rents for new roofs, heating boilers, etc.”
p.s. For a stateside perspective on the many issues raised between and within the legal and paralegal professions, see this news account of a Florida Bar proposal for regulating paralegals and related political maneuvering. (Daily Business Review, “The Business of Law: About Face,” April 5, 2006) Also, see the discussion of Arizona’s Legal Document Preparer certification at f/k/a.