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Final Report of the Legal Services Task Team

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FINAL REPORT OF THE LEGAL SERVICES TASK TEAM For consideration by the Minister of Justice and the Benchers of Law Society of Saskatchewan August 2018 MEMBERS OF THE LEGAL SERVICE TASK TEAM: • Gerald Tegart, Q.C., Bencher and Former Deputy Minister of Justice (Co-Chair, Law Society of Saskatchewan), Regina • Mary Ellen Wellsch, Q.C., Former Senior Crown Counsel (Co-Chair, Ministry of Justice), Regina • Joy Dobson, MD and Former Senior Medical Officer and Vice-President of Medicine, Regina Qu’Appelle Health Region, Emerald Park • Sandi Kerger, Legal Assistant/Paralegal and Instructor of Legal Administrative Assistant and Legal Assistant (Paralegal) Programs, Saskatoon Business College, Saskatoon • Darren Kraushaar, Lawyer and Member of Board of Governors of the Saskatchewan Trial Lawyers Association, Regina • Laura Lacoursiere, FCPA, FCMA (non-practicing) and Former Director of Administration, Legal Aid Saskatchewan, Saskatoon • Beverley Poitras, Director of Justice, Restorative Justice Unit, File Hills Qu’Appelle Tribal Council, Peepeekisis First Nation • Neil Robertson, Q.C., Lawyer and Former President, Canadian Bar Association, Saskatchewan Branch, Regina • Marlene L. Rodie, Former Executive Officer to the Chief Justice of Saskatchewan and Provincial Court Judicial Council, Regina • Laura Seigler Zerr, Legal Assistant/Paralegal, Qu’Appelle • Jan Whitridge, Lawyer and Executive Legal Officer and Registrar of Provincial Court of Saskatchewan, Regina The Task Team was supported by the Joint Staff Working Group of the Law Society of Saskatchewan and the Saskatchewan Ministry of Justice: • Janelle Anderson, Ministry of Justice • Barbra Bailey, Law Society of Saskatchewan • Kara-Dawn Jordan, Law Society of Saskatchewan • Stacy Muller, Ministry of Justice • Katrina Perrault, Law Society of Saskatchewan TABLE OF CONTENTS EXECUTIVE SUMMARY ................................................................................................................................ i SECTION 1: INTRODUCTION ...................................................................................................................... 1 SECTION 2: TASK TEAM MANDATE ....................................................................................................... 2 SECTION 3: RATIONALE FOR UNDERTAKING THIS WORK ......................................................... 3 3.1 Access to Justice 3.2 More Consumer Choice 3.3 Effective Regulation of Legal Services SECTION 4: LEGAL SERVICES IN SASKATCHEWAN ....................................................................... 17 4.1 Lawyers 4.2 Paralegals and Legal Assistants Working Under the Supervision of a Lawyer 4.3 Notaries Public 4.4 Aboriginal Courtworkers 4.5 Students-at-Law 4.6 Mediators and Arbitrators 4.7 Workers’ Advocates 4.8 Court Staff 4.9 Legal Service Organizations 4.10 Other Professionals 4.11 Community Service Organizations SECTION 5: LEGAL SERVICE PROVIDER EXPANSION IN OTHER JURISDICTIONS............ 28 5.1 Canada 5.1.1 Ontario 5.1.2 British Columbia 5.1.3 Nova Scotia 5.1.4 Manitoba 5.2 United States 5.2.1 Washington State 5.2.2 New York State 5.2.3 Utah 5.3 Other U.S. States 5.4 Other Jurisdictions SECTION 6: TASK TEAM PROCESS AND DELIBERATIONS .......................................................... 33 6.1 Surveys 6.1.1 The Public Survey - Summary 6.1.2 Legal Service Provider Survey – Summary 6.2 Consultations 6.2.1 The Nature of Unmet Legal Needs 6.2.2 Perceptions of Opportunity Associated with New Legal Service Providers 6.2.3 Perceptions of Risk Associated with New Legal Service Providers 6.2.4 Considerations for New Service Providers 6.3 Other Trends 6.3.1 Court Processes 6.3.2 Shifting Models of Dispute Resolution 6.3.3 Administrative Tribunals 6.3.4 Other Practice Models 6.3.5 Entity Regulation 6.3.6 Technology 6.3.7 Indigenous Legal Traditions and Reconciliation 6.3.8 Law School Education 6.3.9 Canadian Centre for Professional Legal Education (CPLED) Program 6.3.10 Collaborative and Interdisciplinary Approaches SECTION 7: CONCLUSIONS AND RECOMMENDATIONS ............................................................... 63 7.1 Underserved and Unrecognized Legal Needs 7.2 Need for Greater Clarity 7.3 Deregulation 7.4 Staff Working Under the Supervision of a Lawyer 7.5 Exceptions to the Authority to Practice Law Provision 7.6 Regulated, Unsupervised Group of Alternative Legal Service Provider with a Common Scope Of Practice 7.7 Limited License to Practice Law 7.8 Licensing System 7.9 Pilot Projects SECTION 8: SUMMARY OF TASK TEAM RECOMMENDATIONS .................................................. 90 APPENDIX A - TASK TEAM TERMS OF REFERENCE ....................................................................... 92 APPENDIX B - OVERVIEW OF EXISTING MODELS IN OTHER JURISDICTIONS ................... 98 APPENDIX C - RESULTS OF PUBLIC AND LEGAL SERVICE PROVIDER SURVEYS ............ 106 APPENDIX D - COMMON CONSULTATION QUESTIONS ................................................................ 125 APPENDIX E - RESOURCES ....................................................................................................................... 127 END NOTES ..................................................................................................................................................... 136 EXECUTIVE SUMMARY The Legal Services Task Team was appointed to examine whether service providers other than lawyers should be permitted to provide some legal services in Saskatchewan. This paper summarizes the work the Task Team undertook to examine this issue, the conclusions the Task Team reached, and the associated recommendations the Task Team makes for the future of legal services in Saskatchewan. RATIONALE The Task Team was asked to examine this issue for three reasons: 1. Access to Legal Services - While almost half of Canadians will experience a legal issue in any given three-year period, many people do not resolve their legal issue with the assistance of a lawyer due to being unable to: a) afford the cost of legal services; b) access services in rural and remote communities; c) find a lawyer willing or able to provide services in some processes or areas of law; or d) access services in one’s own language or culture. As a result, many people are representing themselves in legal processes without assistance, often with great difficulty. 2. More Consumer Choice - In Saskatchewan, only members of the Law Society (lawyers and students-at-law) are authorized to perform and deliver legal services. This has the effect of reducing competition and increasing prices by restricting the supply of legal services. While the public has an interest in ensuring that legal services are competently delivered, a law degree may not be required in order to competently deliver all legal services. In many other professions, services are provided by a range of service providers and consumers are permitted to choose the level of services and amount of associated risk they are willing to tolerate in order to acquire the services they need. 3. Effective Regulation of Legal Services - Due to a high demand for legal services, many organizations and individuals try to meet their clients’ needs by providing legal information and assistance where it is otherwise not available. Similarly, other professionals regularly provide services that could be classified as legal services. Many of these service providers do not pose a significant risk to the public and, in many cases, are even regulated by another statutory body. The Legal Profession Act, 1990 contains a broad prohibition against the unauthorized practice of law and provides very little guidance to the public, service providers, and the Law Society about what type of services related to law might be performed by those who are not lawyers. Lack of clarity can stifle innovation and limit the availability of valuable information and sources of support for the public. FINAL REPORT OF THE LEGAL SERVICES TASK TEAM // AUGUST 2018 i WITH THESE REASONS IN MIND, THE TASK TEAM WAS ASKED TO CONSIDER THE FOLLOWING: • Whether permitting service providers other than lawyers to deliver some legal services would be likely to improve the ability to access legal services for those currently unable to do so; • Whether it would be appropriate to allow the public to have greater choice in the level of service they desire and the amount of risk they are willing to accept, balancing considerations of protecting consumers from harm with providing more options and increased access to legal services; • Whether the Law Society and the Ministry of Justice might be able to provide more clarity and guidance about what types of services related to law might be performed by those who are not lawyers; and • Whether the current system represents the most effective approach to regulation of legal services and, if not, how it might be improved. THE TASK TEAM’S PROCESS To examine this issue, the Task Team engaged in a broad range of activities, which are described in further detail throughout this report. The Task Team reviewed the landscape of legal services and legal service providers in Saskatchewan, including understanding the regulatory structure and activities of lawyers, paralegals and assistants working under the supervision of lawyers, notaries public, Aboriginal Courtworkers, students-at-law, mediators and arbitrators, Workers’ Advocates, Court staff, legal service organizations, other professions, and other community service organizations. For more information, refer to section 4. The
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