Legal Assistant Management

www.theipma.org IPMA POSITION PAPER

POSITION PAPER ON PARALEGAL REGULATION IN CANADA

This paper will complement the first position paper published by the International Paralegal Management Association (IPMA) on paralegal regulation. In view of the rapid growth of the Canadian membership during the past decade and diverging tendencies in Canada and the United States, it is considered necessary to discuss the potential effects of regulation on the IPMA’s Canadian members in a separate paper.

Since the IPMA was founded in 1984, its Canadian membership has grown to more than 901 members of a total membership of some 600 members. In Canada, the IPMA’s membership is comprised of regular and associate members who are managers or supervisors of paralegals, senior paralegals employed by law firms, law departments or the government, sustaining members who supply products or services to the legal profession, and academic members. The IPMA is the primary source of information in Canada on the management of paralegals.

Paralegal managers design and administer paralegal programs, set hiring criteria for and recruit paralegals, implement and monitor ethical guidelines, develop and conduct training and continuing education programs for paralegals, administer compensation and performance evaluations, and prepare budgets for paralegal departments. By virtue of their experience and their responsibilities, IPMA members are highly qualified to address the benefits and drawbacks of regulation. In this paper the IPMA will set forth its position on regulation as it pertains to Canada.

Unlike its U.S. counterpart, the Canadian Bar Association (the “CBA”) has not adopted a standard definition of “paralegal” that applies in all provinces and territories. The definitions adhered to by most provincial and territorial law societies across Canada include most, if not all, of the provisions contained in the definition of a “Law Clerk" which is the designation applied to paralegals by the Law Society of Upper Canada (the “LSUC”) in Ontario, the province which employs the largest number of paralegals in Canada:

1 As of February 28, 2009.

April 2010 ©2010 International Paralegal Management Association Page 1 “Law Clerk means a person qualified through education, training or work experience, who is employed or retained by a lawyer, law office, governmental agency or other entity in a capacity or function which involves the performance, under the ultimate direction and guidance of a lawyer, of duties of an administrative or managerial nature, and/or of specifically-delegated substantive legal work which requires a sufficient knowledge of legal concepts that in the absence of a law clerk the lawyer would perform.”2.

The LSUC’s definition of a paralegal varies significantly from that of the American Bar Association (ABA)3 in that a paralegal may perform “administrative” and “managerial” duties in addition to legal work delegated by a lawyer with the consent of the LSUC. Accordingly, a general discussion of the impact of regulation on paralegals in Canada relates to paralegal managers directly.

The regulatory debate revolving around traditional paralegals supervised by lawyers versus non- traditional paralegals such as legal document technicians, process servers, search and registration agents, title searchers and conveyancers who provide services directly to the public has not received much attention in Canada. The scope of permitted activities of non-traditional paralegals who provide legal services to the public has most recently come up for review in conjunction with the introduction in Ontario of a regulatory framework governing non-traditional paralegals working in advocacy who, since 2006, have been permitted to carry on business as sole proprietors, professional corporations or in limited liability partnerships subject to adherence to licensing requirements4; however, in most other provinces law societies have stated that the number of complaints against non-traditional paralegals has not been high enough to provoke debates on regulation.

In Canada, IPMA voting members typically supervise or manage traditional paralegals. Traditional paralegals working under the supervision of lawyers are in fact regulated by the statutes and codes of conduct governing lawyers. Whether employed in law firms, corporations or government, paralegal managers lead departments of paralegals and non-lawyers who work under the supervision of lawyers. Strong arguments have been made in favour of licensing non- lawyer direct service providers to ensure their competency and accountability to the public; however, the IPMA takes the view that mandatory licensing of traditional paralegals will not achieve that effect. Organizations employing paralegal managers who are responsible for inter alia enforcing mandatory supervision by lawyers already afford an additional layer of protection to the public despite the absence of regulation.

2 This definition appears on the website of the Institute of Law Clerks of Ontario (the “ILCO”), a not-for-profit association formed in Ontario in 1968. The title “Law Clerk” was approved for use by the ILCO by the LSUC itself. The LSUC prohibits use of the designation “Paralegal” in Ontario except by licensed non-traditional paralegals who are regulated by the LSUC. The ILCO has more than 1,600 members. The ILCO grants non-voting memberships to inter alia students enrolled in paralegal programs as well as to paralegals working outside of Ontario who otherwise fulfill the requirements for non-voting membership. 3 The ABA definition set out in the IPMA’s position paper on regulation from the U.S. perspective is as follows: “A legal assistant or paralegal is a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible. (ABA House of Delegates, 1997)” 4 The Province of Ontario, Canada is in fact the first jurisdiction in North America to license non-traditional paralegals. The first licenses were issued in April and May, 2008. The practice of the licensees is limited to advocacy and representation in court within parameters defined by legislation. Licensees may engage clients directly, without supervision, and are required to inter alia maintain professional liability insurance coverage and pay annual fees, mirroring the regulatory regime for lawyers in Ontario. The LSUC does not foresee licensing of non-lawyers in other practice areas.

April 2010 ©2010 International Paralegal Management Association Page 2 Generally, provincial law societies have adopted the view that regulation of traditional paralegals is not necessary. The exception is the Law Society of British Columbia (the “LSBC”) which as far back as 19905 had determined that the LSBC should develop a certification regime for legal assistants (as traditional paralegals were, and still are, commonly designated in British Columbia); however, at last report the LSBC had abandoned its review of certification, to focus on broader matters relating generally to the delivery of legal services. This broader review may in time revive the LSBC’s review of the practice of legal assistants. The Quebec Bar Association, on the other hand, continues to encourage the integration of paralegal services into the services offered by law firms to avoid problems arising from a lack of lawyer supervision, as evidenced in its reports6. In any event, with the exception of Ontario, provincial law societies lack authority to regulate paralegals unless statutory amendments conferring regulatory authority are enacted7.

Paralegal responsibilities evolved significantly across Canada during the post-recession period after 1990, as the importance of the role played by paralegals in the delivery of cost effective legal services became evident and widely acknowledged. Paralegal managers have been instrumental in the expansion of paralegal responsibilities by promoting actively innovative and effective utilization of traditional paralegals. Progress continues to be made in these areas. Paralegal managers can foster an environment in which professional development opportunities for paralegals who provide essential services to clients under the supervision of lawyers can flourish. The IPMA supports the expansion of traditional paralegal roles so long as paralegal activities are consistent with the CBA’s guidelines and policies, as well as with provincial law societies’ ethical guidelines, policies and standards.

5 “Benchers Seek Legislation for Certification Proposal,” Benchers’ Bulletin, 1990, No. 2, March [LSBC]. 6 See, e.g., Rapport du comité du Barreau du Québec sur les techniciens juridiques, April 1992. 7 When certification of legal assistants was first proposed in B.C. the LSBC elected to amend its Professional Conduct Handbook rather than await statutory amendment to confer the LSBC with regulatory authority over legal assistants.