Letter in Support of Paralegals

The below letter, written by NSRLP Founder Dr. Julie Macfarlane, expresses NSRLP’s support for the Family Legal Service Provider proposal, which is going to the Law Society of Ontario’s Convocation for a vote on February 24, 2022. For background on this issue, please see our previous post, The Law Society of Ontario and Paralegals: A Timeline.
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Robert Burd,
Chair, Paralegal Standing Committee,
Law Society of Ontario

February 17, 2022

Dear Robert,

I am writing to provide the strong support of the National Self-Represented Litigants Project (NSRLP) for the Family Legal Service Provider proposal which is going to Convocation for a vote on February 24. The NSRLP has long advocated for the extension of some family law work to qualified paralegals, and our concerns for the unmet needs of litigants have only increased over time.

I shall use this letter to set out and to address the major arguments that I hear being raised against the FLSP proposal (and indeed the 2016 Bonkalo Report proposal voted down by Convocation in 2017).

1. Changes in paralegal scope will not solve the crisis in unmet legal needs. The crisis in access to justice that has produced record numbers of self-represented litigants in family court is well-documented. More than half of family litigants across Canada now come to court alone, and that figure is closer to 80% in urban centres. This is an astonishing set of numbers, and lack of access to expert legal help produces misery, chaos, and cascading social and economic impacts for those going through family breakdown and transition. Moreover, these figures must be seen in the light of now numerous and consistent research studies (for example in Canada; and in the US) which show that the major reason for self-representation is the unaffordability of legal services. Family Legal Aid has shrunk during the same period that the number of self-represented family litigants have grown. Those who are now ineligible for public assistance and at the same time unable to afford a family lawyer have become most of us (a 2011 government report in England and Wales describes this group as “comprising the larger part of the population”).

   In summary, the situation for those without access to expert assistance in family matters is now desperate, and action must finally be taken. Obviously, we cannot have clear data to show the impact of the FLSP proposal until we implement the proposal and monitor it. Expanding paralegal practice is not the solution to the access to justice crisis, but it will bring some measure of relief to those who cannot afford counsel to help them.

2. Paralegals have neither the capacity nor the qualifications to do family work. The most frequently advanced argument against permitting paralegals to handle some family matters is that only lawyers could possibly have the skills to do this work. We beg to differ. It is common practice already for law office “para-professionals” to assist litigants who are represented by counsel with many elements of the process, including completing forms (which self-represented litigants find extremely difficult, often making mistakes which cost the courts time), and reviewing other drafting. Many lawyers candidly acknowledge that there are routine aspects of the divorce process which para-professionals are more familiar with than they are. Moreover, our feedback from self-represented litigants (both in the report provided by NSRLP to the LSO for the consultation on the FLSP proposal, and in our regular data collection with self-represented litigants) shows that paralegals in other areas of work are seen positively and many litigants report excellent experiences with them (this was also evident in the 2017 petition organized by NSRLP before the Bonkalo proposals were voted down). Interestingly, one of the themes we have seen is a belief that paralegals are easier to relate to, less intimidating, and more empathetic to the “ordinary person” than lawyers sometimes are. Other self-represented litigants describe working very successfully on some aspects of their file with office para-professionals (as above). In fact, it often appears disingenuous to the primarily self-represented that family lawyers should insist that only they can do this work, when in fact they are aware that some elements are already being handled by others.

   The FLSP proposal goes further, of course, and would allow independent paralegal service only in the less contentious areas of family law. For this the FLSP proposal would require additional training of up to 9 months. Given the paucity of family law training at law schools (where most family law courses are now taught by adjuncts, and there is rarely more than one course in the family area), and the fact that law students are not required to take any family law course, this proposed training, alongside rigorous testing, seems more than enough to ensure paralegal competence. Furthermore, the usual LSO complaints process would of course be available for any dissatisfaction.

3. Paralegals will not be any less expensive than lawyers. Research suggests that paralegal hourly rates are in the region of $150-200 an hour for current permitted practice, whereas a lawyer with a similar experience would typically charge $450-500. This differential reflects differences in education and training, but it is undeniably large. There have been heated arguments, based on speculation, that if paralegals are to be permitted some scope of family law practice, they will (a) raise their rates, and (b) make such a mess that it will cost more in the long term than consulting a lawyer. Again, let’s be clear: this is speculation. It does seem likely that the licensing fee charged by the LSO and ensuing insurance would have some impact on paralegal fees. However, the idea that they would be so hopeless that clients would need to pay all over for a “real lawyer” is without foundation and of course intended to scare away potential support for the FLSP proposal. It would appear obvious that the best practice approach would be for family lawyers to work collaboratively with the new FLSP providers, to assess when their expertise might be needed and when the paralegal is fully competent (within the restricted scope of practice that they would be permitted to undertake). This type of common-sense approach is what the public expects from a public interest regulator and its members, and I hope they will not be disappointed.
4. Paralegals will take away the work of family lawyers. This is the underlying message in the protectionism that we have seen in some parts of the Family Bar. It has a very simple answer. Paralegals will not take your work – because we already know that self-represented litigants cannot afford you. With self-representation at 50% and data showing that those without lawyers continue to search for affordable assistance (86% according to my 2013 Study), claiming that this reform will result in a client shortage for lawyers has no credible foundation.

The Law Society of Ontario is of course a public interest regulator. The pushback by the legal profession (in Ontario in 2017 and in British Columbia in 2018, for example) against the expansion of paralegal scope to include some family matters is regarded with, at best, skepticism by members of the public with whom we speak every week. At worst, the legal profession is seen as cynically exploiting its monopoly power to constrain people’s choices and paternalistically tell them, “we know what is best for you: we are.” Digital technology and access to information via the web has produced a growing dissatisfaction with the cost and quality of professional services in many areas (often explained as the “consumer empowerment” movement).

If Convocation fails to support the FLSP proposal on February 24, the consequences for the already tattered reputation of the legal profession will be dire. It may be that some believe that this doesn’t matter, because the public does not really understand what lawyers do. That argument may have worked thirty years ago, but it has long run out of steam. The profession is facing a serious problem of lack of public trust.

Over the past six years, I have heard some lawyers talking about the suggestion that paralegals can do some family law work in Ontario as, “the hill I will die on.” Please, set aside your assumptions that only family lawyers can help family clients – this is already demonstrably untrue in the experiences of some family clients.

What is most important is that the FLSP proposal is modest, measured, and thoughtful, with build-in potential for evaluation, modification, and growth. Please, give it your support.

Yours sincerely,

Dr Julie Macfarlane (C.M.)
Distinguished Professor Emerita, University of Windsor,
Founder and Director, National Self-Represented Litigants Project