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This week’s guest blog is written by Dom Bautista, who is the Executive Director of the Amici Curiae Friendship Society in British Columbia. Dom is writing in his personal capacity, and this post does not reflect the views of Amici Curiae. It is a condensed version of his submission to BC’s Alternative Legal Service Provider Task Force.
Tick Tock: A Two-Phase Blueprint to Improve A2J in BC using Paralegals
From the consultation paper published by the BC Law Society Working Group in September 2018:
“The Working Group is looking to identify a scope of practice for the provision of family law services by a new group of legal service providers who are credentialed and licensed by the Law Society.” (para 13)
There are two questions to consider: what should licensed paralegals be allowed to do, and what should the timing of these changes be?
First a cautionary note. There is no such thing as perfect justice. There is no magic bullet. The work that takes place at the front lines is messy. But absent access to lawyers and legal professionals, the public has been choosing to do it themselves or give up. They deserve better.
What are paralegals in BC currently able to do?
The only paralegal class recognized by our law society is the “designated paralegal” or DP. It is set out in the Code of Professional Conduct for British Columbia Chapter 6 and Appendix E. DPs are presently regulated indirectly by their supervising lawyers.
Supervision by lawyers is key, and the retainer remains between the client and the lawyer. The scope of DP work includes giving legal advice, and giving and receiving undertakings in some specific circumstances (all supervised by a lawyer). A third element, allowing DPs to appear in court on specific matters as permitted by their supervising lawyer, has not become operational in any meaningful sense. A pilot program in the Provincial Court and the Supreme Court of BC was shelved after two years due to lack of use.
In the intervening years I have advocated, without success, for the revival of this program. Again, the public deserves better. At least allow DPs to do what articled students (who are also supervised) are allowed to do?
Timing
In order for the benchers to ascertain which services paralegals should be allowed to provide, they need more time for public consultation. While there have been many presentations made to their own members, the Law Society has held just one public focus group. More on this in a moment.
I also recognize that the public, through the Attorney General’s office, will not accept any more delays. The passage of Bill 57, the Attorney General Statutes Amendments Act, 2018 with its new delineation of “legal professions” (plural) on November 27, 2018, provides a clear signal of what is in store for the provision of legal services in British Columbia.
There is, however, the grave issue of a lack of sufficiently trained legal professionals. There are presently not enough paralegals, even just to provide limited scope family law services to make this plan effective. Even if the benchers should approve the licensing of paralegals by late 2019 and fast track the rules for promulgation by 2020, there will be only a handful of paralegals that will be called to the bar by 2022.
To buy our law society time, the best interim course of action is for the law society to negotiate an agreement with the courts to revive the DP court appearance program, and expand the scope of work by DPs (absent a separate retainer and still operating under lawyer supervision) to include what is set out in the Task Force proposal (Schedule A).
This will buy the law society time to design a timeline that is centered around training and licensing paralegals, along with the necessary transition period. It will allow DPs to gain valuable experience, under the supervision of a lawyer. Once a new licensing model allowing trained paralegals to function in certain areas without lawyer oversight is matched by an increase in qualified paralegals to meet demand, the law society can retire the DP model.
Phase 1: Low-hanging fruit
At the Justice Hackathon last September, Chief Justice Robert Bauman encouraged participants to go for the low-hanging fruit when looking to improve access to legal services.
My immediate suggestions for the BC law society are as follows:
- Beginning with the proposal in the Task Force Report Appendix A, refine the definition of “paralegal”
- Communicate this clearly to the public (and consult: see below)
- Provide a business case to the legal profession
- Invest in developing the advocacy skills of paralegals. Operate mock judicial case conferences, chambers applications, tribunal appearances. Host non-mandatory Professional Legal Training Courses for paralegals, to be delivered in the evening or on weekends.
Phase 2: The long game
Bill 57, the Attorney General Statutes Amendments Act, 2018, has changed the protocol regarding legislative changes involving the law society and the courts. The BC government, instead of waiting for a submission from our law society, decided to legislate in anticipation of a recommendation for the licensure of paralegals. All that remains is for the law society to finish its work.
It is time to regulate all legal service providers, so that everyone plays by the same rules. The public would be thankful for the transparency and clarity, and would benefit tremendously from the simplification. This means regulating and certifying all legal service providers and effecting standards for paralegals, such as competence, character and integrity, in line with those of lawyers.
Legal professionals should include but not be limited to (in alphabetical order): advocates, immigration consultants, mediators, notaries, and paralegals.
When the BC Code is rewritten to incorporate these changes, please do away with the term “non-lawyer” and adopt the term “legal professional”.
A plea for public consultation
Finally, there is a major deficiency in the law society’s current plan. This proposed consultation has largely excluded the public.
Notwithstanding the ticking clock, it is crucial for the consultation to include the users of legal services – i.e., the public. This omission could be remedied by deploying the 25 elected benchers (governors) to host informational sessions throughout the province, in community centres and public libraries, and present their ideas and questions to the public for feedback. This approach would have multiple benefits, well beyond obtaining public input on the licensing of alternative legal service providers. It would tell the public that going forward, our law society rejects the insiders/outsiders dichotomy described by Colin Feasby when he acted on behalf of the appellant Mr Pintea, at the Supreme Court of Canada in April 2017:
“This case (Valentin Pintea v. Dale Johns, et al. 2017 SCC23) is about insiders and outsiders. Everyone in this room is an insider – SRLs are outsiders.”
Our law society’s deliberations about changing the delivery of legal services has thus far been about insiders versus outsiders. The public deserves better.
Why would anyone want to become a lawyer and go through six (minimum) years of post secondary education, spend another year being admitted to the bar, and then pay a lifetime of insurance and licensing fees when we think it appropriate to hand over much of what constitutes a legal practice for some struggling lawyers to a paralegal?
I do not think they would. And I noticed the retainer is still between the client and the lawyer.
my god,, this is good news,, the reason the previous program failed, at least with me,, I refuse to deal with an organization that does not have regulations regarding their behavior,, The regulation of legal service providers is a great thing,, but I ask,, if they are regulated, but no one enforces anything, how will it help? lawyers currently claim to be regulated by their society, yet the mayhem, and sharp practice operations against the public is appalling, no one is there to stop it. And I ask,, in the case of judges hearing cases,,, why is there not a regulation that only judges with appropriate training and experience, can hear cases for those issues alone, trying to explain land issues to a family judge is a complete waste of time,, and so the judgements from improper judges for the issue, remains an obstacle to the concept of justice,,
there is also a real issue with funding,, recently, a small claims action I witnessed, asked for over 2000 for a transcript. Apparently the court would only accept transcripts from one company,, and they billed whatever they wanted. on top of the escalating legal filing fees, lawyers fees and more and more fees,, the court is still completely inaccessible. to the average person, As to the submission of expert evidence, it is clearly a problem I will use dna as an issue because it is the one I am most familiar with, There are federal regulations that state, expert evidence providers must be regulated,,but dna agencies are not., They state that the evidence must be able to be independently examined,, yet one geneticist will not ever,, just like doctors, critic the work of another, They support each other. And then there is the final issue of the labs and the apposing counsel refusing to fully disclose evidence necessary for file evaluation. These are all time bombs for the application of justice. Yet no one is willing to address this. could someone tell me how the application of standards might change this??? And once again,, who will be responsible for the application of standards?
Well said Sandra!
“…if they are regulated, but no one enforces anything, how will it help? lawyers currently claim to be regulated by their society, yet the mayhem, and sharp practice operations against the public is appalling, no one is there to stop it. And I ask,, in the case of judges hearing cases,,, why is there not a regulation that only judges with appropriate training and experience, can hear cases for those issues alone, trying to explain land issues to a family judge is a complete waste of time,, and so the judgements from improper judges for the issue, remains an obstacle to the concept of justice.”
After 6-7 years of training, if the lawyers cannot provide their services in a way that understand and fulfil the needs of the clients, why should we recognize this 6-7 years of training? Anyway, it is not the fault of the lawyers. It is the fault of the law society and law schools that do not teach them the professional knowledge, values and attitudes that they are supposed to teach to them. It is only the Rules of Professional Conduct that says that lawyers play a role in the administration of justice, that they treat the other parties respectfully, and that they do not engage in sharp practices. However, I could rarely see such an ideal lawyer. Misstating the other parties’ submissions, misleading the courts and taking advantage of the lack of procedural knowledge of the self-represented litigants have become very common. Yet, the courts refuse to recognize the existence of such a problem.
By educational background, I am a foreign trained physician, though Canada does not want to recognize my foreign credentials. I frankly acknowledge that sometimes patients may become better experts of their diseases, if they have the passion to research about their diseases, than their treating physicians. Because, unlike in the past, nowadays, information and other resources such as training videos and workshops are abundantly available to the public. While I acknowledge this, many other physicians may still do not want to acknowledge it. The same is true for the legal profession. They will not acknowledge that there are other informal ways for other people to gain the same level of competence as they acquired through their formal law education or even better competence in terms of understanding the struggles of lay litigants and advising them the right course of action. Unfortunately, I have seen several straight forward cases are unnecessarily made complicated only by the lawyers who also claim that they gone through over 6-7 years of training.
Mr. Colin Feasby did a good job describing the insiders/outsiders dichotomy before the court, but it did not seem that the court acknowledged the probability of existence of such a problem at the lower courts. Anticipating resistance to acknowledge, how can we support an argument before lower courts that the problem of treating legal professionals as insiders and self-represented litigants as outsiders exists at the lower courts?
The article and some commentary associated with it indicate how out-of-touch lawyers are. The public doesn’t “deserve better”. To suggest this belies an entitlement to dole out improvements as seems to suit the interests of the insiders. The public doesn’t deserve better, we deserve it all. The justice system is ours – or at least it was supposed to be.
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The law societies only have a place because of statutes set down by our government representatives. We are lead to believe these insiders can do as they like, and left to ignore that these insiders can only do what we allow them to do. We need to realize our power and stop being dictated to.
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Furthermore, if someone wastes 7 years of their life on a less fruitful endeavor than they had hoped, what issue is that of society’s? What entitles one to think ransoming a crucial civil society construct – justice – is acceptable to bail-out such fools because they may wish to drive a Mercedes rather than a Mazda in return for her investment?
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The angst over paralegals is a largely false narrative at the present. It is a concern derived entirely from the insiders viewpoint (hence the lack of any need to “consult the public”). We would not need this blog if the insiders were looking out for our interests.
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Regarding articles posted here and corresponding comments, accept nothing and question everything.