British Columbia family lawyers ask law society to hold off on paralegal changes

  • December 10, 2018

By Ian Burns for The Lawyer's Daily

A number of family lawyers are urging the Law Society of British Columbia (LSBC) to listen to the profession after a motion was adopted at the society’s annual general meeting asking it to take a step back on its efforts to allow paralegals to have a limited scope of practice.

The motion, which was passed at the Dec. 4 meeting, asked benchers not to authorize paralegals to practise family law. Karen Nordlinger of Aaron Gordon Daykin Nordlinger LLP proposed the motion, along with retired B.C. Supreme Court Justice Peter Leask. She emphasized her issue was not with paralegals assisting in family law but rather the powers they would be given under the proposals.

“Paralegals are a great addition to the system as long as they are under the supervision of a lawyer,” she said. “But this proposal the law society has put forward goes much further than schemes in other jurisdictions.”

The law society has proposed paralegals be given the power to do things such as prepare settlement agreements and orders, act as a mediator and give and receive undertakings. Nordlinger said the proposals raise a “huge concern” because they allow paralegals to give legal advice, and some in the profession are worried that they do not have the expertise to do so.

“In order for us to give advice on a settlement, for example, it requires us to assess all kinds of different areas of law and what a court is likely to accept or not accept,” she said. “We just feel that it’s unlikely that paralegals who haven’t had any law school training and haven’t worked for more senior lawyers are going to have that expertise.”

The provincial legislature recently passed the Attorney General Statutes Amendment Act, which changed the Legal Profession Act to expand the types of professionals able to provide legal services to the public to include paralegals. The legislation has received royal assent but has not been brought into force by the government, and the motion also requested benchers ask the government to refrain from doing so until consultations on the law society’s proposals, which are being held until Dec. 31, conclude.

Concerns were also raised about the legislation when it was initially proposed, with the Canadian Bar Association, B.C. Branch (CBABC) saying the government had not gone through adequate consultation with the profession. The legislation also contained language which said a resolution by the profession is not binding on the benchers if to implement it would require the benchers to enact, rescind or amend a rule made under s. 15.1, which defines who is permitted to engage in the practice of law.

But family lawyer Leena Yousefi of Vancouver’s YLaw Group noted the motion passed at the meeting does not conflict with the provincial legislation because it just tells the benchers to do nothing.

“The legislation that was passed said benchers can amend, rescind and create,” she said. “[But] there is nothing in the legislation that prevents us from binding the benchers not to do anything.”

Yousefi said the situation went “way beyond” just licensing paralegals and spoke to how the law society is governed.

“It became an issue between the lawyers, the benchers and the government, because what the government did was basically give legislation saying the benchers can do what they want,” she said. “There seems to be a general consensus among a lot of people that [licensing paralegals] is okay, but the proposals are just too broad.”

Nordlinger said she felt the effect of the legislation may have been overstated by some, but added the profession was concerned the legislation was rushed through.

“We weren’t really given any heads up that this was happening,” she said. “We feel disrespected that this was done behind our back.”

LSBC communications officer David Jordan said the benchers will take the time to get the rules and responsibilities of any new category of licensed paralegals right.

“The recognition that there should be a range of legal service providers is one of the elements of the law society’s efforts to address unmet and underserved legal needs and improve the public’s access to legal services,” he said. “The benchers will give serious consideration to what was expressed by members of the profession.”

Jordan said the full scope of services any potential alternative legal service provider would be able to provide has yet to be determined.

“But the law society is currently proposing a model that would allow a licensed paralegal to advise a client about available legal options, how agreements or court orders may affect their rights and obligations, and in limited circumstances, to appear in court to assist a client representing themselves,” he said.

Nordlinger said she wasn’t sure what the law society was going to do at this point, but she hopes that they listen to the profession.

“We’re not coming at it from the point of view of our interests, were coming at it from the point of view of the public interest and saying this is not a good idea,” she said. “And whether they will take that advice or not, I don’t know.”

Nordlinger’s concerns were echoed by Yousefi.

“Mean what you say when you say you’re going to consult with the profession,” she said. “This was a big message from the bar to the law society that you can’t unilaterally go behind us and get all these sweeping powers and then come back after the fact and give us some lip service about consultation, because that’s not what’s happening.”

In addition to the resolution on paralegals, the Dec. 4 meeting also dealt with issues surrounding legal aid and pro bono services. A motion requiring lawyers to perform a minimum of 10 pro bono hours per calendar year to maintain their practice status was defeated, but a compromise motion was passed which asked benchers to continue to advocate for independent legal aid and take steps to encourage and reduce barriers to members to do legal aid and pro bono cases, within their field of expertise.

Criminal lawyer Kevin McCullough of MGW Lawyers had proposed another motion on mandatory pro bono work but amended it into the one which passed after he realized there was very little chance his original proposal would be adopted. He added the purpose of bringing the issue up was twofold: one, to expand coverage and increase access to justice for people who can’t afford a lawyer, and two, to inform the public of how big a problem funding of legal aid and access to justice is.

“If lawyers say this is how bad the problem is, I don’t think the people will say ‘yippee, we’re going to get a lot of free legal work.’ I think the public notices that something is happening here,” he said. “Right now, the public isn’t electing politicians based on their funding of legal aid, and we need to change that. At the end of the day we’re not going to accomplish that without educating the public, which then puts the heat on the government.”

Jordan said the benchers have previously considered whether requiring members to contribute pro bono legal services is an appropriate regulatory requirement to implement, but concluded it is a tradition within the legal profession that is to be strongly encouraged but not a professional responsibility.

“The legal profession has a long tradition of lawyers volunteering their professional expertise and giving back to their communities,” he said. “The resolution passed at the annual general meeting supports the benchers’ views on whether pro bono work should be mandatory.”