What shall we do with lawyers?
by Elie Nasrallah
May 4, 2000
"We recognize a role for paralegals but we also recognize the risks
unregulated paralegals pose to the public," said Robert Armstrong,
treasurer of the Law Society. "Our framework provides a solution
by introducing guidelines for paralegals that help protect the public."In
his 1998 series "Lowering the Bar," Citizen investigative reporter
Paul McKay reported the devastating work of crooked lawyers, and exposed
the myths of the alleged professionalism in the ranks of the Law Society
of Upper Canada. Beth Marlin, editor of the journal The Law Times, wrote
in the Citizen that "while the number of wayward lawyers are small
-- some suggest they account for less than two per cent of Ontario's 27,000
members practising bar -- the damage they can do is considerable because
of the trust they inspire in clients and society as `licensed' professionals.It
seems that the lawyers of the Law Society of Upper Canada apparently want
to kill the opportunities of paralegals of all kinds and stripes. Alas,
paralegals, however, can't do the same to the opportunities of lawyers,
regardless of ancient wisdom.
The raging war of attrition between lawyers -- in Ontario, represented by the Law Society of Upper Canada -- and independent paralegals, is getting ferocious and is undermining the stability and integrity of Ontario's legal system.The battle, as usual, rotates around the distribution of money, power and control over various jurisdictional areas of the practice of law. Who should do what, where, when, how and for how much?These form the crux of the debate over long-awaited government regulations detailing the activities and responsibilities of paralegal agents in Ontario."We recognize a role for paralegals but we also recognize the risks unregulated paralegals pose to the public," said Robert Armstrong, treasurer of the Law Society. "Our framework provides a solution by introducing guidelines for paralegals that help protect the public."How considerate and thoughtful that sounds. But is it really all about protecting the public?Or is it all about protecting the long-standing monopoly of lawyers in the legal field, and the commensurate, enormous amount of money, power and prestige? How they insult our collective intelligence.
The framework the Law Society is recommending to the Ontario government, which is holding public hearings on the issue under former Supreme Court justice Peter Cory, is nothing short of strangulation of powerless paralegal agents. The Law Society recommends:-A tribunal accreditation system in which individual administrative agencies and courts recommend their own qualifications for paralegals, or accredited agents.-That independent paralegals be prohibited from incorporating businesses and giving legal advice on business.-That independent paralegals be prohibited from practising in the areas of wills and estates, power of attorney, family law, personal injury claims settlements and statutory accident benefits, real estate law, and in all matters relating to the criminal law.The Law Society, furthermore, recommends that paralegals should be permitted to do work in the following areas:-Criminal pardons.-Mediation -- excluding the giving of legal advice or opinion or the drafting of legal documents on the matter being mediated.-Name change applications.-Process serving.-Commissioners of oath -- excluding the giving of legal advice or opinions on the contents of the document being commissioned.-Title searching -- but not opinions on or certifications of title.-Credit counselling.-Debt collections.The intent is obvious: Throw some bones in order to keep the hungry dogs relatively at bay. Moreover, while some recommendations are reasonable and necessary, such as tribunal accreditation and the prohibition in dealing with criminal matters, the rest are an exercise in control.
In his 1998 series "Lowering the Bar," Citizen investigative reporter Paul McKay reported the devastating work of crooked lawyers, and exposed the myths of the alleged professionalism in the ranks of the Law Society of Upper Canada. Beth Marlin, editor of the journal The Law Times, wrote in the Citizen that "while the number of wayward lawyers are small -- some suggest they account for less than two per cent of Ontario's 27,000 members practising bar -- the damage they can do is considerable because of the trust they inspire in clients and society as `licensed' professionals.In its cry to regulate the independent paralegals in Ontario, the Law Society forgets that it fails miserably in regulating its own members and practises."The Law Society should remember," Ms. Marlin wrote in the Citizen, "that its self-regulatory status is a privilege, not a right. Lawyers in Michigan lost their self-regulatory status a few years back when the state bar association was stripped of its discipline powers."There is no question that paralegals should be exposed to reasonable regulations, and that they should require proper accreditation. But they also should be allowed to earn a reasonable living under the rules and laws of the land.It seems that the lawyers of the Law Society of Upper Canada apparently want to kill the opportunities of paralegals of all kinds and stripes. Alas, paralegals, however, can't do the same to the opportunities of lawyers, regardless of ancient wisdom.
Elie Nasrallah is a Kanata paralegal, specializing in immigration and government boards.
by Beth Marlin
The Ottawa Citizen. Ottawa, Ont.: May 19, 1999. pg. A.19
Client beware. Or as a lawyer might put it: Caveat emptor. That's clearly the message to be taken from the recent investigative series chronicling the devastating work of various crooked lawyers by the Citizen's Paul McKay.Surprise ... it seems there is no shortage of lawyers who have taken advantage of their privileged status to breach the trust -- and the trust funds -- of unsuspecting clients. Unfortunately, criminal and immoral behaviour have not yet been bred out of human nature. Nor are they likely to be anytime soon.While the number of wayward lawyers is small -- some suggest they account for less than two per cent of Ontario's 27,000-member practising bar -- the damage they can do is considerable because of the trust they inspire in clients and society as "licensed" professionals. That this licence to practise law is conferred upon these professionals by other lawyers elected as benchers of the Law Society of Upper Canada is much of the source of the public cynicism that dogs the profession.Self-regulation -- which is also enjoyed by doctors, dentists, architects and engineers, among other professionals -- places the onus on the governing body to uphold high standards of perceived and actual public protection. However, when deceived and unhappy clients turn with their suspicions and complaints to the law society, which regulates lawyers on behalf of the Ontario government, they discover Osgoode Hall's authority and will to investigate, discipline and/or disbar or de-license, and compensate in some cases, is limited. For instance, the Law Society's Client Compensation Fund will repay bilked clients only up to $100,000. (In 1997, the fund paid out $5 million in total.)Last year, an operational audit by Price Waterhouse and Osgoode Hall staff found the Law Society's "scorecard as regulators points to lacklustre performance." That's a bit of an understatement, since the Law Society has not conducted any random spot audits for five years (though officials insist they've audited the same number of lawyers through targeted audits -- those conducted after a red flag pops up).So what is the Law Society doing to enhance its regulatory performance? The society, which has an inordinate influence in setting the scope of its own regulatory authority, has authored many of the proposed changes to the Law Society Act, which will likely be passed into law in the new year.Within the amendments, the Law Society has proposed new investigative powers to allow its officials to "require the production and examine any documents ... including client files" upon receiving information "suggesting that the member may have engaged in professional misconduct or conduct unbecoming." Since lawyers are lawyers, that provision has been vigorously opposed by the Canadian Bar Association's Ontario chapter, which claims it would interfere with solicitor-client privilege, which now protects lawyers' stewardship of client files. So even if this amendment passes, lawyers will no doubt challenge this power -- and possibly win -- in the courts. If passed, the amended legislation would also give the Law Society the power to fine offending lawyers up to $10,000.Many of the other proposed amendments to the Law Society Act, however, would seem to loosen regulatory restrictions. Notably, the Law Society has asked the province to do away with the annual requirement for a lawyer's accountant to certify his or her financial standing. Now, lawyers will "self-report" on their own financial standing in a questionnaire to be filed each year.Other proposed changes would allow the Law Society a broader range of measures -- short of suspension or disbarment -- against incompetent lawyers. Instead of having to fully disbar an incompetent lawyer, the lawyer might be allowed a partial licence to practise certain areas of law, for instance. At Osgoode Hall itself, the Law Society plans to reduce its regulatory staff to 90 from 125 under Project 2000, a $5 million re-organization of its regulatory system.The Law Society is also encouraging the increased use of alternative dispute resolution -- instead of punitive action -- in client complaints against lawyers, which is another step toward leniency.And the Law Society proposes to delete a rule against lawyers offering or accepting a "referral fee" from another lawyer for steering clients. Such fees would no doubt encourage referrals for reasons other than trust in the competence and integrity of the lawyer to whom a client has been sent.Then, in October, the Law Society called to the bar 27 students who had failed their licencing exams, after personal interviews with benchers determined their "courage and tenacity and intelligence" qualified them to practise law in Ontario. Would the College of Physicians and Surgeons ever pull such a stunt? Not likely.The Law Society should remember its self-regulatory status is a privilege, not a right. Lawyers in Michigan lost their self- regulatory status a few years back when the state bar association was stripped of its discipline powers. Professional discipline is now meted out by the Michigan Supreme Court, which runs the Attorney Grievance Commission and the Attorney Discipline Board. State officials say most complaints against Michigan lawyers are processed within six months and even in the most complicated discipline is handled within a year.If the public is dissatisfied with the regulation of Ontario lawyers by the Law Society, they should voice their desire for reform to Ontario Attorney General Charles Harnick.
Beth Marlin is the managing editor of Law Times, Ontario's weekly newspaper for lawyers.