How To Protect The Public From Being Abused By A Paralegal

Transcription

1 The Role of Paralegals in BC: Time for Change? A Presentation to the BC Paralegal Association (BCPA) November 5, 2013 by Nigel Kent Partner Clark Wilson LLP Vancouver, BC tel npk@cwilson.com

2 TABLE OF CONTENTS 1. Introduction The Current Paralegal Regime in British Columbia... 1 Training and Supervision... 3 Good Character and Ethics... 4 Designated Paralegals... 5 Other Law Society Initiatives The Ontario Paralegal Regulatory Regime Conclusion... 9 APPENDICES A. Code of Professional Conduct, Chapter 6 ( Relationship to Students, Employees and Others ) B. Code of Professional Conduct, Appendix E ( Supervision of Paralegals )

3 THE ROLE OF PARALEGALS IN BC: TIME FOR CHANGE? 1. Introduction The practice of law is a monopoly. The Legal Profession Act expressly prohibits persons other than a licensed lawyer from engaging in the practice of law. 1 Indeed, the Act makes it an offense for anyone other than a duly licensed lawyer to provide legal services to the public. Lawyers, however, are expensive and, in a great many cases, beyond the affordability of even middle class Canadians, let alone the more needy individuals and families in our society. 2 The government funded legal aid system is designed to improve access to justice (obtaining legal assistance) for the poor. It is essential in criminal matters, the protection of children or the mentally ill, and a myriad of poverty law matters concerned with fundamental rights to housing, and other necessities of life. Yet, the legal aid system is failing to meet even the most basic needs of British Columbians. 3 Another avenue for improving access to justice involves revisiting the legal profession s monopoly in the delivery of legal services: we need to imagine ways in which suitably qualified people who are non lawyers can deliver certain legal services competently and at lesser cost. 4 Paralegals offer at least a partial solution to the access to justice problem in BC and elsewhere. To ensure protection for the public, such paralegal service providers should be subjected to a similar licensing and regulatory framework as lawyers and, indeed, could be governed by the same regulator, namely, the Law Society of BC. Ontario became the first jurisdiction in North America to license and regulate paralegals on May 1, 2007, a step which by any objective measure.has been a remarkable success. 5 British Columbia should perhaps do likewise. 2. The Current Paralegal Regime in British Columbia As indicated above, only duly licensed lawyers are permitted to engage in the practice of law in British Columbia. Practice of Law is a defined term in the Act and includes most services 1 Legal Profession Act, SBC 1998, Ch 9, s An interesting, and contrary, view is offered by the February 2012 Final Report of the Alternate Delivery of Legal Services Committee of the Law Society of Alberta, which suggests this is not supported by [their survey] data (at p. 4). 3 Foundation for Change: Report of the Public Commission on Legal Aid in British Columbia, March 8, Brent Cotter, Thoughts on a Co Ordinated and Comprehensive Approach to Access to Justice in Canada, in Woolley et al, Lawyers Ethics and Professional Regulation 2 nd Edit, LexisNexis, 2012, at p David Morris, Report to the Attorney General of Ontario: Report of Five Year Review of Paralegal Regulation in Ontario (2012, Queens Printer for Ontario), hereafter the Morris Report 2013 Clark Wilson LLP 1

4 traditionally provided by lawyers i.e. appearing on behalf of clients in Court or administrative tribunals, giving legal advice, drafting legal documents, negotiating settlements, and the like. 6 However, the Act contains an express exception to the prohibition against practising law for lawyer/law firm employees who act under the supervision of a practising lawyer. 7 A paralegal is such an employee. Paralegals are not directly regulated by the Law Society of BC. Unlike lawyers, they are not bound or governed by the Law Society s Code of Professional Conduct which came into force January 1, Technically speaking, paralegals are not bound by the Canons of Legal Ethics or any of the other professional standards and obligations imposed upon BC lawyers by the Code. BC employs a supervisory model for regulating the conduct of paralegals i.e. delegation of work to non lawyer staff and assistants is only permitted if the lawyer directly supervises the same. The relevant Code provisions comprise Chapter 6 ( Relationship to Students, Employees and Others ) and Appendix E ( Supervision of Paralegals ), both of which are attached as appendices to this article. Chapter of the Code provides that a lawyer must not permit a non lawyer to among other things: Accept retainers; Give legal advice Give or accept undertakings; Appear in court or actively participate in legal formal proceedings; Conduct negotiations with third parties, other than routine negotiations; Take instructions from clients; Sign legal opinions, and the like. However Paralegals are permitted to perform many tasks that involve practising law (albeit with supervision). This includes, Drafting legal documents and correspondence; 6 Legal Profession Act, s.1(1). 7 Legal Profession Act, s.15(2). 8 Replacing and substantially revising the previously existing Professional Conduct Handbook Clark Wilson LLP 2

5 Preparing pleadings, motions, affidavits and court submissions; Conducting legal research; Undertaking and reviewing discovery of documents in litigation files; and Interviewing witnesses, gathering and organizing evidence. Chapter of the Code expressly permits a lawyer to employ a paralegal. Paralegal is a defined term which means a non lawyer who is a trained professional working under the supervision of a lawyer. In addition to the trained professional qualification, the substantive requirements for a person to be employed as a paralegal include Adequate knowledge of substantive and procedural law relevant to the work delegated by the supervising lawyer; Practical and analytical skills necessary to carry out the work; and Competent and ethical performance of the work. The Commentary on the above provision stipulates further requirements for any paralegal before a lawyer can delegate work to that person, namely that, The lawyer must be satisfied that the person has sufficient knowledge, skill, training and experience and is of sufficiently good character to perform the delegated work in a competent and ethical manner; and The lawyer must ensure that the paralegal is adequately trained and supervised to carry out the work with due regard to the complexity and importance of the matter. Training and Supervision Appendix E to the Code suggests that supervision is a flexible concept that is assessed on a case by case basis. The relevant factors include the paralegal s degree of competence, relevant work experience/education, complexity of the assignment, and the like. The Appendix suggests it is mandatory for the lawyer to actively mentor and monitor the paralegal. It suggests the lawyer should train the paralegal as if he or she were training an articled student, consider debriefing exercises and periodic file reviews, developing a formal plan for supervision with goals and progress milestones, and facilitation of continuing legal education for the paralegal. It specifically recommends the lawyer ensures the paralegal understands the importance of confidentiality and privilege and the professional duties of lawyers Clark Wilson LLP 3

6 Training and supervision of paralegals is thus at the heart of the supervisory model of paralegal regulation as it currently exists in BC. These are mandatory obligations of any lawyer who delegates work to his professional staff. Of course, such training and supervision is also sensible risk management as the paralegal s employer, (the lawyer/law firm) is vicariously liable to clients for negligence on the part of any employees, paralegals or otherwise. 9 Good Character and Ethics As indicated above, before delegating work to a Paralegal the Code requires the lawyer to be satisfied that the Paralegal is of sufficiently good character to perform in a competent and ethical manner. This involves an assessment of, and perhaps delicate enquiry into, the personal qualities of the paralegal. But what is the test for good character or of ethics generally? The good character requirement is also, of course, applicable to lawyers. Section 19(1) of the Legal Profession Act makes it a requirement for membership in the Law Society (i.e. to be licensed as a lawyer in BC) that the person is of good character and repute and is fit to become a barrister and solicitor of the Supreme Court. The purpose of this requirement is to protect the public by insisting upon high standards of integrity, ethical conduct, and trustworthiness. So how, then, does a lawyer determine whether his or her paralegal is of good character and high ethics? These days there are significant restrictions on the sort of questions that an employer is allowed to ask when hiring an employee (paralegal or otherwise) such that enquiries into drinking, drugs, past criminal (or not so criminal) behaviour, plagiarism at school, and the like may not be permitted. In practice, employers rely heavily on references and pointed questions to previous employers. Interestingly, Appendix E to the Code also suggests that lawyers consider having the paralegals sign an oath to discharge his or her duties in a professional and ethical manner. Such a practice may possibly impress upon the paralegal employee the seriousness with which the employer approaches professionalism in the workplace but it is perhaps of dubious practical effect. In the end, professional and ethical shortcomings, if they exist, will likely be the basis for dismissal of any paralegal employee in any event. As indicated above, paralegals (and other law firm employees) in BC are not currently subject to direct ethical regulation by the Law Society. Paralegals are currently unlicensed and unregulated and, even though many are members of reputable associations such as the British Columbia Paralegal Association which has promulgated its own Code of Ethics, compliance is 9 It is not inconceivable that a paralegal can be directly sued for professional negligence (along with the lawyer/law firm). It should be noted that such employees are insured under the Compulsory Professional Liability Insurance policy issued by the Law Society s captive insurance company but only provided such employee was acting within the scope of his or her duties and acting under the supervision of, and in a supporting role to and not independent of the [lawyer] Clark Wilson LLP 4

7 voluntary and no disciplinary or enforcement regimes exist. In matters of ethics, whether the Law Society s supervisory model of paralegal regulation is adequate to the task may be a matter of reasonable debate. Designated Paralegals In June 2012 the Law Society of BC approved rule changes to provide for the concept of designated paralegals. These are paralegals who have the necessary skill and experience 10 such that, under a lawyer s supervision, they can perform additional tasks not previously permitted for paralegals including, Giving legal advice to clients; Giving and receiving undertakings; and Representing clients before a court or tribunal (as permitted by the latter). The BC Supreme Court and the BC Provincial Court have created a two year pilot project to give such designated paralegals a limited right of appearance in court. The stated goal of the project is to identify whether lawyer supervised paralegals are able to perform certain procedural applications in court in an efficient and competent manner. The court appearance project is currently limited to family law proceedings and includes primarily non contentious procedural matters (uncontested applications). A very limited number of contested procedural matters are permitted and these are related to discovery and straight forward child support matters. The Law Society rules provide that a lawyer cannot supervise more than two designated paralegals at one time. As well, with respect to court appearances, the lawyer who has conduct of the file is required to provide an affidavit as part of the application material that deposes to a number of assurances including that, The paralegal has the necessary training and experience; The application material has been reviewed by the lawyer; The client is aware and has consented to the application being spoken to by a paralegal; and There are no facts of which the lawyer is aware that should be brought to the attention of the court that are not included in the filed material. 10 Chapter of the Code Clark Wilson LLP 5

8 This development of designated paralegals performing enhanced duties 11 is obviously a small and incremental change. Whether it leads to enlarging the scope of paralegal practice in due course remains to be seen. Perhaps not surprisingly, progress on this front is slow and cautious (excessively so, some might say). Other Law Society Initiatives The Law Society is acutely aware of the need to broaden and enhance access of the public to competent and affordable legal services. It is well aware that BC s legal aid system is failing to meet even the most basic needs of British Columbians. It knows full well that access to justice increasingly mandates the provision of certain legal services by non lawyers. The challenge, of course, is to develop a new regulatory paradigm that broadens access but still ensures the competency, integrity and professionalism of the legal service providers. In 2009 the Law Society created the Delivery of Legal Services Task Force which delivered its Final Report to the Law Society in October That report focused on incremental change, by increasing the roles that paralegals and articling students can perform under the supervision of a lawyer. 12 Many of the recommendations in that report have been adopted by the Law Society and are now embodied in the Code of Professional Conduct which came into force January 1, One of the recommendations included the enhanced functions of paralegals giving legal advice and engaging in advocacy functions before the courts. The designated paralegal pilot project is the direct result of that recommendation. The Law Society has also created a Legal Services Providers Task Force. The mandate of this task force is to consider whether the Law Society ought to regulate only lawyers in BC or whether it should regulate other legal service providers as well. Part of the assigned mandate is to, Consider and report on whether it is in the public interest that non lawyer legal service providers be regulated and if so, whether it is in the public interest that the Law Society should be that regulator; and Consider and report on whether the recognition and regulation of non lawyer legal service providers would improve access to law related services for the public. Representatives from both the British Columbia Paralegal Association and the Society of Notaries Public of British Columbia have been appointed to the Task Force. Paralegal credentialing and regulation is, of course, a subject matter of the Task Force debate. It will be some time yet before the Legal Service Providers Task Force provides its final report to the Law Society and much longer again for the Law Society to adopt further change. In the 11 Chapter of the Code, commentary at p LSBC, Delivery of Legal Services Task Force Final Report, October 1, 2010 at p Clark Wilson LLP 6

9 meantime, it may be salutary to review and compare the paralegal regulatory regime that has been adopted in Ontario and has been in force since May The Ontario Paralegal Regulatory Regime Ontario became the first jurisdiction in North America to regulate paralegals on May 1, 2007 following amendment to that provinces Law Society Act to require all paralegals practising in Ontario to be licensed and regulated by the Law Society of Upper Canada. Today there are approximately 4500 active paralegal licensees in the province of Ontario. A significant proportion of these paralegals were grandfathered into the new regime by virtue of their previous education and significant experience. The balance had to meet the new licensing requirements which include graduation from one of the accredited college programs offered by some 22 institutions around the province. Applicants for licensing must successfully complete licensing examinations which are available three times annually. They must also meet the good character requirement which, of course, is similar to the requirement for lawyers to be admitted to the Ontario bar. Ontario s Law Society Act provides that no one who meets the other licensing requirements for a paralegal can be refused a license on the basis of good character without a hearing. Some 45 such hearings were held during the transitional licensing process and in 50% of the cases a license was denied. 13 Once licensed, the regulatory regime applicable to paralegals in Ontario is very similar to the regime for lawyers. This includes requirements respecting trust accounts, continuing professional development, mandatory errors and omissions insurance, adherence to the Paralegal Rules of Conduct, and submission to investigation and disciplinary procedures where appropriate. Paralegals are integrated into the Law Society of Upper Canada s governance structure through the Paralegal Standing Committee, which was established pursuant to the Law Society Act, and consists of five elected paralegals, five elected lawyer benchers, and three lay benchers. Research commissioned by the Law Society as part of its five year review of the new regulatory regime, indicated that the vast majority of surveyed paralegals viewed the Law Society as the appropriate regulatory agency for their profession. The Law Society Report to the Attorney General of Ontario following the fifth year review of the new regime concluded, research conducted as part of the review process indicates that licensed paralegals are working to a higher standard of competence and enjoying enhanced professional 13 LSUC, Report to the Attorney General of Ontario [Five Year Review of Paralegal Regulation], June 28, 2012, at p Clark Wilson LLP 7

10 standing. Further, paralegal clients are highly satisfied with the regulated services they have received. 14 In Ontario, the permitted scope of practice for paralegals is more orientated towards representation in certain types of legal proceedings. Licensed paralegals are authorized to act for clients, before, the Small Claims Court ($25,000 limit); Ontario Court of Justice (for traffic and other provincial offences); Landlord and Tenant Board; Workplace Safety Board/Tribunal; Financial Services Commission Summary Conviction Court (minor matters under the Criminal Code); Immigration and Refugee Board; and Human Rights Tribunal. In respect of representing a client in any of the above proceedings, licensed Ontario paralegals are permitted to, Give legal advice regarding the subject matter of the proceeding; Draft documents for use in the proceeding; and Negotiate on behalf of the client who is a party to the proceeding. The Law Society commissioned survey indicated that fully 40% of the licensed paralegals who responded are in private practice as sole practitioners and one quarter are employees in a legal or paralegal practice. While the Ontario Paralegal regulatory regime has proven to be effective and successful, the two five year review Reports to the Attorney General of Ontario did also reflect some widespread criticism, mostly from paralegals themselves, of both paralegal education and professional conduct, the latter particularly with respect to unethical advertising practises. The Morris Report highlighted in particular the absence of work and life experience or any meaningful period of apprenticeship as a condition for becoming a licensed paralegal: 14 LSUC, Report, supra, at p Clark Wilson LLP 8

11 The current education standard provides for an Ontario high school graduate to enroll in a two year community college paralegal training program that includes a three week, unpaid work placement. Ethics and practice management are the key components of the training, which, following graduation, allows graduates to write a 100 multiple choice question licensing examination.a freshly licensed paralegal is then permitted to hang out a single advertising Legal Services and Advice underscored by licensed by the Law Society of Upper Canada.While the Paralegal Rules of Conduct prohibits one from practising in areas where one is not competent, there may be little in the paralegal s education, work or life experience that alerts him/her to his/her incompetency. The Morris Report also quoted from an external assessment of the Paralegal Education Diploma Program at Humber College: No other professional programme encourages 20 year olds to start a business on their own where the future of the client can be impacted financially (as with courts and tribunals) or socially (as with criminal and POA courts).we have serious concerns about the maturity of paralegal graduates from colleges and private schools. We are also troubled by the poor ability in English of paralegals whom must navigate a system where spoken and written language is so important. Not surprisingly, the Morris Report recommended that the Law Society undertake a reassessment of the competency profile that is appropriate for the legal services that are permitted to be offered by newly licensed sole practitioners. As a result of the criticisms respecting unethical advertising practices referred to in the five year review, the Morris Report recommended that the Law Society of Upper Canada undertake a public education program to better raise awareness of the paralegal profession and that it also allocate the necessary resources to actively enforce within the paralegal sector adherence to the standards of professional conduct. The report also noted that, while there was possibly room to expand the scope of practice permitted for paralegals, this would be better deferred until after implementation of the recommendations regarding paralegal education and professional conduct. 4. Conclusion British Columbia seems inclined to retain the lawyer s supervisory model for the provision and regulation of paralegal services. But there is an increasing need to substantially broaden and enhance access of the public to competent and affordable legal services. The adoption of a regime that permits paralegals to provide legal services directly to the public without the supervision of a lawyer, with the Law Society as the single regulator of both the legal and paralegal professions, is a daunting task. However, the Ontario experience proves not 2013 Clark Wilson LLP 9

12 only that it can be done but that, with appropriate safeguards to protect the public interest, it can improve access to justice for informed clients who cannot afford or who choose not to use the services of a lawyer. Perhaps the time for more significant change in BC has arrived? Nigel Kent T /npk@cwilson.com 2013 Clark Wilson LLP 10

13 APPENDICES A. Code of Professional Conduct, Chapter 6 ( Relationship to Students, Employees and Others ) 6.1 Supervision DIRECT SUPERVISION REQUIRED A lawyer has complete professional responsibility for all business entrusted to him or her and must directly supervise staff and assistants to whom the lawyer delegates particular tasks and functions. Commentary [1] A lawyer may permit a non lawyer to act only under the supervision of a lawyer. The extent of supervision will depend on the type of legal matter, including the degree of standardization and repetitiveness of the matter, and the experience of the nonlawyer generally and with regard to the matter in question. The burden rests on the lawyer to educate a non lawyer concerning the duties that the lawyer assigns to the non lawyer and then to supervise the manner in which such duties are carried out. A lawyer should review the non lawyer s work at sufficiently frequent intervals to enable the lawyer to ensure its proper and timely completion. A lawyer must limit the number of non lawyers that he or she supervises to ensure that there is sufficient time available for adequate supervision of each non lawyer. [3] If a non lawyer has received specialized training or education and is competent to do independent work under the general supervision of a lawyer, a lawyer may delegate work to the non lawyer. [4] A lawyer in private practice may permit a non lawyer to perform tasks delegated and supervised by a lawyer, so long as the lawyer maintains a direct relationship with the client. A lawyer in a community legal clinic funded by a provincial legal aid plan 2013 Clark Wilson LLP 11

14 may do so, so long as the lawyer maintains direct supervision of the client s case in accordance with the supervision requirements of the legal aid plan and assumes full professional responsibility for the work. [5] Subject to the provisions of any statute, rule or court practice in that regard, the question of what the lawyer may delegate to a non lawyer generally turns on the distinction between any special knowledge of the non lawyer and the professional and legal judgment of the lawyer, which, in the public interest, must be exercised by the lawyer whenever it is required. DEFINITIONS In this section, designated paralegal means an individual permitted under rule to give legal advice and represent clients before a court or tribunal; non lawyer means an individual who is neither a lawyer nor an articled student; paralegal means a non lawyer who is a trained professional working under the supervision of a lawyer. DELEGATION A lawyer must not permit a non lawyer to: (a) (b) (c) accept new matters on behalf of the lawyer, except that a non lawyer may receive instructions from established clients if the supervising lawyer approves before any work commences; give legal advice; give or accept undertakings or accept trust conditions, except at the direction of and under the supervision of a lawyer responsible for the legal matter, providing 2013 Clark Wilson LLP 12

15 (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) that, in any communications, the fact that the person giving or accepting the undertaking or accepting the trust condition is a non lawyer is disclosed, the capacity of the person is indicated and the lawyer who is responsible for the legal matter is identified; act finally without reference to the lawyer in matters involving professional legal judgment; be held out as a lawyer; appear in court or actively participate in formal legal proceedings on behalf of a client except as set forth above or except in a supporting role to the lawyer appearing in such proceedings; be named in association with the lawyer in any pleading, written argument or other like document submitted to a court; be remunerated on a sliding scale related to the earnings of the lawyer or the lawyer s law firm, unless the non lawyer is an employee of the lawyer or the law firm; conduct negotiations with third parties, other than routine negotiations if the client consents and the results of the negotiation are approved by the supervising lawyer before action is taken; take instructions from clients, unless the supervising lawyer has directed the client to the non lawyer for that purpose and the instructions are relayed to the lawyer as soon as reasonably possible; sign correspondence containing a legal opinion; sign correspondence, unless (i) it is of a routine administrative nature, (ii) the non lawyer has been specifically directed to sign the correspondence by a supervising lawyer, (iii) the fact the person is a non lawyer is disclosed, and (iv) the capacity in which the person signs the correspondence is indicated; forward to a client or third party any documents, other than routine, standard form documents, except with the lawyer s knowledge and direction; 2013 Clark Wilson LLP 13

16 (n) (o) perform any of the duties that only lawyers may perform or do things that lawyers themselves may not do; or issue statements of account. Commentary [1] A lawyer is responsible for any undertaking given or accepted and any trust condition accepted by a non lawyer acting under his or her supervision. [2] A lawyer should ensure that the non lawyer is identified as such when communicating orally or in writing with clients, lawyers or public officials or with the public generally, whether within or outside the offices of the law firm of employment. [3] In real estate transactions using a system for the electronic submission or registration of documents, a lawyer who approves the electronic registration of documents by a non lawyer is responsible for the content of any document that contains the electronic signature of the non lawyer The limitations imposed by rule do not apply when a non lawyer is: (a) (b) (c) a community advocate funded and designated by the Law Foundation; a student engaged in a legal advice program or clinical law program run by, associated with or housed by a law school in British Columbia; and with the approval of the Executive Committee, a person employed by or volunteering with a non profit organization providing free legal services A lawyer may employ as a paralegal a person who (a) (b) possesses adequate knowledge of substantive and procedural law relevant to the work delegated by the supervising lawyer; possesses the practical and analytic skills necessary to carry out the work delegated by the supervising lawyer; and 2013 Clark Wilson LLP 14

17 (c) carries out his or her work in a competent and ethical manner. Commentary [1] A lawyer must not delegate work to a paralegal, nor may a lawyer hold a person out as a paralegal, unless the lawyer is satisfied that the person has sufficient knowledge, skill, training and experience and is of sufficiently good character to perform the tasks delegated by the lawyer in a competent and ethical manner. [2] In arriving at this determination, lawyers should be guided by Appendix E. [3] Lawyers are professionally and legally responsible for all work delegated to paralegals. Lawyers must ensure that the paralegal is adequately trained and supervised to carry out each function the paralegal performs, with due regard to the complexity and importance of the matter Despite rule 6.1 3, where a designated paralegal has the necessary skill and experience, a lawyer may permit the designated paralegal (a) (b) to give legal advice; or to represent clients before a court or tribunal, as permitted by the court or tribunal. Commentary [1] Law Society Rule limits the number of designated paralegals performing the enhanced duties of giving legal advice and appearing in court or before a tribunal Clark Wilson LLP 15

18 B. Code of Professional Conduct, Appendix E ( Supervision of Paralegals ) KEY CONCEPTS Lawyers who use paralegals need to be aware of several key concepts: 1. The lawyer maintains ultimate responsibility for the supervision of the paralegal and oversight of the file; 2. Although a paralegal may be given operational carriage of a file, the retainer remains one between the lawyer and the client and the lawyer continues to be bound by his or her professional, contractual and fiduciary obligations to the client; 3. The Society will protect the public by regulating the lawyer who is responsible for supervising the paralegal in the event of misconduct or a breach of the Legal Profession Act or Law Society Rules committed by the paralegal; 4. A lawyer must limit the number of persons that he or she supervises to ensure that there is sufficient time available for adequate supervision of each person. 5. A paralegal must be identified as such in correspondence and documents he or she signs and in any appearance before a court of tribunal. 6. A lawyer must not delegate any matter to a paralegal that the lawyer would not be competent to conduct himself or herself. BEST PRACTICES FOR SUPERVISING PARALEGALS 1. Supervision is a flexible concept that is assessed on a case by case basis with consideration of the relevant factors, which, depending on the circumstances, include the following: (a) (b) (c) (d) Has the paralegal demonstrated a high degree of competence when assisting the lawyer with similar subject matter? Does the paralegal have relevant work experience and or education relating to the matter being delegated? How complex is the matter being delegated? What is the risk of harm to the client with respect to the matter being delegated? 2013 Clark Wilson LLP 16

19 2. A lawyer must actively mentor and monitor the paralegal. A lawyer should consider the following: (a) (b) (c) (d) Train the paralegal as if he or she were training an articled student. A lawyer must be satisfied the paralegal is competent to engage in the work assigned; Ensuring the paralegal understands the importance of confidentiality and privilege and the professional duties of lawyers. Consider having the paralegal sign an oath to discharge his or her duties in a professional and ethical manner; Gradually increasing the paralegal s responsibilities; A lawyer should engage in file triage and debriefing to ensure that matters delegated are appropriate for the paralegal and to monitor competence. This may include: (i) (ii) testing the paralegal s ability to identify relevant issues, risks and opportunities for the client; engaging in periodic file review. File review should be a frequent practice until such time as the paralegal has demonstrated continued competence, and should remain a regular practice thereafter; (iii) ensuring the paralegal follows best practices regarding client communication and file management. 3. Create a feedback mechanism for clients and encourage the client to keep the lawyer informed of the strengths and weaknesses of the paralegal s work. If the client has any concerns, the client should alert the lawyer promptly. 4. If a lawyer has any concerns that the paralegal has made a mistake, the lawyer must take carriage of the file and deal with the mistake. 5. Discuss paralegal supervision with a Law Society practice advisor if you have any concerns. BEST PRACTICES FOR TRAINING PARALEGALS 1. Develop a formal plan for supervision and discuss it with the paralegal. Set goals and progress milestones. 2. Review the guidelines for supervising articled students and adopt concepts that are appropriate to the scope of responsibility being entrusted to the paralegal Clark Wilson LLP 17

20 3. Facilitate continuing legal education for the paralegal. 4. Ensure the paralegal reviews the relevant sections of the Professional Legal Training Course materials and other professional development resources and review key concepts with the paralegal to assess their comprehension level. 5. Have their paralegals junior the lawyer on files and explain the thought process with respect to substantive and procedural matters as part of the paralegal s training. 6. Keep an open door policy and encourage the paralegal to discuss any concerns or red flags with the lawyer before taking further steps. A CHECKLIST FOR ASSESSING THE COMPETENCE OF PARALEGALS 1. Does the paralegal have a legal education? If so, consider the following: (a) (b) (c) (d) What is the reputation of the institution? Review the paralegal s transcript; Review the courses that the paralegal took and consider reviewing the course outline for relevant subject matters to assess what would have been covered in the course, consider total number of credit hours, etc. Ask the paralegal about the education experience. 2. Does the paralegal have other post secondary education that may provide useful skills? Consider the reputation of the institution and review the paralegal s transcripts. 3. What work experience does the paralegal have, with particular importance being placed on legal work experience?: (a) (b) (c) (d) Preference/weight should be given to work experience with the supervising lawyer and/or firm; If the experience is with another firm, consider contacting the prior supervising lawyer for an assessment; Does the paralegal have experience in the relevant area of law? What responsibilities has the paralegal undertaken in the past in dealing with legal matters? 2013 Clark Wilson LLP 18

21 4. What personal qualities does the paralegal possess that make him or her well suited to take on enhanced roles: (a) (b) (c) (d) (e) (f) How responsible, trustworthy and mature is the paralegal? Does the paralegal have good interpersonal and language skills? Is the paralegal efficient and well organized? Does the paralegal possess good interviewing and diagnostic skills? Does the paralegal display a strong understanding of both the substantive and procedural law governing the matter to be delegated? Does the paralegal strive for continuous self improvement, rise to challenges, etc.? 2013 Clark Wilson LLP 19