Paralegal Regulation – C.O.B.A. November 1, 2007 Presenter: Zeynep

Paralegal Regulation – C.O.B.A. November 1, 2007 Presenter: Zeynep Onen Director of the Professional Regulation Division Law Society of Upper Canada

Categories of License Applicants Grandparent Applicants: Currently working as paralegals. Transitional Applicants: Do not meet “grandparent” criteria; are not graduates from fully accredited paralegal program of instruction. Graduates from fully accredited paralegal program of instruction; first graduates expected 2010. 2

Common Criteria to Current Applicants Good character. Criminal background search (police). Certificate of E & O insurance; 1 million & aggregate 2 million per annum. Undertake to obey LSUC rules, by-laws & regulations. Statement of Reference from two referees. Pass the licensing examination 3

November 1st. Onwards November 1st: Grandparent window is closed. November 1st. –1st quarter 2008: Completion of the “grandparent” licence process; including three sittings of licensing examination. January 17, 208: First sitting of licensing examination May 2008 : First paralegal licences and regulation begins. 2010: Graduates of fully accredited paralegal program. 4

Scope of Paralegal Practice Section 5 of By-law #4; Represent parties in actual or intended proceedings, In Small Claims Court, In Ontario Court of Justice; Provincial Offences Act, In summary matters under the Criminal Code of Canada, Before a federal or provincial tribunal, or Before a person dealing with a claim under sections 280, 280.1, 282 or 283 or 284 of the Insurance Act. 5

“Provision of Legal Services” Sections 1(5) – 1(7) of the Law Society Act defines “the provision of legal services” A holder of a paralegal licence is permitted to; Give advice with respect to legal interests, rights, responsibilities re an actual or intended proceeding in permitted areas of practice; Give advice with respect to legal interests, rights or responsibilities with respect to the subject matter of a proceeding; 6

“Provision of Legal Services” Negotiate a party’s legal interests with respect to permitted proceedings; Draft or assist with drafting documents for use in the permitted proceedings or that affect a party’s legal interests re a permitted proceeding; and Do anything mentioned in section 1(7) of the Law Society Act, provided activity is permitted by rules of procedure governing a proceeding. 7

“Deemed Not to Practice Law or Provide Legal Services” Individuals are deemed by statute or by-law not to be practising law or providing legal services. These individuals do not need a licence to practice law as a lawyer or to provide legal services as a paralegal. 8

“Deemed Not to ” Section 1 (8) of the Law Society Act Five categories of individuals who are deemed not to practice law or provide legal services; – Individuals regulated by another statute; – Corporate Officer or Employees; – Self Represented persons; – Trade Unions; and – Deemed by the Law Society 9

“Deemed Not to ” By-Law #4 – Part IV Section 28 Two categories of individuals who are deemed not to practice law or provide legal services; – Aboriginal Courtworker Program; and – Other Profession or Occupation. 10

Providing Legal Services without a Licence; “Exemptions” A challenging issue! Many organizations, different levels of governments, etc. have made and continue to make submissions on possible exemptions to the LSUC’s Task Force on Paralegal Regulation and to the Government. 11

“Exemptions” By-law #4 Part V Sections 30 – 34 Two types of exemptions from licence requirement; – Full exemption; and – Limited exemption. 12

“Limited Exemptions” By-law #4 Part V sections 31 – 33 Categories of individuals who may provide some specified legal services without a P1 licence But will require a P1 licence to provide the full array of legal services. 13

“Limited Exemptions” Four categories of individuals have limited exemptions; Office of the Worker Advisor; Office of the Employer Advisor; Injured workers’ groups; and Trade unions. 14

“Full Exemptions” Nine categories of individuals who may provide all paralegal legal services without a licence; 1. In-house legal service provider; 2. Legal clinics; 3. Student legal aid services societies; 4. Not-for- profit organizations; 5. Acting for family, friend or neighbour; 6. Constituency assistants; 15

“Full Exemptions” 7. 8. 9. Other Profession or occupation (four named organizations); Articling students; and Individuals who have applied for a P1 licence. 16

Two Year Review No later than May 1, 2009 the Law Society will assess the extent to the exemptions granted should be maintained or revoked. The Law Society is not required to assess the extent to which the “deemed not to “ categories should be maintained or revoked. 17

Individuals who have applied for a P1 licence An individual; – Prior to May 1st her or his profession was or included the provision of legal services; – Has applied by October 31st to Law Society for a licence; – Has E&O insurance; and – Who complies with Paralegal Rules of Professional Conduct. 18

Individuals who have applied for a P1 licence May continue to provide the legal services authorized by a P1 licence until; The day she or he is granted a licence if granted a licence prior to May 1, 2008; or If not granted a licence before May 1 st, the later of; – April 30, 2008; – The day she or he is granted a licence; and 19

Individuals who have applied for a P1 licence – The effective date of the final decision or order, with respect to the individual’s application for a Class P1 licence, Of the Hearing Panel, or Of the Appeal Panel, if there is an appeal from the decision and order of the Hearing Panel. 20

How will we know who is licensed? Number of exemptions and “deemed not to” makes this challenging. Law Society has a website of names of licence applicants – Couple of weeks behind due to the number of applications received just before Oct. 31st. Law Society has a website of names of all licensed individuals. 21

Jurisdiction Law Society has no jurisdiction over a paralegal until she or he is licensed. However, until paralegal licences are issued the Law Society may investigate and prosecute an individual for practising law and providing legal services without a licence. And complaints about a paralegal’s unprofessional conduct could be relevant to her or his “good character’. 22

Licensing Examination Topics include Professional Responsibility, Ethics and Practice Management. Topics intended to mirror the lawyer competencies and were derived from: – The Paralegal Rules of Conduct; – Consultations with courts and tribunals; and – Areas within the permitted scope of practice. 23

Licensing Examination Format of Exam: - Multiple-choice and open book. - About 120 questions and 3.5 hours in length. - Pass / Fail. LSUC will provide the materials needed for exam preparation; including a Guide to the Paralegal Licensing Exam. 24

Licensing Examination For Grandparent and Transitional candidates who apply by October 31, 2007: First sitting: January 17, 2008. Re-writes: February 27 and April 2, 2008. 25

Rules of Professional Conduct OBJECTIVES: Consistent with the Rules of Professional Conduct for lawyers Focused on the ethical and professional obligations of paralegals Clear and accessible for paralegals and the public Enforceable in a clear and transparent process 26

Guidelines to the Paralegal Rules Development of Guidelines to the Paralegal Rules of Conduct is underway. Intended to be remedial – not to create any new obligations. Will include commentary from the Rules of Professional Conduct, practice tips and information from the Paralegal Licensing Materials . First draft by the end of 2007. 27

By-Law #7.1 made October 25, 2007 Operational Obligations and Responsibilities Clarifies the professional responsibility of a lawyer licensee to appropriately and properly assign tasks to and and supervise her or his staff. Stipulates what tasks require direct supervision by the lawyer license and what tasks may not be assigned. 28

Books & Records Bookkeeping: All licensees are required to keep proper books and records. This requirement is effective for paralegals upon being licensed. 29

Trust Accounts All Paralegals will be required to comply with trust accounts rules as soon as they are licensed. Paralegals who (a) do not receive fees in advance of rendering service and (b) do not receive other client monies such as settlements will have the option of not establishing a trust account 30

Trust Accounts Transitional Period Available to “grandparent” applicants only. Applies solely to fees collected prior to licensing. Transitional period starts on the day the applicant receives licence and ends on May 1, 2010 (even if the services have not been provided.) 31

Trust Accounts Transitional Period Funds received by a grandparent applicant prior to licensing may be left in the operating account until services are provided but funds must be transferred to trust account by May 2010 if services have not been provided. All other funds received after licensing must be placed in a trust account (even if the monies relate to a pre-existing file). 32

Professional Corporations Business corporations are not permitted to provide legal services to members of the public. Once licensed all licensees may practise or provide legal services as sole practitioners, partners or in a professional corporation. 33

Questions ? 34