Executive Summary, excepted from The Report to the Attorney General of Ontario, Pursuant to Section 63.1 of the Law Society Act (June 2012)
(Paralegal 5 Year Review)
At the request of the Ontario government, and following assessment and study dating back to at least 1990, the Law Society of Upper Canada assumed responsibility for the regulation of paralegals in 2007. This represented an important change to the role of the Law Society, and an expansion of its mandate to cover the regulation of all legal services provided in Ontario.
The Law Society Act amendments through which this was implemented also created the requirement for reviews of paralegal regulation, after two years and again after five years.
When the then-Attorney General, The Honourable Christopher Bentley, tabled the two-year review in the legislature in March 2009, he commented, “The Law Society has made tremendous progress so far and I am confident it will continue to oversee the regulation of paralegals in the same professional and dedicated manner in which it put the regulatory system in place.”
This report is the outcome of the five-year review and demonstrates effective progress in the regulation of licensed paralegals in the intervening years.
The Review Process
In reviewing the effect regulation has had on paralegals, particular emphasis was placed on whether the Law Society has established fair and transparent licensing processes, reasonable standards of competence and conduct, and fair and transparent investigative and disciplinary processes.
In reviewing the effect of regulation on members of the public, particular focus was placed on whether Law Society regulation has established reasonable standards of competence for licensed paralegals in Ontario, accessible information about the legal services available in Ontario, and accessible and transparent complaint and disciplinary processes for the public.
The Law Society retained a consultant to conduct extensive background research on the subject of the review, including focus groups with paralegals and members of the public who have used paralegal services, key stakeholder interviews and surveys of licensed paralegals and users of paralegal services. These research findings have informed the report’s analysis.
The Law Society also solicited submissions from paralegals, lawyers, legal organizations and members of the public. Twenty-six were received, 12 from organizations and 14 from individuals. All of these submissions have been considered in the preparation of this report.
Paralegal Regulation Today
As of December 31, 2011, the Law Society had licensed 4,096 individuals to provide legal services within the paralegal scope of practice. Primary areas of practice include small claims court, traffic and other provincial offences, landlord tenant and various other matters handled by tribunals and administrative bodies, and minor matters under the Criminal Code. A majority of paralegals (62 per cent) practice outside Metropolitan Toronto.
A significant proportion of licensed paralegals are carrying on practices established prior to regulation, with 2,230 having taken advantage of the grandparenting and transitional provisions. There was a high success rate on the part of these applicants, and therefore minimal mid-career disruption among long-term paralegals.
With that process complete, current applicants for licensing must graduate from one of 24 accredited college programs offered by 22 institutions around the province (including one French-language institution). Accredited programs must meet defined criteria and pass regular audits. In 2011, 604 licenses were issued to graduates of these programs.
Licensing examinations are available three times annually, and licensing candidates must also be of good character, a consistent standard for both lawyers and paralegals. The Law Society Act provides that no one who meets the other licensing requirements can be refused a licence on the basis of good character without a hearing. In the grand-parented and transitional licensing categories, 45 cases involving good character were referred to a hearing, and in 22 cases a licence was denied. 3 Report to the Attorney General of Ontario Pursuant to Section 63.1 of the Law Society Act.
Once licensed, paralegals are subject to regulatory requirements that closely parallel those applicable to lawyers. Key elements include adherence to rules of professional conduct and requirements regarding trust accounts, insurance and continuing professional development, payment into a compensation fund, and the application of investigative and disciplinary processes. These requirements are central to a system of regulation that safeguards the public interest. Research conducted as part of the review process indicates that licensed paralegals are working to a higher standard of competence and enjoying enhanced professional standing. Further, paralegal clients are highly satisfied with the regulated services they have received.
As members of a regulated profession, paralegals also have the benefit of a wide range of resources provided by the Law Society. These include continuing professional development programs, a practice management helpline and mentoring services. The Law Society also implemented a practice audit program for paralegals, an integral part of the quality assurance activities in the public interest. The audits provide practical advice to help paralegals achieve effective and efficient practices.
Annual Law Society fees charged to paralegals compare favourably to those applicable to various other regulated professions, and fee revenues were sufficient to avoid incurring an anticipated deficit in the start-up phase of regulation. In addition to the requirement to pay an annual fee, licensed paralegals are required to file a Paralegal Annual Report. The reports provide demographic data, areas of legal services provided, maintenance of trust accounts and other financial information, and self-study activities.
Paralegals were integrated into the Law Society’s governance structure through an election process for five paralegal members of the Paralegal Standing Committee, established under the Law Society Act. The Committee is composed of the elected paralegals and elected and lay benchers. The first election of paralegal members of the Committee was held in March 2010. In the relatively short period of its existence, the Committee has completed an extensive agenda, developing all the necessary details of the regulatory model for recommendation to the Law Society’s board, Convocation. The committee has worked very collegially together without tension between the paralegal and non-paralegal members.
Overall Results of the Review and Conclusions
The review has shown that implementation of the Law Society’s regulation of paralegals has been successful. The Paralegal Standing Committee agrees, but also notes that the review identified opportunities that merit further consideration.
In summary, the report has demonstrated the following:
- Consumer protection has been balanced with maintaining access to justice and the public interest has thereby been protected. Paralegals operate within a regulatory framework that closely parallels that for lawyers and are establishing a prestigious and well-regarded profession. A large majority of them (71 per cent) believe regulation has been beneficial. The Law Society was the right choice of regulator, having put in place a framework at a reasonable cost and without undue burden on licensed paralegals. Extensive services are in place and issues have been addressed as necessary to ensure paralegals are treated as respected legal services providers. It is implausible that a new regulator could have achieved comparable progress.
- The large group of paralegals who were providing legal services before regulation have been integrated into the regulated profession through a fair and transparent grandparenting process, with the one caveat that the good character hearing process was perceived as slow.
- Initial cohorts have graduated from the accredited paralegal college programs. Submissions to the review included calls for more rigorous program standards and for a pre-requisite of two years of college education.
- In spite of extensive communications work by the Law Society, public awareness has not kept pace with changes in the legal services market, particularly with respect to awareness of the distinction between services provided by lawyers and services provided by paralegals.
- The categories of those who provide legal services but are exempt from licensing continue to provide challenges. The Law Society believes the number of exemptions should be further reduced over time. Tracking mechanisms regarding appearances before tribunals by exempt persons are also needed. 4 The L aw Society of Upper Canada June 2012
- Some anomalies remain in older provincial statutes that were not among the many amended when regulation was implemented, and the Law Society continues to work with government in this regard.
- The governance structure in the Law Society Act has worked well. Paralegal and non-paralegal members of the Paralegal Standing Committee work together cordially and no Committee report has ever been rejected by Convocation. The initial allocation of two paralegal benchers, however, will become increasingly disproportionate as the number of licensed paralegals increases.
- Most paralegals (68 per cent) are satisfied with overall progress to date with respect to Law Society regulation. Key benefits to them include enhanced credibility and prestige, and access to a wide range of services.
- Among the concerns the review disclosed, some relate to the activities of peers within the paralegal profession, for example, in the use of certain business names and marketing practices. Some paralegals see the regulatory enforcement as too lenient.
- While a significant proportion of paralegals (62 per cent) said they were satisfied with the scope of practice, some believe it should be expanded. The Law Society is actively considering whether changes to the scope of practice are appropriate, based in part on the recent Legal Needs Analysis, which is currently under committee review. Consultations on this issue are envisioned.