Suspended lawyers acting as paralegals in limbo

The Paralegal Society of Ontario says it’s “seriously concerned” about Law Society of Upper Canada regulations allowing disbarred and suspended lawyers to apply for paralegal licences, an issue that culminated in Mississauga, Ont., lawyer David Robert Conway’s successful appeal of his disbarment this month.

“As an organization, we’ve made it perfectly clear to the law society that we highly object to a lawyer applying to serve as a paralegal when they’ve been suspended or disbarred,” says Janet Wigle-Vence, treasurer of the paralegal society.

According to Wigle-Vence, while paralegals serve clients in a limited scope compared to lawyers, the regulator should hold both types of practitioners to a similar standard of character.

“If they can’t pass the test to serve as a lawyer, it doesn’t make sense that they would be allowed to serve as a paralegal,” she adds.

The law society began to regulate and license paralegals in May 2007. In its new regulations, it determined lawyers could continue to serve as paralegals without a licence if they had practised in that capacity prior to May 2007 by qualifying as “grandparented paralegals.”

To do this, applicants must also have applied for a paralegal’s licence by Oct. 31 of the same year, had professional liability insurance, and complied with its professional conduct rules.

At least one amendment to the regulations in 2008 also stipulated that these grandparented paralegals couldn’t hold both a paralegal and lawyer’s licence at the same time.

A similar amendment also stated that a disbarred or suspended lawyer’s application for a paralegal licence could only be refused during a hearing chaired by a law society hearing panel.

So far, the regulations have resulted in several grandparented paralegal applications from disbarred and suspended lawyers, says Wigle-Vence.

“We’ve definitely received several applications under the grandfather clause that we still need to review, although I don’t have the total numbers for the number of disbarred or suspended lawyers that have applied.

But the fact that lawyers who haven’t passed the test to be a lawyer are applying to become paralegals raises concerns about them being allowed into our ranks.”

The issue surfaced this month in Conway’s successful appeal of his disbarment. The LSUC disbarred him in May after a hearing panel found he had engaged in professional misconduct in three separate cases by acting as a paralegal in the Small Claims Court between 2007 and 2009 despite not having a licence.

It originally suspended him administratively in 2000 for not paying his LawPRO fees.

Representing himself on the appeal, Conway argued that the law society had erred in dismissing his application for a paralegal licence under the new regulations by not holding a proper hearing to discuss the matter and by finding him to have engaged in professional misconduct by serving as a paralegal.

A five-member law society appeal panel agreed with Conway’s arguments this month given its view that “since the appellant was entitled to have his application processed, and to a good character hearing, at the society’s instance, the society was not authorized, in law, to effectively refuse his application by declining to process it.

The society was also not authorized, in law, to disqualify the appellant from status as a grandparented paralegal based on the facts.”

The panel went on to allow Conway’s appeal and set aside and dismissed the findings of misconduct as well as a $5,000 costs order against him.

“I thought the appeal panel’s ruling was fair,” Conway tells Law Times. “They dealt with the real issues involved while the previous panel did not.

On the one hand, it feels good to reach a decision, and on the other hand, I haven’t been able to work for seven months. I’ll have to start rebuilding my practice and I received no cost awards from the law society.”

Conway adds he was disturbed by the fact that, according to him, the law society took four different positions on the rules and regulations related to grandparented paralegals and paralegal licensing during his case.

This caused the LSUC to contradict itself, he claims, noting it first cited issues related to his suspension and later went on to say he couldn’t hold two licences simultaneously while applying for paralegal status under the new guidelines.

“The LSUC essentially gets to walk away in all of this,” he says. “No one holds them accountable when they make mistakes and they don’t acknowledge it and take responsibility for their actions.”

For its part, the appeal panel found there was nothing “implicit or explicit in the act or bylaw 4 (before or after its amendment on January 24, 2008) that dictates that a suspended lawyer cannot apply for a Class P1 licence or qualify as a grandparented paralegal pending the resolution of that application.”

It added: “Of course, if such an applicant successfully meets the preconditions for the issuance of a Class P1 licence, including where required, proof of his/her good character at a hearing, the issuance of that licence cannot occur until his/her Class L1 licence has been surrendered or revoked.”

But in e-mailed responses to questions on the issue, law society spokeswoman Denise McCourtie reiterated the LSUC’s position that “it is possible for lawyers who have had their licences revoked for disciplinary reasons to apply for either a lawyer licence or paralegal licence.”

“In many cases, they will be required to first demonstrate that they have been rehabilitated and are presently of good character,” she added.

“Under the Law Society Act, an applicant for a licence who meets all other requirements but whose good character is in issue cannot be denied a licence without a hearing before the hearing panel.”

McCourtie noted that the law society’s bylaws also stipulate that suspended lawyers applying to become licensed paralegals can’t hold two licences at the same time.

“If an individual holds a licence as a lawyer that is suspended, that person must resolve the issue that led to the suspension and surrender his or her licence before he or she can be licensed as a paralegal,” she said.

But according to disbarred lawyer and legal activist Harry Kopyto, there are inherent contradictions in the rules that the law society doesn’t want to acknowledge. '

“The real reason or the elephant in the room that everyone knows but no one is saying is that any lawyer who is subject to grandparenting or is accepted as a paralegal has to establish they are of good character,” he says.

“Yet when lawyers are disbarred or suspended, it is presumed they are, of course, not of good character, which begs the question: if they are allowed to be licensed as a paralegal, why would they not be allowed to be licensed as lawyers?”

Kopyto adds that although several disbarred or suspended applicants have applied to become paralegals, few have been successful.

“They are worried that disbarred and suspended lawyers will begin using this as a back door to get into the legal profession. They are worried it could be used to circumvent the normal way of becoming a lawyer.”

For more, see "Disbarred lawyer challenges LSUC."

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