Update: Paralegals call truce over law society motion

An expected clash between family lawyers and paralegals at the Law Society of Upper Canada’s annual general meeting this week won’t be happening following the withdrawal of a controversial motion.

A proposal on the agenda for the meeting would have asked the law society to report on the possibility of expanding paralegal practice to include “preparing family law documents, representing before the family court for certain matters, drafting incorporations, and drafting uncontested divorces,” a proposal that’s left family lawyers up in arms.

But now Marshall Yarmus, the paralegal pitching the motion, is withdrawing it. “We have been given the assurance that it is the desire of the paralegal standing committee to examine paralegal scope of practice prior to the legislated 2012 review of the Access to Justice Act, 2006,” Yarmus said Monday.

In announcing the withdrawal, Yarmus said getting the motion passed would have been difficult given the fact that there were so many more lawyers eligible to vote than paralegals. He noted as well that, if paralegals aren’t satisfied with the standing committee’s progress on the issue, they can launch the motion again next year.

“This motion has served its purpose,” said Yarmus. “It has obtained the much-needed attention of the media, lawyers, paralegals, and the law society to the need and desire for an alternative for the many people every day who attend family court unrepresented as they can not afford a lawyer yet they do not qualify for legal aid.”

The proposal had both lawyers and paralegals scrambling to gather enough supporters to pack the meeting and win the vote, which was to be decided by a simple count of hands on Wednesday with no proxies allowed.

Chris Surowiak, president of the Paralegal Society of Ontario, says his group supported the motion because it would have merely restored services many of its members performed before 2007 but lost when the LSUC began regulating paralegals.

“When family law was taken away from paralegals, it created a void for the public, and there were not a lot of lawyers ready to jump into that void,” he says.

“Many highly qualified practitioners have been prohibited from providing services in those areas. The public will benefit if they are reintroduced because they will have choice, and there will be more access to justice.”

Yarmus, a former vice president of the paralegal society, was planning to use the group’s own annual general meeting this past weekend to build support for it. He notes he still gets calls every week asking for family law services, mainly from people who don’t qualify for legal aid but can’t afford a lawyer.

“A huge proportion of people who appear in family court go unrepresented in court. Paralegals can fill the gap and not steal business away from lawyers. There’s enough people out there in the family court to go around.”

But that misses the point, according to Georgina Carson, chairwoman of the Ontario Bar Association’s family law section. She says the complexity of family law requires expertise only a lawyer can provide and suggests that’s precisely why the law society omitted it from areas of paralegal practice.

The OBA group had joined the Family Lawyers Association (FLA) in urging members to attend the law society meeting and vote down the motion. The FLA began a poster campaign in courthouses around the province urging lawyers to attend the meeting in person.

“Family law is not about filling out forms,” Carson says. “It’s about knowing the whole context of the law. Family law lawyers alone are qualified to steer families through the constantly evolving interplay between complex legislation, case law, and precedent to try and arrive at a workable family law solution.”

Carson also says the potential consequences of poor practice, especially when children are involved, are too serious to risk ceding any ground to paralegals in the area.

“People cannot be making life-altering decisions with incompetent - and I say that in the kindest way - but truly incompetent advisers. A six-month course in a college program is not going to give someone the background in all of the areas of the law that impact on family law decision-making and family law advice.”

Yarmus, however, says the law society could play a role in outlining which family matters are appropriate for paralegals to deal with. He points to an LSUC bylaw that limits paralegal representation in the criminal courts to summary convictions.

“There are some matters that are complicated, but I think the law society can evaluate it and set a guideline and say, ‘Beyond this step, you must go to a lawyer.’”

Yarmus says he decided to file the motion because the law society’s structure makes it difficult to raise the expansion issue in any other way.

“Right now, we have a paralegal standing committee, and the paralegals are a minority on their own committee. So they don’t have the power to force change in the law society. If we wait for the lawyers who control the law society to allow paralegals into these areas of practice, we could be looking at many years into the future.”

It’s not just family lawyers who are leery of paralegal expansion. James Morton, a past president of the OBA and currently head of the litigation group at Steinberg Morton Hope & Israel LLP, warns a successful motion could have paved the way for even greater scope of paralegal practice.

“The problem is there is a real danger of mission creep and that paralegals will have their jurisdiction expanded well beyond that which they are trained to deal with,” he says. “From my standpoint, the protection of the public says that the scope of paralegal practice has to be very precisely and narrowly defined.”

Morton acknowledges there may be a role for paralegals in family court to improve access to justice but says it’s important to approach the issue with extreme care.

“This isn’t just another sleepy AGM,” he says. “What’s behind it is the future of the law society and the future of the legal profession.

I don’t think it’s extreme to say that if paralegal practice expands materially, we could end up with a bifurcated bar. Paralegals will have one type of practice, and lawyers will have a different type of practice, which would be to the detriment of lawyers, paralegals, and the public.”

Morton believes much of the tension between paralegals and the law society stems from the grandfathering of paralegals already practising before regulation, many of whom found themselves having to halt their work in certain areas. He says the issue may dissipate as they work their way through the system, something that could take decades.

“The issues may be teething problems more than anything else but they are real issues, and I think lawyers have to recognize and address them because otherwise we’ll have paralegals doing things they shouldn’t be doing.”

Surowiak agrees the issue is one that needs consideration. But he reminds concerned lawyers the motion only asked the law society to look into possible expansion of paralegal practice.

“It’s just a report,” he says. “With open communication, it’ll be positive for the legal profession, and ultimately the public will benefit.”

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