Whether you use legal services for your business or for personal matters such as family law, the high cost can be a barrier. Access to justice is of great concern to lawyers, law societies and judges throughout Canada.
As of Jan. 1, 2013, the Law Society of British Columbia implemented changes to its rules to help expand public access to competent and affordable legal services. These changes are intended to help lower costs in some areas by allowing certain paralegals at law firms to be "designated paralegals," permitted to give advice under the supervision of a lawyer. Designated paralegals have a limited right to appear in court, subject to the matter and the court.
The thinking is this: if the charge-out rate for a designated paralegal is $100 an hour as opposed to the lawyer's $350 an hour, then simpler legal matters such as uncontested or procedural court appearances could be delegated, saving the client money.
The supervising lawyer must be confident that the paralegal has the appropriate training and capabilities to take on these additional responsibilities because at the end of the day, the lawyer will be responsible for all work done by the designated paralegal.
Unlike Ontario, where paralegals are regulated by the Law Society of Upper Canada, paralegals in B.C. are not regulated. Lawyers in B.C. have always been responsible for their paralegals. So any complaint against a designated paralegal will be treated as if the lawyer had engaged in the contentious conduct.
The Law Society of B.C., the B.C. Supreme Court and the B.C. Provincial Court have partnered to create a two-year pilot that will give designated paralegals the limited right to appear in court. For now, designated paralegals will only be able to appear in family law proceedings. In B.C. Supreme Court, the pilot project is limited to the Vancouver, New Westminster and Kamloops registries, while in B.C. Provincial Court, it's limited to the Cariboo/Northeast District and Surrey.
Designated paralegals will deal primarily with non-contentious procedural matters and their supervising lawyers will need to provide the paralegals with an affidavit to be filed on first appearance in court. Essentially, supervising lawyers should engage in what might be called "file triage" to determine whether their designated paralegals have the proper experience and knowledge to give legal advice in a particular matter.
If the court is concerned that a designated paralegal is not sufficiently prepared or competent to speak to the matter, the court can require the supervising lawyer to attend. Supervising lawyers must also be available to the designated paralegals by telephone on dates of appearance.
One of the big hopes is that, by lowering the cost of some legal services, the project will reduce the number of unrepresented litigants in B.C. courts and trim the delays they often cause, thus speeding up the system.
The designated paralegal project in the courts will be under review by the Law Society of B.C. and the courts to assess whether it accomplishes the goal of reducing the cost of legal services.
On the "business law" side, a supervising lawyer will be permitted to allow a designated paralegal to give advice directly to the client on appropriate files. This arguably removes a step in which the lawyer would have to review all the work performed by the paralegal and bill the client for the time spent reviewing it, thereby reducing the costs of those legal services. And again, it's the supervising lawyer who will be fully responsible for the work, so his or her neck will be on the line. This places a hefty onus on the supervising lawyer.
To the extent members of the public were not using lawyers to get specialized advice because of the cost – startup businesses might be one example – the new initiative gives law firms a tool to approach those potential clients who might have avoided them and obtained (bad) advice and documentation off the Internet. They might try to attract particular types of business clients by having the work performed by designated paralegals.
It's a bold step for the Law Society of B.C. But admittedly, it will take public demand for lower-cost services and the willingness of lawyers to designate trained paralegals to have any real impact on access to justice.
Tony Wilson is a franchising, licensing and intellectual property lawyer at Boughton Law Corp. in Vancouver, he is an adjunct professor at Simon Fraser University (SFU), and he is the author of two books: Manage Your Online Reputation, and Buying a Franchise in Canada. His opinions do not reflect those of the Law Society of British Columbia, SFU or any other organization.
Tony Wilson