Paralegals (Court Agents): Their role in the courts etc.
In 1964, I
became the first paralegal (court agent) in Canada. As the years went by, I was
representing clients in courts in 12 cities in Southern Ontario, The cases I
undertook were traffic, criminal, civil, (small
claims), family, landlord and tenant and labour. I also
prepared Wills, Separation Agreements, Business Contracts, and Appeals. By the
time I retired from the practice of law, I was in court approximately 50 or
more times in any given year. I represented close to a thousand clients
during those years. Two judges who saw me in civil court waiting for my
client's case to be called, asked me to give the court my legal opinion on the
issue being heard at that moment. Another judge came to my office and asked me
to help him research case law for a court decisions he was going to make. I
also represented two lawyers in court---tax court and traffic court. I won
80% of the cases I undertook. I also studied criminal law and family
law in two universities. The United Nations has classified me as an Individual
Expert on criminal law because of my speeches on criminal law at UN conferences
around the world. I was also a member of Small Claims advisory committee and
the chairman of a task force that comprised of three members of the Ontario
Legislature, three law professors, three lawyers, two criminal judges, a senor
prosecutor and the chairman of the Law Reform Commission. I also addressed
provincial legislative committees, a Senate committee and conferences in Canada
on criminal issues.
I was no slouch
when it came to my practice of law and any lawyer and prosecutor who had the
temerity to say to a judge, "But your Honour, Mister Batchelor isn't a
lawyer." did so at his own peril. I am sorry I am blowing my
own horn but I am doing this so that you will understand why I wrote the
following article for the Lawyers Weekly What follows is my
article.
_______________________
In the August 19th, 2005
edition of the Lawyers Weekly, Vern
Krishna, a lawyer in Ontario, wrote in part in his column; “The broad
definition of the practice of law protects consumer interests by restricting
unauthorized practice. The broader the definition becomes, the greater the
reduction in non-lawyer competition, which can result in increased prices for
legal services and ultimately harm consumers.”
Surely there can be no doubt in his
reader’s minds that if Mr. Krishna could have his way, the definition of the
practice of law would be so broad, it would excise paralegals from the justice
system entirely and that certainly would reduce non-lawyer competition and as a
consequence, lawyer’s fees would be increased and invariably, the consumers
would suffer.
It would appear from his column that
the way to resolve the paralegal question is, and I quote; “Non-lawyers
(paralegals) who deliver legal services engage in unauthorized practice.”
Obviously anyone who engages in the unauthorized practice of delivering legal
services does so at his or her detriment with serious consequences so in
effect, the paralegals who offer legal services would eventually become
extinct.
Mr. Krishna wrote, “The principle
difficulty in distinguishing between licenced and unauthorized practice is in
defining what constitutes the practice of law.” Mr. Krishna in my respectful opinion
is implying that if paralegals are practicing law while unregulated and
licenced, they are unauthorized to practice law. Unfortunately, he is of the
mistaken belief that paralegals are not permitted to engage in the practice
law.
He quoted the American Bar
Association’s definition of the practice of law when he said that the practice
of law is ‘the application of legal principles and judgment with regard to the
circumstances or objectives of a person that require the knowledge and the
skill of a person trained in law.’
There are some areas of law that
should be handled by lawyers only and paralegals should stay away from those
areas of law. However, there are many statutes in Ontario that permit paralegals to deliver
legal services to their clients. Non-lawyers are permitted by law in Ontario to represent
their clients in small claims courts, family courts, provincial offences and
traffic courts, landlord and tenant tribunals and more than 100 other tribunals
covering various aspects of law. Even on occasion, paralegals have acted on
behalf of their clients in Ontario
divisional courts. Federal legislation
even permits paralegals to practice law in criminal courts and immigration
tribunals.
The substantive law argued in courts
and tribunals by paralegals is no different than that presented in the Superior
Court or the Courts of Appeal by lawyers. Admittedly, the procedural aspects of
both courts are different but when a paralegal is in small claims court
representing clients, he has the same standing as lawyers who appear in that
court. The same applies in criminal courts, provincial offences and traffic
courts and provincial and immigration tribunals. In order for the non-lawyers
to provide proper services to their clients, they have to offer legal advice to
them. They argue substantive and procedural law, prepare motions and argue them
in court while conducting the trials and hearings of their clients. To do
otherwise, would do their clients a great disservice.
As I see it, court and tribunal
agents (paralegals) who represent clients in courts and tribunals after having
prepared their client’s pleadings, are in the practice of law. When a member of
a bar association who appeared at the Cory hearings took issue with that, Mr.
Justice Cory asked, “If they are not practicing law, then what are they
practicing?” There was no reply given.
I think Mr. Krishna should stop
condemning paralegals until he knows what he is talking about. Admittedly, he
is right when he implies that there are some paralegals (not unlike some
lawyers) who should be condemned for their dishonesty and incompetence but
painting all paralegals with the same brush is unfair. Not once did he have
something nice to say about paralegals in his column. His comments were simply
not balanced.
It didn’t surprise me one bit that
Mr. Krishna doesn’t favour paralegals giving legal advice to their clients. Mr.
Justice Cory, in his introductory remarks in his report to the Onrario
government on the role of paralegals in the legal system, said in part, “….it
would be contrary to human nature to expect a member of the legal profession to
accept that anyone, other than a lawyer, could appropriately advise and
represent members of the public on matters that contain any possible aspect of
legal advice or action.”
I do agree with Mr. Krishna’s
remarks however that paralegals should be regulated. Most paralegals don’t take
issue with that. But to suggest that while we await regulation, paralegals who
prepare pleadings and argue substantive law in courts and tribunals are not engaged
in the practice of law is…..well, I will leave that entirely to my reader’s imaginations
to choose the appropriate objective.
______________________
From the
middle of the first decade of this century, paralegals who work on their own in
Ontario are governed by the Law Society of Upper Canada. They cannot prepare
Wills or Separation Agreements or practice in family law.
I didn’t
spend all those years practicing law but after I returned to the practice of
law in 1990, I continued representing clients in the courts until I retired
from the practice of law at age 72 in 2006 so that I can spend the rest of my
life writing books. So far, six of them have been published and two more will
be published by the end of this year.
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