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 19^th, 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.