Bifurcating the scope of legal practice limits access to justice and hurts the public interest
My friend Ian Wilkinson passed away in May from cancer.
I got to know Ian during a Divisional Court matter in Stratford. During a break in the proceedings, I invited him out for a coffee, and he accepted.
The purpose of the coffee invite was entirely self-interested on my part. I wanted to try to break the ice in a contentious litigation matter in the hope of finding a resolution. While we never achieved a resolution, I gained a new friendship that day.
Ian was a paralegal. Ian was also a university and law school graduate. He elected not to become a licensed lawyer and practised as a paralegal in Southwestern Ontario for almost 30 years.
Ian was smart, conscientious and hard-working. He was also ethical, courteous and civil. Ian was a professional.
I think a lot about Ian, and I am struck by the fact that there was very little difference between us professionally. While I’ve been a lawyer for 19 years, the only real difference is that I achieved the licensing requirements established by the Law Society of Upper Canada (as it was then) to be a lawyer. Ian chose not to obtain the LSUC’s imprimatur as a lawyer, but he exceeded those requirements in every way.
Ian’s story is not uncommon among paralegals. I’ve had the pleasure of meeting and working with many over my career. As with lawyers, there are all kinds, good and bad, but never in greater proportions than I find among lawyers. The good ones are respected and capable. For instance, Ian got the better of my firm in the lower court with an exemplary display of advocacy and litigation skill. We eventually met the challenge in the Divisional Court.
There has been much discussion recently about the role of paralegals in the legal profession. Paralegals have been absorbed into the regulatory environment in Ontario and elsewhere, but it remains an uneasy arrangement. A nascent turf war between lawyers and paralegals bubbles to the surface with regularity — most recently in Ontario with the Bonkalo report that examined the role of paralegals in providing family law services. There is conflict within the regulators. Some lawyers seek to ring-fence their profession, ostensibly on the grounds of competency standards, but always with the added benefit of eliminating competition. Paralegals seek standing and the ability to provide services to the public commensurate with their abilities and to meet public demand.
The legal profession is regulated in the public interest. Legal regulators have guaranteed to the public that those providing legal services meet certain minimum standards of competence. In exchange for providing that guarantee, the legal profession has been afforded the privilege of self-regulation.
However, what if the regulators ceased providing that guarantee? What if the provision of legal services was deregulated? What if any member of the public could provide legal services or retain anyone else on their behalf to provide those services?
The services would be either good or bad, but it would remain an issue to be resolved like any other provision of goods and services in the marketplace. The good lawyers and paralegals would remain good, highly sought after by clients, finding success in the professions and the courts. The bad ones would find themselves much as they do now, like any purveyor of poor products or services, struggling for clients, untrustworthy, perhaps facing legal challenges from duped or harmed clients and the public.
Like it or not, deregulation is the reality that is overtaking the legal profession, with increasing numbers of self-represented litigants providing unregulated legal services. Regulators continue to expand the legal services that non-lawyers, including paralegals, can provide. The internet provides the public with the unfettered ability to find and compare more and more information on legal services providers. The strength and desirability of referrals from trusted sources continue to drive the profession.
Access to justice has assumed priority in terms of the public interest.
Against this backdrop, it is increasingly absurd to have an anachronistic regulatory environment that attempts to bifurcate the scope of practice between lawyers and paralegals, with turf war disputes playing out within the regulators.
The public does not care. The public interest is better served with more Ian Wilkinsons.
