UPDATE: ACCESS TO JUSTICE ACT

A while back, I posted the turbulent history of Ontario's regulation of Independent Paralegals, which includes me.

A lot has happened since that post and it is important for me as a professional to keep the public informed on its progress. As stated in the last post, the Law Society of Upper Canada was legislated to take over the regulation of Independent Paralegals, as well as the regulation of many Paralegals that work for employers but do similar work to those that work independently. The Law Society of Upper Canada, despite no financial assistance from the provincial Government, has undertook this position well and has thus far kept on track.

It appears that the number of Independent Paralegals applying for the "grandparent" or "transitional" categories exceeded even the Society's expectations. Many applied in the last ten days of the time frame permitted to submit their applications for consideration as a candidate for licensing. Shortly after determining eligibility for candidates to write the Licensing Exam, people were individually notified and invoiced for that next step. It turns out that my own experience with this process is not too difficult, because as one of the Independent Paralegals who welcomed some type of regulation, I expect to adhere to specific guidelines, procedures and oversight. I then submitted payment for my Exam and at the next opportunity when I was in Toronto, picked up the materials for preparation. Last week, I made the trek as most Independent Paralegals did and wrote my Examination in Toronto on January 17, 2008. Of the approximately 2,500 candidates that chose to undertake this step, most wrote the exam in Toronto; others wrote it in Ottawa, London, North Bay and Thunder Bay (?). This was done to accommodate the needs of Paralegals that practise in regions that are further away from Toronto. In the next week or so, candidates will learn if they passed the examination and in either case, what their next steps are. Some people will be required to re-write the Exam if they want to proceed to Licensing.

Regardless, after May 2008, Ontario will be the first jurisdiction in North America to have a regulated class of non-Lawyer court agents that can legally represent people in a number of legal tribunals. Members of the public who are considering retaining the services of Independent Paralegals will now have a way of determining if that Paralegal is licensed and competent to perform their duties, as well as have an avenue in which to resolve any complaints they might have. This is not the ideal situation that Independent Paralegals wanted to have, but as I ventured through this process, I learnt there were a series of compromises on all sides of the issue. The Code of Conduct drafted for us is really not that much different than the one we proposed in our own White Paper to the Attorney-General in 2005-2006, except replacing the proposed College with a Paralegal Standing Committee and Convocation. Further, one of the key tenets of the Law Society of Upper Canada is responsible self-regulation and independence of the legal profession, whether this now be Paralegal or Lawyer. The question remains if Convocation (or the Board of Directors) of the Law Society should ever find itself in conflict with issues where the interests of Paralegals and Lawyers conflict. Nobody is sure how this will be dealt with at all, as this is the first time any Law Society ever took on this joint responsibility for two professions. I certainly hope that if such issues arise that they can be discussed openly between the two professions and resolved in such a way that leaves all parties feeling heard and respected.

Paralegal colleagues who read this blog have often commented to me about how I am not angry enough, not revolutionary enough or don't protest enough about all of these changes. I am not happy with everything, but then again - if the shoe were on the other foot, I bet I can find many Lawyers who are not happy with everything either. The fact of life is this regulation process was a major compromise between many, many interests ... and regardless of what direction it eventually took, there will always be a number of unhappy participants. As I went through this process, I often asked myself too if I considered it worth the investment of my time and money. Each time I asked lately, the answer more often became yes. Why? To me, this is not about ME. It is about my clients, prospective clients and the integrity of my profession. I realized how much my clients rely upon ME, not only for who I am, but for the integrity and standards I hold up in order to serve them. I want to not only continue to serve them, but participate in continuous quality improvement of my standards and services so that I become better and better as years go by and partake in upholding the dignity of this profession. This is something that should be first and foremost on the minds of ALL of my colleagues.

At this time, we need to take stock of the positive measures this new regulation will bring. We are pioneers of a sort. We are the first group of Independent Paralegals to find our rightful and lawful place within the courts and administration of justice. We will not only be permitted to appear, but have a RIGHT to appear in forums where our licenses permit. In the past, any judicial officer can throw any one of us out of their court or tribunal if he or she did not feel we were 'competent' or acting 'respectfully'. In turn too, this imposes a responsibility on all of us to respect the courts and tribunals in which we appear. This will make a large difference to many of us who have been in the courts for a long time and have felt we had less rights, for example, to be there than the opposing party that is represented by a Lawyer (and some Paralegals who practise in the criminal courts have felt this many times before - now, this will not be an issue). Certain restrictions on our practises in the past, such as the right to charge a contingency fee for certain types of cases, will now be granted to us. There will be rules as to when and how these agreements can be entered into, but then Lawyers have to follow these rules as well.

The next positive thing this brings is that we are now among a group of respected and regulated professionals. To the public that count on us, this IS a plus. How many of us in the past have encountered clients that wanted to know everything about you, from where you learnt how to be a Paralegal to whether you have insurance and whether you belong to a professional organization? Perhaps, this client was wary about engaging the services of somebody they were unsure about. Now, every person who comes through your door can have the confidence that you are not only able to provide the services they are seeking, but will be assured that you will carry out your duties in a responsible and professional manner. It creates that sense of trust that you alone cannot generate until your client has worked with YOU for awhile. In turn, it makes us responsible to dispatch our duties in a professional and responsible way. This forces us to think about things before we carry them out and to ensure that we are truly doing our utmost to maintain the level of professionalism the public now has a right to expect from each and every one of us.

What I like the most about this is the degree of respect and purpose we endorse with every client that comes to see us - a respect for their safety, confidentiality and interests. Together with this, our profession is completely independent of government controls and regulation. Many times, our opponents in a case include government agencies or departments themselves ... and we can feel confident to continue to advocate in this manner to promote the interests of those we are representing. Our regulators are concerned with how we dispatch ourselves and how we protect the interests of our clients - but do not compromise that independence.

There are things I am not happy about with this process, but then again - I have to think about it in one way. This is the first time anybody did this with respect to Independent Paralegals. There will be bumps in the road, but we have to prepare to continue to stand up against any potential problems, identify them and be willing to work with others to find a suitable compromise. One of the issues that concerns me is the restrictions from participating in family law matters, as well as some other areas that many trained Paralegals are otherwise capable of performing on their own. Permitting a broader range of practise areas could not be considered when the first set of Independent Paralegals came on board simply because we don't know which among them will be able to carry on these other services with dispatch and professionalism, although those coming on stream have been required to demonstrate they have had a certain level of experience in providing permitted areas of service. Remember the issue about public confidence and trust, knowing that any Paralegal they approach must be seen as competent to provide services in their permitted/practised areas.

It is my belief given my knowledge about the way organizations develop and the interaction of interests within these organizations, that someday there may be a greater role for Paralegals in family law as well as some other areas, such as simple incorporations. Because this is not law today does not mean it won't be law tomorrow. We need to continue to demonstrate why it may be in the public interest to allow a broader range of permissible areas of practise and to provide a way to ensure that Paralegals interested in practising in these other areas can gain and maintain appropriate levels of competence and knowledge in these areas. There may at some point be a need to expand or extend certain Paralegal Licenses to these areas, provided those seeking these designations can either take certain courses, pass exams or otherwise prove competence in these areas. But, at this point, we need to demonstrate that we can be trusted to be the competent professionals that we are ... as I once told somebody, this is like being on probation for a job - during such time we need to prove to our employers that we are the right fit and can do what is expected of us. At some point in the future, this may well extend to a deserved promotion of sorts. We just have to hang in there while the eyes of the legal world remain on us; we must be the pioneers to bring this profession to its newly respected status.