Paralegal Ethics & Regulation

• Study notes for ethics as of the date provided

Paralegals Before Regulation

• Paralegals used to function as non-lawyer agents
• There were no education requirements/standards.
• There was no errors and/or omissions insurance
• There was no code of ethics

Law Society of Ontario (LSO)

• LSO is the regulatory body for legal professionals in Ontario.

Law Society Act

• The Law Society Act is a provincial law.
• This law grants the LSO authority to license and regulate legal professionals.

By-Laws

• By-laws are created by LSO benchers.
• By-laws set out the ethical and professional obligations for legal professionals.

Paralegal Rules of Conduct

• These rules outline the code of ethics and responsibilities that paralegals must follow.

Paralegal Professional Conduct Guidelines

• These guidelines were created by the LSO.
• They assist paralegals with the interpretation of their professional obligations under the Paralegal Rules of Conduct

Convocation

• This is a meeting of elected LSO members.
• They meet to discuss LSO matters.

Paralegal Standing Committee

• This committee develops paralegal-related policy options

LSO Mandates

• Mandates include protecting the public interest
• LSO must maintain and advance the cause of justice and the rule of law.
• Facilitate access to justice, and act in a timely and open manner.

LSO Amendment

• The LSO Act was amended on May 1, 2007.
• This amendment regulated the paralegal profession.

Benchers

• These are lawyers and/or paralegals who are elected by other licensees every four years.
• They meet in convocation.
• Laypersons are elected by the Attorney General of Ontario.
• There are 40 lawyers, 5 paralegals, and 8 laypersons.

Law Society Tribunals

• This tribunal consists of a panel of 3 benchers.
• Hears regulatory cases involving paralegals/lawyers, including disciplinary hearings.
• Hearings occur in the hearing division and can be appealed to the appeal division.

Access to Justice

• Refers to the public's ability to take part in the legal system.
• Paralegals increase access to justice by providing more affordable legal services.

Paralegal Licensing Process

• Consists of graduating from a paralegal education program.
• Candidate must pass the paralegal licensing exam.
• The candidate must have good character
• Must complete the licensing application process.

Grandparented Paralegals

• These are paralegals who practiced before the LSO had regulation over the profession, before May 1, 2007.
• They did not need to complete education requirements.

Good Character

• Refers to qualities that are considered relevant to the practice of law and provision of legal services.
• These include integrity, candour, empathy, honesty, and appreciation of right and wrong

Good Character Hearing

• If an applicant has a past that conflicts with good character requirements, they need to let the LSO know.
• They may need to go to a hearing in front of the Law Society tribunal to prove they are now of good character.

Good Character Hearing Factors

• Factors include the nature and duration of misconduct
• The applicant's remorse
• Rehabilitative efforts and their success
• Applicant's conduct since misconduct.
• Passage of time since misconduct.

Exceptions to Licensing Requirements

• People who are deemed not providing legal services and do not need a license by the LSO: court workers services of Aboriginal court work programs, people acting for friends/neighbors without compensation etc.
• Paralegal students doing field placements with a licensed LA/P1 do not require a license

Providing Legal Services Without a License

• The LSO prohibits this.
• It is a punishable offence with fines up to $25,000 for a first offence and $50,000 for subsequent offences.

Paralegal Scope of Practice Services

• A licensed paralegal with a valid P1 License can provide legal services within their scope of practice.
• Includes giving legal advice on a person's legal interests, rights, or responsibilities related to legal proceedings.
• Selecting, drafting, completing, or revising documents for legal proceedings.
• Negotiating a party's interests, rights, or responsibilities.
• Representing someone in court or a tribunal hearing.

Paralegal Scope of Practice

• Includes small claims court (claims up to $35,000)
• Provincial Offences Act
• Summary conviction offences under the Criminal Code (with some exceptions)
• Administrative tribunals
• Statutory accident benefit claims under insurance act

Outside Scope of Practice

• Criminal offences (super summary offences, Youth Criminal Justice Act matters)
• Immigration law.
• Family law.
• Indictments in summary convictions.

Enforcing the Rules

• Includes specific deterrence: discouraging an individual from future misconduct.
• General deterrence: making an example out of an individual to discourage other licensees from engaging in that misconduct.
• Rehabilitation, restitution, and improving a licensee's practice.
• Maintaining public confidence in the legal profession.

Commissioner for Taking Affidavits

• This is an individual authorized to take affidavits and administer other legal oaths, affirmations, or declarations

Client

• A person who consults a paralegal.
• The paralegal agrees to provide legal service Having consulted a paralegal, the prospective client reasonably concludes that they agreed to provide legal services on his/her behalf.

Integrity

• This entails being honest, ethical, moral, and trustworthy.
• A paralegal must provide legal services and discharge their responsibilities with honor and integrity.
• A paralegal that lacks integrity is of no use to a client, regardless of competence.

Civility

• This is communicating politely and respectfully.
• A paralegal must act in good faith, be courteous and civil.

Duty of Resolute Advocacy

• Not only a professional obligation, but a principle of fundamental justice.
• There is a requirement raise every issue, advance every argument, and ask every question, however distasteful.
• Counsel is obligated to explore every avenue that might help the client's case.

Duties Regarding Advocacy of Justice

• Although a paralegal must be a vigilant advocate for their client, they must treat the tribunal and other licensees with respect, candor, fairness, and honesty.

Incivility Damages Trial Justice

• Incivility can prejudice the client.
• It distracts from merits/real issues of the case
• Impacts other justice system participants.
• Can erode the public's confidence in the administration of justice

Outside Interest in Public Office

• A paralegal outside of work shall continue to fulfill ethical obligations and duties.
• May participate in out-of-office interests as long as it does not jeopardize integrity, independence, or competence or impair ability to exercise judgment on a client's behalf.

Acting as a Mediator

• A paralegal may act as a mediator in non-legal or legal disputes.
• Cannot mediate and provide legal services on the same matter.
• The paralegal must assure parties understand you do not represent them.
• Parties must be advised to get independent legal advice

Undertakings

• A personal, legally binding promise to do something

Best Efforts Undertaking

• An agreement to make a substantial effort to fulfill a promise, short of taking responsibility for it.

Trust Condition

• An obligation to hold a document or property in trust until certain conditions are fulfilled.

Human Rights Rules

• A paralegal shall know and respect the human rights code.
• Ensure no one is denied services or receives inferior service due to a protected ground.
• Not discriminate or engage in harassment.

Ontario Human Rights Code

• This code gives people equal rights and opportunities in protected social areas
• Prohibits discrimination based on protected grounds

Protected Social Areas

• Areas include accommodations/housing, contracts, employment, goods/services/facilities, membership in unions/trades/professional organizations

Protected Grounds

• Includes age, sex, citizenship, disability, marital status, gender identity/expression, religion/faith, sexual orientation, ancestry/race/ethnic origin, place of origin and record of offences

Discrimination

• Differential treatment that creates a disadvantage for a group
• Disadvantage can be an extra burden or denial of a benefit

Constructive Discrimination

• Neutral policies that create an unintentional disadvantage

Harassment

• Unwelcome comments or actions known to be offensive, embarrassing, or demeaning

Sexual Harassment

• Unwanted verbal or physical conduct of a sexual nature

Gender-Based Harassment

• Harassment based on sex, sexual orientation, or gender identity

Fiduciary Duty

• This refers to a relationship of absolute trust and honesty between two people (paralegal-client relationship is one)
• Act with scrupulous good faith
• Advise with honesty and candour
• Put clients interest first

Paralegal-Client Relationship

• Does not extend to client's family members, or related entities like the client's business

Prospective Client

• Anyone who seeks a paralegal's advice or assistance on a legal matter

Phantom Client

• A person who has not formally retained a paralegal, but reasonably believes a paralegal represents them.

Engagement Letter

• This letter is sent to a client if they decide to retain you

Non-Engagement Letter

• The purpose of letter is the client is not retained

Duty of Confidentiality

• Paralegals owe a duty of confidentiality to all current, former, or prospective clients.
• Confidential information cannot be disclosed unless client consents or if it is required by law.
• Confidential information is any information obtained in the paralegal-client relationship.

Client Identification

• Client information must be obtained for every new client
• For an organization, obtain the full name, business address and phone number, nature of business, and identification of person authorized to give paralegal instructions.
• For an individual, obtain the full name, home address and phone number, business address and phone number, and occupation.

Client Verification

• Additional client identification that is needed when dealing with cash, securities, or negotiable instruments on clients behalf.
• For an individual, obtain a valid government ID.
• For an organization, obtain one of the following: certificate of incorporation, annual filing, trust or partnership agreement, articles of association, or a public record showing the corporation exists.

Verification of Attestation

• In a situation where a paralegal doesn't deal with the client face-to-face, verification by attestation is required.
• Attestation by commissioners of oath or guarantors: physician, dentist, judge, justice of peace, lawyer/paralegal, notary public, police officer, accountant, school principle, etc.

Conflict Check

• It is a review of law firms' records that is performed before accepting a client.
• It is for the purpose of ascertaining that the firm has not previously represented parties adverse to the potential client and that no other conflict, or appearance of conflict, exists.
• The firm would refrain from accepting the client and vigorously advocating the client's interests.

Paralegal-Client Retainer

• The retainer is the contractual agreement between a paralegal and client, in writing

Retainer Agreement

• Must contain a description of services
• List paralegals involved in the matter
• Provide fee information and describe disbursements
• Detail the billing policy
• Describe money retainer
• Note termination of legal services
• Must specify that any changes to the agreement must be in writing

Limited Scope Retainer

• Refers to an agreement to perform a specific task for a client
• The nature of the LSR must be confirmed
• Agreement is to be confirmed before and after retainer is complete

Fee Rules

• All fees must be fair, reasonable, and disclosed to the client in a timely manner
• Fees are hourly, by stages of matter, as a block/flat fee, contingency fees (not in quasi-criminal/criminal matters)
• "Reasonable fee" depends on difficulty/importance of case, value of damage/property involved, special skills/services required, results obtained, or prior agreements with client.

Disbursements

• Includes additional expenses incurred in the course of providing legal services.
• Such as expert witness reports, gas mileage for attending court.
• Paralegal cannot charge client more than actual cost of disbursement.
• Must provide statement for disbursements

Handling Client Property

• A paralegal shall place client property in safekeeping, labeled and identified
• Notify client when receiving property on their behalf
• Keep a valuable property record

Client With Diminished Capacity

• When a client's ability to make decisions is impaired by age, disability, etc., the paralegal shall not refuse service on basis of age or disability.
• Maintain normal paralegal-client relationship
• If client cannot manage their own affairs, take steps to have lawfully authorized representative appointed

Joint Clients and Retainers

• Joint clients are clients who want to be represented together; a paralegal shall be equally loyal to all clients in joint retainer do not accept joint retainers if both clients do not share the same interests, or it appears conflict may develop between them

Before Accepting Joint Retainer

• The paralegal must advise joint clients you have been asked to act for them both
• Explain one client's info is not confidential to the other client
• Advise if conflict develops you cannot continue to represent all joint retainer clients
• Obtain consent from all joint retainer clients in writing

If Joint Retainer Clients Develop Issues

• The paralegal must withdraw from representing both joint clients.
• Continue representing only one of the clients

Organization as Client

• A paralegal shall determine who in organization is authorized to give them instructions; only take instructions from authorized persons
• If organization engages in dishonest, criminal, or fraudulent activity you must: inform person who gives instructions, report upchain of command, if activity continues you must withdraw from representation

Withdrawal From Representation

• Withdrawal discharges retainer and ends the para-client relationship.
• A client may discharge at any time
• A paralegal may only discharge for good cause.

When Withdrawing From Representation

• A paralegal shall give the client reasonable notice.
• Minimize expense and avoid prejudice to client.
• Facilitate transfer of matter to another licensee.
• Return client papers, property, and funds.
• Render account for outstanding fees & disbursements.
• Comply with applicable rules of court.

Optional Withdrawal

• May withdraw from representation when there is a serious loss of confidence.
• The client fails to pay fees or retainer.
• Cannot withdraw due to non-payment in an administrative tribunal, quasi-criminal or criminal matter if trial date is near.
• Cannot withdraw in order to force the client to make hasty devisions on difficult issues

Withdrawal in Criminal/Quasi Criminal Cases

• May withdraw for non-payment or other adequate reason if there is sufficient time between withdrawal and trial date so client can obtain a new representative.
• Paralegal may not withdraw for non-payment if trial date is set and there is not enough time for the client to get new rep, and an adjournment cannot be obtained without affecting the client’s interests.
• The paralegal is justified in withdrawing for reasons other than non-payment like a breakdown in the paralegal/client relationship.
• However, if there is not enough time for client to find new rep, paralegal shall attempt to have trial adjourned and may only withdraw with permission of the court.

Mandatory Withdrawal

• A paralegal must withdraw when the client discharges you.
• If the client's instructions require you to violate by-laws or rules.
• Paralegal is not competent to handle the matter.

Competence - Rule 3.01

• A paralegal shall perform any service undertaken on a clients behalf to the standard of a competent paralegal; not undertake any matters unless competent to complete it.
• Standard is one of competence, not perfection

Competence is a Paralegal's Ability

• Includes the knowledge of general legal principles and procedures
• Giving appropriate advice based on investigation/research
• Implementing chosen course of action
• Diligent, conscientious, and cost-effective advocacy
• Timely and effective communication
• Includes effective practice management
• Training and continuing development and compliance of the Law Society Act in letter and spirit

What Must a Paralegal Do?

• When they discover they lack competence to complete a task: decline to act for the client; obtain the client's consent to retain, consult, or collaborate with a competent licensee; or obtain the client's consent and become professionally competent without delay or expense

Advising Clients - Quality of Service

• Provide courteous, thorough, and prompt service; avoid needless delays and expenses; advise clients honestly and candidly; do not undertake matters or provide services outside scope of practice, give careful consideration to the situation; always make decisions that are reasonable and make sense in the circumstances

Threatening Criminal Proceedings

• A paralegal may only start proceedings or make complaints in good faith; they may not threaten to initiate criminal or quasi-criminal proceedings/complain to a regulatory body solely to gain a benefit for a client

Alternate Dispute Resources

• Alternate dispute resolution (ADR) includes mediation, negotiation, and similar means
• A paralegal shall encourage clients to compromise or settle a dispute where it is reasonable; encourage clients to use ADR when appropriate; discourage useless legal proceedings

Medical-Legal Reports

• Medical legal reports are reports prepared by doctors and other healthcare professionals documenting a person's health
• They provide evidence of a clients health in certain proceedings (like personal injury, WSIB etc)
• Before requesting a report a paralegal must ask the expert for their judgement of the case and whether the findings could benefit the client

Client Engaged in Criminal Activity

• A paralegal shall decline to act if providing legal services will assist the client in criminal activity
• Don't give advice on how to break the law or avoid punishment; don't allow trust account to be used for purposes unrelated to providing legal services
• Before accepting, be wary of being drawn into illegal conduct, and be sure to find out about the intentions of the client

Official Language Rights

• Clients have a right to proceed in the official language of their choice (English or French)
• A paralegal must advise client of language rights where appropriate; paralegals may decline to act if this is not possible

Errors and Rules

• If a paralegal makes an error that could harm their client's case, they shall; promptly inform client of the error, recommend the client receive independent legal advice concerning any rights client may have arising from the error and promptly notify the insurer

Confidentiality-Rule 3.03

• Confidential information includes ANY information related to this case
• All members of a firm must protect client confidentiality however may disclose confidential information when the client authorizes disclosure or where disclosure is justified/permitted under the rules

Disclosure With Client Authorization

• This may be expressed or implied
• Expressed authorization refers to informed and voluntary consent that is spoken/written
• Implied authorization refers to implied consent that is implied by the nature of a matter
• May be necessary to follow client instructions; may disclose information to partners, associates etc

Disclosure Required By Law

• Paralegals may disclose information when required to do so by law or order of a court/tribunal such as a search warrant issued to search a paralegal office

Disclosure To Prevent Death

• Paralegal may disclose confidential information when they believe there is imminent risk of death or serious bodily harm, and disclose when necessary for the safety of others

Disclosure To Court Security

• Confidentially, a paralegal who has reasonable grounds for believing a dangerous situation is likely to develop at the court, can divulge information necessary for court security

Disclosure For Other Purposes

• Include disclosure to report misconduct, to defend against allegations of misconduct, to establish/collect fees or to secure advice

PIPEDA

• Paralegals must comply with PIPEDA (Personal Information Protection and Electronic Documents Act) in addition to duty of confidentiality; this applies to the use and disclosure of personal information obtained in the course of commercial activity

Conflict of Interest -Rule 3.04

• This happens when paralegals loyalty to a client would be negatively impacted by their own interests or the interests of someone else

Pro Bono Work

• Pro bono paralegals may provide short term legal services under a pro bono arrangement or not for profit program, so long as they perform a conflict of interest check.
• If a conflict of interest arises, paralegals must withdrawal regardless of the consent of the client

Transfer Between Firms - Rule 3.05

• The following rules apply when paralegals transfer firms: paralegals must have confidential information relevant to a client or matter with their new firm OR new firm represents with a client in a matter that is the same or related to a matter in which the former firm represents client and the paralegal has relevant information causing a conflict of interest
• the new firm must withdraw from representation in the situation causing the COI (UNLESS the client provides consent for the transfer of information or the new firm will take measures to prevent member of new firm from passing along the information - while advising paralegals former client/measures taken if requested with reasonable mobility)

Transactions with Clients

• If a paralegal will participate business transaction with a client, clients consent with transaction AND obtain legal representation/paralegal must disclose nature of any conflicting, or how and when
• Transaction will only be fair and reasonable to client

Transactions With Clients: Lending

• When a paralegal will be lending money the conflict must be disclosed, and must ensure the situation has independent LEGAL advice. (if friend must receive legal advice)

Transactions With Clients: Borrowing

• May borrow from a client that also works as a lender
• Can only be if: corporation, syndicate or partnership that is a related person has substantial interest
• If client and paralegal have a corporate and must receive legal representation
• Cannot borrow from clients under other circumstances

Transactions With Clients: Guarantees

• Cannot guarantee or provide a service for client debt with an exception of regulated lender that services paralegals in certain relationships when on behalf of charity or when its part of a business venture with a client

Judicial Interim Release

• The following is forbidden if a client is accused of a crime: acting as clients surety, must not use own money to secure clients release or any valuable money
• They cannot act in a supervisory capacity for client

Multi-Discipline Practices

• A paralegal may form multi-discipline practice (with other professionals to support/supplement legal services (i.e. documents)
• Licensees observe partners and must follow rules about conflict of interest

Affiliations

• The following must be disclosed: any possible loss of confidentiality because paralegals provide legal services jointly with an entity that provides no legal service

Additional Disclosures

• Paralegals Role, Legal vs Non Legal, financial arrangements

Study notes covering the evolution of paralegal regulation in Ontario, focusing on the Law Society's role. Key aspects include the Law Society Act, By-Laws, Paralegal Rules of Conduct, and Professional Conduct Guidelines.