Changes hinge on lawyer supervision

By Leon Getz, QC

The legal services landscape is changing, driven in no small part by the demand for more accessibly priced legal services. Last year’s Public Commission on Legal Aid in B.C., led by Len Doust, QC, was one of many initiatives designed to raise awareness of challenges facing those trying to access legal services. The Attorney General’s recent green paper and ongoing review of the justice system is one of the results.

As part of a continuing effort to help make legal services more accessible and affordable, the Law Society implemented new rules in September 2011 that allow articled students to provide expanded legal services to the public. Recommendations on rule changes that will similarly enhance roles for paralegals are in the works and expected to be before the Benchers shortly.
Under the new Rules students are allowed to provide the same legal services as a lawyer, provided the student’s principal or another practising lawyer ensures that the student is competent to provide the services and properly prepared and supervised to the extent necessary before acting in any proceeding.

As an exception, a competent and prepared student may appear in the following proceedings as counsel only with a supervising lawyer in attendance:

• an appeal in the Court of Appeal, the Federal Court of Appeal or the Supreme Court of Canada;

• a civil or criminal jury trial; and

• a proceeding on an indictable offence, unless the offence is within the absolute jurisdiction of a Provincial Court judge.

Since the authority granted to practising lawyers under s. 60 of the Evidence Act does not extend to articled students, they are not permitted to act as commissioners for oaths. The Benchers have requested an amendment to the Evidence Act and/or a special designation of articled students as commissioners for taking affidavits. The Ministry of Justice is considering the request. Also, the rule changes do not expand the roles for students enrolled in temporary articles who will continue to be governed by Law Society Rule 2-43.

The provision of legal services by articled students and paralegals depends heavily on proper supervision by lawyers who are in the best position to assess whether and to what extent a student or paralegal can provide the required services.

Lawyers have always been responsible for supervising staff. However, now that students can perform enhanced functions and paralegals will be able to do so shortly, the issue of proper supervision by a lawyer becomes even more critical.

Failure to properly supervise can lead to the full range of disciplinary processes and potential sanctions. A lawyer who fails to provide proper supervision may also face an insurance claim since the supervising lawyer is also liable for any mistakes made by the student or paralegal while under supervision, and the financial consequences of any paid claim will affect the lawyer’s professional liability insurance.

Supervising lawyers must also ensure that students, paralegals and all other employees understand the critical importance of maintaining solicitor and client confidentiality and privilege. Communications made by or on behalf of the client to an articled student or paralegal for the purposes of obtaining legal advice will attract solicitor and client privilege and the duties that go with it (see Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860 at 873).

If you have any questions on this topic, please contact a Law Society practice advisor.

Leon Getz, QC is a Law Society Bencher and the Chair of the Ethics Committee and the Act and Rules Subcommittee.

This article was published in the June 2012 issue of BarTalk. © 2012 The Canadian Bar Association. All rights reserved.