Slaw.ca Legal Ethics Column, July 30, 2020

Found online at: http://www.slaw.ca/2020/07/30/a-good-day-for-self-regulation-the-lsos-family-law-paralegal-proposal/

Paralegals have been licensed to independently offer legal services in Ontario since 2007. Their current scope of practice includes tribunal and small claims matters, provincial offences, and some other legal needs. Last month, the Law Society of Ontario’s Family Law Working Group proposed that paralegals, with special training, be allowed to offer family law services as well.

The scope of practice proposed for paralegals in family law is surprisingly broad. I had expected that it might be confined to guideline child support, straightforward parenting orders, and uncontested divorces. In fact, it extends to spousal support and matrimonial property division (except in some financially complicated and high-net-worth cases). Despite the lawyer opposition that this proposal is sure to encounter, a broad scope of paralegal family law practice may become reality. If so then cynics (like me), who suspected that the lawyer-controlled Law Society would never take the initiative to significantly expand paralegal practice, will have to reconsider.

A Normative Framework for Scope of Practice

The Family Law Working Group deserves applause for this brave proposal. Whether it has identified the right scope of practice is a more difficult question. My view is that the Law Society should act so as to maximize the aggregate welfare of consumers, and would-be consumers, of legal services.

• A broader scope of paralegal practice means more options and more competition — and therefore lower prices — for legal services. It also increases the number of individuals willing to make the investment necessary to obtain the paralegal family law license
• Conversely, a narrower scope would mean that things like spousal support and matrimonial property division would remain reserved for lawyers. Family lawyers typically have more training than paralegals. (Although it is interesting to note that a licensed Ontario lawyer can offer any family law services whatsoever despite never having taken any family law courses whatsoever outside, of the bar admission process). Requiring a full lawyer license might mean better quality, along with higher prices, for consumers of these services.

From this welfare-consequentialist standpoint, defining license scope is a balancing act between consumer interests in price, quality, and choice. Did the Working Group strike the right balance? The data necessary to scrutinize their choices does not seem to be available at this time. However the Working Group’s document does describe what seems to be a rigorous consultation process, including meetings with more than 100 practitioners, experts, and psychometricians (which is a word that I had to look up).

Let us assume that there is an objectively correct scope of paralegal family law practice, and that is the scope that will maximize the overall welfare of consumers. Perhaps the Working Group has accurately predicted and laid out that scope, based on their consultation process. However it is also possible that predicting the correct scope — even approximately — is inherently impossible ex ante.  If so, then the LSO should be prepared to gather data about the experiences of family legal services consumers, and use that data to revise scopes of practice over time.

On the Demand Side

For prospective paralegal family law practitioners, the “juice” (career opportunities) must be worth the “squeeze” (tuition and time investment to acquire the license). The Washington State Limited License Legal Technician program was recently abolished.
Protectionist lawyers or reactionist regulators in that state might be part of the explanation, but there was also very limited take-up of the program. Five years after its inception in 2015, this it had attracted only 40 practitioners. If the licensing requirements are too onerous, and/or the scope of practice is too narrow, the LSO’s paralegal family law practice experiment could meet a similar fate. It is very good to see that the Consultation Paper considers these demand-side issues, adopting “Viability” of the program as one of its guiding principles.

Competition, and Social Responsibility to the Disrupted

What about Ontario’s family lawyers? There is every reason to believe that most of them offer high-quality, highly professional services to their clients. What if the new paralegal family law license dramatically undercuts demand for their services ? What if paralegals offer services comparable to those of family lawyers, at prices low enough to significantly disrupt the market? This fear, often unspoken, underlies much lawyer opposition to paralegal practice.

The threat to lawyers may be hypothetical, or overblown. The primary market for the new paralegal practitioners may turn out to be currently self-represented people, not people currently represented by lawyers. Some, or most, family lawyers might experience new competition from paralegals, but respond in a way that leaves them doing just as well as they were before. My research with family law and other personal plight lawyers has convinced me that the stereotype of lawyers as devoted to tradition, and unwilling to experiment with new practice models, has little basis in fact.

Still, new competition can certainly devastate workers through no fault of their own. Suppose that Floyd the family lawyer has jumped through all the currently necessary regulatory hurdles in order to offer family law services. These hurdles include 7 years of education, large tuition bills and student debts, the articling crapshoot, etc. Acting in good faith, Floyd has made an enormous personal investment in being able to help people going through separation. Now suppose that Floyd’s ability to earn a living from his investment in legal education is greatly undermined by the new paralegal competition. Floyd loses his job as a family law associate. He hangs out a shingle, but there is simply much less client work available now that paralegals are in the market.

Would that be fair to Floyd? Not really. Something should be done to help lawyers who wind up in this sort of position. That may be a job for the Law Society. However the issue is not really lawyer-specific. It’s part of the bigger public policy problem of how we as a society respond to fluctuations in the demand for labour of all kinds. Floyd is really in the same boat as the auto plant worker laid off because of foreign competition, the vehicle operator replaced by self-driving technology, and the waiter laid off due to Covid-19. Government must help such people with retraining programs, unemployment insurance, wage loss insurance, earned-income tax credits, and so forth.

However concern for the disrupted must not distract the Law Society from its clear statutory mandate to make decisions with exclusive regard to the public interest. If Convocation adopts the Family Law Working Group’s proposal for paralegal family law practice — or something similar to it — then it will be fulfilling this public interest obligation, in accordance with the best traditions of self-regulation.

The Law Society’s Family Legal Services Provider consultation is open until November 30, 2020.