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Lawyers, law society, illusion of power, proposal for change

Monday, November 02, 2020 @ 11:31 AM | By Ian G. Wilkinson

Last Updated: Tuesday, November 10, 2020 @ 1:37 PM


Ian G. Wilkinson %>
Ian G. Wilkinson
There is unrest in the forest, there is trouble with the trees.
For the maples want more sunlight and the oaks ignore their pleas.
     
The maples say the oaks are just too lofty and they grab up all the light.
But the oaks like the way they’re made.
They wonder why the maples can’t be happy in their shade.

  (Neil Peart, Rush)

There is no more obvious example of structural bias than the Law Society of Ontario (LSO) itself. The way the LSO is set up, paralegals will never be able to exert any kind of influence at the LSO enough to make any real difference. It is yet another prima facie example of how the lawyers’ guild acts in interest of the public.

The lawyers’ guild was allowed to set up the structure and rules by which paralegals are governed so is it really any surprise that they set it up so as to control paralegals? It pushed through the rules it wanted simply because it had the power to do so.

They say “In theory, theory and practice are the same thing. In practice, they are not.” In theory, lawyers allowing paralegals to have seats on committees and at Convocation might make one think the lawyers’ guild was giving up some real power. In practice however, it does no such thing.

Currently paralegals have about one-eighth of the voting members at Convocation. The inevitable result is that paralegals get outvoted on everything. This is even more evident at committee where paralegals are isolated and similarly outvoted every time. The result of this “divide and conquer” means there never will be a fair level playing field.

Historically, perhaps the most successful technique of a conquering imperialist powers to control the conquered was to give the illusion of power by elevating some in the vanquished group to positions of leadership and authority. “Puppet kings” have the air of legitimacy, after all, their decrees come from one of us.

By diluting any block voting, propping up puppet king paralegals with the illusion of power and enforcing draconian rules of secrecy so no one has a clue what goes on behind closed doors the LSO demonstrates it has no intention of treating paralegals as anything but peons meant to be used to deflect criticism of the LSO’s unwillingness to embrace real change in the name of access to justice.

It is a trite observation to say that the functions of lawyers and paralegals are different. If the functions of each group are specialized, the regulation for each group should be specialized.

In the same way that legal practice in family law requires “specialized” rules and licensing because it would result in more competent decision making in that area of legal practice, it must also be true of the actual rule making at the LSO. The fact that there is no specialized rule making for each group and it is this that epitomizes the core problem at the LSO and how it deals with paralegals.

Typically Canadian solution

The inescapable conclusion is that paralegals require a body which is devoted and dedicated to making rules for paralegals simply as a matter of proper bureaucratic practice. Paralegals should make decisions in areas exclusively related to where paralegals practice exclusively without interference from the lawyers’ guild.

Paralegals should have their own governing paralegal Convocation on the same separate but equal level as the Lawyers’ Convocation. Think of it like ss. 91 and 92 of the BNA Act, which outlines the separate powers of the provinces and the federal government. Each has exclusive jurisdiction in its own designated areas. Each guild should be autonomous of the other.

The changes suggested by this “separate but equal” proposal, are within the LSO’s powers to make immediately and without legislation.

Governing principle

To work, the key governing principle would have to be that paralegals could and would be authorized to provide any legal services that they are not specifically prohibited from providing. This turns the current dynamic upside down because now only authorized services are allowed to be provided by paralegals.

The unassailable governing principle is be that where paralegals could provide a service more efficiently and effectively paralegals would be authorized with the onus on the lawyers’ guild to demonstrate that there are circumstances (normal or special) which should preclude paralegals from operation. There are always exceptions, but the principle must apply across the board.

In many areas there would be no disagreement, as in indictable offences, upper court appeals, complicated family law litigation as examples. In some areas, a specialized license might be require, but on principle lawyers would require the same licenses for the very same reasons that paralegals would. In all areas, paralegals would be authorized to operate assuming proper education and licensing.

Separate Convocations

This implies separate “Convocations” as each group would be deemed equivalent to the other and would pass its’ own bylaws and regulations each within its own sphere of regulation. Joint committees would need to be created with equal representation to clarify areas of shared jurisdiction.

Jurisdictional appeals

Scope disputes could be resolved with an equal representation appeal board with the balance of power held by lay-benchers. Each guild could argue for its position on equal footing with an equal number of representatives from each group. Paralegals are separate and distinct from the lawyers and should be put on equal footing, not manipulated by the lawyers’ guild for their interests.

Until the lawyers’ guild gets serious about fixing the system, the paralegal project is sure to fail. Their supercilious ineptitude and maladroit pettifoggery will continue to get in the way of access to justice and damage the public interest. Either paralegals are meant to be equal partners in this project or they not. This illusion of power might fool some but it won’t really provide a way forward for the LSO to come up with new innovative ways to provide the public with real Access to Justice. The lawyers’ guild set up the structure, when it fails they will be the ones to blame, not paralegals. Puppet kings have only the illusion of power.

“So, the maples formed a union and demanded equal rights.
‘The oaks are just too greedy; we will make them give us light’.
Now there’s no more oak oppression, for they passed a noble law.

And the trees are all kept equal, by hatchet, axe, and saw.”  

Ian G. Wilkinson B.A., LL.B. provides litigation paralegal services throughout southwestern Ontario. You can e-mail him at iangwilkinson@legalcentre.ca or visit www.legaleagle.ca.

Illustration by Chris Yates/Law360

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