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More on protecting the public from unqualified family law practitioners | Sarah Boulby

Thursday, November 26, 2020 @ 2:54 PM | By Sarah Boulby

Sarah Boulby %>
Sarah Boulby
In examining why the Toronto Lawyers Association (TLA) does not support the creation of the new profession, part two addressed one reason: the fundamental obligation of the Law Society of Ontario (LSO) to protect the public from unqualified practitioners. Part three will continue the discussion of such protection.

Studies have shown that while paralegals can provide effective representation in certain dispute resolution contexts, they have failed to do so in others, such as immigration law. No other jurisdiction has licensed paralegals to such a broad scope of family law practice.

Two U.S. jurisdictions have established paralegals with a more limited scope than the consultation paper proposes for Ontario: Washington state and Utah. The Washington state program has failed. It was recently terminated because of the costs and the small number of individuals who wished to become licensed under the program.

The limited license legal technicians (LLLT) family law program in the state of Washington had required an associate’s degree, a three-year program at an accredited school and 3,000 hours of paralegal experience involving substantive legal work in any practice area under the supervision of a lawyer. This was eventually shortened to 1,500 hours, but LLLTs, unless specifically permitted, were not allowed to represent a client in legal negotiations, in court, in formal administrative proceedings or in other formal dispute resolution processes.

Utah’s Licensed Paralegal Practitioner Program includes family law as an area of practice. So far there are only four individuals who have qualified, with four more on their way to doing so. Licensed paralegal practitioners (LPPs) in Utah have only one semester of coursework in addition to their entrance requirements, but prior to being able take their qualifying exam, LPPs must work with a law firm for at least 1,500 hours in the preceding three years. If LPPs are going to practise family law, at least 500 of these hours must be substantive law-related experience in family law.

LPPs can be licensed to practise law in the areas of family law, debt collection and landlord-tenant disputes. They can file court documents, complete settlement negotiations, review court documents, represent clients in mediation and serve as mediators, but they are prohibited from appearing in court.

The family legal services provider (FLSP) proposal involves only 550 hours of coursework with a field placement of two to three months. The proposal does mention that there should be a prerequisite of one to three years of full-time practice experience as a licensed paralegal, but none of this experience has any family law requirement.

Further, the FLSP proposal involves paralegals who have a much larger scope of practice than those in the state of Washington and Utah, despite having much less of an education and experience requirement. Yet paralegals in Ontario are being tasked to do more than those in  Washington and Utah.

Furthermore, LLLTs themselves thought that 3,000 hours of prior experience was a correct requirement, and that in addition 500 to 1,000 hours of this requirement should be dedicated to family law. Some LLLTs felt that after their training they lacked enough specific family law experience to be fully competent at the start of their practice.

The FLSP proposal is dangerously lacking in its education and experience requirements.

This proposal is dangerous to the public as the LSO’s listing of these areas of knowledge and assertion that FLSPs are competent in them will mislead individuals into trusting and retaining these providers to represent them when the providers will not have the ability to do so properly. This will lead to poor results for those who retain them.

The most basic duty of the LSO is to protect the public from unqualified practitioners. This proposal fails that duty. The problem is that to qualify family law service providers sufficiently to practise family law as proposed would require an education comparable to that of existing lawyers.

There is an argument that something is better than nothing, which was posed in Justice Annemarie Bonkalo’s “Family Legal Services Review” (the Bonkalo Report). That is, that it is better for an unrepresented litigant to have the assistance of a service provider even if that provider is not as competent. This argument fails.

First, the formerly unrepresented litigant will be worse off because they have paid for a service which will be incompetently performed. That money has been thrown away. Second, the formerly unrepresented litigant will have lost the opportunity to receive special consideration from the court. Our courts have repeatedly confirmed that self-represented litigants are entitled to preferential treatment. This right will be lost to those who hire these providers.

There is no consideration in the consultation paper to the issue of domestic violence, beyond a mention that this would form a 20-hour component of the FLSP curriculum. Many individuals seeking family law help are financially vulnerable. Many are also victimized by physical or verbal abuse. These individuals will be particularly at risk if they are misled by the LSO into retaining unqualified service providers who will not have the knowledge to protect them from coercion or further abuse by their former partners.

In particular, women’s access to justice is often dependent in part on whether the legal professionals they encounter have a deep understanding of domestic violence and its harms and are alive to the complex interactions between multiple legal systems. Twenty hours is not sufficient to gain this sort of knowledge.

It would be regrettable for the LSO to fail in its duty to protect the public from unqualified advice in any field of law. To do so in family law where the individuals seeking legal services are often unsophisticated legal consumers would be particularly pernicious.

This is part three of a five-part series. Part one: Association’s response to family legal services provider proposal: Overview; part two: Protecting the public from unqualified family law practitioners; part four: No business case family legal services providers will charge less.

Sarah Boulby is chair of the Family and Estates Committee of the Toronto Lawyers Association. Practising family law since 1993, she advises clients on complex support, property and parenting issues, and she represents clients in court as well as in mediations and arbitrations. Boulby speaks and writes frequently on family law issues and is the author of educational material used by the Law Society of Ontario.

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