The Bencher From Amazon?

by Malcolm Mercer

For generations, Canadian lawyers have been regulated themselves. Law Societies, with elected lawyer benchers and, more recently, with appointed lay benchers, have governed the legal profession. We refer to this as professional self-regulation.

It is increasingly recognized that legal needs are not fully satisfied by lawyers. Some legal needs are satisfied by others. Some legal needs are not satisfied at all. It is now understood that access to justice is an important and difficult policy challenge. In Ontario, section 4.2(2) of the Law Society Act now expressly states that the Law Society has “a duty to act so as to facilitate access to justice for the people of Ontario”.

As legal needs can be satisfied by new types of professionals or in new ways (technology for example), the question of the role of the Law Society arises. If a Law Society becomes the self-regulator of more than one professions, the nature of the Law Society changes. If a Law Society becomes the regulator of legal services generally, the nature of the Law Society further changes.

The point of this column is to suggest that thinking about new ways of providing legal services should include thinking about the implications on the existing regulation. This is not to suggest that nothing should change but rather that there may be more than one way to change and that the implications should be considered.

The Law Society of Ontario regulates two professions

Ten years ago, the Law Society of Ontario[1] became the regulator of Ontario paralegals. This was accomplished by significant amendments to the Ontario Law Society Act.

Previously, the Law Society only regulated lawyers. It was the self-regulator of one profession. Lawyers elected 40 benchers to Convocation[2]. The provincial government appointed eight non-lawyer benchers to Convocation. Only lawyers were permitted to “practice law”. The Court of Appeal for Ontario had concluded many years earlier that paralegal agents were not engaged in the unauthorized practice of law[3].

How paralegal regulation was introduced in Ontario

The 2006 amendments to the Law Society Act don’t actually mention paralegals. Rather a new concept was introduced into the Act: “providing legal services”. The “providing legal services” concept is very broadly defined in section 1(5) of the Act such that a person provides “legal services” if “the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person”.

Having very broadly defined the provision of “legal services”, the Act prohibits the provision of legal services without a license, subject to certain exclusions. Two types of licenses are contemplated namely licenses to practice law and licenses to provide legal services.

The result (at least so far) is two types of licensees, lawyer licensees and paralegal licensees. Lawyer licensees can practice law. Paralegal licensees can provide legal services within the scope of their licenses – and their licenses only permit them to act as advocates in tribunals and in some courts in certain circumstances.

The 2006 amendments also provided for the election of benchers who provide legal services. Currently, five paralegal benchers are elected to Convocation.

The changing nature of the Law Society

There are two main points to be drawn from this legislative history. The first is that the consequence of having the Law Society become the regulator of paralegals was that the Law Society became the self-regulator of two professions. Lawyers and paralegals are now elected to regulate lawyers and paralegals. Lawyers and paralegals sit on hearing panels to assess the professional conduct of lawyers and paralegals.

This approach was not inevitable. A separate self-regulator could have been established to regulate paralegals. Some contended for this. England and Wales provides an example of separate regulators. There are separate regulators for solicitors, barristers, legal executives, licensed conveyancers, patent and trademark attorneys, costs lawyers and notaries. These “front-line” regulators are supervised by the Legal Services Board[4]. In Canada, the regulation of doctors, nurses and other health care professionals provides another example. There are separate regulators for different health care professions rather than a regulator of different types of health care professionals.

That the nature of the Law Society of Ontario was changed by the addition of a new profession to its regulatory ambit is significant and may not be obvious to many. If new legal professions become regulated by the Law Society, the nature of the Law Society will further evolve.

The changing scope of the monopoly

In order to regulate paralegals, it was necessary to determine what activities required regulation. While the permitted scope of practice of Ontario paralegals is advocacy, the definition of legal services (and hence the regulated space) was much broader as described above.

In other words, amendments to the Law Society Act carved out a very broad regulatory space while the Law Society authorized licensed paralegal activity only in a portion of that space.

The legislative decision to carve out a broad regulatory space was presumably designed to sweep all unregulated paralegals into regulation without quibbles about what was and what was not regulated. However, the result appears to be to have prohibited unregulated service provision in areas where neither lawyers nor regulated paralegals provide services.

Again, this was not the only possible choice. Again, we see a different approach in England (and Wales). The English approach is to define certain legal activities as being “reserved” (subject to exemptions) with the remaining legal activities being “unreserved”. The reserved legal activities are the exercise of a right of audience, the conduct of litigation, reserved instrument activities, probate activities, notarial activities and the administration of oaths[5].

The English approach allows licensed and unlicensed persons and entities to provide unreserved legal activities but, subject to exemptions, only licensed persons and entities to provide reserved legal activities.

The policy choice underlying the amendments to the Law Society Act in 2006 substantially extended the Ontario “reserved” space in order to ensure that paralegal agents were brought into regulation. The effect was to extend the regulatory space beyond where lawyers and paralegal agents provide legal services.

So what?

There has been increasing discussion about the ability of technology to provide legal services where legal services are not now being provided. The economic models of professional services and of technological services are quite different. Professionals have limited time to service clients and the cost of their time does not decrease. On the other hand, technology can service many people once built and the cost of serving one further person commonly drops as more people are served.

There are lots of issues to work through around technological provision of legal services. This column is not intended to do that work. The point of this column is a narrower one, namely that the decision to allow technology to deliver legal services has important implications for legal services regulation.

Potential effects of and approaches to allowing technological provision of legal services

Let’s assume that it is the correct policy choice to allow technology to deliver legal services directly where lawyers and paralegals do not now provide cost-effective services.

One way to do this would be to license technology providers by creating a new class of licensees. The Law Society Act allows this. But would it make sense to have a Society with elected lawyers and elected paralegals be the regulator of these new providers? Paralegals would rightly have objected to regulation only by elected lawyers and nurses would not accept regulation only by elected doctors. Neither would make sense in the public interest.

If self-regulation is to be maintained, wouldn’t the logical consequence of regulating technological providers be to have their elected representatives on the board. Said more plainly, if Amazon provided technologically based legal services, should there be a bencher from, or elected by, Amazon? This would of course change the nature of the Law Society by adding new types providers to the Convocation table, benchers who are not professionals in the traditional sense of the word.

But this is not the only possible approach. Another is to take the English approach (or the Canadian approach for health professions such as doctors and nurses) and to have different regulators for different types of providers. There could be a separate regulator of technological providers.

An a third approach would be to adopt the English approach to reserved and unreserved activities and to reduce the scope of the regulatory sphere so as to allow technology to deliver legal services outside of the reserved space subject only to general consumer regulation.

To be clear, I do not contend for any conclusion in this column but rather seek to highlight that the decision to move beyond legal service delivery by one established profession has its complexities. Those complexities can be managed in different ways and that complexity exists is not a sufficient reason to avoid change in the public interest. But there are things to think about.

The options

In February 2018 LawPro Magazine addressed the Top Legal Disruptions asking “How the profession should respond to major disruptions”. As the article said:

At the most basic level, there are just three options for dealing with alternative legal service providers. They are:

1.prosecute them for the unauthorized practice of law;

2.ignore them; or

3.bring them into the legal services tent.

The point of this column is that the “bring them into the legal services tent” option requires some serious thought about the nature and the design of the tent.