A Pragmatic Paralegal Proposal
The primary argument typically advanced by lawyers opposed to allowing paralegals to accept legal aid certificates is that it is preferable in all cases to have a lawyer, as they have a great deal more education and training. By this logic, since doctors have more education than nurses surely they should perform all routine medical tests. The obvious objection one would raise to this argument in a medical context is the same one I advance here: it is a waste of resources to exclusively use the most skilled (and consequently expensive) individuals on simple matters.
I hope my friends in the legal community can forgive me for pointing out how self-serving this argument appears to the layperson. Access to justice is a pragmatic matter and arguments that invoke some platonic ideal of what the best possible representation would be fail to address the real-world concerns being raised. Legal Aid Ontario (LAO) has a limited budget and cannot always pay for the best of all possible worlds. It would best serve the citizenry to be more utilitarian and make use of the entire legal community.
The scope of practice for paralegals is already limited by the Law Society of Ontario. We are barred from taking on the kind of matters for which we are unqualified. Paralegals should therefore be permitted to accept legal aid certificates for cases within this scope. The existing structure of LAO, from the use of panels to the varying tariff rates, means that paralegals could be easily added to the pool of potential legal representatives without meaningfully disrupting the existing program.
Lawyer who receive legal aid are already sorted into panels based on the areas of law in which they have expertise. This means any paralegal accepting legal aid would need to be so empanelled, and in order to do so they would have to meet all the appropriate standards. Therefore any paralegal that would be unable to provide the quality of legal services demanded by the LAO would simply not be in a position to accept legal aid – to wit, there already exist procedures to ensure that everyone accepting LAO certificates is competent in the appropriate areas of law.
Furthermore, the Director General of LAO is also able to impose specific and personal conditions that apply to the empanelment of anyone accepting legal aid. This would act as another check against the dreaded incompetent paralegal, as conditions could be tailored to allow paralegals to work exclusively within their areas of competence. The system is already set up to take into account the individual strengths and weaknesses of each legal aid accepting practitioner
To quote the LAO website “Lawyers new to an area of practice may be admitted conditionally to a panel provided they agree to acquire the necessary experience within a specified time frame, and take approved continuing legal education or be mentored as required by their district area director.”
If lawyers who admit to having a dearth of experience in the appropriate areas of law can still become empanelled, it seems rather uncharitable to claim that the risk of having paralegals is the lack of same.
Legal Aid Ontario already has variable tariff rates that set how different practitioners are paid based on experience. This is not limited to lawyers, but includes fees for such roles as clerks and students-at-law. It would be a relatively simple matter to add a new tier for paralegals. Not only would this greatly expand the range of options for those who use legal aid, but it would save LAO money while doing so. Adding a lower paralegal tariff would allow LAO to spread its limited budget further, which translates to more of our most vulnerable citizens receiving access to justice.
The time has come to put the needs of the Canadian citizenry above the monopolistic impulses of the trade and allow this obvious, common sense solution to the very real access to justice issues that threatens the integrity of our justice system.
One might even be forgiven for questioning the quality of legal services provided by lawyers frightened to compete with paralegals in a system where their higher fees don’t play a role.