Group recommends limited, additional legal powers for non-lawyers

The Court of Queen's Bench in Prince Albert in early November 2017. Evan Radford/Daily Herald

A group tasked with reviewing who can and can’t practise law in Saskatchewan has recommended that non-lawyers are granted limited, additional powers where appropriate.

The Legal Services Task Team was appointed to examine whether additional professions, such as licensed paralegals, should be created to practise law in the province. The review was done because of concerns surrounding access to the legal system. The group was to balance consumer choice with the prevention of harm to potential clients.

The 11-person team was made up of lawyers and other legal professionals from a variety of backgrounds. They reviewed what exist in Saskatchewan as well as what other jurisdictions have done.

“Overall, the task team concluded that while there are unmet legal needs in Saskatchewan, it is not yet time to move towards the creation of an entirely separate professional group of legal service providers with a common scope of practice,” the group’s final report says.

“The conditions that supported the creation of a separate professional group do not currently exist in Saskatchewan, but circumstances may change.”

Instead, the group recommended a number of legislative and regulatory changes that they feel would result in greater flexibility in regulation and delivery of legal advice and information.

Among other recommendations, the group suggested that the difference between legal information and legal advice be made clear and then the providing of basic legal information be deregulated, that non-lawyers working under the supervision of a lawyer be allowed to perform more duties and that in some cases, limited licenses could be granted to non-lawyers on a case-by-case basis, “with appropriate requirements and practice conditions based on circumstances of the licensee.”

Currently, in Saskatchewan, any legal services are only permitted to be provided by a lawyer or student-at-law. The report, and the Saskatchewan Law Society, which regulates lawyers, both acknowledged that some people in other professions or other duties might provide some legal services, such as an accountant interpreting financial or human resources law. Those services tend to also be subject to regulation, the task team found, so the law society is unlikely to go after them for providing those limited legal services.

As explained by one of the task team co-chairs, while the team isn’t pointing to any one organization and saying they could benefit, there are some examples that come to mind.

“It’s very flexible. For example, we could see that non-profit human service agencies in the province who have established clientele in a broad range of needs, including some legal needs, might want to have someone on their staff who can meet some of those legal needs,” said Gerald Tegart, the former deputy minister of justice.

It’s in those situations, he said, that a limited license to practise law might apply.

“That’s for those organizations to work out themselves. But once there’ a licensing system in place, we see the possibility that an organization, for example, that serves the needs of a lot of new Canadians might want to have the ability to provide some immigration services for those people,” he said.

“Or, an organization whose clientele has particular needs in relation to housing where some legal assistance would be useful might want to have someone on their staff. We’re not targeting the specific area, but we are optimistic that there will be an uptake once people understand what the capacity is here and once we build our systems to support that.”

As for the recommendation that non-lawyer staff working under lawyers have some of their restrictions lifted, the task team, instead of laying out what would be appropriate, recommends it be determined on a case-by-case basis, as it depends more on the person than the job

“In this way, greater discretion can be granted to supervising lawyers to determine the appropriate scope of services that can be provided by professionals and staff working under their supervision.”

The conduct of those non-lawyer staff members, under the recommendation, become the responsibility of the supervising lawyer.

The report acknowledges that these approaches differ from what has been done elsewhere, such as in Ontario and B.C., where specific, regulated professions were set aside to aid lawyers in their work. The task team recommends that the province and the law society create pilot projects to “test and refine” their proposed changes.

Tegart said the task team doesn’t see any particular area having a “huge takeoff”, but he does think the group achieved what they set out to do.

“We’re trying to … restructure the regulatory system to create greater flexibility in the hopes that we’re going to have people show a bit of creativity and be innovative,” he said.

“We’re hoping that people who actually deliver legal services are actually going to embrace the new capacity that they have to do this – whether it’s in the law firm setting where they can use non-lawyers under supervision a greater extent, or whether it’s nonprofits, or in any other setting. What we’re trying to do is simply create greater flexibility to allow people who want to expand int this area a well-regulated, safe way where the public interest is still protected.”

Now that the report has been completed, it’s in the hands of the law society and the provincial government to determine next steps.

“I would like to thank the members of the Legal Services Task Team for their hard work on this report,” Justice Minister and Attorney General Don Morgan said in a press release.

“I look forward to reviewing their recommendations and working with the Law Society on any potential changes they would like to see for their profession.”

“The Law Society of Saskatchewan is grateful for the work of the Task Team in examining this complex issue,” Law Society of Saskatchewan President Craig Zawada said. “The Benchers are committed to improving access to legal services for the public and look forward to exploring solutions based on the recommendations of the Task Team.”

The Herald was unable to reach Zawada for comment.

Tegart said he hopes the government and the law society accept all of the task team’s recommendations.

“It’s in their hands now. We certainly respect (their) responsibilities to make the choices they believe are correct. The task team has done what it was asked to do – which was to examine the issue … and come up with a set of what we think of as workable recommendations.