Code of Professional Conduct

CHAPTER XVII.  PRACTICE BY UNAUTHORIZED PERSONS

Table of Contents  |  Previous Chapter  |  Next Chapter

RULE

The lawyer should assist in preventing the unauthorized practice of law.1

Commentary

Guiding Principles

1. Statutory provisions against the practice of law by unauthorized persons are for the protection of the public.   Unauthorized persons may have technical or personal ability, but they are immune from control, regulation and, in the case of misconduct, from discipline by any governing body.   Their competence and integrity have not been vouched for by an independent body representative of the legal profession.   Moreover, the client of a lawyer who is authorized to practise has the protection and benefit of the lawyer-client privilege, the lawyer's duty of secrecy, the professional standards of care that the law requires of lawyers, as well as the authority that the courts exercise over them.   Other safeguards include group professional liability insurance, rights with respect to the taxation of bills, rules respecting trust monies, and requirements for the maintenance of compensation funds.2

Suspended or Disbarred Persons

2. The lawyer shall not, without the approval of The Law Society of Saskatchewan, employ in any capacity having to do with the practice of law (a) a lawyer who is under suspension as a result of disciplinary proceedings, or (b) a person who has been disbarred as a lawyer or has been permitted to resign while facing disciplinary proceedings and has not been reinstated.3

Supervision of Employees

3. The lawyer must assume complete professional responsibility for all business entrusted to the lawyer, maintaining direct supervision over staff and assistants such as students, clerks and legal assistants to whom particular tasks and functions may be delegated.   The lawyer who practises alone or operates a branch or part-time office should ensure that all matters requiring a lawyer's professional skill and judgment are dealt with by a lawyer qualified to do the work and that legal advice is not given by unauthorized persons, whether in the lawyer's name or otherwise.   Furthermore, the lawyer should approve the amount of any fee to be charged to a client.4

Legal Assistants

4. Subject to general and specific restrictions next following, a legal assistant may perform any task delegated and supervised by a lawyer so long as the lawyer maintains a direct relationship with the client and assumes full professional responsibility for the work.   Legal assistants shall not perform any of the duties that lawyers only may perform or do things that lawyers themselves may not do.   Generally speaking, the question of what a lawyer may delegate to a legal assistant turns on the distinction between the special knowledge of the legal assistant and the professional legal judgment of the lawyer which, in the public interest, must be exercised by him or her whenever it is required.

Except as permitted under Sections 5 to 7, 9, 10, 13 or 20 of The Legal Aid Act, SS 1983, c L-9.1, the lawyer should not permit the legal assistant to:

  1. accept cases on behalf of the lawyer;
  2. fix fees;
  3. give legal advice;
  4. give or receive undertakings;
  5. act finally and without reference to the lawyer in matters involving professional legal judgment;
  6. be held out as a lawyer, or be identified other than as a legal assistant when communicating, whether orally or in writing, with clients, lawyers, public officials or with the public generally, whether within or outside the offices of the law firm of employment;
  7. appear in Court or actively participate in legal proceedings on behalf of a client except in a support role to the lawyer appearing in the proceedings;
  8. be named in any manner on the letterhead of a lawyer's stationery or in any sign, announcement or listing in any directory or advertisement used or published by the lawyer, or in association with the lawyer in any pleading, written agreement or other like document submitted to a court.

6. A legal assistant should be permitted to act only under the supervision of a member of The Law Society.   Adequacy of supervision will depend on the type of legal matter, including the degree of standardization and repetitiveness of the matter, and the experience of the legal assistant generally and with regard to the particular matter.  The burden rests on the lawyer who employs a legal assistant to educate the latter with respect to the duties to which the legal assistant may be assigned, and then to supervise the manner in which the legal assistant carries out such work as it is performed to ensure that it is proceeding correctly and in a timely fashion for delivery to the client.

7. For the purposes of the following guidelines in specific areas of practice, it has in some instances been found easier to define the functions of the legal assistant affirmatively:

  1. Real Estate
    The lawyer may permit the legal assistant to attend to all matters of routine administration in a transaction relating to the sale, option, lease or mortgaging of land, and to conduct all routine correspondence and draft all documents and other correspondence including closing documents and statements of account, provided that the lawyer attends on the client to advise and take instructions on all substantive matters, review title search reports, conducts all negotiations with third parties or their lawyers, reviews documents before signing, attends on the client to review documents, reviews and signs title opinions and/or reporting letters to clients following registration.
  2. Corporate and Commercial
    The lawyer may permit the legal assistant to attend to all matters of routine administration and to draft all documentation and correspondence relating to corporate proceedings and corporate records, security instruments and contracts of all kinds, including closing documents and statements of account, provided that the lawyer attends on the client to advise and take instructions on all substantive matters, conducts all negotiations with third parties or their lawyers and reviews all written material prepared by the legal assistant before it leaves his or her office other than documents and correspondence relating to routine administration, and signs all correspondence except as aforesaid.
  3. Wills, Trusts and Estate
    The lawyer may permit the legal assistant to collect information, assist in drafting certain documents, prepare income tax, succession duty and estate tax returns, calculate such taxes and duties, draft executors' accounts and statements of account, attend to filings and conduct routine correspondence, provided that the lawyer attends on the client to advise and take instructions on all substantive matters, conducts all negotiations with the third parties or their lawyers, attends at any hearing before the Court or Registrar, reviews all material prepared by the legal assistant before it leaves his or her office, other than documents and correspondence relating to routine administration, and signs all correspondence except as aforesaid.
  4. Litigation
    The lawyer may permit the legal assistant to collect information, prepare draft pleadings, correspondence and other documentation, research legal questions, prepare memoranda, organize documents, prepare briefs, draft statements of account and attend to filings and other matters of an administrative nature, provided that the lawyer shall attend on the client to advise and take instructions on all substantive issues, conduct all negotiations with third parties or their lawyers (except where the amount involved does not justify the cost of a lawyer's time, negotiations of claims other than in tort may be conducted by the legal assistant and communicated directly by him or her to the client if prior to settlement it is reviewed by the lawyer), and review all written material prepared by the legal assistant before it leaves his or her office, other than documents and correspondence relating to routine administration, and signs all correspondence except as aforesaid.   The legal assistant shall not attend at any examination for discovery of the client or to examine another party in an action, or attend in Court or before a Registrar or before any Administrative Tribunal, except in support of a lawyer also in attendance.

NOTES

  1. Cf. CBA-COD 15; CBA 5(1), (2); IBA E-5 and E-6; ABA-MR 5.5; ABA Canon 3, DRs 3-101 (A), (B) and 3-103(2).  (Return to Rule)

  2. Cases and statutes provide that certain acts amount to "the practice of law"; see, for example:
    • B.C.:   Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, ss. 1, 80.
    • Man.:   Law Society Act, R.S.M. 1970, c. L-100, s. 48(1), (2).
    • N.B.:   Barristers Society Act, S.N.B. 1931, c. 50, s. 14A as amended by S.N.B. 1937, c. 30.
    • Nfld.:  Law Society Act, R.S.N. 1970, c. 201, s. 76(2).
    • N.S.: Barristers and Solicitors Act, R.S.N.S. c. B-2, s. 4(2).
    • P.E.I.:   Law Society and Legal Profession Act, R.S.P.E.I. 1974, c. L-9, s. 21.
    • Que.:  Bar Act, R.S.Q. 1977, c. B-1, s. 128.

    3. The statutes of all provinces prohibit the practice of law by unauthorized persons:

    • Alta.:  Legal Profession Act, R.S.A. c. L-9, s. 93.
    • B.C.:  supra, s. 77.
    • Man.:  supra, s. 48(1).
    • N.B.:   supra, s. 143(3).
    • Nfld.:  supra, s. 76(1).
    • N.S.:  supra, s. 4(1).
    • Ont.:  Law Society Act, R.S.O. 1980, c. 233, s. 50(1), (2).
    • P.E.I.:  supra, s. 19.
    • Que.: supra, ss. 132 et seq.
    • Sask.:   The Legal Profession Act, 1990, ss. c. L-10.1, s. 30

    "To protect the public against persons who...set themselves up as competent to perform services that imperatively require the training and learning of a solicitor, although such persons are without either learning or experience to qualify them, is an urgent public service.", per Robertson, C.J.O. in Rex ex rel. Smith v. Ott (1950) O.R. 493 at 496 (Ont. C.A.)

    "When a man says in effect, I am not a lawyer but I will do the work of a lawyer for you he is offering his services as a lawyer.  In offering his services as a lawyer he is holding himself out as a lawyer even though he makes it clear he is not a properly qualified lawyer.", per Miller, C.C.J. in Regina v. Woods (1962), O.W.N. 27 at 30.  See, generally, Orkin at pp. 350‑53, Bennion at p. 54.  (Return to Commentary 1)

  3. Cf. Ont. 19, 20; B.C. F-4.   In cases of hardship or illness and for other good cause governing bodies may well permit regulated and limited employment, for example to help rehabilitate an offender or one recovering from a disability. >  Their concern is to protect the public, not necessarily to inhibit individuals.  (Return to Commentary 2)

  4. Cf. B.C. G-2; Alta. 40; IBA E-4 and E-6; ABA ECs 3-5 and 3-6.   See also "Delegation of Authority by Solicitors" (1968) 3 Law Soc. U.C. Gaz. 23.  (Return to Commentary 3)

Table of Contents  |  Previous Chapter  |  Next Chapter

back to top 04 May 2009 02:40 PM