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The Ministry of Justice and the Law Society of Saskatchewan jointly undertook a project to explore the possibility of allowing non-lawyers to provide some legal services. In 2017, the Legal Services Task Team - comprised of lawyers, individuals working in the legal system who are not lawyers and members of the public - was appointed to examine this issue and develop recommendations for consideration by the Benchers and the Ministry about the appropriate role, if any, of non-lawyers in the provision of legal services. In carrying out its mandate, the Legal Services Task Team considered a wide range of possible approaches and kept the public interest central to its determination. The overall goal is to balance the need for enhanced access to legal services for underserved Saskatchewan citizens while ensuring public protection.

To assist the Task Team’s examination, an extensive consultation with legal organizations and other stakeholders within Saskatchewan’s justice system was conducted. The Task Team has completed its work and released its final report.  The report includes a number of recommendations on how to improve the regulation and provision of legal services in the province.

The recommendations include:

  • providing greater clarity to service providers about what legal services are regulated;
  • expanding the list of exceptions to the prohibition against practicing law to recognize existing service providers;
  • providing the Law Society with licensing authority to allow service providers to practice law with a limited licence on a case-by-case basis;
  • modernizing the legislation regulating legal services to provide more flexibility for future developments in this area;
  • creating guidelines to help educate the public about legal services; and
  • conducting pilot projects to help develop and test the recommendations.

The final report can be found here. Please see this report for more information on the rationale, process and recommendations. Please note, in particular, Section 7: Conclusions and Recommendations starting at page 63.

The Task Team did not recommend the creation of a new class of service providers, with a robust regulatory structure at this time – like the regulation of paralegals in Ontario. The Task Team determined this model was too complex and would be too costly to develop without assurances that there would be a sufficient number of service providers.

The Ministry of Justice and the Law Society of Saskatchewan created a Task Team in 2017 to explore the possibility of allowing non-lawyers to provide some legal services. One of the recommendations from the Task Team was to clarify the definition of the practice of law and identify what represents an unauthorized practice of law. Effective January 1, 2020, amendments to The Legal Professions Act, include a clearer definition of the practice law. It reads as follows:

29.1 The practice of law is the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person that require the knowledge and skill of a person trained in the law, and includes the following:

        (a) giving advice or counsel to others with respect to their legal rights or responsibilities or the legal rights or responsibilities of others;

        (b) drafting or completing legal documents or agreements that affect the legal rights of an entity or person;

        (c) representing another entity or person in any of the following:

              (i) a court;

              (ii) a formal administrative adjudicative proceeding;

              (iii) a formal dispute resolution process;

              (iv) any other administrative adjudicative proceeding in which legal pleadings are filed or a record is established as the basis for judicial review;

        (d) negotiating legal rights or responsibilities on behalf of another entity or person

Recognizing that many groups and individuals who are not lawyers may find themselves caught within the definition, the Law Society has added rule 1002(1) identifying certain groups and individuals who may be exempted from the new unauthorized practice provisions, and in the public interest, continue to provide limited legal services without becoming a lawyer. These exceptions in the Rules are as follows:

 

1002(1) Subject to subrule (2), for the purposes of clause 10(k.1) and clause 31(i) of the Act:

        (a) the following persons are exempt from the prohibition against the unauthorized practice of law in section 30 of the Act insofar as they are carrying out the functions mentioned in  clauses (i) to (xiii):

              (i) a person serving in a neutral capacity as a mediator or conciliator;

              (ii) a person participating in labour negotiations, arbitrations, conciliations or proceedings respecting collective bargaining rights or agreements;

              (iii) a person exercising an adjudicative function pursuant to statutory authority;

              (iv) a person acting as a legislative lobbyist;

              (v) a public officer acting within the scope of his or her authority as a public officer;

              (vi) a person employed by the government to act as a lay representative before administrative agencies or tribunals;

              (vii) a notary public exercising the powers conferred on the notary public by law;

              (viii) a person who delivers courtworker services to Aboriginal people through an Aboriginal delivery agency that has contracted with the Government of Saskatchewan or the Government of Canada to deliver courtworker services as part of the Aboriginal Courtworker Program;

              (ix) a person authorized to practice law in accordance with any provincial or federal statute;

              (x) an officer or employee of an incorporated or unincorporated organization preparing a document for the use of the organization or for an action or matter to which the organization is a party;

              (xii) a university law student in respect of services permitted to be provided by that student in accordance with the rules; and

              (xiii) an individual who is representing a person in an administrative adjudicative proceeding if the administrative tribunal determines that the individual would be of assistance to the person and the tribunal;

 

       (2) Subrule (1)(a)(xiii) and (b) do not exempt the following persons from the prohibition against unauthorized practice:

       (a) a former member who has been disbarred and has not been reinstated;

       (b) a member who is under suspension for any reason;

       (c) a person who has been denied admission on the basis that the person is not suitable to practice, as defined in Part 7 or that admission would otherwise be inimical to the best interests of the public; or

       (d) a person against whom an injunction has been issued pursuant to section 32 of the Act during the time that the injunction is in effect;

       (e) a person who charges a fee for the service provided pursuant to subrule (1)(a)(xiii).

The Law Society is asking legal service providers to self-identify by completing the notice form. Filling out the form and self-identifying to the Law Society will give non-lawyer legal service providers the opportunity to be considered for inclusion within existing or expanded exemptions, pilot projects or newly developed categories of limited licensee. Self-identifying to the Law Society will also enable existing low-risk service providers to have the opportunity to receive a letter from the Law Society confirming that they may continue to provide limited legal services, in their identified areas of work (subject to appropriate restrictions and conditions), without fear of prosecution or enforcement by the Law Society, while their long term status is considered in the context of new regulatory structures. To facilitate a smooth transition for service providers who self-identify, the Law Society will maintain the status quo during this initial period of notice and discovery commencing January 1, 2020. 

The Law Society will continue to enforce against those individuals or organizations who pose a clear risk to the public due to a lack of training, misleading the public about qualifications or status with the Law Society, or due to an unacceptable risk associated with their activities.  

For further information, please email us at consultation@lawsociety.sk.ca.

Many legal service providers, though they may not fall within the list of current exemptions, do not pose a significant risk to the public. Historically, the Law Society has not pursued criminal prosecutions or sought injunctions against these types of low risk providers even if their activities meet the technical definition of unauthorized practice.  As a result, the Law Society wishes to formalize its stance not to prosecute or enforce against these providers on a temporary basis while new rules, processes and categories of licenses are explored. In order to facilitate this, the Law Society is asking legal service providers to self-identify by completing the notice form

The goal of this process is to provide certain legal service providers with the assurance that they may maintain the status quo after the coming into force of the new provisions in the Act and the Rules. The Law Society will continue to enforce against those individuals or organizations who pose a clear risk to the public due to a lack of training, misleading the public about qualifications or status with the Law Society, or due to an unacceptable risk associated with their activities.

The Law Society will review the information you provide and determine whether there is risk to the public by allowing you to continue. The Law Society will continue to enforce against those individuals or organizations who pose a clear risk to the public due to lack of training, misleading the public about qualifications or status wit the Law Society, or due to unacceptable risk associated with their activities.

If the Law Society views the risk to the public associated with the particular set of services as outlined in the submitted Notice Form as being low, the Law Society will be prepared to allow the provider to continue to provide the services described in the Notice Form while it assesses the provider’s long-term status. In the interim, the Law Society will agree not to prosecute the provider or seek an injunction against the provider for the unauthorized practice of law in relation to the activities that the provider has described to us, so long as the scope of activities does not change and so long as the Law Society does not identify an increase in the risk that the provider may pose to the public. 

There have been significant amendments to The Legal Profession Act, which was proclaimed into force on January 1, 2020. The overall effect of these amendments is to assist the Law Society shift towards a more modern approach to regulation. Please see the Legal Sourcery blog for more information.

In order to accommodate changes to The Legal Profession Act, significant amendments were required in some areas of the Law Society Rules. Our amended Rules came into affect January 1, 2020. Please see the Legal Sourcery blog for a summary of the changes.

The Task Team was not prepared to recommend the creation of a new professional group with a robust regulatory structure but did consider whether it would be appropriate to extend a limited authority to practice law to alternative providers through other approaches. The Task Team concluded that there are context-specific needs that could be serviced by alternative service providers operating within a specific, individualized scope of practice reflecting the knowledge, training, and experience of the service provider or group of service providers.

Recommendation 7(a) calls for the Act to be amended to allow service providers to practice law with a limited license on a case-by-case basis and to provide the Law Society with licensing authority. This is a novel approach that differs from other Canadian jurisdictions. It enables the Law Society to expand access to appropriately regulated legal services in a responsible and sustainable manner. The overall goal of implementing a limited license program is to balance the need for enhanced access to legal services for underserved Saskatchewan citizens while ensuring public protection.

As the granting of a limited licenses to practice law would be a novel approach to legal regulation, a new licensing system will need to be developed. Framework development for the licensing system will involve further consultation and pilot projects to support the development of appropriate rules. Sections of the Act dealing with limited licenses will be enacted once these rules are developed. We currently aim to be in a position to proceed with implementing the limited license program within the next 18 to 24 months.

Please see Recommendations 7-9 of the Legal Services Task Team Report for more information.