As most lawyers know, our Code of Professional Conduct (the Code) has been amended to clarify the requirements regarding direct supervision of non-lawyers (see s. 6.1 of the Code). These amendments were thoroughly considered after many consultations related to non-lawyers’ roles in the legal industry, with the goal of improving access to justice. For further reading on that subject, check out the Final Report from the Legal Services Task Team and the Future of Legal Services Initiative.
Given the years of study and consultation, the amendments to s. 6.1 were no doubt very well considered. To understand what the Law Society wants us to interpret from the changes, watch Craig Zawada’s Bite Size CPD. It is a short video and does a good job of explaining general best practices when delegating to legal assistants and other non-lawyers.
Unfortunately, the video lacks much in the way of specificity. When we look past the video to the wording of s. 6.1 itself, we can see why. The commentary is condescending toward solo practitioners, contradictory, and highly ambiguous.
Before diving into specific examples, it is important to note that the criticisms below are not merely being knit picky. Commentary [5] of s. 6.1-1 compels lawyers that they “must consider the Commentary in this section”. This command is not present in any other Commentary in the Code, which raises all sorts of other interpretation issues that I won’t touch on in this Op Ed.
Condescension Toward Solo Practitioners
As a small urban lawyer who has spent most of his career as a sole practitioner, I chuckled and rolled my eyes when I read Commentary [2] of s. 6.1-1, being:
[2] A lawyer who practises alone or operates a branch or part-time office should ensure that
(a) all matters requiring a lawyer’s professional skill and judgment are dealt with by a lawyer qualified to do the work; and
(b) no unauthorized persons give legal advice, whether in the lawyer’s name or otherwise.
Are we to interpret that lawyers who practice in large firms do not need to ensure that no unauthorized persons give legal advice? More likely, the writers of this Commentary simply assume that lawyers in large firms are less fallible and don’t need reminded with the same level of specificity. Whether intentional or not, the wording does appear to create some form of two-tiered standard between sole practitioners and those operating in larger firms.
A similar criticism can be levied against Commentary [4], as it creates separate standards for private practice and pro bono programs, while also being silent on in-house counsel delegating to their staff.
Contradictions
Commentary [1] of s. 6.1-1 is great. It forms the basis for all of Craig Zawada’s analysis in his Bite Size CPD video. If no other commentary were added below it, the goals of the Law Society would have largely been achieved. Commentary [1] reads:
[1] A lawyer may permit a non-lawyer to act only under the supervision of a lawyer. The extent of supervision will depend on:
(a) the type of legal matter, including: the degree of standardization and repetitiveness of the matter, the risk associated with the specific legal matter; and
(b) the capacity of the non-lawyer to complete the task, including: the education, experience, and training of the non-lawyer generally and with regard to the matter in question, the demonstrated ethics, trustworthiness, and reliability of the non-lawyer, and the workload of the non-lawyer.
The burden rests on the lawyer to educate a non-lawyer concerning the duties that the lawyer assigns to the non-lawyer and then to supervise the manner in which such duties are carried out. A lawyer should review the non-lawyer’s work at sufficiently frequent intervals to enable the lawyer to ensure its proper and timely completion.
Commentary [3], sadly, appears to contradict the statements above. It reads:
[3] If a non-lawyer has received specialized training or education and is competent to do independent work under the general supervision of a lawyer, a lawyer may delegate work to the non-lawyer.
Commentary [3] requires that a non-lawyer cannot simply be “competent to do independent work.” They must also have “received specialized training or education.” In trying to reconcile these two Commentaries, I wonder if “general supervision” is something broader than regular “supervision.” If so, is the specialized training and education I give to my assistant sufficient to further broaden my delegating powers beyond what it listed in Commentary [1]?
If “general supervision” is not meant to relax a lawyer’s supervisory responsibilities, why does Commentary [3] exist except to undermine and restrict the statements in Commentary [1]?
Ambiguity
S. 6.1-1 never actually tells lawyers what they are allowed to delegate. It merely provides vague guidance. We can only know we have overstepped when the disciplinary committee tells us so.
Luckily, s. 6.1-3 provides a list of things lawyers must not permit non-lawyers to do. Except, there is a catch-all at the end, which states,
6.1-3 A lawyer must not permit a non-lawyer to:
…
(f) perform any of the duties that only lawyers may perform…
I thought the whole point of s. 6 of the Code was to allow non-lawyers to do work that only lawyers may perform because they are supervised by a lawyer. I assume all the requirements for direct supervision don’t extend to non-legal tasks, like which pads of paper the receptionist orders for the office.
I assume all the requirements for direct supervision extend solely to legal tasks that would otherwise be done by lawyers. This would traditionally include the drafting of mortgage documents, generating Wills, preparing petitions for divorce, etc.
What then are the duties that only a lawyer may perform? I assumed “giving legal advice” and “being held out as a lawyer” would fit into this category, but those are specifically listed at ss. 6.1-3(a) and (c). Is s. 6.1-3(f) more narrow, encompassing only duties that are specified in legislation, or is it broader, encompassing things like an assessment of capacity during a Will signing meeting? If I hire a retired psychologist as a legal assistant, would they have the specialized training to assess legal capacity or is that a duty only to be performed by a lawyer?
The Future of the Practice
With the number of contradictions and the level of ambiguity in s. 6.1, we will inevitably see most lawyers remain cautious in what they delegate, which protects the lawyer and fails to improve access to justice in any meaningful way. Meanwhile, we will see a few ambitious upstarts push the envelope too far to the detriment of the public’s confidence in our profession. The present lack of clarity is to the detriment of everyone involved.
Small urban lawyers like myself often see the lack of access to justice in a more pronounced way than in larger centres. It is difficult to retain lawyers in small centres and we tend to rely more heavily on better-trained legal assistants than larger firms. Out of necessity for my community, I intend to take the most generous interpretation of these ambiguous new rules. With my well-trained and experienced assistants, I don’t expect any forthcoming complaints of negligence. Nevertheless, I do not envy the Investigation Committee and Disciplinary Committee when it inevitably comes time for them to interpret and apply the new wording.
Talon Regent is the owner of Regent Law and Easy eLaw based out of Moose Jaw. He primarily practices in Real Estate and Wills & Estates with an emphasis on remote delivery of legal services. He is also in the process of building an Artificial Intelligence lawyer to replace him, further complicating the idea of Direct Supervision for non-lawyers.