Code of Professional Conduct

CHAPTER XVII

PRACTICE BY UNAUTHORIZED PERSONS

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 disci-pline 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 should not, without the approval of the governing body, 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 judgement 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. There are many tasks that can be performed by a legal assistant working under the supervision of a lawyer. It is in the interests of the profession and the public for the delivery of more efficient, comprehensive and better quality legal services that the training and employment of legal assistants be encouraged.

5. Subject to general and specific restrictions established by the Law Society Rules, 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 the lawyer may delegate to a legal assistant turns on the distinction between the special knowledge of the legal assistant and the professional legal judgement of the lawyer, which must be exercised whenever it is required.

6. Except as may be specifically permitted by statute, a legal assistant is permitted to act only under the direction and supervision of a member. Adequacy of direction and 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 both generally and with regard to the particular matter. The burden rests on the member to instruct the legal assistant 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 duties. The member shall monitor and inject judgement in the process of the legal assistant's work as it is performed at sufficiently frequent intervals to ensure that it is proceeding correctly and in a timely fashion for delivery to the client.

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).

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.

The statutes of all provinces prohibit the practice of law by unauthorized persons:
Alta: Legal Profession Act, R.S.A. c. L9, s. 93.
B.C.: supra, s. 77.
Man.: supra, s. 48(1).
N.B.: supra, s. 14(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.: Legal Profession Act, R.S.S. c. L-10, s. 5.
"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.

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.

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 Author-ity by Solicitors" (1968) 3 Law Soc. U.C. Gaz. 23.

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