Part XII – Supervision of Legal Assistants


Definition

12.01 For the purposes of this Rule, the term “legal assistant” shall include any person who is not a member or student who performs work associated with the provision of legal services under the general supervision of a member, whether as an employee of the member or of a firm, professional law corporation or enterprise in which the member is associated or employed, or as an independent contractor, or as a trainee, or otherwise.
(Amended: Rule 12.01, Summer Term Convocation June 10, 2005)


Matters Requiring Professional Skill and Judgement

12.02 A member shall ensure that all matters requiring a lawyer’s professional skill and judgement are dealt with by a member and that legal advice is not given by unauthorized persons, whether in the member’s name or otherwise.


Legal Assistants

12.03 Subject to the general and specific restrictions set out below, a legal assistant may perform any task delegated and supervised by a member so long as the member 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 member 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 member, which must be exercised whenever it is required.

12.04 Except where the following may be specifically permitted by statute, a member may not permit the legal assistant to:

(a) give legal advice;

(b) give or receive undertakings;

(c) examine or cross-examine any party in an action, by way of discovery or otherwise;

(d) act without reference to the member in matters involving professional legal judgement;

(e) appear in a court or before a tribunal or participate in judicial or quasi-judicial proceedings on behalf of a client except in a support role to the member appearing in such proceedings;

(f) be held out as a member, 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; or

(g) be named in any manner other than as a legal assistant on the letterhead of a member’s stationery or in any sign, announcement or listing in any directory or advertisement used or published by the member, or in association with the member in any pleadings, written argument or other like document submitted to a court or tribunal.

12.05 A member shall ensure that a legal assistant, when dealing directly with clients, lawyers, public officials or with the public generally, shall disclose that he or she is not a member.

12.06 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.

12.07 For the purpose of specific areas of practise, it is easier to define the function of legal assistants affirmatively:

(a) Real Estate

The member may permit the legal assistant to attend to matters of routine administration in a transaction relating to the sale, option, lease or mortgaging of land, and to conduct routine correspondence and draft documents and other correspondence including closing documents and statements of accounts, provided that the member attends on the client to advise and take instructions on all substantive matters, reviews title search reports, conducts all negotiations with third parties or their lawyers, reviews documents before signing, attends on the client to review documents, and reviews and signs title opinions.

(b) Corporate and Commercial

The member may permit the legal assistant to attend to matters of routine administration and to draft documentation and correspondence relating to corporate proceedings and corporate records, security instruments and contracts, including closing documents and statements of account, provided that the member attends on the client to advise and take instructions on all substantive matters, conducts all negotiations with third parties or their lawyers and reviews and signs all written material prepared by the legal assistant before it leaves the member’s office other than documents and correspondence relating to routine administration.

(c) Wills, trusts and estates

The member may permit the legal assistant to collect information, draft documents including wills and trust instruments, prepare any applicable income tax, succession duty and estate tax returns, calculate such taxes and duties, draft executors’ accounts and statements of account, and attend to filings and conduct routine correspondence, provided that the member attends on the client to advise and take instructions on all substantive matters, conducts all negotiations with third parties or their lawyers, attends at any hearing before the court or registrar and reviews and signs all material prepared by the legal assistant before it leaves the member’s office, other than documents and correspondence relating to routine administration.

(d) Litigation

The member may permit the legal assistant to collect information, interview witnesses, 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 member attends on the client to advise and take instructions on all substantive issues, conducts all negotiations with third parties or their lawyers (except where the client consents, negotiations of routine debt collection claims other than in tort may be conducted by the legal assistant and communicated directly by the legal assistant to the client if prior to settlement such are reviewed by the member), and reviews and signs all written material prepared by the legal assistant before it leaves the member’s office, other than documents and correspondence relating to routine administration. The legal assistant shall not attend at any examination for discovery of the client or attend in court or before a registrar or before any administrative tribunal, except in support of a member also in attendance.

12.08 Benchers may treat a member’s failure to comply with this Part as professional misconduct.

(Adopted: Part XII, Fall Term Convocation, October 6, 1997)