Protecting the Public: Unauthorized Practise

patricia-gallagher

Contributor Patricia Gallagher shares her experience with an unlicensed service provider, and what she learned about how to handle these situations.

 

To me, the term “unauthorized practice” differs from “unlicensed scope of practice.”

Unauthorized practice means that someone is practising without benefit of education and without the demonstrated, tested, skill sets and duty of care that come with regulation. An unauthorized practitioner holds neither a paralegal nor lawyer’s licence to practice in Ontario.

On the other hand, unlicensed scope of practice involves practising in an area outside the scope permitted by the Law Society of Upper Canada (LSUC). The Law Society is our regulator and we must answer to them.

Lack of Licence Number Sparks Curiosity

As for unauthorized practice, I was contacted recently by someone to advise on a Plaintiff’s Claim that had been filed against him. There was a name listed as Representative, but in the spot next to that, LSUC #, there was nothing. Hmm.

I spoke to this “representative,” before deciding to go ahead and file a complaint with the LSUC. First, I established that this person was not a family member helping out. I learned he had been working in “collections” for many years, filing court documents. I asked, “What happens when you file a claim, and the defendant doesn’t roll over and pay or arrange to settle? What happens if it goes all the way to a settlement conference?” “Well,” I was told, “I tell them they need to hire a lawyer or a paralegal.”

In the meantime, the plaintiff has paid for this person to create a Plaintiff’s Claim, and I suspect they felt they were getting qualified, competent work. I suspect they don’t know that the work is incompetent and that there is no recourse should things go badly because of the misrepresentation.

I weighed the “practice management” reasons that I should report this: after an inquiry, if nothing inappropriate is found, that would be the end of the matter; I have a duty to report it, and let the LSUC deal with it; I have paid tuition fees, and pay for licensing, and pay for E & O Insurance, while this person, if not licensed, has not.

Law Society Responds to Reports

I contacted the LSUC, and asked for their opinion as well as their guidance. What I kept coming back to, and what seemed the most injurious and grievous to me, was the potential harm this person was doing to the person he was representing. The claim had little fact, little evidence and a great deal of “he said/she said” in it. The claim had glaring grammatical errors throughout. The claim would have been tolerable if generated by a layperson, or a self-represented person, but I suspect it would irritate a Justice of the Peace or Judge, not only for its lack of real content, but for its unprofessionalism.

The Law Society identifies three types of unauthorized practice:

    – A licensed paralegal practises outside the areas specifically authorized for licensed paralegals.
    – A licensed paralegal practises in an area authorized for licensed paralegals without being qualified to do so.
    – A person who is not a lawyer or a licensed paralegal practises in areas specifically authorized for licensed paralegals.

Unauthorized practice has been a concern and an issue since long before paralegal licensing and regulation. There are those who believe the strongest argument for licensing was to stop anyone other than a lawyer from generating an income (and a good one!) by providing legal advice. There is overwhelming evidence to support the theory that the issue arises more because of incompetence and lack of duty of care to clients, and that regulation requires all of us to use caution and be competent.

A great article that explores this was written by Vern Krishna, and published in The Lawyer’s Weekly, August 19, 2005, V.24, No.14. He stated at that time:

    “The unauthorized practice of law can also lead to actions for legal malpractice. Non-lawyers who deliver legal services engage in unauthorized practice. They may also be liable for malpractice and held to the same standards of competence as professionally qualified and licensed lawyers. The underlying public policy is that the law should protect consumers from injurious consequences from the acts of unskilled persons.”

The Law Society of Upper Canada currently addresses the matter of Illegal Practitioners, both lawyers and paralegals, at its website.

This page explains the procedure the LSUC follows when investigating and dealing with a person or firm that has been noted for unauthorized, or illegal, practice, under The Law Society Act. When made aware of an individual who may be practising illegally, the Law Society may do one or more of the following:

    – Send a cease and desist letter demanding that the person stop providing legal services they are not licensed to provide. This is often successful.
    – Conduct an investigation, especially if the person accused of illegal practice is persistent or is placing the public directly at risk.
    – Ask the person to sign an undertaking (agreement) to cease the unauthorized activity. This is a document that may be used later in court if the behaviour persists.
    – Initiate court proceedings.
Consequences for Unauthorized Practice

The Law Society has the power to seek injunctions in Superior Court. If the injunction is breached, this may result in an application to have the person found in contempt. Contempt can be punishable by fines or imprisonment or both. The Law Society can also prosecute illegal practice in provincial court or provincial offences court. The Law Society Act provides for significant fines as well as probation orders upon conviction.

In the recent LSUC v. Chiarelli, (The Law Society of Upper Canada v. Chiarelli, 2013 ONSC 1428 (CanLII)), Justice Goldstein stated the issue to be decided was, “Is the Respondent exempt from the Law Society’s licensing requirements?” Goldstein found:

    “I agree with the Respondent that the facts support his argument that he is a property manager. He may also be a landlord’s agent for some purposes set out in the Residential Tenancies Act. It is irrelevant, however whether or not the Respondent is a property manager. The prohibition is not on property managers. The prohibition is in respect of unlicensed legal professionals. I agree with the basic conclusion reached by Board Member Carey: if the Respondent is correct, then any paid person could appear before the Board without meeting the licensing requirements. As noted, that is clearly contrary to the intent of the Law Society Act. The Respondent has not provided any authority to suggest that the Board is different from any other adjudicative body in Ontario in that regard. As a practical matter, there is nothing to prevent a property manager from retaining a licensed legal professional from appearing at the Board as the landlord’s agent in a situation where that property manager has the legal authority to exercise the rights of a landlord. He says that if the injunction is granted, he will be the only property manager in the province who is unable to initiate eviction proceedings against bad tenants. With respect, that is not correct – again, there nothing to prevent him from retaining a licensed legal professional to carry out those aspects of his work that require the services of a licensed legal professional.”

J. Goldstein found:

    “A permanent injunction will issue preventing the Respondent from providing legal services in Ontario. I wish to make it clear that the mandatory injunction is not intended to impair his ability to make a living as a property manager and that there is nothing to stop him from retaining the services of a licensed legal professional where lawful and appropriate.”

An older, significant case related to unauthorized practice is Maureen Boldt v. Law Society of Upper Canada, 2010 ONSC 3568 (CanLII).

Unauthorized practice may seem annoying, but harmless, at first glance. But the reality is that it is because of unauthorized practice that the need for licensing developed. If we are to protect the public, which is what we have taken an oath to do, then we need to have some rules in place.

The LSUC advises the public that an unlicensed legal professional:

    – may not be properly trained to provide legal services
    – is not required to follow a code of professional conduct or to answer to a regulator
    – does not have to carry insurance for negligence and is not backed by a compensation fund

All of which seems to me to be good advice.

 

Patricia Gallagher is a licensed paralegal. She operates Erie Shores Paralegal Services:

Phone: 519-890-4674
Fax: 1-226-773-0150
Web Site

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