S. Patricia Knight - Ethics and Professional Practice For Paralegals

Ethics and Professional
Practice for Paralegals

Fifth Edition
S. Patricia Knight
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05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for

Paralegals, 5th Edition

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Ethics and Professional
Practice for Paralegals
FIFTH EDITION
S. Patricia Knight

Copyright © 2020 Emond Montgomery Publications Limited.
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Brief Table of Contents
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv
CHAPTER 1 Paralegal Governance in Ontario . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CHAPTER 2 Professionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
CHAPTER 3 The Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
CHAPTER 4 Duty to Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
CHAPTER 5 Advocacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
CHAPTER 6 Duty to Licensees and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
CHAPTER 7 Practice Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
APPENDIX A Paralegal Rules of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
APPENDIX B Paralegal Professional Conduct Guidelines . . . . . . . . . . . . . . . . . . . . . . 297
Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
iii


Table of Contents
Brief Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv
1 Paralegal Governance in Ontario
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Regulation by the Law Society of Ontario . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
How Did the Law Society Become the Regulator? . . . . . . . . . . . . . . . . . . . . . . . 4
How Does Paralegal Regulation Affect the Role of Paralegals in Ontario? . . . . . 5
Licensing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Provision of Legal Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Immigration Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Family Law Legal Services Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Disclosure to Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Exemptions from Licensing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Other Features of Paralegal Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Chapter Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Application Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2 Professionalism
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Interpretation of the Rules of Paralegal Conduct (Rule 1.02) . . . . . . . . . . . . . 31
Professionalism (Rule 2; Guidelines 1-4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Integrity and Civility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Outside Interests and Public Office (Rules 2.01(4), (5); Guideline 2) . . . . . . . . . . 45
Acting as a Mediator (Rule 2.01(6); Guideline 2) . . . . . . . . . . . . . . . . . . . . . . . . 46
Undertakings and Trust Conditions (Rules 2.02, 6.01; Guideline 3) . . . . . . . . . . 47
v

Professional Conduct and the Ontario Human Rights Code . . . . . . . . . . . . . . 51
Harassment and Discrimination (Rule 2.03; Guideline 4) . . . . . . . . . . . . . . . . . . 51
Chapter Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
3 The Client
The Duty to the Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
The Paralegal – Client Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
The Paralegal – Client Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
The Paralegal – Client Retainer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Who Is a Client? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
How Does a Person Become a Client? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Initial Contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Initial Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Written Confirmation of the Paralegal – Client Retainer . . . . . . . . . . . . . . . . . . . 71
The Retainer Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
The Non-Engagement Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Limited Scope Retainers (Rules 3.02(15)-(17); Guideline 6) . . . . . . . . . . . . . . . . 73
Joint Retainer Clients (Rules 3.04(6)-(12); Guidelines 5, 9) . . . . . . . . . . . . . . . . . 75
Client with Diminished Capacity (Rules 3.02(13), (14); Guidelines 5, 6, 7) . . . . . 77
Acting for an Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Phantom Clients (Guideline 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Client Identification and Verification (By-Law 7.1) . . . . . . . . . . . . . . . . . . . . . 81
Compliance with the By-Law 7.1 Client Identification
and Verification Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Chapter Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
4 Duty to Clients
The Paralegal as Fiduciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Competence and Quality of Service (Rule 3.01; Guideline 6) . . . . . . . . . . . . . 110
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
The Competent Paralegal (Rules 3.01(1)-(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Limited Scope Retainers (Rules 3.02(15)-(17); Guideline 6) . . . . . . . . . . . . . . . . 112
Who Is Competent? (Rule 3.01(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
vi Table of Contents

Advising Clients (Rule 3.02; Guideline 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Quality of Service (Rules 3.02(1)-(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Honesty and Candour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Dishonesty, Fraud, or Crime by a Client or Others (Rules 3.02(4)-(6), (8)) . . . . . . 121
Threatening Penal or Regulatory Proceedings
(Rules 3.02(9), 3.08(5)(b), 4.01(5)(n)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Settlement and Dispute Resolution (Rules 3.02(11), (12)) . . . . . . . . . . . . . . . . . 128
Client with Diminished Capacity (Rules 3.02(13), (14)) . . . . . . . . . . . . . . . . . . . 129
Medical – Legal Reports (Rules 3.02(18)-(20)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Errors (Rule 3.02(21)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Official Language Rights (Rule 3.02(22), (23)) . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Confidentiality (Rule 3.03; Guideline 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Confidential Information (Rules 3.03(1)-(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Disclosure of Confidential Information (Rules 3.03(1), (4)-(10)) . . . . . . . . . . . 137
Disclosure with Client Authority (Rule 3.03(1)(a)) . . . . . . . . . . . . . . . . . . . . . . . 137
Disclosure Without Client Authority: Justified or Permitted Disclosure
(Rules 3.03(4)-(10)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
Other Obligations Relating to Disclosure of Confidential Information . . . . . . . . 143
Personal Information Protection and Electronic Documents Act (PIPEDA) . . 144
Conflicts of Interest (Rule 3.04; Guideline 9) . . . . . . . . . . . . . . . . . . . . . . . . . . 146
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
To Whom Is the Duty Owed? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Managing Conflicts of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
Conflict of Interest: Client Consent (Rules 3.04(3)-(5)) . . . . . . . . . . . . . . . . . . . . 149
Consent—Prospective Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Conflict of Interest—Existing Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Conflicts of Interest Arising from Personal Relationships (Rule 3.04(1)) . . . . . . . 154
Outside Interests and Public Office (Rules 2.01(4), (5), 3.04; Guidelines 2, 9) . . . 155
Acting Against Former Clients (Rules 3.04(2), (4)(a), (b)) . . . . . . . . . . . . . . . . . . 156
Joint Retainers (Rules 3.04(6)-(12); Guidelines 5, 9) . . . . . . . . . . . . . . . . . . . . . . 157
Multi-Discipline Practice (By-Law 7, Part III; Rules 3.04(13), 8.01) . . . . . . . . . . . 160
Affiliations (By-Law 7, Part IV; Rules 1.02, 3.04(14)-(16)) . . . . . . . . . . . . . . . . . . 160
Civil Society Organizations (Rules 3.04(17)-(22)) . . . . . . . . . . . . . . . . . . . . . . . . 161
Transfers Between Paralegal Firms (Rule 3.05; Guideline 9) . . . . . . . . . . . . . . 163
Interpretation and Application of Rule 3.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Paralegal Transfer Between Firms—When to Determine Conflicts (Rule 3.03;
Guideline 9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Paralegal Firm Disqualification (Rule 3.05(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Transferring Paralegal Disqualification (Rules 3.05(3)-(5)) . . . . . . . . . . . . . . . . . . 165
Paralegal Due Diligence for Non-Licensee Staff (Rule 3.05(6)) . . . . . . . . . . . . . . 166
Table of Contents vii


Transactions with Clients (Rule 3.06; Guideline 9) . . . . . . . . . . . . . . . . . . . . . . 166
General (Rules 3.06(1)-(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
No Advertising of Individual or Joint Investment (Rule 3.06(6)) . . . . . . . . . . . . . 167
Guarantees by a Paralegal (Rules 3.06(7), (8)) . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Procedure in Permitted Transactions (Rule 3.06(4)) . . . . . . . . . . . . . . . . . . . . . . 168
Payment for Legal Services (Rule 3.06(9)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Judicial Interim Release (Rules 3.06(10), (11)) . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Client Property (Rule 3.07; By-Law 9; Guideline 10) . . . . . . . . . . . . . . . . . . . . 170
Paralegal as Fiduciary with Respect to Client Property (Rule 3.07(1)) . . . . . . . . . 170
Withdrawal from Representation (Rule 3.08; Guideline 11) . . . . . . . . . . . . . . 173
Optional Withdrawal: Serious Loss of Confidence (Rules 3.08(2)-(4)) . . . . . . . . . 174
Mandatory Withdrawal (Rules 3.08(1), (5); By-Law 7.1) . . . . . . . . . . . . . . . . . . 175
Non-Payment of Fees (Rules 3.08(1), (6)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Withdrawal from Quasi-Criminal and Criminal Cases (Rules 3.08(1), (7)-(9)) . . . 176
Manner of Withdrawal (Rules 3.08(10)-(13)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Leaving a Firm (Rule 3.08(13.1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Successor Licensee (Rule 3.08(14)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Chapter Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
5 Advocacy
General (Rule 4; Guideline 12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
The Paralegal as Advocate (Rule 4.01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
Duty to Clients, Tribunals, and Others (Rules 4.01(1), (8), (9)) . . . . . . . . . . . . . . 189
Duty as Prosecutor (Rule 4.01(5.1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Candour, Fairness, Courtesy, and Respect (Rules 4.01(1), (4)(d),
(5)(o); 6.01(1), (2); 7.01(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
The Paralegal and the Tribunal Process (Rule 4.01(5)) . . . . . . . . . . . . . . . . . . . . 191
Communication with Witnesses Giving Evidence (Rule 4.03) . . . . . . . . . . . . 201
General (Rule 4.02(1); Rule 7.02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Communication with Witnesses Giving Evidence (Rules 4.03(1)-(3)) . . . . . . . . . 202
The Paralegal as Witness (Rule 4.04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Dealing with Unrepresented Persons (Rule 4.05) . . . . . . . . . . . . . . . . . . . . . . 205
Chapter Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
viii Table of Contents


6 Duty to Licensees and Others
Encouraging Respect for the Administration of Justice
(Rule 6.01; Guideline 16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Irresponsible Allegations (Rule 6.01(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Security of Court Facilities (Rules 6.01(3), 3.03) . . . . . . . . . . . . . . . . . . . . . . . . . 212
Public Appearances and Statements (Rules 6.01(4), (4.1)) . . . . . . . . . . . . . . . . . 214
Working with or Employing Unauthorized Persons (Rules 6.01(5), (6)) . . . . . . . . 214
Practice by Suspended Paralegal Prohibited
(Rule 6.01(7); Law Society Act, ss 43, 44) . . . . . . . . . . . . . . . . . . . . . . . . . . 216
By-Law 7.1 (Part II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
By-Law 9 (Part II.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Undertakings Not to Provide Legal Services (Rules 6.01(8), (9)) . . . . . . . . . . . . . 222
Duty to Licensees and Others: Courtesy and Good Faith
(Rule 7.01; Guideline 17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Sharp Practice (Rule 7.01(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Reasonable Requests (Rule 7.01(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Abusive Communication (Rule 7.01(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Unfounded Criticism of Other Licensees (Rule 7.01(4)) . . . . . . . . . . . . . . . . . . . 225
Prompt Communication (Rule 7.01(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Recording Conversations (Rule 7.01(6)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Documents Sent in Error (Rule 7.01(7)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Communication with a Represented Person, Corporation,
or Organization (Rule 7.02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Exceptions to Rule 7.02(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Communication with a Corporation or Organization . . . . . . . . . . . . . . . . . . . . 227
Responsibility to the Law Society (Rule 9; Guideline 21) . . . . . . . . . . . . . . . . 229
Communications from the Law Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Duty to Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Duty to Report Certain Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Disciplinary Authority of the Law Society (Rules 9.01(10)-(13);
Guideline 22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Chapter Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
Table of Contents ix

7 Practice Management
Fees and Retainers (Rule 5; Guidelines 13, 14) . . . . . . . . . . . . . . . . . . . . . . . . 241
What Are Fees? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
What Are Disbursements? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
Reasonable Fees and Disbursements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
Contingency Fees (Rules 5.01(7)-(9)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Joint Retainers (Rule 5.01(10)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
Division of Fees (Rule 5.01(11)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
Fee Splitting (Rules 5.01(12), (13)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
Referral Fees (Rules 5.01(14)-(21) [formerly Rules 5.01(14)-(20)];
Guideline 13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
Civil Society Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Retainers (Rule 5.01; Guideline 14; By-Law 9) . . . . . . . . . . . . . . . . . . . . . . . . . . 255
The Retainer Agreement (Guideline 14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
Money Retainers (By-Law 9, Part IV; Guideline 14) . . . . . . . . . . . . . . . . . . . . . . 256
The Trust Account (Rule 5.01(5); Guideline 15; By-Law 9, Part IV) . . . . . . . . . . . 258
Practice Management (Rule 8; Guidelines 6, 18) . . . . . . . . . . . . . . . . . . . . . . . 262
Delegation and Supervision (Rules 8.01(1), (3)-(5); By-Law 7.1,
Part I; Guideline 18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
Hiring and Training of Staff (Guideline 18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
Financial Responsibility (Rule 8.01(2); Guideline 23) . . . . . . . . . . . . . . . . . . . . . 268
Making Legal Services Available (Rule 8.02; Guideline 19) . . . . . . . . . . . . . . . . . 269
Marketing of Legal Services (Rule 8.03; Guideline 19) . . . . . . . . . . . . . . . . . . . . 270
Compulsory Errors and Omissions Insurance
(Rule 8.04; By-Law 6, Part II; Guideline 20) . . . . . . . . . . . . . . . . . . . . . . . . . 274
Chapter Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
Appendixes
A Paralegal Rules of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
B Paralegal Professional Conduct Guidelines . . . . . . . . . . . . . . . . . . . . . . . . 297
Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
x Table of Contents

Preface
Welcome to the fifth edition of Ethics and Professional Practice for Paralegals. This book is
designed to assist readers in understanding the principles of legal ethics and professional
conduct, and the application of those principles. Both the Paralegal Rules of Conduct and
the Paralegal Professional Conduct Guidelines have been updated to reflect changes since
publication of the fourth edition.
In each chapter, the Paralegal Rules are discussed in conjunction with the applicable
guideline(s) and other relevant material. Class activities, problems, and fact situations
assist readers in considering and analyzing the Paralegal Rules, and applying them appro-
priately in order to comply with ethical and professional obligations.
An exciting new feature of the fifth edition is the beginning-of-chapter Planning
for Practice scenarios. The Planning for Practice scenarios follow Rajni Peacock and her
colleagues as they progress from the paralegal licensing process in Chapter 1, through
various stages of paralegal experience, to Rajni’s decision in Chapter 7 to form her own
firm. Each scenario raises ethical and professional issues relevant to that chapter’s con-
tent, and provides questions for students to consider and solve as they work their way
through the material in the chapter.
Since publication of the fourth edition, new practice opportunities for paralegals
and others have arisen in response to the recommendations made in Madam Justice
Annemarie Bonkalo’s Family Legal Services Review, released in March 2017. In December
2017, the Law Society of Ontario approved in principle the Family Legal Services Review
Action Plan, which establishes a special licence for paralegals and others with appropriate
training to offer some family law legal services.
Another source of new practice opportunities for paralegals is Bill C-75, which became
law on September 19, 2019. For more information about Bill C-75, see Chapter 1,
Box 1.4.
A Note from the Publisher

For instructors who have adopted this book for course use, supplemental teaching
resources are available, including an instructor’s guide, a test bank, and PowerPoint pres-
entations. For more information, visit the accompanying website for this book at www.
emond.ca/EPPP5 or contact your Emond Publishing representative.
xi


Acknowledgments
I must begin by saying a very special thank you to Jessica Hendricks, Coordinator of the
Georgian College paralegal program. Jessica designed the beginning-of-chapter Planning
for Practice scenarios and questions, as well as additional end-of-chapter problems for
this edition. Jessica, it was fun working with you. I enjoyed our conversations and consul-
tations, and your contributions are a tremendous asset to the book.
I would also like to thank Lindsay Sutherland, Kelly Dickson, Laura Bast, and Anthony
Rezek for their encouragement and support as we went forward with the fifth edition
of this textbook; Sarah Fulton May and Cindy Fujimoto for their painstaking editing and
many helpful comments as the manuscript went through several revisions; and my sisters
for their understanding, patience, and support.
My thanks also to the reviewers of the fourth edition. Your comments were wide-
ranging, interesting, and insightful. To the reviewer who suggested a piece on Joseph
Groia’s tribulations: It was a great idea, and a fascinating project. You will find the piece
in Chapter 2.
Patricia Knight
January 2020
xiii


About the Author
Patricia Knight is a former professor in the Paralegal Program at Sheridan College

Institute of Technology and Advanced Learning. She has an MA (English Literature) from
Queen’s University and a JD from Osgoode Hall Law School. She taught in the Paralegal
Program at Sheridan Institute from 1999 to 2016, and was coordinator of the program
from 2000 to 2008. During her coordinatorship, the Sheridan Paralegal (then Court and
Tribunal Agent) Program grew steadily and went through many changes. The Law Society
of Upper Canada (now the Law Society of Ontario) began regulating the paralegal profes-
sion during this time, and the Sheridan Paralegal Program was one of the first in Ontario
to be accredited by the Law Society to deliver a paralegal curriculum.
Patricia has an ongoing interest in access to justice issues and has served on the boards
of several community legal clinics. She is a supporter of the expansion of paralegal prac-
tice in Ontario, and will observe with interest the direction that paralegal practice and
paralegal education take in the next decade or so.
Patricia is also the author of another Emond book, Small Claims Court: Procedure and
Practice, which is now in its fourth edition.
xv


Paralegal Governance
in Ontario 1
Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Learning Outcomes
Regulation by the Law Society of Ontario. . . . . 4 After reading this chapter, you will understand:
How Did the Law Society Become the
• Paralegal governance in Ontario.
Regulator?. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
• Who must be licensed.
How Does Paralegal Regulation Affect the
• Permitted areas of practice for P1 licensees.
Role of Paralegals in Ontario?. . . . . . . . . . . . 5
• The licensing process.
Licensing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
• The good character requirement.
Provision of Legal Services. . . . . . . . . . . . . . . . . . 10 • Exemptions from licensing.
Immigration Law . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Family Law Legal Services Review . . . . . . . . 14
Disclosure to Client . . . . . . . . . . . . . . . . . . . . . . . 17
Exemptions from Licensing. . . . . . . . . . . . . . . . . 18
Other Features of Paralegal Governance . . . . . . 25
Chapter Summary. . . . . . . . . . . . . . . . . . . . . . . . . 27
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Application Questions . . . . . . . . . . . . . . . . . . . . . 28
1

PLANNING FOR PRACTICE
Good Character Requirement and Paralegal Scope of Practice

Rajni Peacock recently graduated from a paralegal pro- amounted to sexual harassment. He was suspended
gram at an accredited Ontario college. She is now in without pay for one week, reassigned to a different
the process of applying to the Law Society of Ontario department, and required to take sensitivity training.
for her P1 licence. As part of this process, applicants Since that time, Jasper has become far more educated
must complete the Good Character section of the P1 on the topic; has worked hard at developing healthy,
application form. Rajni feels confident there is nothing respectful relationships with women; and is much more
she must disclose to the Law Society in this section. mindful of boundaries. Nevertheless, Jasper is worried
However, her classmate, Jasper, is concerned about about how the incident will affect his P1 application. He
his application. Prior to enrolling in the paralegal pro- would rather not disclose it.
gram, Jasper worked in a call centre at a major bank. Meanwhile, Rajni has completed her P1 application
Five years ago, one of his female co-workers, Natacha, and booked a date for her licensing exam. She graduated
made a formal complaint to her manager about Jas- at the top of her class and her family is extremely proud.
per’s behaviour in the workplace. There was a great While she and her mother were at the mall recently, they
deal of joking and flirtatious behaviour that went on ran into her mother’s co-worker, Fatima, who is in a Small
among employees in the call centre. Jasper often made Claims Court dispute with a general contractor. Rajni’s
sexual innuendos toward Natacha, gave her “sur- mother was beaming with pride as she said, “Rajni is a
prise” neck massages, squeezed her knees, or put his paralegal. She can help you with your court case.” Before
arm around her waist. Jasper’s comments and physical Rajni could correct her mother, Fatima pulled papers out
contact made Natacha uncomfortable, and she asked of her handbag, presented them to Rajni, and said, “Here
him to stop more than once. Jasper ignored her objec- is the plaintiff’s claim I drafted last night. Would you be so
tions and responded, “Oh please, you tell me to stop, kind as to look it over and tell me if I’ve missed anything?”
but you love the attention.” Offended and frustrated, Rajni tried to explain that under the circumstances she is
Natacha launched a complaint. An internal investi- not permitted to give legal advice, but her mother gave
gation was conducted and the team concluded that her a stern look and said, “Rajni would be happy to help
Jasper’s behaviour, which had gone on for almost a year, you, Fatima.”
Questions for Discussion
1. Should Jasper disclose the incident involving over the claim and makes a few suggested
Natacha and the outcome of the investigation? revisions, has Rajni provided legal
Cite the authority for your answer. If he chooses services?
not to disclose it, what might happen? b. How should Rajni respond to the pressure
2. a. If Rajni succumbs to her mother’s pressure her mother is putting on her to assist
and, while standing in the store, reads Fatima?
paralegal
in Ontario, a non-lawyer agent
who provides legal services to Background
the public and who must be
licensed to do so unless In Ontario, paralegals have been practising as independent, non-lawyer agents
the agent falls within one of the providing paid legal services to the public for several decades. In many cases, the
categories of exemptions; the legal services offered by independent paralegals were authorized by statute. For
paralegal profession is governed example, paralegals were authorized to appear before various courts and tribunals by
by the Law Society of Ontario statutes that expressly permitted a defendant or accused in a quasi-criminal or criminal
2 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS


proceeding, or a party in a civil or administrative proceeding, to be represented by
counsel or “an agent.” Prior to April 30, 2007, the Courts of Justice Act,1 the Statutory
Powers Procedure Act,2 and the Provincial Offences Act3 all contained such provisions.
Because of their affordability, a demand developed for paralegal services. In
response to this demand, independent paralegals began providing legal services in
areas of law where there was no statutory or other legal authority for them to do so.
These areas included family law, corporate law, wills and estates, and real estate. From
the outset, the legal profession opposed this practice. However, the public needed
affordable legal services, and independent paralegals met that need. Independent
paralegals were inexpensive, and therefore accessible to people who did not have a
lot of money to spend on legal services.
Many were honest and competent, and handled their clients’ cases to a professional
standard. They formed professional associations, complied voluntarily with good char-
acter requirements and professional codes, and carried errors and omissions insurance.
Errors and omissions insurance is a form of liability insurance that is intended to errors and omissions
reimburse clients for loss or damage suffered as a result of negligence or wrongdoing insurance
by a legal representative. insurance intended to
In the absence of any legislated form of professional governance, membership reimburse clients for loss or
damage suffered as a result of
in paralegal professional associations and compliance with their requirements was
negligence or wrongdoing by a
voluntary. In reality, anyone could set up an office and provide legal services to the
legal representative
public as an independent paralegal. Independent paralegals were not required to have
any formal legal training. They were not required to be of good character, comply with
a code of professional standards, or carry errors and omissions insurance. If a paralegal
firm was not insured, a client who had suffered damage as a result of a paralegal’s
incompetence or negligence could not look to an insurer for compensation. Instead,
a complainant would be forced to commence a court action against the delinquent
paralegal firm for redress. Many independent paralegals incorporated their businesses.
A successful plaintiff often found him- or herself trying to enforce a judgment against
a shell corporation—that is, a business with no assets to enforce a judgment against.
This situation raised issues of consumer protection with the Ministry of the Attorney
General and the Law Society of Ontario (formerly the Law Society of Upper Canada), Law Society of Ontario
which governs the legal profession in Ontario in the public interest. In the absence of a self-governing body that
regulatory legislation, the Law Society had been confined to prosecuting paralegals on regulates the legal and
a case-by-case basis, as complaints came to its attention, for offences contrary to the paralegal professions in Ontario
Law Society Act4 and the Solicitors Act.5 This ad hoc approach to disciplining rogue in the public interest, according
to Ontario law and the Law
paralegals was not a very effective way of protecting the public interest. As the Ontario
Society’s Rules, By-Laws, and
Court of Appeal noted in a much-quoted passage from R v Romanowicz:6
Guidelines; formerly the Law
A person who decides to sell t-shirts on the sidewalk needs a licence and is subject Society of Upper Canada, it
to government regulation. That same person can, however, without any form of changed its name in 2018
government regulation, represent a person in a complicated criminal case where to increase awareness and
that person may be sentenced to up to 18 months’ imprisonment. Unregulated relevance of the Law Society
with the public
1 RSO 1990, c C.43.

2 RSO 1990, c S.22.
3 RSO 1990, c P.33.
4 RSO 1990, c L.8 [LSA].
5 RSO 1990, c S.15.
6 1999 CanLII 1315, 45 OR (3d) 506 (CA).
CHAPTER 1 Paralegal Governance in Ontario 3


representation by agents who are not required to have any particular training or
ability in complex and difficult criminal proceedings where a person’s liberty and
livelihood are at stake invites miscarriages of justice. Nor are de facto attempts
to regulate the appearance of agents on a case-by-case basis likely to prevent
miscarriages of justice.7
Romanowicz was a criminal matter. There were similar concerns about the potential
for harm if uneducated, uninsured, and unregulated persons continued to be permit-
ted to provide legal services to the public in other areas of law.
Regulation by the Law Society of Ontario

On May 1, 2007, the Law Society Act was amended to make the Law Society of
Ontario (formerly the Law Society of Upper Canada) the regulator of the paralegal
profession in Ontario. The following is an overview of some key features of paralegal
regulation in Ontario.
How Did the Law Society Become the Regulator?

In 2001, then Ontario Attorney General David Young advised the Law Society that the
Ministry of the Attorney General was interested in developing a framework for para-
legal regulation. By that time, paralegals had been providing legal services in Ontario
for roughly two decades without regulation. Two things were clear:
• there was public demand for paralegal services, and

• some form of regulation was urgently required if paralegals were to continue to
provide legal services to the public.
Although the Law Society had previously resisted invitations to regulate the
paralegal profession, in response to the attorney general’s invitation it formed a
working group of legal organizations, including advocacy groups for lawyers and
paralegals. In 2002, the Working Group on Paralegal Regulation published a con-
sultation paper, whose recommendations elicited a storm of protest from paralegals
and lawyers alike.
In the absence of consensus, the government took no further action on the issue
of paralegal regulation. Then, in January 2004, at the invitation of then Attorney
General Michael Bryant, the Law Society set up the Task Force on Paralegal Regu-
lation. In its September 2004 Report to Convocation,8 the task force made its final
recommendations for paralegal regulation. Most of the essential points outlined in the
2004 report were incorporated (some in modified form) into Schedule C of Bill 14, the
Access to Justice Act, 2005 (as it was called at the time), an omnibus bill introduced to
the legislature on October 27, 2005, by then Attorney General Bryant. The rationale
for Schedule C was that regulation of paralegals would improve access to justice by
giving consumers more choice in qualified legal services while protecting people who
seek legal services from non-lawyers. The Access to Justice Act, 20069 became law on
7 Ibid at para 88.

8 Law Society of Upper Canada, Task Force on Paralegal Regulation, Report to Convocation (23 September 2004).
9 SO 2006, c 21.


May 1, 2007, amending the Law Society Act to establish the Law Society as the regu-
lator of the legal and paralegal professions in Ontario.
Among the amendments to the Law Society Act were a new definition of the Law
Society’s function (s 4.1) and a statement of its principles (s 4.2). Pursuant to section
4.1, it is the Law Society’s function to ensure that
(a) all persons who practise law in Ontario or provide legal services in Ontario meet
standards of learning, professional competence and professional conduct that are
appropriate for the legal services they provide; and
(b) the standards of learning, professional competence and professional conduct
for the provision of a particular legal service in a particular area of law apply equally
to persons who practise law in Ontario and persons who provide legal services in
Ontario.
Section 4.2 states that, in carrying out its functions, duties, and powers under the
Law Society Act, the Law Society shall have regard to the following principles:
1. The Society has a duty to maintain and advance the cause of justice and the rule
of law.
2. The Society has a duty to act so as to facilitate access to justice for the people of
Ontario.
3. The Society has a duty to protect the public interest.
4. The Society has a duty to act in a timely, open and efficient manner.
5. Standards of learning, professional competence and professional conduct for
licensees and restrictions on who may provide particular legal services should be
proportionate to the significance of the regulatory objectives sought to be realized.
How Does Paralegal Regulation Affect the Role

of Paralegals in Ontario?
In some Canadian jurisdictions, a paralegal’s role is similar to that of a legal office
assistant or a law clerk in Ontario. In those jurisdictions, a paralegal may perform a
wide range of law-related tasks—some very complex—but may not give legal advice
to a client or provide other legal services to a client for a fee. The paralegal’s work is
always done under the supervision of a lawyer, who is accountable for that work.
The role of paralegals in Ontario was, until 2007, unique, with paralegals assum-
ing a wide range of roles depending on the nature of their work. Some worked as
independent paralegals—that is, non-lawyer agents who provided legal advice and
other legal services (including appearances before courts, statutory boards, and tribu-
nals) to the public for a fee. Others worked as supervised paralegals in roles similar or
identical to those of legal office assistants or law clerks. Supervised paralegals worked
under the supervision and direction of lawyers or other managers, who were account-
able for the quality of their work, in a range of law-related venues, including law firms,
court offices, Crown offices, municipal prosecutions, government ministries, children’s
aid societies, and legal aid clinics.
Effective May 1, 2007, both lawyers and non-lawyer agents who provided legal
services to clients for a fee were required to be licensed by the Law Society of Upper


Canada. The Law Society Act establishes the framework for governance of the legal
and paralegal professions, while the By-Laws,10 the Rules of Conduct,11 and the Guide-
lines12 implement that framework. Licensing categories, requirements, and exemptions
are governed by the Law Society Act and By-Law 4.
The licensing model established by the Law Society Act and By-Law 4 abolishes
the old distinction between independent (unsupervised) paralegal advocates and
supervised paralegals. If you are a non-licensee, you cannot assume that, because
you are working under the supervision of a lawyer, you are exempt from the licensing
process. To determine whether you are providing legal services—and therefore require
a licence—you must refer to the Law Society Act, By-Law 4, and any relevant infor-
mation in the “Paralegals” section of the Law Society website (<http://www.lso.ca>).
Providing legal services to the public without a licence is an offence contrary to section
26.1 of the Law Society Act.
In the unregulated environment, paralegals provided legal assistance in any area of
law where there was a demand for their services. Effective May 1, 2007, a P1 (para-
legal) licensee is authorized to provide legal services only in areas of law authorized by
the By-Laws for that class of licence.13 Providing legal services that are not authorized
for the holder of a P1 licence is an offence.
Licensing14
paralegal licensee A paralegal licensee is a person who is licensed to provide legal services in Ontario.
a person licensed to provide A person provides legal services if he or she engages in conduct involving the
legal services in Ontario application of legal principles and legal judgment with regard to the circumstances
provide legal services or objectives of a person.15 By-Law 4, section 5, establishes the P1 (paralegal) class of
to engage in conduct involving licence, which allows P1 licensees to provide legal services in Ontario.
the application of legal
principles and legal judgment Requirements for Issuance of a P1 Licence
to the circumstances or
The following are the requirements at By-Law 4, section 13(1) for the issuance of a
objectives of another person
Class P1 licence for an applicant who applies for the licence after June 30, 2010:
1. The applicant must have graduated from a legal services program in Ontario that
was, at the time the applicant graduated from the program, an accredited program.
2. The applicant must have successfully completed the applicable licensing
examination or examinations set by the Society by not later than two years after
the end of the licensing cycle into which the applicant was registered.16
10 Law Society of Ontario, By-Laws (1 May 2007), as amended, online: <https://lso.ca/about-lso/legislation-rules/

by-laws> [By-Laws].
11 Law Society of Ontario, Paralegal Rules of Conduct (1 October 2014; amendments current to 24 October 2019),
online: <https://lso.ca/about-lso/legislation-rules/paralegal-rules-of-conduct/complete-paralegal-rules-of-conduct>
[Rules].
12 Law Society of Ontario, Paralegal Professional Conduct Guidelines (1 October 2014; amendments current to 24 May
2018), online: <https://lso.ca/about-lso/legislation-rules/paralegal-professional-conduct-guidelines> [Guidelines].
13 LSA, s 26.1(3).
14 Law Society of Ontario, “Paralegal Licensing Process” (2019), online: <https://lso.ca/becoming-licensed/
paralegal-licensing-process>.
15 LSA, s 1(5).
16 Law Society of Ontario, By-Law 4 (1 May 2007; amendments current to 25 June 2019), online: <https://lawsocietyon-
tario.azureedge.net/media/lso/media/legacy/pdf/b/by-law-4.pdf>.


Section 13(2) sets out a list of persons who are exempt from the education require-
ment set out in By-Law 4, section 13(1)1:
Exemption from education requirement

(2) An applicant is exempt from the requirement mentioned in paragraph 1 of
subsection (1) if,
(a) for an aggregate of at least 3 years, the applicant has exercised the powers
and performed the duties of a justice of the peace in Ontario on a full-time
basis; or
(b) the applicant is mentioned in subsection (4) and,
(i) has provided legal services, that a licensee who holds a Class P1 licence
is authorized to provide, on a full-time basis for a total of three years in
the five years immediately prior to her or his application for a Class P1
licence,
(ii) has provided written confirmation from two persons, from a list of
persons and in a form provided by the Society, verifying that the applicant
meets the requirement mentioned in subclause (i), and
(iii) has successfully completed a professional conduct and advocacy
course conducted by the Society by not later than two years after the end
of the licensing cycle into which the applicant was registered;
(c) the applicant is a member in good standing of the Human Resources
Professionals Association of Ontario, the Ontario Professional Planners
Institute, the Board of Canadian Registered Safety Professionals or the
Appraisal Institute of Canada and,
(i) has been a member in good standing of the organization for a total of
three years in the five years immediately prior to her or his application for
a Class P1 licence,
(ii) has carried on the profession or occupation represented by the
organization, including engaging in activities related to the provision of
legal services that a licensee who holds a Class P1 licence is authorized
to provide, on a full-time basis for a total of three years in the five years
immediately prior to her or his application for a Class P1 licence, and
(d) the applicant is registered and in good standing as a collector under the
Collection Agencies Act and,
(i) has been registered and in good standing as a collector under the
Collection Agencies Act for a total of three years in the five years
immediately prior to her or his application for a Class P1 licence,
(ii) has acted as a collector, including engaging in activities related to the
provision of legal services that a licensee who holds a Class P1 licence
is authorized to provide, on a full-time basis for a total of three years in
the five years immediately prior to her or his application for a Class P1
licence, and
(e) the applicant was previously licensed to provide legal services in Ontario
and applied for that licence prior to July 1, 2010;


(f) for an aggregate of at least 5 years, the applicant has, on a full-time basis,
exercised the powers and performed the duties of a member of one or more
[of the boards and tribunals listed in s 13(2)(f)]; … or
(g) for an aggregate of at least 5 years, the applicant has, on a full-time basis,
exercised the powers and performed the duties of an Appeals Resolution
Officer at the Workplace Safety and Insurance Board.
Interpretation: “full-time basis”

(2.1) For the purposes of subsection (2), except clauses (2) (f) and (g), engaging in
an activity or acting in a particular capacity on a full-time basis means engaging in
an activity or acting in a particular capacity, on the average, 30 hours per week.
BOX
1.1
WHAT IS AN ACCREDITED LEGAL SERVICES
PROGRAM?
accredited legal An accredited legal services program is defined at By-Law 4, section 7, as a legal
services program services (paralegal) program in Ontario that is approved by the Minister of Training,
a paralegal program in Ontario Colleges and Universities and accredited by the Law Society of Ontario. The curricu-
that is approved by the Ministry lum of accredited programs must, at a minimum, offer 830 program hours, allocated
of Training, Colleges and as follows: 590 instructional hours in compulsory legal courses covering material
Universities and accredited by within the permitted scope of paralegal practice; 120 instructional hours in other
the Law Society of Ontario courses, such as General Education courses; and 120 hours of field placement. The
permitted scope of program content must cover and evaluate all of the competencies established by the
paralegal practice Law Society for an accredited legal services program.
areas of law in which licensed All applicants who apply for a Class P1 (paralegal) licence after June 20, 2010,
paralegals may provide legal must be graduates of an accredited legal services program. As of this writing, a
services, as prescribed by list of accredited legal services programs can be found on the Law Society website
the Law Society Act and the in the “Paralegals” section at <https://lso.ca/becoming-licensed/paralegal-licensing
By-Laws -process/paralegal-education-program-accreditation/accredited-programs>.
By-Law 4, section 8(1), outlines the basic procedures and requirements for the
issuance of a P1 licence under the Law Society Act:
8(1) The following are the requirements for the issuance of any licence under
the Act:
1. The applicant must submit to the Society a completed application, for the
class of licence for which application is made, in a form provided by the
Society.
2. The applicant must pay the applicable fees, including the applicable
application fee.
3. The applicant must be of good character.
4. The applicant must take the applicable oath.
5. The applicant must provide to the Society all documents and information, as
may be required by the Society, relating to any licensing requirement.
The Paralegal Licensing Process Policies (“the Licensing Policies”) at the Law Society
website provide supplementary rules and procedures for licensing applications. As of


this writing, they can be found at <https://lso.ca/becoming-licensed/paralegal-licens-
ing-process/licensing-process-policies>. The licensing process policies should be read
in conjunction with By-Law 4. The following is a brief discussion of some key points.
False or Misleading Representations

A misrepresentation is a statement or conduct by a person that is misleading or misrepresentation
false, and that is intended to deceive another person. A deliberate failure to disclose a statement or conduct by
accurate information is also misrepresentation. a person that is misleading
It is essential that applicants be truthful and forthright, and comply with the Licens- or false, and that is intended
ing Policies, when completing the various steps in the licensing process. A person who to deceive another person;
includes a deliberate failure to
makes a false or misleading representation or declaration by commission or omission
disclose correct information
in connection with
(1) the application for a paralegal licence;

(2) an examination application; and/or
(3) the registration into the paralegal licensing process
is deemed not to meet the requirements for that step in the process, and that step plus
any previously completed steps will be deemed to be void.17
Good Character Requirement

Under section 27(2) of the Law Society Act, an applicant for a licence shall be of good
character.
The Licensing Policies authorize the Law Society to require applicants to provide
information and/or supporting documentation regarding good character. As an appli-
cant, you must disclose any of the following if they apply to you. The requirement in
Part VI of the Licensing Policies states:
Good Character Requirement

6.1. An applicant for a Class P1 Licence shall be of good character.
6.2. In order to determine whether a Candidate is of good character, the Society
may require the person to provide information and/or supporting documentation
regarding good character. This information and supporting documentation may
include but is not limited to information and documentation with respect to
whether the person:
a. has been found guilty of, or convicted of, any offence under any statute;
b. is the subject of criminal proceedings;
c. has had judgment rendered against him or her in an action involving fraud;
d. has any outstanding civil judgments against him or her;
e. has ever disobeyed any Order of any court requiring the person to do any
act or to abstain from doing any act;
f. has been discharged from any employment where the employer has alleged
that there was cause;
g. has been suspended, disqualified, censured or otherwise disciplined as a
member of any professional organization;
17 Ibid, s 8(2); “Licensing Process Policies,” online: <https://lso.ca/becoming-licensed/paralegal-licensing-process/

licensing-process-policies> [Licensing Policies], Part V.


h. has been denied a licence or permit or had any licence or permit revoked
for failure to meet good character requirements;
i. has been refused admission as an applicant or member of any professional
body;
j. has had allegations of misconduct made against him or her while attending
a post-secondary institution or has been suspended, expelled or penalized by a
post-secondary institution for misconduct while attending that institution;
k. is subject to a petition or assignment in bankruptcy or a proposal to
creditors under the Bankruptcy and Insolvency Act (Canada) or has been
bankrupt or insolvent under any statute;
l. has been disciplined by an employer or been a respondent in proceedings in
relation to a violation of any human rights legislation; and
m. has been sanctioned or had a penalty imposed upon him or her by a court,
an administrative tribunal or a regulatory body.
If one or more of the above applies to you, you shall make the appropriate dis-
closure on the Paralegal Application Form in the good character section. The Law
Society will then conduct an investigation. If the investigation reveals that there are
grounds for concern with regard to your character, the matter will be referred to the
Law Society Tribunal for consideration. Section 27(4) of the Law Society Act states
that a person may not be refused a licence without a hearing before the Hearing
Division.
If an application for a licence is refused, another application may be made at any
fresh evidence time, based on fresh evidence or a material change in circumstances.18 Fresh
evidence of something that evidence is evidence of something that has happened since the first hearing, or has
has happened since the first come to the applicant’s knowledge since the hearing and could not by reasonable
hearing, or that has come to means have come to his or her knowledge before that time. A material change in
the knowledge of the applicant circumstances is a change in the applicant’s circumstances since the first hearing that
since the hearing and could
may justify a variation of the original order.
not by reasonable means
have come to the applicant’s
knowledge before that time Provision of Legal Services
material change in A person who provides legal services in Ontario must be licensed in accordance
circumstances with the Law Society Act and the By-Laws.19 A person provides legal services if she
a change in the applicant’s or he engages in conduct involving the application of legal principles and legal
circumstances that has occurred
judgment to the circumstances or objectives of another person.20 Section 1(6) of
since the previous hearing and
the Act further defines what constitutes the provision of legal services. The excerpt
that may justify a variation of
below has been edited to reflect activities that fall within the permitted scope of
the original order
paralegal practice:
1. Advising a person about the legal interests, rights, or responsibilities of the

person or another person;
2. Selecting, drafting, completing, or revising, on behalf of a person,
i. a document that affects a person’s interests in or rights to or in …
personal property,
• • •
18 LSA, s 27(6).
19 By-Laws, supra note 10.
20 LSA, s 1(5).


BOX
1.2
WHAT SHOULD BE DISCLOSED IN THE GOOD
CHARACTER SECTION OF THE PARALEGAL
APPLICATION FORM?
Fact Situation
During Samuel Brown’s first semester in an accredited paralegal program, he was
discovered using unauthorized materials on a final exam. After an investigation,
Samuel’s professor was satisfied that a breach of academic integrity had taken place.
It was Samuel’s first offence. Samuel received a zero on the exam, and a breach of
academic integrity letter was put on his file. In accordance with the policies and
procedures of the educational institution he attended, nothing appeared on his tran-
script. He passed the course with a D.
Samuel is now in his third semester of the program. He has committed no further
breaches of academic integrity. He is applying to the Law Society to write the Parale-
gal Licensing Exam. He has read the Licensing Policies and understands their contents.
When completing the good character section of the application, Samuel does not
disclose the breach of academic integrity. He figures that there is no way the Law
Society will ever find out that he cheated on an exam in first year, because there is
nothing on his transcript to indicate that he did so.

1. Has Samuel made a false or misleading representation to the Law Society?
2. If Samuel has made a false or misleading representation, what are the
consequences if it is discovered?
adjudicative body
3. What would the consequences be if Samuel had disclosed the breach of a body—such as a federal
academic integrity? or provincial court, an
4. Why does disclosure matter here, since it is highly unlikely that the Law administrative tribunal,
Society will ever learn of Samuel’s omission? a statutory board, or an
arbitrator—that hears evidence
or legal arguments and
makes a decision affecting
the legal interests, rights, or
vi. a document that affects the legal interests, rights, or responsibilities responsibilities of a person
of a person in areas of law authorized for paralegals, or (Law Society Act, s 1)
vii. a document for use in a proceeding before an adjudicative body; representing a person in a
3. Representing a person in a proceeding before an adjudicative body; or proceeding
4. Negotiating the legal interests, rights, or responsibilities of a person. representation includes making
decisions about service and
An adjudicative body is defined in section 1(1) of the Law Society Act as a body filing of documents relating to
that hears evidence or legal argument and makes a decision affecting the legal inter- a proceeding; deciding what
ests, rights, or responsibilities of a person, including (a) a federal or provincial court, persons to serve a document
(b) an administrative tribunal, (c) a statutory board, or (d) an arbitrator. on or with whom to file a
Conduct that is deemed to be representing a person in a proceeding includes: document; deciding when,
where, or how to serve or file a
1. Determining what documents to serve or file in relation to the proceeding, document; and/or engaging in
determining on or with whom to serve or file a document, or determining when, any other conduct necessary to
where or how to serve or file a document. the conduct of the proceeding


2. Conducting an examination for discovery.
3. Engaging in any other conduct necessary to the conduct of the proceeding.21
An examination for discovery is a disclosure process available in civil proceedings in

the Superior Court of Justice.
BOX
1.3
WHAT IS A “PERSON”?
person Ordinarily, the word “person” means a human being. For legal purposes, a person
any entity that is recognized is any entity that is recognized by law as the subject of legal rights and obligations,
by law as the subject of legal including the right to enter into contracts and the right to sue and be sued. For
rights and obligations, including example, a corporation is a legal person.
the right to sue and be sued
By-Law 4, section 6(2) sets out permitted practice for paralegals. At present, P1
licensees may do any of the following:
1. Give a party advice on his, her or its legal interests, rights or responsibilities
with respect to a proceeding or the subject matter of a proceeding.
2. Represent a party before,
i. in the case of a proceeding in the Small Claims Court, before the
Small Claims Court,
ii. in the case of a proceeding under the Provincial Offences Act, before
the Ontario Court of Justice,
iii. in the case of a proceeding under the Criminal Code, before a
summary conviction court,
iv. in the case of a proceeding before a tribunal established under an Act
of the Legislature of Ontario or under an Act of Parliament, before the
tribunal, and
v. in the case of a proceeding before a person dealing with a claim or a
matter related to a claim, before the person.
3. Anything mentioned in subsection 1(7) of the Act, provided the activity is
required by the rules of procedure governing a proceeding.
4. Select, draft, complete or revise, or assist in the selection, drafting,
completion or revision of, a document for use in a proceeding.
5. Negotiate a party’s legal interests, rights or responsibilities with respect to a
proceeding or the subject matter of a proceeding.
completion or revision of, a document that affects a party’s legal interests,
rights or responsibilities with respect to a proceeding or the subject matter
of a proceeding.
For purposes of section 6(2)2(v), “claim” means a claim for statutory accident bene-
fits within the meaning of the Insurance Act,22 excluding a claim of an individual who
has or appears to have a catastrophic impairment within the meaning of the Statutory
Accident Benefits Schedule.
21 Ibid, s 1(7).
22 RSO 1990, c I.8.


BOX
1.4
THE EFFECT ON PARALEGAL PRACTICE IN
ONTARIO OF BILL C-75, AN ACT TO AMEND
THE CRIMINAL CODE, THE YOUTH CRIMINAL
JUSTICE ACT AND OTHER ACTS AND TO MAKE
CONSEQUENTIAL AMENDMENTS TO OTHER ACTS
Bill C-75 was an exhaustive and impressive revision of the Criminal Code23 and related
statutes by then Minister of Justice Jody Wilson-Raybould, which became law on Sep-
tember 19, 2019, at which time the default maximum penalty for summary conviction
offences increased from six months’ imprisonment to two years less a day. This would
have barred paralegals, lawyer licensing students, and law students from appearing in
such matters, pursuant to section 802.1 of the Criminal Code, which states:
Limitation on the use of agents

802.1 Despite subsections 800(2) and 802(2), a defendant may not
appear or examine or cross-examine witnesses by agent if he or she is liable,
on summary conviction, to imprisonment for a term of more than six months,
unless
(a) the defendant is an organization;
(b) the defendant is appearing to request an adjournment of the proceedings, or
(c) the agent is authorized to do so under a program approved—or criteria
established—by the lieutenant governor in council of the province.
In response, the Attorney General for Ontario proposed that the Lieutenant Gov-
ernor approve a program for the regulation of persons authorized to practise law
and provide legal services as determined by the Law Society, in accordance with sec-
tion 802.1(c) of the amended Code. The Order In Council was approved and ordered
on August 15, 2019, and came into force on September 19, 2019.
Consequent to this, By-Law 4, which sets out paralegal scope of practice, was
amended.
Effective September 19, 2019, the scope of criminal practice for paralegals
includes dangerous operation of a conveyance (s 320.13(1)), failure to stop after
accident (s 320.16(1)), flight from a peace officer (s 320.17), and operation while
prohibited (s 320.18(1)).
The Law Society will continue to review and develop the scope of activities for
paralegals in criminal law matters. Any risks associated with the increased maximum
penalties will be addressed by way of measures to maintain and improve compe-
tence, including targeted Continuing Professional Development (CPD) programs. For
more information about CPD, see the section further below in this chapter called
“Continuing Professional Development.”
Sources: Law Society of Ontario Gazette, “Convocation preserves criminal law scope for regulated
agents in response to Bill C-75” (11 September 2019), online: <www.lawsocietygazette.ca/
news/bill-c-75>; Law Society of Ontario, Paralegal Standing Committee: Bill C-75 Response
(11 September 2019), online: <https://lawsocietyontario.azureedge.net/media/lso/media/about/
convocation/2019/convocation-september-2019-paralegal-standing-committee-report.pdf>.
23 RSC 1985, c C-46, as amended.


Immigration Law
On June 30, 2011, Bill C-35, An Act to Amend the Immigration and Refugee Protec-
tion Act, came into force. Section 91 of the Immigration and Refugee Protection Act24
was amended to state the following:
Representation or Advice
Representation or advice for consideration
91(1) Subject to this section, no person shall knowingly, directly or indirectly,
represent or advise a person for consideration—or offer to do so—in connection
with the submission of an expression of interest under subsection 10.1(3) or a
proceeding or application under this Act.
Persons who may represent or advise
(2) A person does not contravene subsection (1) if they are
(a) a lawyer who is a member in good standing of a law society of a province
or a notary who is a member in good standing of the Chambre des notaires du
Québec;
(b) any other member in good standing of a law society of a province or the
Chambre des notaires du Québec, including a paralegal; or
(c) a member in good standing of a body designated under subsection (5).
Paralegals who are licensed by the Law Society fall within subparagraph 2(b) as
“other member[s] in good standing of a law society of a province,” and are therefore
exempt from the general prohibition in section 91(1) against knowingly, directly or
indirectly, representing or advising a person for consideration or offering to do so in
connection with an application under the Act.
The Law Society’s position is that paralegal licensees may represent clients before
the Immigration and Refugee Board and may provide legal services to clients in mat-
ters related to Immigration and Refugee Board hearings. Giving advice, preparing
documents, or providing other legal services in areas not related to Immigration
and Refugee Board matters is outside the permitted scope of practice for paralegals
licensed by the Law Society. A paralegal licensee who wishes to provide a full range
of immigration services must be registered with the Immigration Consultants of
Canada Regulatory Council and accredited as a Regulated Canadian Immigration
Consultant.
The Family Law Legal Services Review

On February 9, 2016, Justice Annemarie Bonkalo was appointed by then Attorney
General Madeleine Meilleur and then Treasurer of the Law Society Janet Minor to
conduct a review of the provision of family law services in Ontario. Justice Bonkalo’s
report was submitted to the Ministry of the Attorney General and the Law Society on
December 31, 2016. It was released to the public on March 9, 2017.25
24 SC 2001, c 27.
25 Annemarie E Bonkalo, Family Legal Services Review (December 2016), online: <https://www.attorneygeneral.jus.gov.
on.ca/english/about/pubs/family_legal_services_review> [Bonkalo Report]. See also Ministry of the Attorney General
(Ontario), Improving Access to Justice for Families: Making the Family Court System Easier to Navigate (6 March
2017), online: <https://news.ontario.ca/mag/en/2017/03/improving-access-to-justice-for-families.html>.


During her exhaustive review of the state of family law services in Ontario, Justice
Bonkalo considered the feasibility of expanding the provision of legal services in
family matters to non-lawyers, specifically law students, paralegals, and law clerks.
She noted that the great advantage to allowing properly trained paralegals to pro-
vide legal services in family matters is that paralegals are already regulated by the
Law Society.
She concluded the report with the following recommendations:
Recommendation 4:
The [Law Society of Ontario] should create a specialized licence for paralegals to
provide specified legal services in family law.
• • •
Recommendation 5:
Paralegals licensed in family law should be permitted to provide legal services in the
following areas:
• custody;
• access;
• simple child support cases;
• restraining orders;
• enforcement; and
• simple and joint divorces without property.
[Paralegals] should not be permitted to provide services in cases involving:
• the Convention on the Civil Aspects of International Child Abduction (i.e. the
Hague Convention);
• child protection (which is outside the scope of this review);
• property;
• spousal support;
• complex child support in which discretionary determinations are necessary to
arrive at an income amount (e.g. self-employment, undue hardship); and
• relocation.
• • •
Recommendation 6:
Within the areas of practice set out in Recommendation 5, above, paralegals
licensed in family law should be permitted to do the following:
1. Conduct client interviews to understand the client’s objectives and to obtain
facts relevant to achieving that objective;
2. Perform the following forms-related tasks:
i. Complete court-approved forms on the client’s behalf;
ii. Advise the client on which form to use;
iii. Advise the client on how to complete the form;
iv. Sign, file and complete service of the form on the client’s behalf;
v. Obtain, explain and file any necessary supporting documents on the client’s
behalf;
completion or revision of, a document for use in a proceeding;
2. Determine what documents to serve or file in relation to the
proceeding, determine on whom to serve or file a document, or determine
when, where or how to serve or file a document;


3. Advise the client about the anticipated course of proceedings by which
the court will resolve the matter;
4. Communicate with another party or the party’s representative;
5. Represent a client in mediated negotiations;
6. Prepare a written settlement agreement in conformity with the
mediated agreement;
7. Represent a client in court, other than at trials; and
8. Advise a client about how a court order affects the client’s rights and
obligations.
For greater clarity, I am not proposing that paralegals be permitted to draft
domestic contracts, except where they are the result of mediated negotiations and
are drafted in conformity with a mediated agreement.
• • •
Recommendation 7:
Paralegals wishing to specialize in family law should first be required to complete
the current requirements for a paralegal licence.
• • •
Recommendation 8:
At [a] minimum, the following topics should be included in any education and
training of paralegals in family law: gender-based violence, family dynamics,
client counselling, forms completion, ethics and professionalism, substantive and
procedural family law and indicators that a client requires referral to a lawyer.
• • •
Recommendation 9:
A practical, experiential component in family law should be built into the licensing
process for paralegals specializing in that area.26
Among other things, the report also recommended that there should be an evaluation
system in place for paralegals who specialize in family law, and that the evaluation system
should be designed to measure client and paralegal satisfaction, as well as obtain views
from the wider family justice community on the impact of paralegal practice in family law,
for the purposes of a five-year review of the success or otherwise of the initiative.
At the conclusion of her recommendations for paralegals as non-lawyer family legal
service providers, Justice Bonkalo commented:
I have focused on paralegals because they are already regulated by the Law Society.
As a result, they seem to be a natural starting point with respect to the provision
of family legal services by persons other than lawyers. There is already a regulatory
scheme in place upon which to build.
• • •
I would, however, further recommend that, at the five-year review, the Law Society
consider whether it would be appropriate to allow others, such as mediators, law
clerks and community legal workers, to undertake various forms of training to
independently provide legal services in family matters.27
26 Supra note 25, Bonkalo Report at Part 4.2.b, Recommendations 4-9.

27 Ibid at Recommendation 16.


In 2017, the Law Society and the Ministry of the Attorney General sought pub-
lic feedback on the Bonkalo recommendations. Having reviewed the submissions
received, the Access to Justice Committee recommended that the Law Society and the
Ministry of the Attorney General commit to a joint action plan to develop a licence
for licensed paralegals and others with appropriate training to offer some family law
client
services.28 With a view toward creating a structured licence development process, the
a person who consults a
Law Society has continued to consult with the family law bar and other stakeholders
paralegal and on whose behalf
to determine the scope of the special licence, critical competencies, and training the paralegal provides or
requirements.29 agrees to provide legal services,
or who, having consulted the
paralegal, reasonably concludes
Disclosure to Client that the paralegal has agreed
A client is a person who: to provide legal services on
that person’s behalf; includes
(a) consults a paralegal and on whose behalf the paralegal provides or agrees to a client of the firm of which
provide legal services; or the paralegal is a partner or
associate, whether or not the
(b) having consulted the paralegal, reasonably concludes that the paralegal has paralegal handles the client’s
agreed to provide legal services on his or her behalf work
and includes a client of the firm of which the paralegal is a partner or associate, retainer agreement
whether or not the paralegal handles the client’s work.30 a written agreement between
the client and the paralegal
At the initial consultation, you should identify yourself as a paralegal licensee to
that confirms that the paralegal
the client and determine whether the client’s matter falls within an area of permitted
has been hired to provide
practice for P1 licensees. If you are retained by a client, this discussion should be legal services to the client, and
confirmed in writing in the retainer agreement or engagement letter. A retainer confirms the terms upon which
agreement is a contract between the client and the paralegal confirming that the the paralegal has been hired
paralegal has been hired (retained) to provide legal services to the client, and outlining
engagement letter
the terms upon which the paralegal has been hired. It is signed back to the paralegal
a letter to the client from
by the client. An engagement letter (also called a retainer letter) is a letter to the client the paralegal that confirms the
from the paralegal confirming the retainer and the terms of the retainer. It is not retainer and the terms of the
signed back to the paralegal by the client. retainer
If a client’s matter falls outside the permitted scope of paralegal practice, you shall
non-engagement letter
decline the retainer. You should confirm in writing that you have declined the retainer
a letter written by a paralegal
and set out your reasons for doing so in a non-engagement letter directed to the to a client confirming that, in a
client. A non-engagement letter is written confirmation that a paralegal has declined particular matter, the paralegal
to represent a client in a particular client matter, or that the client has declined to hire has declined to provide legal
the paralegal. If you decline the retainer because the client matter falls outside the services to the client, or the
permitted scope of paralegal practice, the non-engagement letter may suggest that client has declined to retain the
the client seek the assistance of a lawyer. paralegal
28 Law Society of Ontario, December 2017 Convocation, Family Legal Services Review Action Plan (December 2017),
online: <http://www.lawsocietygazette.ca/news/family-legal-services/>.
29 Law Society of Ontario, Family Law Working Group Update: Report to Convocation, Tab 12.2 (28 February 2019),
online: <https://lawsocietyontario.azureedge.net/media/lso/media/about/convocation/2019/convocation-feb-2019-
access-to-justice-committee-report-flap.pdf>.
30 Rule 1.02.


Offences
If you do not have a P1 licence in Ontario, section 26.1 of the Law Society Act prohibits
you from:
1. providing legal services in Ontario,31 and/or

2. holding yourself out or representing yourself to other persons as someone
who may provide legal services in Ontario.32
If you possess a P1 licence in Ontario, section 26.1 prohibits you from:
1. providing legal services that are not prescribed for your class of licence by the
Law Society Act or the By-Laws,33 and/or
2. holding yourself out or representing yourself to others as a person who may
provide legal services without specifying the restrictions on the areas of law
in which you are authorized to provide legal services and the legal services
that you are authorized by law to provide.34
Failure to comply with section 26.1 is an offence that is punishable upon conviction
with a fine of not more than $25,000 for a first offence, and not more than $50,000
for each subsequent offence under section 26.2(1).
If a person is convicted of an offence contrary to section 26.1, the court may make it
a condition of a probation order that the person pay compensation or make restitution
to any person who suffered a loss as a result of the offence.35 The court that convicts
a person of an offence contrary to section 26.1 may also prescribe as a condition of a
probation order that the person shall not contravene section 26.1.36
Exemptions from Licensing

Persons Deemed Not to Be Practising Law or Providing Legal
Services
Section 1(8) of the Law Society Act states that certain categories of persons are
deemed not to be practising law or providing legal services, and accordingly are not
required to be licensed. These include:
1. A person who is acting in the normal course of carrying on a profession

or occupation governed by another Act of the Legislature, or an Act of
Parliament, that regulates specifically the activities of persons engaged in that
profession or occupation.
2. An employee or officer of a corporation who selects, drafts, completes,
or revises a document for the use of the corporation or to which the
corporation is a party.
31 LSA, s 26.1(1).
32 Ibid, s 26.1(2).
33 Ibid, s 26.1(3).
34 Ibid, s 26.1(4).
35 Ibid, s 26.2(3).
36 Ibid, s 26.2(4).


3. An individual who is acting on his or her own behalf, whether in relation to a
document, a proceeding, or otherwise.
4. An employee or a volunteer representative of a trade union who is acting
on behalf of the union or a member of the union in connection with a
grievance, a labour negotiation, an arbitration proceeding, or a proceeding
before an administrative tribunal.
5. A person or a member of a class of persons prescribed by the By-Laws, in the
circumstances prescribed by the By-Laws.
Section 28 of By-Law 4 also prescribes persons or members of a class of persons

who are deemed not to be practising law or providing legal services and accordingly
are not required to be licensed:
Not practising law or providing legal services

28. For the purposes of this Act, the following persons shall be deemed not to be
practising law or providing legal services:
Aboriginal Courtwork Program
1. A person who delivers courtworker services to Aboriginal people through
an Aboriginal delivery agency that has contracted with the Government of
Ontario or the Government of Canada to deliver courtworker services as
part of the Aboriginal Courtwork Program.
Other profession or occupation
2. A person whose profession or occupation is not the provision of legal
services or the practice of law, who acts in the normal course of carrying
on that profession or occupation, excluding representing a person in a
proceeding before an adjudicative body.
Committee of adjustment
3. A person whose profession or occupation is not the provision of legal
services or the practice of law, who, on behalf of another person,
participates in hearings before a committee of adjustment constituted under
section 44 of the Planning Act.
Persons Providing Legal Services Who Are Exempt

from Licensing
By-Law 4, sections 29-32 (excerpted below), set out additional classes of persons who
may provide legal services without a licence.
Interpretation
29. In section 30,
“Canadian law student” means an individual who is enrolled in a degree program
at a law school in Canada that is accredited by the Society;
“licensee firm” means a partnership or other association of licensees, a partnership
or association mentioned in Part III of By-Law 7 [Business Entities] or a professional
corporation.
“Ontario paralegal student” means an individual who is enrolled in a legal services
program in Ontario approved by the Minister of Training, Colleges and Universities
that is accredited by the Society.


Providing Class P1 legal services without a licence
30. The following may, without a licence, provide legal services in Ontario that a
licensee who holds a Class P1 licence is authorized to provide:
In-house legal services provider
1. An individual, other than a Canadian law student or an Ontario paralegal
student, who,
i. is employed by a single employer that is not a licensee or a licensee firm,
ii. provides the legal services only for and on behalf of the employer, and
iii. does not provide any legal services to any person other than the employer.
Legal clinics
2. An individual, other than a Canadian law student or an Ontario paralegal
student, who,
i. is employed by a clinic, within the meaning of the Legal Aid Services Act,
1998, that is funded by Legal Aid Ontario,
ii. provides the legal services through the clinic to the community that the
clinic serves and does not otherwise provide legal services, and
iii. has professional liability insurance coverage for the provision of the legal
services in Ontario that is comparable in coverage and limits to professional
liability insurance that is required of a licensee who holds a Class L1 licence.
Not-for-profit organizations
3. An individual who,
i. is employed by a not-for-profit organization that is established for the
purposes of providing the legal services and is funded by the Government of
Ontario, the Government of Canada or a municipal government in Ontario,
ii. provides the legal services through the organization to the community that
the organization serves and does not otherwise provide legal services, and
iii. has professional liability insurance coverage for the provision of the legal
services in Ontario that is comparable in coverage and limits to professional
liability insurance that is required of a licensee who holds a Class L1 licence.
Acting for friend or neighbour
4. An individual,
i. whose profession or occupation is not and does not include the provision of
legal services or the practice of law,
ii. who provides the legal services only for and on behalf of a friend or a
neighbour,
iii. who provides the legal services in respect of not more than three matters
per year, and
iv. who does not expect and does not receive any compensation, including a
fee, gain or reward, direct or indirect, for the provision of the legal services.
Acting for family
5. An individual,
ii. who provides the legal services only for and on behalf of a related person,
within the meaning of the Income Tax Act (Canada), and
iii. who does not expect and does not receive any compensation, including a
fee, gain or reward, direct or indirect, for the provision of the legal services.


Member of Provincial Parliament
6. An individual,
ii. who is a member of Provincial Parliament or his or her designated staff, and
iii. who provides the legal services for and on behalf of a constituent of the
member.
Other profession or occupation
7. An individual,
i. whose profession or occupation is not the provision of legal services or the
practice of law,
ii. who provides the legal services only occasionally,
iii. who provides the legal services as ancillary to the carrying on of her or his
profession or occupation, and
iv. who is a member of the Human Resources Professionals Association of
Ontario in the Certified Human Resources Professional category.
Interpretation
31(1) In this section,
“employer” has the meaning given it in the Workplace Safety and Insurance
Act, 1997;
“injured workers’ group” means a not-for-profit organization that is funded by
the Workplace Safety and Insurance Board to provide specified legal services to
workers;
“public servant” has the meaning given it in the Public Service of Ontario Act, 2006;
“survivor” has the meaning given it in the Workplace Safety and Insurance Act, 1997;
“worker” has the meaning given it in the Workplace Safety and Insurance
Act, 1997.
Office of the Worker Adviser
(2) An individual who is a public servant in the service of the Office of the Worker
Adviser may, without a licence, provide the following legal services through the
Office of the Worker Adviser:
1. Advise a worker, who is not a member of a trade union, or the worker’s
survivors of her or his legal interests, rights and responsibilities under the
Workplace Safety and Insurance Act, 1997.
2. Act on behalf of a worker, who is not a member of a trade union, or the
worker’s survivors in connection with matters and proceedings before the
Workplace Safety and Insurance Board or the Workplace Safety and Insurance
Appeals Tribunal or related proceedings.
Office of the Employer Adviser
(3) An individual who is a public servant in the service of the Office of the Employer
Adviser may, without a licence, provide the following legal services through the
Office of the Employer Adviser:
1. Advise an employer of her, his or its legal interests, rights and
responsibilities under the Workplace Safety and Insurance Act, 1997 or any
predecessor legislation.


2. Act on behalf of an employer in connection with matters and proceedings
before the Workplace Safety and Insurance Board or the Workplace Safety and
Insurance Appeals Tribunal or related proceedings.
Injured workers’ groups
(4) An individual who volunteers in an injured workers’ group may, without a
licence, provide the following legal services through the group:
1. Give a worker advice on her or his legal interests, rights or responsibilities
under the Workplace Safety and Insurance Act, 1997.
2. Act on behalf of a worker in connection with matters and proceedings
before the Workplace Safety and Insurance Board or the Workplace Safety and
Insurance Appeals Tribunal or related proceedings.
Interpretation
32(1) In this section,
“dependants” means each of the following persons who were wholly or partly
dependent upon the earnings of a member of a trade union at the time of the
member’s death or who, but for the member’s incapacity due to an accident, would
have been so dependent:
1. Parent, stepparent or person who stood in the role of parent to
the member.
2. Sibling or half-sibling.
3. Grandparent.
4. Grandchild;
“survivor” means a spouse, child or dependant of a deceased member of a trade
union;
“workplace” means,
(a) in the case of a former member of a trade union, a workplace of the
former member when he or she was a member of the trade union; and
(b) in the case of a survivor, a workplace of the deceased member when he or
she was a member of the trade union.
Trade unions
(2) An employee of a trade union, a volunteer representative of a trade union or an
individual designated by the Ontario Federation of Labour may, without a licence,
provide the following legal services to the union, a member of the union, a former
member of the union or a survivor:
1. Give the person advice on her, his or its legal interests, rights or
responsibilities in connection with a workplace issue or dispute.
2. Act on behalf of the person in connection with a workplace issue or dispute
or a related proceeding before an adjudicative body other than a federal or
provincial court.
3. Despite paragraph 2, act on behalf of the person in enforcing benefits
payable under a collective agreement before the Small Claims Court.
The Law Society recognizes the principle that the number of exemptions should
be reduced over time where possible. It has been recommended that the Law Society
continue to pursue elimination of exclusions to its regulation that cannot be justified
in terms of facilitating access to justice and/or protection of the public interest. In its


progress report on paralegal regulation to Convocation presented on February 27,
2014,37 the Paralegal Standing Committee noted:
The Committee has continued work on the reviewing of the licensing exemptions
in By-law 4, in keeping with Convocation’s policy that exemptions should be
reduced where possible. To facilitate this policy, the Law Society developed and
conducted a successful “Integration Process,” providing a facilitated route to
licensing for previously exempted persons. … There has been progress towards
recognition of the advantages of licensing, even in settings where this is not
mandatory.38
In a judgment dated April 22, 2014, in LSUC v OPSEU,39 the Ontario Superior Court
of Justice held that the exemptions in subsections 31(2) and 31(3) of By-Law 4 do not
apply to employees of the Office of the Worker Advisor or employees of the Office
of the Employer Advisor who provide legal services to the public pursuant to 2011
amendments to the Occupational Health and Safety Act.40 Employees of the Office of
the Worker Advisor and the Office of the Employer Advisor who provide such services
must be licensed by the Law Society.
Licensing exemptions for members of the Board of Canadian Registered Safety
Professionals and the Appraisal Institute of Canada who provide advocacy services
to members of the public were withdrawn in 2015. The Paralegal Standing Commit-
tee’s Report to Convocation dated January 29, 2015,41 recommending this measure,
noted:
Key Issues and Considerations

• • •
10. The Law Society’s policy, as established by Convocation, is that it is generally in
the public interest for persons offering advocacy services to members of the public,
including potentially vulnerable clients, to be licensed by the Law Society, insured
and required to observe the rules of conduct.
11. These two organizations are well-established professional associations, most
of whose members do not provide any advocacy services. In the Committee’s view,
it was appropriate for any of their members who wished to provide such services
to become licensed under the Integration process. After due consideration, the
Committee is of the view that there is no compelling argument for keeping the
exemption for these associations.42
37 Law Society of Ontario, Paralegal Standing Committee, Report to Convocation, Progress Report on Paralegal
Regulation (27 February 2014), online: <https://lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/c/
convfeb2014_psc.pdf>. © The Law Society of Ontario, 2014–2019. All rights reserved. Reprinted with permission of
The Law Society of Ontario.
38 Ibid at Tab 5.3.2, para 20.
39 2014 ONSC 270.
40 RSO 1990, c O.1.
41 Law Society of Ontario, Paralegal Standing Committee, Report to Convocation (29 January 2015), online: <https://
lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/c/convocation-january-2015-paralegal-standing-
committee.pdf>. © The Law Society of Ontario, 2015–2019. All rights reserved. Reprinted with permission of The
Law Society of Ontario.
42 Ibid at Tab 3.1, paras 10-11.


BOX
1.5
ARE YOU PROVIDING LEGAL SERVICES?
As a student in a paralegal program, you may sometimes find that others have cer-
tain expectations about the kinds of advice and service you are allowed to provide.
To determine whether you are providing legal services without a licence, which is
contrary to the Law Society Act, begin with the definitions of provision of legal ser-
vices at sections 1(5) and (6) of the Act.
Question: Do you advise others with respect to their legal interests, rights, or
responsibilities?
Discussion: If the answer is yes, then you are providing legal services. Non-licensees
are not permitted to provide legal services to others.
Question: Do you select, draft, complete, or revise, on behalf of a person, a docu-

ment that affects the person’s legal interests, rights, or responsibilities, or a docu-
ment to be used in a proceeding before a court or tribunal?
Discussion: If the answer is yes, then you are providing legal services. Even if you are
working under supervision in a law firm or paralegal firm, you as a non-licensee are
permitted to draft routine correspondence and documents only. All other correspon-
dence and documents shall be reviewed by a licensee.
Question: Do you represent other persons in proceedings before an adjudicative

body? That is, do you:
• determine what documents to serve or file in relation to the proceeding?
• determine on or with whom to serve or file a document?
• determine when, where, or how to serve or file a document?
• engage in any other conduct necessary to the conduct of a proceeding?
Discussion: If the answer to one or more of the above questions is yes, then you are
providing legal services without a licence. If you are working in a law firm or paralegal
firm, particular tasks and functions assigned to non-licensees by licensees are subject
to the licensee’s direct supervision and review. Non-licensees are permitted to appear
before tribunals on routine scheduling and other administrative matters only.
Question: Are you responsible for negotiating a person’s legal interests, rights, or
responsibilities?
Discussion: In a law firm or paralegal firm, non-licensees are permitted to carry
out routine negotiations only, with the client’s consent and subsequent review by a
licensee. In any other circumstances, you are providing legal services without a licence.
Exemptions
Question: Does your role fall within any of the exceptions or exemptions set out in
the Law Society Act, section 1(8), or in By-Law 4?
Discussion: If your conduct is captured by section 1(8) of the Law Society Act or
section 28 of By-Law 4, then you are deemed not to be providing legal services and
therefore do not require a Class P1 licence. If your conduct is captured by one of
the exemptions set out in By-Law 4, sections 30 to 32, then you may continue to
provide legal services without a licence so long as you meet the conditions of the
applicable exemption.


Other Features of Paralegal Governance
Continuing Professional Development
Rule 3.01(4)(j) of the Paralegal Rules of Conduct requires that a competent paralegal
pursue appropriate training and development to maintain and enhance knowledge
and skills. By-Law 6.1, which governs continuing professional development (CPD), continuing professional
requires that a paralegal licensee shall complete one hour of eligible activities for each development
calendar month in the year during which the licensee provides legal services in Ontario the maintenance and
for any amount of time. Twenty-five percent of the total required hours shall consist enhancement of a licensee’s
knowledge, skills, attitudes, and
of eligible activities, accredited by the Law Society, covering ethics, professionalism,
professionalism throughout the
or practice management topics.43 An “eligible activity” is an activity that serves to
licensee’s career
maintain or enhance a licensee’s professional knowledge, skills, attitudes, or ethics, as
determined by the Law Society.44
In other words, in the first full year of providing legal services on a full-time basis,
a paralegal licensee is required to complete a minimum of 12 CPD hours—that is, 1
CPD hour for each month of providing legal services—consisting of at least 3 hours
on topics related to professional responsibility, ethics, and/or practice management
(“Professionalism Hours,” which must make up 25 percent of the total required hours)
and at least 9 hours on topics related to substantive or procedural law or related skills
(“Substantive Hours”). New licensees who provide legal services are required to meet
the CPD requirement on a pro rata basis, to be determined starting with the month
after the month in which they become licensed.
A fee is charged to licensees who fail to meet the annual CPD reporting deadline of
December 31 and/or fail to complete the annual CPD requirement by December 31.
The CPD requirements for licensees have changed and evolved over time. For
current, detailed information about the CPD requirement, review By-Law 6.1 and the
Continuing Professional Development information available online at the Law Society
website.
Convocation
The benchers, sitting as Convocation, govern the affairs of the Law Society. Under the Convocation
Law Society Act, as amended by Bill 111, the composition of the elected benchers the governing body of the Law
sitting on Convocation is as follows: Society of Ontario
elected bencher
1. Forty lawyer licensees,45 and
a licensee who is elected to sit
2. Five paralegal licensees.46 on Convocation
In addition, there may be eight lay benchers, who are appointed by the Lieutenant lay bencher
Governor in Council.47 A lay bencher is a non-licensee who sits on Convocation. a non-licensee who sits on
Convocation
43 Law Society of Ontario, By-Law 6.1 (1 May 2007; amendments current to 1 January 2014), online: <https://
lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/b/by-law-6.1-continuing-legal-education-09-25-13.
pdf>, s 2(2).
44 Ibid, s 1.
45 LSA, s 15.
46 Ibid, s 16 (as amended). See also Law Society of Ontario, Paralegal Standing Committee, Report to Convocation
(25 April 2013), online: <https://lawsocietyontario.azureedge.net/media/lso/media/protecting-the-public/
convapr2013_paralegal.pdf>.
47 LSA, s 23.


Paralegal Standing Committee
Paralegal Standing The Paralegal Standing Committee is established by Convocation and is responsible
Committee for such matters as the By-Laws specify relating to the regulation of persons who
a committee of five paralegal provide legal services in Ontario.48
licensees who are benchers,
The composition of the Paralegal Standing Committee is as follows:
five lawyer licensees who
are benchers, and three lay (a) five paralegal licensees, who are elected benchers;
(non-licensee) benchers, which
(b) five lawyer licensees, who are elected benchers; and
is responsible for developing
policy on all issues affecting (c) three lay benchers.49
paralegal practice in Ontario
The chair of the committee shall be one of the five paralegal licensees who are
elected benchers.50
Pursuant to By-Law 3,51 section 130, the Paralegal Standing Committee is responsible for
developing, for Convocation’s approval, policy options on the following matters:
1. The classes of licence for the provision of legal services in Ontario issued under
the Act, the scope of activities authorized under each class of licence and the
terms, conditions, limitations or restrictions imposed on each class of licence.
2. The licensing of persons to provide legal services in Ontario, including the
qualifications and other requirements for licensing and the application for licensing.
3. The regulation of persons licensed to provide legal services in Ontario in respect of,
i. the handling of money and other property, and
ii. the keeping of financial records.
4. The rules of professional conduct applicable to persons licensed to provide legal
services in Ontario.
5. The requirements to be met by persons licensed to provide legal services in
Ontario with respect to indemnity for professional liability.
6. The professional competence of persons licensed to provide legal services in
Ontario, including,
i. the requirements to be met by such persons with respect to continuing legal
education, and
ii. the review of the professional business of such persons.
7. Guidelines for professional competence applicable to persons licensed to provide
legal services in Ontario.
8. The provision of legal services through professional corporations.
9. The provision of information to the Society, and the filing of certificates, reports
and other documents, relating to the Society’s functions under the Act, by persons
licensed to provide legal services in Ontario.
10. The election of five persons who are licensed to provide legal services in
Ontario as benchers.
11. The appointment of the chair of the Committee.
48 Ibid, s 25.1(2).
49 Ibid, s 25.1(3).
50 Ibid, s 25.1(7).
51 Law Society of Ontario, By-Law 3 (1 May 2007; amendments current to 19 June 2019), online: <https://
lawsocietyontario.azureedge.net/media/lso/media/about/governance/by-laws/by-law-3.pdf>.


CHAPTER SUMMARY
On May 1, 2007, the Law Society Act was amended to 4. select, draft, complete, or revise a document for use
make the Law Society of Ontario the regulator of the para- in a proceeding, or help someone else to do so;
legal profession in Ontario. 5. negotiate a party’s legal interests, rights, or
The governance model established by the Act and responsibilities with respect to a proceeding; and
the By-Laws requires that any person who provides legal 6. select, draft, complete, or revise a document that
services in Ontario be licensed to provide those services. affects a party’s legal interests, rights, or responsibilities
Providing legal services includes (1) advising a person about in a proceeding, or help someone else to do so.
the legal interests, rights, or responsibilities of the person With respect to point 2 above, note that, by operation
or another person; (2) drafting documents on behalf of of section 802.1 read in conjunction with the higher max-
a person that affect that person’s legal interests, rights, imum penalties in the revised Criminal Code, paralegals
or responsibilities; (3) drafting documents on behalf of a and others are prohibited from appearing on summary
person for use before a court, tribunal, board, or arbitrator; conviction matters until such time as criteria are established
(4) representing a person in a proceeding before a court, or a program is implemented by the lieutenant governor in
tribunal, board, or arbitrator; and (5) negotiating the legal council of Ontario that permits them to do so.
interests, rights, or responsibilities of a person. Certain classes of persons who are not licensed are
Paralegal licensees are permitted by By-Law 4 to: permitted by the Law Society Act and By-Law 4 to provide
1. give a party advice on legal interests, rights, or legal services in Ontario. It has been recommended that the
responsibilities with respect to a proceeding; Law Society continue to pursue elimination of exclusions to
2. represent a party in Small Claims Court, provincial its regulation that cannot be justified in terms of facilitating
offences court, or summary convictions court, access to justice and/or protection of the public interest.
before statutory boards and tribunals, or in Statutory If you are not a P1 licensee, you shall not provide legal
Accident Benefits Schedule claims under the services or represent yourself to other persons as someone
Insurance Act; who may provide legal services in Ontario.
3. make decisions about the service and filing of If you are a P1 licensee, you shall not provide legal
documents relating to a proceeding (including deciding services that are not prescribed by the Law Society Act or
what persons to serve a document upon or with whom the By-Laws, and, in offering legal services, you shall specify
to file a document, and deciding when, where, or how what legal services you are authorized by law to provide.
to serve or file a document); conduct an examination Failure to comply with the above requirements is an
for discovery; and/or engage in any other conduct offence. You are liable upon conviction to a fine of up to
necessary to the conduct of a proceeding, pursuant to $25,000 for a first offence and up to $50,000 for a subse-
the Law Society Act, section 1(7); quent offence.
KEY TERMS
accredited legal services errors and omissions insurance, 3 Paralegal Standing Committee, 26
program, 8 fresh evidence, 10 permitted scope of paralegal
adjudicative body, 11 Law Society of Ontario, 3 practice, 8
client, 17 lay bencher, 25 person, 12
continuing professional material change in circumstances, 10 provide legal services, 6
development, 25 misrepresentation, 9 representing a person in a
Convocation, 25 non-engagement letter, 17 proceeding, 11
elected bencher, 25 paralegal, 2 retainer agreement, 17
engagement letter, 17 paralegal licensee, 6


APPLICATION QUESTIONS
1. What are the functions of the Law Society of Ontario, wills, along with powers of attorney for property
as set out in the Law Society Act? Provide the and for personal care, were drafted several years
statutory authority for your answer. earlier by a lawyer. However, one of your brothers-
2. What principles must the Law Society have regard to in-law has recently separated from his wife, and your
when carrying out its functions, duties, and powers, father-in-law wants to confirm that, in the event of
according to the Law Society Act? Provide the a permanent separation and/or a divorce, his former
statutory authority for your answer. daughter-in-law will not be entitled to any part of the
3. Define “person who is authorized to provide legal son’s inheritance under either will. Your mother-in-law
services in Ontario.” Provide the statutory authority has given you consent to review her will with respect
for your answer. to this issue.
4. Define “provision of legal services” and give five When answering the following questions, give
examples. Provide the statutory authority for your reasons for your answers, referring to the Law Society
answers. Act and By-Law 4.
5. What is the permitted scope of practice for P1 a. If you agree to review the wills for a family
licensees? Provide the statutory or other authority for member for no fee, are you providing legal
your answer. services?
6. You are a librarian. Your mother’s best friend asks you b. If you agree to review the wills for a family
to help her draft a plaintiff’s claim in an action in the member for no fee, have you committed an
Small Claims Court for recovery of an unpaid debt of offence? If yes, what are the penalties?
$1,450.00 owed to her husband by a former friend. 8. Sasha was sued two years ago for breach of contract
She claims that she phoned some lawyers, but the in a Small Claims Court action for recovery of an
lowest fee quoted was $500.00. You have known unpaid debt. He had purchased a road bike from
her all your life, and have always called her and her Matt, who rode occasionally with Sasha’s team. Sasha
husband “aunt” and “uncle.” made a down payment of $1,000.00. The balance of
You obligingly find the Rules of the Small Claims $1,200.00 was to be paid in installments.
Court forms online and complete the Form 7A, Soon after Sasha purchased the road bike, he began
including the grounds for the claim as you understand having problems with the drivetrain. When he spoke to
them from what she has told you. You also find and Matt about it, Matt said, “It’s just a cheap bike. If you
direct your mother’s friend to the online resources at want a good product, you have to expect to pay more
the Attorney General’s website for information about than $2,000.00!” Matt refused to take the bike back
how to issue and serve the claim. You have never and refund Sasha’s down payment. When Sasha ceased
done anything like this before, and you find that the making installment payments, Matt commenced the
online searches, drafting the claim, and so on take Small Claims Court action. At the time the action was
a lot more time than you thought they would. You commenced, the amount owing was $950.00.
resolve never to do it again. You don’t charge your
Sasha changed his address around that time and
mother’s friend anything.
started riding with a new group. The claim was served
When answering the following questions, give at his old address, and was not forwarded. One of the
reasons for your answers, referring to the Law Society members of Sasha’s new group fixed the drivetrain
Act and By-Law 4 where appropriate. and made some other adjustments for $700.00
a. Are you providing legal services when you including parts, and the bike now works fine.
draft the plaintiff’s claim in the Small Claims Sasha first became aware of Matt’s judgment
Court matter? when his wages started being garnished. Sasha is
b. Have you committed an offence? If yes, what now a P1 applicant. Since the road bike was in fact
are the penalties? defective and had to be fixed at a cost of $700.00,
7. You are a P1 licensee. Your father-in-law asks you to is it necessary for Sasha to disclose this matter under
review his will and that of your mother-in-law. Both the good character requirement?


Professionalism
2
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Learning Outcomes
Interpretation of the Rules of Paralegal After reading this chapter, you will understand:
Conduct (Rule 1.02) . . . . . . . . . . . . . . . . . . . . 31
• How to read the Paralegal Rules of Conduct.
Professionalism (Rule 2; Guidelines 1-4). . . . . . 33
• How to use the Paralegal Professional Conduct
General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Guidelines.
Integrity and Civility. . . . . . . . . . . . . . . . . . . . . . . 33 • The general duty of integrity and civility.
Outside Interests and Public Office • Management of outside interests and public office.
(Rules 2.01(4), (5); Guideline 2). . . . . . . . . . 45 • The role of the paralegal as mediator.
Acting as a Mediator (Rule 2.01(6); • The obligation to fulfill undertakings.
Guideline 2) . . . . . . . . . . . . . . . . . . . . . . . . . 46 • Harassment and discrimination.
Undertakings and Trust Conditions • The role of the Discrimination and Harassment
(Rules 2.02, 6.01; Guideline 3) . . . . . . . . . . 47 Counsel.
Professional Conduct and the Ontario
Human Rights Code. . . . . . . . . . . . . . . . . . . . 51
Harassment and Discrimination
(Rule 2.03; Guideline 4). . . . . . . . . . . . . . . . 51
Chapter Summary. . . . . . . . . . . . . . . . . . . . . . . . . 59
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
29

Professionalism
Several months have passed and Rajni is now a P1 licen- get stuff done around here if this one got organized,”
see. She has recently been hired by Price and Associates, signalling toward Christina. He then goes back to his
a full-service paralegal firm in her hometown. The firm office, checks his own file trays and finds the file under
consists of Lana Price, who started the firm five years some papers on his desk. He yells out to Christina, “It’s
ago, Luis Perez, and Sebastian Merton. There are three okay, I found it where you buried it.” Sebastian calls
assistants, a receptionist, and a bookkeeper. Rajni into his office. He has been so busy, he hasn’t had
On her second day, Rajni is invited to sit in on a time to review the file. He quickly goes through it, mak-
meeting with one of Sebastian’s clients. Sebastian has ing notes, and hands it to Rajni saying, “You should
been in court all morning and is running late. Sebas- have reviewed the file before this meeting. Now we’re
tian’s assistant, Christina, has apologized to the client unprepared.”
for the long wait, which is now approaching one hour. Later that day, Rajni finds Christina in the restroom,
When Sebastian finally arrives at the office, the client crying. When she asks her if she’s all right, Christina
file is not on his desk. sobs, “I don’t know what to do. Every day he makes
He goes back out to Christina’s desk and says, comments about how slowly I move. If I make the tiniest
“Where’s the file?” Christina gives him a panicky look mistake, he suggests it’s because of my condition. It’s so
and says, “The file? I don’t think I’ve seen it.” Christina humiliating, but I can’t say anything. He’s dying to find
rises from her chair slowly. She was in a car accident a reason to get rid of me.”
three years ago that resulted in severe injuries to her
neck, lower back, and right leg. As a result, she stands
and walks slowly. She requires a special office chair to 1. Has Sebastian complied with the Paralegal
support her back, and she uses a software program that Rules of Conduct?1 When answering this
allows her to dictate documents instead of typing them. question, consider Sebastian’s conduct toward
As Christina moves toward the filing cabinet, Sebastian Christina and Rajni.
sighs heavily and storms over, cutting her off and mut- 2. Did Sebastian breach Rule 2.03 when making
tering, “My 85-year-old grandmother moves faster.” comments about Christina’s mobility?
Rajni is shocked. Christina’s face flushes and she 3. Did Sebastian breach Rule 2.01 by being late
makes her way back to her desk to continue searching. for the client appointment?
The file is not anywhere to be found. Sebastian smiles
apologetically at the client and says, “I might be able to
Introduction
The Paralegal Rules of Conduct (“the Rules”),2 which establish standards of profes-
sional conduct for paralegals in Ontario, were approved by Convocation on March 29,
2007. Since then, the Rules have been amended many times, most extensively in
2014, and more recently as part of an ongoing initiative by all law societies across
[Rules].
2 Ibid.


Canada to bring their rules of conduct into conformity with the Federation of Law
Societies of Canada Model Code of Professional Conduct.3
As a paralegal, you shall know the Rules and shall comply with the Rules. Non-
compliance may result in disciplinary action by the Law Society. More importantly,
unprofessional conduct may bring the reputation of the paralegal profession in Ontario
into disrepute.
Interpretation of the Rules of Paralegal

Conduct (Rule 1.02)
When reading and interpreting the Rules, you shall refer to the definitions set out in
Rule 1.02. The definitions tell you what certain terms mean in the context of the Rules
and of professional practice. Some terms (such as “client” or “consent”) may have
different meanings in other contexts. However, for the purposes of compliance with
the Rules, your starting point is the definition of the term set out in Rule 1.02.
If you are trying to determine whether a paralegal – client relationship exists between
a person and you, your starting point is the definition of “client” in Rule 1.02. If you
are considering whether you are in a position of conflict of interest, your starting
point is the definition of “conflict of interest” in Rule 1.02. If you are seeking a client’s
consent to a certain arrangement, you shall consult Rule 1.02 first to ensure that the
consent given is valid for purposes of the Rules.
The Rules should be read and interpreted in conjunction with the Paralegal Profes-
sional Conduct Guidelines (“the Guidelines”).4 See the Introduction to the Guidelines
at paragraph 2:
The Paralegal Professional Conduct Guidelines (“Guidelines”) have been created

to assist paralegals with the interpretation and application of the Paralegal Rules
of Conduct [“Rules”]. The Guidelines should be considered along with the Rules,
the [Law Society Act (the “Act”)], the By-Laws made under the Act and any other
relevant case law or legislation. Neither the Rules nor the Guidelines can cover
every situation; they should be interpreted and applied with common sense and
in a manner consistent with the public interest and the integrity of the profession.
It is expected that a paralegal will exercise his or her professional judgment in
interpreting the Guidelines, keeping in mind the paralegal’s obligations to the
client, the court or tribunal and the Law Society.
When interpreting the Guidelines, keep the following principles from the Introduc-
tion to the Guidelines in mind:
5. The following may be of assistance in interpreting the Guidelines:

• The terms “shall” or “must” are used in those instances where
compliance is mandated by either the By-Laws made pursuant to the Act
or the Rules.
3 Federation of Law Societies of Canada, Model Code of Professional Conduct (14 March 2017), online: <https://flsc.
ca/national-initiatives/model-code-of-professional-conduct/federation-model-code-of-professional-conduct>.
CHAPTER 2 Professionalism 31

• The term “should” and the phrase “should consider” indicate a
recommendation. These terms refer to those practices or policies that are
considered by the Law Society to be a reasonable goal for maintaining or
enhancing professional conduct.
• The term “may” and the phrase “may consider” convey discretion.
After considering suggested policies or procedures preceded by
“may” or “may consider,” a paralegal has discretion whether or not
to follow the suggestions, depending upon the paralegal’s particular
circumstances, areas of professional business or clientele, or the
circumstances of a particular client or matter.
When assessing a situation in which ethical or professional issues arise, consider

taking the following steps:
1. Identify the ethical or professional issue or issues.

2. Consider any law that may apply, including but not limited to the Law Society
Act,5 the By-Laws,6 and/or tribunal decisions such as Law Society discipline
decisions.
3. Review the applicable rule(s) and guideline(s).
4. Assess the fact situation with reference to the applicable rule(s) and
guideline(s).
5. Determine what action is necessary in order to comply with both the spirit
and the letter of the Rules. Observing the Rules in both the “spirit” and the
“letter” means conducting yourself in a manner that complies both with the
intent or purpose of the Rules and with the words on the page.
6. Consider whether the action required by the rule is mandatory (you “shall”
or “must” follow a particular course of action), recommended (you “should”
follow or “should consider” following a particular course of action), or
discretionary (you “may” follow or “may consider” following a particular
course of action).
7. Be circumspect if you are in a “grey area”—that is, a situation where there
is no clear language in the Rules, the Guidelines, or other resources directing
you toward a particular course of action.
8. If, after the above steps, you are still unsure about what action to take,
• consult with another paralegal or a lawyer to secure legal advice about
your proposed conduct,7
• check the Resources for Paralegals at the Law Society website if you have
not already done so, and/or
• contact the Practice Management Helpline for assistance.
9. Keep a written record of your analysis and any steps you took to deal with
the situation.
5 RSO 1990, c L.8.

by-laws> [By-Laws].
7 See Rule 3.03(8).


Professionalism (Rule 2; Guidelines 1-4)
General
With respect to professionalism generally, Guideline 1 comments:
1. A paralegal should inspire the respect, confidence and trust of clients and the
community.
2. Public confidence in the administration of justice and in the paralegal profession
may be eroded by a paralegal’s unprofessional conduct. A paralegal’s conduct
should reflect favourably on the legal professions, inspire the confidence, respect
and trust of clients and of the community, and avoid even the appearance of
impropriety.
3. A paralegal has special responsibilities by virtue of the privileges afforded the
paralegal profession and the important role it plays in a free and democratic
society and in the administration of justice. This includes a special responsibility
to recognize the diversity of the Ontario community, to protect the dignity of
individuals and to respect human rights laws in force in Ontario.
Integrity and Civility

Integrity (Rules 2.01(1), (2))
A paralegal has the following duties:
(1) [T]o provide legal services and discharge all responsibilities to clients, tribunals, the
public and other members of the legal professions honourably and with integrity.
(2) [T]o uphold the standards and reputation of the paralegal profession and to
assist in the advancement of its goals, organizations and institutions.8
Guideline 1 comments:
4. Acting with integrity means that a paralegal will be honest and will act with acting with integrity
high ethical and moral principles. Integrity is the fundamental quality of any being honest and acting
person who seeks to provide legal services. If integrity is lacking, the paralegal’s with high ethical and moral
usefulness to the client and reputation within the profession will be destroyed principles
regardless of how competent the paralegal may be.
Civility (Rule 2.01(3))

Rule 2.01(3) requires that a paralegal shall be courteous and civil, and shall act in good
faith with all persons with whom the paralegal has dealings in the course of her or his
practice.
5. Acting with civility means that a paralegal will communicate politely and acting with civility
respectfully and act in a manner that does not cause unnecessary difficulty or harm being polite, respectful, and
to another. considerate of others
8 Rules 2.01(1), (2).

BOX
2.1
INTEGRITY
Fact Situation
You are a paralegal licensee. One of your clients is the defendant in a Small Claims
Court proceeding. On the morning of the date set for trial you are waiting at the
courthouse for your client when she phones to tell you that something urgent has
come up and she cannot attend at court that day. You advise your client that in the
circumstances the judge may order that the trial proceed in her absence or, if the
judge grants an adjournment, she may be required to pay costs to the plaintiff, who
is also represented, for inconvenience and delay. “Oh, just tell the judge that the
baby’s got colic and I can’t get a sitter. That’ll break his heart,” your client says, and
terminates the call. You happen to know that she has no children.
Question for Discussion

Can you follow your client’s instructions?
6. The obligation to show courtesy and good faith extends to clients, opposing
parties, other paralegals and lawyers, support staff, adjudicators, court and tribunal
officers and staff and representatives of the Law Society. This obligation applies
regardless of where the paralegal may be appearing or at what stage of the process
the matter may be.
acting in good faith Acting in good faith means making legitimate and honest efforts to meet your
making legitimate and honest obligations in a given situation, without trying to mislead other persons or parties or
efforts to meet your obligations attempting to gain an unfair advantage over others, through legal technicalities or
in a given situation, without otherwise.
trying to gain an unfair Paralegals shall make their legal services available to the public in a way that com-
advantage over or mislead
mands respect and confidence, and is compatible with the integrity and independence
other persons or parties
of the paralegal profession.
through legal technicalities or
otherwise
BOX
2.2
COURTESY, CIVILITY, AND GOOD FAITH: THE LAW
SOCIETY OF UPPER CANADA V GROIA
Incivility can occur at any level of court or tribunal. This case is included because it
deals with interesting issues around courtesy, civility, and good faith, and the factors
a tribunal will consider when making a determination of incivility.
Background: The Felderhof Trial

Joseph Groia represented John Felderhof, former vice-president of Bre-X Minerals, in
a fraud prosecution commenced in 1999 in the Ontario Court of Justice by the Secu-
rities Commission of Ontario. Mr Felderhof was charged with insider trading and


misleading statements in the affairs of Bre-X Minerals Ltd contrary to the Ontario
Securities Act.9
The trial began before Justice Peter Hryn in late 2000.10 Relations between
Mr Groia and the Ontario Securities Commission prosecutors deteriorated rapidly. At
issue were the role of the prosecutor and the production of documents. In 2002,11
the prosecution made an application in the Superior Court of Justice for removal of
Hryn J (who had by that time presided over the trial for 70 days) on grounds that
he had lost jurisdiction. One of the allegations made by the prosecution in support
of the application was that Hryn J had wrongly failed to restrain uncivil conduct by
Mr Groia, thus producing an unfair trial and creating an apprehension of bias on the
part of the judge.12 In the discussion below, Mr Naster is one of the Ontario Securi-
ties Commission prosecutors.
NOTE TO STUDENTS: When reviewing the material below, keep in mind that the
only issue before Campbell J (Superior Court of Justice) and Carthy, Doherty, and
Rosenberg JJA (Ontario Court of Appeal) was whether, by reason of Hryn J’s conduct
of the Felderhof trial (including but not limited to his alleged failure to interfere with
Mr Groia’s trial tactics), he made a number of serious errors that deprived him of
jurisdiction to proceed and undermined the applicant’s right to a fair trial.
In his exhaustive 2002 review of the events giving rise to the application,
Campbell J of the Superior Court of Justice notes:
[20] Some of the trouble in this case flows from Mr. Groia’s failure to
understand the proper role of a prosecutor. Mr. Groia, in his unrestrained
attacks on Mr. Naster’s professional integrity said over and over again that it
is improper for the prosecutor to seek a conviction. That statement, standing
alone, is inaccurate.
[21] The classic words of Mr. Justice Rand, that “the purpose of a
criminal prosecution is not to obtain a conviction” must be read in the
context of the passage in which they appear. The context makes it clear that
the mischief is not to seek a conviction but to do so unfairly.
[22] It is improper for Crown counsel to seek a conviction in the sense
of seeking a conviction at all costs, or breaching the quasi-judicial duty
of fairness and evenhandedness. This principle is sometimes expressed
by saying that it is not the function of the prosecutor “simply” to seek a
conviction, because his or her quasi judicial duties involve much more than
simply seeking a conviction. In this expression of the principle everything
turns on the qualification “simply,” because it is appropriate for a Crown
prosecutor to seek a conviction so long as he or she does not seek it unfairly
or at all costs.
[23] Far from it being improper to Crown counsel to seek a conviction, it
is appropriate for a prosecutor to seek a conviction as an aspect of seeking
9 RSO 1990, c S.5.

10 R v Felderhof, 2007 ONCJ 345, [2007] OJ No 2974 (QL).
11 R v Felderhof, 2002 CanLII 41888 (Ont Sup Ct J).
12 Ibid at para 5, point 4.

justice in the public interest. As the Honourable Michel Proulx J.A. and David
Layton say in Ethics and Canadian Law:
A prosecutor can seek a conviction but must all the while strive to ensure that
the defendant has a fair trial.
• • •
In acting as an advocate, the prosecutor is not to seek to convict but rather
must see that justice is done through a fair trial upon the merits, and must act
fairly and dispassionately.
• • •
The duty of the Crown to act fairly does not preclude the use of a trial strat-
egy aimed at securing a conviction, so long as the strategy does not result in
unfairness to the accused. …
[24] Those passages make it clear that although the prosecutor may not
act unfairly, it is appropriate for the prosecutor to seek a conviction. As one
Crown counsel noted:
… counsel for the Crown are expected to be strong and persuasive public
advocates who fully and effectively represent the interests of the Attorney
General in an adversarial process … Crown counsel must be skilled and
diligent advocates, and must be permitted to vigorously pursue a legitimate
result to the best of their abilities.
[25] For the above reasons it is inaccurate to say that a prosecutor should
not seek a conviction and it is unfair to criticize a prosecutor for doing so.
Yet Mr. Groia did so, repeatedly and vehemently.13
Having analyzed the issues and the law, Campbell J dismissed the Securities Com-
mission’s application. He declined to award costs to Mr Felderhof, the successful
party.
The Securities Commission appealed the decision to the Ontario Court of Appeal.
Mr Felderhof cross-appealed Campbell J’s costs award.
When considering the grounds for the appeal in 2003, Rosenberg JA for the
Ontario Court of Appeal14 commented:
[1] … The prosecution alleges that the trial judge made a number
of serious errors that have deprived him of jurisdiction to proceed and
undermined the appellant’s right to a fair trial. Fundamental to its position
is the allegation that the trial judge has failed in his duty to curb the uncivil
conduct of the respondent’s counsel. …
• • •
[7] A singular problem with the documents is that defence counsel
seemed to misunderstand the difference between documents that were to
be part of the prosecution case and documents that the prosecutor was
required to disclose to the defence. Some statements made by one of the
prosecuting counsel prior to the trial, on December 22, 1999 in the course of
13 Supra note 11, at paras 20-25.
14 R v Felderhof, 2003 CanLII 37346 (Ont CA).


an earlier disclosure motion, may have exacerbated this misunderstanding.
At that time, prosecution counsel told the trial judge that part of his
obligation as a prosecutor was “to ensure that all relevant materials are
placed before you.” The defence developed the theme from this comment
that whenever the prosecution failed to introduce a document that the
defence thought was relevant and helpful to the defence, the prosecution
was in breach of its duty and that this breach of duty could potentially lead
to a stay of the charges for abuse of process. The defence also seemed to
think that any document in the disclosure briefs could be admitted into
evidence as a kind of abuse of process exception to the hearsay rule. This
led to the defence presenting a prosecution witness with many documents
about which he had no knowledge and which were not admissible through
his testimony. The proceedings were thereafter peppered with allegations of
prosecutorial misconduct.
• • •
[78] In his reasons, the application judge [Campbell J] has set out many
examples of Mr. Groia’s conduct in the trial. The application judge described
this conduct in some of the following ways:
— “unrestrained invective” (at para. 34).
— “excessive rhetoric” (at para. 34).
— “The tone of Mr. Groia’s submissions … descended from legal argument
to irony to sarcasm to petulant invective” (at para. 64).
— “Mr. Groia’s theatrical excess reached new heights on day 58” (at
para. 89).
— “Mr. Groia’s conduct on this occasion more resembles guerilla theatre than
advocacy in court” (at para. 91).
— “unrestrained repetition of … sarcastic attacks” (at para. 271).
— “Mr. Groia’s defence consists largely of attacks on the prosecution, includ-
ing attacks on the prosecutor’s integrity” (at para. 272).
[79] As the application judge noted, the problem was not simply with
Mr. Groia’s conduct. His rhetoric was, in many cases, tied to a view about
what constitutes improper prosecutorial conduct that was simply wrong.
As the application judge pointed out (at para. 29), there is nothing wrong
with a prosecutor seeking a conviction, yet “Mr. Groia constantly accused
the prosecution of impropriety in doing the very thing it has the right to
do.”15
The Ontario Securities Commission’s appeal was dismissed by the Court of Appeal.
The court rejected Mr Felderhof’s cross-claim for costs at the application stage. In its
reasons, the court noted:
[100] … There were compelling reasons why a costs order against

the prosecution would not be just and reasonable in this case. This
application and appeal were brought because of the respondent’s counsel’s
inappropriate behaviour during the trial. … The application judge gave full
and careful reasons, which can be found at [R v Felderhof, 2003 CanLII
15 Ibid at paras 1, 7, 78-79.

41569 (Ont Sup Ct J), Campbell J]. I agree entirely with those reasons and in
particular the following comments, at paras. 18 and 21:
It was unnecessary on the application to pass judgment on [Mr Groia’s]

litigation style because it did not affect the jurisdiction of the trial judge. …
On this costs motion, however, the nature and impact of his conduct must be
considered to the extent that it triggered the application. Mr. Groia’s conduct
on significant occasions during the trial … was appallingly unrestrained and
on occasion unprofessional. In light of this conduct the prosecutor’s applica-
tion, although unsuccessful, was reasonable.
• • •
Even with the problems in the conduct of the prosecution it seems unlikely
this application would have been brought but for Mr. Groia’s inappropriate
conduct. The application, although novel and unsuccessful, was reasonable
in light of the nature and quality of that conduct. It was necessary to review
the record extensively before it became clear that his extreme conduct did not
deprive the court of jurisdiction. To award costs to the defence in this case
would be unfair to the prosecution and contrary to the public interest in the
administration of justice. The behaviour indulged in by Mr. Groia should be
discouraged, not encouraged by an award of costs. To award costs to the
defence would carry the wrong message by rewarding him for the conse-
quences of his unacceptable conduct.16
The Ontario Securities Commission appointed new prosecutors to the case, and
the trial proceeded without incident for another 90 days. In 2007, Mr Felderhof was
acquitted of all charges.
The Law Society Prosecution

In 2003, the Law Society of Ontario (formerly the Law Society of Upper Canada)
became aware of Mr Groia’s conduct through the media. The Law Society notified
Mr Groia that it was looking into the matter in a letter dated April 3, 2003.
In 2004, the Law Society began an investigation of Mr Groia’s conduct in the Fel-
derhof trial during the period from 1999 to 2001 (the first phase). In 2009, the Law
Society charged Mr Groia with professional misconduct. The Law Society Hearing
Panel heard evidence in 2011 and 2012, and found Mr Groia guilty of professional
misconduct on June 28, 2012. At the conclusion of reasons for the decision, the
Hearing Panel17 noted the following:
[188] One of Groia’s witnesses, Nicholas Richter, acknowledged that

allegations of prosecutorial misconduct should not be made in the absence
of any foundation in the record. …
[189] The statements of Justices Campbell and Rosenberg about Mr.
Groia’s misapprehension of the role of a prosecutor and of the rules of
evidence raise another question for the panel. Mr. Groia, according to the
witnesses, is an experienced trial lawyer who has both prosecuted Securities
Act offences and defended persons charged with such offences. Neither
16 Ibid at para 100.

17 Law Society of Upper Canada v Joseph Peter Paul Groia, 2012 ONLSHP 94.


Justice Campbell nor Justice Rosenberg decided any new or novel points
of law in their respective decisions. This leaves the panel to ask whether
Mr. Groia simply did not understand the legal duties and obligations of the
prosecutor and the rules of evidence or instead ignored them in pursuit of
a trial strategy aimed at baiting the prosecution into making mistakes or
aimed at convincing the trial judge through rhetoric rather than evidence
that the prosecution was indeed engaged in prosecutorial misconduct.
[Emphasis added.]
[190] Mr. Groia did not leave the panel with the impression that he was
incompetent. On the contrary, his experience and competence were quite
evident during his testimony. Although he is not a lawyer who believes in the
old adage “be seen, be brief and be gone,” we have concluded that he was
more than competent to carry out Mr. Felderhof’s defence as Mr. Felderhof’s
lead counsel. In other words, he either knew or ought to have known that
his persistent allegations of prosecutorial misconduct were wrong in law
and the positions he took on documents were not well-founded in the
law of evidence or in accord with usual practices in large document cases.
We are therefore drawn to the conclusion that … Groia’s attacks on the
prosecution were unjustified and therefore constituted conduct that fell
below the standards of principles of civility, courtesy and good faith required
by the Rules of Professional Conduct. [Emphasis added.]18
The Hearing Panel imposed a licence suspension of two-and-a-half months and a

fine of $245,000.00. On appeal by Mr Groia, the Law Society Appeal Panel upheld
the finding of the Hearing Panel that the appellant had engaged in professional
misconduct, but varied the particulars and the reasons. The panel reduced the costs
from $246,960.53 to $200,000.00, and the licence suspension from two-and-a-half
months to one month.
In its 2013 reasons, the Appeal Panel19 stated the following:
[10] Having concluded that the hearing panel should have refused to
apply the abuse of process doctrine, we give no deference to the findings
of fact and assessments of credibility. Nor are we well positioned to make
our own assessments of credibility. Accordingly, in assessing Mr. Groia’s
conduct over the first 70 days of the Felderhof trial, we assumed that he
honestly believed what he was saying. Nevertheless, taken as a whole,
many of the comments he made crossed the line: they included repeated
personal attacks on the integrity of the prosecutors and repeated allegations
of deliberate prosecutorial wrongdoing that did not have a reasonable basis
and were not otherwise justified by the context. [Emphasis added.]20
Mr Groia appealed the Appeal Panel’s decision to the Divisional Court (the
appellate branch of the Superior Court of Justice). The Law Society cross-appealed
the reduction in the costs ordered. Both the appeal and the cross-appeal were
dismissed.21
18 Ibid at paras 188-190.

19 Law Society of Upper Canada v Joseph Peter Paul Groia, 2013 ONLSAP 41 at para 10.
20 Ibid at para 10.
21 Joseph Groia v The Law Society of Upper Canada, 2015 ONSC 686 (Div Ct).

Mr Groia then appealed to the Ontario Court of Appeal in Groia v The Law Soci-
ety of Upper Canada.22 The appeal was dismissed by the majority of the court.
Of interest is the dissent of Brown JA, who noted the following:
[244] This is a singular case. The Felderhof trial lasted several years, split
into two phases. Phase One lasted 70 days; Phase Two, 90 days. Neither
during nor after the trial did anyone involved in the trial complain to the Law
Society of Upper Canada about Mr. Groia’s conduct: not the prosecutors;
not the trial judge; not the clients; nor any witness. No one.
[245] The prosecution, the Ontario Securities Commission (“OSC”), did
complain about Mr. Groia’s conduct, but not to the Law Society. The OSC
complained to the courts. The prosecution first complained to the trial judge
about Mr. Groia’s conduct. The trial judge made several rulings.
[246] The rulings did not satisfy the prosecution, so it applied to the
Superior Court of Justice arguing, in part, that Mr. Groia’s conduct, and
what they saw as the trial judge’s failure to restrain it, were resulting in an
unfair trial. The prosecution wanted the trial stopped, and a new trial judge
appointed. The application judge of the Superior Court of Justice refused to
remove the trial judge.
[247] The OSC appealed to this court. The appeal was dismissed.
[248] So, the trial continued to its conclusion—an acquittal of
Mr. Felderhof.
[249] The senior courts to which the prosecutors complained were not
silent about Mr. Groia’s conduct. Quite the contrary. In no uncertain terms
they expressed their very strong displeasure. In the language of earlier times,
they administered a public shaming to Mr. Groia. They told Mr. Groia to
cut it out and smarten up. He listened, and he did. Phase Two continued
without incident.
[250] Neither the application judge nor any of the members of this court
in R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481,
complained to the Law Society. That option was open to them. That is what
the British Columbia Court of Appeal did in R. v. Dunbar, Pollard, Leiding and
Kravit, 2003 BCCA 667 (CanLII), 191 B.C.A.C. 223. But that is not what the
courts did in this case. A public shaming was administered; directions for the
remainder of the trial were given; the courts moved on.
[251] But not the Law Society. In 2003, a staff member read an
article about the Felderhof trial. A file was opened. In 2009, after the
trial had ended, the Law Society commenced professional misconduct
proceedings against Mr. Groia, acting as its own complainant. [Emphasis
added.]
[252] The Law Society Hearing Panel and Appeal Panel found that
Mr. Groia had engaged in professional misconduct for his uncivil and
unprofessional courtroom submissions and statements during the Felderhof
trial. The Divisional Court dismissed Mr. Groia’s appeal from the Appeal
Panel’s findings of misconduct, penalty and costs.
22 2016 ONCA 471.


[253] My colleague would uphold those results. I must respectfully
disagree with much of her analysis and with her result. I would grant
Mr. Groia’s appeal.23
See the excerpt below from Brown JA’s reasons for judgment in Groia v The Law
Society of Upper Canada at paragraphs 435 to 438.
[435] Taking into consideration all three elements of the test for
determining whether a barrister’s in-court conduct amounts to professional
misconduct, I conclude that the Appeal Panel erred in finding that Mr. Groia
had engaged in professional misconduct.
[436] A hard-fought, high-profile criminal trial saw inappropriate
submissions and allegations by Mr. Groia over the course of several days in
Phase One. The trial judge responded to the prosecution’s complaints about
that inappropriate conduct. He ultimately directed Mr. Groia to stop making
allegations of prosecutorial misconduct. Mr. Groia complied with the trial
judge’s rulings. This court then gave strong directions to both the trial judge
and Mr. Groia about how to deal with the disputed evidentiary and abuse
of process issues during the balance of the trial. This court found that the
fairness of Phase One of the trial had not been compromised by Mr. Groia’s
conduct and the prosecution was not prevented from having a fair trial. At
the same time, this court administered a “public shaming” to Mr. Groia. He
mended his ways during the balance of the trial. The remaining 90 days of
the trial proceeded without incident.
[437] And, no one involved in the trial or the judicial reviews complained
to the Law Society about Mr. Groia’s conduct.
[438] Great weight must be given to Mr. Groia’s compliance with the
directions of the courts and to the fact that his conduct did not affect trial
fairness. When that is done, and when the circumstances of the Felderhof
trial are looked at in their entirety, I conclude that Mr. Groia did not engage
in professional misconduct contrary to the Rules of Professional Conduct.
Consequently, I conclude that the Appeal Panel erred in determining that
he did.24
In 2018, when the majority of the Ontario Court of Appeal dismissed his action,
Mr Groia appealed to the Supreme Court of Canada,25 which allowed his appeal.
The majority accepted that the impugned conduct upon which the Law Society
based its finding of incivility by Mr Groia had been based upon genuine, if mistaken,
beliefs. Note that the following two paragraphs are excerpted from the summary of
the court’s reasons that precedes the transcript of the reasons themselves. In those
paragraphs, “G” refers to Mr Groia, the appellant.
With respect to what the lawyer said, while not a stand alone “test,” the
Appeal Panel determined that prosecutorial misconduct allegations, or other
challenges to opposing counsel’s integrity, cross the line into professional
misconduct unless they are made in good faith and have a reasonable

25 Groia v Law Society of Upper Canada, 2018 SCC 27.

basis. Requiring a reasonable basis for allegations protects against
unsupportable attacks that tarnish opposing counsel’s reputation without
chilling resolute advocacy. However, the reasonable basis requirement is
not an exacting standard. It is not professional misconduct on account of
incivility to challenge opposing counsel’s integrity based on a sincerely held
but incorrect legal position so long as the challenge has a sufficient factual
foundation, such that if the legal position were correct, the challenge would
be warranted. Nor is it professional misconduct to advance a novel legal
argument that is ultimately rejected by the court. The good faith inquiry asks
what the lawyer actually believed when making the allegations. In contrast,
the “reasonable basis” inquiry requires a law society to look beyond
what the lawyer believed, and examine the foundation underpinning the
allegations. Looking at the reasonableness of a lawyer’s legal position at
this stage would, in effect, impose a mandatory minimum standard of
legal competence in the incivility context—this would allow a law society
to find a lawyer guilty of professional misconduct on the basis of incivility
for something the lawyer, in the law society’s opinion, ought to have known
or ought to have done. This would risk unjustifiably tarnishing a lawyer’s
reputation and chilling resolute advocacy.
• • •
Although the approach that it set out was appropriate, the Appeal
Panel’s finding of professional misconduct against G on the basis of incivility
was unreasonable. First, even though the Appeal Panel accepted that G’s
allegations of prosecutorial misconduct were made in good faith, it used
his honest but erroneous legal beliefs as to the disclosure and admissibility
of documents to conclude that his allegations lacked a reasonable basis.
The Appeal Panel acknowledged that submissions made on the basis of
a sincerely held but erroneous legal belief cannot ground a finding of
professional misconduct, and accepted that in making his allegations
of impropriety against the OSC prosecutors, G was not deliberately
misrepresenting the law and was not ill-motivated. Despite this, the Appeal
Panel used G’s legal errors to conclude that he had no reasonable basis for
his repeated allegations of prosecutorial impropriety. Such a finding was not
reasonably open to the Appeal Panel.26
Moldaver J for the court begins with a brief overview:
[1] The trial process in Canada is one of the cornerstones of our

constitutional democracy. It is essential to the maintenance of a civilized
society. Trials are the primary mechanism whereby disputes are resolved in a
just, peaceful, and orderly way.
[2] To achieve their purpose, it is essential that trials be conducted in a
civilized manner. Trials marked by strife, belligerent behaviour, unwarranted
personal attacks, and other forms of disruptive and discourteous conduct
are antithetical to the peaceful and orderly resolution of disputes we strive
to achieve.
[3] By the same token, trials are not—nor are they meant to be—tea
parties. A lawyer’s duty to act with civility does not exist in a vacuum.
26 Ibid in the headnote summary of the majority’s reasons (emphasis added).


Rather, it exists in concert with a series of professional obligations that both
constrain and compel a lawyer’s behaviour. Care must be taken to ensure
that free expression, resolute advocacy and the right of an accused to make
full answer and defence are not sacrificed at the altar of civility.
[4] The proceedings against the appellant, Joseph Groia, highlight the
delicate interplay that these considerations give rise to. At issue is whether
Mr. Groia’s courtroom conduct in the case of R. v. Felderhof, 2007 ONCJ
345 (CanLII), 224 C.C.C. (3d) 97, warranted a finding of professional
misconduct by the Law Society of Upper Canada. To be precise, was the
Law Society Appeal Panel’s finding of professional misconduct against
Mr. Groia reasonable in the circumstances? For the reasons that follow, I am
respectfully of the view that it was not.
[5] The Appeal Panel developed an approach for assessing whether a
lawyer’s uncivil behaviour crosses the line into professional misconduct.
The approach, with which I take no issue, targets the type of conduct
that can compromise trial fairness and diminish public confidence in the
administration of justice. It allows for a proportionate balancing of the
Law Society’s mandate to set and enforce standards of civility in the legal
profession with a lawyer’s right to free speech. It is also sensitive to the
lawyer’s duty of resolute advocacy and the client’s constitutional right to
make full answer and defence.
[6] Moreover, the Appeal Panel’s approach is flexible enough to capture
the broad array of situations in which lawyers may slip into uncivil behaviour,
yet precise enough to guide lawyers and law societies on the scope of
permissible conduct.
[7] That said, the Appeal Panel’s finding of professional misconduct
against Mr. Groia on the basis of incivility was, in my respectful view,
unreasonable. Even though the Appeal Panel accepted that Mr. Groia’s
allegations of prosecutorial misconduct were made in good faith, it used
his honest but erroneous views as to the disclosure and admissibility of
documents to conclude that his allegations lacked a reasonable basis.
However, as I will explain, Mr. Groia’s allegations were made in good faith
and they were reasonably based. As such, the allegations themselves could
not reasonably support a finding of professional misconduct.
[8] Nor could the other contextual factors in this case reasonably
support a finding of professional misconduct against Mr. Groia on the
basis of incivility. The evolving abuse of process law at the time accounts,
at least in part, for the frequency of Mr. Groia’s allegations; the presiding
judge took a passive approach in the face of Mr. Groia’s allegations; and
when the presiding judge and reviewing courts did direct Mr. Groia, apart
from a few slips, he listened. The Appeal Panel failed to account for these
contextual factors in its analysis. In my view, the only conclusion that was
reasonably open to the Appeal Panel on the record before it was a finding
that Mr. Groia was not guilty of professional misconduct.
[9] Accordingly, I would allow Mr. Groia’s appeal.27
27 Ibid at paras 1-9 (emphasis added).

The Felderhof Trial
1. During the first 70 days of the Felderhof trial in the Supreme Court of
Ontario, there were two issues in dispute between Mr Groia and the OSC
prosecutors that were the basis for the acrimony between them. What
were those issues and what was the nature of the dispute?
2.a. At the conclusion of the first phase of the trial, the prosecution made an
application to the Superior Court of Justice. What relief was it seeking,
and what was the basis for seeking that relief?
2.b. What order did Campbell J make?
2.c. Was Campbell J sympathetic to the defence?
3. The matter was then appealed to the Ontario Court of Appeal. Did the
Court of Appeal grant the relief sought by the appellant?
4. How did Rosenberg JA deal with the allegations about Mr Groia’s
conduct?
5. How did the Court of Appeal deal with Mr Felderhof’s cross-claim for costs
at the application stage?
The Law Society Prosecution

6. When and how did Mr Groia’s conduct during the first phase of the
Felderhof trial come to the attention of the Law Society? Was there a
complaint from any of the participants in the Felderhof trial?
7. Review paragraphs 189 and 190 of the Law Society Hearing Panel’s
2012 decision in Law Society of Upper Canada v Joseph Peter Paul Groia,
extracted above. What was the Law Society Hearing Panel’s view with
respect to Mr Groia’s misapprehension of the role of the prosecutor and
the rules around documentary disclosure, as stated by Campbell J and
Rosenberg JA in the prosecution’s application to have Hryn J dismissed?
The Law Society Appeal Panel
8. Mr Groia then appealed to the Law Society Appeal Panel. Did the Appeal
Panel accept the Hearing Panel’s opinion about Mr Groia’s beliefs around
the law that governs the role of the prosecutor and the disclosure of
documents?
The Appeal to the Ontario Court of Appeal
9. Review Brown JA’s comments at paragraphs 244 to 253 in his dissent in
Groia v The Law Society of Upper Canada, above. Does Brown JA approve
of the Law Society’s intervention?
The Appeal to the Supreme Court of Canada
10. Review and discuss the excerpts from the summary of the majority’s
reasons at the Supreme Court of Canada, and Moldaver J’s overview.
How does Moldaver J attempt to balance the regulator’s role with the
obligations of defence counsel?


Outside Interests and Public Office (Rules 2.01(4),
(5); Guideline 2)
A paralegal who engages in another profession, business, occupation, or other
outside interest, or who holds public office at the same time as she or he is pro- outside interest
viding legal services, shall not allow the outside interest or public office to jeopardize any profession, business,
the paralegal’s integrity, independence, or competence.28 A paralegal shall not allow occupation, or other activity,
involvement in an outside interest or public office to impair the exercise of his or her including holding public office,
independent judgment as a paralegal on behalf of a client.29 The question of whether engaged in by a paralegal
and to what extent it is proper for the paralegal to engage in the outside interest will concurrently with the provision
of legal services
be subject to any applicable By-Law or rule of the Law Society.
1. The term “outside interest” covers the widest range of activities. It includes
activities that may overlap or be connected with provision of legal services, for
example, acting as a director of a corporation or writing on legal subjects, as well
as activities less connected such as, for example, a career in business, politics,
broadcasting or the performing arts.
2. When participating in community activities, a paralegal should be mindful
of the possible perception that the paralegal is providing legal services and a
paralegal – client relationship has been established. A paralegal should not carry on,
manage or be involved in any outside interest in such a way that makes it difficult
to distinguish in which capacity the paralegal is acting, or that would give rise to a
conflict of interest or duty to a client.
3. It is the paralegal’s responsibility to consider whether the outside interest may
impair his or her ability to act in the best interest of his or her client(s). If so, the
paralegal must withdraw, either from representation of the client or from the
outside interest.
4. When acting in another role, the paralegal must continue to fulfill his or her
obligations under the Rules, for example, to
• act with integrity,

• be civil and courteous,
• be competent in providing legal services,
• avoid conflicts of interest, and
• maintain confidentiality.
A conflict of interest arises when there exists a substantial risk that a paralegal’s conflict of interest
loyalty to or representation of a client would be materially and adversely affected by the an interest, financial or
paralegal’s own interest or the paralegal’s duties to another client, a former client, or a otherwise, that may negatively
third person. The risk must be more than a mere possibility. There must be a genuine, affect a paralegal’s ability to
serious risk to the duty of loyalty or to client representation arising from the retainer.30 fulfill her or his professional
and ethical obligations to a
A paralegal who is in a situation where involvement in an outside interest gives rise
client
to a substantial risk that the paralegal’s loyalty to or representation of a client or clients
28 Rule 2.01(4).
29 Rule 2.01(5).
30 Rule 1.02 definitions.

will be adversely affected shall decide whether to withdraw from representation of the
client or clients, or cease involvement in the outside interest.
When contemplating involvement in an outside interest, a paralegal shall also
consider whether involvement in the outside interest will adversely affect her or his
professional competence by, for example, taking up so much time that the paralegal
is unable to attend properly to a clients’ interests.
BOX
2.3
OUTSIDE INTERESTS
Fact Situation
You have been a member of the board of directors of a small, publicly funded com-
munity organization for two years. The organization consists of a general manager,
four full-time staff, and a part-time office assistant. You are the only licensee on the
board. During the course of your directorship, the general manager and you have
become friendly.
Over the past few months, the general manager has begun calling you at your
office more frequently. She is unhappy with the performance of Gloria, one of the
full-time staff. Gloria has begun to take a lot of sick days. She takes long lunches
and does not always complete the tasks assigned to her, placing an extra burden on
the other staff. She is rude to her co-workers. Her conduct has caused resentment,
disruption, and inconvenience. The general manager is at a point where she would
like to terminate Gloria’s employment. She wants your advice about how to manage
the situation.

What are your obligations in these circumstances?
Acting as a Mediator (Rule 2.01(6); Guideline 2)

mediation Mediation is a non-adversarial process in which a qualified, impartial third party
a non-adversarial process in (the mediator) helps to resolve the differences between the parties to a dispute. A
which a qualified and impartial mediator has a duty to be neutral in relation to the participants in the mediation—that
third party (the mediator) helps is, the mediator must have no preconceived opinions or biases in favour of or against
the parties to a dispute resolve one party or another.
their differences
The role of a paralegal mediator does not involve providing legal services to either
mediator party in the mediation. Rule 2.01(6) states:
a qualified and impartial third
party who helps the parties to a A paralegal who acts as a mediator shall, at the outset of the mediation, ensure
dispute resolve their differences that the parties to it understand fully that the paralegal is not acting as a
through mediation representative for either party but, as mediator, is acting to assist the parties to
resolve the issues in dispute.
A paralegal mediator shall also advise the parties that he or she cannot represent
either or both of the parties in any subsequent legal matter related to the issues
mediated.


5. A mediator works with disputing parties to help them resolve their dispute. A
paralegal acting as a mediator is not providing legal services to either party—the
relationship is not a paralegal – client relationship. This does not preclude the
mediator from giving information on the consequences if the mediation fails.
6. When acting as a mediator, the paralegal should guard against potential
conflicts of interest. For example, neither the paralegal nor the paralegal’s partners
or associates should provide legal services to the parties. Further, a paralegal-
mediator should suggest and encourage the parties to seek the advice of a
qualified paralegal or a lawyer before and during the mediation process if they have
not already done so. Refer to Guideline 9: Conflicts of Interest for more information
on how a paralegal’s outside interests may conflict with the paralegal’s duty to his
or her clients.
The commentary to section 5.7 of the Rules of Professional Conduct for lawyers31
recommends that if, in the course of a mediation, a mediator prepares a draft settle-
ment for the parties to consider, the mediator should expressly (that is, in writing)
advise and encourage the parties to seek separate independent legal representation
for purposes of reviewing the draft settlement contract.
Undertakings and Trust Conditions (Rules 2.02, 6.01;

Guideline 3)
Undertakings (Rule 2.02)
An undertaking is a promise to carry out specific tasks and/or fulfill specific condi- undertaking
tions.32 Undertakings given by licensees are “matters of the utmost good faith and an unequivocal, personal
must receive scrupulous attention.”33 promise by a paralegal to
Rule 2.02(1) states that a paralegal shall fulfill every undertaking given, and shall perform a certain act
not give an undertaking that cannot be fulfilled. Except in exceptional circumstances,
undertakings shall be made in writing at the time they are given, or confirmed in
writing as soon as possible thereafter.34 Unless the language of the undertaking clearly
states otherwise, a paralegal’s undertaking is a personal promise, and it is the para-
legal’s personal responsibility to fulfill the undertaking.35
2. An undertaking is a personal promise. A paralegal could, for example, give an

undertaking to complete a task or provide a document. Fulfilling that promise is the
responsibility of the paralegal giving the undertaking.
3. The person who accepts the paralegal’s undertaking is entitled to expect the
paralegal to carry it out personally. Using the phrase “on behalf of my client,”
even in the undertaking itself, may not release the paralegal from the obligation
31 Law Society of Ontario, Rules of Professional Conduct (February 2017; amendments current to 26 April 2018),
online: <https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct>.
32 Guideline 3.
33 Towne v Miller, 2001 CanLII 28006 at para 11, 56 OR (3d) 177 (Sup Ct J).
34 Rule 2.02(2).
35 Rule 2.02(3).

to honour the undertaking. If a paralegal does not intend to take personal
responsibility, this should be clearly outlined in the written undertaking. In those
circumstances, it may only be possible for the paralegal to personally undertake to
make “best efforts.”
4. A court or a tribunal may enforce an undertaking. The paralegal may be brought
before a court or tribunal to explain why the undertaking was not fulfilled. The
court or tribunal may order the paralegal to take steps to fulfill the undertaking
and/or pay damages caused by the failure to fulfill the undertaking.
5. To avoid misunderstandings and miscommunication, a paralegal should
remember the following points about undertakings. A paralegal
• should ensure that the wording of the undertaking is clear. If a paralegal is

the recipient of an undertaking given by another paralegal or a lawyer, the
paralegal should ensure that the wording is clear and consistent with his or her
understanding of the undertaking. The paralegal should contact the other paralegal
or lawyer to clarify the issue as soon as possible if this is not the case.
• should consider specifying a deadline for fulfilling the undertaking.
• should ensure that the undertaking provides for contingencies (e.g. if the
obligations in the undertaking rely on certain events occurring, the paralegal
should indicate what will happen if these events do not occur).
• should confirm whether or not the individual providing the undertaking is a
paralegal or a lawyer.
Undertakings, whether given or received, should always be in writing. It is extremely

unwise to give or accept an undertaking that does not state a deadline for completion.
Deadlines should be reasonable and should reflect the complexity of the tasks to be
performed and/or the nature and volume of the documents to be produced. You
should consider agreeing to a reasonable request for an extension of a deadline by
another party, if no prejudice to your client would result.
Do not give an undertaking, whether personal or “best efforts,” that you know
cannot be performed.
fulfill (or answer) an
undertaking Diarize any deadlines for completing undertakings, including undertakings to
to complete the requirements be completed by other parties. To fulfill (or answer) an undertaking means to
of the undertaking complete the requirements of the undertaking. To diarize means to note a deadline
or other important date in your tickler system, along with a series of bring-forward
diarize
to note a deadline or other dates to remind you that the deadline is approaching. A tickler system is a paper or
important date in a tickler electronic system that gives you notice in advance of upcoming deadlines (including
system, along with a series limitation periods) or tasks to be completed.
of bring-forward dates as It is good and courteous professional practice to fulfill your own undertakings as
reminders that the deadline is soon as possible after they are given. If other parties fail to fulfill their undertakings by
approaching the stated deadline, you should follow up with them immediately in writing. As noted
tickler system above, a court or tribunal may order a paralegal to perform an undertaking and/or pay
a paper or electronic system any damages caused by the breach of undertaking. A breach of undertaking is a
that gives notice of upcoming failure to fulfill an undertaking.
deadlines (including limitation
periods) or tasks to be
completed BEST EFFORTS UNDERTAKINGS
breach of undertaking Sometimes you will be asked for an undertaking that is reasonable, but is not in your
failure to fulfill an undertaking power to fulfill. An example would be a request by another party for documents that


are relevant to issues in a matter and that may be available to your client or another
person, but have not been produced to you. You cannot take personal responsibility
for production of the documents, because their production is not in your control.
Guideline 3 comments that a person who accepts a paralegal’s undertaking is
entitled to expect the paralegal to carry it out personally. Using the phrase “on behalf
of my client” in an undertaking may not release the paralegal from the obligation
to honour the undertaking. If you do not intend to take personal responsibility for
fulfilling the undertaking, the language stating this in the undertaking should be clear
and unequivocal. In such a case, where honouring the undertaking depends on the
actions of another person, you should undertake to make best efforts. Best efforts best efforts
means that you will make good-faith efforts to see that the undertaking is fulfilled, but a paralegal’s effort to do what
you will not assume personal responsibility for answering it. he or she can to ensure that
an undertaking is fulfilled,
without assuming personal
responsibility
BOX
2.4
WHAT ARE A PARALEGAL’S RESPONSIBILITIES IN
A “BEST EFFORTS” UNDERTAKING?
Giving another party a best efforts undertaking does not absolve a paralegal from
making a good-faith effort to ensure that the undertaking is fulfilled. As the court
noted in Gheslaghi v Kassis:36
A promise to use one’s best efforts … is an undertaking which a court will

enforce and, in appropriate cases, apply sanctions for non-performance
where serious efforts have not been undertaken. “Best efforts” mean
just what one would expect the words to mean. The words mean that
[a licensee] and his/her client will make a genuine and substantial search
for the requested information and/or documentation. The undertaking is
not to be taken lightly—a cursory inquiry is not good enough. … If a party
and/or [licensee] is/are not able to discover the subject of the undertaking,
[the party and/or licensee] must be able to satisfy a court that a real and
substantial effort has been made to seek out what is being requested by
the other party.37
Failure to fulfill an undertaking is a breach of Rule 2.02, and may result in another
party making a complaint to the Law Society about you. The Law Society will review
the situation, and may discipline you for a breach of undertaking, which may result
in a finding of professional misconduct. This is why it is very important to have clear
language in an undertaking about who is to fulfill the undertaking, what action is to
be taken or documents produced, deadlines for completion, and so on.
Undertakings Given to the Law Society (Rules 6.01(8), (9))

In certain circumstances, a paralegal or a non-licensee may be required to give an
undertaking to the Law Society.
36 2003 CanLII 7532, [2003] OJ No 5196 (QL) (Sup Ct J).

37 Ibid at para 7.

A paralegal whose licence to provide legal services has been suspended may be
required to give an undertaking to the Law Society not to provide legal services. In
such a case, the paralegal shall not
(a) provide legal services, or

(b) represent or hold himself or herself out as a person entitled to provide legal
services.38
A paralegal required to give an undertaking to the Law Society to restrict his or her
provision of legal services shall comply with the undertaking (Rule 6.01(9)).
Failure to comply with undertakings given to the Law Society could result in disci-
plinary action.
Trust Conditions (Rule 2.02; Guideline 3)

In certain circumstances, a paralegal may be required to hold documents and property
in trust until certain conditions have been performed. The conditions pursuant to
trust condition which the documents and property are held are called trust conditions.39 A paralegal
a condition or conditions that shall honour every trust condition once accepted.40
must be performed before a Once a trust condition is accepted, it is binding upon a paralegal, whether it is
paralegal may release certain imposed by another legal practitioner or by a layperson. A legal practitioner is a
documents and/or property held
person:
in trust by the paralegal
legal practitioner (a) who is a licensee;
a person who is a member (b) who is not a licensee but who is a member of the bar of a Canadian
of the bar in a Canadian jurisdiction, other than Ontario, and who is authorized to practise law as a barrister
jurisdiction other than Ontario, and solicitor in that other jurisdiction.41
and is authorized to practise
law as a barrister and solicitor With respect to trust conditions, Guideline 3 comments:
in that jurisdiction; a lawyer
7. Trust conditions should be clear, unambiguous and explicit and should state
the time within which the conditions must be met. Trust conditions should
be imposed and accepted in writing. Trust conditions may be varied with the
consent of the person imposing them, and the variation should be confirmed
in writing.
8. A paralegal should not impose or accept trust conditions that are
unreasonable, nor accept trust conditions that cannot be fulfilled personally.
When a paralegal accepts property subject to trust conditions, the paralegal
must fully comply with such conditions, even if the conditions subsequently
appear unreasonable.
9. A paralegal may seek to impose trust conditions upon a non-licensee, but great
caution should be exercised in so doing since such conditions would be enforceable
only through the courts as a matter of contract law.
38 Rule 6.01(8).
39 Guideline 3, para 1.
40 Rule 2.02(4).
41 Rule 1.02.


Professional Conduct and the Ontario Human
Rights Code
Harassment and Discrimination
(Rule 2.03; Guideline 4)
General (Rules 2.03(1), (2))
prohibited grounds
Rule 2.03(1) incorporates the principles of the Ontario Human Rights Code (“the grounds upon which
Code”)42 and related case law into the interpretation of Rule 2.03. This means that discrimination is prohibited by
Rule 2.03, the Code, and any relevant case law applying and interpreting the Code the Ontario Human Rights Code
must be read together. A term used in Rule 2.03 that is defined in the Code has the (s 1)—race or colour, ancestry,
same meaning as in the Code.43 place of origin, ethnic origin,
citizenship, creed, sex, sexual
The Ontario Human Rights Code orientation, gender identity,
gender expression, age, marital
The Ontario Human Rights Code gives every person equal rights and opportunities or family status, or disability;
without discrimination in the following areas: for purposes of employment,
record of offence is a prohibited
• services, goods, and facilities;
ground of discrimination; in
• accommodation (housing); the context of housing only,
• contracts; the receipt of public assistance
• employment; and is also a prohibited ground of
discrimination
• membership in trade or vocational associations, trade unions, and self-
governing professions. ancestry
family descent
PROHIBITED GROUNDS place of origin

for purposes of the Ontario
The Code prohibits discrimination or harassment of persons with respect to activities Human Rights Code, a person’s
in any of the above areas on any of the following prohibited grounds: country or region of birth,
including a region in Canada
• Race or colour. There is an exemption for special service organizations.
ethnic origin
• Ancestry and place of origin. Ancestry refers to family descent. Place of origin
cultural background
means country or region of birth, and includes regions in Canada.
• Ethnic origin. Ethnic origin relates to cultural background. creed
religion or faith
• Citizenship. Citizenship refers to citizenship status, including landed immigrant,
refugee, or non-permanent resident. Discrimination on the basis of citizenship is accommodation
allowed in the circumstances set out in section 16 of the Code. an action taken or a change
made to allow a person or
• Creed. Creed means religion or faith. The Code prohibits a person from
group protected by the Ontario
trying to force another person to accept or conform to a particular religious Human Rights Code to engage
belief or practice. As well, it may require an employer to make a reasonable in any of the activities covered
accommodation for the religious beliefs and practices of an employee, such as by the Code—for example,
allowing breaks for prayer at certain times. An accommodation is an action employment
42 RSO 1990, c H.19 [Code].

43 Rule 2.03(2).

taken or a change made to allow a person or group protected by the Code to
engage in any of the activities covered by the Code—for example, employment.
• Sex. For a woman, the right to equal treatment on this ground includes the
right to equal treatment without discrimination in the event that she is or may
become pregnant.44
• Sexual orientation. Sexual orientation includes heterosexual, lesbian, gay, and
bisexual people.
• Gender identity or gender expression. Gender identity includes transgender and
intersex people.
• Age. Legal age means 18 years old or more.
record of offence • Record of offences (in the context of employment only). A record of offence is
for purposes of the Ontario a Criminal Code45 conviction that has been pardoned, or a provincial offence.46
Human Rights Code, a Criminal Discrimination against a person based on a criminal conviction for which no
Code conviction that has been pardon has been granted is legal.
pardoned, or a provincial
• Marital status or family status. Marital status refers to the status of being
offence
married, single, widowed, divorced, separated, or living with a person in a
marital status conjugal relationship outside marriage.47 Family status refers to parent and
for purposes of the Ontario
child relationships.48 A parent may be a biological parent, an adoptive parent, or
Human Rights Code, the
a legal guardian.
status of being married, single,
widowed, divorced, separated, • Disability. The definition of disability in section 10(1) of the Code encompasses
or living with a person in a a broad spectrum of conditions, including (a) any degree of physical disability,
conjugal relationship outside of infirmity, malformation, or disfigurement that is caused by bodily injury, birth
marriage defect, or illness and, without limiting the generality of the foregoing, includes
family status diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation,
parent and child relationships lack of physical coordination, blindness or visual impediment, deafness or
(Human Rights Code, s 10(1)); hearing impediment, muteness or speech impediment, or physical reliance on
a parent may be a biological a guide dog or other animal or on a wheelchair or other remedial appliance or
parent, an adoptive parent, or a device; (b) a condition of mental impairment or a developmental disability; (c) a
legal guardian learning disability, or a dysfunction in one or more of the processes involved
in understanding or using symbols or spoken language; (d) a mental disorder;
and (e) an injury or disability for which benefits were claimed or received under
the insurance plan established under the Workplace Safety and Insurance
Act, 1997.49 It includes past and presumed disabilities50 and, in the context of
housing only, receipt of public assistance.51
• The receipt of public assistance (in the context of housing only).
Paralegals provide legal services to the public. Paralegal firms provide employment
to other persons. Paralegals shall ensure that no one is denied services or receives
44 Code, s 10(2).
45 RSC 1985, c C-46.
46 Code, s 10(1).
47 Ibid.
48 Ibid.
49 SO 1997, c 16, Schedule A.
50 Code, s 10(3).
51 O Reg 290/98, Business Practices Permissible to Landlords in Selecting Prospective Tenants for Residential
Accommodation, online: <http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_980290_e.htm>, s 4.


inferior service on the basis of any of the prohibited grounds.52 Paralegals shall ensure
that their employment practices do not offend Rule 2.0353—in other words, that their
employment practices comply with the Code.
Discrimination (Rules 2.03(4), (5))

Discrimination means treating a person or group differently or negatively based on
a prohibited ground of discrimination under the Code. When determining whether discrimination
discrimination has occurred, an objective standard is used. A person who makes unfair treatment by one person
discriminatory comments or engages in discriminatory conduct may not consciously of another person or group on
intend to be discriminatory. However, if they ought reasonably to have known that any of the prohibited grounds
under the Human Rights Code
their conduct would not be welcomed by the recipient, their conduct is discriminatory.
Discrimination includes constructive discrimination (sometimes referred to as constructive
adverse impact discrimination), defined in the Code as “a requirement, qualifi- discrimination
cation or factor that is not discrimination on a prohibited ground but that results in a requirement, qualification, or
factor that is not discrimination
the exclusion, restriction or preference of a group of persons who are identified by a
on a prohibited ground but
prohibited ground of discrimination.”54
that results in the exclusion,
Rules 2.03(4) and (5) state the general duty of a paralegal to respect the require-
restriction, or preference of
ments of human rights laws in force in Ontario: a group of persons who are
Discrimination identified by a prohibited
ground of discrimination
(4) A paralegal shall respect the requirements of human rights laws in force in (Human Rights Code, s 11(1));
Ontario and without restricting the generality of the foregoing, a paralegal shall not also known as adverse impact
discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, discrimination
citizenship, creed, sex, sexual orientation, gender identity, gender expression, age,
adverse impact
record of offences, marital status, family status or disability with respect to the
discrimination
employment of others or in dealings with other licensees or any other person.
see constructive discrimination
(5) The right to equal treatment without discrimination because of sex includes
the right to equal treatment without discrimination because a woman is or may
become pregnant.
Paralegals shall take reasonable steps to prevent or stop discrimination by any staff
or other person who is subject to their direction and control.
Harassment (Rule 2.03(3))

Rule 2.03(3) states:
Harassment
(3) A paralegal shall not engage in sexual or other forms of harassment of a
colleague, a staff member, a client or any other person on the ground of race, harassment
ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual engaging in a course of
orientation, gender identity, gender expression, age, record of offences, marital vexatious comment or conduct
status, family status or disability. that is known or ought
reasonably to be known to be
Section 10(1) of the Code defines harassment as “engaging in a course of vex- unwelcome (Human Rights
atious comment or conduct that is known or ought reasonably to be known to be Code, s 10(1))
52 Rule 2.03(6).
53 Rule 2.03(7).
54 Code, s 11(1).

unwelcome.” Harassment is a form of discrimination. It includes unwelcome com-
ments or behaviour that might reasonably be expected to cause insecurity, discomfort,
offence, or humiliation to another person. Harassment also includes, but is not limited
to, behaviours such as name calling, racial or religious slurs and jokes, sexual slurs and
jokes, sexually suggestive conduct, and demands for sexual favours.
The definition in the Code speaks to a “course of vexatious comment or conduct.”
Guideline 4 notes that:
6. … Generally speaking, harassment is a “course of conduct” or a pattern of

behaviour where more than one incident has occurred. Even one incident, however,
may constitute harassment if the incident is serious in nature.
SEXUAL HARASSMENT
sexual harassment The Code prohibits sexual harassment in the workplace along with any other harass-
an incident or series of ment based on sex, sexual orientation, gender identity, or gender expression.55
incidents involving unwelcome
sexual advances, requests for Harassment because of sex in workplaces
sexual favours, or other verbal (2) Every person who is an employee has a right to freedom from harassment
or physical conduct of a sexual in the workplace because of sex, sexual orientation, gender identity or gender
nature expression by his or her employer or agent of the employer or by another
employee.
Sexual solicitation by a person in position to confer benefit, etc.

(3) Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer,
grant or deny a benefit or advancement to the person where the person
making the solicitation or advance knows or ought reasonably to know that it
is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or
advance where the reprisal is made or threatened by a person in a position to
confer, grant or deny a benefit or advancement to the person.
Note that there are two parts to the test for sexual harassment at section 7(3)(a)
of the Code. First, a tribunal must consider whether the person engaging in the
harassment knew that her or his behaviour was unwelcome. Second, a tribunal must
consider whether the person engaging in the harassment ought to have known that
her or his conduct was unwelcome—in other words, how would a reasonable person
have perceived the impugned conduct in the circumstances?
In its policy on preventing sexual and gender-based harassment, the Ontario Human
Rights Commission offers guidance on identifying and distinguishing between sexual
and gender-based harassment.56 Gender-based harassment is any behaviour, usually
including bullying, that reinforces traditional heterosexual gender norms. It may be
used to force people to conform to traditional gender stereotypes. It may be, but is
not generally, motivated by sexual interest or intent.
55 Code, ss 7(2), (3).

56 Ontario Human Rights Commission (OHRC), “Policy on Preventing Sexual and Gender-Based
Harassment” (approved 27 January 2011; updated May 2013), online: <http://www.ohrc.on.ca/en/
policy-preventing-sexual-and-gender-based-harassment-0>.


Sexual harassment, however, is generally motivated by sexual interest or intent.
Sexual harassment may include some or all of the following behaviours:
• sexual solicitation and advances (your manager asks for sex in exchange for a
promotion);
• a poisoned environment (inappropriate comments and pornographic images in
the workplace);
• gender-based harassment (targeting someone for not following sex-role
stereotypes); and
• violence (if inappropriate sexual behaviour is not dealt with, it may move
to more serious forms, including sexual assault and other harmful
behaviour).
Some examples of sexual and gender-based harassment include
• demanding hugs;
• invading personal space;
• making unnecessary physical contact, including unwanted touching, etc.;
• using language that demeans others, such as sex-specific derogatory comments
and/or sex-specific derogatory names;
• leering or inappropriate staring;
• making gender-related comments about someone’s physical characteristics or
mannerisms;
• making comments or treating someone badly because of failure to conform to
sex-role stereotypes;
• showing or sending pornography, sexual pictures or cartoons, sexually explicit
graffiti, or other sexual images (including online);
• telling sexual jokes, including passing around written sexual jokes (for example,
by email);
• sharing rough and vulgar humour or language related to gender;
• using sexual or gender-related comments or conduct to bully someone;
• spreading sexual rumours (including online);
• making suggestive or offensive comments or hints about members of a specific
gender;
• making sexual propositions;
• verbally abusing, threatening, or taunting someone based on gender;
• bragging about sexual prowess;
• demanding dates or sexual favours;
• asking questions or talking about sexual activities;
• making an employee dress in a sexualized or gender-specific way;
• acting in a paternalistic way that someone thinks undermines their status or
position of responsibility; and
• making threats to penalize or otherwise punish a person who refuses to comply
with sexual advances (known as reprisal).

7. Sexual harassment means an incident or series of incidents involving

unwelcome sexual advances, requests for sexual favours or other verbal or physical
conduct of a sexual nature when one or more of the following circumstances are
present:
• such conduct might reasonably be expected to cause insecurity, discomfort,

offence or humiliation to the recipient(s) of the conduct,
• submission to such conduct is made implicitly or explicitly a condition for the
provision of professional services,
• submission to such conduct is made implicitly or explicitly a condition of
employment,
• submission to or rejection of such conduct affects the paralegal’s employment
decisions regarding his or her employee (which may include assigning file
work to the employee, matters of promotion, raise in salary, job security, and
employee benefits, among other things), or
• such conduct has the purpose or the effect of interfering with work
performance or creating an intimidating, hostile, or offensive work
environment.
Guideline 4, paragraph 8 provides a non-exhaustive list of behaviours considered

to be harassment.
BOX
2.5
IS IT HARASSMENT?
Fact Situation
Doug owns a busy paralegal practice. Recently he hired a young female associate,
Kemala, to help out with Small Claims and residential tenancies matters. One day
Kemala is talking to Doug about a trial she has coming up in a couple of days. It is
Kemala’s first trial. “I’m really nervous,” she tells Doug. “I’m well prepared, everything
is ready to go, but I keep thinking, what if I blow it and my client loses big time?”
“Don’t worry about it,” Doug says, grinning at her. “Dress for success. Wear high
heels, a short skirt, and a low-cut blouse. If the judge is a guy, you’ll win.”
As it turns out, Kemala gets a very good result for her client. When she tells Doug
about it, he says, “See? I told you it would work.” When Kemala tells him that she
wore a business suit and that the judge was a woman, Doug says, “You girls. You
always stick together.” Kemala is upset and offended, but she doesn’t say anything
because she does not want to put her job at risk.

Is Doug’s conduct sexual harassment?
OTHER HARASSMENT
The definition of harassment in section 10(1) of the Code is not limited to sexual
harassment. Any form of harassment in the workplace is forbidden by section 5(2) of


the Code. Guideline 4 gives the following examples of non-sexual harassment (refer
to the Code and the case law, as the list is not exhaustive):
• the display of offensive material, such as racial graffiti;

• repeated racial slurs directed at the language or accent of a particular group;
and/or
• verbal abuse or threats.
EMPLOYMENT PRACTICES (RULE 2.03(7))

Paralegals who employ or contract for the services of one or more workers are required
to comply with the workplace violence and harassment provisions in the Occupational
Health and Safety Act (“the OHSA”).57 Guideline 4 comments:
9. … Under the OHSA, employers must prepare written workplace violence and
workplace harassment policies and must review those policies as often as necessary,
but at least annually. Paralegals who employ six or more workers must post their
written policies at a conspicuous place in the workplace.
10. The OHSA requires that employers assess the risks of workplace violence that
may arise from the nature of the workplace, the type of work or the conditions
of work, and then develop and maintain a program to implement their workplace
violence policy. That program must set out how the employer will investigate
and deal with incidents or complaints [of] workplace violence, and must include
measures and procedures to control any risks identified in the assessment, for
summoning immediate assistance when workplace violence occurs or is likely to
occur, and for workers to report incidents of workplace violence to the employer or
supervisor.
11. Employers must also develop a program to implement the workplace
harassment policy, which must include measures and procedures for workers to
report incidents of workplace harassment to the employer or their supervisor, or to
another person if the employer or supervisor is the alleged harasser. The program
must also set out:
a. how incidents or complaints [of] workplace harassment will be investigated

and dealt with;
b. how information obtained about an incident or complaint, including
identifying information about any individuals involved, will not be disclosed
unless necessary for the investigation or for taking corrective action with
respect to the incident or complaint, or is otherwise required by law; and
c. how a worker who has allegedly experienced workplace harassment and
the alleged harasser will be informed of the results of the investigation or the
results of the investigation and of any corrective action taken as a result of the
investigation.
[12]. The OHSA also provides that an inspector may order, at the employer’s
expense, a third party investigation into allegations of workplace harassment.
57 RSO 1990, c O.1.

Policies and Procedures
Paralegals shall ensure that no one is discriminated against on a prohibited ground with
respect to the provision of services.58 Paralegals shall also ensure that their employment
practices do not offend Rule 2.03.59 The Law Society has developed a series of best
practices and model policies to assist paralegals and lawyers in promoting equity and
diversity in all areas of their practice, including employment and provision of services.60
Guideline 4 recommends that paralegals implement these policies and procedures in
their practice:
13. … Model policies cover practices relating to employment and the provision of
services to clients and include
• preventing and responding to workplace harassment and discrimination,

• promoting equity in the workplace,
• parental and pregnancy leaves and benefits,
• accommodation in the workplace, flexible work arrangements, and
• issues relating to creed and religious beliefs, to gender and sexual orientation,
and to individuals with disabilities.
14. Equity Initiatives has also developed a professional development program to

design and deliver education and training to legal service providers regarding …
equity and diversity issues. A paralegal may contact the Law Society to discuss
available training sessions, which may be offered as seminars, workshops or
informal meetings.
Discrimination and Harassment Counsel

The Law Society Discrimination and Harassment Counsel provides its service free of
charge to lawyers, paralegals, articling and field placement students, and the Ontario
public. The Counsel confidentially assists anyone who may have experienced dis-
crimination or harassment by a lawyer or paralegal, or within a law or paralegal firm.
Although funded by the Law Society, the Counsel is completely independent of the
Society. Contact information is posted at the Law Society website.
The Counsel provides advice and support, and reviews options with complainants.
These may include
• filing a complaint with the Law Society,

• filing a complaint with the Ontario Human Rights Tribunal, and
• allowing the Counsel to mediate a solution in cases where all parties agree.
58 Rule 2.03(6).
59 Rule 2.03(7).
60 Law Society of Ontario, Model Policies & Guides, online: <https://lso.ca/lawyers/practice-supports-and-resources/
equity-supports-resources/model-policies,-publications-reports?lang=en-ca>. © The Law Society of Ontario, 2019. All
rights reserved. Reprinted with permission of The Law Society of Ontario.


CHAPTER SUMMARY
The Paralegal Rules of Conduct establish standards of writing as soon as possible thereafter. Unless the language
professional conduct for paralegals in Ontario. In order to of an undertaking clearly states otherwise, a paralegal’s
avoid disciplinary action by the Law Society and to avoid undertaking is a personal promise, and it is his or her
bringing the reputation of the paralegal profession in responsibility to fulfill it.
Ontario into disrepute, a paralegal must know the Rules A paralegal may be required to hold documents and
and comply with their standards for professional conduct. property in trust until certain conditions have been per-
The Paralegal Professional Conduct Guidelines, the formed. The conditions pursuant to which the documents
By-Laws, and relevant case law or legislation will provide and property are held are called trust conditions. Once a
additional guidance as you read and interpret the Rules. trust condition is accepted, it is binding upon a paralegal,
A paralegal has a duty to provide legal services and whether it is imposed by another legal practitioner or by a
discharge all responsibilities to clients, tribunals, the public, layperson.
and other members of the legal professions honourably Paralegals shall respect the requirements of Ontario
and with integrity. A paralegal has a duty to uphold the human rights laws. The principles of the Ontario Human
standards and reputation of the paralegal profession and Rights Code and related case law must be applied when
to assist in the advancement of its goals, organizations, interpreting Rule 2.03.
and institutions. Paralegals who do not conduct themselves Paralegals shall not discriminate with respect to the
with integrity may harm their clients, and will damage their employment of others, or in dealings with other licensees
own reputations within the paralegal profession as well as or any other person, on the prohibited grounds stated in
the reputation of the profession within the community. the Code. They shall not engage in sexual or other forms
A paralegal shall be courteous and civil, and shall act in of harassment of colleagues, staff members, clients, or any
good faith toward all persons with whom the paralegal has other person on any of the prohibited grounds. They shall
dealings in the course of his or her practice. Acting with ensure that no one is discriminated against on a prohibited
civility means that a paralegal shall communicate politely ground with respect to the provision of services.
and respectfully and act in a manner that does not cause Paralegals who employ or contract for the services
unnecessary difficulty or harm to another. The obligation of one or more workers are required to comply with the
to be polite, respectful, and considerate of others extends workplace violence and harassment provisions in the
to clients, opposing parties, other paralegals and lawyers, Occupational Health and Safety Act (“the OHSA”). Under
support staff, adjudicators, court and tribunal officers the OHSA, employers must prepare written workplace
and staff, and Law Society representatives. The obligation violence and workplace harassment policies and must
applies regardless of the formality or informality of the review those policies as often as necessary, but at least
venue, or the stage you are at in a matter. annually. Paralegals who employ six or more workers must
Paralegals who engage in another profession, business, post their written policies at a conspicuous place in the
occupation, or other outside interest, or who hold public workplace.
office at the same time as they provide legal services, shall Employers must also develop a program to implement
not allow the outside interest or public office to jeopardize the workplace harassment policy, which must include
their integrity, independence, or competence. measures and procedures for workers to report incidents of
A paralegal who acts as a mediator shall ensure that workplace harassment to the employer or their supervisor,
the parties to the mediation understand that the paralegal or to another person if the employer or supervisor is the
is not acting as a representative for either party, but as alleged harasser.
an impartial third party whose role is to help the parties Paralegals are encouraged to implement the best prac-
resolve their dispute. The paralegal should also advise the tices and model policies developed by the Law Society to
parties that she or he cannot represent either of them in assist them in promoting equity and diversity in all areas of
any subsequent legal matter related to the issues mediated. their practice.
Undertakings given by licensees are matters of the The Discrimination and Harassment Counsel provides
utmost good faith and must receive scrupulous attention. confidential assistance to anyone who may have experi-
Except in exceptional circumstances, they should be made enced discrimination or harassment by a lawyer or para-
in writing at the time they are given, or confirmed in legal, or within a law or paralegal firm.

KEY TERMS
accommodation, 51 creed, 51 mediator, 46
acting in good faith, 34 diarize, 48 outside interest, 45
acting with civility, 33 discrimination, 53 place of origin, 51
acting with integrity, 33 ethnic origin, 51 prohibited grounds, 51
adverse impact discrimination, 53 family status, 52 record of offence, 52
ancestry, 51 fulfill (or answer) an undertaking, 48 sexual harassment, 54
best efforts, 49 harassment, 53 tickler system, 48
breach of undertaking, 48 legal practitioner, 50 trust condition, 50
conflict of interest, 45 marital status, 52 undertaking, 47
constructive discrimination, 53 mediation, 46
1. Define the following words and phrases. For review b. You are asked for an undertaking to
and study purposes, it is a good idea to note the produce a document to an opposing party
source of your definition, and the section or rule in a proceeding. The document is relevant
number. to issues in the proceeding. The obligation
a. accommodation of full disclosure has been explained to your
b. acting with integrity client. You do not have the document in
your possession. Your client says she may
c. acting in good faith
be able to obtain a copy from another
d. acting with civility person. May you give the undertaking? If
e. best efforts yes, what terms should be included in the
f. breach of undertaking undertaking?
g. conflict of interest 4. One of your paralegal colleagues has a calendar
h. discrimination on the wall in her office. It is in a corner behind a
i. fulfill an undertaking bookshelf. It cannot be seen from the door of her
office, but it can be seen easily by anyone who
j. harassment
approaches her desk, including other paralegals,
k. mediation staff, students, and any clients who meet with her
l. mediator in her office. The calendar shows pictures of male
m. outside interest firefighters posing in various states of undress, from
n. prohibited grounds shirtless to completely naked except for a very skimpy
o. sexual harassment swimsuit and a firefighter’s hat. The calendar is sold
to the public to raise money for a children’s charity.
p. trust condition
You think the calendar is unsuitable for display in a
q. undertaking
workplace where it may be seen by clients and others.
2. As a paralegal, what tools should you use to promote When you share your opinion with your colleague,
equity and diversity in your workplace? she laughs and says, “It’s for a very good cause. Why
3. a. You are asked for an undertaking to produce a don’t you get a life?”
document to an opposing party in a proceeding. It Does the calendar constitute harassment?
is a reasonable request. The document is relevant
5. Magda is a newly licensed paralegal who is eager
to issues in the proceeding. The obligation of full
to develop her client base. She intends to specialize
disclosure has been explained to your client. You
in traffic offences and landlord – tenant matters. A
have the original in your client matter file at your
client by the name of Robin is coming in for an initial
office. May you give the undertaking? If yes, what
consultation regarding a careless driving charge.
terms should be included in the undertaking?


When Robin arrives at the reception area, Magda WSIB decision to deny her psychiatric entitlement
catches sight of her and notices that Robin is a relating to a workplace accident. Michael has met with
man dressed in women’s clothing, wearing make- Jenna three times. On each of these meetings, Michael
up and jewelry. Magda shakes her head in disbelief has requested additional retainer monies, which
and immediately closes her office door. She buzzes Jenna has provided. Several weeks have passed and
her assistant and instructs her to tell Robin that Michael has provided no update to Jenna on the file.
something very last minute has come up with another Jenna has left repeated telephone messages for Michael
client and Magda won’t be able to meet Robin after inquiring as to the status of the claim, and he has failed
all. “Do you want me to reschedule for another day?” to return them. Finally, after receiving six messages,
asks the assistant. “No, tell him I’m booked solid for Michael calls Jenna and in an angry voice he shouts,
the next two weeks,” Magda says. “You need to stop calling me and filling up my voice
Comment on Magda’s conduct with reference to mail! These files move very slowly. I’ve got everything
the Rules. under control on your file so there’s absolutely no
6. Michael is representing Jenna on a Workplace Safety need for us to talk every second day!” Comment on
and Insurance Appeals matter. Jenna is appealing a Michael’s conduct in the context of the Rules.


The Client
3
The Duty to the Client . . . . . . . . . . . . . . . . . . . . . 64 Learning Outcomes
The Paralegal – Client Relationship. . . . . . . . . . . 65 After reading this chapter, you will understand:
The Paralegal – Client Relationship . . . . . . . . . . . 66
• A paralegal’s duty to a client.
The Paralegal – Client Retainer. . . . . . . . . . . . . . . 66
• The paralegal–client relationship.
Who Is a Client?. . . . . . . . . . . . . . . . . . . . . . . . . . . 66 • Who is a client?
How Does a Person Become a Client?. . . . . . . . 68 • Prospective clients.
Initial Contact. . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 • The retainer agreement.
Initial Consultation. . . . . . . . . . . . . . . . . . . . . . . . 69 • The non-engagement letter.
Written Confirmation of the Paralegal – Client • The limited scope retainer.
Retainer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 • Joint retainer clients.
• Clients with diminished capacity.
The Retainer Agreement. . . . . . . . . . . . . . . . . . . 71
• Clients who are organizations.
The Non-Engagement Letter. . . . . . . . . . . . . . . . 73
• Phantom clients.
Limited Scope Retainers (Rules 3.02(15)-(17);
• Client identification and verification.
Guideline 6) . . . . . . . . . . . . . . . . . . . . . . . . . 73
Joint Retainer Clients (Rules 3.04(6)-(12);
Guidelines 5, 9). . . . . . . . . . . . . . . . . . . . . . . 75
Client with Diminished Capacity (Rules 3.02(13),
(14); Guidelines 5, 6, 7). . . . . . . . . . . . . . . . 77
Acting for an Organization. . . . . . . . . . . . . . . . . 78
Phantom Clients (Guideline 5) . . . . . . . . . . . . . . 78
Client Identification and Verification
(By-Law 7.1). . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Compliance with the By-Law 7.1 Client
Identification and Verification
Requirements . . . . . . . . . . . . . . . . . . . . . . . . 82
Chapter Summary. . . . . . . . . . . . . . . . . . . . . . . . . 90
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
63

The Client
In her new role as a paralegal at Price and Associates, After Yannick leaves the building, she walks down
Rajni has taken on a handful of new clients. One such the hallway to the office of another paralegal, Luis. She
client is Yannick Charpentier, an elderly gentleman who tells him about her meeting with the client and inquires
owns a three-storey walk-up in town. One of his tenants about the firm’s policy on retainer agreements. Luis
has failed to pay rent for the second consecutive month says, “We’ve been talking about getting something in
and has also caused significant damage to the rental place for a few years now, but everyone is so busy, it just
unit. Yannick wants to discuss his legal options. hasn’t happened. That old guy sounds pretty stubborn. I
Prior to the initial client meeting, Rajni conducts a guess you’ll just have to bill him at the end.” Rajni feels
conflicts check and, at the start of the meeting, she anxious. She remembers her professors emphasizing the
carries out the client identification requirements under importance of retainer agreements, but since there’s no
By-Law 7.1.1 During the discussion, Yannick instructs policy in place, she can’t insist on one.
Rajni to prepare the necessary documents to com- In the end, Rajni works diligently on Yannick’s file
mence eviction proceedings. Rajni agrees and goes on over the next three months, including successfully rep-
to explain the extent of legal services she’ll be providing resenting him at a hearing before the Landlord and
and an estimate of the fees and disbursements Yannick Tenant Board. At the conclusion of the matter, Rajni bills
can expect to incur. She indicates that she’ll prepare Yannick for her legal services, but despite three subse-
a retainer letter setting out the terms of their agree- quent reminder letters, the invoice remains unpaid.
ment and she requests a monetary retainer of $150.00.
Immediately, Yannick becomes agitated and pounds his
fist on her desk. “NO contract! NO retainer!” he shouts. 1. Discuss the issue of the retainer agreement
“I pay at the end—when I get my results!” in the circumstances. What should Rajni
Rajni is taken aback by Yannick’s reaction. She tries have done to communicate the terms of the
to explain the importance of the retainer agreement, agreement between the client and the firm?
but Yannick waves his hand in the air impatiently and What should the firm do to better manage
shakes his head defiantly. She awkwardly carries on their paralegal – client relationships in this
with the meeting, detailing the process and timelines. regard?
Throughout the meeting, Rajni has to repeat herself sev- 2. Is Yannick a client with diminished capacity? If
eral times; she is concerned Yannick has misunderstood so, how should Rajni treat him throughout the
what she’s telling him. Rajni is not sure whether he is paralegal – client relationship? Cite authority for
hard of hearing or confused, or both. your answer.
duty of service
the paralegal’s duty to
be competent, maintain
The Duty to the Client
confidentiality, avoid conflicts Guideline 5 of the Paralegal Professional Conduct Guidelines2 comments that one of
of interest, and continue to the most important duties of a paralegal is the duty of service to the client:
represent the client unless the
paralegal has good reason to 1. … This duty includes obligations to be competent, maintain confidentiality, avoid
withdraw; also known as the conflicts of interest and continue to represent the client unless the paralegal has
duty of loyalty

by-laws> [By-Laws].


good reason for withdrawing. As a result, it is important for the paralegal to know
exactly who is a client because it is to the client that most of the duties outlined in
the Rules are owed. [Emphasis added.]
In the jurisprudence, this duty is referred to as the duty of loyalty. As the Ontario duty of loyalty
Court of Appeal noted in Amato v Welsh:3 see duty of service
[58] The jurisprudence of the Supreme Court of Canada has repeatedly endorsed
the importance to the administration of justice of the lawyer’s duty of loyalty to
his or her client. In particular, the Supreme Court has emphasized the lawyer’s
obligation to avoid conflicts of interest.
[59] In R v Neil, 2002 SCC 70 (CanLII), [2002] 3 SCR 631, at paras 12 and 16, Binnie
J, writing for the Supreme Court, described a lawyer’s duty of loyalty to a client as a
“defining principle” that is intertwined with the fiduciary nature of the lawyer–client
relationship. As he observed, at para 16, loyalty is frequently cited as one of the
defining characteristics of a fiduciary. Justice Binnie explained, at para 12, that the
duty of loyalty has endured for almost two centuries precisely “because it is essential
to the integrity of the administration of justice and it is of high public importance that
public confidence in that integrity be maintained.” He elaborated:
Unless a litigant is assured of the undivided loyalty of the lawyer,

neither the public nor the litigant will have confidence that the legal
system, which may appear to them to be a hostile and hideously
complicated environment, is a reliable and trustworthy means of
resolving their disputes and controversies. [Citations omitted.]
[60] The content of the duty of loyalty is broad. Neil holds, at para 19, that in
addition to protecting confidential information, the duty of loyalty has “three other
dimensions”:
(i) the duty to avoid conflicting interests … including the lawyer’s personal interest;
(ii) a duty of commitment to the client’s cause (sometimes referred to as
“zealous representation”) from the time counsel is retained, not just at
trial, i.e. ensuring that a divided loyalty does not cause the lawyer to “soft
[pedal]” his or her defence of a client out of concern for another client; and
(iii) a duty of candour with the client on matters relevant to the retainer. … If
a conflict emerges, the client should be among the first to hear about it.
[Citations omitted. Emphasis in original.]4
The principles stated in the passage above may also be applied to paralegal licensees.
The Paralegal–Client Relationship

In order to properly meet her or his obligations to the client, a paralegal must under-
stand the distinction between the paralegal–client relationship and the paralegal–client
retainer. Guideline 5 comments:
2. The courts have made a distinction between a solicitor – client relationship
and a solicitor – client retainer. This jurisprudence may be used by the courts to
3 2013 ONCA 258, [2013] OJ No 1857 (QL).

CHAPTER 3 The Client 65


define the paralegal – client relationship and the paralegal – client retainer in future.
The relationship is established when the prospective client has his or her first
consultation with the lawyer or law firm about retaining services. The relationship
may be established without formality. The retainer is established once the lawyer
agrees (expressly or implied by the lawyer’s conduct) to provide legal services.
The solicitor – client relationship, with all of its important duties, for example,
confidentiality, continues after the retainer is established.
paralegal – client
relationship
The Paralegal–Client Relationship
the professional relationship The paralegal – client relationship encompasses a range of duties owed to the client
between a paralegal and a by the paralegal as a fiduciary, including the duties of integrity, competence, honesty
client that gives rise to a range and candour, confidentiality, and avoidance of conflicts of interest. The duty of loyalty,
of duties that include the duties discussed above, encompasses all of these duties.
of competence, confidentiality, A paralegal – client relationship may arise informally. If a paralegal has been asked
and avoidance of conflicts for assistance and has provided assistance, this may give rise to a paralegal – client
of interest, and the duty to
relationship, regardless of the informality of the encounter.
continue to represent the client
unless the paralegal has good
reason for withdrawing The Paralegal–Client Retainer
paralegal – client retainer The paralegal – client retainer (also called the retainer) is established when the client
the contractual relationship offers to hire the paralegal and the paralegal agrees to provide legal services to the
between the client and the
client in a particular client matter. It is the contractual relationship between the client
paralegal, which establishes
and the paralegal in that particular matter—that is, the specific services that the para-
the scope of the retainer, what
the client will be charged for
legal agrees to perform, and that the client agrees to accept, in that particular matter.
the legal services provided, and The terms of a paralegal – client retainer should be established in writing. Among other
other terms of the agreement; things, the written confirmation of the retainer should contain terms that identify
also called retainer who the client is and the person(s) who will provide instructions to the paralegal in
the client matter.
retainer
see paralegal – client retainer
When you have completed the services that were contracted for, the para-
legal – client retainer ends for that particular client matter. However, some of the duties
client arising out of the paralegal – client relationship, including those of confidentiality and
a person who consults a
avoidance of conflicts of interest, continue indefinitely.
paralegal and on whose behalf
the paralegal provides or agrees
to provide legal services, or who,
having consulted the paralegal,
Who Is a Client?
reasonably concludes that the Rule 1.02 of the Paralegal Rules of Conduct5 defines a client as a person who
paralegal has agreed to provide
legal services on that person’s (a) consults a paralegal and on whose behalf the paralegal provides or agrees
behalf; includes a client of the to provide legal services; or
firm of which the paralegal is a (b) having consulted the paralegal, reasonably concludes that the paralegal
partner or associate, whether or has agreed to provide legal services on his or her behalf
not the paralegal handles the and includes a client of the firm of which the paralegal is a partner or associate,
client’s work whether or not the paralegal handles the client’s work. [Emphasis added.]
[Rules].


BOX
3.1
WHAT IS A RETAINER?
In a legal services context, the word “retainer” is used to mean several different things.
• To be retained means to be hired or engaged to represent a person in a retained

client matter. hired to represent a person in a
• A paralegal – client retainer (also called a retainer) is the agreement legal matter
between a client and a paralegal that the paralegal shall provide legal retainer letter
services to the client in a particular matter. The retainer is the contractual a letter to the client
relationship between a client and a paralegal in a particular client matter. confirming the terms of the
• A retainer agreement is a written contract between the paralegal and the paralegal – client retainer,
client that sets out the terms of the paralegal–client retainer, including the including the scope of the
scope of the legal services to be provided in the client matter, the likely cost legal services to be provided
of those services, events of termination, and so on. Alternatively, the terms of in the client matter, the likely
cost of those services, events
the paralegal–client retainer may be confirmed by a retainer letter (some-
of termination, and so on; not
times called an engagement letter because it confirms the terms upon
signed back to the paralegal by
which the paralegal is engaged—that is, hired—by the client). A retainer
the client
agreement is signed by the paralegal and signed back to the paralegal by the
client. An engagement letter is not signed back to the paralegal by the client. engagement letter
• A money retainer is money paid by the client to the paralegal for future see retainer letter; sometimes
called a retainer letter
legal services and reasonable disbursements and expenses in a client
because it confirms the terms
matter. A money retainer belongs to the client, and must be held by you
upon which the paralegal is
in your mixed trust bank account for the benefit of the client until legal
engaged—that is, hired—by
services have been provided and reasonable disbursements and expenses
the client
incurred, and the client has received an invoice for them. The mixed trust
bank account is a bank account in which client money is held by the money retainer
paralegal for the benefit of the client. payment for future legal
services, which must be held
in trust for the benefit of the
client until part or all of those
A person who has not consulted with a paralegal is not a client. A person who has
services have been provided
consulted with a paralegal, but on whose behalf the paralegal has not provided legal
and invoiced to the client
services or agreed to provide legal services, is not a client.
When considering whether you may have formed a paralegal – client relationship mixed trust bank account
a trust account that holds
with a person, keep in mind the definition of “provision of legal services” at sec-
money for more than one
tions 1(5) and (6) of the Law Society Act:6
client matter; also referred to
as “mixed trust account” and
(5) For the purposes of this Act, a person provides legal services if the person
“trust account”
engages in conduct that involves the application of legal principles and legal
judgment with regard to the circumstances or objectives of a person.
Same
(6) Without limiting the generality of subsection (5), a person provides legal
services if the person does any of the following:
1. Gives a person advice with respect to the legal interests, rights or
responsibilities of the person or of another person. …
6 RSO 1990, c L.8.


If, when consulting with a person, you make a comment that may be construed as
a legal opinion with respect to some aspect of the person’s matter, you are providing
legal services to that person, and a paralegal – client relationship, with its resultant
duties, may have been formed.
Whether or not a formal retainer has been entered into, for purposes of the
definition of “client” at Rule 1.02, a person who has consulted with a paralegal
and has formed a reasonable belief that the paralegal has agreed to render legal
services on his or her behalf is a client. The person’s belief that there is an agreement
to render legal services must be reasonable. Arguably, there should be some kind of
agreement between the paralegal and the client, however informal, that a retainer
has been entered into, to support the belief. However, this is not required by either
Rule 1.02 or the definition of “provision of legal services” at section 1(5) of the Law
Society Act.
Any person who is a client of the paralegal firm of which you are a partner or
an associate is your client, regardless of whether you actually handle that person’s
work.7 A paralegal – client relationship exists between you and that client, and you owe
the client certain duties, including the duty of confidentiality and the duty to avoid
conflicts checking system conflicts of interest. A firm-wide conflicts checking system, containing the names
a list of all clients (including of all prospective and new clients along with related and instructing parties, should be
prospective clients), opposing maintained to ensure that firm members do not breach a duty owed to a client.
parties, and related parties, if
any, that is checked to ensure
that there are no conflicts of How Does a Person Become a Client?
interest on any client files
The usual stages in the process by which a person may become a near-client or a client are
1. initial contact,
2. initial consultation, and
3. paralegal – client retainer.
Initial Contact
In certain situations, a paralegal may owe certain duties to a person who does not fall
within the definition of client at Rule 1.02.
confidential information In many cases, a person’s initial contact with your firm may consist of nothing more
any information touching than a voice message or brief telephone conversation with your legal assistant. The
on the business and affairs initial contact may or may not result in a formal consultation with you about the per-
of a client acquired in the son’s legal problem and her or his objectives. Regardless of the brevity or casual nature
course of the paralegal – client of the person’s initial contact with your firm, depending upon how it is managed, at
relationship; a paralegal least two important duties may arise from it: the duty of confidentiality and the duty
has a duty to hold all such
to avoid conflicts of interest.
information in strictest
If, at the initial contact, the person shares confidential information about the
confidence and not to disclose
matter with your firm, your possession of that confidential information may give rise
it to any other person, unless
authorized to do so by the to the duty to hold the information in strict confidence and the duty to avoid conflicts
client or required to do so by of interest. Both duties continue indefinitely. Possession of the confidential information
law (Rule 3.03(1)) may itself give rise to a conflict of interest. If the information is relevant to another or
7 Rule 1.02, at “client.”


related matter in which you have been retained, your duty to disclose the information
for the benefit of your client in the other or related matter will conflict with your duty
to the person from whom the information was obtained to hold the information in
strict confidence, with the result that you may have to withdraw your services in the
other or related matter.
4. A paralegal should be cautious in accepting confidential information on an

informal or preliminary basis from anyone, since possession of the information may
prevent the paralegal from subsequently acting for another party in the same or a
related matter.
If a person’s initial contact with your firm will be with non-licensee staff, you may
wish to consider implementing a firm protocol that limits information collected at
initial contact to the correct spelling of the person’s name and a telephone number at
which the person can be reached.
Initial Consultation
The initial consultation is the stage at which a person meets or has some other form of
contact with you to discuss his or her legal matter, goals and expectations, and so on.
At this stage, the person will be expected to share confidential information with you.
For that reason, you should consider performing a conflicts search immediately after
the initial contact and before the initial consultation.
If, after reviewing the search results, you are satisfied that there is a substantial
risk that your loyalty to or representation of the client would be materially and
adversely affected by your own interest or your duties to another client, you shall
comply with your general duty to avoid actual or potential conflicts of interest by
advising the person of the existence of a conflict and, if appropriate, referring her
or him to another licensee. If there are no conflicts, the initial consultation will go
forward.
A person who has consulted with you about a legal matter but with whom a
paralegal – client retainer has not yet been entered into may be called a prospective prospective client
client.8 a person who consults a
A conflict of interest can arise at any time in a client matter. Regardless of whether paralegal regarding a legal
or not you have been retained, you should conduct a conflicts search again after issue but has not yet retained
the initial consultation, when you have more information about the client matter the paralegal and for whom the
paralegal has not yet agreed to
and other parties. If a paralegal – client retainer is entered into, you should consider
provide legal representation
conducting a conflicts search whenever a new party is added in a client matter, or at
any other critical point.
A prospective client may decline to retain you, or you may decline the retainer
because of a conflict of interest, or for some other reason, such as lack of competence.
Nonetheless, because the prospective client has shared confidential information with
you, you owe that person certain duties, those being, at a minimum, the duty of
confidentiality and the duty to avoid conflicts of interest, both of which continue
indefinitely.


BOX
3.2
DIFFICULT CLIENTS
Dealing with difficult clients can be very challenging. Difficult clients are often
extremely demanding and very hard to satisfy. They may ignore or misinterpret your
advice. They will require much more time, effort, and attention than your other
clients.
You should consider avoiding difficult clients altogether, if possible. If it is
not possible, then you must implement strategies for managing the paralegal– client
relationship.
The first step in managing a difficult client is to recognize one when you see one.
To determine whether a particular client is or may be difficult, consider whether the
client
• has come to you at the last minute, when a major deadline requiring
a lot of work (such as a procedural deadline or a limitation period) is
approaching;
• has already terminated relationships with other paralegals;
• has unrealistic expectations about the progress of the matter and its
outcomes;
• makes constant demands on you and your staff;
• is clearly motivated by malice and has instituted proceedings solely for the
purpose of injuring the other party; and/or
• questions and/or disregards your legal advice.
With a difficult client, you should consider taking careful notes of all discussions
with the client, and confirming your advice and the client’s instructions in writing
at every stage of the client matter. If the client continues to be uncooperative or to
give you inappropriate instructions, you may consider taking steps to withdraw from
representation, subject to Rule 3.08.
Keep in mind that when withdrawing from representation, you must try to min-
imize expense and avoid prejudice to the client, and do all that can reasonably be
done to facilitate the orderly transfer of the matter to another licensee.9 You shall
also notify the client in writing that you have withdrawn your services; of the rea-
sons, if any, for the withdrawal; and, in the case of litigation, that the client should
expect that the hearing or trial will proceed on the date scheduled and should retain
a new licensee promptly.10
For more information on difficult clients, search for “Dealing with the Difficult
Client” at the PracticePro website, where you will find a very useful article on this
topic by Carole Curtis.11
9 Rules 3.08(10), (11).

10 Rule 3.08(12).
11 Carole Curtis, “Dealing with the Difficult Client” (1 October 2003), online: practicePRO <https://www.practicepro.ca/
wp-content/uploads/2004/03/2004-03-difficult-clients-full-paper.pdf>.


Written Confirmation of the Paralegal–Client
Retainer
If, at the initial consultation, the prospective client decides to retain you and you agree
to represent the prospective client, you should discuss with him or her all the essential
terms of the paralegal – client retainer, including the scope of the retainer—that is, scope of the retainer
the nature and extent of the legal services to be provided; and the likely cost of those the nature and extent of the
services, including legal fees, reasonable disbursements, harmonized sales tax (HST), legal services to be provided by
and so on. the paralegal pursuant to the
paralegal – client retainer
Fees are what you charge the client for the legal services you have provided to
the client. Legal services may include legal advice, correspondence, research, drafting fees
pleadings and other documents, and time spent in court. Disbursements are out-of- the amount charged to a client
pocket expenses related to the client matter, such as court filing fees, photocopies, by a paralegal for legal services
mileage, and so on, which are paid or incurred by you on behalf of the client and for provided by the paralegal to
the client, including advice,
which you are entitled to be reimbursed.
correspondence, drafting
You must ensure that the client understands the scope of the legal services to be
pleadings and other documents,
provided; how fees, disbursements, and HST will be charged; your billing practices; and time spent in court
events of termination of the retainer; and any other terms of the paralegal – client
retainer. disbursements
expenses related to the client
You should consider preparing a written confirmation of the terms of the para-
matter that are paid by the
legal – client retainer in every new client matter that is accepted by your firm. The
paralegal on behalf of the client
written confirmation should be prepared at the outset of the paralegal – client retainer. and for which the paralegal is
A written confirmation of some kind should be prepared whether the client matter entitled to be reimbursed
involves a $60 parking ticket, an unpaid debt of $7,500, or a possible fine of $50,000
upon conviction.
2. Once the paralegal has been hired by a client for a particular matter, it is
advisable that the paralegal discuss with the client two essential terms of the
paralegal’s retainer by the client: the scope of the legal services to be provided and
the anticipated cost of those services. The paralegal should ensure that the client
clearly understands what legal services the paralegal is undertaking to provide. It is
helpful for both the paralegal and client to confirm this understanding in writing by
• a written retainer agreement signed by the client,
• an engagement letter from the paralegal, or
• a confirming memo to the client (sent by mail, e-mail or fax).
Whatever the nature of the confirmation of retainer, it should be in writing, and a copy
should be placed in the file for that client matter.
The Retainer Agreement

The retainer agreement is a contract that sets out the terms upon which the client
hires the paralegal and agrees to pay for the paralegal’s services, and the terms upon
which the paralegal agrees to provide those services to the client. It is signed by the
paralegal and the client. The purpose of the retainer agreement is to promote certainty
in paralegal – client relations.


The contents of the retainer agreement will vary, depending on the preferences of
individual paralegals and the nature of the client matter. At a minimum, the retainer
agreement should clearly specify the nature and extent of the services to be provided,
and the estimated cost of those services. Some standard terms include the following:
• the name and address of the paralegal firm;

• the name and address of the client;
• if the client is an organization, the name(s) of the individual(s) in the organization
who is authorized to give you instructions on the organization’s behalf;
• the nature and scope of the work to be performed, including key steps in the
process;
• if the retainer is a limited scope retainer, confirmation of the nature, extent, and
scope of the services to be provided;
• confirmation that you are a firm of paralegal licensees;
• confirmation of permitted areas of practice for paralegal licensees;
• confirmation that the client’s matter falls within the permitted areas of practice
for paralegal licensees;
• an estimate of the time it will take to complete key steps, if appropriate;
• the name and hourly rate of the paralegal responsible for the file;
• the names and hourly rates of other paralegals and staff who may assist with
the file;
• if you are charging a fixed fee for the service, the agreed-upon amount;
• if you are not charging a fixed fee for the service, an estimate of the
approximate cost of the legal services to be provided, with a statement of any
assumptions upon which that estimate is based;
• the amount of the initial money retainer, with confirmation that the money will
be placed in your mixed trust account;
• the circumstances in which further money retainers may be required;
• the firm’s billing policies, and the consequences of late payment;
• a request for any additional information or documents that you require from
the client;
• a term that any settlement funds payable to the client or by the client to
another person be made payable to your firm in trust;
• a term that upon receipt in your trust account of settlement funds payable to
the client and execution of full and final releases, you may create a final invoice
for outstanding fees and disbursements in the matter, pay the invoice out of the
settlement funds held in trust, and dispose of any balance remaining in trust as
instructed by the client;
• events that will terminate the retainer; and
• a stipulation that any changes to the agreement shall be in writing.
All of the terms that form the basis of the paralegal – client retainer should be dis-
cussed with the client at the initial consultation. If a money retainer was received at the
initial consultation, the retainer agreement should acknowledge receipt and confirm
that the retainer has been deposited to your mixed trust bank account.


An engagement letter and a confirming memorandum may contain many of the same
terms, as appropriate. However, these documents are not signed back by the client.
You will find a draft retainer agreement at Appendix 3.1, and a precedent engage-
ment letter at Appendix 3.2.
The Non-Engagement Letter

A prospective client is not obliged to retain you, and you are not obliged to accept
every retainer. In some circumstances (for example, a conflict of interest), you shall
decline the retainer. When no retainer is entered into, you should confirm the non- non-engagement
engagement (that is, declining to enter into an agreement for the provision of legal failure to enter into a contract
services) in writing to the person with a non-engagement letter. or agreement for legal services
The non-engagement letter should contain the following: non-engagement letter
a letter written by a paralegal
• the date of the initial consultation;
to a client confirming that, in a
• unequivocal confirmation that you have not been retained and will not be particular matter, the paralegal
providing legal services for the matter discussed in the consultation; has declined to provide legal
• the reason(s) why you will not be providing legal services in the matter (for services to the client, or the
example, unauthorized area of law, conflict of interest, unavailability, lack of client has declined to retain the
competence in the subject area, the person’s inability to pay a retainer, the paralegal
person’s decision not to retain you);
• any upcoming limitation periods or procedural deadlines of which you are
aware (in the case of a limitation period that is about to expire, you should urge
the person to take immediate action);
• a recommendation that the person seek other legal representation; and
• a list of any documents or other property that has been or will be returned to
the person, or a confirmation that you do not have any documents or other
property in your possession.
You must ensure that the person receives the non-engagement letter. If it will be
sent by registered mail, a current mailing address for the person should be obtained
at the initial consultation.
You should keep a copy of the non-engagement letter for your records. The per-
son’s information should be entered in your conflicts checking system. Your duties of
confidentiality and avoidance of conflicts of interest continue indefinitely.
For sample non-engagement letters, see Appendixes 3.3 and 3.4.

Guideline 6)
Limited scope retainers, also called “unbundled” legal services, are retainers limited scope retainer
whereby the client hires you to provide part, but not all, of the legal services required a retainer whereby the client
in a client matter. Some examples of limited scope retainers are the following: hires a paralegal to perform
one specific task, such as
• Consultation: The paralegal’s services are limited to a brief conversation, in drafting a demand letter
person or by phone, with a client to provide advice or direction with respect to
a legal issue.


• Document preparation: The paralegal’s services are limited to assisting the
client with a contract, pleading, or other legal document (for example,
preparing a defence with a proposal of terms of payment in a Small Claims
Court proceeding).
• Limited representation before a tribunal, at a mediation, and so on: The
paralegal makes a single appearance in court or at a hearing, or assists the
client with one particular stage of a matter only.
Rules 3.02(15) and (16) state:
Providing Legal Services under a Limited Scope Retainer

(15) Before providing legal services under a limited scope retainer, a paralegal
shall advise the client honestly and candidly about the nature, extent and scope of
the services that the paralegal can provide and, where appropriate, whether the
services can be provided within the financial means of the client.
(16) When providing legal services under a limited scope retainer, a paralegal shall
confirm the services in writing and give the client a copy of the written document
when practicable to do so.
3. A paralegal may provide legal services under a limited scope retainer, but
must carefully assess in each case whether, under the circumstances, it is possible
to render those services in a competent manner. Although an agreement for
such services does not exempt a paralegal from the duty to provide competent
representation, the limitation is a factor to be considered when determining the
legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation. The paralegal should ensure that the client is fully informed of the
nature of the arrangement and clearly understands the scope and limitation of the
services.
3.1 A paralegal who is asked to provide legal services under a limited scope
retainer to a client who has diminished capacity to make decisions should carefully
consider and assess in each case if, under the circumstances, it is possible to render
those services in a competent manner and in compliance with Rule 3.02 (13) and
(14).
Clients with diminished capacity are discussed in more detail below under the
heading “Client with Diminished Capacity (Rules 3.02(13), (14); Guidelines 5, 6, 7).”
See also Dan Pinnington’s article called “Unbundled Legal Services: Pitfalls to Avoid.”12
When confirming a limited scope retainer, Guideline 6 recommends using a written
retainer agreement, as opposed to an engagement letter or confirming memorandum:
12. Where a paralegal provides services to a client under a limited scope retainer, it
is very important to clearly identify the scope of the retainer, such as identifying the
services that the paralegal will and will not be providing to the client. It is advisable
that the limits of the paralegal’s retainer be clearly stated in a written retainer
agreement.
12 Dan Pinnington, “Unbundled Legal Services: Pitfalls to Avoid” (1 January 2012), online: practicePRO <https://www.
practicepro.ca/2012/01/unbundled-legal-services-pitfalls-to-avoid>.


Guideline 14, paragraph 2.1, also comments that a written retainer agreement is
particularly helpful in the circumstances of a limited scope retainer.
If it is not practicable in the circumstances to give a copy of a limited scope retainer
agreement to the client at the commencement of the retainer, arrange to provide a
copy to the client when it is possible to do so.
In addition to clearly identifying the scope of the services to be provided at the
outset of the retainer, Guideline 6 recommends the following:
12.1 For greater clarity and to avoid miscommunications, a paralegal should

confirm with the client in writing when the limited scope retainer is complete.
Where appropriate under the rules of the tribunal, the paralegal may consider
providing notice to the tribunal that the retainer is complete.
12.2 Where the limited services being provided include an appearance before a
tribunal, a paralegal must be careful not to mislead the tribunal as to the scope of
the retainer, and should consider whether disclosure of the limited nature of the
retainer is required by the rules of practice or the circumstances.
12.3 A paralegal should also consider whether the existence of a limited
scope retainer should be disclosed to the tribunal or to an opposing party or, if
represented, to an opposing party’s representatives. The paralegal may need to
obtain instructions from the client to make the disclosure.
Rule 3.02(16) with respect to limited scope retainers does not apply if the legal
services provided are captured by any of the following exemptions:
(a) legal services provided by a licensed paralegal in the course of his or her
employment as an employee of Legal Aid Ontario;
(b) summary advice provided in community legal clinics, student clinics or under
the Legal Aid Services Act, 1998;
(c) summary advice provided through a telephone-based service or telephone
hotline operated by a community-based or government funded program;
(d) summary advice provided by the paralegal to a client in the context of an
introductory consultation, where the intention is that the consultation, if the client
so chooses, would develop into a retainer for legal services for all aspects of the
legal matter; or
(e) pro bono summary legal services provided in a non-profit or court-annexed
program.13
Like any other client who has retained you, a client with a limited scope retainer is
owed the duties of competence, confidentiality, and avoidance of conflicts of interest.
The client and any related parties must be entered into your conflicts checking system.
joint retainer
an arrangement whereby a
Joint Retainer Clients (Rules 3.04(6)-(12); paralegal is hired to represent
more than one client in a
Guidelines 5, 9) matter or transaction
A joint retainer is an arrangement wherein a paralegal agrees to represent two or joint clients
more clients in the same matter. The clients in a joint retainer are called joint clients. the clients in a joint retainer
13 Rule 3.02(17).


Guideline 9 comments that representing two or more clients in the same matter
may result in a conflict of interest:
27. Acting in a joint retainer places the paralegal in a potential conflict of interest.
A paralegal has an obligation to all clients and in a joint retainer, the paralegal must
remain loyal and devoted to all clients equally—the paralegal cannot choose to
serve one client more carefully or resolutely than any other. If the interests of one
client change during the course of the retainer, the paralegal may be in a conflict of
interest.
Joint Retainers
(6) Before agreeing to act for more than one client in a matter or transaction, a
paralegal shall advise the clients that,
(a) the paralegal has been asked to act for both or all of them;
(b) no information received in connection with the matter from one client can
be treated as confidential so far as any of the others are concerned; and
(c) if a conflict develops that cannot be resolved, the paralegal cannot
continue to act for both or all of them and may have to withdraw completely.
Before agreeing to a joint retainer, you should clearly identify the clients to whom
you will be providing legal services in order to ensure that you can fulfill your duties
to them.14 Although the Rules do not require this, Guideline 9, paragraph 28, rec-
ommends that, if a joint client is unsophisticated or vulnerable, you should consider
independent legal advice recommending that the client obtain independent legal advice before consenting
impartial, confidential advice to the joint retainer to ensure that the client’s consent to the joint retainer is informed,
obtained from a competent genuine, and not obtained through coercion. Independent legal advice is impartial
licensee with no personal confidential advice obtained from a competent licensee with no personal interest in
interest in the matter; also
the matter.
called ILA
Before accepting a joint retainer, you should determine who will provide you with
instructions in the matter. You should confirm the arrangement in the retainer agree-
instructions ment. Instructions are directions or authorizations from a client to a paralegal with
directions or authorizations respect to a particular course of action to be taken in a matter.
from a client to a paralegal If one of the proposed joint clients is a client with whom you have a continu-
with respect to a particular ing relationship and for whom you act regularly, before agreeing to act for the
course of action to be taken in
continuing client and one or more other clients in a matter or transaction, you
a matter
shall advise the other joint client(s) of the continuing relationship and recommend
that the other client(s) obtain independent legal advice with respect to the joint
retainer.15
If you have advised all joint retainer clients in accordance with Rules 3.04(6) and
(7) and they are in agreement that you should act for them, you shall obtain their
consent.16 Consent to a joint retainer must be obtained from each client in writing, or
recorded through a separate written communication to each client.17
15 Rule 3.04(7).
16 Rule 3.04(8).
17 Rule 3.04(9).


BOX
3.3
CONSENT (RULE 1.02)
“Consent” means fully informed and voluntary consent after disclosure:
(a) in writing, provided that where more than one person consents, each signs
the same or a separate document recording the consent, or
(b) orally, provided that each person consenting receives a separate written
communication recording his or her consent as soon as practicable.
Contentious Issue (Rules 3.04(10)-(12))

Although all clients may consent to the joint retainer, you shall avoid acting for more
than one client if it is likely that a contentious issue will arise between them or that
their interests, rights, or obligations will diverge as the matter progresses.18
Except as provided in Rule 3.04(12), if a contentious issue arises between two
clients who have consented to a joint retainer, you must not advise either of them on
the contentious issue, and the following rules apply:
(a) The paralegal shall

(i) refer the clients to other licensees for that purpose; or
(ii) if no legal advice is required and the clients are sophisticated, advise them
of their option to settle the contentious issue by direct negotiation in which
the paralegal does not participate.
(b) If the contentious issue is not resolved, the paralegal shall withdraw from the
joint representation.19
If your clients consent to a joint retainer and also agree that if a contentious issue
arises you may continue to advise one of them, and a contentious issue does arise, you
may advise the designated client about the contentious issue. You shall refer the other
client(s) to another licensee for that purpose.20
Client with Diminished Capacity (Rules 3.02(13), (14);

Guidelines 5, 6, 7)
A client with diminished capacity is a client whose capacity to make decisions is client with diminished
impaired because of minority, mental disability, or some other reason. You shall, as far capacity
as reasonably possible, maintain a normal professional relationship with a client with a client whose capacity to make
diminished capacity.21 decisions is impaired because
of minority, mental disability, or
for some other reason
11. A paralegal must be particularly sensitive to the individual needs of a client
under a disability. The paralegal should maintain a good professional relationship
18 Rule 3.04(10).
19 Rule 3.04(11).
20 Rule 3.04(12).
21 Rule 3.02(13).


with the client, even if the client’s ability to make decisions is impaired because
of minority, mental disability or some other reason. The paralegal should also be
aware of his or her duty to accommodate a client with a disability.
12. A paralegal who is asked to provide services under a limited scope retainer to
a client under a disability should carefully consider and assess in each case how,
under the circumstances, it is possible to render those services in a competent
manner.
See also Guideline 6, paragraph 3.1.

If the disability is such that the client no longer has the capacity to manage her or
him legal affairs, you shall take appropriate steps that are within permitted practice for
paralegals to have a lawfully authorized representative appointed,22 keeping in mind
your duty of confidentiality to the client.
If a client representative has been appointed to manage the legal affairs of a client
with diminished capacity, at the outset of the relationship you should identify who
the client is and determine whose instructions should be followed. In the event that
you are required to act for both the client with diminished capacity and the client
representative, you must comply with Rules 3.04(6) to (12) regarding joint retainers.23
Acting for an Organization

If your client is an organization, you should determine which officers, employees, or
agents of the organization may properly give you instructions on the client organ-
ization’s behalf. This should be done at the commencement of the paralegal – client
relationship, and confirmed in the written confirmation of the retainer. You should also
confirm in the written confirmation of the retainer that you are acting for the organ-
ization, not for the individuals who have been designated to give you instructions on
its behalf.24
If you are retained to act for both an organization and one or more of its officers,
employees, or agents in the same matter, you must comply with Rules 3.04(6) to (12)
regarding joint retainers.25
Phantom Clients (Guideline 5)

Phantom clients are not specifically addressed in the Rules, but they are discussed in the
phantom client Guidelines. A phantom client is an individual who believes that you are representing
a person who believes that a him or her, even though you have not been formally retained and may be completely
paralegal is representing him or unaware that the phantom client considers you to be her or his legal representative.
her, even though the paralegal Nonetheless, depending on what happened during your initial encounter with the
has not been formally retained
phantom client, a paralegal – client relationship—with its attendant duties—may exist
and may be unaware of the
between you and the phantom client.
person’s belief
22 Rule 3.02(14).
24 Ibid at para 6.
25 Ibid at para 7.


[9.] Phantom clients are problematic because they may in fact be clients or
prospective clients to whom the paralegal owes duties, yet they are phantoms that
the paralegal does not see. This situation may arise when something the paralegal
has done, or a conversation the paralegal has had, has led a person to believe that
the paralegal represents that person. One of the common ways in which phantom
clients are created is through a person who consults with the paralegal on a matter
but does not clearly indicate whether he or she wants to hire the paralegal or
pursue the matter.
[10.] To avoid the problem of phantom clients, it is helpful for the paralegal to
clearly identify who is the client, what is the client’s matter, and who is to provide
instructions. To avoid collecting phantom clients, a paralegal should also clearly
communicate his or her role with anyone the paralegal deals with as a paralegal. It
may be helpful for the paralegal to
• confirm in writing whether or not the paralegal will provide legal services for a
person who has consulted with him or her and refer to any limitation periods
(i.e. retainer agreement, engagement or non-engagement letter),
• inform third party individuals who attend meetings with a client that the
paralegal represents the client only, and not the third party,
• discourage clients from relaying legal advice to third parties, and
• avoid discussing legal matters outside the working environment or a working
relationship.
You will find a sample letter advising third parties that you are not acting for them
at Appendix 3.5.
BOX
3.4
IS THERE A PARALEGAL – CLIENT RELATIONSHIP?
For discussion, there follow some situations that may create a paralegal – client
relationship. When answering the questions, consider the Rule 1.02 definition of
“client”:
“client” means a person who:
(a) consults a paralegal and on whose behalf the paralegal provides or

agrees to provide legal services; or
(b) having consulted the paralegal, reasonably concludes that the paralegal
has agreed to provide legal services on his or her behalf
and includes a client of the firm of which the paralegal is a partner or

associate, whether or not the paralegal handles the client’s work.
Also consider the definition of “provision of legal services” at section 1(5) of the
Law Society Act:
Provision of legal services

(5) For the purposes of this Act, a person provides legal services if the person
engages in conduct that involves the application of legal principles and legal
judgment with regard to the circumstances or objectives of a person.


Fact Situation 1
Ms W calls your office and speaks to your legal assistant about a possible Human
Rights Code26 complaint. Your legal assistant takes down Ms W’s name, telephone
number, address, and some details about the matter, including information about
some of the incidents that have led Ms W to believe that she may have grounds for
a complaint.
Your firm has no record of Ms W in its conflicts checking system.
You call Ms W and leave a message on her voice mail, asking her to return your
call. She does not return your call, and you never hear from her again.

Is Ms W your client?
Fact Situation 2
Mr X meets with you at your office to consult with you about a Highway Traffic
Act27 ticket. Based on the information he provides, you recommend that he consider
requesting a meeting with the prosecutor to negotiate a plea to a lesser charge with
fewer demerit points. He becomes agitated, and insists that he wants to have a trial
in order to “fight the ticket,” as he puts it. You advise him of your fee if the matter
goes to trial, and tell him that if you are to represent him you will require a money
retainer by certified cheque or credit card within 48 hours, because the deadline for
filing a notice of intention to appear and plead is 10 days away.
You do not hear from Mr X for several weeks. Then, one day, he phones you. He
is very angry. He tells you that he was convicted of the Highway Traffic Act charge in
his absence and now faces a fine and demerit points. “You were supposed to stay
on top of all this!” he yells. “Instead, you didn’t even show up to set a date for the
trial! I’m going to report you to the Law Society!”
1. Is Mr X your client?
2. How could you have avoided the misunderstanding about the terms of the
retainer?
Fact Situation 3
One morning at a local supermarket you run into a neighbour in the produce
section, where you are selecting a head of lettuce. Although you do not know
her well, Neighbour stops to chat with you. She tells you that she has com-
menced an action in Small Claims Court against a mutual acquaintance, to
whom you have in the past provided legal services in an unrelated matter. She
seems upset about the situation. She gives you a detailed account of her rea-
sons for commencing the action, makes several disparaging comments about
the defendant, and from time to time asks you for your opinion. You listen
politely, but do not comment. Several times you try to change the subject.
When you do so, Neighbour becomes defensive and makes remarks such as
26 RSO 1990, c H.19.

27 RSO 1990, c H.8.


“You think I’ve done the wrong thing, don’t you?” and “I can tell that you think
I don’t have a good case.” You do not respond to these comments.

Is Neighbour your client?
Fact Situation 4
Mr Brown arranges to meet with you about a legal issue. He is accompanied to
the initial consultation by his neighbour, Mr Pink. Throughout the consultation,
Mr Pink takes a very active role, interrupting Mr Brown when he is talking, remind-
ing Mr Brown of details he has forgotten, asking you questions, and so on. Mr Pink
appears to have some legal issues in common with those of Mr Brown.

What issues are raised by Mr Pink’s conduct?
Fact Situation 5
Mr Yi and his daughter, Violet, come to your office to discuss a residential tenancies
problem. Violet is the person who phoned to set up the appointment. At the outset
of the consultation, Violet explains to you that her father speaks Cantonese, but
is not fluent in English, and that she is there to assist him. You neither speak nor
understand Cantonese.
Violet then explains the situation to you in English. From time to time, Mr Yi inter-
rupts. Sometimes he asks her a question in Cantonese, and sometimes he speaks
directly to you, repeating or clarifying something in English. His English is imperfect,
but you can understand what he says.
For the most part, however, it is Violet who speaks. She explains that Mr Yi rents
the legal basement apartment in his house to a tenant who has been there for two
years. Mr Yi is a widower and lives alone on the main floor of the house. There is no
written tenancy agreement. Mr Yi never had any problem collecting the rent until
two months ago, when the tenant lost her job. Violet says that they want you to
commence an application to evict the tenant.

What ethical and professional issues arise in this situation?
Client Identification and Verification

(By-Law 7.1)
By-Law 7.1, Part III, applies to retainers in matters for new or existing clients entered
into on or after December 31, 2008.28
Unless otherwise noted, all references to section numbers in the following discus-
sion refer to By-Law 7.1, Part III.
28 By-Law 7.1, pt III, ss 21, 25.


Compliance with the By-Law 7.1 Client Identification
and Verification Requirements
By-Law 7.1, Part III, applies only to matters in which a licensee is retained to provide
professional services to a new client or an existing client with a new matter on or after
December 31, 2008.
Part III does not apply to client matters that were in existence prior to December
31, 2008; however, if you were retained in a new or related matter for any of those
clients on or after December 31, 2008, you must comply with the client identification
and verification requirements in Part III.
What Is the Difference Between Client Identification and Client

Verification?
client identification Client identification refers to information you must obtain from clients regarding
information that By-Law 7.1 who they are and what they do. Client verification refers to information you must
requires a licensee to obtain obtain in order to confirm that clients are who they say they are.
from a client about who the Licensees shall obtain and record client identification information in accordance
client is and what the client with the criteria set out in section 23(1) for the client in every new client matter
does
opened on or after December 31, 2008. This includes existing clients who are retained
client verification in new or related matters on or after December 31, 2008.
information that By-Law 7.1 If you engage in or give instructions for the receiving, paying, or transferring of
requires a licensee to obtain in non-exempt funds on behalf of a client, then you shall obtain the additional client
order to confirm that the client identification information set out in section 23(2) and you shall comply with the client
is who they say they are
verification requirements set out in section 23(4).29
funds Funds means cash, currency, securities, negotiable instruments, and other finan-
cash, currency, securities, cial instruments that indicate a person’s title or interest in them.30 A negotiable
negotiable instruments, and instrument is an unconditional order or promise to pay an amount of money, which
other financial instruments can be transferred—for example, cheques or banknotes (paper money).
that indicate a person’s title or
interest in them
Exemptions for Certain Licensees (s 22(2))
negotiable instrument
an unconditional order or
You are not required to comply with the section 23 client identification and verification
promise to pay an amount requirements if:31
of money, which can be
(a) you provide professional services to, or engage in or give instructions in
transferred—for example,
respect of the receiving, paying, or transferring of funds, on behalf of your
cheques or banknotes (paper
money)
employer;
(b) you provide professional services, or engage in or give instructions in
respect of the receiving, paying, or transferring of funds, as an agent for
another licensee who has already complied with the client identification and
verification requirements set out in section 23;
(c) you provide professional services to, or engage in or give instructions in
respect of the receiving, paying, or transferring of funds, on behalf of a client
29 By-Law 7.1, pt III, s 22(1)(b).

30 Ibid, s 20.
31 Ibid, s 22(2).


who was referred to you by another licensee who has already complied with
the client identification and verification requirements set out in section 23; or
(d) you provide professional services in the course of acting as a duty counsel
under the Legal Aid Services Act, 1998,32 as a duty counsel providing
professional services through a duty counsel program operated by a not-for-
profit organization, or as a provider of legal aid services through the provision
of summary advice under the Legal Aid Services Act, 1998.
With respect to (b) and (c) above, you shall require the licensee for whom you are
acting as agent or from whom you received the referral to confirm in writing that that
licensee has already complied with the section 23 client identification and verification
requirements. You shall obtain a copy of every document used to verify the identity of
an individual or organization for purposes of section 23(4), including a copy of every
document used by an individual acting on behalf of the licensee under section 23(11)
(see s 23(13)).
Exemptions for Certain Types of Funds (s 22(3))

You do not have to comply with the section 23(2) client identification requirements or
the section 23(4) client verification requirements in respect of funds which are
(a) paid to or received from a financial institution, public body, or reporting

issuer (see definitions below);
(b) received from the trust account of another licensee or a lawyer;
(c) received from a peace officer, law enforcement agency, or other public
official acting in an official capacity;
(d) paid or received pursuant to a court order;
(e) paid for a fine or penalty;
(f) paid or received as a settlement in a proceeding;
(g) paid or received for professional fees, disbursements, expenses, or bail; or
(h) paid, received, or transferred by electronic funds transfer.33
Note that in the above cases, you are still required to comply with the client identifica-
tion requirements set out in section 23(1).
Clients Who Are Exempt from Client Identification and

Verification (s 22(4))
You are not required to comply with the section 23(2) client identification requirements
and the section 23(4) client verification requirements if your client is
1. a financial institution,
2. a public body, or
3. a reporting issuer.34
32 SO 1998, c 26.
33 By-Law 7.1, s 22(3).
34 Ibid, s 22(4).


Note that you are still required to comply with the client identification requirements
set out in section 23(1).
For purposes of sections 22(3) and (4), “financial institution” means
(a) a bank to which the Bank Act (Canada) applies,

(b) an authorized foreign bank within the meaning of section 2 of the Bank Act
(Canada) in respect of its business in Canada,
(c) a cooperative credit society, savings and credit union, credit union or caisse
populaire that is regulated by an Act of a province or territory of Canada,
(d) an association that is regulated by the Cooperative Credit Associations Act
(Canada),
(e) a company to which the Trust and Loan Companies Act (Canada) applies,
(f) a loan or trust corporation regulated by an Act of a province or territory of
Canada,
(g) a ministry, department or agent of the government of Canada or of a province
or territory of Canada if the ministry, department or agent accepts deposit liabilities
in the course of providing financial services to the public, or
(h) a subsidiary of an entity mentioned in clauses (a) to (g) where the financial
statements of the subsidiary are consolidated with the financial statements of the
entity.35
For the purposes of sections 22(3) and (4), “public body” means
(a) a ministry, department or agent of the government of Canada or of a province

or territory of Canada,
(b) a municipality incorporated by or under an Act of a province or territory of
Canada, including a city, town, village, metropolitan or regional municipality,
township, district, county, rural municipality, any other incorporated municipal body
and an agent of any of them,
(c) a local board of a municipality incorporated by or under an Act of a province or
territory of Canada, including any local board as defined in the Municipal Act and
any similar body incorporated under the law of another province or territory,
(d) an organization that operates a public hospital and that is designated by the
Minister of National Revenue as a hospital authority under the Excise Tax Act
(Canada) or an agent of the organization,
(e) a body incorporated by or under an Act of Canada or of a province or territory
of Canada for a public purpose, or
(f) a subsidiary of an entity mentioned in clauses (a) to (e) where the financial
entity.36
For the purposes of sections 22(3) and (4), “reporting issuer” means
(a) a reporting issuer within the meaning of an Act of a province or territory of

Canada in respect of the securities law of the province or territory,
35 Ibid, s 20.
36 Ibid.


(b) a corporation whose shares are traded on a stock exchange designated under
section 262 of the Income Tax Act (Canada) and that operates in a country that is a
member of the Financial Action Task Force on Money Laundering, or
(c) a subsidiary of an entity mentioned in clause (a) or (b) where the financial
entity.37
BOX
3.5
REMINDER: PUBLIC AND PRIVATE COMPANIES
A public company (referred to as a “reporting issuer” in By-Law 7.1, Part III) is a public company
corporation whose shares are for sale to the general public. Public companies are a corporation whose shares are
subject to rigorous disclosure requirements under securities legislation. for sale to the general public
A private company (also called a closely held company) is a corporation whose and which is subject to rigorous
shares are not publicly traded. Its incorporating documents (1) restrict the right to disclosure requirements under
sell shares, (2) limit the number of its shareholders (excluding employees) to 50, and securities legislation
(3) prohibit public trading of its shares or securities. private company
a corporation whose shares are
not publicly traded; also called
a closely held company
The Criteria for Client Identification and Verification (s 23)
The criteria for identifying and verifying clients are set out in Table 3.1. Verification of
identity forms for individuals, organizations, third-party beneficiaries, and principals
are available at the Law Society website. You will find samples, adapted for use in
paralegal firms, at Appendixes 3.6 and 3.7.
Client Verification, Non-Face-to-Face (s 23(8))

You may use this form of client verification if you engage in or give instructions for
the receiving, paying, or transferring of non-exempt funds on behalf of an individual
client who is elsewhere in Canada or elsewhere in the world, so that you are unable
to receive instructions from the client face-to-face.38 To comply with the section 23(4)
verification requirements, you must obtain an attestation from a commissioner of oaths
or a guarantor certifying that he or she has verified the client’s identity by looking at
the appropriate independent source documents.39
As section 23(9) states, any of the following may be used as a guarantor:
A. a dentist,
B. a physician,
C. a chiropractor,
D. a judge,
E. a magistrate or a justice of the peace,
F. a lawyer,
G. a licensee (in Ontario),
H. a notary (in Quebec),
37 Ibid.
38 Ibid, s 23(8).
39 Ibid, ss 23(7), (8).


TABLE 3.1 By-Law 7.1 Criteria for Client Identification and Verification
Client Identification Requirements

You shall obtain the following information about the client when you are retained to provide legal services to the client
(ss 22(1)(a), 23(1)).
Whether the client is an individual or an organization, if the client is acting for or representing a third party, you shall obtain
the following information for the third party also (s 23(1)8).
Individual Organization*
Full name Full name
Business address and business telephone number, if Business address and business telephone number
applicable
Home address and home telephone number The organization’s incorporation or business identification number,
if applicable
The place of issue of its incorporation or business identification
number, if applicable
Occupation(s)—does not have to be employment The general nature of the type of business or activity engaged in by
If the client refuses to provide this information, you the client
must inform the client that you will be in breach of The name, position, and contact information for the person(s)
By-Law 7.1 if you do not obtain this information and authorized to provide instructions in the matter
will be obliged to decline the retainer.
Additional Client Identification Requirements When Handling Non-Exempt Funds (s 22(1)(b))
Individual Organization* (s 23(2))
None The name and occupation(s) of each director of the organization
(other than an organization that is a securities dealer)
The name, address, and occupation(s) of each person who owns
25% or more of the organization or of the shares of the organization
You must make reasonable efforts to obtain the information above.
Asking your client may be sufficient, or you may consult the corpo-
rate minute books if available or an online corporate registry service.
Client Verification Requirements When Handling Non-Exempt Funds
Verification shall take place immediately after you Verification shall take place no later than 60 days after you first
first engage in or give instructions for the receiving, engage in or give instructions for the receiving, paying, or transfer-
paying, or transferring of funds (s 23(5)). ring of funds (s 23(6)).
You shall take reasonable steps to verify the identity of the client and any third party that the client is acting for or represent-
ing using what you reasonably consider to be reliable, independent source documents, data, or information (s 23(4)).
You should take reasonable steps to comply with the verification requirement as early as possible in the retainer.
You shall verify the identity of an individual who is authorized to give instructions on behalf of a client who is an organization.
Whether the client is an individual or an organization, if the client is acting for or representing a third party, you shall verify
the identity of the third party also.
You shall complete and sign a verification of identity form for each individual, organization, third-party beneficiary, or princi-
pal, with photocopies of the documentation relied upon attached.


Examples of Independent Source Documents (s 23(7))
An original, government-issued identification that is If the client is a private company or society created under legisla-
valid and has not expired, and that you reasonably tive authority:
believe to be independent and reliable, such as: ˆ a certificate of corporate status
ˆ a driver’s licence ˆ an annual filing
ˆ a birth certificate ˆ a similar record obtained from a public body confirming the organiza-
ˆ a passport tion’s existence
ˆ a provincial or territorial health card (if such use is not If the client is a trust, partnership, or other organization that is
prohibited by law) not registered in any government registry, a constating document
confirming the organization’s existence, such as:
ˆ a trust agreement
ˆ a partnership agreement
ˆ articles of association
ˆ other similar records confirming the organization’s existence as an
organization
You shall retain a record of the information that you obtain and copies of all documents used to verify
client identification for the longer of:
ˆ the duration of the paralegal–client relationship, and for as long as is necessary to complete the work for which
you were retained; and
ˆ six years following the completion of the work for which you were retained.
* For purposes of By-Law 7.1, Part III, any of the following is considered to be an organization: a body corporate, a partnership, a fund, a trust, a co-operative, or
an unincorporated association.
I. a notary public,
J. an optometrist,
K. a pharmacist,
L. an accountant,
M. a professional engineer,
N. a veterinarian,
O. a police officer,
P. a nurse,
Q. a school principal.
You must exercise due diligence in confirming that the guarantor making the
attestation is a member of one of these professions. Due diligence means exercising due diligence
the prudence and vigilance that a reasonable and prudent paralegal would exercise in a legal context, exercising
in similar circumstances. In the case of a guarantor making an attestation, you should prudence and vigilance in
consider obtaining some form of confirmation of their professional status. determining the facts
The attestation must be printed on a legible photocopy of the document. It must
include the name, occupation, address, and signature of the attestor, and the type
and number of the document seen by the attestor.40 A sample attestation form for use
by paralegal firms is available at the Law Society website. You will find the text of a
sample attestation in Appendix 3.8.
40 Ibid, s 23(10).


Client Verification, Use of Agent (s 23(11))
You may use this form of client verification if you engage in or give instructions for
the receiving, paying, or transferring of non-exempt funds on behalf of a client who is
outside of Canada, or as an alternative to the section 23(8) procedure for verifying the
identity of an individual client who is elsewhere in Canada.
If the agent acting on your behalf is not an employee of your firm or a paralegal
who provides legal services through your firm, you shall enter into a written agreement
with the agent specifying the steps that the agent will be taking on your behalf to
comply with the verification requirements.41 The agent may provide the information to
you in the form of an attestation. See Appendix 3.8 for a sample attestation.
Previous Client Verification (s 23(12))

For an individual client, a licensee complies with the section 23(4) verification require-
ment if the licensee has already verified the individual client’s identity and recognizes
the individual.42
For a client that is an organization, a licensee complies with the section 23(2) identi-
fication requirements and the section 23(4) verification requirements if the licensee has
already complied with those requirements with respect to the organization.43
Documentation (ss 23(13), (14))

You shall obtain copies of every document used to verify the identity of any individual
or organization, including copies of documents used by an agent for client verification
under section 23(11).44
You shall keep records of all information obtained for purposes of client identifica-
tion and verification, including copies of supporting documents, attestations, and so
on, for the longer of
(a) the duration of the paralegal – client relationship, and for as long as is
necessary to provide service to the client; and
(b) at least six years following completion of the work for which you were
retained.45
Criminal Activity (ss 24, 27)

By-Law 7.1, section 24, states:
Criminal activity, duty to withdraw at time of taking information

24. If a licensee, in the course of complying with the client identification or verification
requirements set out in section 23, knows or ought to know that he or she is or would
be assisting a client in fraud or other illegal conduct, the licensee shall,
(a) immediately cease to and not further engage in any activities that would
assist the client in fraud or other illegal conduct; and
41 Ibid, s 23(11).
42 Ibid, s 23(12)(a).
43 Ibid, s 23(12)(b).
44 Ibid, s 23(13).
45 Ibid, s 23(14).


(b) if the licensee is unable to comply with clause (a), withdraw from the
provision of the licensee’s professional services to the client.
By-Law 7.1, section 27, states:
Criminal activity, duty to withdraw after being retained

27. If a licensee while retained by a client knows or ought to know that he or she
is or would be assisting the client in fraud or other illegal conduct, the licensee
shall,


CHAPTER SUMMARY
A client is a person who consults with you and on whose interest. The terms of a joint retainer should be confirmed
behalf you provide or agree to provide legal services, or a in writing in a retainer agreement; this includes, but is not
person who, having consulted you, reasonably concludes limited to, who will provide instructions and how a con-
that you have agreed to provide legal services on her or his tentious issue that is not related to the provision of legal
behalf. In some circumstances, certain duties, including the services will be dealt with.
duty of avoidance of conflicts of interest, may arise between Clients with diminished capacity are clients whose
a paralegal and a non-client. A paralegal should be cautious ability to make decisions is diminished because of minority,
when accepting information from a person on an informal mental disability, or some other reason. A party who has
or preliminary basis. If it is confidential information, your been identified as being of diminished capacity must have a
possession of that information may prevent you from repre- client representative appointed to protect the party’s inter-
senting another party in the same matter or a related matter. est in a legal matter. You must identify who the client is and
The paralegal – client relationship is to be distinguished determine who will provide instructions in the matter at the
from the paralegal – client retainer. The paralegal – client outset of the relationship. If you are representing both the
relationship encompasses a broad range of duties owed to client with diminished capacity and the client representa-
the client by you as a fiduciary. The paralegal – client retainer tive, you must comply with the rules for joint retainers.
is the contractual relationship between you and the client If your client is an organization, you should determine,
in a particular client matter. It is established when the and confirm in the retainer agreement or engagement
client agrees to retain you and you agree to provide legal letter, which individuals within the organization may
services to the client. The terms of the paralegal – client properly give you instructions on the client organization’s
retainer should be discussed with the client at the initial behalf. You should also confirm that you are acting for the
consultation, and confirmed in writing by way of a retainer organization, and not for the individuals who have been
agreement or engagement letter. designated to give you instructions on its behalf.
At the initial consultation, you may decide not to pro- A phantom client is a person who believes that you are
vide legal services to a person, or the person may decide representing him or her, even though you have not been
not to retain you. You must confirm the non-engagement formally retained and may be completely unaware that
in writing to the person with a non-engagement letter. she or he considers you his or her legal representative.
When you have completed the services provided for in Although no retainer has been entered into with the
the retainer agreement, the paralegal–client retainer ends for phantom client, if you discussed legal matters or acquired
that client matter. However, your duties to the client pursu- confidential information during your encounter with that
ant to the paralegal–client relationship continue indefinitely. person, your possession of that information may give rise
In your practice, you shall maintain a conflicts checking to certain duties, those being, at a minimum, the duty of
system, and the names of all clients and prospective clients, confidentiality and avoidance of conflicts of interest, both
along with any related parties, should be entered into it. of which continue indefinitely.
A joint retainer is an arrangement wherein a paralegal Effective December 31, 2008, licensees shall comply
agrees to represent two or more clients in the same matter. with the client identification and verification requirements
Before agreeing to a joint retainer, you must clearly identify set out in By-Law 7.1, Part III. See Table 3.1 above, under
your prospective clients to ensure that you can fulfill your the heading “The Criteria for Client Identification and
duties to them, including the duty to avoid conflicts of Verification (s 23).”
KEY TERMS
client, 66 due diligence, 87 instructions, 76
client identification, 82 duty of loyalty, 65 joint clients, 75
client verification, 82 duty of service, 64 joint retainer, 75
client with diminished capacity, 77 engagement letter, 67 limited scope retainer, 73
confidential information, 68 fees, 71 mixed trust bank account, 67
conflicts checking system, 68 funds, 82 money retainer, 67
disbursements, 71 independent legal advice, 76 negotiable instrument, 82


non-engagement, 73 phantom client, 78 retained, 67
non-engagement letter, 73 private company, 85 retainer, 66
paralegal – client relationship, 66 prospective client, 69 retainer letter, 67
paralegal – client retainer, 66 public company, 85 scope of the retainer, 71
1. Define the following words and phrases. Provide the 3. Your client is a small private company, owned
source of your definition, including the section or rule by a wife and husband, specializing in property
number. management of multi-unit residential buildings. You
a. client handle their Landlord and Tenant Board matters.
b. client identification The original retainer agreement with the corporation
does not designate a person from whom you are to
c. client with diminished capacity
obtain instructions. In the past, you have always taken
d. client verification instructions from the wife, but recently the husband
e. confidential information has become more active in the business and has
f. conflicts checking system begun instructing you as well. His management style
g. conflict of interest is very different from his wife’s, and sometimes the
h. engagement letter instructions he gives you are different from those you
have already received from her.
i. funds
What should you do?
j. instructions
4. You work in a firm of four paralegal licensees. You
k. non-engagement
are contacted by Mrs Q. She was referred to you by
l. non-engagement letter another licensee in the firm, who represented her in
m. paralegal – client relationship a Workplace Safety and Insurance Board matter three
n. paralegal – client retainer years ago. She wants to meet with you to discuss
o. phantom client representation of her 15-year-old son, D, who is the
p. private company defendant in a Small Claims Court action for damages
related to alleged vandalism to property. You
q. public company
personally have never acted for D or for Mrs Q before.
r. retainer agreement
a. What step should you take before the initial
s. scope of the retainer consultation with D and Mrs. Q?
2. Mr A calls your office and speaks to your legal b. What are your obligations under By-Law 7.1,
assistant about a Highway Traffic Act matter. The Part III: Client Identification and Verification?
trial is scheduled for the following Wednesday. Your
c. What are some professional and procedural
assistant takes down Mr A’s name, telephone number,
issues that arise because of D’s age?
and some details about the matter, including the
charge and the trial date. He tells Mr A that you will 5. Tirth is an acquaintance from your neighbourhood.
call him, and that a money retainer will be required He has contacted you to ask if you would prepare a
before you will accept the retainer. Defence on his behalf in a Small Claims Court matter.
He was served with a Plaintiff’s Claim over a week
Later the same day, you call the number that Mr A
ago. He is now heading off on business for ten days,
gave your legal assistant. You get a message that the
and will not have time to meet the filing deadline.
number you are calling is out of service.
However, he intends to self-represent in the matter
On the morning of the trial date, you receive a moving forward. What must you do to comply with
phone call from Mr A. He tells you that he is at the the Rules if you agree to prepare only the Defence in
courthouse. “Where are you?” he says. “Today’s the this matter?
trial. Your assistant said you’d be here.”
a. Are you required to appear on Mr A’s behalf at
the hearing?
b. Is Mr A your client?


APPENDIX 3.1 Retainer Agreement
[firm letterhead]
Retainer Agreement
General
[date] Client matter no. [ ]
[client name and address]
Dear [name of client]:
Re: [description of client matter]
1. Description of Services
You have asked us, and we have agreed, to act for you in the matter described below. On
[date], we met to discuss the scope of our firm’s intended representation. The purpose of
this letter is to summarize and confirm the terms of your engagement of us.
You retain us to represent you in connection with [brief description of matter].
We anticipate that our representation will involve taking the following steps on your
behalf. [Using paragraph format, describe the steps to be taken in the matter. Keep
your language simple and your sentences short and to the point.]
At this time we have not been retained to represent you generally or in connection with
any other matter. We will not be acting for you in any other matters.
We will work with you toward your desired outcome. However, all legal actions are
subject to many possible variables, such as the availability of substantiating documents
and other evidence, and the evidence brought forward by the other side—all of which
affect the decision of a judge. For us to work toward your desired outcome, it will be
necessary for you to abide by the terms described in this letter.
We will try to return your phone calls and respond to your letters as quickly as possible.
Our practice is to return phone calls within two business days. If a matter is urgent,
please contact us immediately and we will make every effort to respond to you on an
urgent basis.
We wish to caution you that email is not a secure form of communication. You should
use it for routine inquiries only.
…/2


APPENDIX 3.1 Retainer Agreement continued
Retainer Agreement
Page 2 of 4
2. Licensed Paralegals
This will confirm that we are a firm of paralegal licensees. We are not lawyers. At
present, paralegals are permitted to provide legal services in the following areas: the
Small Claims Court; Provincial Offences Act matters in the Ontario Court of Justice;
matters before federal and provincial tribunals; in summary conviction court in matters
where the maximum penalty is a fine of not more than $5,000.00 and/or imprisonment
for a term of not more than six months; and in claims for statutory accident benefits
within the meaning of the Insurance Act, excluding a claim of an individual who has or
appears to have a catastrophic impairment within the meaning of the Statutory Accident
Benefits Schedule.
We are satisfied that your matter falls within a permitted area of practice for paralegal
licensees.
We expect that most of the work will be performed or supervised by myself. I may be
assisted by [name], an associate paralegal. For routine tasks, we may be assisted by a
field placement student. We reserve the right to assign other paralegals in our firm to
perform legal services if in our judgment that becomes necessary or desirable.
3. Fees
Our fee will be based principally on the time spent by us on your behalf. Records of all
time will be kept and accounts will then be prepared and sent to you periodically.
Our hourly rates range from $75.00 to $90.00 for my associate to $100.00 for me.
While we expect that our fee will be calculated on the basis of our regular hourly rates,
we reserve the right to charge more in appropriate cases, such as pressing circumstances,
the requirement for work outside normal business hours, exceptionally successful or
efficient representation, or special demands on us.
Based on the information provided by you at our initial consultation, we estimate that
our total fees (not including disbursements and expenses) will be $[amount]. [Describe
the facts and circumstances that form the basis for the estimate.] Our estimated fees
may change should facts or circumstances arise which are unknown to us at this time.
We will advise you promptly if there is any likelihood of an increase or decrease in our
fees.
You will be charged HST on fees and HST on some disbursements.


APPENDIX 3.1 Retainer Agreement continued
Retainer Agreement
Page 3 of 4
4. Expenses and Allocated Charges (also called disbursements)

You will also be responsible for reimbursing us for expenses (also called disbursements)
we incur on your behalf and office charges allocated to your file. These include long-
distance calls, faxes, postage, deliveries, travel expenses, photocopying, filing and search
charges, and all other reasonable out-of-pocket expenses and office charges. We do not
charge for staff overtime on evenings or weekends in order to meet time deadlines.
5. Billing
We will invoice you from time to time as the matter proceeds. You will receive a final
invoice upon completion of all services described in this agreement.
Payment is due on all of our accounts when rendered. If any account is not paid within
30 days, interest will be charged on the outstanding balance at a rate of 3.0% per annum
from the date of the account, until paid.
6. Settlement Funds
During our initial consultation we discussed and you agreed that, in the event the matter
settles, any settlement funds payable to you or by you to another party shall be paid to us
in trust. If the settlement funds are payable to you, any outstanding fees and
disbursements in the matter may be invoiced and paid in full out of the funds in trust.
Any balance will then be disbursed to you unless you direct us otherwise in writing.
7. Money Retainer
Before we begin work on your behalf, we require a money retainer for future legal fees
and proper disbursements and expenses in the amount of $[amount]. This will confirm
that at the conclusion of our consultation you paid us a money retainer in this amount
by credit card. The retainer will be placed in our trust account and will serve as a source
of payment for all or part of our account or accounts when rendered. You will be asked
to replenish the retainer from time to time. Any unused portion will be returned to you
upon the completion or termination of our services.


APPENDIX 3.1 Retainer Agreement concluded
Retainer Agreement
Page 4 of 4
8. Termination of Legal Services

You have the right to terminate our services to you upon written notice to us.
Subject to our obligations to you to maintain proper standards of professional conduct,
we reserve the right to terminate our services to you for good reasons that include, but
are not limited to:
(a) if you fail to cooperate with us in any reasonable request;
(b) if our continuing to act for you would be unethical or impractical;
(c) if our retainer has not been paid; or
(d) if you fail to pay our accounts when rendered.
If you terminate our services or we withdraw, you would only have to pay our fees and
expenses up until the time we stopped acting for you.
9. Agreement
Any changes to this agreement must be made in writing.
If you want us to proceed on the basis described above, please sign the enclosed copy of
this letter in the space provided and return it to us in the enclosed self-addressed
envelope. If you decide that you do not want us to proceed on your behalf in this matter,
please inform us promptly in writing.
Yours truly,
[paralegal firm name]
[signature]
[signatory name]
Paralegal
I have read and understood the retainer agreement, and agree to its terms.
___________________________________ _____________________
Signatory Date
Adapted from the precedent retainer agreement at <http://www.lawpro.ca>.


APPENDIX 3.2 Engagement Letter
[firm letterhead]
June 14, 20— Client matter no. 17-632
Mrs Maxine Chong

67 Harmony Avenue
Toronto, ON M4J 1J3
Dear Mrs. Chong:
Re: LeeAnn Kingman

Small Claims Court action
Further to our meeting on June 12, 20—, this will confirm that you have retained us to
act in the above matter. By a tenancy agreement dated January 13, 20—, Ms Kingman
rented your basement apartment from February 1, 20—, until April 17, 20—. The
monthly rent was $775.00 including water, heat, and hydro. Ms Kingman did not pay a
last month’s rent deposit, and during her tenancy Ms Kingman paid no rent. As well, she
harassed you and interfered with your reasonable enjoyment of the premises, causing
damage to your health. Ms Kingman vacated the premises on April 17, 20—.
You have instructed us to commence an action immediately in Small Claims Court for
$25,000.00 for unpaid rent, damage to property, and pain and suffering, plus interest and
costs. You have agreed to waive any amounts you might recover over and above
$25,000.00 in order to bring the matter within the monetary jurisdiction of the Small
Claims Court jurisdiction.
We anticipate that our representation will involve taking the following steps on your
behalf. We will file a plaintiff ’s claim and serve the claim on the defendant. If Ms
Kingman does not file a defence within the time prescribed by the Rules of the Small
Claims Court, we will request that the clerk note her in default. We may then require the
clerk to sign judgment for the liquidated portion of the claim (that is, the unpaid rent
plus certain other out-of-pocket expenses). With respect to the unliquidated portion of
the claim (pain and suffering, associated medical expenses, and so on), default judgment
may be obtained by a motion in writing for an assessment of damages or by attendance
at an assessment hearing.
…/2


APPENDIX 3.2 Engagement Letter continued
Page 2 of 4
If Ms Kingman files a defence without a proposal of terms of payment, we will make

every effort to settle the matter, subject to your instructions. A settlement conference
will be scheduled for no later than 90 days after Ms Kingman’s defence is filed. If the
matter does not settle, we will prepare for and represent you at trial.
If Ms Kingman files a defence with a proposal of terms of payment for all or part of the
money claimed, we will review the proposal with you and consider whether you should
accept or dispute the proposal. If we are unable to reach an agreement with Ms Kingman
as to any disputed portion of the claim, it will go to settlement conference and then
to trial.
If you do not dispute Ms Kingman’s proposal of terms of payment for the undisputed
portion of the claim within 20 days after service of the defence, you will be deemed to
have accepted the proposal. The usual form of a proposal of terms of payment is for
money to be paid in installments over time. If this is the form that Ms Kingman’s
proposal (if any) takes, the money will be paid into court by Ms Kingman, and the court
clerk will pay it out to you at intervals.
If you dispute the proposal, we will request a terms of payment hearing, at which the
court may make an order as to terms of payment by Ms Kingman.
In either case, if Ms Kingman fails to make payment as agreed or ordered, we will take
steps to obtain default judgment for the portion of the claim for which Ms Kingman
admits liability.
We also wish to confirm our agreement as to fees and payment. We charge $100.00 per
hour for legal services. You will also be billed for any out-of-pocket expenses (also
known as disbursements) that may be incurred, such as court filing fees and so on. We
will advise you before incurring any extraordinary disbursements. At the moment, the
only extraordinary disbursement we anticipate is the fee for your treating physician’s
report.
We will bill you approximately monthly, depending on the amount of work that is
completed on your file during that period of time. The precise amount of time and
expenses that will be required to represent you in this matter cannot be predicted at this
time. However, as we discussed, if Ms Kingman fails to file a defence and we obtain
default judgment for both the liquidated and unliquidated portions of the claim, we
estimate that our total fees will not exceed $1,500.00 exclusive of disbursements. If


Page 3 of 4
Ms Kingman files a defence and the matter goes to trial, or if she files a defence with a
proposal of terms of payment for part of the claim, and the matter goes to trial for the
disputed portion of the claim, we estimate that our total fees will not exceed $3,500.00
exclusive of disbursements. We are not guaranteeing that we can accomplish the work
for this sum, but are representing to you that the amount appears reasonable in the
circumstances. We will advise you before undertaking any procedures that will
substantially increase the amount of your fees, and will obtain your instructions
to proceed.
This will confirm that you have provided us with a money retainer of $1,000.00. This
money has been placed in our trust account and will be applied to payment of invoices
when delivered. You may be asked to provide further money retainers from time to time
as the matter goes forward. As we discussed at our meeting, you will please forward
originals of the tenancy agreement and the Notice of Early Termination to us as soon as
possible. We will also require your medical records and invoices for the period of
Ms Kingman’s tenancy and afterward. These documents will be returned to you when
the matter is concluded.
We will make every effort to reach a settlement with Ms Kingman in accordance with
your instructions. However, we cannot guarantee success or that we will be able to reach
a negotiated settlement. This will confirm that you have agreed that, if the matter does
settle in your favour, the settlement funds are to be paid to us in trust and any
outstanding fees or disbursements may be paid from those funds upon delivery of a final
invoice. We will then pay any unused portion to you.
You have the right to terminate our services to you upon written notice to us. Subject to
our obligations to you to maintain proper standards of professional conduct, we reserve
the right to terminate our services to you for good reasons that include, but are not
limited to:
(a) if you fail to cooperate with us in any reasonable request;
(b) if our continuing to act for you would be unethical or impractical;
(c) if our retainer has not been paid; or
(d) if you fail to pay our accounts when rendered.


Page 4 of 4
If you terminate our services or we withdraw, you would only have to pay our fees and
expenses up until the time we stopped acting for you.
As I advised you, we are a paralegal firm. We are not lawyers. Paralegals are restricted to
providing legal services in permissible areas of law only. You have indicated to us that
you wish to proceed in the Small Claims Court. Paralegals are permitted to represent
litigants in the Small Claims Court.
I trust that the foregoing is satisfactory. If you have any questions or concerns, please
contact me.
I will try to respond to your phone calls and emails as quickly as possible. If a matter is
urgent, I will make every effort to respond to you on an urgent basis.
Yours very truly,

Prior Mustafa LLP
Joseph Mustafa
Joseph Mustafa
Paralegal


APPENDIX 3.3 Non-Engagement Letter (Conflict of Interest—Client Declines Retainer)
[firm letterhead]
[date] [file number]
Dear [client name]:
Re: [client matter]

As we discussed during our [telephone conversation/meeting/initial consultation] on
[date], a preliminary search revealed that [paralegal firm name] has a conflict of
interest in this matter. We provided you with details of the conflict and asked you to
decide whether you wished to consent to the retainer based on this disclosure. You have
now advised that you do not wish to retain us.
Please be aware that whatever claim you have may be barred by the passage of time.
Since time limitations may be critical to your case, we recommend that you immediately
contact another paralegal or a lawyer for assistance regarding your matter. If you do not
have another paralegal or lawyer in mind to represent you, the Law Society maintains on
its website (<https://lso.ca/>) a directory of paralegals and lawyers who may be available
to assist you, or you may wish to contact the Law Society Referral Service at [current
contact numbers at <https://lso.ca/>].
We confirm that we do not have any documents belonging to you. All documents were
returned to you at the conclusion of the initial consultation.
Although we were not able to assist you in this matter, we hope that you will consider
[paralegal firm name] in the event that you require legal services in the future.
Thank you again for your interest in this firm.
Yours truly,
[signature]
[signatory name]
Paralegal
Adapted from the Law Society of British Columbia website (<http://www.lawsociety.bc.ca>)

and the Law Society of Ontario website (<https://lso.ca/>).


APPENDIX 3.4 Non-Engagement Letter (Conflict of Interest—Paralegal Firm Declines Retainer)
[firm letterhead]
[date] [file number]
Dear [client name]:
Re: [client matter]

As we discussed during our [telephone conversation/meeting/initial consultation] on
[date], before [paralegal firm name] could agree to represent you in this matter, we had
to investigate whether this representation could adversely affect existing or former
clients’ interests or whether there might be some other reason that we would be unable
to adequately represent your interests.
On [date], we performed a conflict of interest check and found that our firm does
indeed have a conflict of interest in this case. Unfortunately, we therefore cannot
represent you and we must decline to do so in this matter.
Please be aware that whatever claim you have may be barred by the passage of time.
Since time limitations may be critical to your case, we recommend that you immediately
contact another paralegal or a lawyer for assistance regarding your matter. If you do not
have another paralegal or lawyer in mind to represent you, the Law Society maintains on
its website (<https://lso.ca/>) a directory of paralegals and lawyers who may be available
to assist you, or you may wish to call the Law Society Referral Service at [current
contact numbers at <https://lso.ca/>].
We confirm that we do not have any documents belonging to you. All documents were
returned to you at the conclusion of the initial consultation.
Although we were not able to assist you in this matter, we hope that you will consider
[paralegal firm name] in the event that you require legal services in the future.
Thank you again for your interest in this firm.
Yours truly,
[signature]
[signatory name]
Paralegal
Adapted from the Law Society of British Columbia website (<http://www.lawsociety.bc.ca>)

and the Law Society of Ontario website (<https://lso.ca/>).

APPENDIX 3.5 Model “I am not your legal representative” Letter
[firm letterhead]
[delivery method]
[date]
[non-client address]
Dear [name of recipient]:
Re: [description of matter]
This letter is further to our meeting on [date]. This will confirm that we will be representing
[name the party or parties the firm will represent] in connection with [provide details
regarding the nature of the firm’s mandate or the transaction].
Although we understand that you have a personal involvement in this matter and we
anticipate that we may have further contact with you, this letter will confirm that you,
personally, are not our client. For this reason, we recommend that you consult with your own
legal representative regarding issues that may affect your personal interests in this matter.
We further confirm that we have not received any confidential information regarding your
interests in the matter. [Where communications with the non-client involved document or
property exchange: We are returning with this letter those documents we reviewed regarding
this matter and confirm that we are not in possession of any documents or property belonging
to [non-client]].
Please confirm your receipt of this letter by signing and returning a copy to my attention.
Thank you for your prompt response.
Yours truly,
[signature]
[signatory name]
Paralegal
I, [non-client name], acknowledge receipt of the above letter and my agreement with
its contents.
___________________________________ _____________________
Signature Date
Adapted by the Task Force from portions of a precedent letter by William Freivogel, an American expert on conflict
matters, and precedent from the Law Society of British Columbia website (<http://www.lawsociety.bc.ca>).


APPENDIX 3.6 Verification of Identity (Individual)

Paralegals
VERIFICATION OF IDENTITY
(For use where the client or third party is an individual)
Name:
Address (home):
Telephone number (home):
Address (business):
Telephone number (business):
Occupation(s):
Original Document Reviewed—Copy Attached
___ Driver’s licence
___ Birth certificate
___ Passport
___ Other (specify type):
Meeting date identity verified:
Identity verified by:
Date file reviewed by paralegal:
Name of paralegal:


APPENDIX 3.7 Verification of Identity (Organization)

Licensed Paralegals
VERIFICATION OF IDENTITY
(For use where the client or third party is an organization)
Name:
Address (business):
Telephone number (business):
Incorporation or Business Identification Number:
Place of issue of number:
Type of business or activity:
Person Authorized to Instruct
Name:
Position:
Telephone number:
___ Driver’s licence
___ Birth certificate
___ Passport


APPENDIX 3.7 Verification of Identity (Organization) continued
Verification of Identity (Organization)

Page 2 of 2
Names and occupation(s) of directors:

[list]
Names, addresses, and occupation(s) of owners or shareholders owning a 25% interest or

more of the organization or shares in the organization:
[list]
___ Certificate of corporate status
___ Annual filings of the organization (specify type):
___ Partnership agreement
___ Trust agreement
___ Articles of association
Meeting date identity verified:
Identity verified by:
Date file reviewed by paralegal:
Name of paralegal:


APPENDIX 3.8 Attestation for Verification of Identity When the Client or Third Party
Is Present in Canada and Is Not Instructing the Paralegal Face-to-Face
INSTRUCTIONS
The Attestor should photocopy the identity document being used to verify identity and
ensure that it is legible, is unexpired, and shows the name of the person whose identity is
being verified, the number of the document, the name of the issuing authority, the date
of issue, and a photograph of the person.
The Attestor will print the following attestation on the photocopy and date and sign
the attestation.
I, the Attestor named below, hereby certify to [name of paralegal receiving

the attestation] that I met with [name of person] on [date] and verified this
person’s identity by examining the original of this person’s identity document,
of which a photocopy is contained on this page. The photograph in the identity
document is a true likeness of the said person, and to the best of my knowledge
and belief the identity document that I examined is valid and unexpired.
Attested to by me at , on , 20 .
Signature of attestor:
Printed name of attestor:
Title or profession of attestor:
Address of attestor for service:
Telephone number of attestor:


Duty to Clients
4
The Paralegal as Fiduciary. . . . . . . . . . . . . . . . . 109
Learning Outcomes
Competence and Quality of Service
(Rule 3.01; Guideline 6). . . . . . . . . . . . . . . . 110 After reading this chapter, you will understand:
Advising Clients (Rule 3.02; Guideline 7) . . . . 119 • The role of the paralegal as fiduciary.
• Competence and quality of service.
Confidentiality (Rule 3.03; Guideline 8) . . . . . 132
• Advising clients.
Disclosure of Confidential Information • Client service and communication.
(Rules 3.03(1), (4)-(10)) . . . . . . . . . . . . . . . . 137 • Honesty and candour.
Personal Information Protection and • The duty of confidentiality.
Electronic Documents Act (PIPEDA) . . . . . 144 • Justified or permitted disclosure.
Conflicts of Interest (Rule 3.04; • Avoidance of conflicts of interest.
Guideline 9). . . . . . . . . . . . . . . . . . . . . . . . . . 146 • Preservation of client property.
• Withdrawal from representation.
Transfers Between Paralegal Firms
(Rule 3.05; Guideline 9). . . . . . . . . . . . . . . . 163
Transactions with Clients (Rule 3.06;
Guideline 9). . . . . . . . . . . . . . . . . . . . . . . . . . 166
Client Property (Rule 3.07; By-Law 9;
Guideline 10). . . . . . . . . . . . . . . . . . . . . . . . . 170
Withdrawal from Representation
(Rule 3.08; Guideline 11). . . . . . . . . . . . . . . 173
Chapter Summary. . . . . . . . . . . . . . . . . . . . . . . . 183
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Application Questions . . . . . . . . . . . . . . . . . . . . 184
107

Duty to Clients
A year has passed since Rajni began working at Price Nevertheless, it weighed heavily on her mind through-
and Associates as a paralegal. She has taken on many out the day. She certainly wasn’t fond of Sebastian, but
files and is preparing for her first trial. she cared about the reputation of the firm.
Earlier in the week, while waiting for her lunch Meanwhile, Rajni began to feel intensely pressured
order at a popular café near the office, Rajni ran into about her upcoming trial. She had been losing sleep
her colleague, Sebastian, who had also come in to for weeks now, was not eating properly, and some
grab a sandwich. He suggested that they sit down and of her other files had been put on hold in favour of
eat together. She had intended to take the food back trial preparation. She was doubting her ability to cross-
to her office and continue working, but nevertheless examine, and she was continuously revising her closing
agreed. statement.
Over lunch, Sebastian began describing a file he On the morning of trial, Rajni found a bright-eyed
recently took on involving two local business partners Renata Plush, her client, waiting for her on the steps of
who were suing a competitor for the tort of passing the courthouse, confident in her pending success. Ms
off. He mentioned them by name and said he’d heard Plush, an interior designer, was being sued by a local
one of them had had an affair with a local politician. restaurateur, Ernesto Fusuli, who was alleging breach of
The café was very busy that day. Rajni scanned the contract. Mr Fusuli’s first language was not English, and
restaurant quickly, concerned that someone may have he was self-representing.
overheard the comment. She hoped his remarks were Several months ago, he had hired Ms Plush to rede-
drowned out by the buzz of conversation in the air. sign his downtown Italian restaurant and claimed that
Rajni shot Sebastian a stern look, widening her eyes at she had overcharged him on several aspects of the
him. She immediately changed the subject. project, having procured items of significantly infer-
Later that day, Rajni popped her head into ior quality to those that were contemplated under the
Sebastian’s office and asked, “Since you’re acting for agreement. Ms Plush, however, categorically denied
both partners on that matter you mentioned at lunch, the allegations and insisted that she delivered exactly
how did you approach the conflict of interest issue? according to the terms of the agreement. Unfortu-
I’m just curious because I haven’t yet had a file where nately, the contract was silent on the specific items
it’s come up.” that were in question, and instead provided a general
“I’m not worried about that,” Sebastian said dismis- description of the work to be completed and the con-
sively. “They’re not in a dispute with each other. They’re tract price.
in a dispute with the moron they’re suing. The partners’ Over coffee before court commenced, Ms Plush
interests are aligned.” leaned forward and lowered her voice, saying, “I
“Right, but they may not continue to be aligned and, probably should have mentioned this sooner—I may
anyway, the Rules require that you …” have made some ‘substitutions’ along the way.” She
“Rajni,” Sebastian interrupted impatiently, “can’t used air quotes when saying “substitutions” and gave
you see I’m busy right now? I really don’t have time Rajni a wink. Rajni felt a flash of panic streak through
for this.” Rajni awkwardly turned away and headed her body. She had no idea the extent to which Ms
back to her office. “Fine,” she thought to herself, “it’s Plush had misled her. Their matter was second on the
not my problem,” and she settled back into her work. docket.


1. Which of the Paralegal Rules of Conduct1 did 3. Are there concerns about Rajni’s competence
Sebastian violate during his lunch with Rajni? in this scenario?
2. How might a conflict of interest arise on 4. What should Rajni do in light of the
Sebastian’s passing-off file? What steps should information Ms Plush has shared with her right
Sebastian have taken to address the issue? before trial? Cite the applicable Rules and
Cite the applicable Rules and Guidelines.2 Guidelines.
The Paralegal as Fiduciary

The paralegal – client relationship is governed by a set of overlapping obligations and
responsibilities.
Many of a paralegal’s duties and obligations to a client arise out of the fiduciary
relationship between the paralegal and the client. A fiduciary relationship is fiduciary relationship
a relationship of absolute trust and confidence between two persons, in which a relationship of trust and
one person (the fiduciary) is required to act with scrupulous good faith, hon- confidence between two
esty, and candour for the benefit of the other person (the beneficiary). In the persons in which one person
paralegal – client relationship, the paralegal is the fiduciary and the client is the (the fiduciary) is required to
act with scrupulous good faith,
beneficiary. The paralegal must put the client’s interests ahead of her or his own
honesty, and candour for the
in all dealings with the client. The client is entitled to place absolute confidence,
benefit of the other person
reliance, and trust in the paralegal.
The fiduciary relationship between the paralegal and the client gives rise to a special fiduciary
standard of care, or ethical duty, based in the law of trusts. The paralegal must comply a person who must act with
scrupulous good faith, honesty,
with this special standard of care for the benefit of the client. The standard of care
and candour for the benefit of
imposes the duties of honesty and candour, confidentiality, avoidance of conflicts
another person, who places
of interest, and accounting for client property. These duties characterize the para- absolute trust and confidence in
legal – client relationship and are codified in the Paralegal Rules of Conduct (the Rules).3 the fiduciary
The duties are explained and commented upon in the Paralegal Professional Conduct
beneficiary
Guidelines (the Guidelines).4
a person who benefits from the
efforts of another
[Rules].
2 Law Society of Ontario, Paralegal Professional Conduct Guidelines (1 October 2014; amendments current to
24 May 2018), online: <https://lso.ca/about-lso/legislation-rules/paralegal-professional-conduct-guidelines>
[Guidelines].
3 Supra note 1.
4 Supra note 2.
CHAPTER 4 Duty to Clients 109


Competence and Quality of Service
General
Section 41 of the Law Society Act5 sets the general standard for professional compe-
tence on the part of licensees:
Interpretation—standards of professional competence

41. A licensee fails to meet standards of professional competence for the purposes
of this Act if,
(a) there are deficiencies in,
(i) the licensee’s knowledge, skill or judgment,
(ii) the licensee’s attention to the interests of clients,
(iii) the records, systems or procedures of the licensee’s professional
business, or
(iv) other aspects of the licensee’s professional business; and
(b) the deficiencies give rise to a reasonable apprehension that the quality of
service to clients may be adversely affected.
The public has certain reasonable expectations of paralegal licensees. Guideline

6 comments:
1. A licensed paralegal is held out to be knowledgeable, skilled and capable

in his or her permissible area of practice. A client hires a legal service provider
because the client does not have the knowledge and skill to deal with the legal
system on his or her own. When a client hires a paralegal, the client expects
that the paralegal is competent and has the ability to properly deal with the
client’s case.
2. A paralegal should not undertake a matter without honestly feeling competent
to handle it or being able to become competent without undue delay, risk, or
expense to the client. This is an ethical consideration and is distinct from the
standard of care that a tribunal would invoke for purposes of determining
negligence. [Emphasis added.]
• • •
4. Competence is founded upon both ethical and legal principles. Competence
involves more than an understanding of legal principles; it involves an
adequate knowledge of the practice and procedures by which such principles
can be effectively applied. To accomplish this, the paralegal should keep
abreast of developments in all areas of law in which the paralegal provides
legal services.
Paralegals who fail to meet standards of professional competence when providing

legal services to the public may cause harm to their clients, as well as to their business
partners and associates. They may also bring the paralegal profession and the justice
system into disrepute.
5 RSO 1990, c L.8.


In addition to any judicial remedies sought by a client who has suffered damage or
harm as a result of a paralegal’s lack of competence, an incompetent paralegal may
also be subject to disciplinary action by the Law Society.6
The Competent Paralegal (Rules 3.01(1)-(3))

The duty of competence is mandatory. A paralegal shall perform any services under-
taken on a client’s behalf to the standard of a competent paralegal.7 You are required
to recognize a task for which you lack competence and the disservice that would be
done to the client by undertaking that task. You shall not undertake a matter without
being competent to handle it or being able to become competent without undue
delay or expense to the client.8 You shall not undertake to represent a client in a
matter unless you are familiar with the legal principles and procedures governing the
applicable area of law, or are confident that you can become familiar with those legal
principles and procedures in a timely and cost-effective manner.
In some cases you may be competent to represent the client at the commencement
of the retainer but, because of circumstances or developments as the client matter
goes forward that could not have been foreseen at its outset, your knowledge, skills,
and attributes are no longer adequate. Rule 3.01(3) states:
(3) If a paralegal discovers that he or she lacks the competence to complete the
task for which he or she has been retained, the paralegal shall:
(a) decline to act;
(b) obtain the client’s consent to retain, consult or collaborate with another
licensee who is competent and licensed to perform that task; or
(c) obtain the client’s consent for the paralegal to become competent without
undue delay, risk or expense to the client.
The client’s consent shall be fully informed and voluntary after disclosure. It shall be
given in writing or confirmed in writing.9
As discussed in the Rules of Professional Conduct for lawyers,10 when assessing
your own competence, keep in mind that a lack of competence on your part may
do the client a disservice, bring discredit to the paralegal profession, and bring the
administration of justice into disrepute.11 The best time to turn your mind to this is
before accepting the retainer, at which time you may decline to act if you are not
satisfied that you possess the knowledge and skills required by the client matter. If
you decline to act, you should consider recommending that the client seek other legal
representation. You should also consider sending a non-engagement letter to the
client, confirming that you have not accepted the retainer and stating your reasons.
Sometimes a matter takes a direction that could not have been anticipated when
you accepted the retainer. If you are no longer competent to act for a client because
of unforeseen developments in an ongoing matter, and if the options stated in
6 Ibid, s 42.
7 Rule 3.01(1).
8 Rule 3.01(2).
9 Rule 1.02 at “consent.”
11 Ibid, adapted from s 3.1-2, Commentary, para [14].


paragraphs (b) and (c) of Rule 3.01(3) are not workable in the circumstances, you shall
withdraw from representation. Subject to restrictions upon withdrawal in criminal and
quasi-criminal cases or the direction of a tribunal, lack of competence is a ground for
mandatory withdrawal of legal representation.12
Regardless of expertise, a paralegal licensee shall not provide legal services to a
person in an unauthorized area of law. Persons with such matters may be directed to
the Law Society Referral Service or referred to a competent lawyer.

Guideline 6)
A limited scope retainer is a retainer whereby the client hires you to provide part,
but not all, of the legal services required in a client matter. The duty to provide
competent representation applies to limited scope retainers. Limited scope retainers
are discussed in Chapter 3 under the heading “Limited Scope Retainers (Rules 3.02
(15)-(17); Guideline 6).”
Who Is Competent? (Rule 3.01(4))

competent paralegal A competent paralegal is a paralegal who has and applies the relevant knowledge,
a paralegal who has and skills, and attributes appropriate to each matter undertaken on behalf of a client.
applies the relevant skills, Competence includes:
attributes, and values
appropriate to each matter (a) knowing general legal principles and procedures and the substantive law and
undertaken on behalf of a client procedures for the legal services that the paralegal provides;
(b) investigating facts, identifying issues, ascertaining client objectives, considering
possible options, and developing and advising clients on appropriate courses of
action;
(c) implementing, as each matter requires, the chosen course of action through the
application of appropriate skills, including,
(i) legal research,
(ii) analysis,
(iii) application of the law to the relevant facts,
(iv) writing and drafting,
(v) negotiation,
(vi) alternative dispute resolution,
(vii) advocacy, and
(viii) problem-solving;
(d) representing the client in a conscientious, diligent, and cost-effective manner;
(e) communicating with the client at all relevant stages of a matter in a timely and
effective manner;
(f) answering reasonable client requests in a timely and effective manner;
(g) ensuring that all applicable deadlines are met;
(h) managing one’s practice effectively;
(i) applying intellectual capacity, judgment, and deliberation to all functions;
12 Rule 3.08(5)(c).


(j) pursuing appropriate training and development to maintain and enhance
knowledge and skills;
(k) adapting to changing requirements, standards, techniques and practices; and
(l) complying in letter and in spirit with all requirements pursuant to the Law
Society Act.13
BOX
4.1
SHOULD YOU ACCEPT THE RETAINER?
Fact Situation
You are a licensed paralegal specializing in Highway Traffic Act14 matters. You also
do Small Claims and some residential tenancies work.
You have been consulted by a residential tenant who has applied to the Landlord
and Tenant Board for an abatement (reduction) of rent on grounds that the landlord
failed to maintain the residential premises. The matter went to voluntary mediation,
but did not settle. A hearing date has been set for two weeks’ time. The tenant has
come to you because she does not feel comfortable about attending at a hearing
without representation.
The residential tenancies matters that you have handled have all been landlord
applications for termination of the tenancy for non-payment of rent. You have sev-
eral other matters that require your attention in the next few weeks, including a
settlement conference, a Small Claims Court trial, and several appearances before
the Ontario Court of Justice.

Should you accept the retainer?
Knowledge and Investigation (Rules 3.01(4)(a), (b))

A competent paralegal is required to know both general legal principles and proced-
ures and the substantive law and procedures for the legal services the paralegal pro-
vides.15 Substantive law is the statutory law and jurisprudence that creates, defines, substantive law
and interprets the rights and obligations of those who are subject to it. Procedural the statutory law and
law sets out the methods or procedures for enforcement of those rights or for seeking jurisprudence that creates,
redress for a wrong or harm. defines, and interprets the
In addition to knowing the law, the competent paralegal shall determine what the rights and obligations of those
who are subject to it
client wants, review the facts and identify issues, consider available options, and advise
the client as to possible courses of action. Guideline 6 comments: procedural law
the rules for judicial
5. The competent paralegal will ensure that only after all necessary information has enforcement of a person’s legal
been gathered, reviewed and considered does he or she advise the client as to the rights and obligations as set
course(s) of action that will most likely meet the client’s goals, taking care to ensure out in substantive law
13 Rule 3.01(4).
14 RSO 1990, c H.8.
15 Rule 3.01(4)(a).


that the client is made aware of all foreseeable risks and/or costs associated with
the course(s) of action.
6. Unless the client instructs otherwise, the paralegal should investigate the matter
in sufficient detail to be able to express an opinion, even where the paralegal
has been retained to provide services under a limited scope retainer. If the
circumstances do not justify an exhaustive investigation with consequent expense
to the client, the paralegal should so state in the opinion.
7. A paralegal should only express his or her legal opinion to a client when it is
the legal opinion that the paralegal holds and it is provided to the standard of a
competent paralegal.
8. A paralegal should be wary of providing unreasonable or over-confident
assurances to the client, especially when the paralegal’s employment or retainer
may depend upon advising in a particular way.
In other words, you cannot structure your opinion in a way that makes it a market-
ing tool with the object of obtaining the client’s business. If some or all of the client’s
objectives are not achievable, the client must be advised.
This process of evaluating facts and issues with reference to client goals and expect-
ations should happen at every stage of the proceeding as your knowledge of the facts,
issues, and possible outcomes evolves.
Applying Skills and Judgment (Rules 3.01(4)(c), (i), (l))

Having reviewed the client matter, advised the client of possible courses of action
as well as potential risks and foreseeable costs, and obtained the client’s reasonable
instructions, a competent paralegal then uses his or her judgment and the appropriate
skills to implement the chosen course(s) of action. Appropriate skills include legal
research, analysis, application of legal principles to the relevant facts, writing and
drafting, negotiation, alternative dispute resolution, advocacy, and problem solving.
In this context, judgment means the capacity to assess situations or circumstances
carefully and impartially, and to make decisions that are reasonable and sensible in
view of the client’s circumstances.
15. When serving clients, or otherwise acting in a professional capacity, a
competent paralegal should understand the legal concepts, issues and facts[;] give
careful consideration to the matters he or she handles[;] and make decisions that
are reasoned and make sense in the client’s circumstances.
professional judgment The competent paralegal must also apply her or his professional judgment to
the competent paralegal’s client matters, as well as to other activities as a paralegal. A competent paralegal
capacity to assess situations or knows the Paralegal Rules of Conduct, understands why each rule is important, and
circumstances carefully and to uses this knowledge and understanding to guide her or his own conduct.16
make sensible decisions about Discussing the purpose of the Paralegal Rules of Conduct, the Introduction to the
client matters and her or his
Guidelines comments:
own conduct
2. … Neither the Rules nor the Guidelines can cover every situation; they should be
interpreted and applied with common sense and in a manner consistent with the


public interest and the integrity of the profession. It is expected that a paralegal will
exercise his or her professional judgment in interpreting the Guidelines, keeping
in mind the paralegal’s obligations to the client, the court or tribunal and the Law
Society. [Emphasis added.]
Client Service and Communication (Rules 3.01(4)(d)-(g))

A competent paralegal represents the client in a conscientious, diligent, and cost-effective
manner; ensures that all applicable deadlines and obligations are met; and communicates
effectively with the client. Effective communication includes communicating with the
client at all relevant stages of a matter in a courteous and timely manner, as well as
dealing with reasonable client requests in a courteous and timely manner.
9. Client service is an important part of competence. Most of the complaints

received by the Law Society relate to client service, such as not communicating with
a client, delay, not following client instructions, and not doing what the paralegal
or lawyer was retained to do.
10. Rule 3.01(4) contains important requirements for paralegal – client
communication and service. In addition to those requirements, a paralegal can
provide more effective client service by
10.1 keeping the client informed regarding his or her matter, through all
relevant stages of the matter and concerning all aspects of the matter,
10.2 managing client expectations by clearly establishing with the client what
the paralegal will do or accomplish and at what cost, and
10.3 being clear about what the client expects, both at the beginning of the
retainer and throughout the retainer.
11. A paralegal should meet deadlines, unless the paralegal is able to offer a
reasonable explanation and ensure that no prejudice to the client will result.
Whether or not a specific deadline applies, a paralegal should be prompt in
prosecuting a matter, responding to communications and reporting developments
to the client. In the absence of developments, contact with the client should be
maintained to the extent the client reasonably expects.
A written confirmation of the terms of the paralegal – client retainer at the outset
of the retainer by way of a retainer agreement or engagement letter is an excellent
communication tool for managing client expectations about the legal services to be
provided by the paralegal and the cost of those services, along with the other terms
of the contractual relationship, including billing practices, the money retainer, events
that would lead to termination of the retainer, and so on. Retainer agreements and
engagement letters are discussed in Chapter 3. You will find samples at Appendixes 3.1
and 3.2.
When providing services under a limited scope retainer, it is very important to
identify clearly the services that will be provided and those that will not be provided to
the client under the limited scope retainer. A written retainer agreement, signed back
to you by the client, is recommended in these circumstances.
You should be cautious about giving unqualified assurances at the commencement
of the paralegal – client relationship, when you may not have complete information
about the client matter. Any opinions about outcomes that you provide at the


commencement of the retainer should clearly state the facts, law, circumstances, and
assumptions upon which you are relying, and should be confirmed in writing by way
of a retainer agreement, engagement letter, or confirming memorandum.
During the course of the retainer, as your knowledge of the facts and issues evolves,
you may find that the outcomes you predicted at the outset of the retainer are no
longer achievable. As well, your client’s expectations may change over time, so that
the retainer agreement or engagement letter no longer addresses the client’s goals.
In either of these cases, you must advise the client of the situation immediately and
obtain the client’s instructions. You should confirm the client’s instructions and the
particulars of any new agreement in writing.
Sometimes the economics of a paralegal practice may not appear to be condu-
cive to effective client communication. If you operate a busy legal services practice
that depends on competitive fees and high volume to generate profit, you may be
disinclined to confirm every client retainer in writing, or to keep clients in ongoing
matters informed of important developments. However, appropriate technology will
assist you in building and maintaining a digital library of precedent documents. More
importantly, it is sound practice management to take these steps. Omitting them
may adversely affect the quality of your service to clients, cause damage to the para-
legal – client relationship, and bring the paralegal profession into disrepute.
BOX
4.2
REMINDER: WRITE IT DOWN!
Keep a Record and File It
In his online article “Is anyone listening? Preventing Communications Claims” (pub-
lished by the Lawyers’ Professional Indemnity Company in LawPRO Magazine),17
Tim Lemieux notes that one of the biggest issues that arises when a client complains
about a lawyer’s failure to follow instructions is the lawyer’s failure to document
those instructions.
One of the most important things to remember when consulting with a client is
to always keep a record of the client’s instructions. When the consultation is con-
cluded, put the record of the client’s instructions in the client file. A written record
of client instructions gives a licensee something to refer to and follow when imple-
menting client instructions. It also protects the licensee in the event that a dispute
arises with the client as to what the client’s instructions were.
During the initial consultation, and subsequently as the client matter goes for-
ward, you should take notes of all conversations with and advice to the client, and of
the client’s instructions to you. You should keep a written record of every telephone
conversation.
Copies of all notes and correspondence should be kept in an appropriate subfile
in the client file. This will assist you in the event of an action in negligence and/or
disciplinary action by the Law Society.
17 Tim Lemieux, “Is Anyone Listening? Preventing Communications Claims” (1 September 2011), online: LawPRO
Magazine <https://www.practicepro.ca/2011/09/is-anyone-listening-preventing-communications-claims>.


Paralegal Practice Tip: Initial Client Consultation
During the initial consultation, you should take detailed notes of what the client says
and of what you say to the client. You may wish to use a standard checklist that
covers topics such as
• confirmation that the client’s matter falls within authorized areas of para-
legal practice;
• how the client heard about you (for marketing purposes);
• confirmation or verification of the client’s identity;
• confidentiality;
• conflicts of interest;
• the nature of the client’s problem;
• approaching procedural deadlines or limitation periods;
• whether the client’s matter falls within your areas of professional
competence;
• the client’s goals and expectations;
• if you feel competent to give an opinion at the initial consultation, the
client’s options; and
• the legal services you can provide, with an estimate of their cost.
If the client indicates that he or she wishes to retain you, you should go over the
terms of the paralegal – client retainer with the client at the initial consultation, then
confirm those terms in writing by way of a retainer agreement or engagement letter.
Practice Management (Rule 3.01(4)(h))

A competent paralegal is required to manage her or his practice effectively. Effective
practice management means having staff, systems, policies, and procedures in place
to ensure that you can meet your professional obligations.
13. In a busy office, practice management includes ensuring that there is sufficient
staff to assist the paralegal in fulfilling his or her professional responsibilities—for
example, ensuring that communications from clients, other paralegals or lawyers
are responded to and that financial records are kept in accordance with the
requirements of By-Law 9.
14. Competent practice management requires that the paralegal effectively manage
his or her staff, time, finances and client information. A paralegal should consider
the following practice management tools:
14.1 workplace policies and business procedures for staff,
14.2 planning and reminder systems, and time docketing systems for time
management, and
14.3 filing organizational and storage systems for management of client
information and a system for effectively identifying and avoiding conflicts.


Appropriate technology can be very helpful in managing a busy legal services practice
efficiently and cost-effectively.
Practice management is discussed in more detail in Chapter 7.
Continuing Education and Professional Development (Rules

3.01(4)(j), (k); By-Law18 6.1)
A competent paralegal pursues appropriate training and development to maintain
knowledge and skills in order to adapt to changing requirements, standards, tech-
niques, and practices.
17. A paralegal is responsible for remaining competent throughout his or her

career. A competent paralegal understands that maintaining competence is an
ongoing professional commitment that requires the paralegal to constantly assess
his or her knowledge and skills.
As of this writing, the Law Society requires licensees who are practising law or
providing legal services in the 100 percent fee-paying category to complete at least
12 hours of continuing professional development (CPD) in each calendar year. 19 Law-
yers and paralegals in other fee categories who are providing legal services to clients,
including as a life member or on a pro bono basis in a program or Legal Aid clinic
approved by Pro Bono Ontario, are also subject to the mandatory CPD requirement.20
The 12-hour minimum consists of a minimum of 3 “professionalism hours” and a
minimum of 9 “substantive hours.” Professionalism hours are time spent on topics
related to ethics, professionalism, and/or practice management. Activities intended
to be attributed to professionalism hours must be accredited by the Law Society of
Ontario. Substantive hours are time spent on substantive or procedural law topics
and related skills. Some non-legal subjects may be eligible for use as substantive
hours if they are relevant to the licensee’s practice and professional development.
Between January 1, 2018 and December 31, 2020, paralegals and lawyers must
complete a total of 3 professionalism hours that focus on advancing equality, diversity,
and inclusion in the legal and paralegal professions. In every year thereafter, paralegals
and lawyers must complete 1 professionalism hour that deals with issues of equality,
diversity, and inclusion. These hours count toward the 3 CPD professionalism hours
required in each year.
A licensee to whom the CPD requirement applies is required to report annually to
the Law Society with respect to eligible CPD activities completed in that year.
For current information on CPD, refer to By-Law 6.1 and to the Continuing Profes-
sional Development Requirement materials at the Law Society website.21
18 Law Society of Ontario, By-Laws (1 May 2007), as amended, online: <https://lso.ca/about-lso/legislation-rules/by-laws>

[By-Laws].
19 Ibid, By-Law 6.1.
20 Ibid, s 2(1).
21 Law Society of Ontario, Continuing Professional Development Requirement, online: <https://lso.ca/lawyers/enhancing-

competence/continuing-professional-development-requirement>.


Failing to Be Competent
As a paralegal, you should not undertake a matter without honestly believing that you
are competent to handle it, or that you can become competent to handle it without
undue delay, risk, or expense to the client. This is an ethical consideration. It is different
from the standard of care that a tribunal would impose for purposes of determining
negligence in a court action by a client.
18. The Rules do not require a standard of perfection. An error or omission, even
though it might be actionable for damages in negligence or contract, will not
necessarily constitute a breach of Rule 3.01. Conversely, incompetent professional
practice may constitute professional misconduct whether or not the error or
omission is actionable through the courts for professional negligence. While
damages may be awarded for negligence, incompetence can give rise to the
additional sanction of disciplinary action.
Advising Clients (Rule 3.02; Guideline 7)

Quality of Service (Rules 3.02(1)-(3))
Rule 3.02, subrules (1) to (3), set out a paralegal’s obligations when advising clients.
(1) A paralegal has a duty to provide courteous, thorough and prompt service to
clients. The quality of service required of a paralegal is service that is competent,
timely, conscientious, diligent, efficient and civil.
(2) A paralegal shall be honest and candid when advising clients.
(3) A paralegal shall not undertake or provide advice with respect to a matter that
is outside his or her permissible scope of practice.
Honesty and Candour

Being honest and candid means being truthful, forthright, and sincere, and con- honest and candid
sidering all aspects of an issue without bias. being truthful, forthright, and
Guideline 7 comments: sincere, and looking at both
sides of each issue without bias
1. A paralegal has a duty of candour with the client on matters relevant to the
retainer. A paralegal is required to inform the client of information known to the
paralegal that may affect the interests of the client in the matter.
2. A paralegal must honestly and candidly advise the client regarding the law
and the client’s options, possible outcomes and risks of his or her matter, so that
the client is able to make informed decisions and give the paralegal appropriate
instructions regarding the case. Fulfillment of this professional responsibility may
require a difficult but necessary conversation with a client and/or delivery of bad
news. It can be helpful for advice that is not well-received by the client to be given
or confirmed by the paralegal in writing. [Emphasis added.]


When advising a client, a paralegal
• should explain to and obtain agreement from the client about what legal
services the paralegal will provide and at what cost. Subject to any specific
instructions or agreement, the client does not direct every step taken in a
matter. Many decisions made in carrying out the delivery of legal services are
the responsibility of the paralegal, not the client, as they require the exercise of
professional judgment. However, the paralegal and the client should agree on
the specific client goals to be met as a result of the retainer. This conversation is
particularly important in the circumstances of a limited scope retainer.
• should explain to the client under what circumstances he or she may not be
able to follow the client’s instructions (for example, where the instructions
would cause the paralegal to violate the Rules).
• should ensure that clients understand that the paralegal is not a lawyer and
should take steps to correct any misapprehension on the part of a client, or
prospective client.
Arguably, the duty of honesty and candour also encompasses a paralegal’s duty to
disclose a conflict of interest to a client or potential client. Conflicts of interest are dis-
cussed under the heading “Conflicts of Interest (Rule 3.04; Guideline 9)” in this chapter.
Bad News
Clients like to hear good news. If they intend to commence an action for damages in Small
Claims Court, they want to hear that they have a good case and will get the result they are
seeking. If they are trying to terminate a residential tenancy, they want to hear that they
will get an eviction order. If they are disputing a speeding ticket, they want to hear that the
proceeding will be quashed due to irregularities on the face of the charging document.
Your duty to be honest and candid applies when the news is good and when it
is not so good. The downside of being honest and candid about bad news is that if
the client is not happy with what he or she hears, the client may seek legal assistance
elsewhere. In a competitive market, it can be difficult to let any client walk out the
door, however unreasonable his or her expectations. Nonetheless, your professional
duty requires you to give honest, candid advice as to the merits of the matter and
whether the client’s objectives are achievable. You should also consider that a client
who is unwilling to accept your advice at the commencement of the retainer may
present difficulties at later stages of the retainer.
The Retainer
At the outset of the retainer you must honestly and candidly advise the client regarding
the law and the client’s options, as well as possible outcomes and risks, so that the
client is able to make informed decisions and give you appropriate instructions in the
matter. You should discuss with the client the scope of the retainer—that is, what legal
services you will provide, and at what cost—and obtain agreement from the client. The
terms of the retainer should be confirmed in writing by way of a retainer agreement,
engagement letter, or confirming memorandum.
In the case of a limited scope retainer, you shall confirm the services to be provided
in writing and give the client a copy when it is practicable to do so.22 It is recommended
22 Rule 3.02(16).


that you use a retainer agreement to confirm a limited scope retainer.23 The retainer
agreement should state both the legal services that will be provided under the terms
of the limited scope retainer, and the legal services that will not be provided, so that
there is no confusion or misapprehension on the part of the client as to the scope of
the retainer.
Generally, you do not have to seek client instructions for decisions that require
the exercise of your professional judgment as to how the matter should proceed.
However, you should explain to the client the circumstances in which you may not be
able to accept or act on the client’s instructions—if, for instance, following the client’s
instructions would cause you to violate the Rules.
BOX
4.3
WHEN SHOULD I ASK MY CLIENT FOR
INSTRUCTIONS?
Clients hire you because you have professional knowledge and competence that
they do not, and they pay you for giving them the benefit of that knowledge and
competence.
If you are representing a plaintiff in a Small Claims Court proceeding, you are
expected to apply your knowledge and skills to advancing the matter through the
various procedural stages without seeking the client’s instructions at every stage.
Doing otherwise would be a waste of your time and the client’s money. However,
you should keep the client informed of the progress of the matter. In ongoing mat-
ters where you deliver interim invoices at regular intervals, the status of the matter
may be confirmed in a letter accompanying an interim invoice.
What if the defendant makes a proposal of terms of payment? You should inform
your client of the proposal. Keeping in mind your duty to promote compromise and
settlement, you should advise your client whether you think the proposal is reason-
able or unreasonable, and why.
The final decision must be the client’s, unless you have written instructions from
the client that clearly and unequivocally state otherwise.
You should never enter into an agreement with a prosecutor about a guilty plea
without first (1) advising your client of the prospects for an acquittal and the con-
sequences of the guilty plea, (2) ensuring that the client understands the elements
of the offence, and (3) obtaining the client’s voluntary instructions to agree to the
guilty plea.
Dishonesty, Fraud, or Crime by a Client or Others

(Rules 3.02(4)-(6), (8))
(4) A paralegal shall not

(a) knowingly assist in or encourage any dishonesty, fraud, crime, or illegal
conduct;
23 Guideline 14, para 2.1.


BOX
4.4
COMPETENCE AND QUALITY OF SERVICE
Review each of the following paragraphs, and consider any ethical considerations
that arise.
1. Ethan Edwards runs a busy paralegal firm with the assistance of a junior
paralegal, Li Jun Zhang. Ethan is contacted by Albert Andrews, the plaintiff
in a Small Claims Court matter in which he is seeking $15,000 for injuries
suffered in a slip and fall on a neighbour’s sidewalk. At the time Mr Andrews
approaches Ethan, the trial is three weeks away. Ethan assures Mr Andrews
that he will get a favourable result, and obtains a money retainer of $2,000,
which he deposits to the credit of the client matter in his trust account.
2. During the next two weeks, Ethan is busy with several other matters, and
is frequently out of the office. Mr Andrews phones and texts him several
times a day, but he does not respond. When Ethan finally gets around
to looking at the file, the trial is four days away. No witnesses have been
contacted. The medical report in the file is seven months old and not
favourable to the client’s cause. Ethan decides that he just does not have
time to deal with the matter, so he delegates it to Li Jun, with instructions
to contact the client and walk him through his evidence, summon some
other witnesses if there are any, and obtain a current medical report.
“Make sure the medical report is disclosed to the other side and filed with
the court before trial,” Ethan advises Li Jun.
3. After reviewing Mr Andrews’ documents, including the defence and the
referee’s notes from the settlement conference, and discussing them with
the client, Li Jun advises Ethan that, in his opinion, the plaintiff will not be
successful. He refers to the medical report in the file, which reports some
bruises and other minor injuries. He also points out that, with the trial date
pending, there is no time to obtain another medical report. He suggests
asking for an adjournment, so that a current medical report can be obtained.
4. Ethan considers the matter, keeping in mind the $2,000 retainer in the
trust account. Then he says, “He probably won’t agree to an adjournment,
especially if he has to pay some costs. He wants a trial, so we’ll give him a
trial. Get to work on it.”
5. Li Jun goes back to his office, thinks about Ethan’s advice, and decides to
phone Mr Andrews about requesting an adjournment anyway. Answering
the phone, Mr Andrews exclaims, “Finally, somebody’s home for a change
at your outfit!” He flatly refuses to consider an adjournment. “I’m not
wasting any more money on doctors’ opinions,” he says. “It’ll have to be
my evidence against the other side’s.” When Li Jun suggests making an
offer of settlement, Mr Andrews explodes, saying, “I paid $2,000 for you
to get me a win, so you’d better get me a win!” This is the first time Li Jun
has heard anything about a $2,000 retainer. His heart sinking, he makes
detailed notes of this conversation in the file, along with the date. He
makes a photocopy of it for himself.
6. Li Jun has several other files that require attention, but fortunately no other
court appearances. He gets to the office at seven and works until 10 or 11


at night for the next three days to ensure that he has enough time to get his
other files up to date, go over Mr Andrews’ evidence with him, and prepare
for his cross-examination of the defendant and the defendant’s witness.
7. On the day of the trial, the judge has a few preliminary matters to deal
with. In a stern voice, he suggests that the parties go outside and see if
they can come to some kind of agreement. Outside the courtroom, the
defendant’s paralegal turns to Li Jun and says, “Why doesn’t your client
just accept our offer? He’s had three months to think about it.” Li Jun
says he knows nothing about it. She tells him that, three months ago,
the defendant offered in writing to pay Mr Andrews $2,500 to settle the
matter. The offer has not been withdrawn.
8. When Li Jun asks his client about the offer, Mr Andrews takes out his
wallet, pulls out a crumpled piece of paper, and flings it at Li Jun. He
snarls, “It was a joke and an insult, that offer. I still have a lot of pain.”
After Li Jun has unfolded and read the crumpled offer, he recommends
that Mr Andrews accept it, as it is a reasonable offer in all of the
circumstances. Mr Andrews goes stomping off. He does not reappear until
their matter is called.
9. Having heard the evidence, the judge awards Mr Andrews $1,692.50
inclusive of disbursements, based on what he calls “… evidence of minor
injuries that, considering the plaintiff’s age, could have become more
serious, but fortunately did not.” The defendant’s paralegal then advises
the judge of the defendant’s offer to settle and produces a bill of costs.
The judge awards the defendant costs of $1,635 pursuant to Rule 14.07(2)
of the Rules of the Small Claims Court. Mr Andrews is furious.
10. Outside the courtroom, the defendant’s paralegal says to Li Jun, “You did
a really good job in there, especially considering how disgusting your client
is.” Li Jun looks away and says nothing. After a pause, the defendant’s
paralegal moves on.
11. When Li Jun gets back to the office and tells Ethan about the trial, Ethan
just shrugs. “That’s why we ask for money retainers,” he remarks. He
then moves the Andrews retainer from the trust account to his operating
account, and uses some of the money to pay some bills and take a friend
out for lunch. He also gives a cash bonus to the receptionist, who now
has to field calls from Mr Andrews ten or twelve times a day, and who has
been instructed to deal with those calls by telling Mr Andrews that Ethan is
in court on a difficult case.
12. About a month later, Li Jun, who had been actively seeking employment
elsewhere, accepts an offer of a position at another paralegal firm. After
he moves on to his new firm, things become more difficult for Ethan. For
one thing, he has to do more work, for what seems to be less money.
Also, Mr Andrews continues to harass him, with constant phone calls
demanding that Ethan return his client file and documents to him, and
render him an account for the slip and fall file, both of which Ethan fails to
do because he is struggling to stay on top of things with his other matters.


(b) do or omit to do anything that the paralegal ought to know assists in,
encourages or facilitates any dishonesty, fraud, crime, or illegal conduct by a
client or any other person; or
(c) advise a client or any other person on how to violate the law and avoid
punishment.
(5) When retained by a client, a paralegal shall make reasonable efforts to ascertain
the purpose and objectives of the retainer and to obtain information about the
client necessary to fulfill this obligation.
4. A paralegal must be alert to the warning signs that may indicate dishonesty or
illegal conduct by a client or any other person. The paralegal may need to, or be
forced to, withdraw from representing a client where the client takes part in this
type of dishonourable conduct.
The Trust Account

general (operating) bank Generally, a paralegal firm will have a general (operating) bank account, and a
account mixed trust bank account. The general account is used for the operating expenses
holds money belonging to the of the firm, such as staff salaries, office expenses, and so on. The mixed trust bank
paralegal firm, which is used for account holds money that has been advanced to the firm but still belongs to clients,
operating expenses of the firm,
such as money retainers for services that have not yet been provided and invoiced, or
such as staff salaries, office
settlement funds. It is called a mixed trust bank account because it may hold money
expenses, and so on
for many different clients in many different matters. All trust funds held must be
properly accounted for.
You shall not use your trust account for purposes not related to the provision of
legal services.24
With respect to a paralegal’s obligation at the outset of the retainer to obtain
information about the client and to make reasonable efforts to ascertain the client’s
purpose and objectives, Guideline 7 comments:
5. The requirement in subrule (5) is especially important where a paralegal has

suspicions or doubts about whether he or she might be assisting a client in crime or
fraud. For example, if a paralegal is consulted by a prospective client who requests
the paralegal to deposit an amount of cash into the paralegal’s trust account but is
vague about the purpose of the retainer, the paralegal has an obligation to make
further inquiries about the retainer. (The paralegal should also have regard to the
provisions of By-Law 9 regarding cash transactions.) The paralegal should make a
record of the results of these inquiries.
6. A client or another person may attempt to use a paralegal’s trust account for
improper purposes, such as hiding funds, money laundering, or tax sheltering.
These situations highlight the fact that when handling trust funds, it is important
for a paralegal to be aware of his or her obligations under the Rules and the Law
Society’s By-Laws regulating the handling of trust funds.
24 Rule 3.02(6).


When accepting cash, you should keep in mind the provisions regarding cash
transactions in By-Law 9, Part III. You shall not receive or accept from a person, in
respect of any one client file, cash in an aggregate amount of Cdn$7,500 or more,
or its equivalent in foreign currency.25 Section 4 applies to any transaction involving
funds that you receive, pay, or transfer by any means,26 unless the transaction falls
within one of the exemptions in section 6. “Funds” means cash, currency, securities
and negotiable instruments, or other financial instruments that indicate the person’s
title or interest in them.
Cash transactions are problematic. You should be wary of a person who insists
on paying with cash. You should consider implementing a policy of not accepting
cash payments, or of accepting cash payments in limited amounts. Clients should be
advised of this policy at the initial consultation and in the written retainer agreement
or engagement letter.
Dishonest or Fraudulent Activity by an Organization

(Rule 3.02(8))
If you are employed or retained by an organization to act in a matter in which
you know that the organization has acted, is acting, or intends to act dishonestly,
fraudulently, criminally, or illegally, then you shall do the following in addition to your
obligations under Rule 3.02(4):
(a) advise the person from whom the paralegal takes instructions and the chief legal
officer, or both the chief legal officer and the chief executive officer, that the conduct
is, was or would be dishonest, fraudulent, criminal, or illegal and should be stopped;
(b) if necessary because the person from whom the paralegal takes instructions,
the chief legal officer, or the chief executive officer refuses to cause the conduct
to be stopped, advise progressively the next highest persons or groups, including
ultimately, the board of directors, the board of trustees, or the appropriate
committee of the board, that the conduct was, is or would be dishonest,
fraudulent, criminal, or illegal and should be stopped; and
(c) if the organization, despite the paralegal’s advice, continues with or intends to
pursue the wrongful conduct, withdraw from acting in the matter in accordance
with rule 3.08.27
7. Rule 3.02(8) speaks of conduct that is dishonest, fraudulent, criminal or illegal,

and this conduct would include acts of omission as well as acts of commission.
Conduct likely to result in substantial harm to the organization, as opposed to
genuinely trivial misconduct by an organization, would invoke this rule.
Withdrawal from representation (Rule 3.08) is discussed under the heading

“Withdrawal from Representation (Rule 3.08; Guideline 11)” in this chapter.
25 By-Law 9, s 4.
26 Ibid, s 5.
27 Rule 3.02(8).


BOX
4.5
DISHONESTY, FRAUD, OR CRIME BY A CLIENT
OR OTHERS
Fact Situation
You are a licensed paralegal who has been practising for two years. You rent a space
with a reception area and two offices. During your first year in practice, another
paralegal licensee, also a woman, shared the space with you, but she has moved on
and set up her own practice elsewhere. Since she left, business has been slow. You
have advertised for another occupant, but there have been few responses, none of
them satisfactory. Two months ago, you had to let your receptionist go.
Early one afternoon, a man enters your office. He is well dressed and looks to
be in his late forties or early fifties. He confirms your name, and tells you that your
former associate, Kendra, recommended you to him. His name is Bryant Douglass.
Bryant Douglass tells you that one of his businesses is the defendant in a Small
Claims Court matter in which the plaintiff is claiming $5,100 for breach of contract,
damage to property and so on, relating to renovations to the plaintiff’s home. He
produces the plaintiff’s claim to you. You note that the deadline for filing a defence
is three days away. As you begin to read the plaintiff’s allegations, Mr Douglass says
impatiently, “You can read it later. Right now I need to know that you will take care
of this for me, OK?” When you request contact information, names of witnesses,
and so on, he hands you a business card. “Get in touch with my foreman,” he says.
“He’s the contact. And you’ll need some money, right? You legal types always do.”
He hands you a large envelope. “Put that in your trust account. $2,000 of it is yours
if this thing goes away.” He leaves.
The envelope contains $7,200 in cash, in twenties and fifties. Receiving cash in
this amount makes you uneasy, although you are also kind of thrilled, because in
your experience, clients are often reluctant to pay up front and sometimes reluctant
to pay at all. When you phone Kendra to thank her for the referral, she says, “I don’t
really know the guy. I hope it works out for you.” When you take the cash to the
bank to deposit it to your trust account later that afternoon, the teller gives you an
odd look, but says nothing.
You contact the foreman to discuss the defence. Based on what he says, you
suggest that an offer of terms of payment be made. He says no, just file the defence.
The defence is filed on time. The retainer letter is directed to the address on the card,
in accordance with instructions from the foreman.
A few days later, the foreman calls you to let you know that the matter has been
settled. “So pay yourself the $2,000, and send the rest back to us.” When you
advise the foreman that the usual procedure would be for you to pay the settlement
amount to the plaintiff from your trust account, the foreman says, “Yeah, you can
forget about that. We’ve made other arrangements.”
You have kept notes of your conversations with Bryant Douglass and the foreman.

1. Can you accept the $2,000?
2. Should you have refused to accept the cash in the first place?


3. Did you
a. knowingly assist in or encourage any dishonesty, fraud, crime, or illegal
conduct;
b. do or omit to do anything that a paralegal ought to know assists in,
encourages or facilitates any dishonesty, fraud, crime, or illegal conduct
by a client or any other person; or
c. advise a client or any other person on how to violate the law and avoid
punishment? (Rules 3.02(4), (5); Guideline 7, paragraph 6)
4. Did you make reasonable efforts to ascertain the purpose and objectives of
the retainer?
5. Did you make reasonable efforts to obtain information about the client
necessary to fulfill your obligation to the client?
6. How could you have avoided this problematic situation?
Threatening Penal or Regulatory Proceedings

(Rules 3.02(9), 3.08(5)(b), 4.01(5)(n))
A paralegal’s duties of integrity and civility require that a paralegal not threaten others
in order to obtain an advantage. Rule 3.02(9) states:
(9) A paralegal shall not, in an attempt to gain a benefit for a client, threaten, or
advise a client to threaten without reasonable and lawful justification:
(a) to initiate or proceed with a charge for an offence, including an offence
under
(i) the Criminal Code28 or any other statute of Canada;
(ii) a statute of a province or territory of Canada; or
(iii) a municipal by-law; or
(b) to make a complaint to a regulatory authority.
When representing a complainant or potential complainant, a paralegal advocate

shall not attempt to gain a benefit for the complainant by threatening the lay-
ing of a criminal charge or by offering to seek or to procure the withdrawal of a
criminal charge.29
Subject to the direction of a tribunal, you shall withdraw from representation
if your client in a litigation matter instructs you to advise another party that you
will have criminal charges laid against them if they do not accede to your client’s
demands.30
28 RSC 1985, c C-46.

29 Rule 4.01(5)(n).
30 Rules 3.02(9), 3.08(5)(b).


Settlement and Dispute Resolution
(Rules 3.02(11), (12))
A paralegal shall advise and encourage a client to compromise or settle a dispute
whenever it is possible to do so on a reasonable basis, and shall discourage the client
from commencing or continuing useless legal proceedings.31
The paralegal shall consider the use of alternative dispute resolution (ADR) when
appropriate, inform the client of ADR options, and, if so instructed, take steps to
alternative dispute pursue those options.32 Alternative dispute resolution is resolution of a dispute
resolution through negotiation, mediation, arbitration, or similar means rather than through
resolution of a dispute through litigation.
negotiation, mediation, Guideline 7 comments:
arbitration, or similar means,
instead of through litigation 8. A paralegal has an important role to play in both commencing and settling legal
proceedings.
9. The paralegal should assist the client in his or her decision about commencing
legal proceedings by reviewing the reasons for and against starting the
proceeding, and explaining the potential consequences of a decision to commence
litigation.
10. In the course of the proceedings, the paralegal should seek the client’s
instructions to make an offer of settlement to the other party as soon as reasonably
possible. As soon as possible after receipt of an offer of settlement from the
other party, the paralegal must explain to the client the terms of the offer, the
implications of accepting the offer and the possibility of making a counter-offer.
When making an offer of settlement, a paralegal should allow the other party
reasonable time for review and acceptance of the offer. The paralegal should
not make, accept or reject an offer of settlement without the client’s clear and
informed instructions. To avoid any misunderstandings, the paralegal should
confirm the client’s instructions in writing.
Many tribunals have early resolution processes built into their procedure. The Land-
lord and Tenant Board offers voluntary mediation services to landlords and tenants in
applications filed under the Residential Tenancies Act, 2006.33 Mediation is a manda-
tory first step in dispute resolution in Statutory Accident Benefits Schedule claims under
the Insurance Act.34 In Provincial Offences Act35 prosecutions in the Ontario Court of
Justice, defendants charged in designated jurisdictions have the option of requesting
a meeting with the prosecutor to discuss resolution of the offence instead of going
directly to trial.36 According to the Rules of the Small Claims Court,37 in a proceeding in
the Small Claims Court, early resolution is encouraged by the obligation of mandatory
full disclosure by all parties at every stage of the proceeding;38 the proposal of terms of
31 Rule 3.02(11).
32 Rule 3.02(12).
33 SO 2006, c 17.
34 RSO 1990, c I.8.
35 RSO 1990, c P.33.
36 Ibid, s 5.1.
37 O Reg 258/98, online: <http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_980258_e.htm>.
38 Ibid, Rules 7.01(2)2, 9.02(1)2, 10.01(4)2.


payment option on the Form 9A Defence;39 and mandatory attendance by all parties
at a settlement conference that must take place by no later than 90 days after the first
defence has been filed.40
Client with Diminished Capacity (Rules 3.02(13), (14))

A client with diminished capacity is a client whose capacity to make decisions is
impaired because of minority, mental disability, or for some other reason. You shall,
as far as reasonably possible, maintain a normal professional relationship with a client
with diminished capacity.41
11. A paralegal must be particularly sensitive to the individual needs of a client

under a disability. The paralegal should maintain a good professional relationship
with the client, even if the client’s ability to make decisions is impaired because
of minority, mental disability or some other reason. The paralegal should also be
aware of his or her duty to accommodate a client with a disability.
If the disability is such that the client no longer has the capacity to manage her
or his legal affairs, you shall take appropriate steps that are within the scope of
permitted practice for paralegals to have a lawfully authorized representative
appointed,42 keeping in mind your duty of confidentiality to the client. If the proced-
ures for appointment of a lawfully authorized representative are outside the scope
of permitted practice for paralegals, the matter must be referred to a lawyer or other
appropriate person.
Medical–Legal Reports (Rules 3.02(18)-(20))

In the course of providing legal services to a client, you may be required to obtain a
medical – legal report from a physician or other health professional containing that
person’s opinion or findings on the client’s mental and/or physical health or other
matters. In these circumstances, you will need to consider whether the findings in the
report favour the client’s cause or harm the client’s cause, and, in either case, whether
disclosing the findings to the client may cause injury or harm to the client.
13. On occasion, in the course of representing and advising a client, a paralegal

may need to obtain a report from an expert to help the client’s case. Since a
medical – legal report may contain information sensitive to the client, a paralegal has
special responsibilities where such reports are concerned.
14. After an expert has been hired, but before the report has been prepared, the
paralegal should speak to the expert to see if the findings in the report will advance
the client’s cause. If the findings do not, and subject to any legal requirements, the
paralegal may decide not to obtain a written report.
39 Ibid, Rule 9.03.

40 Ibid, Rule 13.
41 Rule 3.02(13).
42 Rule 3.02(14).


Guideline 7 also contemplates withholding information from the client where the
client consents to that arrangement:
3. In some limited circumstances, it may be appropriate to withhold information

from a client. For example, with client consent, a paralegal may act where the
paralegal receives information in the course of representing the client on the
basis that the paralegal is not permitted to share the information with the client.
However, it would not be appropriate to act for a client where the paralegal has
relevant material information about that client received through a different retainer.
In those circumstances the paralegal cannot be honest and candid with the client
and should not act.
Rules 3.02(18) to (20) speak to situations where the findings in a medical – legal
report may cause injury or harm to the client:
(18) A paralegal who receives a medical – legal report from a physician or health
professional that is accompanied by a proviso that it not be shown to the client
shall return the report immediately to the physician or health professional, without
making a copy, unless the paralegal has received specific instructions to accept the
report on that basis.
(19) A paralegal who receives a medical – legal report from a physician or health
professional containing opinions or findings that, if disclosed, might cause harm or
injury to the client shall attempt to dissuade the client from seeing the report but, if
the client insists, the paralegal shall produce the report.
(20) If a client insists on seeing a medical – legal report about which the
paralegal has reservations for the reasons noted in subrule (19), the paralegal
shall recommend that the client attend at the office of the physician or health
professional to see the report, in order that the client will have the benefit of the
expertise of the physician or health professional in understanding the significance
of the conclusions contained in the medical – legal report.
Errors (Rule 3.02(21))

error You have specific duties to fulfill if you discover an error or omission. An error is an
an action by a legal action by a legal representative that may result in harm to a client. An omission is a
representative that may cause failure to act by a legal representative that may result in harm to a client.
harm to a client Guideline 7 comments:
omission
a failure to act by a legal 15. When providing legal services, the paralegal may make a mistake or fail to
representative that may cause do something he or she should have done. When the paralegal realizes this has
harm to a client happened, he or she must fulfill specific duties to the client.
You are accountable for your own errors and omissions in matters for which you are
responsible, and for those of any persons acting under your supervision in matters for
which you are responsible. Rule 3.02(21) states:
(21) If, in connection with a matter for which a paralegal is responsible, the
paralegal discovers an error or omission that is or may be damaging to the client
and that cannot be rectified readily, the paralegal shall,


(a) promptly inform the client of the error or omission, being careful not
to prejudice any rights of indemnity that either of them may have under an
insurance, client’s protection or indemnity plan, or otherwise;
(b) recommend that the client obtain legal advice elsewhere concerning any
rights the client may have arising from the error or omission; and
(c) advise the client that in the circumstances, the paralegal may no longer be
able to act for the client.
As well, you must give prompt notice to your errors and omissions insurer of the
circumstances giving rise to a possible claim, so that the client’s protection from that
source will not be prejudiced. When giving notice to the insurer, you must be careful
to observe your duty of confidentiality to the client.
Official Language Rights (Rule 3.02(22), (23))

French and English are the two official languages of Canada.
Rule 3.02 states:
(22) A paralegal shall, when appropriate, advise a client of the client’s language
rights, including the right to use
(i) the official language of the client’s choice; and
(ii) a language recognized in provincial or territorial legislation as a language
in which a matter may be pursued, including, where applicable, aboriginal
languages.
(23) If a client proposes to use a language of his or her choice, and the
paralegal is not competent in that language to provide the required services,
the paralegal shall not undertake the matter unless he or she is otherwise able
to competently … provide those required services and the client consents in
writing.
16. When advising a client of the client’s language rights, a paralegal should
consider the following:
• the paralegal should advise the client of the client’s language rights as soon as
possible;
• the choice of language is that of the client[,] not the paralegal. The
paralegal should be aware of relevant statutory and constitutional law
relating to language rights[,] including the Canadian Charter of Rights and
Freedoms, s. 19(1) and Part XVII of the Criminal Code regarding language
rights in courts under federal jurisdiction and in criminal proceedings.
The paralegal should also be aware that provincial or territorial legislation
may provide additional language rights, including in relation to aboriginal
languages; and
• when a paralegal considers whether to provide the required services in the
language chosen by the client, the paralegal should carefully consider whether
it is possible to render those services in a competent manner as required by
Rule 3.02(23).


Confidentiality (Rule 3.03; Guideline 8)
Confidential Information (Rules 3.03(1)-(3))
The Duty
(1) A paralegal shall, at all times, hold in strict confidence all information
concerning the business and affairs of a client acquired in the course of their
professional relationship and shall not disclose any such information unless:
(a) expressly or impliedly authorized by the client;
(b) required by law or by order of a tribunal of competent jurisdiction to do so;
(c) required to provide the information to the Law Society; or
(d) otherwise permitted by this rule.
The duty of confidentiality begins at the commencement of the paralegal – client

relationship. It continues indefinitely after the paralegal has ceased to act for the client,
whether or not differences have arisen between them.43
The paralegal shall keep the client’s papers and other property out of sight and out
of reach of those not entitled to see them.44
1. A paralegal cannot render effective professional service to a client, unless
there is full and unreserved communication between them. The client must feel
completely secure that all matters discussed with the paralegal will be held in strict
confidence. The client is entitled to proceed on this basis, without any express
request or stipulation.
2. A paralegal’s duty of loyalty to a client prohibits the paralegal from using any
client information for a purpose other than serving the client in accordance with
the terms of the retainer. A paralegal cannot disclose client information to serve
another client or for his or her own benefit.
The duty of confidentiality arises out of the fiduciary relationship between the
paralegal and the client. As a fiduciary, the paralegal is required to act with scrupulous
good faith, honesty, and candour for the benefit of the client. The paralegal must put
the client’s interests ahead of his or her own in all dealings with the client. The client
is entitled to place absolute confidence, reliance, and trust in the paralegal. For that
relationship of absolute trust to exist, the client must have complete confidence that
information shared with the paralegal will not be passed on to others, except with the
client’s authorization or as required by law or by the Rules. The client must also have
complete confidence that information shared with the paralegal will not be used for
any purpose other than serving the client.
The Scope of the Duty (Rules 3.03(1), (3))

The duty of confidentiality applies to all information of any kind that you acquire
from or on behalf of a client during the paralegal – client relationship, including
43 Rule 3.03(2).
44 Rule 3.03(3).


the client’s identity and the fact that the client has consulted or retained you. It
also applies to information that is not relevant to the specific matter for which you
have been retained, and to information about the client that others may already
be aware of.
3. The obligation to protect client information extends to information whether

or not it is relevant or irrelevant to the matter for which the paralegal is
retained. The source of the information does not matter. The information could
be received from the client or from others. The information may come in any
form—the spoken word, paper, computer documents, e-mails, audio or video
recordings. The obligation also extends to the client’s papers and property,
the client’s identity and the fact that the client has consulted or retained the
paralegal.
• • •
5. Generally, unless the nature of the matter requires such disclosure, a paralegal
should not disclose having been retained by a person about a particular matter, or
consulted by a person about a particular matter, whether or not a paralegal – client
relationship has been established between them.
The duty of confidentiality is owed to all clients of your paralegal firm by all licen-
sees in the firm, including associates, as well as anyone in your employment or under
your supervision, including students.
Any time you hire new staff or accept a new field placement student, you
should consider requiring them to review Rule 3.03, the applicable Guidelines,
and your firm’s confidentiality policy, and to sign a confidentiality agreement. A
copy of the signed agreement should be placed in their personnel file. Your firm’s
confidentiality policy should state the possible sanctions for breach of the duty by
staff or students.
Duration of the Duty (Rule 3.03(2))

The duty of confidentiality arises when the paralegal – client relationship begins. It
may apply to persons with whom there is no paralegal – client retainer, if confidential
information is received from the person at the initial contact. It applies to prospective
clients who consult with you, whether or not a paralegal – client retainer is the result of
that consultation. It applies to clients who have retained you in a single client matter
and to continuing clients. Continuing clients are clients who retain you in multiple continuing client
client matters over a period of time. a client for whom a paralegal
The duty of confidentiality continues indefinitely. This means that it continues acts in several different matters
or transactions over a period
• regardless of the nature or brevity of the initial contact, if confidential of time
information about a person’s matter was provided to the paralegal;
• regardless of whether or not a paralegal – client retainer was entered into;
• after the professional relationship has ended, and regardless of the
circumstances in which it ended;
• after the paralegal – client retainer has ended; and
• after the death of the client or other person to whom you owe the duty.


4. A paralegal should be cautious in accepting confidential information on an

informal or preliminary basis from anyone, since possession of the information may
prevent the paralegal from subsequently acting for another party in the same or a
related matter.
• • •
7. Problems can arise when information is provided to a paralegal or a paralegal
firm by a prospective client. For lawyers, the duty to protect confidential information
begins when a prospective client first contacts the lawyer or law firm. The courts
may determine that a paralegal also owes a duty of confidentiality to prospective
clients, even if the paralegal is never actually retained by the prospective client.
Paralegals should consider acting on the assumption that their clients, including
prospective clients, are owed the same duty of confidentiality as that to which the
clients of lawyers are entitled.
Who Owes the Duty? (Rules 3.03(1), (3), 8.01(1))

8. The paralegal, and all other employees of the paralegal firm, owe the duty of
confidentiality to every client. A paralegal must ensure that his or her employees,
and anyone involved with the client’s matter, understand the duty of confidentiality
as set out in the Rules. The paralegal is ultimately responsible if someone employed
by the paralegal discloses confidential information without client authorization or
as permitted by the Rules.
BOX
4.6
CONFIDENTIALITY: USE OF PRECEDENT
DOCUMENTS
Fact Situation
You are a student in a paralegal program at an Ontario college. You are completing
your field placement requirement in the collections department at a law firm. You
have been given a lot of interesting work to do in collections, and you have kept
copies of many of the documents you worked on to use as precedents.
You are chatting about field placements with some classmates who are also on
field placement one weekend. They are impressed by your enthusiasm and the qual-
ity of work that you are being given, and ask if they can take a look at your prec-
edent binder. The four of you agree to meet for lunch on the following weekend.
The binder contains demand letters, reporting letters, Small Claims Court plead-
ings, and enforcement documents. At the lunch meeting, your classmates look
through these documents with interest. They are particularly impressed by some of
the corporate clients you have done work for.

Have you breached the duty of confidentiality?


Inadvertent Disclosure
A paralegal must take steps to avoid unintentional disclosure of confidential informa-
tion through carelessness or thoughtlessness. Guideline 8 comments:
19. The following steps may assist a paralegal in meeting his or her obligation to
protect confidential client information:
• not disclosing having been consulted or retained by a particular person unless
the nature of the matter requires disclosure,
• taking care not to disclose to one client confidential information about another
client and declining any retainer that might require such disclosure,
• being mindful of the risk of disclosure of confidential information when the
paralegal provides legal services in association with other licensees in cost-sharing,
space-sharing or other arrangements, and taking steps to minimize the risk,
• avoiding indiscreet conversations about a client’s affairs, even with the
paralegal’s spouse or family,
• shunning any gossip about a client’s affairs, even though the client is not
named or otherwise identified,
• not repeating any gossip or information about a client’s business or affairs that
is overheard or recounted to the paralegal, and
• avoiding indiscreet shop-talk between colleagues that may be overheard by
third parties.
You should never discuss a client or anything connected with a client matter with
anyone not entitled to the information, even if the client is not named or otherwise
identified and the discussion is couched in general terms. Persons who are not entitled
to client information include friends, spouses, partners, members of your family, and
other licensees unless the nature of the client matter requires disclosure to a licensee.
You should never discuss client matters in public areas of the paralegal firm, where
you may be overheard by non-members of the firm.
BOX
4.7
CONFIDENTIALITY: CONVERSATION WITH
FRIENDS
Fact Situation
You are a paralegal student completing your field placement requirement in a para-
legal firm. At the end of the last week of your placement, you arrange to meet with
some other students from your program at a local restaurant for drinks and dinner
to celebrate the end of placement. Over the course of the evening, you discuss a
couple of your client files in general terms, without mentioning client names. People
at adjoining tables can hear some of your remarks, but you think it is okay to talk
about the files because the placement is over and no one will be able to figure out
who you are talking about anyway.

Have you breached the duty of confidentiality?


Literary Works
You are not permitted to use confidential information about a client for your own
benefit, for the benefit of third parties, or to the disadvantage of the client. This duty
continues indefinitely. It applies whether you are writing a murder mystery, appearing
on a television show to discuss your famous cases, or blogging.
If you intend to use confidential information about a living client in a publication of
any kind, you must first obtain the client’s fully informed, voluntary consent in writing.
If the client is deceased, you must seek written authorization from the client’s estate.
Office Procedures
A paralegal shall assume complete professional responsibility for all business entrusted
to him or her.45 Among other things, this means that you are ultimately responsible for
ensuring compliance with the duty of confidentiality in your firm. Guideline 8 comments:
20. A paralegal should establish office procedures to ensure that the confidentiality
of client information is protected, such as:
• recording the identity and particulars of every client or potential client,
• screening for conflicts of interest when a potential client first contacts the firm,
and prior to his or her disclosure of confidential information to the paralegal,
• establishing a communication policy with each client outlining how
communications between the client and firm will be conducted,
• keeping file cabinets away from the reception area, placing computer screens
so they cannot be viewed by people not in the firm, keeping client files out
of sight, locking file cabinets when no one is in the office, limiting access
to client files only to staff who work on the matter, shredding confidential
information before discarding and ensuring appropriate security for off-site
storage of files,
• taking steps to protect confidential information obtained and sent in an
electronic form,
• ensuring that all staff understand their obligations with respect to
confidentiality, and
• limiting access to confidential information by outside service providers.
An office policies and procedures manual is a useful management tool for improving
staff efficiency and ensuring that staff, including field placement students, understand
their obligations under the Rules and the By-Laws. Practice management issues are
discussed in more detail in Chapter 7.
BOX
4.8
OFFICE PROCEDURES
Fact Situation
You are a paralegal licensee. You run a small but profitable practice and have one
employee, an office assistant named Dana.
45 Rule 8.01(1).


Dana’s workspace is set up in the reception area. A counter separates her work-
space from the public area. Because your practice is a busy one, Dana’s workspace is
often covered with client files. Anyone standing at the counter can see the labels on
the files and the contents of any files that are open. Her computer monitor is visible
from some parts of the public area. People waiting in the public area can overhear
Dana’s telephone conversations with clients.
For ready access, Dana keeps active files that she is not working on in a small,
locked filing cabinet in her workspace in the reception area. Before she leaves at the
end of the day, she is careful to refile any loose documents in the correct client files.
She leaves the files she is working on in a neat pile by her computer monitor.
1. Do your office procedures preserve client confidentiality?

2. If not, who is responsible for the breach of confidentiality? What can be
done to remedy this?
Disclosure of Confidential Information

(Rules 3.03(1), (4)-(10))
Rule 3.03(1) states the paralegal’s duty to at all times hold in strict confidence all
information concerning the business and affairs of a client acquired in the course of
their professional relationship and not to disclose such information, unless disclosure
of confidential information is
(a) expressly or impliedly authorized by the client;
(b) required by law or by order of a tribunal of competent jurisdiction to do so;
(c) required to provide the information to the Law Society; or
(d) otherwise permitted by this rule.
Disclosure with Client Authority (Rule 3.03(1)(a))

You may disclose confidential client information if the client authorizes the disclosure.
Client authorization may be express or implied.
Implied Authorization
Implied authorization is not spoken or written down, but is implied by the para- implied authorization
legal – client relationship and the nature of the client matter. client authorization to reveal
Guideline 8 provides the following example of implied authorization: confidential information
that is not spoken or written
9. … [W]here a paralegal is retained to represent a client in a Small Claims down, but is implied by the
Court matter, the paralegal has the client’s implied authority to disclose enough paralegal – client relationship
information to complete the necessary forms. and the nature of the client
matter
A paralegal also has implied authorization to disclose particulars of the client
matter to partners, associates, and, to the extent necessary, non-licensee employ-
ees of the firm, unless the client directs otherwise. You must ensure that anyone


to whom confidential client information is disclosed understands the duty to hold
that information in strict confidence, both during employment with the firm and
indefinitely afterward.
Express Authorization
express (or explicit) Express (or explicit) authorization means that the client provides you with fully
authorization informed and voluntary spoken or written authorization to disclose particular informa-
fully informed and voluntary tion to specified third parties. If the authorization is spoken, it shall be confirmed in
written or spoken authorization
writing as soon as is practicable.
given by the client to the
paralegal permitting disclosure
of confidential information
10. When disclosing confidential information on the express authority of the client,
to specified third parties; if
the paralegal should consider
spoken, then the client shall
receive a written confirmation • whether the client understands his or her right to confidentiality,
of the consent as soon as is • whether the client understands the potential implications of disclosure,
practicable • whether the client has shown a clear, informed and voluntary intention to
forego the right to confidentiality, and
• whether, in the particular circumstances, it would be prudent to obtain the
client’s written authorization to disclose.
A client’s written authorization to disclose confidential information should state, at

a minimum,
• the extent of the disclosure,

• any restrictions on disclosure,
• the persons to whom disclosure will be provided, and
• the period of time for disclosure, if appropriate.
You should go over the terms of the disclosure with the client and ensure that the
client understands those terms before she or he signs the authorization.
Disclosure Without Client Authority: Justified or

Permitted Disclosure (Rules 3.03(4)-(10))
Where the law or an order of a tribunal of competent jurisdiction requires that a
paralegal shall disclose confidential information without the client’s authorization to
justified disclosure do so, the disclosure is said to be justified. Justified disclosure is mandatory.
mandatory disclosure of Where the rules state that a paralegal may reveal confidential information without
confidential information the client’s authorization to do so, the disclosure is said to be permitted. Permitted
without the client’s authority disclosure is discretionary on the part of the paralegal.
permitted disclosure A paralegal shall not disclose more information than is necessary when he or she
discretionary disclosure of discloses confidential information as required or permitted by Rules 3.03(4) to (7).46
confidential information by a Guideline 8 comments:
paralegal without the client’s
11. Rule 3.03 identifies a number of situations in which a paralegal shall or may
authority
disclose confidential client information, whether or not the client consents to the
disclosure.
46 Rule 3.03(9).


12. This rule does not permit the paralegal to reveal confidential information about
past criminal conduct, or to prevent future illegal or criminal conduct that does not
involve death or serious bodily harm.
Justified Disclosure (Rules 3.03(4), (9))

A paralegal shall disclose confidential information when required by law or by order of
a tribunal of competent jurisdiction.47
If you are ordered by a court or tribunal to disclose confidential information, before
complying with the order you should first satisfy yourself that the court or tribunal
has jurisdiction (that is, legal authority) to make the order. If you are not competent to
determine this issue yourself, you should seek legal assistance.
If you are satisfied that the order is valid, you should advise your client of the terms
of the order and of the obligation to comply with its terms.
You shall not disclose more information than is required by the court or
tribunal order.48
Permitted Disclosure (Rules 3.03(5)-(9))

Permitted disclosure is at the discretion of the paralegal. Disclosure of confidential
information without client authority is permitted in the following circumstances:
• if you believe upon reasonable grounds that there is an imminent risk of death
or serious bodily harm, and disclosure is necessary to prevent the death or
harm;49
• to defend against allegations that you or your employees have committed a
criminal offence involving a client’s affairs;50
• to defend against allegations that you or your employees are civilly liable with
respect to a matter involving a client’s affairs;51
• to defend against allegations that you or your employees have committed acts
of professional negligence;52
• to defend against allegations that you or your employees have engaged in acts
of professional misconduct or conduct unbecoming a paralegal;53 or
• to establish or collect your fees.54
You may disclose confidential information to a lawyer or another paralegal to

secure legal advice about your proposed conduct.55
You shall not disclose more confidential information than is necessary when disclos-
ing confidential information as required or permitted by subrules (4) to (7).56
47 Rule 3.03(4).
48 Rule 3.03(9).
49 Rule 3.03(5).
50 Rule 3.03(6)(a).
51 Rule 3.03(6)(b).
52 Rule 3.03(6)(c).
53 Rule 3.03(6)(d).
54 Rule 3.03(7).
55 Rule 3.03(8).
56 Rule 3.03(9).


IMMINENT RISK OF DEATH OR SERIOUS BODILY HARM
(RULES 3.03(5), (8), (9))
You may reveal confidential information without client authority pursuant to Rule
3.03(5) if you believe on reasonable grounds that there is an imminent risk of death or
serious bodily harm and that disclosure is necessary to prevent the harm.
13. Serious psychological harm may constitute serious bodily harm if it substantially
interferes with the health or well-being of an individual.
14. A paralegal who believes that disclosure may be warranted may wish to seek
legal advice. In assessing whether disclosure of confidential information is justified
to prevent death or serious bodily harm, the paralegal should consider a number of
factors, including:
(a) the likelihood that the potential injury will occur and its imminence;
(b) the apparent absence of any other feasible way to prevent the potential
injury; and
(c) the circumstances under which the paralegal acquired the information of
the client’s intent or prospective course of action.
15. If confidential information is disclosed, the paralegal should record the

circumstances of the disclosure as soon as possible.
Future Harm and Imminent Risk

The harm must be something that will occur in the future. If a client confesses to a
harm committed in the past, you shall keep the disclosure confidential.
“Imminent” means something that is pending—that is about to happen very soon.
Generally, the client must threaten to commit the harm in the immediate future. On
the subject of what constitutes imminence, the Supreme Court of Canada in Smith v
Jones had this to say:
The risk of serious bodily harm or death must be imminent if … [confidential]

communications are to be disclosed. That is, the risk itself must be serious: a serious
risk of serious bodily harm. The nature of the threat must be such that it creates
a sense of urgency. This sense of urgency may be applicable to some time in the
future. Depending on the seriousness and clarity of the threat, it will not always be
necessary to impose a particular time limit on the risk. It is sufficient if there is a clear
and imminent threat of serious bodily harm … , and if this threat is made in such
a manner that a sense of urgency is created. A statement made in a fleeting fit of
anger will usually be insufficient … . On the other hand, imminence as a factor may
be satisfied if a person makes a clear threat to kill someone that he vows to carry out
three years hence when he is released from prison. If that threat is made with such
chilling intensity and graphic detail that a reasonable bystander would be convinced
that the killing would be carried out the threat could be considered to be imminent.57
The threat must be unconditional. There must be no mention of intervening events or

preconditions to causing the harm.
57 [1999] 1 SCR 455 at para 84.


Death or Serious Bodily Harm
The imminent risk to the victim or victims must be death or serious bodily harm. Ser-
ious bodily harm includes serious psychological harm that substantially interferes with
health or well-being—in other words, psychological damage that seriously undermines
physical health.
Reasonable Grounds
The test for reasonable grounds is both objective and subjective. Having heard the
unconditional threat to cause death or serious bodily harm, you must decide whether
a reasonable person would, in all of the circumstances, be convinced that the threat
will be carried out by the person uttering it. This is the objective standard.
You must also personally believe, based on what you know of the client, her
or his means and capacity for committing the harm threatened, and any other
relevant circumstances, that she or he will carry out the threat. This is the subjective
standard.
Necessary to Prevent Death or Harm

Disclosure of confidential information without the client’s authority is permitted only
if all of the above conditions are satisfied and you are convinced that the disclosure
is necessary to prevent the death or harm threatened by the client—in other words,
the information necessary to prevent the harm is not available from any other
source.
If it is practicable, you may consider applying to a court for an order permitting
necessary disclosure.
You may wish to consider consulting with a lawyer or another paralegal to secure
legal advice about your proposed conduct. This is a ground of permitted disclosure
under Rule 3.03(8).
The Commentary to Rule 3.3-3 of the Rules of Professional Conduct for lawyers58
(the equivalent of Paralegal Rule 3.03(5)) recommends that you confirm details of the
communication in writing:
[5] If confidential information is disclosed under rule 3.3-3, the lawyer should
prepare a written note as soon as possible, which should include:
(a) the date and time of the communication in which the disclosure is
made;
(b) the grounds in support of the lawyer’s decision to communicate the
information, including the harm intended to be prevented, the identity of
the person who prompted communication of the information as well as the
identity of the person or group of persons exposed to the harm; and
(c) the content of the communication, the method of communication used
and the identity of the person to whom the communication was made.
Your notes will be of assistance in the event of any future complaints or actions
against you.
58 Supra note 10, s 3.3-3, Commentary, para [5].


DEFENDING CIVIL LIABILITY OR ALLEGATIONS OF PROFESSIONAL
NEGLIGENCE, MISCONDUCT, OR CONDUCT UNBECOMING A PARALEGAL
(RULES 3.03(6), (8), (9))
You may, without client authority, reveal confidential information to defend against
allegations that you or your employees
• have committed a criminal offence involving a client’s affairs;

• are civilly liable with respect to a matter involving a client’s affairs;
• have committed acts of professional negligence; or
• have engaged in acts of professional misconduct or conduct unbecoming
a paralegal.59
When responding to allegations of criminal wrongdoing or civil liability, you are

permitted to disclose only as much confidential information as is necessary to defend
yourself against the allegations.60
You may wish to consider consulting with a lawyer or another paralegal to secure
legal advice about your proposed conduct. This is a ground of permitted disclosure
under Rule 3.03(8).
ESTABLISHING OR COLLECTING FEES (RULES 3.03(7), (9))

A paralegal may disclose confidential information in order to establish or collect fees.
You shall not disclose more confidential information than is necessary to establish
a fee or collect an unpaid fee.
16. If a paralegal wishes to use a collection agency for an outstanding account, the
information provided to the collection agency should be limited to that necessary
to collect the fees. Information contained in documents that is not necessary to
enforce payment should either be deleted or blocked out.
DISCLOSURE WITHOUT CLIENT AUTHORITY TO DETECT CONFLICT (RULE

3.03(10))
A paralegal may disclose confidential information to the extent reasonably

necessary to detect and resolve conflicts of interest arising from:
(a) the paralegal’s change of employment; or
(b) changes in the composition or ownership of a paralegal firm
but only if the information disclosed does not compromise client confidentiality or
otherwise prejudice the client.
16.1. Rule 3.03 provides that a paralegal may disclose information to the extent
reasonably necessary to detect and resolve conflicts of interest arising from
a paralegal’s change of employment, or from changes in the composition or
59 Rule 3.03(6).
60 Rule 3.03(9).


ownership of a paralegal firm, but only if the information disclosed does not
compromise client confidentiality or otherwise prejudice a client.
16.2. In these situations, the rule permits paralegals and law firms to disclose
limited information. This type of disclosure would only be made once substantive
discussions regarding the new relationship have occurred. This exchange of
information needs to be done in a manner consistent with the obligation to
protect client confidentiality and avoid prejudice to the client. It ordinarily would
include no more than the names of the persons and entities involved in a matter.
Depending on the circumstances, it may include a brief summary of the general
issues involved, and information about whether the representation has come to
an end.
16.3. The disclosure should be made to as few persons at the new firm as possible,
ideally to only one person. The information should always be disclosed only to the
extent reasonably necessary to detect and resolve conflicts of interest that might
arise from the possible new relationship.
16.4. Since the disclosure would be solely for the purpose of checking for conflicts,
the disclosure should be coupled with an undertaking by the new firm to the
former firm that it will:
(a) limit access to the disclosed information;
(b) not use the information for any purpose other than detecting and resolving
conflicts; and
(c) return, destroy, or store in a secure and confidential manner the
information provided once appropriate confidentiality screens are established.
16.5. The client’s consent to disclosure of such information may be specifically
addressed in a retainer agreement between the paralegal and client. In some
circumstances, however, because of the nature of the retainer, the transferring
paralegal and the new firm may be required to obtain the consent of clients to such
disclosure or to the disclosure of any further information about the clients. This is
especially the case where disclosure would prejudice the client, such as where a
person has consulted a paralegal about a criminal investigation that has not led to
a public charge.
Other Obligations Relating to Disclosure of

Confidential Information
Security of Court Facilities (Rules 3.03, 6.01(3))
Subject to Rule 3.03 relating to confidentiality, a paralegal who has reasonable

grounds for believing that a dangerous situation is likely to develop at a court
facility shall inform the persons having responsibility for security at the facility and
give particulars.
Guideline 8 states:
17. The Rules require a paralegal to disclose confidential client information in other
circumstances—for the security of court facilities, and to report certain acts of
misconduct to the Law Society.


18. Where a paralegal discloses confidential information to prevent a dangerous
situation from developing at a court facility, the paralegal should consider providing
this information to the persons having responsibility for security at the facility
anonymously or through another paralegal or a lawyer.
2. An aspect of supporting the justice system is ensuring that its facilities remain
safe. Where appropriate, a paralegal in the situation covered by Rule 6.01(3) should
consider requesting additional security at the facility and notifying other paralegals
or lawyers who may be affected. In considering what, if any, action to take with
respect to this obligation, the paralegal must consider his or her obligations under
Rule 3.03.
Duty to Report Misconduct (Rules 3.03, 9.01(2))

A paralegal shall report professional misconduct to the Law Society unless to do so
would be unlawful or would involve a breach of confidentiality between the paralegal
and the paralegal’s client.61 The obligation to report misconduct applies to the para-
legal’s own conduct as well as to that of other licensees.62
If the paralegal learns of the misconduct of another licensee from a client, the
paralegal must obtain the client’s consent to disclose information about the client to
the Law Society. The consent should be written or confirmed in writing.
If the client will not consent to disclosure of any information about himself or her-
self to the Law Society, the paralegal must report the misconduct to the Law Society in
a way that does not disclose any client information.
Rules 6.01(3) and 9.01(2) are discussed in more detail in Chapter 6.
Personal Information Protection and Electronic

Documents Act (PIPEDA)
The Personal Information Protection and Electronic Documents Act (PIPEDA)63 applies
to the collection, use, or disclosure of personal information by organizations in the
course of any commercial activity within a province.64 Organizations and/or activities in
provinces that have adopted substantially similar privacy legislation may be exempted
from PIPEDA by the federal government. Because there is no substantially similar
privacy legislation that applies to commercial activity in Ontario, PIPEDA applies to
commercial activity in the province.
PIPEDA sets up procedures for the collection, use, and disclosure of personal
information. These procedures are intended to give individuals control over how their
personal information is handled in the private sector. An organization is responsible
for the protection of personal information and the fair handling of it at all times, both
within the organization and in dealings with third parties.
61 Rule 9.01(2).
63 SC 2000, c 5 [PIPEDA].
64 Ibid, s 4(1).


In the course of providing legal services to the public, a paralegal collects, uses, and
discloses personal information about clients. That information is already protected by
your professional and ethical duty to hold client information in strict confidence, and
not to disclose it except with the client’s authorization or as required by law. However,
because paralegal firms are engaged in commercial activity in Ontario, PIPEDA applies
to the provision of legal services. You must implement a privacy policy and procedures
in compliance with PIPEDA requirements.
The “Privacy Toolkit for Businesses”65 is a help guide for businesses prepared by the
Office of the Privacy Commissioner of Canada that outlines the Act’s requirements.
The information below is a very brief summary of the content in the help guide, which
addresses the principles that businesses must follow for the protection of personal
information as set out in Schedule 1 of the Act:
1. Accountability: Appoint an individual (or individuals) to be responsible for

your organization’s compliance; protect all personal information held by your
organization or transferred to a third party for processing; and develop and
implement personal information policies and practices.
2. Identifying purposes: Your organization must identify the reasons for
collecting personal information before or at the time of collection. Before
or when any personal information is collected, identify why it is needed and
how it will be used; document why the information is collected; inform the
individual from whom the information is collected why it is needed; identify
any new purpose for the information; and obtain the individual’s consent
before using it.
3. Consent: Inform the individual in a meaningful way of the purposes for the
collection, use, or disclosure of personal data; obtain the individual’s consent
before or at the time of collection, as well as when a new use is identified.
4. Limiting collection: Do not collect personal information indiscriminately; do
not deceive or mislead individuals about the reasons for collecting personal
information.
5. Limiting use, disclosure, and retention: Use or disclose personal
information only for the purpose for which it was collected, unless the
individual consents, or the use or disclosure is authorized by the Act; keep
personal information only as long as necessary to satisfy the purposes; put
guidelines and procedures in place for retaining and destroying personal
information; keep personal information used to make a decision about a
person for a reasonable time period. This should allow the person to obtain
the information after the decision and pursue redress. Destroy, erase, or
render anonymous information that is no longer required for an identified
purpose or a legal requirement.
6. Accuracy: Minimize the possibility of using incorrect information when
making a decision about the individual or when disclosing information to
third parties.
65 Office of the Privacy Commissioner of Canada, “Privacy Toolkit for Businesses” (July 2017), online: <https://www.
priv.gc.ca/en/privacy-topics/privacy-laws-in-canada/the-personal-information-protection-and-electronic-documents-
act-pipeda/pipeda-compliance-help/guide_org>. Note that this webpage is currently being updated as at August
2019.


7. Safeguards: Protect personal information against loss or theft; safeguard
the information from unauthorized access, disclosure, copying, use, or
modification; protect personal information regardless of the format in which
it is held.
8. Openness: Inform your customers, clients, and employees that you have
policies and practices for the management of personal information; make
these policies and practices understandable and easily available.
9. Individual access: When requested, inform individuals if you have any
personal information about them; explain how it is or has been used and
provide a list of any organizations to which it has been disclosed; give
individuals access to their information; correct or amend any personal
information if its accuracy or completeness is challenged and found to be
deficient; provide a copy of the information requested, or reasons for not
providing access, subject to exceptions set out in section 9 of the Act; note
any disagreement on the file and advise third parties where appropriate.
10. Challenging compliance: Develop simple and easily accessible complaint
procedures; inform complainants of avenues or recourse, including your
organization’s own complaint procedures and those of industry associations,
regulatory bodies, and the Privacy Commissioner of Canada; investigate
all complaints received; take appropriate measures to correct information
handling practices and policies.
PIPEDA does not apply to an employee’s name, title, business address, or telephone
number, or to other employee information gathered by organizations engaged in com-
mercial activity in the private sector. However, you may wish to review your employ-
ment privacy practices and to consider including employees in your privacy policy.
Conflicts of Interest (Rule 3.04; Guideline 9)

General
Rule 1.02 defines “conflict of interest” as the existence of a substantial risk that a
paralegal’s loyalty to or representation of a client would be materially and adversely
affected by the paralegal’s own interest or the paralegal’s duties to another client, a
former client, or a third person. The risk must be more than a mere possibility; there
must be a genuine, serious risk to the duty of loyalty or to client representation arising
from the retainer.
2. The duty to avoid conflicts of interest is found in Rule 3.04(1) and (2).
3. A conflict of interest exists when there is a substantial risk that a paralegal’s
loyalty to or representation of a client would be materially and adversely affected
by the paralegal’s own interest or the paralegal’s duties to another client, a former
client, or a third person. A “substantial risk” is one that is significant and plausible,
even if it is not certain or even probable that it will occur. There must be more than
a mere possibility that impairment will occur.


A paralegal shall not act or continue to act for a client where there is a conflict of
interest, except as permitted by Rule 3.04.66
A paralegal shall not advise or represent opposing parties in a dispute.67
A dispute is an argument or disagreement between two or more persons in which dispute
the interest of one side is adverse to the interest of the other side. A paralegal cannot an argument or disagreement
act for opposing parties in a dispute, because to do so would impair the paralegal’s between two or more parties in
judgment on behalf of and loyalty to one or both parties. which the interest of one side is
adverse to that of the other side
To Whom Is the Duty Owed?

You owe the duty of avoidance of conflicts of interest to all clients, including former
clients and prospective clients.
4. Rule 3.04 protects the duties owed by paralegals to their clients and the
paralegal – client relationship from impairment as a result of a conflicting duty
or interest. A client’s interests may be seriously prejudiced unless the paralegal’s
judgment and freedom of action on the client’s behalf are as free as possible from
conflicts of interest. A paralegal owes the duty of avoiding conflicts of interest to all
clients, including prospective clients. A paralegal should identify potential conflicts
of interest at the first contact with a prospective client. A prospective client can
be described as one who has consulted with a paralegal or paralegal firm to see if
the firm will take on his or her matter or to see if he or she would like to hire the
paralegal or firm.
• • •
7. In addition to the duties of representation arising from a retainer, the law
imposes other duties on the paralegal, particularly the duty of loyalty. The duty of
confidentiality, the duty of candour and the duty of commitment to the client’s
cause are aspects of the duty of loyalty. The rule protects all of these duties from
impairment by a conflicting duty or interest.
Conflicts of interest can arise in many different sets of circumstances. Guideline 9

comments:
8. Examples of conflicts of interest include: personal interest conflicts, current

client conflicts, former client conflicts and conflicts arising from duties to other
persons.
Personal Interest Conflicts

9. A paralegal’s own interests can impair client representation and loyalty. This can
be reasonably obvious, for example, where a paralegal is asked to represent a client
in respect of a matter in which the paralegal, the paralegal’s partner or associate
or a family member has a material direct or indirect financial interest. Another
example of a personal interest conflict is a close personal relationship, sexual or
otherwise, with a client.
66 Rule 3.04(1).
67 Rule 3.04(2).


Current Client Conflicts
10. Duties owed to another current client may also impair client representation
and loyalty. Representing opposing parties in a dispute provides a particularly stark
example of a current client conflict.
11. A bright line rule has been developed by the courts to protect the
representation of and loyalty to current clients. Subject to certain limited
exceptions, the bright line rule holds that a paralegal cannot act directly adverse
to the immediate legal interests of a current client, without the client’s consent.
Paralegals should assume that matters undertaken against a current client are
directly adverse to the immediate legal interests of that current client and that the
bright line rule ordinarily applies because of the nature of paralegal practice.
Former Client Conflicts

12. Duties owed to a former client can impair client representation and loyalty.
Conflicts Arising From Duties to Other Persons

13. Duties owed to other persons can impair client representation and loyalty.
Paralegals should carefully consider the propriety, and the wisdom, of “wearing
more than one hat” at the same time.
The Rule 1.02 definition of “client” includes a client of the firm of which the para-
legal is a partner or associate, whether or not the paralegal handles the client’s work.
15. Since every client of a paralegal firm is also the client of every other paralegal
employed at the firm, if one paralegal in the firm has a conflict of interest in a
matter, then all paralegals in the firm have a conflict in that matter. As a result,
when checking for conflicts, the paralegal should review the names of all current
and former clients of the firm and not just the clients personally served by the
individual paralegal.
Managing Conflicts of Interest

How do you find out whether a conflict of interest may exist in respect of a particular
client or a particular client matter? Guideline 9 comments:
5. Conflicts of interest may arise at any time. A paralegal should use a conflicts
checking system to assist in managing conflicts of interest. The paralegal should
examine whether a conflict of interest exists not only at the outset, but throughout
the duration of a retainer because new circumstances or information may establish
or reveal a conflict of interest.
A conflicts checking system is a searchable database of information about pro-

spective, current, and former clients, as well as information about related persons
and opposing or adverse parties. The database should include fields for the following
information (the list is not exhaustive):
• client’s name, and aliases and former names, if applicable;

• client contact information;
• date the file was opened;


• client file name and active file code;
• subject matter of the file;
• date the file was closed, and closed file code; and
• names and contact information of related persons, and of conflicting or adverse
parties (if available), cross-referenced to the client file.
The database may be maintained in a paper or electronic format. Some legal soft-
ware applications automatically enter client and other data into a conflicts database
as new client matters are opened.
As part of your conflicts checking system, you should have standard office proced-
ures in place for conducting a conflicts search at critical points in the paralegal – client
relationship. Your first search should take place after the initial contact with a pro-
spective client. You should search for conflicts again when you have more information
about the client and about related or adverse parties. If a retainer is entered into,
you should consider conducting a conflicts search any time a new party is added in a
proceeding. If a conflict arises after you are retained, you may be required to withdraw
from representing the client.
Conflict of Interest: Client Consent (Rules 3.04(3)-(5))

Rule 3.04(1) states that “[a] paralegal shall not act or continue to act for a client
where there is a conflict of interest, except as permitted under this rule.” In limited
circumstances, you are permitted to act or continue to act for a client where there is
a conflict of interest if you obtain the client’s consent to do so. Rule 3.04(3) states:
(3) A paralegal shall not represent a client in a matter when there is a conflict of
interest unless
(a) there is consent which must be fully informed and voluntary after
disclosure from all affected clients; and
(b) the paralegal reasonably believes that he or she is able to represent each
client without having a material adverse effect upon the representation of or
loyalty to the other client.
Rule 1.02 states that “consent” means fully informed and voluntary consent
after disclosure:
(a) in writing, provided that where more than one person consents, each signs the
same or a separate document recording the consent, or
(b) orally, provided that each person consenting receives a separate written
communication recording their consent as soon as practicable.
Disclosure
If you have considered the nature of the conflict and have reasonably concluded that
you are able to represent the client without such representation having a material
adverse effect upon your representation of or loyalty to the other client or clients, you
may accept the retainer if all affected clients consent.68
68 Rule 3.04(3)(a).


16. Disclosure is an essential element to obtaining a client’s consent and arises

from the duty of candour owed to the client. The client needs to know of anything
that may influence the paralegal’s judgment or loyalty. Once the paralegal has
provided the client with all the details, the paralegal must allow the client time to
consider them or to ask for further clarification.
• • •
18. The client may only consent after being given all information required to make
an informed decision. This is called informed consent. Disclosure is an essential
requirement to obtaining a client’s consent and arises from the duty of candour
owed to the client. …
19. Disclosure means full and fair disclosure of all information relevant to a person’s
decision in sufficient time for the person to make a genuine and independent
decision, and the taking of reasonable steps to ensure understanding of the
matters disclosed. The paralegal should therefore inform the client of the relevant
circumstances and the reasonably foreseeable ways that the conflict of interest could
adversely affect the client’s interests. This would include the paralegal’s relation to
the parties and any interest in and connection with the matter.
Consent
Your disclosure must provide sufficient detail about the conflict to enable the client to
make an informed decision about whether retaining you is in her or his best interest in
the circumstances. When providing disclosure, you must carefully consider your duty to
other clients, and whether you can provide the disclosure required without breaching
that duty.
20. Following the required disclosure, the client can decide whether to give
consent. Factors to be taken into consideration may include the availability of
another paralegal of comparable expertise and experience, the stage that the
matter or proceeding has reached, the extra cost, delay and inconvenience involved
in engaging another paralegal, and the latter’s unfamiliarity with the client and the
client’s affairs.
• • •
17. There may be situations where it is impossible for a paralegal to give a client or
prospective client all necessary information. This may happen when the details about
the conflict involve another client or a former client. Since a paralegal cannot reveal
confidential information regarding another client, the paralegal may only say that
there is a conflict and that he or she cannot continue with or accept the retainer.
• • •
25. In some cases, the only way to deal with the conflict is to refuse to act. The
paralegal may have to decline the retainer at the outset or may have to terminate
the retainer and withdraw from representing the client at a later time. A paralegal
may need to take this step even where the client wants the paralegal to accept the
retainer, or to continue to act.


Independent Legal Advice
In certain situations, the client’s informed and written consent is not enough to allow
you to accept or continue in a matter. This may happen when the client is unsophist-
icated or vulnerable, or when the conflict is such that the client cannot possibly assess
all of its possible implications without impartial, confidential, professional assistance.
22. … In some circumstances, the client must receive advice from an independent
legal advisor regarding the matter or transaction before the paralegal may take any
further steps in the client’s matter.
23. An independent legal advisor is another paralegal or a lawyer who can provide
the client with independent legal advice. This advisor is unrelated to the client’s independent legal advice
matter, associated parties or the paralegal. He or she is unbiased and objective and impartial, confidential advice
does not have a conflict of interest. obtained from a competent
licensee with no personal
Independent Legal Representation interest in the matter; also
called ILA
In situations where the conflict of interest is such that you must decline the retainer,
independent legal
you must advise the client to seek independent legal representation. Independent
representation
legal representation is legal advice and assistance from a competent paralegal or legal advice and assistance
lawyer with no personal interest in the matter. from a competent paralegal
Guideline 9 comments: or lawyer with no personal
interest in the matter
24. In circumstances where the paralegal is prohibited from acting for a client or
prospective client, the paralegal must suggest that the individual obtain his or her
own independent legal representation. Independent legal representation means
that the individual has retained a legal representative, either a paralegal or a lawyer,
to act as his or her own representative in the matter. This retained representative is
objective and does not have any conflicting interest with regards to the matter.
Consent—Prospective Client
Guideline 9 defines a prospective client as a person “who has consulted with a para-
legal or paralegal firm to see if the firm will take on his or her matter or to see if he
or she would like to hire the paralegal or firm.”69 At the initial consultation, certain
information (such as the client’s name, including any aliases, and contact information)
should be obtained from the client and entered into your conflicts checking system.
A conflicts search should be carried out before there is any further contact with the
prospective client. The results of the search should be reviewed by the paralegal.
If the search reveals the existence of a substantial risk that your loyalty to or rep-
resentation of a client would be materially and adversely affected by your own interest
or your representation of or loyalty to another client, you must consider whether you
should accept the retainer or decline to represent the prospective client. When making
this decision, you must consider whether, in the circumstances, you can comply with Rule
3.04(3), which requires you to obtain from all clients affected by the conflict consent that


is fully informed and voluntary after disclosure; and it must be reasonable for you to
conclude that you are able to represent each client without that representation’s having
a material adverse effect upon the representation of or loyalty to the other client(s).
BOX
4.9
CONFLICTS OF INTEREST: WHO IS THE CLIENT?
Any person who is a client of the paralegal firm of which you are a partner or an
associate is a client, regardless of whether you actually handle that person’s work.70
In a busy firm with many clients and/or a high client turnover, you may have no
knowledge of a client’s existence or that your firm ever represented that client.
Nevertheless, a paralegal – client relationship exists between you and that client and
entails various duties, including the duty of confidentiality and the duty to avoid
conflicts of interest.
Since every client of a paralegal firm is also the client of every other paralegal in
the firm, if one paralegal has a conflict of interest in a matter, then all paralegals in
the firm have a conflict of interest in that matter.71
This means that when you check for conflicts, you must search the names of all
current and former clients of the firm, not just the clients you personally have repre-
sented in the past or currently represent.
Conflict of Interest—Prospective Client Declines the Retainer

If, having reviewed the disclosure provided, the prospective client declines to retain
you, you should confirm the client’s decision in a non-engagement letter. The non-
engagement letter should recommend that the client obtain legal advice and assist-
ance through independent legal representation from a competent licensee with no
personal interest in the matter. See Appendix 3.3 for a sample non-engagement letter
to a prospective client who has declined to retain you based on a conflict of interest.
Conflict of Interest—Paralegal Declines to Represent

Prospective Client
Guideline 9 notes that there may be situations in which the only way to deal with
a conflict is to refuse to act. This may occur when you cannot provide adequate
disclosure because of your duties to other clients, or where it is not reasonable for
you to conclude that you are able to represent the prospective client without that
representation having a material adverse effect upon your representation of or loyalty
to other client(s).
You should confirm your decision to decline the retainer in writing in a non-
engagement letter. The non-engagement letter should recommend that the client
obtain independent legal representation.
See Appendix 3.4 for a sample non-engagement letter to a prospective client where
the paralegal has declined the retainer based on a conflict of interest.
70 Rule 1.02, at “client.”



Conflict of Interest—Existing Client
Existing client matters should be checked for conflicts at critical points throughout the
paralegal – client retainer. You should conduct a conflict search any time a new party
is added or new information about the client matter comes to light. If a conflict arises
after you are retained, you may be required to withdraw from representing the client.
If a conflict search reveals a conflict or potential conflict in an existing client mat-
ter, you must provide disclosure of the conflict to the client, and you must consider
whether or not to continue to act in the matter, having regard to Rules 3.04(1), (2),
and (3)(b) and to Guideline 9.
Conflict of Interest—Existing Client Terminates Retainer

If, having reviewed the disclosure provided, an existing client decides to terminate the
retainer, you should confirm the termination of the retainer in writing. If the client
requests that the matter be transferred to another paralegal or a lawyer, you should
obtain a direction, in writing and signed by the client, for release of the client’s file
to the successor licensee. If the client collects the file in person, you should obtain
an acknowledgment in writing, signed by the client, confirming that the client has
received the file.
Conflict of Interest—Paralegal Withdraws from Representation

of Existing Client
If, having considered the nature of the conflict, Rule 3.04, and Guideline 9, you
conclude that you must terminate the retainer and withdraw from representing an
existing client, you must advise the client that there is a conflict of interest and that
you must withdraw from representation. You should confirm your decision in writing
to the client.
When withdrawing your services, you shall comply with Rule 3.08. You must give
the client notice that is appropriate to the circumstances, try to minimize expense and
avoid prejudice to the client, and do all that can reasonably be done to facilitate the
orderly transfer of the client matter to a successor licensee.
Consent—Future Conflicts
Guideline 9 suggests that a paralegal may be able to request that a client consent in
advance to conflicts that might arise in future:
21. … The effectiveness of such consent is generally determined by the extent

to which the client understands the material risks involved. A paralegal may wish
to recommend that the client obtain independent legal advice before deciding
whether to provide consent. Advance consent should be recorded in writing.
The commentary to Rule 3.4-2 of the Rules of Professional Conduct for lawyers72
elaborates as follows:
[4] … As the effectiveness of such consent is generally determined by the extent to

which the client reasonably understands the material risks that the consent entails,
72 Supra note 10.


the more comprehensive the explanation of the types of future representations
that might arise and the actual and reasonably foreseeable adverse consequences
of those representations, the greater the likelihood that the client will have
the requisite understanding. A general, open-ended consent will ordinarily be
ineffective because it is not reasonably likely that the client will have understood
the material risks involved. If the client is an experienced user of the legal services
involved and is reasonably informed regarding the risk that a conflict may arise,
such consent is more likely to be effective, particularly if, for example, the client is
independently represented by other counsel in giving consent and the consent is
limited to future conflicts unrelated to the subject of the representation.
Conflicts of Interest Arising from Personal

Relationships (Rule 3.04(1))
There is nothing in the Rules that prohibits a paralegal from providing legal services to
family members or friends. You have the same obligations to a client who is a friend
or family member as you do when representing other clients, including the duty to
avoid existing or potential conflicts of interest. If there is anything in your personal
relationship with a friend or a family member who is a prospective client that may
adversely affect your judgment on behalf of or loyalty to that person, you should
consider declining the retainer.
47. A conflict of interest may arise when a paralegal provides legal services to a
friend or family member, or when the client and the paralegal have a sexual or
intimate personal relationship. In these circumstances, the paralegal’s personal
feelings for the client may impede the paralegal’s ability to provide objective,
disinterested professional advice to the client. Before accepting a retainer from
or continuing a retainer with a person with whom the paralegal has a sexual or
intimate personal relationship, a paralegal should consider the following factors:
• The vulnerability of the client, both emotional and economic;
• The fact that the paralegal and client relationship may create a power
imbalance in favour of the paralegal or, in some circumstances, in favour of the
client;
• Whether the sexual or intimate personal relationship may jeopardize the
client’s right to have all information concerning the client’s business and
affairs held in strict confidence. For example, the existence of the personal
relationship may obscure whether certain information was acquired by the
paralegal in the course of the paralegal and client relationship;
• Whether such a relationship may require the paralegal to act as a witness in
the proceedings;
• Whether such a relationship may interfere with the paralegal’s fiduciary
obligations to the client, including his or her ability to exercise independent
professional judgment and his or her ability to fulfill obligations to the
administration of justice.
48. Generally speaking, there is no conflict of interest if another paralegal or

lawyer at the firm who does not have a sexual or intimate personal relationship
with the client handles the client’s matter.


BOX
4.10
PERSONAL RELATIONSHIPS
Fact Situation
A year ago, you broke off a relationship with a man with whom you were sexually
involved for over two years. You were never really committed to the relationship,
and toward the end you became very impatient with his inability to make decisions
and what you perceived as his manipulative behaviour and emotional dependency
on you. When he began to pressure you to marry him, you ended the relationship.
After you stopped seeing him, he phoned and emailed you frequently, promising
to change whatever was wrong and asking to see you. You did not respond to his
calls or emails, and after five or six months, they tapered off and finally ceased.
Two days ago, your former partner contacted you at your firm. He assured you
that his reasons for wanting to see you were purely professional—to consult with
you about some problems he was having with his landlord.
You suspect that this is just another ploy for getting back into your life. You
would prefer to have nothing more to do with him.

Are you obliged to represent this client?
Outside Interests and Public Office (Rules 2.01(4),

(5), 3.04; Guidelines 2, 9)
A paralegal who engages in another profession, business, occupation, or other outside
interest, or who holds public office concurrently with the provision of legal services,
shall not allow the outside interest or public office to jeopardize the paralegal’s
integrity, independence, or competence.73 A paralegal shall not allow involvement
in an outside interest or public office to impair the exercise of his or her independent
judgment as a paralegal on behalf of a client.74
49. A conflict of interest may arise from the paralegal’s outside interests. Outside
interests covers the widest possible range of activities and includes those that
may overlap with the business of providing legal services, as well as activities that
have no connection to the law or working as a paralegal. If a paralegal has other
businesses or interests separate from his or her paralegal firm, those interests may
influence the way the paralegal serves clients. Whatever the outside interest, a
paralegal must guard against allowing those outside interests to interfere or conflict
with his or her duties to clients. (Also refer to Guideline 2: Outside Interests.)
50. If a paralegal is in public office while still providing legal services to clients,
the paralegal must not allow his or her duties as a public official to conflict
with his or her duties as a paralegal. If there is a possibility of a conflict of
interest, the paralegal should avoid it either by removing himself or herself
73 Rule 2.01(4).
74 Rule 2.01(5).


from the discussion and voting in the public capacity or by withdrawing from
representation of the client.
3. It is the paralegal’s responsibility to consider whether the outside interest may

impair his or her ability to act in the best interest of his or her client(s). If so, the
paralegal must withdraw, either from representation of the client or from the
outside interest.
BOX
4.11
OUTSIDE INTERESTS
You are a partner, along with two other paralegals, in a paralegal firm. You serve
on the board of directors of a publicly funded community legal clinic that provides
legal advice and services to people in the community who meet income and other
criteria set by the funding agency. Many of the clinic’s clients are residential tenants.
The services provided by the clinic include summary advice and, in some cases, repre-
sentation before the Landlord and Tenant Board. As a director, your role is to review
budgetary and administrative issues, as well as clinic outreach and other initiatives
within the clinic mandate. You do not provide legal advice to the clinic. You are not
privy to confidential information about individual client matters.
One of your partners has several clients who are residential landlords. During a
conversation with you, she mentions that she is going to be busy for the next few
months dealing with multiple applications by tenants in a residential complex owned
by one of her landlord clients, XYZ Properties Inc. The paralegal representing the
tenants is an employee of the legal clinic upon whose board you serve. “They’re
asking for thousands of dollars in rent abatements for non-repair, breaches of the
Fire Code, you name it,” your partner says. “My guy won’t be happy when he finds
out you’re a director on their board. He’ll think it’s a conflict of interest.”
“He’s your client, not mine,” you reply. “I don’t owe him anything. And I haven’t
done anything wrong.”

Is XYZ Properties Inc. your client? If yes, is there a conflict of interest?
Acting Against Former Clients (Rules 3.04(2), (4)(a), (b))

A paralegal shall not advise or represent opposing parties in a dispute.75
Acting Against Former Clients in the Same or Related Matters

(Rules 3.04(2), (4)(a), (b))
Unless the former client consents, a paralegal shall not act against a former client in
the same matter or a related matter.76 The client consent must be fully informed and
voluntary after disclosure. It should be in writing or confirmed in writing.
75 Rule 3.04(2).
76 Rules 3.04(4)(a), (b).


You are prohibited from acting against a former client in the same matter because
you possess confidential information about the client that is relevant to issues in the
matter. Your duty to the former client requires you to hold that information in strict
confidence. Your duty as legal representative to an adverse party in the same proceed-
ing requires you to disclose that information for the adverse party’s benefit, to the
possible detriment of your former client. The two duties conflict.
A related matter is a matter involving issues that are similar or related to the issues
in the original client matter. If you have acted for a client in a matter, you shall not,
after that, act against the former client in a matter related to the client matter.
You are prohibited from doing so because you possess confidential information
about the former client from the original client matter that is relevant to issues in the
related matter. Your duty to the former client requires you to hold that information in
strict confidence. Your duty as legal representative to an adverse party in the related
matter may require you to disclose that information for the benefit of the adverse
party, to the possible detriment of the former client. The two duties conflict.
Acting against a former client in the same or a related matter also raises issues
about your loyalty to your clients.
Acting Against Former Clients in New Matters

(Rules 3.04(4)(c), (5))
Unless the former client consents, a paralegal shall not act against a former client
in any new matter except as provided in subrule (5), if the paralegal has relevant
confidential information arising from the representation of the former client that may
prejudice the client.77
(5) If a paralegal has acted for a client and obtained confidential information
relevant to a matter, the paralegal’s partner or employee may act in a subsequent
matter against that client, provided that:
(a) the former client consents to the paralegal’s partner or employee acting; or
(b) the paralegal’s firm establishes that it has taken adequate measures on
a timely basis to ensure that there will be no risk of disclosure of the former
client’s confidential information to the other licensee having carriage of the
new matter.
Guideline 9 recommends:
32. Even where the Rules do not prohibit a paralegal from acting against a client
or former client, the paralegal should consider whether to accept the retainer
(or continue acting). To act against a client or former client may damage the
paralegal – client relationship, [and/or] result in court proceedings or a complaint to
the Law Society.
Joint Retainers (Rules 3.04(6)-(12); Guidelines 5, 9)

A joint retainer is an arrangement whereby a paralegal agrees to represent two or
more clients in the same matter. The clients in a joint retainer are called joint clients.
77 Rule 3.04(4)(c).


27. Acting in a joint retainer places the paralegal in a potential conflict of interest.
A paralegal has an obligation to all clients and in a joint retainer, the paralegal must
remain loyal and devoted to all clients equally—the paralegal cannot choose to
serve one client more carefully or resolutely than any other. If the interests of one
client change during the course of the retainer, the paralegal may be in a conflict of
interest.
Before agreeing to a joint retainer, you must clearly identify the clients to whom
you will be providing legal services, to ensure that you can fulfill your duties to
them.78 You must carry out a conflicts search to ensure that there are no conflicts of
interest. You should determine who will provide you with instructions in the matter,
and confirm the arrangement in the retainer agreement.
Although the Rules do not require this, Guideline 9 recommends:
28. In cases where one of the joint clients is not sophisticated or is vulnerable, the
paralegal should consider the provisions of Rule 3.02(13) and (14) regarding clients
under a disability. The paralegal may want to recommend that the client obtain
independent legal advice prior to agreeing to the joint retainer. This will ensure that
the client’s consent to the joint retainer is informed, genuine, and not obtained
through coercion.
(6) Before agreeing to act for more than one client in a matter or transaction, a
paralegal shall advise the clients that,
(b) no information received in connection with the matter from one client can
be treated as confidential so far as any of the others are concerned; and
(c) if a conflict develops that cannot be resolved, the paralegal cannot
continue to act for both or all of them and may have to withdraw
completely.
If a paralegal has a continuing relationship with a client for whom the paralegal
acts regularly, before agreeing to act for that client and another client in a matter
or transaction, the paralegal shall advise the other client of the continuing relation-
ship and recommend that the client obtain independent legal advice about the joint
continuing relationship retainer.79 A continuing relationship is a paralegal – client relationship in which you
a paralegal – client relationship act for the same client in several different matters or transactions over a period of
in which a paralegal acts for the time. A continuing client is a client for whom you act in several different matters or
same client in several different transactions over a period of time.
matters or transactions over a
If you have advised all joint retainer clients in accordance with Rules 3.04(6)
period of time
and (7) and they are in agreement that you should act for them, you shall obtain
their consent.80 Consent must be fully informed and voluntary after disclosure.81
79 Rule 3.04(7).
80 Rule 3.04(8).
81 Rule 1.02, at “consent.”


Consent to a joint retainer must be obtained from each client in writing, or must
be recorded through a separate written communication to each client.82
Contentious Issue (Rules 3.04(10)-(12))

Although all clients may consent to the joint retainer, you shall avoid acting for more
than one client if it is likely that a contentious issue will arise between them or that
their interests, rights, or obligations will diverge as the matter progresses.83
(11) Except as provided by subrule (12) if a contentious issue arises between two
clients who have consented to a joint retainer, the paralegal must not advise either
of them on the contentious issue and the following rules apply:
(i) refer the clients to other licensees for that purpose; or
(ii) if no legal advice is required and the clients are sophisticated, advise
them of their option to settle the contentious issue by direct negotiation
in which the paralegal does not participate.
(b) If the contentious issue is not resolved, the paralegal shall withdraw from
the joint representation.
If your clients consent to a joint retainer and also agree that, if a contentious issue
arises, you may continue to advise one of them, and a contentious issue does arise,
you may advise the designated client about the contentious issue. You shall refer the
other client(s) to another licensee for that purpose.84
Unrepresented Parties (Rules 3.04(6)-(12), 4.05)

When providing legal services, you may find yourself dealing with opposing parties or
other individuals with an interest in the matter who are not represented by a paralegal
or a lawyer. A conflict of interest may arise if the unrepresented person comes to
believe that you are protecting her or his interests.
Rule 4.05 states:
4.05 When a paralegal deals on a client’s behalf with an unrepresented person, the
paralegal shall,
(a) take care to see that the unrepresented person is not proceeding under the
impression that his or her interests will be protected by the paralegal; and
(b) make clear to the unrepresented person that the paralegal is acting
exclusively in the interests of the client and accordingly his or her comments
may be partisan.
Making it clear to the unrepresented person that you are acting exclusively in the
interests of your own client may require more than simply saying this to the unrepre-
sented person. In some circumstances, it may be prudent to provide the unrepresented
person with confirmation in writing. You will find an example of an “I am not your
legal representative” letter in Appendix 3.5.
82 Rule 3.04(9).
83 Rule 3.04(10).
84 Rule 3.04(12).


41. If an unrepresented person who is the opposite party requests the paralegal
to advise or act in the matter, the paralegal is not permitted to accept the retainer.
If the unrepresented party otherwise has an interest in the matter, such as a
co-accused, the paralegal may be permitted to act, but should be governed by the
considerations outlined in Rule 3.04(6) – (12) about joint retainers.
Multi-Discipline Practice (By-Law 7, Part III;

Rules 3.04(13), 8.01)
multi-discipline practice A multi-discipline practice is a business arrangement that permits paralegal licensees
a business arrangement that to enter into a partnership or association that is not a corporation with non-licensees
permits paralegal licensees to to provide to clients the services of a non-licensee who practises a profession, trade, or
provide to clients the services of occupation that supports or supplements the provision of legal services.85 The paralegal
a non-licensee who practises a licensee must have effective control over the provision of services by non-licensees to
profession, trade, or occupation
clients of the multi-discipline practice.86
that supports or supplements
the provision of legal services;
also called MDP
17. In a multi-discipline practice, a paralegal should be particularly alert to ensure
that the client understands that he or she is receiving legal services only from the
paralegal. If advice or service is sought from non-licensed members of the firm,
it should be sought and provided independently of and outside the scope of the
retainer for the provision of legal services. A paralegal should also be aware that
advice or services provided by a non-licensed member of the firm will be subject
to the constraints outlined in the relevant By-Laws and Rules governing multi-
discipline practices. One way to distinguish the advice or services of non-licensed
members of the firm is to ensure that such advice or services is provided from a
location separate from the premises of the multi-discipline practice.
A paralegal in a multi-discipline practice is required to assume complete professional

responsibility for all business entrusted to him or her.87 In accordance with By-Law
7.1, Part I, and Rule 8.01(5), a paralegal in a multi-discipline practice shall ensure
that non-licensee partners and associates comply with the Rules and with all ethical
principles that govern paralegals in the discharge of their professional obligations.
affiliation
These professional and ethical duties include the duty to hold all client information in
strict confidence and the duty to avoid conflicts of interest.
paralegal services firm provides
legal services to the public
jointly with a non-legal entity Affiliations (By-Law 7, Part IV; Rules 1.02,
whose members practise a 3.04(14)-(16))
profession, trade, or occupation
that supports or supplements A paralegal firm may form an affiliation with a non-legal entity whose members prac-
the paralegal’s provision of tise a profession, trade, or occupation that supports or supplements the paralegal’s
legal services provision of legal services (“affiliated entity”). An affiliation is considered to have
85 By-Law 7, s 18(1).
86 Ibid, s 18(2)2.
87 Rule 8.01(1).


formed when the paralegal on a regular basis joins with the affiliated entity in the affiliated entity
delivery and promotion of their services to the public.88 any person or group of
Rules 3.04(14) to (16) state: persons other than a person
or group authorized to provide
(14) Where there is an affiliation, before accepting a retainer to provide legal legal services in Ontario;
services to a client jointly with non-legal services of an affiliated entity, a paralegal a non-licensee or group of
shall disclose to the client non-licensees
(a) any possible loss of confidentiality because of the involvement of the affiliated
entity, including circumstances where a non-licensee or staff of the affiliated
entity provide services, including support services, in the paralegal’s office;
(b) the paralegal’s role in providing legal services and in providing non-legal
services or in providing both legal and non-legal services, as the case may be;
(c) any financial, economic or other arrangements between the paralegal
and the affiliated entity that may affect the independence of the paralegal’s
representation of the client, including whether the paralegal shares in the
revenues, profits or cash flows of the affiliated entity; and
(d) agreements between the paralegal and the affiliated entity, such as
agreements with respect to referral of clients between the paralegal and
the affiliated entity, that may affect the independence of the paralegal’s
representation of the client.
(15) Where there is an affiliation, after making the disclosure as required by
subrule (14), a paralegal shall obtain the client’s consent before accepting a retainer
under that subrule.
(16) Where there is an affiliation, a paralegal shall establish a system to search for
conflicts of interest of the affiliation.
52. A conflict of interest may arise from a paralegal’s, or his or her associate’s,
interest in an affiliated firm of non-licensees where that interest conflicts with the
paralegal’s duties to a client. Rule 3.04(14) and (15) impose disclosure and consent
requirements on a paralegal in an affiliation.
53. Conflicts of interest arising out of a proposed retainer by a client should be
addressed as if the paralegal’s practice and the practice of the affiliated entity were
one where the paralegal accepts a retainer to provide legal services to that client
jointly with non-legal services of the affiliated entity.
54. The affiliation is subject to the same conflict of interest rules as apply
to paralegals.
Civil Society Organizations (Rules 3.04(17)-(22))

For purposes of the Rules, a “civil society organization” means a registered charity
under the Income Tax Act89 of Canada, a not-for-profit corporation incorporated
under the laws of Ontario, or a not-for-profit corporation permitted under the laws of
Ontario to operate in the province.90
88 By-Law 7, s 31(2).
89 RSC 1985, c 1 (5th Supp).
90 See Rule 1.02, at “civil society organization.”


Rule 3.04(18) provides the following definitions for purposes of subrules 18 to 21:
(18) In this rule,

“paralegal’s firm” means the paralegal firm at which the pro bono paralegal
provides legal services as a partner, associate, employee, or otherwise;
“pro bono provider” means a pro bono or not-for-profit legal service provider that
makes pro bono paralegals available to provide advice or representation to clients;
“pro bono paralegal” means (i) a volunteer paralegal who provides short-term
pro bono services to clients under the auspices of a pro bono provider; or (ii) a
paralegal providing services under the auspices of a Pro Bono Ontario program;
“short-term pro bono services” means pro bono legal services or representation
to a client under the auspices of a pro bono provider with the expectation by the
pro bono paralegal and the client that the pro bono paralegal will not provide
continuing legal services or representation in the matter.
A rough translation of “pro bono “ is “for free” or “for the public good.” In Ontario,
pro bono legal services are generally provided by public organizations such as Legal
Aid Ontario.
A pro bono paralegal may provide short-term pro bono services without taking
steps to determine whether there is a conflict of interest arising from duties owed to
current or former clients of the paralegal’s firm or of the pro bono provider.91
A pro bono paralegal shall take reasonable measures to ensure that no disclo-
sure of the client’s confidential information is made to another paralegal in the
paralegal’s firm.92
A pro bono paralegal shall not provide or shall cease providing short-term pro
bono services to a client where the pro bono paralegal knows or becomes aware of a
conflict of interest.93
A pro bono paralegal who is unable to provide short-term pro bono services to a
client because there is a conflict of interest shall cease to provide such services as soon
as the paralegal becomes aware of the conflict of interest and shall not seek the pro
bono client’s waiver of the conflict.94
The following amendments to Guideline 7 were presented by the Professional
Regulation Committee to Convocation in February 2019. As of July 15, 2019, they
had not yet been incorporated into the Guideline. The proposed paragraphs 19 and
20 are included here for readers’ information.
19. Paralegals who provide legal services through civil society organizations to
clients are required to control the delivery of legal services. The paralegal should
take care to:
(a) act on behalf of the client’s interest;
(b) advise the client honestly and candidly about the nature, extent and
scope of the services that the paralegal can provide through the civil society
organization; and
(c) avoid conflicts of interest between the client and the civil society organization.
91 Rule 3.04(19).
92 Rule 3.04(20).
93 Rule 3.04(21).
94 Rule 3.04(22).


20. Where other services are provided through the civil society organization, or where
the paralegal’s services are provided together with other services, the paralegal should
take care to protect client confidentiality and privilege, and should only disclose client
confidential or privileged information with client consent, or as required by law.95
The Commentary to Rules 3.4-16.3 to 3.4-16.6 “Short-term Pro Bono Legal Services”
in the Rules of Professional Conduct for lawyers96 may also be of assistance to paralegals:
[1] Short-term legal pro bono services, such as duty counsel programs, are usually
offered in circumstances in which it may be difficult to systematically screen for
conflicts of interest in a timely way, despite the best efforts and existing practices
and procedures of the pro bono provider[,] the pro bono lawyer and the lawyer’s
firm. Performing a full conflicts screening in circumstances in which short-term pro
bono services are being offered can be very challenging given the timelines, volume
and logistics of the setting in which the services are provided. The time required to
screen for conflicts may mean that qualifying individuals for whom these brief legal
services are available are denied access to legal assistance.
[2] The limited nature of short-term pro bono services significantly reduces the
risk of conflicts of interest. Accordingly, the lawyer is disqualified from acting for
a client receiving short-term pro bono legal services only if the lawyer has actual
knowledge of a conflict of interest in the same or a related matter. For example,
a conflict of interest of which the lawyer has no actual knowledge but which is
imputed to the lawyer because of the lawyer’s membership in or association or
employment with a firm would not preclude the lawyer from representing the
client seeking short-term pro bono services.
[3] In the provision of short-term pro bono legal services, the lawyer’s knowledge
about conflicts is based on the lawyer’s reasonable recollection and information
provided by the client in the ordinary course of the consulting with the pro bono
provider regarding the short-term pro bono services.
[4] The disqualification of a lawyer participating in a short-term pro bono services
program does not create a conflict for the other lawyers participating in the
program, as the conflict is not imputed to them.
[5] Confidential information obtained by a lawyer representing a pro bono client will
not be imputed to the lawyers, paralegals and others at the lawyer’s firm. As such,
these people may continue to act for another client adverse in interest to the pro bono
client and may act in future for another client adverse in interest to the pro bono client.
Transfers Between Paralegal Firms

Interpretation and Application of Rule 3.05
Rule 3.05 addresses problems that may arise when a paralegal moves from one firm
to another.
95 Law Society of Ontario, Professional Regulation Committee, Report to Convocation (28 February 2019), online:
<https://lawsocietyontario.azureedge.net/media/lso/media/about/convocation/2019/convocation-feb-2019
-profregcommitteereport.pdf>. © The Law Society of Ontario, 2015–2019. All rights reserved. Reprinted with
permission of The Law Society of Ontario.
96 Supra note 10.


33. Problems concerning confidential information may arise when a paralegal
changes firms and the firms act for opposing clients in the same or a related
matter. The potential risk is that confidential information about the client from the
paralegal’s former office may be revealed to the members of the new firm and used
against that client. A paralegal should carefully review the Rules when transferring
to a new office or when a new paralegal is about to join the paralegal firm.
For purposes of Rule 3.05, the term “matter” means a case, a transaction, or other
client representation, but within such representation does not include offering general
“know-how” and, in the case of a government paralegal, providing policy advice
unless the advice relates to a particular client representation.97
(1) Rules 3.05(2) to 3.05(7) apply when a paralegal transfers from one paralegal
firm (“former firm”) to another (“new firm”), and
(a) the transferring paralegal or the new firm is aware at the time of the
transfer or later discovers it is reasonable to believe the transferring paralegal
has confidential information relevant to the new firm’s matter for its client; or
(b) the transferring paralegal or the new firm is aware at the time of the
transfer or later discovers that
(i) the new firm represents a client in a matter that is the same as or related
to a matter in which the former firm represents its client (“former client”);
(ii) the interests of those clients in that matter conflict; and
(iii) the transferring paralegal actually possesses relevant information
respecting that matter.
(1.1) Rules 3.05(2) to 3.05(7) do not apply to a paralegal employed by the federal,
a provincial or territorial government who, after transferring from one department,
ministry or agency to another, continues to be employed by that government.
34. The purpose of the rule is to deal with what a paralegal actually knows, not
what a paralegal might be assumed to know. Paralegals working together in the
same firm are assumed to share confidences on the matters on which they are
working, with the result that actual knowledge may be presumed. However, that
presumption of actual knowledge can be rebutted by clear and convincing evidence
that all reasonable measures have been taken to ensure that no disclosure will
occur by the transferring paralegal to the member or members of the firm who are
engaged against a former client. [Emphasis added.]
35. The duties imposed by this rule concerning confidential information are in
addition to the general ethical duty to hold in strict confidence all information
concerning the business and affairs of the client acquired in the course of the
professional relationship, which duty applies without regard to the nature or source
of the information or to the fact that others may share the knowledge.
36. Firms with multiple offices—this rule treats as one “firm” such entities as the
various legal services units of a government, a corporation with separate regional
legal departments and an inter-jurisdictional legal firm.
97 Rule 3.05(0.1).


Paralegal Transfer Between Firms—When to
Determine Conflicts (Rule 3.03; Guideline 9)
Conflicts of interest that may result from a paralegal transfer between firms should be
investigated before hiring takes place. Guideline 9 comments:
37. When a firm considers hiring a paralegal from another firm, the transferring
paralegal and the new firm need to determine, before the transfer, whether any
conflicts of interest will be created. Conflicts can arise with respect to clients of the
law firm that the transferring paralegal is leaving and with respect to clients of a
firm in which the transferring paralegal worked at some earlier time.
38. After completing the interview process and before hiring the transferring
paralegal, the new firm should determine whether any conflicts exist. In
determining whether the transferring paralegal actually possesses relevant
confidential information, both the transferring paralegal and the new firm must
be very careful, during any interview of a potential transferring paralegal, or other
recruitment process, to ensure that they do not disclose client confidences. See
Rule 3.03, which provides that a paralegal may disclose confidential information
to the extent the paralegal reasonably believes necessary to detect and resolve
conflicts of interest where paralegals transfer between firms.
39. A paralegal’s duty to the firm may also govern a paralegal’s conduct when
exploring a professional opportunity with another firm and is beyond the scope of
these Rules.
Paralegal Firm Disqualification (Rule 3.05(2))

(2) If the transferring paralegal actually possesses confidential information relevant

to a matter respecting the former client that may prejudice the former client if
disclosed to a member of the new firm, the new firm shall cease its representation
of its client in that matter unless
a. the former client consents to the new firm’s continued representation of its
client; or
b. the new firm has
(i) taken reasonable measures to ensure that there will be no disclosure of
the former client’s confidential information by the transferring paralegal to
any member of the new firm; and
(ii) advised the paralegal’s former client, if requested by the client, of the
measures taken.
Transferring Paralegal Disqualification

(Rules 3.05(3)-(5))
(3) Unless the former client consents, a transferring paralegal referred in subrules
(2) or (4) shall not,


(a) participate in any manner in the new paralegal firm’s representation of its
current client in the matter; or
(b) disclose any confidential information respecting the former client except as
permitted by Rule 3.03.
Unless the former client consents, members of the new firm are prohibited from
discussing the new firm’s representation of its current client or the former firm’s rep-
resentation of the former client in that matter with a transferring paralegal described
in subrules (2) or (4) except as permitted by Rule 3.03.98
Anyone who has an interest in, or who represents a party in, a matter referred to
in Rule 3.05 may apply to a tribunal of competent jurisdiction for a determination of
any aspect of Rule 3.05.99
Paralegal Due Diligence for Non-Licensee Staff

(Rule 3.05(6))
A transferring paralegal and the members of the new firm shall exercise due diligence
in ensuring that each member and employee of the paralegal’s firm, and all other
persons whose services the paralegal or the firm has retained, comply with Rule 3.03
“Confidentiality” and do not disclose confidential information of clients of the firm or
of any other paralegal firm in which the person has worked.100
Transactions with Clients (Rule 3.06;

Guideline 9)
General (Rules 3.06(1)-(3))
A paralegal shall not enter into a transaction with a client unless the transaction is fair
and reasonable to the client.101 For purposes of Rule 3.06, “transaction with a client”
means
[A] transaction to which a paralegal and a client of the paralegal are parties,
whether or not other persons are also parties, including lending or borrowing
money, buying or selling property or services having other than nominal value,
giving or acquiring ownership, security or other pecuniary interest in a company or
other entity, recommending an investment, or entering into a common business
venture.
Except for borrowing from a regulated lender or from a related person, a paralegal
shall not borrow from a client.102
98 Rule 3.05(4).
99 Rule 3.05(5).
100 Rule 3.05(6).
101 Rule 3.06(1).
102 Rule 3.06(2).


For purposes of Rule 3.06, a “regulated lender” means a bank, trust company,
insurance company, credit union, or finance company that lends money in the ordinary
course of business.
A “related person” in relation to a paralegal means
(a) a spouse, child, grandparent, parent, or sibling of the paralegal,

(b) a corporation that is owned or controlled directly or indirectly by the paralegal
or that is owned or controlled directly or indirectly by the paralegal’s spouse, child,
grandparent, parent, or sibling,
(c) an associate or partner of the paralegal.
A paralegal shall not do indirectly what the paralegal is prohibited from doing
directly under subrules 3.06(1) to (7).103
42. A paralegal should be cautious about entering into a business arrangement

with his or her client(s) that is unrelated to the provision of paralegal services.
This includes any transaction with a client, including lending or borrowing money,
buying or selling property, accepting a gift, giving or acquiring ownership, security
or other pecuniary interest in a company or other entity, recommending an
investment and entering into a common business venture.
43. Since the paralegal is or was the client’s advisor, the paralegal may have a
conflict of interest. The paralegal may unknowingly influence the client to agree
to an arrangement that may be unfair or unreasonable to the client. This danger is
present when the client wants to invest with the paralegal.
No Advertising of Individual or Joint Investment

(Rule 3.06(6))
Rule 3.06(6) prohibits advertising or other promotion by a paralegal in the following
circumstances:
(6) A paralegal shall not promote, by advertising or otherwise, individual or joint

investment by clients or other persons who have money to lend, in any mortgage
in which a financial interest is held by the paralegal, a related person, or a
corporation, syndicate, partnership, trust or other entity in which the paralegal
or related person has a financial interest, other than an ownership interest of a
corporation or other entity offering its securities to the public of less than five per
cent (5%) of any class of securities.
guarantee
Guarantees by a Paralegal (Rules 3.06(7), (8)) an agreement to make oneself
liable or responsible to a lender
A guarantee is an agreement to make oneself liable or responsible to a lender for the for the payment of a debt if the
payment of a debt if the debtor defaults in payment. debtor defaults in payment
103 Rule 3.06(3).


Except as provided in Rule 3.06(8), a paralegal shall not guarantee personally,
or otherwise provide security for, any indebtedness in respect of which a client is a
borrower or lender.104
A paralegal may give a personal guarantee in the following circumstances:
a. the lender is a regulated lender, and the lender is directly or indirectly providing
funds solely for the paralegal, the paralegal’s spouse, parent or child;
b. the transaction is for the benefit of a non-profit or charitable institution,
and the paralegal provides a guarantee as a member or supporter of such
institution, either individually or together with other members or supporters of
the institution; or
c. the paralegal has entered into a business venture with a client and a lender
requires personal guarantees from all participants in the venture as a matter of
course and
i. the paralegal has complied with subrules (1) to (7) and
ii. the lender and participants in the venture who are clients or former clients
of the paralegal have independent legal representation.105
BOX
4.12
WHAT IS A GUARANTEE?
A guarantee is an agreement to make oneself liable or responsible to a lender for
the payment of a debt if the debtor defaults in payment. The lender is the person
or institution lending the money to the debtor. The debtor is the person who owes
the money. The person making the guarantee to pay the debt if the debtor fails to
pay is called a guarantor.
In other words, the guarantor undertakes to pay the lender personally if the per-
son who incurred the debt fails to pay the debt.
It is in the guarantor’s best interest that the debtor pay the debt, so that the
guarantor does not have to pay it. If the debtor fails to pay the debt, the guarantor’s
interest and the debtor’s interest may become adverse. The guarantor is bound by
the promise to pay in the event of default by the debtor, but would prefer that the
debtor pay the debt. The debtor, if unable to pay the debt for whatever reason, is
relying upon the guarantor to honour the promise to pay. The lender does not care
who pays the debt, so long as it is paid.
Procedure in Permitted Transactions (Rule 3.06(4))

In any transaction with a client that is permitted under Rules 3.06(1) to (7), the
paralegal shall
a. disclose the nature of any conflicting interest or how and why it might develop
later;
104 Rule 3.06(7).
105 Rule 3.06(8).


b. with respect to independent legal advice and independent legal representation:
i. in the case of a loan to a client who is not a related person, the paralegal
shall require that the client receive independent legal representation;
ii. in the case of a loan to a client who is a related person, the paralegal shall
require that the client receive independent legal advice;
iii. in the case of a corporation, syndicate or partnership borrowing money
from a client of the paralegal where either or both the paralegal and
the paralegal’s spouse has a direct or indirect substantial interest in the
corporation, syndicate or partnership, the paralegal shall require that the client
receive independent legal representation;
iv. in all other cases, the paralegal shall recommend that the client receive
independent legal advice and, where the circumstances reasonably
require, recommend or require that the client receive independent legal
representation; and
c. obtain the client’s consent to the transaction
(i) after the client receives the disclosure, legal advice or representation
required under subrule (4), or
(ii) where a recommendation required under subrule (4) is made and not
accepted, before proceeding with the transaction.106
The client’s consent shall be fully informed and voluntary after disclosure, and shall
be given in writing or confirmed in writing.
A reminder: Independent legal advice is impartial, confidential advice obtained
from a competent licensee with no personal interest in a matter. Independent legal
representation is legal advice and representation from a competent licensee with no
personal interest in a matter.
Despite Rule 3.06(4), a paralegal need not recommend independent legal advice
or independent legal representation if the paralegal is borrowing money from a client
who is a regulated lender.
Payment for Legal Services (Rule 3.06(9))

When a client intends to pay for legal services by transferring to a paralegal a share,
participation, or other interest in property or in an enterprise, other than a non-
material interest in a publicly traded enterprise, the paralegal shall recommend but
need not require that the client receive independent legal advice before accepting a
retainer.
Judicial Interim Release (Rules 3.06(10), (11))

(10) Subject to subrule (11), a paralegal shall not in respect of any accused person
for whom the paralegal acts,
a. act as a surety for the accused;
b. deposit with a court the paralegal’s own money or that of any firm in which
the paralegal is a partner to secure the accused’s release;
106 Rule 3.06(4).


c. deposit with any court other valuable security to secure the accused’s
release; or
d. act in a supervisory capacity to the accused.
surety A surety is a person who is responsible for and exercises supervisory functions over
a person who is responsible an accused. The surety must ensure that the accused attends court as required until
for an accused, and exercises the case is concluded and abides by any conditions of judicial interim release.
supervisory functions over the A paralegal may do any of the things referred to in Rule 3.06(10) if the accused
accused; the surety must ensure is in a family relationship with the paralegal and the accused is represented by the
that the accused attends court
paralegal’s partner or associate.107
as required until the case is
concluded and abides by any
conditions of judicial interim
release
Client Property (Rule 3.07; By-Law 9;
Guideline 10)
Paralegal as Fiduciary with Respect to Client
Property (Rule 3.07(1))
A paralegal is a fiduciary with respect to any property of the client that comes into
the paralegal’s possession. As a fiduciary, the paralegal holds client property, including
client money, in trust for the client.
1. The term client property covers a wide range of items such as money or other
valuables, physical items and information.
A paralegal shall care for a client’s property as a careful and prudent owner would
when dealing with like property and shall observe all relevant rules and law about the
preservation of property entrusted to a fiduciary.108
Dealing with Client Property (Rules 3.07(2)-(6);

By-Law 9, s 18(9))
A paralegal shall promptly notify the client of the receipt of any money or other
property of the client, unless satisfied that the client is aware they have come into the
paralegal’s custody.109
A paralegal shall clearly label and identify the client’s property and place it in safe-
direction keeping, distinguishable from the paralegal’s own property.110 Money retainers and
a written document, signed other client money (such as settlement funds payable to or by the client, where there
by the client, that instructs a is an agreement between the client and the paralegal that such funds shall be paid
paralegal to take a particular to the paralegal in trust, or a written direction from the client to that effect) shall be
course of action in a client deposited to a trust bank account that is separate from a paralegal’s personal account
matter and from the firm’s operating account. A direction is a written document, signed
107 Rule 3.06(11).
108 Rule 3.07(1).
109 Rule 3.07(2).
110 Rule 3.07(3).


by the client, that instructs the paralegal to take a particular course of action in a
client matter.
Other personal property that is held in trust by the paralegal on behalf of the client
shall be held in a place of safekeeping, separate from the paralegal’s own property.
For example, a client’s valuables should be stored in a safe deposit box opened spe-
cifically for that purpose, not in the same safe deposit box that you use for your own
valuables.
A paralegal shall maintain such records as are necessary to identify a client’s
property that is in the paralegal’s custody.111 Minimum bookkeeping requirements for
money that is held in trust by the paralegal for the benefit of the client are set out at
By-Law 9, Part V. For property that is not money, a paralegal shall maintain a valuable valuable property record
property record in accordance with By-Law 9, section 18(9). a record of all property, other
than money, held in trust for
Requirement to maintain financial records clients, as required by By-Law 9,
18. Every licensee shall maintain financial records to record all money and other section 18(9)
property received and disbursed in connection with the licensee’s professional
business, and, as a minimum requirement, every licensee shall maintain, in
accordance with sections 21, 22 and 23, the following records:
• • •
9. A record showing all property, other than money, held in trust for clients,
and describing each property and identifying the date on which the licensee
took possession of each property, the person who had possession of each
property immediately before the licensee took possession of the property, the
value of each property, the client for whom each property is held in trust, the
date on which possession of each property is given away and the person to
whom possession of each property is given.
2. The valuable property record documents the paralegal’s receipt, storage and
delivery of client property. Client property may include, for example:
• stocks, bonds or other securities in bearer form,
• jewelry, paintings, furs, collector’s items or any saleable valuables, and
• any property that a paralegal can convert to cash on his or her own authority.
3. The valuable property record should not include items that cannot be sold or
negotiated by the paralegal, for example, wills, securities registered in the client’s
name, corporate records or seals. A paralegal should maintain a list of these items,
but that list should be separate from the valuable property record.
A paralegal shall account promptly for a client’s property that is in the paralegal’s
custody and, upon request, shall deliver it to the order of the client or, if appropriate,
at the conclusion of the retainer.112 If a paralegal is unsure who is the proper person
to receive a client’s property, the paralegal shall apply to a tribunal of competent
jurisdiction for direction.113
111 Rule 3.07(4).
112 Rule 3.07(5).
113 Rule 3.07(6).


BOX
4.13
VALUABLE PROPERTY RECORD
Pending the outcome of a Small Claims Court action against him for delivery of
personal property, your client, Felix Krull, is ordered by the court to deliver to you to
hold in safekeeping an Apple notebook and a Canon digital camera, ownership of
which is in dispute in the proceeding. Mr Krull places the laptop and the digital cam-
era in your safekeeping on January 5, 20—. On March 3, 20—, the matter settles on
terms that the digital camera is to be delivered to the plaintiff, Andrew Ekpunobe,
and your client is to keep the laptop. In accordance with the settlement agreement,
and pursuant to a written direction from Mr Krull, dated March 7, 20—, the digital
camera is delivered to Andrew Ekpunobe and the laptop is delivered to Mr Krull.
At the end of these transactions, the valuable property record would look like this:
Schwarz and Berryman Professional Corporation

Licensed Paralegals
Valuable Property Record
Description Date Received Delivered Date of

Client of property received from Value to delivery
KRULL, Apple Jan 05, KRULL, $1,199.99 KRULL, Felix Mar 07,
Felix notebook 20— Felix 20—
KRULL, Canon digital Jan 05, KRULL, $1,279.99 EKPUNOBE, Mar 07,
Felix camera 20— Felix Andrew 20—
The Client File (Rules 3.07(1), (5))

Documents that are provided to the paralegal by the client or are created during the
paralegal – client retainer as part of the services provided are the property of the client.
Accordingly, a paralegal must preserve the contents of the client file for the benefit of
the client, in accordance with Rule 3.07(1), and deliver the client file to the order of
the client or, if appropriate, at the conclusion of the retainer.114
4. The duty to preserve client property also applies to the documents that a client
may give to the paralegal at the beginning of the paralegal – client relationship and
documents that are created or collected by the paralegal for the client’s benefit
during the relationship.
5. The courts have developed law on the issue of the client file as between lawyers
and clients. This jurisprudence may be applied to define the paralegal’s client file in
future. Generally, documents provided to a lawyer at the start of the retainer and
those created during the retainer as part of the services provided would belong to
the client. These include
• originals of all documents prepared for the client,
• all copies of documents for which copies the client has paid,
• a copy of letters from a lawyer to third parties or from third parties to a lawyer,
114 Rule 3.07(5).


• originals of letters from a lawyer to the client (presumably these would have
already been sent to the client in the course of the retainer),
• copies of case law,
• briefs,
• memoranda of law, where the client paid for preparation of the memoranda,
• notes or memoranda of meetings with opposing parties or their
representatives, court or tribunal conferences, interviews of witnesses, etc.,
• trial preparation documents, trial briefs, document briefs, trial books,
• copies of vouchers and receipts for disbursements a lawyer made on the
client’s behalf,
• experts’ reports,
• photographs, and
• electronic media such as computer discs.
When the paralegal – client retainer is terminated before the client matter is con-
cluded, you shall deliver the above documents to the client (subject to the paralegal’s
right to a lien on the client file for unpaid fees).115 If the client is collecting the documents
personally, you should arrange for the client to sign an acknowledgment of receipt of the
documents. If the client instructs you to release the documents to a successor licensee,
you should obtain a written direction confirming those instructions, signed by the client.
When you close the file in a client matter that is concluded, you shall return the
above documents to the client (subject to the paralegal’s right to a lien for unpaid
fees).116 You should arrange for the client to sign an acknowledgment indicating
receipt of the documents. The acknowledgment may be filed in the client’s closed file.
When the paralegal – client retainer ends for whatever reason, there are certain
documents that do not have to be returned to the client. Documents belonging to the
paralegal, such as notes or memoranda of meetings or telephone calls with the client,
would not have to be provided to the client.117
Guideline 10 also recommends that you make copies of all client documents, at
your own cost, and hold them in safekeeping to defend against complaints or claims
that may be made against you in future.118 The file copies should be stored in the
closed file for that client matter.
Withdrawal from Representation (Rule 3.08;

Guideline 11)
The client may terminate the paralegal – client retainer at any time, for any reason.
A paralegal shall not withdraw from representation of a client except for good
cause and on reasonable notice to the client.119
2. Whether the paralegal has good cause for withdrawal will depend on many
factors, including
115 Rule 3.08(11).
116 Ibid.
118 Ibid, para 7.
119 Rule 3.08(1).


• the nature and stage of the matter,
• the relationship with the client,
• the paralegal’s expertise and experience, and
• any harm or prejudice to the client that may result from the withdrawal.
The above factors may also assist a paralegal in determining what is reasonable
notice in the circumstances. In this context, notice comprises both determining
what persons must be notified, and providing a reasonable amount of time for the
client to seek other legal representation and for a successor licensee to prepare
for representation.
notes as follows:
[2] An essential element of reasonable notice is notification to the client, unless

the client cannot be located after reasonable efforts. No hard and fast rules can
be laid down about what will constitute reasonable notice before withdrawal
and how quickly a lawyer may cease acting after notification will depend on all
relevant circumstances. Where the matter is covered by statutory provisions or
rules of court, these will govern. In other situations, the governing principle is that
the lawyer should protect the client’s interests to the best of the lawyer’s ability
and should not desert the client at a critical stage of a matter or at a time when
withdrawal would put the client in a position of disadvantage or peril.
[3] Every effort should be made to ensure that withdrawal occurs at an appropriate
time in the proceedings in keeping with the lawyer’s obligations. The court, opposing
parties and others directly affected should also be notified of the withdrawal.
A paralegal may be guided by the same principles in a situation where withdrawal

from representation is being contemplated. The withdrawal should be done in a man-
ner that permits the client to retain other representation and go forward in the matter
without suffering prejudice or harm by reason of the previous licensee’s withdrawal.
If you are at a critical procedural stage in a matter, such that prejudice or harm to
the client would be unavoidable if you were to withdraw your services, you may be
required to continue your representation of the client.
Optional Withdrawal: Serious Loss of Confidence

(Rules 3.08(2)-(4))
In certain situations outlined in Rule 3.08, the paralegal may choose to withdraw from
representation but is not obligated to withdraw. Rules 3.08(2) to (4) state:
(2) Subject to subrules (7), (8) and (9) and the direction of the tribunal, a paralegal
may withdraw if there has been a serious loss of confidence between the paralegal
and the client.
(3) Without limiting subrule (2), a paralegal may withdraw if the client deceives the
paralegal or refuses to accept and act upon the paralegal’s advice on a significant point.
120 Supra note 10.


(4) A paralegal shall not use the threat of withdrawal as a device to force a hasty
decision by the client on a difficult question.
9. During a retainer, a situation may arise that will allow the paralegal to withdraw
from representing the client.
10. A serious loss of confidence means that the paralegal and the client can serious loss of confidence
no longer trust and rely on each other, making it impossible to have a normal a situation in which the
paralegal – client relationship. An example would be where the client deceives or lies paralegal and the client
to the paralegal. Another example would be where the client refuses unreasonably no longer trust and rely on
to accept and act on the paralegal’s advice on an important point. each other, making a normal
paralegal – client relationship
11. If the retainer relates to a criminal or quasi-criminal matter, the paralegal must
impossible
ensure that he or she complies with the special rules relating to withdrawal in those
types of cases (refer to … “Withdrawal From Quasi-Criminal and Criminal Cases”
at Rule 3.08(7) [and (9)].
Other types of client conduct that may constitute grounds for withdrawal due to a
serious loss of confidence might be unreasonable behaviour, lack of cooperation on
the part of the client where serious matters are at issue, refusal to communicate with
the paralegal, and/or refusal to provide proper instructions.
Whatever the circumstances, a paralegal shall not use threats of withdrawal from
representation as a means of compelling the client to make a decision on a difficult
question that requires time and consideration.121
Mandatory Withdrawal (Rules 3.08(1), (5); By-Law 7.1)

In certain situations, you shall withdraw from representation, even if you wish to
continue with the retainer or the client wants you to continue as her or his legal
representative. Rule 3.08(5) states:
shall withdraw if,
(a) discharged by the client;
(b) the client’s instructions require the paralegal to act contrary to the Rules, or
by-laws; or
(c) the paralegal is not competent to continue to handle the matter.
Section 27 of By-Law 7.1 requires a licensee to withdraw from representation in the

following circumstances:
27 If a licensee while retained by a client knows or ought to know that he or she is

or would be assisting the client in fraud or other illegal conduct, the licensee shall,
121 Rule 3.08(4).


Depending on the circumstances, failure to withdraw pursuant to Rule 3.08(5)
or By-Law 7.1, section 27, may result in disciplinary action by the Law Society of
Ontario.
Non-Payment of Fees (Rules 3.08(1), (6))

(6) Subject to subrules (7), (8) and (9) and the direction of the tribunal, unless
serious prejudice to the client would result, a paralegal may withdraw from a case
if, after reasonable notice, the client fails to provide a retainer or funds on account
of disbursements or fees.
You should consider including notice to the client of possible withdrawal of services
on this ground in the retainer agreement or engagement letter.
Withdrawal from Quasi-Criminal and Criminal Cases

(Rules 3.08(1), (7)-(9))
When representing a client in a quasi-criminal or criminal matter, there are special rules
for withdrawal from representation that apply whether withdrawal is for non-payment
of fees or for other adequate cause.
13. Whether a paralegal may withdraw in these types of matters has to do with
the amount of time between the withdrawal (the date and time the paralegal
intends to stop representing the client) and the trial (the date and time the client’s
trial begins).
14. Generally, the amount of time between the withdrawal and trial must
be sufficient to allow the client to hire another representative and the new
representative to prepare properly for trial.
Permitted Withdrawal for Non-payment of Fees or Other

Adequate Cause (Rule 3.08(7))
Rule 3.08(7) states the circumstances in which a paralegal representing a client in a
quasi-criminal or criminal case may withdraw:
(7) A paralegal who has agreed to act in a quasi-criminal or criminal case may
withdraw because the client has not paid the agreed fee or for other adequate
cause if the interval between the withdrawal and the date set for the trial
of the case is sufficient to enable the client to obtain alternate representation
and to allow such other licensee adequate time for preparation and if the
paralegal,
(a) advises the client, preferably in writing, that the paralegal is withdrawing
and the reason for the withdrawal;
(b) accounts to the client for any monies received on account of fees
and disbursements;
(c) notifies the prosecution in writing that the paralegal is no longer acting;


(d) in a case where the paralegal’s name appears in the records of the court as
acting for the accused, notifies the clerk or registrar of the appropriate court in
writing that the paralegal is no longer acting; and
(e) complies with the applicable rules of the tribunal or court.
Rule 3.08(7)(e) requires a paralegal who wishes to withdraw from representation

to comply with the applicable rules of the tribunal or court before which the paralegal
is appearing.
6. Every effort should be made to ensure that withdrawal occurs at an appropriate

time in the proceedings in keeping with the paralegal’s obligations. The tribunal,
opposing parties and others directly affected should also be notified of the withdrawal.
• • •
15. While the Rules do not require the paralegal to make an application to be
removed as the client’s representative, most tribunal rules do. Therefore, the
paralegal should consult the rules of the tribunal to determine what process is to
be followed. The paralegal must not tell the tribunal or the prosecutor the reasons
for withdrawal, unless disclosure is justified in accordance with the Rules.
Withdrawal Not Permitted for Non-Payment of Fees (Rule 3.08(8))

Rule 3.08(8) states that
(8) A paralegal who has agreed to act in a quasi-criminal or criminal case may not
withdraw because of non-payment of fees if the date set for the trial of the case is not
far enough removed to enable the client to obtain the services of another licensee or
to enable the other licensee to prepare adequately for trial and if an adjournment of
the trial date cannot be obtained without adversely affecting the client’s interests.
Withdrawal from Representation for Reasons Other Than

Non-Payment of Fees (Rule 3.08(9))
(9) If,
(a) a paralegal is justified in withdrawing from a quasi-criminal or criminal case
for reasons other than non-payment of fees; and
(b) there is not a sufficient interval between a notice to the client of the
paralegal’s intention to withdraw and the date when the case is to be tried to
enable the client to obtain the services of another licensee and to enable the
new licensee to prepare adequately for trial,
the paralegal, unless instructed otherwise by the client, shall attempt to have the
trial date adjourned and may withdraw from the case only with permission of the
court before which the case is to be tried.
16. The paralegal may seek to adjourn the trial to give the client or the new
representative more time to prepare, as long as the adjournment does not prejudice
the client.


When contemplating a request for an adjournment, you should consider that,
since the Supreme Court of Canada’s ruling in R v Jordan,122 there is a presumptive
ceiling of 18 months for getting matters tried in provincial court from the time of
the charge to the actual or anticipated end of the trial, failing which there is a pre-
sumption of unreasonable delay contrary to section 11(b) of the Canadian Charter
of Rights and Freedoms,123 unless there are exceptional circumstances to justify the
delay.
Manner of Withdrawal (Rules 3.08(10)-(13))

Guideline 11 recommends that a paralegal manage client expectations about what
will happen if the relationship ends or the matter concludes from the outset of the
client matter:
4. To avoid misunderstandings, it will be helpful for the paralegal to explain to the

client, at the beginning of the relationship
• that all documents to which the client is entitled will be returned to the client
when their relationship ends or the matter concludes, and
• which documents in the file will belong to the paralegal, so that they will
be kept by the paralegal when their relationship ends or the matter is
finished.
5. To ensure that the client understands these details, the paralegal should consider
including them in his or her engagement letter or retainer agreement.
When a paralegal withdraws, the paralegal shall try to minimize expense and avoid
prejudice to the client and shall do all that can reasonably be done to facilitate the
orderly transfer of the matter to the successor licensee.124
Rules 3.08(11) to (13) state:
(11) Upon discharge or withdrawal, a paralegal shall,

(a) deliver to the client or to the order of the client all papers and property to
which the client is entitled (subject to the paralegal’s right to a lien);
(b) subject to any applicable trust conditions, give the client all information
that may be required in connection with the case or matter;
(c) account for all funds of the client then held or previously dealt with,
including the refunding of any monies not earned during the representation;
(d) promptly render an account for outstanding fees and disbursements;
(e) cooperate with the successor licensee so as to minimize expense and avoid
prejudice to the client; and
(f) comply with the applicable rules of court.
(12) In addition to the obligations set out in subrule (11), upon withdrawal, a
paralegal shall notify the client in writing, stating:
(a) the fact that the paralegal has withdrawn;
(b) the reasons, if any, for the withdrawal; and
122 2016 SCC 27.

123 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
124 Rule 3.08(10).


(c) in the case of litigation, that the client should expect that the hearing or
trial will proceed on the date scheduled and that the client should retain a new
legal practitioner promptly.
(13) If the paralegal who is discharged or withdraws is a member of a firm, the
client shall be notified that the paralegal and the firm are no longer acting for
the client.
BOX
4.14
WITHDRAWAL FROM REPRESENTATION
Fact Situation
You are representing Jane Doe in an application by her residential landlord for early
termination of her tenancy on grounds that she has substantially interfered with
other tenants’ reasonable enjoyment of the residential complex. According to the
landlord’s application, Jane’s two sons, who are 11 and 13, are left unsupervised on
a regular basis. They play loud music, slam doors, have violent fights, and make a lot
of noise at all hours of the day and night, disturbing the tenants in the neighbouring
apartments. Witnesses have seen the 11-year-old throwing things, including a glass
bottle, off the balcony of their apartment, which is on the tenth floor. There is a
pedestrian walkway and a playground below their balcony.
The matter went to voluntary mediation, but there was no settlement.
You have spoken to the paralegal for the landlord, and she has advised you that
if the matter goes to a hearing, the landlord will call the building manager and four
tenants as witnesses. She has provided you with copies of the complaint letters and
the building manager’s complaints log. Two of the tenants are threatening to leave
the building if the matter is not resolved.
Jane has admitted to you that she is often not home. She has to work two jobs to
support her sons and herself, so the boys are often left unsupervised.
The hearing date is set for May 15. It is now April 30. The landlord has just sent
you a written offer to settle, stipulating that, upon consenting to a termination of
her tenancy, Jane will be allowed to remain in possession of the premises for up to
90 days to give her time to find another place to live. Should she fail to vacate the
premises during that period, the landlord may evict her forthwith thereafter.
You have carefully considered the matter, and you believe that, if the matter goes
to a hearing, Jane may be unsuccessful and there will be an order for immediate
eviction. You have advised Jane that you think it would be prudent to accept the
landlord’s offer. Jane thinks this is outrageous. She wants to have a hearing and
assert her rights. She is convinced that the landlord cannot just kick her out, when
she has lived in the building for five years and there were no complaints until six
months ago. “Who are you working for?” she shouts at you. “Me or the landlord?”
At the outset of the matter, you did not request a money retainer. At the begin-
ning of April, you sent Jane an interim invoice for $500.00. She has not paid it.
You do not think that Jane is making good decisions right now. You do not
believe that going to a hearing is in her best interests. You would like to tell Jane
that you are considering withdrawing from representation. You think that if you do
so, it will be a wake-up call for her to start listening to your advice.


1. Are you entitled to withdraw your services based on Jane’s refusal to listen
to your advice?
2. Can you withdraw without causing prejudice or harm to Jane?
3. Are there any other grounds for withdrawal from representation?
4. Review the last paragraph in the fact situation. Can you use the threat
of withdrawal of representation to force Jane to take your advice about
accepting the offer of settlement?
Leaving a Firm (Rule 3.08(13.1))

Rule 3.08(13.1) establishes a protocol for a paralegal who is contemplating leaving a
firm, and for his or her colleagues who are remaining at the firm. Rule 3.08(13.1) states:
(13.1)(1) In this subrule

(a) “affected client” means a client for whom the firm has a relevant matter;
(b) “relevant matter” means a current matter for which the paralegal who is
leaving the firm has conduct or substantial responsibility;
(c) “remaining paralegals” means the paralegals who have, or are intended
by the firm to have, conduct of a relevant matter and the paralegals in the
firm who have direct and indirect management responsibility in respect of the
paralegal who is leaving the firm.
(2) When a paralegal leaves a firm to provide legal services elsewhere, the
paralegal and the remaining paralegals shall:
(a) ensure that affected clients are given reasonable notice that the paralegal is
departing and are advised of their options for retaining other representation; and
(b) take reasonable steps to obtain the instructions of each affected client as
to whom they will retain to act in relevant matters.
(3) The obligations in Rules (13.1)(2)(a) and (b) also apply to the departure of a
lawyer from a firm to practice elsewhere.
(13.2) Rule 3.08(13.1) does not apply to a paralegal leaving (a) a government,
a Crown corporation or any other public body or (b) a corporation or other
organization for which the paralegal is employed in-house.
18. When a paralegal leaves a firm to provide legal services elsewhere, it may result
in the termination of the paralegal – client relationship between that paralegal and
a client.
19. The client’s interests are paramount. Clients should be free to decide whom
to retain without undue influence or pressure by either the paralegal or the firm.
The client should be provided with sufficient information by the paralegal and the
remaining paralegals to make an informed decision about whether to continue
with the departing paralegal, remain with the firm where that is possible, or retain
a new paralegal.


20. The paralegal and the remaining paralegals should cooperate to ensure that
the client receives the necessary information on the available options. While it is
preferable to prepare a joint notification setting forth such information, factors to
consider in determining who should provide it to the client include the extent of
the paralegal’s work for the client, the client’s relationship with other paralegals
in the firm and access to client contact information. In the absence of agreement
between the departing paralegal and the remaining paralegals as to who will notify
the clients, both the departing paralegal and the remaining paralegals should
provide notification.
21. If a client contacts a firm to request a departed paralegal’s contact information,
the remaining paralegals should provide the professional contact information
where reasonably possible.
22. Where a client decides to remain with the departing paralegal, the instructions
referred to in the rule should include written authorizations for the transfer of files
and client property. In all cases, the situation should be managed in a way that
minimizes expense and avoids prejudice to the client.
23. In advance of providing notice to clients of his or her intended departure
the paralegal should provide such notice to the firm as is reasonable in the
circumstances.
24. When a client chooses to remain with the firm, the firm should consider
whether it is reasonable in the circumstances to charge the client for time
expended by another firm member to become familiar with the file.
25. The principles outlined in this rule and commentary will apply to the dissolution
of a firm. When a firm is dissolved, the paralegal – client relationship may end with
one or more of the paralegals involved in the retainer. The client should be notified
of the dissolution and provided with sufficient information to decide who to retain.
The paralegals who are no longer retained by the client should try to minimize
expense and avoid prejudice to the client.
26. Paralegals are reminded that Rules 3.7-7A(1) and 3.7-7A(2) and Commentary
of the Rules of Professional Conduct describe similar obligations for lawyers.
Successor Licensee (Rule 3.08(14))

A paralegal whose retainer in a particular client matter has ended before the matter is
concluded has certain obligations to both the client and any successor licensee from
whom the client seeks legal services in the matter.
7. When the paralegal withdraws, he or she is subject to restrictions relating to

the disclosure of client information. This would restrict the paralegal from revealing
the reason for withdrawing to a successor (a paralegal or lawyer who accepts the
client’s matter after the original paralegal has withdrawn). Refer to Guideline 8:
Confidentiality for further information on this subject.
8. Cooperation with the successor licensee will normally include providing any
memoranda of fact or law that have been prepared by the paralegal in connection
with the matter, but confidential information not clearly related to the matter
should not be disclosed without the written consent of the client.
• • •


28. If a paralegal’s services are terminated while the client’s matter is ongoing and
the client requests that the matter be transferred to a new paralegal or lawyer, the
paralegal should confirm, in writing, the termination of the retainer. The paralegal
should also obtain a direction, signed by the client, for release of the client’s file
to a successor paralegal or lawyer. A direction is a written document instructing
the paralegal to release the file to the successor paralegal or lawyer. If the file
will be collected by the client personally, the paralegal should obtain a written
acknowledgement signed by the client, confirming that the client has received the file.
A successor paralegal has certain obligations to a predecessor licensee. Rule 3.08(14)

states:
(14) Before agreeing to represent a client of a predecessor licensee, a successor

paralegal shall be satisfied that the predecessor has withdrawn or has been
discharged by the client.
notes that it is proper for a successor licensee to urge the client to settle or take
reasonable steps toward settling or securing any outstanding account of the former
licensee, especially if the former licensee withdrew for good cause or was capriciously
discharged. However, if a trial or hearing is in progress or imminent, or if the client
would otherwise be prejudiced, the existence of an outstanding account should not be
allowed to interfere with the successor licensee acting for the client.
125 Supra note 10.


CHAPTER SUMMARY
The fiduciary relationship between the paralegal and the of interest, a paralegal should consider maintaining a con-
client gives rise to a special standard of care that imposes flicts checking system and should carefully consider her or
the following duties on the paralegal: loyalty, competence, his obligations under Rule 3.04.
honesty and candour, confidentiality, avoidance of conflicts When a paralegal changes firms, a conflict of interest
of interest, and accounting for client property. These duties may arise. Rule 3.05 sets out procedures to be followed by
are codified in the Rules. paralegals who are transferring to a new firm and by new
A paralegal shall perform any services undertaken on a paralegals who are preparing to join a firm.
client’s behalf to the standard of a competent paralegal. A paralegal should be cautious about entering with a
A competent paralegal is a paralegal who has and applies client into any business arrangement that is unrelated to
the relevant knowledge, skills, and attributes appropriate the provision of paralegal services, as this may cause a
to each client matter. These include but are not limited to conflict of interest for the paralegal.
(1) knowledge of general legal principles and procedures A paralegal is a fiduciary with respect to any client
and substantive law; (2) application of appropriate skills; property that comes into her possession, and shall care
(3) conscientious, cost-effective, and diligent representa- for that property as a careful and prudent owner would
tion; (4) client service and communication; (5) effective when dealing with similar property. The paralegal must
practice management; and (6) pursuing appropriate train- comply with the rules and the law about the preservation
ing and development to maintain or enhance knowledge of property entrusted to a fiduciary, including maintaining
and skills. a valuable property record in accordance with By-Law 9.
A paralegal shall be honest and candid when advising all The client may terminate the paralegal – client relation-
clients. You must advise the client honestly and candidly of ship at any time, for any reason. A paralegal shall not
the applicable law, the client’s options, possible outcomes, withdraw from representation of a client before the matter
and possible risks. Your advice should enable the client to in which the paralegal was retained is concluded except for
make informed decisions and give appropriate instructions good cause and upon notice to the client appropriate in the
in the matter. circumstances.
You should always ensure that clients, including pro- Good cause for withdrawal will depend on many
spective clients, understand that you are a paralegal, not a factors, including the nature of the matter and the stage
lawyer. You shall never undertake or provide advice about you are at in the matter; the relationship with the client;
a matter that is outside of the scope of permitted practice your expertise and experience; and any harm or prejudice
for paralegals. to the client that may result from the withdrawal of ser-
When advising a client, you shall never knowingly assist vices. These factors may also determine what appropriate
in or encourage any dishonesty, fraud, crime, or illegal notice is in the circumstances. Generally, you should try
conduct. You shall not instruct a client on how to violate to safeguard the client from prejudice or harm. If you are
the law and avoid punishment. at a critical procedural stage in a matter, even though
A paralegal shall, at all times, hold in strict confidence grounds for withdrawal from representation may exist,
all information concerning the business and affairs of a you may be required to continue your representation of
client that is acquired in the course of their professional the client.
relationship, and shall not disclose any such information In certain situations, a paralegal is required to withdraw
unless expressly or implicitly authorized by the client or from representation, even if the paralegal or the client
required by law to do so. The duty of confidentiality begins wishes to continue with the retainer. A paralegal shall
at the commencement of the paralegal – client relationship withdraw from representation if discharged by the client; if
and continues indefinitely. the client’s instructions require the paralegal to act contrary
A paralegal shall not advise or represent opposing to the Rules or By-Laws; or if the paralegal is not competent
parties in a dispute, except as permitted by the Rules. A to continue to handle the matter.
paralegal shall not act or continue to act in a matter when Special restrictions on withdrawal from representation
there is or is likely to be a conflicting interest unless, after apply in criminal and quasi-criminal matters.
disclosure adequate to make an informed decision, the When a paralegal leaves a firm, both the paralegal leav-
client or prospective client consents. To help avoid conflicts ing and the paralegals remaining at the firm must ensure


that any clients who are affected receive reasonable notice reasonable steps to obtain instructions from each affected
of the paralegal’s departure and are advised of their options client as to whom they plan to retain to act in any matters
for retaining other representation. They must also take for which the departing paralegal was responsible.
KEY TERMS
affiliated entity, 161 express (or explicit) authorization, 138 multi-discipline practice, 160
affiliation, 160 fiduciary, 109 omission, 130
alternative dispute resolution, 128 fiduciary relationship, 109 permitted disclosure, 138
beneficiary, 109 general (operating) bank account, 124 procedural law, 113
competent paralegal, 112 guarantee, 167 professional judgment, 114
continuing client, 133 honest and candid, 119 serious loss of confidence, 175
continuing relationship, 158 implied authorization, 137 substantive law, 113
direction, 170 independent legal advice, 151 surety, 170
dispute, 147 independent legal representation, 151 valuable property record, 171
error, 130 justified disclosure, 138
1. Your practice is restricted to Small Claims Court his former employer. “I don’t care if I win. I just want
litigation and Highway Traffic Act matters. The to get these guys,” he tells you. “I want to jerk them
property manager for a corporate residential landlord around the way they jerked me around. I can pay.”
for whom you have done some collections work What are some issues to consider?
wants to retain you to defend the landlord in a 3. A client has several invoices that have been
Provincial Offences Act prosecution. The landlord has outstanding for 90 days. You wish to put them in
been charged with several offences contrary to the collection. What procedures should you follow and
residential tenancies legislation, including harassment what information may you disclose to the collection
and interference with the tenants’ enjoyment of the agency?
premises. The landlord’s first court appearance is
4. Joseph Kutar meets with you at your office to discuss
scheduled for two weeks’ time. At that time, a trial
a Highway Traffic Act matter. While you are reviewing
date will be set. From your Highway Traffic Act work,
the offence notice, Joseph reads the labels on some
you know that the earliest available trial dates are six
of the client files stacked on your desk. “I know that
or seven months away.
landlord,” he says, indicating one of the files. “I used
Residential tenancies law is an area into which to live in one of their buildings. A real slum.” You
you are eager to expand. You would also like to move the files to the floor behind your desk. Then
accept the retainer because the matter is complex you ask Joseph some questions about the Highway
and you look forward to the challenge. You have Traffic Act matter, taking notes of his answers.
already checked out some continuing professional
Based on what he tells you of the matter and your
development opportunities online, for which you will
review of the offence notice, you advise him to plead
be charged.
down to a lesser offence with fewer demerit points.
If the landlord is convicted, the maximum When he hears this, Joseph’s behaviour becomes
allowable fine is $100,000. belligerent and threatening. “I’m a courier,” he says.
Should you accept the retainer? “Any more demerit points and I can’t drive. I’ll find
2. A client consults you about commencing a claim someone else who knows what they’re doing!” He
for wrongful dismissal in Small Claims Court. The grabs the offence notice off your desk and leaves your
dismissal took place six months ago. Based on what office.
he has told you and the documents he has produced, A few days later you have some matters in
you do not think that he has a good case. On the traffic court. Outside the courtroom, you get into a
other hand, you could use the money, and he appears conversation with a couple of other paralegals who
to be very eager to commence a court action against do a lot of traffic court work. One of them, Alice


Fisher, says jokingly to you, “I’m doing some work for 8. Once a month, Ryan provides pro bono paralegal
a former client of yours, one JK. He told me he had services at a local legal aid clinic. Maria attends at the
to fire you because you kept giving him bad advice. clinic seeking advice because she recently received an
What’s the real story?” You change the subject, and eviction notice from her landlord and she is unsure of
start talking about how difficult it is to find parking her legal rights.
near the courthouse. a. What steps must Ryan take to perform a
Several people are sitting or standing close by and conflicts check?
can overhear your conversation. b. Suppose Ryan recognizes the landlord as
Discuss some professional and practice being a client of his firm. What obligations
management issues that arise based on the facts arise under the Rules?
above. 9. Nellah, who operates a small paralegal firm, is in the
5. Theresa Santos wishes to meet with you to discuss a midst of very expensive divorce proceedings. Because
residential tenancies matter. She wishes to apply for of the distress caused by her divorce, she has been
an abatement of rent and other relief on grounds of taking on fewer clients. As a result, she is generating
non-repair of the residential premises and harassment less income and encountering financial difficulties.
by the landlord or the landlord’s agent. You are Recently, she had to let her assistant go, and is taking
familiar with Theresa’s landlord, having acted for the steps to move to another location to lower her
landlord in the past in tenant applications similar to monthly rent. When a long-standing client, Margaret,
Theresa’s, though for a different building. You have asks about these changes, Nellah tells her about
not had any work from that landlord for over a year, the divorce and her financial struggles. Margaret
but you figure your experience from the previous offers to lend Nellah $100,000. “Take it,” Margaret
matters will give you an advantage in this application. says. “I have absolutely no doubt you will pay back
Should you accept the retainer? every penny.” Nellah reluctantly accepts Margaret’s
6. Anne Weston and her partner, Marjan Menzet, offer, and draws up an agreement reflecting their
wish to retain you in a Small Claims Court action arrangement. If Nellah pays Margaret back according
for trespass and damage to property. You have to the contract terms, is she in compliance with the
represented Anne in several matters in the past. This Rules?
is the first time you have met Marjan. 10. Josephine has represented Malcolm on a Small Claims
What are some issues that arise in this situation? Court matter for eight months. Malcolm does not
agree with Josephine’s advice about the direction to
7. You are considering accepting a position that has just
take at trial and has decided to terminate the retainer.
been offered to you at a new paralegal firm. You have
He has hired Hannah, another paralegal in town,
appeared opposite this firm on several matters in the
and has instructed Josephine to send his file over
past, and you are very impressed by their advocacy
to Hannah. Who does the file belong to: Josephine
skills and high standards of professionalism. What
or Malcolm? What steps should Josephine take to
are some issues that both you and the new firm
adhere to the Rules regarding the transfer of the file?
should consider?



Advocacy
5
General (Rule 4; Guideline 12) . . . . . . . . . . . . . 189
Learning Outcomes
The Paralegal as Advocate (Rule 4.01) . . . . . . 189
Duty to Clients, Tribunals, and Others After reading this chapter, you will understand:
(Rules 4.01(1), (8), (9)) . . . . . . . . . . . . . . . . 189 • The paralegal as advocate.
Duty as Prosecutor (Rule 4.01(5.1)) . . . . . . . . . 190 • The paralegal advocate’s duty to clients, tribunals, and
Candour, Fairness, Courtesy, and Respect others.
(Rules 4.01(1), (4)(d), (5)(o); 6.01(1), (2); • The paralegal advocate’s obligations in the
7.01(3)). . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 tribunal process.
The Paralegal and the Tribunal Process • Disclosure of documents.
(Rule 4.01(5)) . . . . . . . . . . . . . . . . . . . . . . . 191 • Disclosure of errors and omissions.
• Procedure when agreeing to a guilty plea.
Communication with Witnesses Giving
• Interviewing witnesses.
Evidence (Rule 4.03). . . . . . . . . . . . . . . . . . . 201
• Communicating with witnesses giving evidence.
General (Rule 4.02(1); Rule 7.02). . . . . . . . . . . 201
• The paralegal as witness.
• Dealing with unrepresented persons.
Evidence (Rules 4.03(1)-(3)). . . . . . . . . . . . 202
The Paralegal as Witness (Rule 4.04). . . . . . . . 204
Dealing with Unrepresented Persons
(Rule 4.05) . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Chapter Summary. . . . . . . . . . . . . . . . . . . . . . . . 206
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Application Questions . . . . . . . . . . . . . . . . . . . . 207
187

Duties of an Advocate
This past week Rajni conducted her third trial in Small Proceedings resumed and ultimately the court found
Claims Court. She represented the defendant on a in favour of Rajni’s client and awarded costs against the
wrongful dismissal action, and had diligently prepared. plaintiff.
Nikola Novak, another paralegal in town, was act- The next matter on the docket was Sebastian’s
ing for the plaintiff. Direct and cross-examination of the trial. Rajni held her breath as both parties approached
plaintiff’s witnesses took place. Rajni then called her first the bench. To Rajni’s complete dismay, the trial
witness, Jacques Courbe. Thirty minutes into Nikola’s proceeded.
cross-examination of Jacques, the court adjourned for Upon leaving the courthouse, Rajni noticed Nikola
a short recess. Novak heading in her direction. It was clear she was
Rajni slipped down to the cafeteria to buy a tea. angry. “You coached your witness during the break, I
While standing in line, she noticed Jacques appear at the know it,” she yelled. “You are smug and conceited but
entrance of the cafeteria. He signalled to her to join him at you are just a little girl with no experience in this busi-
a nearby table. Rajni shook her head. “No, we can’t talk,” ness. I look forward to the next time we’re up against
she mouthed. Jacques nodded in compliance and exited each other.” Nikola turned her back and stormed
the cafeteria. Just at that moment, her colleague, Sebas- away.
tian Merton, appeared. “Spot me for a coffee?” he asked. Rajni was stunned. She got into her vehicle slowly
Rajni and Sebastian sat down at a table. Sebastian and felt her hands trembling. She sat silently for several
appeared distracted. He, too, had a Small Claims Court minutes, replaying the incident in her mind.
trial that day, which was further down on the docket. When Rajni got back to the firm, she headed straight
When Rajni asked what was bothering him, Sebastian to Lana Price’s office. She was discernably upset and
explained that his client, who had sold a 2015 Honda needed to speak with Lana about Sebastian’s conduct,
Civic to the plaintiff, just informed him that he had as well as her encounter with Nikola. Lana was working
actually rolled back the odometer before selling the on a difficult file with a tight timeline and was in a bad
vehicle. The ad claimed the vehicle was in mint condi- mood. When Rajni tapped on her door and stepped into
tion, but in fact, it had almost 200,000 km of mileage on her office, Lana looked up and snapped, “Whatever this
it. The plaintiff had incurred over $4,000 in repair bills in is about, it will have to wait. Please leave and close the
the short time she owned the vehicle. The defence was door behind you.”
asserting that the plaintiff must have run the vehicle to
the ground in the few months since she took possession. Questions for Discussion
“Nothing I can do about it now. Buyer beware, 1. Why did Rajni resist sitting with Jacques during
right?” Sebastian said. the break? What should she have done to
Rajni was shocked, “Sebastian, you can’t do that, prevent Jacques from thinking they could have
you’re misleading the court.” coffee together, and when should she have
Sebastian shifted in his seat. “I’ve prepared my entire done it?
defence. And the client will not be happy if I change dir-
2. What Rules is Sebastian violating? What
ection now. I’ve told him countless times his chances of
should Rajni do in response to Sebastian’s
success today are good.”
comments?
“But that was based on a different set of facts that
he provided,” Rajni said. She urged Sebastian to request 3. Comment on Nikola’s comments toward
an adjournment. Rajni in the parking lot with reference to
“No, I can’t do that now. The client will lose it,” he the applicable Rules. Does Rajni have any
responded. recourse?
Rajni checked the time. She had to get back to court. 4. What is your opinion of Lana’s response to
She gave Sebastian a penetrating stare and said, “I hope Rajni’s appearance in her office? How should
you do the right thing.” Rajni respond?


General (Rule 4; Guideline 121)
An advocate is someone who speaks and acts on behalf of others.2 One of an advo- advocate
cate’s roles is to assist, plead for, or defend others before a tribunal. a person who assists, defends,
For purposes of the Paralegal Rules of Conduct (the Rules),3 the term tribunal or pleads for others before a
includes courts, boards, arbitrators, mediators, administrative agencies, and bodies tribunal
that resolve disputes, regardless of their function or the informality of their proced- tribunal
ures.4 An adjudicator is any person who hears or considers any type of proceeding includes courts, boards,
before a tribunal and renders a decision with respect to that proceeding.5 arbitrators, mediators,
Rule 4, which governs advocacy, applies to all appearances and proceedings before administrative agencies, and
all tribunals in which the paralegal may appear.6 bodies that resolve disputes,
regardless of their function
or the informality of their
procedures
The Paralegal as Advocate (Rule 4.01) adjudicator
a person who hears or
Duty to Clients, Tribunals, and Others considers a proceeding before
a tribunal and makes a decision
(Rules 4.01(1), (8), (9)) with respect to that proceeding
The paralegal advocate must balance a number of duties. Guideline 12 comments:
2. The paralegal has a duty to represent his or her client diligently and fearlessly.
Generally, the paralegal has no obligation to assist an opposing party, or to advance
matters harmful to the client’s case. However, these general principles do not mean
that, when acting as advocate for a client before a tribunal, the paralegal can
behave as he or she likes or, in some cases, as his or her client may instruct. Rule
4 describes the professional obligations that a paralegal owes to opposing parties,
other paralegals and lawyers, the tribunal and the administration of justice. These
obligations are paramount, and must be met by the paralegal in each and every
tribunal proceeding in which the paralegal acts as advocate for a client.
(1) When acting as an advocate, the paralegal shall represent the client resolutely
and honourably within the limits of the law while, at the same time, treating the
tribunal and other licensees with candour, fairness, courtesy and respect.
Rule 4 does not require a paralegal to assist an adversary or advance matters deroga-
tory to the client’s case, except as otherwise provided in the Rules.7
[Rules].
4 Rule 1.02.
6 Rule 4.01(2).
7 Rule 4.01(3).
CHAPTER 5 Advocacy 189


Rule 4.01(4) sets out the following requirements for paralegal advocates:
(4) Without restricting the generality of subrule (1), the paralegal shall,
(a) raise fearlessly every issue, advance every argument, and ask every question,
however distasteful, that the paralegal thinks will help the client’s case;
(b) endeavour, on the client’s behalf, to obtain the benefit of every remedy
and defence authorized by law;
(c) never waive or abandon a client’s legal rights, for example, an available
defence under a statute of limitations, without the client’s informed
consent; and
(d) avoid and discourage the client from resorting to frivolous and vexatious
objections, or from attempts to gain advantage from mistakes or oversights
not going to the merits, or from tactics designed to merely delay or harass the
other side.
remedy A remedy is a method of enforcing a right, or preventing or compensating for

a way of enforcing a right, or of a wrong.
preventing or compensating for A statutory limitation period is a period of time established by a statute for
a wrong commencing a proceeding. After the statutory limitation period has expired, any
statutory limitation period proceeding by or against your client is statute-barred—that is, it is stopped by the
a period of time established expiry of the statutory limitation period. For example, section 76(1) of the Provincial
by a statute for commencing a Offences Act 8 states that “[a] proceeding shall not be commenced after the expiration
proceeding of any limitation period prescribed by or under any Act for the offence or, where no
statute-barred limitation period is prescribed, after six months after the date on which the offence
a proceeding that is prevented was, or is alleged to have been, committed.”
by the expiry of the statutory Informed consent is consent based on information that is sufficient to allow the
limitation period client to assess the situation and make an informed decision. Consent should always
objection be obtained or confirmed in writing.
an argument by a party that Special rules apply to agreements on guilty pleas. See Rules 4.01(8) and (9), and
a particular piece of evidence, the discussion below in the section of this chapter called “Agreement on Guilty Pleas
line of questioning, or other (Rules 4.01(8), (9)).”
matter is improper or unlawful An objection is an argument by a party that a particular piece of evidence, line of
and should not be allowed by questioning, or other matter is improper or illegal and should not be allowed by the
the court court. A frivolous and vexatious objection is an objection that has no legal merit
frivolous and vexatious and is made to annoy, harass, or embarrass the other side. The merits of the case are
objection the legal principles upon which a party’s assertion of rights is based. A mistake or over-
an objection that has no legal sight that does not go to the merits of the case does not affect a party’s legal rights.
merit and is made to annoy,
harass, or embarrass the
other side Duty as Prosecutor (Rule 4.01(5.1))
merits of the case When acting as a prosecutor, a paralegal shall act for the public and the administration
the legal principles upon which of justice, resolutely and honourably, within the limits of the law while treating the
a party’s assertion of rights tribunal with candour, fairness, courtesy, and respect.9
is based The role of the prosecutor is not to “win” every case by obtaining a conviction.
Prosecutors have a duty to administer justice fairly and impartially, with a view to
the community interest. Prosecutors are (or should be) non-partisan. They must put
8 RSO 1990, c P.33.

9 Rule 4.01(5.1).


all the available evidence before the court, with the object of obtaining a just and
fair result. That said, a prosecutor who believes that she or he has good grounds for
seeking a conviction may do so in the public interest, so long as she or he does not
seek the conviction unfairly or at all costs. Refer to the comments of Campbell J and
Rosenberg JA in the excerpts from R v Felderhof in Box 2.2 in Chapter 2 at paragraphs
[20] to [25] (Campbell J) and [79] (Rosenberg JA).
Candour, Fairness, Courtesy, and Respect (Rules

4.01(1), (4)(d), (5)(o); 6.01(1), (2); 7.01(3))
When acting as an advocate, a paralegal shall treat the tribunal and other licensees
with candour, fairness, courtesy and respect.10
A paralegal shall avoid and discourage the client from resorting to frivolous and
vexatious objections, as well as from attempts to gain advantage from mistakes or
oversights not going to the merits, and tactics designed to merely delay or harass the
other side.11 A paralegal shall not, by his or her conduct, needlessly inconvenience
a witness.12
A paralegal shall not, in the course of providing legal services, communicate, in
writing or otherwise, with a client, another licensee, or any other person in a manner
that is abusive, offensive, or otherwise inconsistent with the proper tone of a profes-
sional communication from a paralegal.13
3. A paralegal should not engage in rude and disruptive behaviour before a

tribunal, or uncivil correspondence, language or behaviour towards opposing
parties or their advocates.
Rule 6.01 addresses the paralegal’s duty of courtesy and respect to the tribunal:
6.01(1) A paralegal shall encourage public respect for, and try to improve, the
(2) A paralegal shall take care not to weaken or destroy public confidence in
legal institutions or authorities by making irresponsible allegations or comments
particularly when commenting on judges or members of a tribunal.
The Paralegal and the Tribunal Process (Rule 4.01(5))

When acting as an advocate, the paralegal shall not
(5) … (a) abuse the process of the tribunal by instituting or prosecuting proceedings
which, although legal in themselves, are clearly motivated by malice on the part of
the client and are brought solely for the purpose of injuring the other party;
(b) knowingly assist or permit the client to do anything that the paralegal
considers to be dishonest or dishonourable;
10 Rule 4.01(1).
11 Rule 4.01(4)(d).
12 Rule 4.01(5)(o).
13 Rule 7.01(3).


(c) knowingly attempt to deceive a tribunal or influence the course of justice
by offering false evidence, misstating facts or law, presenting or relying upon
a false or deceptive affidavit, suppressing what ought to be disclosed, or
otherwise assisting in any deception, crime or illegal conduct;
(d) deliberately refrain from informing the tribunal of any binding authority
that the paralegal considers to be directly on point and that has not been
mentioned by an opponent;
(e) appear before a judicial officer when the paralegal, a partner of the
paralegal, a paralegal employed by the paralegal firm or the client has a
business or personal relationship with the officer that gives rise to, or might
reasonably appear to give rise to, pressure, influence or inducement affecting
the impartiality of the officer, unless all parties consent and it is in the interests
of justice;
(f) knowingly assert as true a fact when its truth cannot reasonably be
supported by the evidence or as a matter of which notice may be taken by
the tribunal;
(g) make suggestions to a witness recklessly or knowing them to be false;
(h) endeavour or allow anyone else to endeavour, directly or indirectly, to
influence the decision or action of the tribunal or any of its officials in any case
or matter by any means other than open persuasion as an advocate;
(i) knowingly misstate the contents of a document, the testimony of a witness,
the substance of an argument or the provisions of a statute or like authority;
(j) knowingly permit a witness or party to be presented in a false or misleading
way or to impersonate another;
(k) knowingly misrepresent the client’s position in the litigation or the issues to
be determined in the litigation;
(l) needlessly abuse, hector, harass or inconvenience a witness;
(m) improperly dissuade a witness from giving evidence or suggest that a
witness be absent;
(n) when representing a complainant or potential complainant, attempt to gain
a benefit for the complainant by threatening the laying of a criminal charge or
by offering to seek or to procure the withdrawal of a criminal charge;
(o) needlessly inconvenience a witness; and
(p) appear before a court or tribunal while under the influence of alcohol or a
drug.
23. If, after explanation and advice from the paralegal, the client persists in
instructing the paralegal to engage in or continue a type of conduct prohibited by
Rule 4, the paralegal must withdraw from representing the client in the matter.
(See Guideline 11: Withdrawal [from] Representation.)
Malicious Proceedings (Rule 4.01(5)(a))

A paralegal shall not abuse the process of the tribunal by instituting or prosecuting
proceedings that, although legal in themselves, are clearly motivated by malice on the
part of the client and are brought solely for the purpose of injuring the other party.14
14 Rule 4.01(5)(a).


4. A paralegal should not help a client to bring proceedings that have no merit.
Claims that have no merit waste the time of the tribunal and its officers, and do
not further the cause of justice.
BOX
5.1
ABUSE OF TRIBUNAL PROCESS
Fact Situation
A prospective client consults with you about commencing a proceeding against his
neighbour in Small Claims Court for damages of $2,000. According to the client, the
neighbour’s collection of brightly painted garden gnomes and other garden statuary
has reduced the value of the client’s property by at least that much. “He must have
a hundred gnomes over there,” the client says. “I want him to get rid of them. In
warm weather I have a lot of cook-outs in my back yard. My guests can’t believe
what they’re seeing. I’ve talked to the Property Standards people at City Hall about
it. They won’t do anything. There’s nothing in the By-Laws about garden gnomes.”
Throughout the interview, the client speaks of the neighbour in angry, dispar-
aging terms. He mentions that the neighbour makes insulting remarks and spreads
malicious gossip about him in the neighbourhood. When you suggest that he con-
sider building a fence between the two properties, he says, “That’s what I’m going
to do, when I get the $2,000.”

Should you accept the retainer?
Threatening Criminal Proceedings (Rules 4.01(5)(n), 3.02(9),

3.08(5))
(9) A paralegal shall not, in an attempt to gain a benefit for a client, threaten, or
advise a client to threaten without reasonable and lawful justification:
(a) to initiate or proceed with a charge for an offence, including an
offence under
(i) the Criminal Code or any other statute of Canada;
(iii) a municipal by-law; or
(b) to make a complaint to a regulatory authority.
Rule 4.01(5)(n) states:
(5) When acting as an advocate, the paralegal shall not,

• • •
(n) when representing a complainant or potential complainant, attempt to gain
a benefit for the complainant by threatening the laying of a criminal charge or by
offering to seek to or procure the withdrawal of a criminal charge.


complainant A complainant is a person who alleges that she or he was the victim of a crime,
a person who alleges that and who takes part in the prosecution of the person(s) accused of committing
he or she was the victim of a the crime.
crime and who takes part in the It is an abuse of a tribunal’s process to threaten to make or to make a complaint in
prosecution of the person(s)
order to gain an advantage in a civil action, even if the client in the civil action has a
accused of committing the
legitimate claim for damages. It is also a ground for mandatory withdrawal of services.
crime
See Rule 3.08(5)(b), which states:
shall withdraw if,
• • •
(b) the client’s instructions require the paralegal to act contrary to the Rules, or
by-laws.
Misleading the Tribunal (Rules 4.01(5)(c), (d), (f), (i)-(k))

A paralegal must ensure that neither the paralegal nor his or her client(s) misleads the
tribunal. For a tribunal to decide a matter effectively and appropriately, the tribunal
must have access to everything that is relevant to the issues to be decided.15
A paralegal advocate shall not knowingly attempt to deceive a tribunal or influence
the course of justice by offering false evidence, misstating facts or law, presenting or
relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or
otherwise assisting in any deception, crime, or illegal conduct.16
BOX
5.2
WHAT IS AN AFFIDAVIT?
affidavit An affidavit is a written statement of facts that is confirmed under oath or by
a written statement of facts affirmation by the person making it. The person making the affidavit is called
that is confirmed under oath the deponent.
or by affirmation by the person The content of an affidavit is evidence. Swearing or affirming a false or deceptive
making it affidavit or helping another person to do so with intent to mislead is an offence
deponent contrary to the Criminal Code.
a person who makes an
affidavit
A paralegal advocate shall not deliberately refrain from informing the tribunal of
any binding authority that the paralegal considers to be directly on point and that
binding authority has not been mentioned by an opponent. 17 Binding authority (also known as
a judicial decision by a higher binding precedent) is a judicial decision by a higher court that must be followed by
court that must be followed by lower courts.
lower courts; also known as a A paralegal advocate shall not knowingly assert a fact as true when its truth cannot
binding precedent reasonably be supported by the evidence or as a matter of which notice may be taken
by the tribunal.18

16 Rule 4.01(5)(c).
17 Rule 4.01(5)(d).
18 Rule 4.01(5)(f).


BOX
5.3
BINDING AUTHORITY (RULE 4.01(5)(D))
Fact Situation
You represent the defendant in a Small Claims Court proceeding. During some
last-minute online research before the trial, you find a Divisional Court decision
dealing with issues very similar to those in your matter. The decision is unfavourable
to your client’s defence and favourable to the plaintiff’s claim. The decision is bind-
ing on the Small Claims Court. There are some minor legal and factual differences
between the matter dealt with in the appellate decision and the matter in which
you are acting.
To your surprise, during submissions, the licensee representing the plaintiff does
not refer to the decision.

Are you required to inform the court of a binding precedent that will almost certainly
prejudice your client’s defence?
BOX
5.4
JUDICIAL NOTICE
What is meant by “a matter of which notice may be taken by the tribunal” in
Rule 4.01(5)(f)? This is known in the courts as judicial notice. Adjudicators may judicial notice
notice, or accept as true, certain notorious facts (that is, matters of common know- when a tribunal notices,
ledge) without hearing evidence and without inquiry. Other lesser-known facts (for or accepts as true, certain
example, matters that can be checked in a standard reference work and are not notorious facts or matters of
easily disputed) may be judicially noticed after inquiry. common knowledge without
hearing evidence and without
inquiry; other lesser-known
facts may be noticed after
inquiry
A paralegal advocate shall not knowingly
• misstate the contents of a document, the testimony of a witness, the substance

of an argument, or the provisions of a statute or like authority;19
• permit a witness or party to be presented in a false or misleading way or to
impersonate another;20 or
• misrepresent the client’s position in the litigation or the issues to be determined
in the litigation.21
You must represent your client fearlessly and resolutely, but you shall not knowingly
engage in dishonest conduct that misleads the tribunal and others in order to protect
your client or gain an advantage for your client.
19 Rule 4.01(5)(i).
20 Rule 4.01(5)(j).
21 Rule 4.01(5)(k).


Improperly Influencing the Tribunal (Rules 4.01(5)(e), (h))
A paralegal advocate shall not
• appear before a judicial officer when the paralegal, a partner of the paralegal,
a paralegal employed by the paralegal firm, or the client has a business or
personal relationship with the officer that gives rise to, or might reasonably
appear to give rise to, pressure, influence, or inducement affecting the
impartiality of the officer, unless all parties consent and it is in the interests of
justice;22 or
• endeavour or allow anyone else to endeavour, directly or indirectly, to influence
the decision or action of the tribunal or any of its officials in any case or matter
by any means other than open persuasion as an advocate.23
6. For the public to have respect for the administration of justice, tribunals
must be fair, objective, independent and neutral. There should be no personal
connection between an adjudicator and any of the parties to a proceeding or
their advocates.
7. The only appropriate way to influence the tribunal’s decision is through open
persuasion as an advocate. This is done by making submissions based on legal
principles and offering appropriate evidence before the tribunal in the presence of,
or on notice to, all parties to the proceeding, or as otherwise permitted or required
by the tribunal’s rules of procedure. A paralegal should not communicate directly
with the adjudicator in the absence of the other parties, unless permitted to do so
by the tribunal’s rules of procedure.
Dishonest Conduct (Rules 4.01(5)(b), (c), (f))

8. Acting with integrity before a tribunal means being honest and acting with high
ethical principles.
A paralegal advocate shall not knowingly
• assist or permit the client to do anything that the paralegal considers to be

dishonest or dishonourable;24 or
• attempt to deceive a tribunal or influence the course of justice by offering false
evidence, misstating facts or law, presenting or relying upon a false or deceptive
affidavit, suppressing what ought to be disclosed, or otherwise assisting in any
deception, crime, or illegal conduct;25 or
• assert a fact as true when its truth cannot reasonably be supported by the
evidence or as a matter of which notice may be taken by the tribunal.26
22 Rule 4.01(5)(e).
23 Rule 4.01(5)(h).
24 Rule 4.01(5)(b).
25 Rule 4.01(5)(c).
26 Rule 4.01(5)(f).


BOX
5.5
DISHONEST CONDUCT
Fact Situation
You are acting for the plaintiff in an unliquidated claim in Small Claims Court. The
defendant failed to file a defence within the prescribed time, and he has been noted
in default. You have prepared a motion in writing for an assessment of damages and
a supporting affidavit.
The client provided the material in the affidavit to you during a telephone conver-
sation just after the defendant was noted in default. You phoned her because you
wanted to clarify some issues before you got started on the supporting affidavit. You
took detailed notes of what she said and went over them with her before ending the
call. The statements in the affidavit accurately reflect your notes of the conversation.
The statements contain information that is relevant to issues in the matter and, in
particular, relevant to determination of the quantum of damages owing.
When the client reviews the supporting affidavit, she objects to several state-
ments because they are harmful to her case. “If the judge reads this, I’ll get less
money,” she says. “Why should I say anything that’s going to take money out of my
pocket? I never would have told you that stuff if I’d known you were going to use it
against me. I want you to leave it out completely, or change it to say something that
will get me what I’m asking for.”
The client is correct that the material is harmful to her case.

Should you follow the client’s instructions to delete or alter the contents of the affi-
davit? If yes, why? If no, why not, and what action should you take?
Admissions by the Client (Rules 4.01(5)(b), (c), (f))

For the content of subrules 4.01(5)(b), (c), and (f), see the discussion of dishonest con-
duct above in the section in this chapter called “Dishonest Conduct (Rules 4.01(5)(b),
(c), (f)).”
9. When defending an accused person, a paralegal’s duty is to protect the client

from being convicted, except by a tribunal of competent jurisdiction and upon
legal evidence sufficient to support a conviction for the offence with which the
client is charged. Accordingly, a paralegal may properly rely upon any evidence or
defences, including “technicalities,” as long as they are not known to be false or
fraudulent.
10. However, admissions made by a client to a paralegal may impose strict
limitations on the paralegal’s conduct of the client’s defence. The client should
be made aware of this by the paralegal. Where the client has admitted to the
paralegal any or all of the elements of the offence with which the client is charged,
a paralegal must not do or say anything before the tribunal, including calling any
evidence, that would contradict the facts admitted by the client to the paralegal.
This would be misleading the court.


11. Where the client has admitted to the paralegal all the elements of the offence,
and the paralegal is convinced that the admissions are true and voluntary, the
paralegal may properly take objection to the jurisdiction of the tribunal, or to the
form, admissibility or sufficiency of the evidence. The paralegal could not suggest
that someone else committed the offence, try to establish an alibi or call any evidence
which, by reason of the admissions, the paralegal believes to be false. Admission by
the client to the paralegal of all of the elements of the offence with which the [client]
is charged also limits the extent to which the paralegal may attack the evidence for
the prosecution. The paralegal may test the evidence given by each witness for the
prosecution and may argue that the evidence, as a whole, is not enough to prove the
client guilty. The paralegal should go no further than that.
BOX
5.6
ELEMENTS OF THE OFFENCE
elements of the offence The elements of the offence are the legal requirements of the offence. They are
the components of an offence found in the statute that creates the offence and in the jurisprudence interpreting
that must be proven beyond the statute. The essential components of an offence are the following:
a reasonable doubt by the
prosecution in order to obtain a 1. Actus reus (guilty act): the physical components of the offence, including
conviction conduct, circumstances, and consequences.
2. Mens rea (guilty mind): the mental component, including intention or
knowledge, blameworthiness, or fault.
To obtain a conviction, the prosecution must call evidence that proves all of the
elements of the offence beyond a reasonable doubt. If the defence raises a reason-
able doubt in the mind of the court, the accused should be acquitted.
Incriminating Physical Evidence (Rule 4.01(5.2))

Rule 4.01(5.2) states:
(5.2) A paralegal shall not counsel or participate in the concealment, destruction

or alteration of incriminating physical evidence or otherwise act so as to obstruct or
attempt to obstruct the course of justice.
12. A paralegal is not ordinarily required to take or keep possession of

incriminating physical evidence or to disclose its existence. Possession of illegal
things could constitute an offence. A paralegal should immediately consult an
experienced criminal lawyer regarding his or her professional obligations. The
paralegal should carefully consider his or her options, which may include, as soon
as reasonably possible:
(a) considering whether to retain independent legal counsel to provide advice
about the paralegal’s obligations. If retained, the paralegal and independent
legal counsel should consider
(i) whether independent legal counsel should be informed of the identity
of the client and instructed not to disclose the identity of the instructing
paralegal to law enforcement authorities or to the prosecution, and


(ii) whether independent legal counsel should, either directly or
anonymously, taking into account the procedures appropriate in the
circumstances
(I) disclose or deliver the evidence to law enforcement authorities or
the prosecution, or
(II) both disclose and deliver the evidence to law enforcement
authorities and to the prosecution;
(b) delivering the evidence to law enforcement authorities or to the
prosecution, either directly or anonymously, taking into account the procedures
appropriate in the circumstances;
(c) delivering the evidence to the tribunal in the relevant proceeding, which
may also include seeking the direction of the tribunal to facilitate access by the
prosecution or defence for testing or examination; or
(d) disclosing the existence of the evidence to the prosecution.
13. A paralegal should balance the duty of loyalty and confidentiality owed to
the client with the duties owed to the administration of justice. When a paralegal
discloses or delivers incriminating physical evidence to law enforcement authorities
or to the prosecution, the paralegal has a duty to protect client confidentiality,
including the client’s identity.
14. A paralegal has no obligation to assist the authorities in gathering physical
evidence of crime but cannot act or advise anyone to hinder an investigation or
a prosecution. The paralegal’s advice to a client that the client has the right to
refuse to divulge the location of physical evidence does not constitute hindering
an investigation. A paralegal who becomes aware of the existence of incriminating
physical evidence or declines to take possession of it should not participate in its
concealment, destruction or alteration.
Witnesses (Rules 4.01(5)(g), (i), (j), (l)-(o))

A paralegal advocate shall not
• make suggestions to a witness recklessly or knowing them to be false;27

• knowingly misstate the testimony of a witness;28
• knowingly permit a witness or party to be presented in a false or misleading
way or to impersonate another;29
• needlessly abuse, hector, harass, or inconvenience a witness;30
• improperly dissuade a witness from giving evidence or suggest that a witness be
absent;31
• when representing a complainant or potential complainant, attempt to gain
a benefit for the complainant by threatening to lay a criminal charge or by
offering to seek or to procure the withdrawal of a criminal charge;32 or
• needlessly inconvenience a witness.33
27 Rule 4.01(5)(g).
28 Rule 4.01(5)(i).
29 Rule 4.01(5)(j).
30 Rule 4.01(5)(l).
31 Rule 4.01(5)(m).
32 Rule 4.01(5)(n).
33 Rule 4.01(5)(o).


Disclosure of Documents (Rule 4.01(6))
(6) If the rules of a tribunal require the parties to produce documents, a paralegal,
when acting as an advocate,
(a) shall explain to his or her client the necessity of making full disclosure of all
documents relating to any matter in issue and the duty to answer to the best
of his or her knowledge, information and belief, any proper question relating
to any issue in the action;
(b) shall assist the client in fulfilling his or her obligation to make full
disclosure; and
(c) shall not make frivolous requests for the production of documents or make
frivolous demands for information.
17. The rules of procedure of the tribunal may require parties to produce
documents and information to the tribunal or to the other parties in the matter.
Timely, complete and accurate disclosure helps settlement efforts and makes the
hearing process more effective and fair.
Disclosure requirements vary depending on the tribunal. You should carefully review
the procedure of a tribunal and any other relevant law to determine the timing and
extent of required disclosure.
Errors and Omissions (Rule 4.01(7))

(7) A paralegal who does, or fails to do, something which may involve a breach of
this rule, shall, subject to Rule 3.03 relating to confidentiality, disclose any error or
omission and do all that can reasonably be done in the circumstances to rectify it.
Confidential information shall not be disclosed unless the disclosure is expressly or

impliedly authorized by the client, required by law or by an order of a tribunal of com-
petent jurisdiction, required to provide information to the Law Society, or otherwise
permitted by Rule 3.34
See also the discussion of Rule 3.02(21) errors in the section in Chapter 4 called
“Errors (Rule 3.02(21)).”
Agreement on Guilty Pleas (Rules 4.01(8), (9))

Before a charge is laid or at any time after a charge is laid, a paralegal acting for an
accused or potential accused may discuss with the prosecutor the possible disposition
of the case, unless the client instructs otherwise.35
Before negotiating a guilty plea on behalf of the client, the paralegal should
consider obtaining and reviewing disclosure and completing any investigation that
is appropriate in the circumstances. The paralegal may then enter into an agreement
34 Rule 3.03(1).
35 Rule 4.01(8).


with the prosecutor about a guilty plea if the conditions set out in Rule 4.01(9) are
met. Rule 4.01(9) states:
(9) A paralegal, on behalf of his or her client, may enter into an agreement with a
prosecutor about a guilty plea, if, following investigation,
(a) the paralegal advises the client about the prospects for an acquittal or
finding of guilt;
(b) the paralegal advises the client of the implications and possible
consequences of a guilty plea and particularly of the sentencing authority and
discretion of the court, including the fact that the court is not bound by any
agreement about a guilty plea;
(c) the client is prepared voluntarily to admit the necessary factual and mental
elements of the offence charged; and
(d) the client voluntarily instructs the paralegal to enter into an agreement as
to a guilty plea.
18. As an advocate for a person accused in a criminal or quasi-criminal matter,

the paralegal should take steps reasonable in the circumstances to satisfy himself
or herself that the client’s instructions to enter into the agreement on a guilty plea
are informed and voluntary. The paralegal should ensure the client’s instructions to
enter into an agreement on a guilty plea are in writing.

Evidence (Rule 4.03)
General (Rule 4.02(1); Rule 7.02)
Subject to the restrictions on communication with a represented party at Rule 7.02, a
paralegal may seek information from any potential witness, whether under subpoena
or not, but shall disclose the paralegal’s interest and take care not to subvert or sup-
press any evidence or procure the witness to stay out of the way.36
15. As an advocate, a paralegal may contact all possible witnesses for both sides
of a matter (subject to Rule 7.02 regarding communications with a represented
person, corporation, or organization), but the paralegal must be fair and honest
when dealing with them. This includes the paralegal speaking to the opposing
party or co-accused. The paralegal must make it clear to the witness who the
paralegal’s client(s) is/are and that the paralegal is acting only in the interests of
his or her client(s). As part of this disclosure, the paralegal should give the witness
his or her name and tell the witness that he or she is a paralegal, the name of the
client(s) he or she represents in the matter, and his or her status in the proceeding.
A paralegal should make an extra effort to be clear when the witness does not
have legal representation. Note that, although a paralegal may ask to speak to a
potential witness, the witness does not have to speak to the paralegal.
36 Rule 4.02(1).


Rule 7.02 places restrictions upon communication with persons who have legal
representation. Rule 7.02(1) states:
(1) … [I]f a person is represented by a legal practitioner in respect of a matter, a

paralegal shall not, except through or with the consent of the legal practitioner,
(a) approach or communicate or deal with the person on the matter; or
(b) attempt to negotiate or compromise the matter directly with the person.
Communication with Witnesses Giving Evidence

(Rules 4.03(1)-(3))
When preparing for a hearing, you may contact any witness who is unrepresented,
whether the witness is sympathetic to your client’s cause or not, and subject to the
witness’s willingness to talk to you. Different rules apply during a hearing. After a
hearing has commenced, whether or not you may speak to a witness and when you
may do so depends upon
• whether the witness gives testimony that supports your cause or the cause of
an opposing party,
• what stage the witness is at in giving testimony, and
• whether Rule 7.02 applies.
sympathetic witness A witness who gives testimony that supports your cause is called a sympathetic
a witness who gives evidence witness. A witness who gives testimony that supports an opposing party’s cause is
that supports a party’s cause called an unsympathetic witness.
unsympathetic witness Guideline 12 comments:
a witness who gives evidence
that supports an opposing 16. During a hearing, a paralegal’s ability to speak with a witness giving testimony
party’s cause is limited. This ensures that the paralegal does not influence the evidence the
witness will give. A comment made by the paralegal to the paralegal’s own witness
during court recess, for example, may result in a breach of the Rules. The witness
may return to the witness box and, as a result of the communication with the
paralegal, offer evidence that is slanted to benefit the paralegal’s client. Such
evidence is no longer neutral and could mislead the tribunal.
Rule 4.03 should be read in conjunction with Rule 7.02 (introduced above, and
discussed further in Chapter 6). You should not approach or communicate with a
witness who has legal representation except through or with the consent of her or his
legal representative.
(1) Subject to the direction of the tribunal, a paralegal shall observe the following
rules respecting communication with witnesses giving evidence:
(a) During examination-in-chief, the examining paralegal may discuss with the
witness any matter that has not been covered in the examination up to that
point.
(b) During examination-in-chief by another licensee of a witness who is
unsympathetic to the paralegal’s cause, the paralegal not conducting the
examination-in-chief may discuss the evidence with the witness.


TABLE 5.1 Communication with Witnesses (Paralegal Rule 4.03(1))
Stage of Proceeding Permitted Communication with Witness
Applicable
You call the witness Sympathetic witness or unsympathetic witness*
paragraph
Direct examination During an interval, you may discuss anything not covered in the (a)
conducted by you examination to that point.
After direct examination You shall not discuss with the witness the evidence given during (c)
Before cross-examination direct examination or relating to any matter touched on during
direct examination.
Cross-examination by You shall have no conversation with the witness about the (d)
opposing party witness’s evidence or any issue in the proceeding.
After cross-examination You shall have no conversation with the witness about evidence to (e)
Before re-examination be dealt with on re-examination.
Re-examination During an interval, you may discuss anything not covered in the (a)
re-examination to that point.
Opposing party calls Applicable Unsympathetic Applicable

Sympathetic witness
the witness** paragraph witness paragraph
Direct examination con- You may discuss the wit- *** You may discuss the (b)
ducted by opposing party ness’s evidence with the witness’s evidence
witness. with the witness.
After direct examination You may discuss the wit- *** You may discuss the ***
Before cross-examination ness’s evidence with the witness’s evidence
Cross-examination con- You may discuss anything (g) You may discuss the (f)
ducted by you not covered in the wit- witness’s evidence
ness’s cross-examination with the witness.
to that point.
After cross-examination You may discuss the wit- *** You may discuss the ***
Before re-examination ness’s evidence with the witness’s evidence
Re-examination by You shall have no conver- (h) You may discuss the (h)
opposing party sation with the witness witness’s evidence
about evidence to be dealt with the witness.
with on re-examination.
* A sympathetic witness gives evidence that supports your cause; an unsympathetic witness gives evidence that supports an
opposing party’s cause.
** When approaching witnesses who are represented, you shall observe Rule 7.02.
*** Not expressly prohibited by the Paralegal Rules of Conduct.


(c) Between completion of examination-in-chief and commencement of cross-
examination of the paralegal’s own witness, the paralegal ought not to discuss
the evidence given in chief or relating to any matter introduced or touched on
during the examination-in-chief.
(d) During cross-examination by an opposing licensee, the witness’s own
representative ought not to have any conversation with the witness about the
witness’s evidence or any issue in the proceeding.
(e) Between completion of cross-examination and commencement of a re-
examination, a paralegal who is going to re-examine the witness ought not to
have any discussion about evidence that will be dealt with on re-examination.
(f) During cross-examination by the representative of a witness unsympathetic
to the cross-examiner’s cause, the paralegal may discuss the witness’s evidence
with the witness.
(g) During cross-examination by the representative of a witness who is
sympathetic to that licensee’s cause, any conversations ought to be restricted
in the same way as communications during examination-in-chief of one’s own
witness.
(h) During re-examination of a witness called by an opposing licensee, if the
witness is sympathetic to the paralegal’s cause, the paralegal ought not to
discuss the evidence to be given by that witness during re-examination. The
paralegal may, however, properly discuss the evidence with a witness who is
adverse in interest.
(2) With the consent of the opposing licensee or with leave of the tribunal, a
paralegal may enter into discussions with a witness that might otherwise raise a
question under this rule as to the propriety of the discussions.
(3) This rule applies, with necessary modifications, to examinations out of court.
examination out of court An examination out of court is a procedure available in the Superior Court of
a procedure during which a Justice under Rule 34.01 of the Rules of Civil Procedure.37 During an examination out
party or witness is examined of court, a party or witness is examined under oath or affirmation by opposing parties
under oath or affirmation or their representatives with a view to obtaining facts and information that will assist
by opposing parties or their the parties in preparing their case. Examinations out of court include oral or written
representatives with a view to examinations for discovery,38 taking of evidence before trial,39 and cross-examination
obtaining facts and information
on an affidavit for use on a motion or application.40
that will assist the parties in
preparing their case
The Paralegal as Witness (Rule 4.04)
(1) A paralegal who appears as advocate shall not testify or submit his or her own
affidavit evidence before the tribunal unless
(a) permitted to do so by law, the tribunal, the rules of court or the rules of
procedure of the tribunal, or
(b) the matter is purely formal or uncontroverted.
37 RRO 1990, Reg 194.

38 Ibid, Rule 31.
39 Ibid, Rule 36.01.
40 Ibid, Rule 39.02.


The role of a paralegal acting as an advocate is different from the role of a paralegal
appearing as a witness.
19. As an advocate, the paralegal’s role is to further the client’s case within the
limits of the law. The role of a witness is to give evidence of facts that may or may
not assist in furthering the case of any of the parties to a proceeding. Because
these roles are different, a person may not be able to carry out the functions of
both advocate and witness at the same time.
20. Unless permitted by the tribunal, when acting as an advocate for his or her
client before a tribunal, the paralegal should not express personal opinions or
beliefs or assert as a fact anything that is properly subject to legal proof, cross-
examination, or challenge, or otherwise appear to be giving unsworn testimony.
This is improper and may put the paralegal’s own credibility in issue.
20.1. Unless permitted by the tribunal, the paralegal who is a necessary witness
should testify and entrust the conduct of the case to another licensee. A paralegal
who has appeared as a witness on a matter should not act as an advocate or legal
representative in any appeal of that matter.
20.2. There are no restrictions on the advocate’s right to cross-examine another
licensee, however, and the paralegal who does appear as a witness should not
expect to receive special treatment because of professional status.

(Rule 4.05)
When providing legal services, you may find yourself dealing with opposing parties or
other persons with an interest in the matter who are not represented by a licensee. A
conflict of interest may arise if the unrepresented person comes to believe that you are
protecting his or her interests.
Rule 4.05 states:
When a paralegal deals on a client’s behalf with an unrepresented person, the

paralegal shall,
(a) take care to see that the unrepresented person is not proceeding under the
impression that his or her interests will be protected by the paralegal; and
(b) make clear to the unrepresented person that the paralegal is acting
exclusively in the interests of the client and accordingly his or her comments may
be partisan.
Making it clear to the unrepresented person that you are acting exclusively in the
interests of your own client may require more than simply telling this to the unrepre-
sented person. Guideline 12 comments:
21. The paralegal has a special duty when representing a client and an opposing
party is not represented by a paralegal or a lawyer.
22. To avoid misunderstandings, it will be helpful for the paralegal to confirm in
writing the steps he or she takes to fulfill the requirements of Rule 4.05.


CHAPTER SUMMARY
The paralegal advocate must balance a number of duties, You shall not counsel or participate in the concealment,
as explained in Rule 4 and Guideline 12. You must repre- destruction, or alteration of incriminating physical evidence
sent your client honourably and resolutely within the limits or otherwise act so as to obstruct or attempt to obstruct
of the law; treat other licensees and the tribunal before the course of justice.
which you are appearing with candour, fairness, courtesy, Where the procedural rules of a tribunal require the par-
and respect; and encourage public respect for, and try to ties to produce documents, you shall explain the disclosure
improve, the administration of justice. obligation to the client and assist her or him in fulfilling her
You have a duty to represent your client fearlessly and or his obligation to make full and fair disclosure.
resolutely. You must balance this duty against the limits set In criminal and quasi-criminal matters, you must advise
by Rule 4 on how you may conduct yourself when acting as the client that any admissions she or he makes to you may
advocate for a client. Your conduct must also be governed impose strict limitations on how you conduct her or his
by your professional obligations to other parties, other licen- defence.
sees, the tribunal, and the administration of justice. Before agreeing to a guilty plea on behalf of the client,
You shall not abuse the process of the tribunal by com- you must obtain and review disclosure and complete any
mencing or continuing to act in proceedings that, although investigation that is appropriate in the circumstances.
legal, are clearly motivated by malice on the part of the When entering into an agreement with the prosecutor
client and are brought solely for the purpose of injuring the about a guilty plea, you must comply with Rule 4.01(9) to
other party. ensure that the client’s consent to the plea agreement is
You shall not knowingly assist or permit the client informed and voluntary.
to do anything that you consider to be dishonest or You may seek information from any potential witness in
dishonourable. a proceeding, including witnesses appearing for opposing
You shall not knowingly attempt to deceive a tribunal or parties. However, a witness has no obligation to speak to
influence the course of justice by offering false evidence, you, and you are not permitted to harass a witness.
misstating facts or law, presenting or relying upon a false Your ability to speak to a witness who is giving testimony
or deceptive affidavit, suppressing what ought to be dis- is restricted by whether the witness has legal representation;
closed, or otherwise assisting in any deception, crime, or whether the witness’s testimony is sympathetic or unsympa-
illegal conduct. thetic to your client’s cause; what stage the proceeding is at;
You shall avoid and discourage the client from resorting to what stage the witness is at in giving testimony; and whether
frivolous and vexatious objections, trying to gain advantage the witness is willing to speak to you.
from mistakes or oversights made by the other side that do When acting as an advocate for a client before a tribu-
not go to the merits of the case, and using tactics designed nal, you shall not act as a witness before the tribunal unless
merely to delay or harass the other side. permitted to do so by the rules of the court or the rules of
You shall not appear before an adjudicator if you, your procedure of the tribunal, or unless the matter is purely
partner, a paralegal employed by your firm, or your client formal and not subject to dispute. You shall not express
has a business or personal relationship with the adjudicator personal opinions or beliefs or appear to give unsworn
that either affects the adjudicator’s impartiality or may testimony.
reasonably appear to affect the adjudicator’s impartiality. When dealing on a client’s behalf with an unrepresented
You must ensure that neither you nor your client person, you shall urge the unrepresented person to obtain
misleads the tribunal. You shall not attempt, directly or independent legal representation, do nothing to make the
indirectly, to influence the decision or action of a tribunal or unrepresented person think that you will protect his or her
its officers in any case or matter, except by open persuasion interests, and make it clear—in writing if necessary—that
as an advocate. You shall not knowingly attempt to deceive you are acting exclusively in the interests of your own client.
a tribunal or influence the course of justice by offering false If, after explanation and advice from you, a client
evidence, misstating facts or law, suppressing relevant persists in instructing you to engage in or continue a type
information, or otherwise assisting in any deception, crime, of conduct prohibited by Rule 4, you shall withdraw from
or illegal conduct. representing the client in the matter.


KEY TERMS
adjudicator, 189 elements of the offence, 198 remedy, 190
advocate, 189 examination out of court, 204 statute-barred, 190
affidavit, 194 frivolous and vexatious objection, 190 statutory limitation period, 190
binding authority, 194 judicial notice, 195 sympathetic witness, 202
complainant, 194 merits of the case, 190 tribunal, 189
deponent, 194 objection, 190 unsympathetic witness, 202
1. Your client is the plaintiff in a Small Claims Court 5. You are representing the defendant in a Small Claims
proceeding. The defendant is self-represented. You Court proceeding. The plaintiff is represented by
have told the defendant several times that you are another paralegal. At the trial of the matter, the
acting solely in the interests of the plaintiff. plaintiff’s evidence is given by the plaintiff himself and
A date has been set for a settlement conference. by another witness (Witness 2) who is unrepresented.
Recently, the defendant called you. He wanted Your client is the only witness for the defence.
information about what a settlement conference was When answering the following questions, assume
and what he had to do to prepare for it. “I thought that both parties are individuals. Refer to any relevant
you might be able to help me out here,” he tells you. rules and give reasons for your answer.
“You’ve had a lot of experience with this stuff.” a. In the interval between direct examination of
You tell him that you do not represent him and the plaintiff by the plaintiff’s paralegal and
cannot assist him. Is there anything more that you cross-examination by you, may you discuss the
need to do? plaintiff’s evidence with the plaintiff?
2. You represent a defendant in a Highway Traffic Act b. During your cross-examination of the plaintiff,
matter. Your client has indicated that she would like the court calls a recess. May you discuss the
to plead down to reduce the fine and demerit points. plaintiff’s evidence with the plaintiff during the
What steps must you take? recess?
3. You represent Nico Morrison, who has been charged c. Witness 2 for the plaintiff is unsympathetic to
with speeding 50 over contrary to section 172(1) of your cause. During the interval between direct
the Highway Traffic Act. Nico tells you she wants a examination of Witness 2 by the plaintiff’s
trial, and instructs you to plead not guilty. “There’s paralegal and cross-examination by you, may
no way that old junker of mine can even hit 10 over you discuss Witness 2’s evidence with her?
these days,” she says. d. During a recess in your direct examination of
When you contact her later to discuss some your client (the defendant), may you discuss
irregularities in the evidence around her arrest, she your client’s evidence with your client?
admits that she committed the offence, but insists e. During the interval between the conclusion of
that she still wants a trial because she believes she will your direct examination of the defendant and
be acquitted based on those irregularities. the commencement of cross-examination by
What effect does her admission have on your the opposing licensee, may you discuss your
conduct of her defence if the matter goes to trial? client’s evidence with your client?
4. You are preparing for a trial in a Small Claims f. During a recess in cross-examination of your
Court proceeding in which you represent the client by the plaintiff’s paralegal, may you
defendant. discuss your client’s evidence with your client?
a. May you contact a witness for the plaintiff? 6. Monica Manners is a paralegal carrying on business
b. When contacting witnesses, what information as MM Paralegal PC. Monica is consulted by a
should you provide? neighbour, Sandra Avila. Sandra has a legal basement
c. What if a witness tells you she does not want apartment in her house. The tenant, Jack Jones, has
to speak with you? lived there for two years. The current rent is $1,250,
inclusive of utilities. Sandra recently learned that


when a tenant leaves, she can raise the rent as much Barker has a reputation for representing tenants
as she wants. “I’m too nice to this person!” she tells without valid disputes and prolonging landlord
you. “Hydro, everything, it’s going up. I can’t survive applications needlessly just to harass landlords and
with what I’m making on that apartment!” Sandra drive their expenses up. “Who knows, maybe he got
wants to evict her tenant. evicted sometime in the past, and he never got over
When Monica asks Sandra what grounds she has it,” she concludes.
for eviction, Sandra says, “What grounds do I need? While Hiram Barker is making his opening
It’s my property! He’s a zombie! A moron! I want him submissions, Monica makes faces and occasional
out! You think of some grounds!” comments to Sandra.
Monica shrugs. “OK, I’ll think of something,” Several times during the hearing, when Hiram
she says. “I guarantee you we’ll get rid of him. It’s Barker is cross-examining Sandra and during his direct
foolproof. But first, I need some money up front. How examination of Jack Jones, Monica rolls her eyes and
about $1,000?” Sandra pays by credit card. makes snorting noises. During cross-examination of
Monica knows that Sandra has an adult daughter, Jack Jones, she is extremely aggressive. She often cuts
Heather, who has an apartment downtown. Having off his answers before he has finished speaking.
considered the matter, Monica decides to terminate Has Monica Manners acted ethically?
Jack’s tenancy on grounds that the landlord requires 7. You are acting for the plaintiff on a wrongful dismissal
possession of the rental unit because a family member matter. You are on day two of the trial. Maurice is one
wants to move in. She figures that they can always of the witnesses who has given evidence in support of
say Heather changed her mind at the last minute. your client’s cause. Cross-examination of Maurice by
Monica completes the notice of termination of the defendant’s paralegal has just concluded, and the
tenancy and serves it on Jack. She issues the notice court adjourns for lunch, after which Maurice will be
of application and serves a copy, along with the re-examined by you. Maurice is unrepresented. You
notice of hearing, on Jack. A few weeks later, Jack’s would like to clarify something Maurice said during
paralegal, Hiram Barker, notifies Monica that his client his cross-examination that surprised you. You see that
intends to dispute the application. He also advises he’s sitting on his own outside the courtroom. May
Monica that he intends to summon Heather as a you approach Maurice to seek clarification of the
witness. Monica tells Sandra that Heather should do evidence he gave during cross?
everything she can to avoid service of the summons, 8. Your client is a commercial tenant who is involved in
and should be unavailable on the hearing date. a civil dispute with his landlord regarding the tenant’s
Prior to the hearing date, Monica phones Jack entitlement to use certain space in the basement of
several times, urging him to pack up and move out. the building for the storage of inventory items. You
“I’m telling you this for your own good,” she says. have demanded that the landlord give your client
“If you don’t leave, we’ll get an eviction order and the access to the space as contemplated by the lease, but
sheriff will come and toss you and your dog into the the landlord will not agree unless your client is willing
street!” to pay significantly more rent. During the course of
On the morning of the hearing, Monica arrives your representation, you learn that the landlord owns
early. She checks the list of hearings, and sees that and operates a convenience store in the building. He
the adjudicator is Allan Edgar. When Sandra arrives, employs four high school students. Your client tells
Monica says, “Well, we lucked out on this one. This you it’s common knowledge that the landlord pays
guy’s so dumb he can barely read. His ten-year-old these students below-minimum-wage rates.
daughter writes his decisions for him.” Can you threaten to report the landlord to the
During her opening submission, Monica addresses Ministry of Labour unless he agrees to allow your
the adjudicator as Allan. She points out that Hiram client use of the space in the basement?


Duty to Licensees
and Others 6
Encouraging Respect for the Administration Learning Outcomes
of Justice (Rule 6.01; Guideline 16). . . . . . 211
After reading this chapter, you will understand:
Duty to Licensees and Others:
Courtesy and Good Faith • Encouraging respect for the administration of justice.
(Rule 7.01; Guideline 17). . . . . . . . . . . . . . . 222 • Irresponsible allegations.
• Maintaining security of court facilities.
Communication with a Represented • Inappropriate public statements.
Person, Corporation, or Organization • Working with or employing unauthorized persons.
(Rule 7.02) . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 • Obligations of suspended paralegals.
Responsibility to the Law Society • Obligations of paralegals who have provided
(Rule 9; Guideline 21) . . . . . . . . . . . . . . . . . 229 undertakings to the Law Society.
Disciplinary Authority of the Law Society • The duty of courtesy and good faith to licensees and
(Rules 9.01(10)-(13); Guideline 22) . . . . . . 233 others.
• Communication with a represented person,
Chapter Summary. . . . . . . . . . . . . . . . . . . . . . . . 235
corporation, or organization.
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 • Communication with the Law Society.
Application Questions . . . . . . . . . . . . . . . . . . . . 236 • The duty to report misconduct by yourself or others.
• The duty to report certain offences to the Law Society.
• The disciplinary authority of the Law Society.
• Conduct unbecoming a paralegal.
• Professional misconduct.
209

Encouraging Respect for the Administration of Justice

On a brisk morning in November, Rajni arrived at Price Despite Rajni’s feelings toward Nikola, she shot back
and Associates at her usual start time to discover that sharply, “She’s a licensed paralegal and she knows the
her colleague Sebastian Merton had cleared out his law.” Rajni then excused herself to use the washroom.
office and resigned from the firm. The Law Society had When she returned to the foyer, she noticed Nikola
issued a suspension order against Sebastian for profes- talking to Diksha. As Rajni approached, she heard
sional misconduct. Nikola say, “You should consider it, you’d be crazy not
Lana Price called a meeting of paralegals and staff to.” Spotting Rajni, Nikola turned her back and walked
to address how the firm would handle Sebastian’s files away quickly. When asked what Nikola had said to her,
in the days and weeks ahead. The goal was to retain Diksha told Rajni that Nikola said the landlord would
as many of Sebastian’s clients as possible, and to pro- sign a two-year lease when the current one expired, on
vide the highest quality of service. A review of the files the condition she withdraw the application for abate-
revealed that three matters required final reporting ment of rent. Diksha seemed enticed by the offer of
letters to clients, and two required undertakings to a two-year lease. Rajni shook her head, frustrated by
be fulfilled, both of which involved the production of Nikola’s disregard for the rules of professional conduct.
documents that were contained in the client files. The
remaining files were active. With the exception of only
two files, all the others had money in trust. There was 1. With reference to the Rules, what are
work on four files that was complete and had been Sebastian’s obligations to notify the clients in
billed. Sebastian would be coming in later that day to respect of the
carry out his obligations under the suspension order to a. files requiring reporting letters?
notify clients.
b. files requiring the fulfillment of
That afternoon, Rajni had a hearing before the
undertakings?
Landlord and Tenant Board. She was representing Dik-
sha Patel, a tenant claiming abatement of rent from c. remaining active files?
her landlord. The paralegal acting for the landlord was 2. What are the requirements under the Rules
Nikola Novak, who had confronted Rajni in the parking for handling the monies currently in trust in
lot of the courthouse a few months earlier. Rajni and respect of Sebastian’s existing files?
Diksha arrived at the hearing to find a crowded foyer. It
3. Why is it important that Rajni address Diksha’s
would be a busy afternoon at the tribunal. Diksha spot-
comments about Nikola Novak?
ted Nikola across the room and said to Rajni, “I’ve heard
about that one. Rumour is she’s a pit bull. Apparently, 4. With reference to the applicable Rules,
nobody in town likes her, especially judges. Some say comment on Nikola’s discussion with Diksha
she doesn’t even know the law—she just bullies her way at the Landlord and Tenant board, while not in
around a courtroom.” the presence of Rajni.


Encouraging Respect for the Administration
of Justice (Rule 6.01; Guideline 16)
Rule 2.01(1) states the duty of integrity:
(1) A paralegal has a duty to provide legal services and discharge all responsibilities
to clients, tribunals, the public and other members of the legal professions
honourably and with integrity.
A paralegal’s duty to the administration of justice is an aspect of the duty of integ-

rity. Rule 6.01(1) of the Paralegal Rules of Conduct1 states:
(1) A paralegal shall encourage public respect for, and try to improve, the
Guideline2 16 comments:
1. An important part of a paralegal’s duty to act with integrity is his or her
obligation to the administration of justice detailed in Rule 6. The obligation includes
a paralegal’s duty to assist in maintaining the security of court facilities, to refrain
from inappropriate public statements, and the obligation to prevent unauthorized
practice.
Irresponsible Allegations (Rule 6.01(2))

A paralegal shall take care not to weaken or destroy public confidence in legal institu-
tions or authorities by making irresponsible allegations or comments, particularly when
commenting on judges or members of a tribunal.3
Although directed to lawyers, the commentary to Rule 5.6-1 of the Rules of Profes-
sional Conduct 4 may be of assistance to paralegals when considering Rule 6.01(2) of
the Paralegal Rules of Conduct:
[3] Criticizing Tribunals—Although proceedings and decisions of tribunals are

properly subject to scrutiny and criticism by all members of the public, including
lawyers, judges and members of tribunals are often prohibited by law or custom
from defending themselves. Their inability to do so imposes special responsibilities
upon lawyers. First, a lawyer should avoid criticism that is petty, intemperate, or
unsupported by a bona fide belief in its real merit, bearing in mind that in the eyes
of the public, professional knowledge lends weight to the lawyer’s judgments or
criticism. Second, if a lawyer has been involved in the proceedings, there is the
risk that any criticism may be, or may appear to be, partisan rather than objective.
Third, where a tribunal is the object of unjust criticism, a lawyer, as a participant in
[Rules].
3 Rule 6.01(2).
CHAPTER 6 Duty to Licensees and Others 211


BOX
6.1
IRRESPONSIBLE ALLEGATIONS
Fact Situation
You are representing an injured worker who is the objecting party in a Workplace
Safety and Insurance Act, 19975 internal appeal. On the hearing date, you arrive at
the tribunal early. While you are waiting for your client outside the hearing room,
you begin chatting with a paralegal colleague who is there on another matter. Your
colleague asks you if you have appeared on previous matters before the appeals
resolution officer who is presiding that day. “Every time I get her, I also get a bad
result,” your colleague says. “That woman loves employers. She’ll go to any lengths
to force an injured worker to go back to work.” Several people who are standing
nearby, including your client, overhear your colleague’s remarks.

Consider the appropriateness or otherwise of your colleague’s comment, with refer-
ence to the applicable rule(s). How should you respond?
the administration of justice, is uniquely able to and should support the tribunal,
both because its members cannot defend themselves and because in doing so the
lawyer is contributing to greater public understanding of and therefore respect for
the legal system.
Security of Court Facilities (Rules 6.01(3), 3.03)

As part of a paralegal’s duty to the justice system, the paralegal must help ensure that
its facilities remain safe. Rule 6.01(3) states:
(3) Subject to Rule 3.03 relating to confidentiality, a paralegal who has reasonable
grounds for believing that a dangerous situation is likely to develop at a court
facility shall inform the persons having responsibility for security at the facility and
give particulars.
2. An aspect of supporting the justice system is ensuring that its facilities remain
safe. Where appropriate, a paralegal in the situation covered by Rule 6.01(3) should
consider requesting additional security at the facility and notifying other paralegals
or lawyers who may be affected. In considering what, if any, action to take with
respect to this obligation, the paralegal must consider his or her obligations under
Rule 3.03.
If your reasonable belief is based on information from or about someone who is

not your client, you may disclose whatever information you think is necessary when
advising the appropriate persons about the dangerous situation.
5 SO 1997, c 16, Schedule A.


Imminent Risk of Death or Serious Bodily Harm
(Rules 3.03(5), (8); Guideline 8)
If your reasonable belief concerns a client, when considering what action, if any, to
take in order to comply with Rule 6.01(3), you must carefully consider your obligation
of confidentiality under Rule 3.03. Rule 3.03(5) provides a limited exception to the
general rule that a paralegal shall, at all times, hold in strict confidence all information
concerning the business and affairs of a client acquired in the course of their profes-
sional relationship except as permitted by Rule 3.03(1).
(5) A paralegal may disclose confidential information when the paralegal believes
on reasonable grounds that there is an imminent risk of death or serious bodily
harm, and disclosure is necessary to prevent the death or harm.
With reference to Rule 3.03(5), Guideline 8 comments:
14. A paralegal who believes that disclosure may be warranted may wish to seek
legal advice. In assessing whether disclosure of confidential information is justified
to prevent death or serious bodily harm, the paralegal should consider a number of
factors, including:
(a) the likelihood that the potential injury will occur and its imminence;
(b) the apparent absence of any other feasible way to prevent the potential
injury; and
(c) the circumstances under which the paralegal acquired the information of
the client’s intent or prospective course of action.
Rule 3.03(8) permits a paralegal to disclose confidential information to a lawyer

or another paralegal to secure legal advice about the paralegal’s proposed conduct.
If it is practicable, the paralegal may consider seeking a court order for disclosure.
If confidential information is disclosed, the paralegal should record the circumstances
of the disclosure as soon as possible.6
Paragraph 5 of the commentary to Rule 3.3-3 of the Rules of Professional Conduct
recommends that the record of disclosure should include
(a) the date and time of the communication in which the disclosure is made;
(b) the grounds in support of the lawyer’s decision to communicate the
information, including the harm intended to be prevented, the identity of the
person who prompted communication of the information as well as the identity of
the person or group of persons exposed to the harm; and
(c) the content of the communication, the method of communication used and the
identity of the person to whom the communication was made.
When making the disclosure, the paralegal shall not disclose more information than
is necessary to prevent the death or harm.


Public Appearances and Statements
(Rules 6.01(4), (4.1))
So long as there is no infringement of the paralegal’s obligation to the client,
the paralegal profession, the courts, or the administration of justice, a paralegal
may communicate information to the media and may make public appearances
and statements.7
A paralegal shall not communicate information to the media or make public state-
ments about a matter before a tribunal if the paralegal knows or ought to know that
the information or statement will have a substantial likelihood of materially prejudicing
a party’s right to a fair trial or hearing.8
3. When making statements to the media with, or on behalf of, a client, a
paralegal must be mindful of his or her obligations to act in the client’s best
interests and within the scope of his or her instructions from the client. It is also
important that a person’s, particularly an accused person’s, right to a fair trial or
hearing not be impaired by inappropriate public statements made before a case has
concluded.
The comments below are adapted from paragraphs [2], [3], and [7] of the commen-
tary to Rule 7.5-1 of the Rules of Professional Conduct for lawyers.
• A paralegal’s duty to the client demands that, before making a public statement
concerning the client’s affairs, the paralegal must first be satisfied that any
communication is in the best interests of the client and within the scope of the
retainer.
• Public communications about a client’s affairs should not be used for the purpose
of publicizing the paralegal and should be free from any suggestion that the
paralegal’s real purpose is self-promotion or self-aggrandizement.
• Paralegals should be aware that when they make a public appearance or give a
statement, they will ordinarily have no control over any editing that may follow
or the context in which the appearance or statement may be used, or under
what headline it may appear.
Working with or Employing Unauthorized Persons

(Rules 6.01(5), (6))
When carrying out its regulatory functions under the Law Society Act,9 one of
the principles that the Law Society shall have regard to is its duty to protect the
public interest.10
7 Rule 6.01(4).
8 Rule 6.01(4.1).
9 RSO 1990, c L.8.
10 Ibid, s 4.2.


The Act requires that any person who provides legal services or practises law
in Ontario shall be licensed by the Law Society, unless they are exempt from
licensing or are deemed not to be providing legal services or practising law by the
By-Laws.11
(5) A paralegal shall assist in preventing the unauthorized practice of law and the
unauthorized provision of legal services.
(6) Without the express approval of a panel of the Hearing Division of the Law
Society Tribunal, a paralegal shall not retain, occupy office space with, use the
services of, partner or associate with, or employ in any capacity having to do with
the provision of legal services any person who, in Ontario or elsewhere,
(a) is disbarred and struck off the Rolls;
(b) is a person whose licence to practise law or to provide legal services is
revoked;
(c) as a result of disciplinary action, has been permitted to resign his or
her membership in the Law Society or to surrender his or her licence
to practise law or to provide legal services, and has not had his or her
licence restored;
(d) is suspended;
(e) is a person whose licence to practise law or to provide legal services is
suspended; or
(f) is subject to an undertaking not to practise law or to provide legal
services.
4. The obligations found in subrules 6.01(5) & (6) stem from a paralegal’s
obligation to the administration of justice and from the regulatory scheme for
paralegals and lawyers set out in the Act and discussed below.
5. Under the Act, anyone who provides legal services or practises law must
be licensed by the Law Society, unless they are exempt from this requirement,
or deemed not to be providing legal services or practising law. A person who
is not a lawyer or a licensed paralegal is subject neither to a professional code
of conduct nor the Law Society’s jurisdiction, which exist to protect the public.
Only clients of regulated service providers have important protections, such as
the following:
• adherence to a mandatory code of professional conduct,

• maintenance and operation of a trust account in accordance with strict
mandatory guidelines,
• mandatory professional liability insurance coverage, and
• the Law Society’s Compensation Funds.
11 Ibid, s 26.1.


BOX
6.2
WORKING WITH OR EMPLOYING
UNAUTHORIZED PERSONS
Fact Situation
You are a licensed paralegal with a large office space. To reduce your business
expenses, you decide to enter into a space-sharing arrangement with a possibility of
referrals. One of the people who responds to your advertisement tells you that she
is a lawyer who has been running a consulting service for small business start-ups
for several years. She seems like a very nice person who would be perfect for your
space-sharing arrangement. After she leaves, you search her name at the Law Soci-
ety website. To your surprise, her name does not appear. When you call to check her
status, you are informed that she was disbarred.

May you enter into a space-sharing arrangement with this person?

(Rule 6.01(7); Law Society Act, ss 43, 44)
Section 43 of the Law Society Act states:
Professional competence application

43(1) With the authorization of the Proceedings Authorization Committee,
the Society may apply to the Tribunal for a determination by the Hearing
Division of whether a licensee is failing or has failed to meet standards of
professional competence.
Parties
(2) The parties to the application are the Society, the licensee who is the subject of
the application and any other person added as a party by the Hearing Division.
Section 44(1) sets out a range of orders that may be made if the Hearing Division
determines that the licensee is failing or has failed to meet standards of professional
competence, including an order suspending the licensee’s licence.
(7) A paralegal whose licence to provide legal services is suspended shall comply
with the requirements of the by-laws and shall not
(a) provide legal services; or
services.
A suspended paralegal shall comply with By-Law 7.1 (Part II) and By-Law 9 (Part II.1).
In the discussion below, references to the “Act” are to the Law Society Act.


By-Law 7.1 (Part II)
By-Law 7.1, section 8, states that the following definitions apply for purposes of Part II:
“existing client” means,

(a) a person who is a client of a suspended licensee when a suspension order is
made against the licensee, or
(b) a person who becomes a client of the suspended licensee after the suspension
order is made but before the suspension begins;
“former client” means a person who was a client of a suspended licensee before a
suspension order was made against the licensee but who was not a client when the
order was made;
“prospective client” means a person who seeks to retain a suspended licensee
after the suspension order is made [against] the licensee but before the suspension
begins;
“suspended licensee” means a licensee who is the subject of a suspension order;
“suspension order” means an order made under the Act suspending a licensee’s
licence to practise law in Ontario as a barrister and solicitor or to provide legal
services in Ontario, regardless of whether the suspension begins when the order is
made or thereafter.
Notice Requirements and Other Obligations Before Suspension

Begins
By-Law 7.1, section 9(1)(a), states:
(1) A suspended licensee shall before the suspension begins, but not later than the
date on which the suspension begins,
(a) notify every existing client, on whose matters the work will not be
completed by the suspended licensee before the suspension begins, of the
suspension order and that,
(i) the suspended licensee will be unable to complete the work,
(ii) the client will need to retain another licensee to complete the work,
and
(iii) the suspended licensee, subject to any rights that the suspended
licensee may have over the client’s file, will transfer the file to the licensee,
if any, retained by the client to complete the work or will return the file to
the client.
The notice requirements above do not apply if the only work remaining to be
completed on the client’s matter is a final report to the client, or the fulfillment of one
or more undertakings given by the suspended licensee. In such a case, the suspended
licensee shall, before the suspension begins, notify the client of the name and contact
information of the licensee retained by the suspended licensee to complete the work.12
See the discussion of sections 12 and 13 below.
12 By-Law 7.1, s 9(2).


If, on the date the suspension begins, the only work remaining for a suspended
licensee to complete on a client’s matter is a final report to the client, the suspended
licensee shall, before the suspension begins, retain another licensee who is authorized
to do so to review the client’s file and to complete and send the final report to the
client.13
If, on the date the suspension begins, the only work remaining for a suspended
licensee to complete on a client’s matter is the fulfillment of one or more undertak-
ings given by the suspended licensee, the suspended licensee shall retain another
licensee or person who is authorized to do so to take all steps necessary to fulfill the
undertakings.14
A suspended licensee, at the time a prospective client seeks to retain him or her,
shall notify the prospective client of the suspension order.15
A suspended licensee shall, on or before the date the suspension begins, return
to the Law Society any photo identification card issued to her or him by the Society.16
Notice Requirements and Other Obligations During Suspension

A suspended licensee shall, during the suspension,
(a) notify all persons who contact the suspended licensee’s place of business of the
suspension order; and
(b) notify any existing client or former client who contacts the suspended licensee’s
place of business of the name and contact information of another licensee who has
been given possession of the clients’ documents and files.17
A suspended licensee shall, not later than 30 days after the suspension begins,
complete and file with the Society, in a form provided by the Society, a report con-
firming and providing details of the suspended licensee’s compliance with By-Law 7.1,
Part II (s 18).
A suspended licensee may apply in writing to the Society for an exemption from
or a modification of a requirement mentioned in Part II, and the Society may exempt
the suspended licensee from or modify the requirement, subject to such terms and
conditions as the Society may impose.18
By-Law 9 (Part II.1)

By-Law 9 sets out special requirements for record-keeping and handling of client
money and other client property by licensees.
The Trust Account and the General Account

At a minimum, a paralegal firm shall maintain two bank accounts: a general account
and a mixed trust account. A mixed trust account is a trust account that holds client
money for many different client matters.
13 Ibid, s 12.
14 Ibid, s 13.
15 Ibid, s 11.
16 Ibid, s 16.
17 Ibid, s 10.
18 Ibid, s 19.


The general account is the firm’s operating account. This is the account you use to
• deposit payments from clients you have billed for completed legal services;
• pay your office expenses, such as rent, office supplies, staff salaries, bank
charges, and so on; and
• pay yourself.
No money belonging to clients should be in the general account.

Whenever you receive a money retainer, or other money to be held on behalf of
a client, you must deposit the money to your trust account. Trust accounts are the
accounts you use to
• deposit money you receive from your clients to be paid to another party;
• deposit money you receive from other parties on behalf of your clients;
• deposit money you receive from clients for future legal services and
disbursements;
• disburse money as directed by your clients;
• reimburse your practice for proper expenditures you have made on behalf
of your clients; and
• transfer money to your general account for fees after you have sent a bill to
your client for completed legal services.
Client money remains the property of the client and must be held for the client’s
benefit. For example, a money retainer is paid to you for future legal services. You
must hold the money retainer in trust for the benefit of the client until the legal
services contracted for have been provided and the client has been properly invoiced
for them. At that point, you are permitted to move the money owed pursuant to the
invoice out of the client’s trust account and into your general account.
By-Law 9, Part II.1, sets out restrictions on the handling of client money or other
client property by a suspended licensee.
Part II.1 Definitions (s 2.1)

For the purposes of By-Law 9, Part II.1,
“suspended licensee” means a licensee who is the subject of a suspension order;

“suspension order” means an order made under the Act suspending a licensee’s
licence to practise law in Ontario as a barrister and solicitor or to provide legal
services in Ontario, regardless of whether the suspension begins when the order is
made or thereafter.
Handling of Client Money or Other Property

Subject to sections 2.2(2) and 2.3, a suspended licensee shall not, during the suspen-
sion, receive from or on behalf of a person or groups of persons any money or other
property and shall not otherwise handle money or other property that is held in trust
for a person or group of persons.19
19 By-Law 9, Pt II.1, s 2.2(1).


EXCEPTION
A suspended licensee may receive, from or on behalf of a person or group of
persons, money
(a) in payment of fees for services performed by the suspended paralegal for the
person or group; or
(b) in reimbursement for money properly expended, or for expenses properly
incurred, on behalf of the person or group.20
Trust Account (s 2.3)

A suspended licensee shall, within 30 days of the beginning of the suspension, with-
draw from every trust account kept in his or her name, or in the name of the firm of
licensees of which the suspended licensee is a partner or by which the suspended
licensee is employed, and, as required, pay to the appropriate person,
(i) money properly required for payment to a person on behalf of a client;

(ii) money required to reimburse the suspended licensee for money properly
expended, or for expenses properly incurred, on behalf of a client;
(iii) money required for or toward payment of fees for services performed by the
suspended licensee; and
(iv) all other money that belongs to the suspended licensee or to a person other
than a client.21
A suspended licensee shall, within 30 days of the beginning of the suspension,

after complying with section 2.3(1)(a), withdraw from every trust account kept in the
name of the suspended licensee, or in the name of the firm of licensees of which the
suspended licensee is a partner or by which the suspended licensee is employed, all
money belonging to a client and pay the money to
(i) the client,

(ii) another licensee to whom the client has directed the suspended paralegal to
make payment, or
(iii) another licensee who has agreed with the suspended licensee to accept
payment in the event that the suspended licensee is unable to pay the money
to the client or as directed by the client.22
A suspended licensee shall, within 30 days of the beginning of the suspension, after
complying with sections 2.3(1)(a) and (b),
(i) close every trust account that was kept in the name of the suspended
licensee, and
(ii) cancel or cause to be cancelled the suspended licensee’s signing authority
on every trust account that was kept in the name of the firm of licensees of
20 Ibid, s 2.2(2).
21 Ibid, s 2.3(1)(a).
22 Ibid, s 2.3(1)(b).


which the suspended licensee is a partner or by which the suspended licensee
is employed.23
A suspended licensee is not required to comply with s 2.3(1)(b) if the client’s file is
transferred, in accordance with Part II of By-Law 7.1, to another licensee in the firm
of licensees of which the suspended licensee is a partner or by which the suspended
paralegal is employed.24
Report to Law Society on Compliance with Part II.1 (s 2.3(4))

A suspended licensee shall, not later than 30 days after the suspension begins, com-
plete and file with the Society, in a form provided by the Society, a report confirming
and providing details of the suspended licensee’s compliance with this section.25
Permission to Be Exempt from Requirement (s 2.4)

A suspended licensee may apply in writing to the Society for an exemption from or
a modification of a requirement mentioned in Part II.1, and the Society may exempt
the suspended paralegal from or modify the requirement, subject to such terms and
conditions as the Society may impose.26
BOX
6.3
HOW DOES BY-LAW 9, PART II.1, WORK?
Elizabeth Bennett is a paralegal sole practitioner. She uses two bank accounts in her
firm: a general account and a mixed trust account.
Elizabeth is suspended effective April 1. As of April 1, she is holding $8,000
in trust on account of settlement funds paid by another party for the benefit of
Client A. In the period from her last interim invoice to Client A until April 1, Elizabeth
has provided unpaid legal services worth $600 in Client A’s matter.
Question
Is Elizabeth permitted to invoice Client A and pay the invoice from the funds held in
trust for Client A?
Discussion
Yes, if there is a term in Elizabeth’s retainer agreement with the client that she may
pay her fees from settlement funds, and if she does so on or before April 30. Sec-
tion 2.3(1)(a)(iii) permits a suspended paralegal to withdraw money from trust for
payment of proper fees and disbursements within 30 days of the beginning of the
suspension.
23 Ibid, s 2.3(1)(c).
24 Ibid, s 2.3(2).
25 Ibid, s 2.3(4).
26 Ibid, s 2.4.


After she has invoiced Client A, Elizabeth may properly withdraw funds from
the trust account and transfer them to her general (operating) account. The invoice
received by the client will show the transfer from trust and a balance owing of zero,
because it has been paid in full out of trust.
If there is no term in the retainer agreement permitting Elizabeth to pay her out-
standing fees from any settlement funds payable to the client, then Elizabeth may
not pay the invoice from the settlement funds unless the client provides her with
written instructions to do so.
Question
What about the balance of the settlement funds that Elizabeth is holding in her trust
account for the benefit of Client A?
Discussion
Having paid herself, Elizabeth must now pay the balance of the money in trust to
the client or to another licensee as directed by the client.27 Any direction by the client
with respect to payment of the funds should be in writing.
On or before the end of the 30-day period, all funds held in Elizabeth’s trust
account must be properly disbursed in accordance with Part II.1. The mixed trust
account must be closed. Elizabeth must provide to the Law Society an accounting of
all transactions carried out during the 30-day period.28
Undertakings Not to Provide Legal Services

(Rules 6.01(8), (9))
A paralegal who gives an undertaking to the Law Society not to provide legal services
shall not

services.29
A paralegal who gives an undertaking to the Law Society to restrict her or his
provision of legal services shall comply with the undertaking.30
Duty to Licensees and Others: Courtesy

and Good Faith (Rule 7.01; Guideline 17)
A paralegal’s general duty of courtesy and good faith is set out in Rule 2.01(3):
(3) A paralegal shall be courteous and civil, and shall act in good faith with all
persons with whom he or she has dealings in the course of his or her practice.
27 Ibid, s 2.3(1)(b).
28 Ibid, s 2.3(4).
29 Rule 6.01(8).
30 Rule 6.01(9).


You should guard against letting your personal dislike of another licensee, or a
client’s animosity toward another party, cloud your judgment in a matter.
1. Discourteous and uncivil behaviour between paralegals or between a paralegal

and a lawyer will lessen the public’s respect for the administration of justice and
may harm the clients’ interests. Any ill feeling that may exist between parties,
particularly during adversarial proceedings, should never be allowed to influence
paralegals or lawyers in their conduct and demeanour toward each other or the
parties. Hostility or conflict between representatives may impair their ability to focus
on their respective clients’ interests and to have matters resolved without undue
delay or cost.
2. The presence of personal animosity between paralegals or between a paralegal
and a lawyer involved in a matter may cause their judgment to be clouded by
emotional factors and hinder the proper resolution of the matter. To that end, Rule
7.01 outlines various types of conduct that are specifically prohibited.
Rule 7.01 sets out various types of prohibited conduct. If a complaint is made about
a paralegal whose conduct does not comply with Rules 2.01(3) and 7.01, the Law
Society may review that conduct and, if satisfied that a breach of the Paralegal Rules
has occurred, may discipline the paralegal complained of.
Sharp Practice (Rule 7.01(1))

Sharp practice is the dishonourable taking of advantage. sharp practice
Rule 7.01(1) states: dishonourable taking of
advantage; trickery
(1) A paralegal shall avoid sharp practice and shall not take advantage of or
act without fair warning on slips, irregularities or mistakes on the part of other
licensees not going to the merits or involving the sacrifice of a client’s rights.
BOX
6.4
SHARP PRACTICE
Fact Situation
You are a paralegal licensee in your first year of practice. Your client is the plaintiff in
a Small Claims Court action for $9,000 based on damage to property. The defendant
is represented by a paralegal with 15 years of experience. You were served with the
defence two weeks ago.
The defendant’s paralegal phones you one day and says, “Why don’t we settle on
terms that my guy will pay your client $7,000?”
Your client has told you that to avoid the expense of a trial, she is prepared to
settle for less than the full amount claimed. There was no proposal of terms of pay-
ment in the defence.

How should you respond?


3. … Sharp practice occurs when a paralegal obtains, or tries to obtain, an

advantage for the paralegal or client(s), by using dishonourable means. This
would include, for example, lying to another paralegal or a lawyer, trying to trick
another paralegal or a lawyer into doing something or making an oral promise to
another paralegal or lawyer with the intention of reneging on the promise later.
As another example, if an opposing paralegal were under a mistaken belief about
the date of an upcoming trial, a paralegal would be obligated to tell the opposing
representative about the error, rather than ignoring the matter in the hope the
opposing representative would not appear at the trial.
BOX
6.5
TAKING ADVANTAGE OF AN INNOCENT MISTAKE
Fact Situation
Your client is the defendant in a Small Claims Court action. There is a lot of animos-
ity between your client and the plaintiff. The plaintiff is represented by a paralegal
whom you dislike and distrust.
A date has been scheduled for a settlement conference for October 15. The
plaintiff’s paralegal sends you what is, in your opinion, a completely unnecessary
and mildly insulting letter reminding you of your disclosure obligations under Small
Claims Court Rule 13.03(1)(e).31 You note that, according to the letter, she thinks the
settlement conference is scheduled for November 15.
When you advise your client of the error, he is delighted. “If they don’t show up,
they’ll look like clowns, and maybe we’ll get some costs,” he comments. He tells you
to act as though you did not notice the incorrect date.

Should you follow your client’s instructions?
Reasonable Requests (Rule 7.01(2))

A paralegal shall agree to reasonable requests by other licensees concerning trial
dates, adjournments, waiver of procedural formalities, and similar matters that do not
prejudice the rights of the client.
Abusive Communication (Rule 7.01(3))

When providing legal services, a paralegal shall not communicate with a client, another
licensee, or any other person in a manner that is abusive, offensive, or otherwise
inconsistent with the proper tone of a professional communication from a paralegal.
This rule applies to written and spoken communications.
31 Rules of the Small Claims Court, O Reg 258/98, online: <https://www.ontario.ca/laws/regulation/980258>.


Unfounded Criticism of Other Licensees (Rule 7.01(4))
A paralegal shall not engage in ill-considered or uninformed criticism of the competence,
conduct, advice, or charges of other licensees. However, a paralegal should be prepared
to represent a client in a complaint involving another licensee when requested to do so.
Prompt Communication (Rule 7.01(5))

A paralegal shall answer with reasonable promptness all professional letters and com-
munications from other licensees that require an answer. A paralegal shall be punctual
in fulfilling all commitments.
Recording Conversations (Rule 7.01(6))

A paralegal shall not use any device to record a conversation between the paralegal
and a client or another licensee, even if doing so is lawful, without first informing the
other person of the intention to do so.
Documents Sent in Error (Rule 7.01(7))

A paralegal who receives a document relating to the representation of the paralegal’s
client and knows or reasonably should know that the document was inadvertently sent
shall promptly notify the sender.
BOX
6.6
COURTESY AND GOOD FAITH
Fact Situation
Your client is the plaintiff in a Small Claims Court matter. There is a lot of ani-
mosity between your client and the defendant. The defendant is represented by
another paralegal.
A date has been set for trial. One week before the trial date, the defendant’s
paralegal phones you in a panic. He has just discovered that he has an out-of-town
hearing in another court on the date set for the small claims trial. It will be impos-
sible for him to appear on both matters.
You have provided full disclosure, reviewed the defendant’s disclosure, and sum-
moned witnesses for cross-examination. “I can’t believe that anyone—even you—
can just forget a trial until one week before it’s supposed to happen,” you tell him.
“I have to wonder how you manage to get dressed in the morning. Or does your
wife have to dress you?” You say this in a pleasant, even tone of voice. The other
paralegal cuts off the call.
You telephone your client to discuss the situation with her. “The man’s a cretin,”
you tell her in the course of the conversation. “They’re handing out licences like
popcorn these days.”

Have you acted ethically?


Communication with a Represented Person,
Corporation, or Organization (Rule 7.02)
You shall not approach or deal with a person who is represented by a legal practitioner
except in accordance with Rule 7.02 (see Figure 6.1). Rule 7.02(1) states:
(1) Subject to subrules (2) and (3), if a person is represented by a legal practitioner
in respect of a matter, a paralegal shall not, except through or with the consent of
the legal practitioner,
(a) approach or communicate or deal with the person on the matter; or
(b) attempt to negotiate or compromise the matter directly with the person.
Rule 7.02 applies to communications with any person, whether or not a party to
a formal adjudicative proceeding, contract, or negotiation, who is represented by a
licensee concerning the matter to which the communication relates.32
The prohibition on communications with a represented person applies if the para-
legal has direct knowledge of the representation or if he or she should be able to infer
the representation from the circumstances.33
Exceptions to Rule 7.02(1)

Limited Scope Retainer (Rule 7.02(2))
A limited scope retainer is a retainer whereby a legal practitioner provides part, but
not all, of the legal services required in a client matter. Limited scope retainers (also
referred to as “unbundled legal services”) were discussed in Chapter 3.
(2) Subject to subrule (3), if a person is receiving legal services from a legal
practitioner under a limited scope retainer on a particular matter, a paralegal may,
without the consent of the legal practitioner, approach, communicate or deal
directly with the person on the matter, unless the paralegal receives written notice
of the limited nature of the legal services being provided by the legal practitioner
and the approach, communication or dealing falls within the scope of the limited
scope retainer.
3.1. Where notice as described in Rule 7.02(2) has been provided to a paralegal,
the paralegal is required to communicate with the legal practitioner who is
representing the person under a limited scope retainer, but only to the extent of
the matter(s) within the limited scope retainer as identified by the legal practitioner.
The paralegal may communicate with the person on matters outside the limited
scope retainer.
32 Rule 7.02(7).
33 Rule 7.02(8).


Second Opinion (Rule 7.02(3))
A paralegal who is not otherwise interested in a matter may give a second opinion to
a person who is represented by a legal practitioner with respect to that matter.34
Communication with a Corporation or Organization

(4) A paralegal retained to act on a matter involving a corporation or organization

that is represented by a legal practitioner in respect of that matter shall not,
without the legal practitioner’s consent or unless otherwise authorized or required
by law, communicate, facilitate communication with or deal with a person
(a) who is a director or officer, or another person who is authorized to act on
behalf of the corporation or organization;
(b) who is likely involved in decision-making for the corporation or
organization or who provides advice in relation to the particular matter;
(c) whose act or omission may be binding on or imputed to the corporation or
organization for the purposes of its liability; or
(d) who supervises, directs or regularly consults with the legal practitioner and
who makes decisions based on the legal practitioner’s advice.
For purposes of Rule 7.02(4), “organization” includes a partnership, limited part-

nership, association, union, fund, trust, co-operative, unincorporated association, or
sole proprietorship, and a government department, agency, or regulatory body.35
If a person described in subrule (4)(a), (b), (c), or (d) is represented in the matter by a
legal practitioner, the consent of the legal practitioner is sufficient to allow a paralegal
to communicate, facilitate communication with, or deal with the person.36
BOX
6.7
COMMUNICATION WITH REPRESENTED PERSONS
Fact Situation
You are representing the plaintiff in a Small Claims Court action. The defendant,
who is represented by another paralegal, is anxious to settle the matter. He has
been contacting your client directly to discuss terms of settlement. Your client has
indicated that she does not feel comfortable with this, and would prefer that the
defendant stop approaching her directly. You have notified the defendant’s paralegal
of this in writing.
One morning, the defendant calls you. He tells you he wants to discuss the case
and propose terms of settlement. “This way we’ll get things done faster, and it will
cost me less,” he says.

May you discuss the matter with the defendant?
34 Rule 7.02(3).
35 Rule 7.02(6).
36 Rule 7.02(5).


FIGURE 6.1 Represented Parties: Permitted and Prohibited
Communication (Rule 7.02)
Permitted communication
Client 1 Client 2
Reminder: Communication between

the parties is inadvisable where there
are issues of vulnerability, inequality
of bargaining power, or duress
Paralegal Paralegal
for Client 1 for Client 2
Prohibited communication—Individual client
Client 1 Client 2
Corporation Individual
PROHIBITED
Except through or with
the consent of the client’s paralegal
Paralegal Paralegal
Prohibited communication—Corporate client
Client 1 Client 2
Corporation Individual
PROHIBITED
Except with the consent of the client’s paralegal
or as otherwise authorized or required by law
Paralegal Paralegal


Responsibility to the Law Society
(Rule 9; Guideline 21)
The Law Society is the governing body for all persons licensed to practise law or pro-
vide legal services in Ontario.
1. All paralegals and lawyers owe a duty to their governing body, the Law Society,
so that it can effectively and efficiently carry out its mandate to govern the legal
professions in the public interest. Rule 9 details various obligations owed to the Law
Society, many of which focus on measures to protect the public from inappropriate
paralegal or lawyer conduct.
Communications from the Law Society

A paralegal shall reply promptly and completely to any communication from the Law
Society, and shall provide a complete response to any request from the Law Society.37
2. In addition to the obligation to reply promptly and completely to communication

from the Law Society, which is set out in Rule 9.01(1), a paralegal also has a duty to
cooperate with a person conducting an investigation under the [Law Society] Act.
A paralegal who fails to respond promptly and completely to a Law Society inquiry
about a complaint, or who fails to cooperate with a Law Society investigation, may be
disciplined on that issue, regardless of the merits or outcome of the original complaint.
The Law Society is mandated to protect the public interest. The Law Society will
investigate a complaint against you if the complaint raises any genuine regulatory issues.
In the case of a complaint by a client, this would include any issues concerning whether
your conduct may cause harm to the public. Depending on the results of the investiga-
tion, the Law Society may conclude that sanctions are appropriate in the circumstances.
Failure to cooperate with a Law Society investigation is itself grounds for sanctions.
Duty to Report
A paralegal shall assist the Law Society in upholding the integrity of the paralegal
profession by reporting misconduct in accordance with Rule 9.01(2):
(2) A paralegal shall report to the Law Society, unless to do so would be unlawful
or would involve a breach of confidentiality between the paralegal and his or her
client,
(a) the misappropriation or misapplication of trust monies by a licensee;
(b) the abandonment of a law practice by a lawyer or a legal services practice
by a paralegal;
(c) participation in serious criminal activity related to a licensee’s practice;
(d) conduct that raises a substantial question as to another licensee’s honesty,
trustworthiness or competency as a paralegal;
37 Rule 9.01(1).


(e) conduct that raises a substantial question about a licensee’s capacity to
provide professional services; and
(f) any other situation where a licensee’s clients are likely to be severely
prejudiced.
Nothing in Rule 9.01(2) is meant to interfere with the paralegal’s duty to the client.38
A report under Rule 9.01(2) must be made in good faith and without malice or ulterior
motive.39
3. Unless a paralegal or lawyer who departs from proper professional conduct is

checked at an early stage, loss or damage to clients and others may ensue. As such,
a paralegal must assist the Law Society in upholding the integrity of the profession
by reporting professional misconduct of the type outlined in Rule 9.01(2).
4. Evidence of seemingly isolated events, or “less serious” breaches of the Rules,
may, under investigation, disclose a more serious situation or may indicate the
commencement of a course of conduct that may lead to serious breaches in the
future. It is proper therefore (unless it is confidential or otherwise unlawful) for a
paralegal to report to the Law Society any instance involving a breach of the Rules
or the Rules of Professional Conduct.
5. The obligation to report misconduct applies to the paralegal’s own conduct, as
well as that of other paralegals and lawyers.
6. The onus is on the paralegal to take the necessary steps to carry out his or
her obligations to the Law Society and to protect both himself or herself and his
or her client. If a paralegal is unsure as to whether to report another paralegal’s
or lawyer’s conduct, the paralegal should consider seeking the advice of the Law
Society directly (through the Practice Management Helpline [available by email at
practicehelpline@lso.ca or] at 416-947-3315 or 1-800-668-7380 extension 3315)
or indirectly (through another paralegal or lawyer).
Encouraging a Client to Report Dishonest Conduct

(Rules 9.01(5)-(8))
A paralegal shall encourage a client who has a claim or complaint against an
apparently dishonest licensee to report the facts to the Law Society as soon as
reasonably practicable.40
If the client refuses to report a claim against an apparently dishonest licensee to
the Law Society, the paralegal shall obtain instructions in writing to proceed with the
client’s private remedies without notice to the Law Society.41
A paralegal shall inform the client of the provision of the Criminal Code42 (s 141)
that deals with the concealment of an indictable offence in return for an agreement
to obtain valuable consideration.43
38 Rule 9.01(3).
39 Rule 9.01(4).
40 Rule 9.01(5).
41 Rule 9.01(6).
42 RSC 1985, c C-46.
43 Rule 9.01(7).


If the client wishes to pursue a private agreement with the apparently dishonest
licensee, the paralegal shall not continue to act if the agreement constitutes a breach
of section 141 of the Criminal Code.44
Section 141(1) of the Criminal Code is excerpted below.
Compounding indictable offence

141(1) Every one who asks for or obtains or agrees to receive or obtain any
valuable consideration for himself or any other person by agreeing to compound
or conceal an indictable offence is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years.
Duty to Report Certain Offences

If a paralegal is charged with an offence described in By-Law 8 of the Law Society, she
or he shall inform the Law Society of the charge and of its disposition in accordance
with the By-Law.45
7. All paralegals have a duty to report themselves to the Law Society if certain
charges (identified in By-Law 8, subsection [2]) have been laid against them.
8. The By-Law only requires the paralegal to self-report the above-
mentioned criminal charges or convictions. A paralegal is only required to
report another paralegal or lawyer who is involved in criminal activity in
certain circumstances.
Section 2(1) of By-Law 8 is excerpted below.
(1) Every licensee shall inform the Society in writing of,

(a) a charge that the licensee committed,
(i) an indictable offence under the Criminal Code (Canada),
(ii) an offence under the Controlled Drugs and Substances Act
(Canada),
(iii) an offence under the Income Tax Act (Canada) or under an Act of the
legislature of a province or territory of Canada in respect of the income
tax law of the province or territory, where the charge alleges, explicitly or
implicitly, dishonesty on the part of the licensee or relates in any way to
the professional business of the licensee,
(iv) an offence under an Act of the legislature of a province or territory of
Canada in respect of the securities law of the province or territory, where
the charge alleges, explicitly or implicitly, dishonesty on the part of the
licensee or relates in any way to the professional business of the licensee,
or
(v) an offence under another Act of Parliament, or under another Act
of the legislature of a province or territory of Canada, where the charge
44 Rule 9.01(8).
45 Rule 9.01(9).


alleges, explicitly or implicitly, dishonesty on the part of the licensee or
relates in any way to the professional business of the licensee; and
(b) the disposition of a charge mentioned in clause (a).
A licensee shall report a charge to the Law Society as soon as reasonably practic-
able after he or she receives notice of the charge, and shall report the disposition of
the charge as soon as reasonably practicable after he or she receives notice of the
disposition.46
Requirement to Report: Private Prosecution

By-Law 8, section 2(2), states that
(2) Despite subsection (1), a licensee is only required to inform the Society of a
charge contained in an information laid under section 504 of the Criminal Code
(Canada), other than an information referred to in subsection 507(1) of the
Criminal Code (Canada), and of the disposition of the charge, if the charge results
in a finding of guilt or a conviction.
Section 504 of the Criminal Code states:
In what cases justice may receive information

504 Any one who, on reasonable grounds, believes that a person has committed
an indictable offence may lay an information in writing and under oath before a
justice, and the justice shall receive the information, where it is alleged
(a) that the person has committed, anywhere, an indictable offence that may
be tried in the province in which the justice resides, and that the person
(i) is or is believed to be, or
(ii) resides or is believed to reside,
within the territorial jurisdiction of the justice;
(b) that the person, wherever he may be, has committed an indictable offence
within the territorial jurisdiction of the justice;
(c) that the person has, anywhere, unlawfully received property that was
unlawfully obtained within the territorial jurisdiction of the justice; or
(d) that the person has in his possession stolen property within the territorial
jurisdiction of the justice.
Section 507(1) refers to “an information laid under section 504 by a peace officer, a
public officer, the Attorney General or the Attorney General’s agent.” The exclusion of
section 507(1) in By-Law 8, section 2(2) limits its application to prosecutions initiated
against licensees by private persons. In such cases, the licensee is under no obligation
to report the charge to the Law Society if the licensee is acquitted.
If a licensee is charged in a private prosecution and is convicted, the licensee shall
report the charge and its disposition to the Law Society as soon as reasonably practic-
able after she or he receives notice of the disposition.47
46 By-Law 8, s 2(3).
47 Ibid, s 2(4).


Disciplinary Authority of the Law Society
(Rules 9.01(10)-(13); Guideline 22)
Section 33 of the Law Society Act states that a licensee shall not engage in professional
misconduct or conduct unbecoming a licensee.
The Law Society may discipline a paralegal for professional misconduct48 or for professional misconduct
conduct unbecoming a paralegal.49 conduct in a paralegal’s
Rule 9.01(13) states: professional capacity that tends
to bring discredit upon the
(13) In subrules (11) and (12), paralegal profession
“conduct unbecoming a paralegal” means conduct in a paralegal’s personal
conduct unbecoming
or private capacity that tends to bring discredit upon the paralegal profession a paralegal
including, conduct in a paralegal’s
(a) committing a criminal act that reflects adversely on the paralegal’s honesty, personal or private capacity
trustworthiness, or fitness as a paralegal, that tends to bring discredit
(b) taking improper advantage of the youth, inexperience, lack of education, upon the paralegal profession
unsophistication, ill health, vulnerability or unbusinesslike habits of another, or
(c) engaging in conduct involving dishonesty;
“professional misconduct” means conduct in a paralegal’s professional capacity
that tends to bring discredit upon the paralegal profession, including,
(a) violating or attempting to violate one of the Paralegal Rules of Conduct, or
a requirement of the Law Society Act or its regulations or by-laws,
(b) knowingly assisting or inducing another licensee to violate or attempt to
violate the Paralegal Rules of Conduct, a requirement of the Law Society Act or
its regulations or by-laws,
(c) knowingly assisting or inducing a non-licensee partner or associate of
a multi-discipline practice to violate or attempt to violate the rules in the
Paralegal Rules of Conduct or a requirement of the Law Society Act or its
regulations or by-laws,
(d) misappropriating or otherwise dealing dishonestly with a client’s or a third
party’s money or property,
(e) engaging in conduct that is prejudicial to the administration of justice,
(f) stating or implying an ability to influence improperly a government agency
or official, or
(g) knowingly assisting a judge or judicial officer in conduct that is a violation
of applicable rules of judicial conduct or other law.
2. Examples of conduct unbecoming a paralegal include a paralegal’s conviction of

a criminal offence or a finding or sanction imposed on the paralegal by a tribunal
or licensing body.
A paralegal is subject to the disciplinary authority of the Law Society regardless

of where the paralegal’s conduct occurs.50 If you engage in conduct unbecoming
48 Rule 9.01(11).
49 Rule 9.01(12).
50 Rule 9.01(10).


while on vacation in Belize, and it comes to the Law Society’s attention, you may be
disciplined.
3. Dishonourable or questionable conduct on the part of a paralegal in either

private life or while providing legal services will reflect adversely upon the integrity
of the profession and the administration of justice. Whether within or outside the
professional sphere, if the conduct is such that knowledge of it would be likely to
impair a client’s trust in the paralegal, the Law Society may be justified in taking
disciplinary action.
4. Generally, however, the Law Society will not be concerned with the purely
private or extra-professional activities of a paralegal that do not bring into question
the paralegal’s professional integrity.
5. The Rules cannot address every situation. As such, a paralegal is required to
follow both the “letter” and the “spirit” of the Rules. The “letter” of the rule is the
meaning of the rule as it is written. The “spirit” of the rule is the sense of the rule
or the meaning or importance of the rule, even though it may not be explicit or
stated in the written version of the Rule.


CHAPTER SUMMARY
A paralegal has a duty to provide legal services and dis- hold himself or herself out as a person entitled to provide
charge all responsibilities to clients, tribunals, the public, legal services. He or she shall also comply with the By-Law
and other members of the legal profession honourably 7.1 (Part II) and By-Law 9 (Part II.1) requirements regarding
and with integrity.51 Rule 6 sets out a paralegal’s duties to notice requirements and other obligations during suspen-
the administration of justice. A paralegal shall encourage sion and regarding restrictions on the handling of client
public respect for, and try to improve, the administration money or other property by a suspended paralegal.
of justice. You shall take care not to undermine or destroy A paralegal who gives an undertaking to the Law Society
public confidence in legal institutions or authorities by not to provide legal services shall not provide legal services
making irresponsible allegations or comments, particularly or represent or hold himself or herself out as a person
when commenting on judges or members of a tribunal. entitled to provide legal services. A paralegal who gives an
As part of your duty to the justice system, you must undertaking to the Law Society to restrict her or his provi-
help to ensure that its facilities remain safe. A paralegal sion of legal services shall comply with the undertaking.
who has reasonable grounds for believing that a dangerous As a paralegal, you have a general duty of courtesy and
situation is likely to develop at a court facility shall inform good faith. You shall be courteous and civil, and shall act in
persons having responsibility for security at the facility and good faith with all persons with whom you have dealings
give particulars. If your belief is based on information from in the course of your practice.52
or about a client, you must consider your obligations to You should guard against letting your personal dislike
the client under Rule 3.03, regarding confidentiality, when of another licensee cloud your judgment in a matter, or
deciding what action to take. allowing a client’s animosity toward other parties in an
So long as there is no infringement of the paralegal’s adversarial proceeding to influence your conduct and
obligation to the client, the paralegal profession, the demeanour toward those parties or their licensees.
courts, or the administration of justice, a paralegal may Rule 7.01 sets out various types of prohibited conduct.
communicate information to the media and may make If a complaint is made about a paralegal whose conduct
public appearances and statements. does not comply with Rule 7.01, the Law Society will
You shall not communicate information to the media or review that conduct and may discipline the paralegal
make public statements about a matter before a tribunal complained of.
if you know or ought to know that there is a substantial Licensees owe various duties to the Law Society, includ-
likelihood that the information or statement will materially ing the duty to respond promptly and completely to a Law
prejudice a party’s right to a fair trial or hearing. Society communication, to report misconduct, to report
As a member of the Law Society, you shall assist in pre- certain offences, and to submit to the disciplinary authority
venting the unauthorized practice of law and the unauthor- of the Law Society.53
ized provision of legal services. You shall not retain, share The Law Society Act prohibits a paralegal from engaging
office space with, use the services of, partner or associate in professional misconduct or conduct unbecoming a licen-
with, or employ in any capacity having to do with the see. The Law Society may discipline a paralegal for such
provision of legal services any person who, in Ontario or conduct if it tends to bring discredit upon the paralegal
elsewhere, is not a member in good standing of the Law profession and to raise issues of the paralegal’s professional
Society. integrity, regardless of whether the paralegal is acting as a
A paralegal whose licence to provide legal services is paralegal or in a personal capacity and regardless of where
suspended shall not provide legal services or represent or the conduct occurs.
51 Rule 2.01(1).
52 Rule 7.
53 Rule 7.


KEY TERMS
conduct unbecoming a paralegal, 233 professional misconduct, 233 sharp practice, 223
1. You are attending at court on a Highway Traffic notes of your conversations with the opposing
Act54 matter. While waiting outside the courtroom paralegal. You are beginning to find her conduct
for your matter to be called, your client starts talking very annoying and a waste of time. To produce a
with some other people. “These judges,” he says verifiable record, you would like to start taping your
in a loud voice, “as far as I can see, they’re all in conversations with her. May you do so?
the prosecutor’s pocket.” The others grin and nod. 7. You have just received a request for information from
“You’ve got that right,” one of them comments. the Law Society concerning a client complaint. In your
Your client looks over at you and says, in a loud, opinion, the client is motivated purely by malice, and
argumentative voice, “Am I right? You’re the expert. the complaint is trivial, silly, and a complete waste of
What’s your opinion?” your time. You are very busy in your practice at the
How should you respond? moment, and would rather use your time and energy
2. In the course of a court proceeding, your client’s to provide good service to your clients. You figure you
conduct, both in and out of the courtroom, has will get back to the Law Society when your workload
become increasingly erratic and hostile to the judge. lightens up a bit. Discuss.
She has made several comments in your presence 8. You are representing a client in a Small Claims Court
about how she would like to “kill that judge.” You matter. The opposing paralegal is Jonathon Meissen.
are getting very concerned, because she has a history At the settlement conference, the judge made an
of becoming violent when she doesn’t take her order that Jonathon’s client was to provide additional
medication regularly. disclosure by a stated date. The deadline for the
What should you do? additional disclosure has now passed, and you have
3. You have been approached by the local media to received nothing. You have left several voicemails
participate in a press conference about a client matter but have received no response. You are getting very
that is ongoing. Your client is enthusiastic. She wants frustrated, because you need the disclosure to prepare
to get her message out to the press. You are flattered, for trial. You decide to send your field placement
because you believe that the publicity will be good student to pick up the disclosure in person.
for you and your firm, and may bring in a lot of When the field placement student arrives at
new business. Jonathon’s office to pick up the disclosure, he calls
What are some issues that you need to consider? you on his cellphone. “The door’s locked, there’s no
one here, and the lights are off,” he tells you. “The
4. “A suspended paralegal may continue to advertise
sign is gone, and the guy down the hall told me
his or her legal services during the period of the
the place is empty. It’s been empty for at least three
suspension.” True or false? Give reasons for your
weeks. The guy said that’s how long people have
answer.
been coming around asking about him.” You hang
5. “A suspended paralegal may continue to receive up and call Jonathon’s business number. It has been
money in payment of outstanding invoices after disconnected.
commencement of the suspension.” Please comment.
You are very concerned that Jonathon has just
6. You are attempting to negotiate settlement in a walked away from his practice. What are your
client matter. The opposing paralegal has called obligations?
you several times to discuss settlement. During the
9. Ash is a paralegal who has formed a partnership with
course of these telephone conversations, she has
Michelle, a lawyer. The name of their professional
made statements and later denied them. Sometimes
corporation is AIM Legal Corporation. Ash’s business
she claims that she said something else, or that you
card reads “Partner/Business Manager” as his title.
misunderstood what she said. You have taken copious
Seema retains Ash to act for her on a Statutory
54 RSO 1990, c. H.8.


Accident Benefits Schedule claim. At the end of the the contractor. Charles tells Jeffrey he suspects the
meeting as she’s walking out the door, she turns back homeowner may be in financial difficulty. “That’s
and says, “I’m glad I have a lawyer now to handle why she started this action against me,” Charles
this for me.” Ash smiles back at her. Discuss the ways says. “She wants to make some money off me.”
in which Ash is marketing himself as a paralegal. Jeffrey decides it would be a good strategy to bring
Do they comply with the Rules? Comment on his a motion to have aspects of the Statement of Claim
reaction to Seema’s statement at the end of their struck. They are insignificant changes and deletions
meeting. not going to any issues in the proceeding, but
10. Jeffrey specializes in Small Claims Court and Landlord Jeffrey anticipates this may deter the plaintiff from
and Tenant matters. He is acting for Charles, continuing the action, since she will be intimidated by
a general contractor. Charles’s company is the the unfamiliar procedure and his arguments on the
defendant in a Small Claims Court matter in which motion may persuade her that her claim is without
the plaintiff homeowner, a 60-year-old widow, is merit and should be withdrawn.
alleging defective and shoddy work on the part of What is your opinion of Jeffrey’s proposed strategy?



Practice Management
7
Fees and Retainers Learning Outcomes
(Rule 5; Guidelines 13, 14) . . . . . . . . . . . . . 241
After reading this chapter, you will understand:
Practice Management
(Rule 8; Guidelines 6, 18) . . . . . . . . . . . . . . 262 • Reasonable fees and disbursements.
• Contingency fees.
Chapter Summary. . . . . . . . . . . . . . . . . . . . . . . . 275 • Fee splitting.
Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276 • Referral fees.
Application Questions . . . . . . . . . . . . . . . . . . . . 276 • Professional responsibility.
• Financial obligations.
• Supervisory responsibility.
• Delegation.
• Making legal services available.
• Marketing of legal services.
• Advertising of fees.
• Errors and omissions insurance.
239

Managing a Paralegal Practice

After working for Price and Associates as a paralegal for a case of constructive dismissal as well as a complaint
almost three years, Rajni Peacock decided to leave the under the Ontario Human Rights Code.1 Anthony didn’t
firm and go out on her own. feel he had the expertise to take on the file and was
She leased office space located downtown close to prepared to refer the matter to Rajni. He proposed a
the courthouse and began the process of hiring support referral fee, indicating that his client was agreeable to
staff. Of the seven people interviewed, two were cho- such an arrangement. Rajni was open to the idea, but
sen: Rochene Porter for reception and Bilal Antar as her decided to check the Paralegal Rules of Conduct2 since
legal assistant. she had never entered into a referral fee agreement
A few weeks before the firm was ready to open its before.
doors, Rajni purchased advertising space in a popular Over time, Rajni’s practice became increasingly busy.
community event publication to market her legal services. She was getting more and more referrals for employ-
The following description appeared in the newsletter: ment-related matters, and becoming known as an
expert in the field. On her way to court one morning,
Entrust your legal matters to Peacock Para- she called her assistant, Bilal, to check in. He reported
legal Services. Tackling legal problems can that Agnes Kaznechuk had already called twice that
be stressful. Our team of professionals is morning. Rajni was acting for Agnes on the appeal of a
committed to maintaining the highest ethi- decision of the Workplace Safety and Insurance Board.
cal standards, delivering prompt service and “Don’t worry, you can take that one off your plate. I
competent representation at every stage of answered all of her questions. She’s fine. Oh, and I also
your legal matter. Our services include: finalized the Plaintiff’s Claim on the Tao file. Do you
• Small Claims Court want me to have it issued this afternoon?”
• Highway Traffic matters
• Human Rights Questions for Discussion
• Workplace Safety and Insurance 1. What steps should Rajni have taken when she set
Appeals Tribunal out to hire her support staff? Advise Rajni on the
• Landlord and Tenant importance of competent practice management
• Summary Conviction offences when establishing a paralegal firm.
Call us today at the number below to book 2. Comment on Rajni’s efforts to promote her
a consultation. We look forward to serving new paralegal practice. Do they comply with
your legal needs. the Rules?
The first few months on her own were slow but 3. Advise Rajni on the requirements under the
steady. Rajni’s long-term goal was to develop a special- Rules in connection with referral fees. Cite the
ization in employment law matters, specifically human applicable rules.
rights, but she certainly wasn’t turning away any work 4. With reference to the Rules, comment on the
that fell outside that scope. action Bilal has taken on the two client matters
One day, she got a call from Anthony Trailer, a para- he discussed with Rajni.
legal in town. He had a client who appeared to have
1 RSO 1990, c H.19.
2 Law Society of Ontario, Paralegal Rules of Conduct (1 October 2014; amendments current to 24 October 2019), online:
<https://lso.ca/about-lso/legislation-rules/paralegal-rules-of-conduct/complete-paralegal-rules-of-conduct> [Rules].


Fees and Retainers (Rule 5; Guidelines 13, 14)
What Are Fees?
Fees are what a client pays to a paralegal for legal services provided by the paralegal to
the client, including advice, correspondence, drafting pleadings and other documents,
and appearances before tribunals.
Guideline3 13 comments:
2. Generally, a fee refers to the paralegal’s wage. Clients pay fees for the legal
services provided by the paralegal. Fees may be billed in a variety of ways, including:
• An hourly rate, charging for the actual time spent on the client matter,
• A block, fixed or flat fee, charging a fixed amount for performing a particular task,
• Fees by stages, charging for a matter which is broken down into stages, and
an estimate is given as to the fee for each stage or step in the matter, or
• Contingency fees, where part or all of the paralegal’s fee depends on the
successful completion of the matter, and the amount may be expressed as a
percentage of the client’s recovery in the matter.
fees based on an
3. The paralegal should consider which method best suits the circumstances and
hourly rate
the client.
paralegal is paid for actual
Fees Based on an Hourly Rate time spent on the client matter;
When you charge fees based on an hourly rate, you are paid for actual time spent calculated by multiplying the
on the client matter. In order to calculate this kind of fee, you must establish an hourly paralegal’s hourly rate (or that
of others who have completed
rate that is reasonable in the circumstances, and you must keep track of time spent on
work on the file) by the amount
the client matter by you and by anyone to whom you delegate work. If you delegate
of time spent on the client
work to another person, a reasonable hourly rate must be established for that person,
matter to the date of the
based on their level of training, experience, and so on. When billing the client, the fee invoice
owing to the date of the invoice is determined by multiplying your hourly rate (and
docket
that of others who have completed work on the file) by the amount of time spent on
a manual or electronic record of
the client matter to the date of the invoice.
all time spent on a client matter
You may wish to consider establishing different hourly rates for yourself for different
types of matters, depending on their complexity, the time and effort required, and so on. docketed time
For a client matter where you are charging an hourly rate, you should docket, or the total time recorded to a
client matter
record, your time for all tasks completed on the file. Time records may be maintained
manually or by using accounting or practice management software. The time record billable time
should state the client name, the client matter number or code, the name of the person time that is charged to the
performing the task, details of the task, and the amount of time spent on the task. client on an invoice
Your docketed time—the total time you record to a client matter—may not neces- to write off time
sarily turn into billable time—that is, the time that you actually charge to the client to not bill a client for time that
on an invoice. In certain situations, you may determine that it is reasonable to write was spent on the client matter
off time—that is, not to include some time when calculating your fee. Or you may non-billable time
designate certain tasks on the file as non-billable time. You should consider keeping time that is docketed to a client
complete time records of all time spent on a client matter, whether the time is billed matter but is not billed to the
to the client or not. These records provide a useful tool for determining what activities client
CHAPTER 7 Practice Management 241


are unproductive or inefficient. They will also be of assistance should a client challenge
the amount of your fee.
Fixed, Flat, or Block Fees

fixed, flat, or block fee A fixed, flat, or block fee is a fixed amount charged for a particular task or client
a fixed amount charged for a matter. Regardless of how much time is spent on a matter, the fee charged to the
particular task or client matter client does not change.
Fixed fees may be used in high-volume practice areas with routine procedures, such
as civil debt collections and some Highway Traffic Act4 matters.
As a tool for monitoring whether the fixed fee you are charging for a particular
service is appropriate in all of the circumstances, you should consider docketing time
spent on fixed fee matters by you and by others working under your supervision.
Fees by Stages
fees by stages When charging fees by stages, you break the matter down into stages and charge
an arrangement whereby the the client based on a reasonable estimate of the fee for each stage or step in the
client matter is broken down matter. When estimating fees, you should consider advising the client of the facts or
into stages and the client is circumstances that form the basis of the estimate, and any facts or circumstances that
charged based on a reasonable may result in an increase or decrease in the estimate.
estimate of the fee for each
stage or step in the matter
Limited Scope Retainer
Where the client retains you and is required to pay for some but not all of the stages
of the client matter, the retainer is called a limited scope retainer, or unbundled legal
services. Limited scope retainers are discussed in the section in Chapter 3 called “Lim-
ited Scope Retainers (Rules 3.02 (15)-(17); Guideline 6.”
For unbundled legal services, block fees or hourly rates may be charged. Advising
the client of the services that will be provided and how they will be charged for those
services, and confirming that advice in writing, is mandatory.
Providing Legal Services under a Limited Scope Retainer

(15) Before providing legal services under a limited scope retainer, a paralegal
shall advise the client honestly and candidly about the nature, extent and scope of
the services that the paralegal can provide and, where appropriate, whether the
services can be provided within the financial means of the client.
(16) When providing legal services under a limited scope retainer, a paralegal shall
confirm the services in writing and give the client a copy of the written document
when practicable to do so.
3. A paralegal may provide legal services under a limited scope retainer, but
must carefully assess in each case whether, under the circumstances, it is possible
to render those services in a competent manner. Although an agreement for
such services does not exempt a paralegal from the duty to provide competent
representation, the limitation is a factor to be considered when determining the
4 RSO 1990, c H.8.


legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation. The paralegal should ensure that the client is fully informed of the
nature of the arrangement and clearly understands the scope and limitation of
the services.
Guideline 14, paragraph 2.1, comments that a written retainer agreement is par-
ticularly helpful in the circumstances of a limited scope retainer.
In her Family Legal Services Review report, discussed in the section in Chapter 1
called “The Family Law Legal Services Review,” Justice Annemarie Bonkalo recom-
mends the use of unbundled legal services as a way of lowering costs and improving
efficiencies in the provision of family law services:
There was unanimous support of unbundled services. Many framed it as the

solution to the perceived access to justice crisis, presenting it as an affordable way
to get legal advice from a qualified lawyer.
In spite of this promise, however, unbundled services appear to be infrequently
offered. My understanding, based on the submissions I received, is that lawyers
continue to have concerns about liability.
• • •
There is no evidence to suggest that unbundling results in greater malpractice
risks or more complaints to the regulator. In fact, the most common causes of
malpractice claims in family law in Ontario between 2005 and 2015 were based
not on failure to know or apply the law (23% of claims), but on lawyer/client
communication issues (42% of claims) and missed deadlines and procrastination
(about 9% of claims).5
Contingency Fees
In a contingency fee arrangement, payment of your fee in whole or in part is con- contingency fee
tingent upon the successful disposition or completion of the matter for which your a fee that is contingent,
services are provided. The amount of your fee may be calculated as a percentage of in whole or in part, on the
any amount recovered by the client. successful disposition or
Contingency fees are discussed in more detail below in the section in this chapter completion of the matter for
which the paralegal’s services
called “Contingency Fees (Rules 5.01(7)-(9)).”
are to be provided
What Are Disbursements?

4. A disbursement refers to any expense that the paralegal pays on behalf of the
client for which the paralegal is entitled to be reimbursed by the client. Common
disbursements include charges for
• research, such as Quicklaw charges or research conducted by third party
professionals,
• mileage,
5 Annemarie E Bonkalo, Family Legal Services Review (December 2016), online: <https://www.attorneygeneral.
jus.gov.on.ca/english/about/pubs/family_legal_services_review>. See also LawPRO, “Family Law Claims
Malpractice Fact Sheet” (2018), online: <http://www.practicepro.ca/information/doc/Family-Malpractice-
Claims-FactSheet.pdf>; National Self-Represented Litigants Project, “Making It Legal: Some Simple Steps for
Moving Unbundling to the Next Stage” (12 July 2016), online (blog): <http://representingyourselfcanada.com/
making-it-legal-some-simple-steps-for-moving-unbundling-to-the-next-stage>.


• postage, photocopying, faxing documents or sending documents by courier,
• long-distance phone calls,
• expert reports,
• transcripts or certified documents, and/or
• tribunal or court filing fees related to the client matter.
5. A paralegal cannot charge more than the actual cost of the disbursement. A
paralegal cannot make a profit from disbursements at the client’s expense.
Reasonable Fees and Disbursements

A paralegal shall not charge or accept any amount for a fee or disbursement unless it
is fair and reasonable and has been disclosed in a timely fashion.6
1. Too often, misunderstandings about fees and disbursements result in disputes
over legal bills and complaints from unhappy clients. Since these disputes
reflect badly on the paralegal profession and the administration of justice, it is
important that a paralegal discuss with his or her client(s) the amount of fees and
disbursements that will likely be charged. It will be to the benefit of all concerned
if the paralegal ensures that the client has a clear understanding not only of what
legal services the paralegal will provide, but [also of] how much those services are
likely to cost.
Fair and Reasonable Fee

(2) What is a fair and reasonable fee will depend upon such factors as
(a) the time and effort required and spent;
(b) the difficulty of the matter and importance of the matter to the client;
(c) whether special skill or service was required and provided;
(d) the amount involved or the value of the subject matter;
(e) the results obtained;
(f) fees authorized by statute or regulation;
(g) special circumstances, such as the loss of other retainers, postponement of
payment, uncertainty of reward, or urgency;
(h) the likelihood, if made known to the client, that acceptance of the retainer
will result in the paralegal’s inability to accept other employment;
(i) any relevant agreement between the paralegal and the client;
(j) the experience and ability of the paralegal;
(k) any estimate or range of fees given by the paralegal; and
(l) the client’s prior consent to the fee.
Hidden Fees (Rule 5.01(3))

No fee, reward, costs, commission, interest, rebate, agency or forwarding allowance,
or other compensation related to his or her employment may be taken by the paralegal
from anyone other than the client without full disclosure to, and the consent of, the
6 Rule 5.01(1).


client.7 The client’s consent shall be fully informed and voluntary after disclosure, and
shall be in writing or, if spoken, shall be confirmed in writing.8
9. The relationship between paralegal and client is based on trust. The client must
be able to rely on the paralegal’s honesty and ability to act in the client’s best
interests. This means that the paralegal cannot hide from the client any financial
dealings in his or her matter.
Timely Disclosure of Fees

Along with the other terms of the paralegal – client retainer, you should discuss your
fee for a client matter with the client at the outset of the retainer, and confirm the
discussion in writing by a retainer agreement, engagement letter, or confirming
memorandum. You will find samples of a retainer agreement and an engagement
letter in Chapter 3 at Appendixes 3.1 and 3.2.
6. The following are steps that will assist a paralegal in meeting his or her
obligations under Rule 5.01(1):
(a) A paralegal should provide to the client in writing, before or within a
reasonable time after commencing a representation, as much information
regarding fees and disbursements, and interest as is reasonable and
practical in the circumstances, including the basis on which fees will be
determined;
(b) A paralegal should confirm with the client in writing the substance of all
fee discussions that occur as a matter progresses. The paralegal may revise the
initial estimate of fees and disbursements.
(c) A paralegal should openly disclose and discuss with clients all items that
will be charged as disbursements and how those amounts will be calculated. If
an administrative charge forms part of the amount charged as a disbursement,
disclosure of such charge should be made to the client(s) in advance.
7. In discussing fees and disbursements with clients, it is appropriate for a paralegal to
• provide a reasonable estimate of the total cost as opposed to an unreasonable
estimate designed to garner the client’s business, and
• not manipulate fees and disbursements in a manner as to provide a lower fee
estimate.
In other words, it is inappropriate to give a client an unreasonable estimate—that

is, to quote the client a fee that you know is unrealistically low—in order to obtain the
client’s business.
Sometimes a client matter takes a direction that neither you nor the client could
reasonably have foreseen at the outset of the retainer. In such circumstances, Guideline
13 recommends the following:
8. When something happens in the matter that the paralegal or client did not
expect, resulting in costs that are higher than the paralegal’s original estimate,
7 Rule 5.01(3).
8 Rule 1.02.


the paralegal should immediately give the client a revised estimate of cost, and an
explanation of why the original estimate has changed. The client can then instruct
the paralegal based on the new information. The new understanding should be
confirmed in writing.
Statement of Account (Rule 5.01(4))

statement of account A statement of account (also called an invoice or a bill) tells the client how much
a statement (that is, an invoice she or he owes the paralegal on account of fees and disbursements as of the date of
or bill) that tells the client how the account.
much is owed to the paralegal In a statement of account delivered to a client, you shall clearly and separately detail
for fees, disbursements, and amounts charged as fees and as disbursements.9 The legal services upon which the
HST as of the date of the
fees are based should be described in a reasonable amount of detail. All disbursements
account
incurred during the period covered by the statement of account, along with the cost
of each disbursement, should be set out in a detailed list separate from the description
of legal services provided during that period.
21. In addition to detailing fees and disbursements, the statement of account or

bill delivered to the client by the paralegal should detail clearly and separately the
amount the paralegal has charged for Harmonized Sales Tax (HST). The HST applies
to fees and some disbursements, as outlined by the Canada Revenue Agency (CRA)
guidelines. The paralegal should review and sign the statement of account before it
is sent to the client.
22. Should a dispute arise about the statement of account, the paralegal should
discuss the matter openly and calmly with the client in an effort to resolve
the matter. Civility and professionalism must govern all discussions, including
discussions relating to fee disputes with clients.
Lawyers are permitted to charge interest on outstanding accounts in accordance

with section 33 of the Solicitors Act.10 Interest on unpaid fees, charges, and disburse-
ments is calculated from a date that is one month after the bill is delivered.11 The rate
of interest chargeable shall be shown on the bill delivered.12
Paralegals are not prohibited from charging interest on outstanding accounts. Para-
legals may wish to consider section 33 of the Solicitors Act and any other applicable
law when doing so.
You will find sample statements of account at Appendixes 7.1 and 7.2.
Assessment of Accounts
If a client disputes a paralegal’s account, and the matter cannot be settled to the
satisfaction of the client and the paralegal, then the dispute must be adjudicated by
a court.
If the account has not been paid, the paralegal will be entitled to collect any amount
owing in accordance with the court decision.
9 Rule 5.01(4).
10 RSO 1990, c S.15.
11 Ibid, s 33(1).
12 Ibid, s 33(3).


If the account has been paid, from the trust account or otherwise, then the para-
legal must comply with Rule 5.01(6), which states:
(6) If the amount of fees or disbursements charged by a paralegal is reduced by

a Court Order, the paralegal must repay the monies to the client as soon as is
practicable.
Contingency Fees (Rules 5.01(7)-(9))

A contingency fee is a fee that is paid when and if a particular result is achieved in a
client’s matter.13 Rule 5.01 states:
(7) Except in quasi-criminal or criminal matters, a paralegal may enter into a

written agreement that provides that the paralegal’s fee is contingent, in whole
or in part, on the successful disposition or completion of the matter for which the
paralegal’s services are to be provided.
(8) In determining the appropriate percentage or other basis of a contingency fee
under subrule (7), the paralegal shall advise the client on the factors that are being
taken into account in determining the percentage or other basis, including the
likelihood of success, the nature and complexity of the claim, the expense and risk
of pursuing it, the amount of the expected recovery, who is to receive an award of
costs and the amount of costs awarded.
(9) The percentage or other basis of a contingency fee agreed upon under subrule
(7) shall be fair and reasonable, taking into consideration all of the circumstances
and the factors listed in subrule (8).
24. Rule 5.01[(8)] outlines the factors to be considered in determining the

appropriate percentage (or other basis) of the contingency fee agreement.
Regardless of which factors are used to determine the fee and the other terms of
the contingency fee agreement, the ultimate fee must still be fair and reasonable.
25. The contingency fee agreement should be clear about how the fee will be
calculated.
26. It may be helpful for a paralegal to refer to Regulation 195/04 to the Solicitors
Act (which applies to contingency fees for lawyers) for guidance as to what terms
should be included in a paralegal contingency fee agreement.
The Solicitors Act, Regulation 195/04: Contingency Fee Arrangements,14 states:
Contents of contingency fee agreements, general

2. A solicitor who is a party to a contingency fee agreement shall ensure that the
agreement includes the following:
1. The name, address and telephone number of the solicitor and of the client.
2. A statement of the basic type and nature of the matter in respect of which
the solicitor is providing services to the client.

14 O Reg 195/04: Contingency Fee Arrangements, online: <https://www.ontario.ca/laws/regulation/040195>.


3. A statement that indicates,
i. that the client and the solicitor have discussed options for retaining the
solicitor other than by way of a contingency fee agreement, including
retaining the solicitor by way of an hourly-rate retainer,
ii. that the client has been advised that hourly rates may vary among
solicitors and that the client can speak with other solicitors to compare rates,
iii. that the client has chosen to retain the solicitor by way of a
contingency fee agreement, and
iv. that the client understands that all usual protections and controls on
retainers between a solicitor and client, as defined by the [Law Society of
Ontario] and the common law, apply to the contingency fee agreement.
4. A statement that explains the contingency upon which the fee is to be paid
to the solicitor.
5. A statement that sets out the method by which the fee is to be determined
and, if the method of determination is as a percentage of the amount
recovered, a statement that explains that for the purpose of calculating the
fee the amount of recovery excludes any amount awarded or agreed to that is
separately specified as being in respect of costs and disbursements.
6. A simple example that shows how the contingency fee is calculated.
7. A statement that outlines how the contingency fee is calculated, if recovery
is by way of a structured settlement.
8. A statement that informs the client of their right to ask the Superior Court
of Justice to review and approve of the solicitor’s bill and that includes the
applicable timelines for asking for the review.
9. A statement that outlines when and how the client or the solicitor
may terminate the contingency fee agreement, the consequences of the
termination for each of them and the manner in which the solicitor’s fee is to
be determined in the event that the agreement is terminated.
10. A statement that informs the client that the client retains the right to
make all critical decisions regarding the conduct of the matter.
Contents of contingency fee agreements, litigious matters

3. In addition to the requirements set out in section 2, a solicitor who is a party to
a contingency fee agreement made in respect of a litigious matter shall ensure that
the agreement includes the following:
1. If the client is a plaintiff, a statement that the solicitor shall not recover more
in fees than the client recovers as damages or receives by way of settlement.
2. A statement in respect of disbursements and taxes, including the GST
payable on the solicitor’s fees, that indicates,
i. whether the client is responsible for the payment of disbursements or
taxes and, if the client is responsible for the payment of disbursements,
a general description of disbursements likely to be incurred, other than
relatively minor disbursements, and
ii. that if the client is responsible for the payment of disbursements or
taxes and the solicitor pays the disbursements or taxes during the course
of the matter, the solicitor is entitled to be reimbursed for those payments,
subject to section 47 of the Legal Aid Services Act, 1998 (legal aid charge
against recovery), as a first charge on any funds received as a result of a
judgment or settlement of the matter.


3. A statement that explains costs and the awarding of costs and that
indicates,
i. that, unless otherwise ordered by a judge, a client is entitled to receive
any costs contribution or award, on a partial indemnity scale or substantial
indemnity scale, if the client is the party entitled to costs, and
ii. that a client is responsible for paying any costs contribution or award,
on a partial indemnity scale or substantial indemnity scale, if the client is
the party liable to pay costs.
4. If the client is a plaintiff, a statement that indicates that the client agrees
and directs that all funds claimed by the solicitor for legal fees, cost, taxes
and disbursements shall be paid to the solicitor in trust from any judgment or
settlement money.
5. If the client is a party under disability, for the purposes of the Rules of Civil
Procedure, represented by a litigation guardian,
i. a statement that the contingency fee agreement either must be
reviewed by a judge before the agreement is finalized or must be
reviewed as part of the motion or application for approval of a settlement
or a consent judgment under rule 7.08 of the Rules of Civil Procedure,
ii. a statement that the amount of the legal fees, costs, taxes and
disbursements are subject to the approval of a judge when the judge
reviews a settlement agreement or consent judgment under rule 7.08 of
the Rules of Civil Procedure, and
iii. a statement that any money payable to a person under disability under
an order or settlement shall be paid into court unless a judge orders
otherwise under rule 7.09 of the Rules of Civil Procedure.
Matters not to be included in contingency fee agreements

4(1) A solicitor shall not include in a contingency fee agreement a provision that,
(a) requires the solicitor’s consent before a claim may be abandoned,
discontinued or settled at the instructions of the client;
(b) prevents the client from terminating the contingency fee agreement with
the solicitor or changing solicitors; or
(c) permits the solicitor to split their fee with any other person, except as
provided by the Rules of Professional Conduct.
In 2017, the Law Society’s Advertising and Fee Arrangements Working Group
commenced a review of the rules regarding contingency fees. In December 2017, the
Working Group’s report was presented to and approved in principle by Convocation.
The new regulations will not apply to class actions. They are intended to apply
to matters involving individuals and small businesses, and to partial contingency fee
arrangements.15 As of this writing, the Solicitors Act has been amended to allow costs
to be included in a contingency fee agreement, and to permit licensed paralegals to
enter into contingency fee agreements with clients “in the same manner as solicitors,”
subject to any exceptions or modifications prescribed by the Regulations. However,
the amendments have not yet been proclaimed into law by the Lieutenant Governor.
15 Law Society of Ontario Gazette, “Convocation approves plans to regulate contingency fees for better public access
and protection” (12 January 2017), online: <http://www.lawsocietygazette.ca/news/contingency-fees>.


Joint Retainers (Rule 5.01(10))
(10) If a paralegal is acting for two or more clients in the same matter, the
paralegal shall divide the fees and disbursements equitably between them, unless
there is an agreement by the clients otherwise.
Where fees and disbursements are divided between or among joint clients, each
joint client should receive a separate statement of account.
Division of Fees (Rule 5.01(11))

(11) With the client’s consent, fees for a matter may be divided between paralegals
or paralegals and lawyers who are not in the same firm, if the fees are divided in
proportion to the work done and the responsibilities assumed.
be in writing or confirmed in writing.16
Fee Splitting (Rules 5.01(12), (13))

fee splitting Fee splitting occurs when a paralegal shares or splits his or her fee with a person who
an arrangement whereby a is not a licensee.
paralegal shares or splits a Rule 5.01(12) states:
client fee with another person
(12) A paralegal shall not,
(a) directly or indirectly share, split, or divide his or her fees with any person
who is not a paralegal or lawyer, including an affiliated entity; or
(b) give any financial or other reward to any person who is not a paralegal or a
lawyer, including an affiliated entity, for the referral of clients or client matters.
Rule 5.01(11) does not apply to multi-discipline practices of paralegal and non-
licensee partners where the partnership agreement provides for the sharing of fees,
cash flows, or profits among members of the firm.17
12. Fee splitting occurs when a paralegal shares or divides his or her fee with
another person. Where a client consents, a paralegal and another paralegal or
lawyer who are not at the same firm may divide between them the fees for a
matter, so long as the fees are split relative to the work done and the responsibility
assumed by each paralegal and/or lawyer. Multi-discipline practices are exempt
from the prohibition against fee-splitting in certain circumstances.
16 Rule 1.02.
17 Rule 5.01(13).


Referral Fees (Rules 5.01(14)-(21) [formerly
Rules 5.01(14)-(20)]; Guideline 13)
Note to readers: On February 28, 2019, the Professional Regulation
Committee presented to Convocation the Final Report of the Alternative
Business Structures Working Group: Permitting Lawyers and Paralegals
to Provide Services through Charities and Not-For-Profit Corporations.
The changes recommended in the report were approved. However, as of
this writing, the changes had not been incorporated into the Paralegal
Rules and Guidelines published online at the Law Society website. They
are, however, incorporated into the discussion below, in the expectation
that the Rules and Guidelines will be updated in the near future. The
new subrules referred to are 5.01(15)(f) and 5.01(17), with consequent
numbering changes to rules 5.01(17) to (20), which are now 5.01(18)
to (21).
(14) In this rule and rule 5.01(15),

“referral” includes recommending another paralegal or lawyer to do legal work for
anyone except where the work is done through the same paralegal firm in which
the referring paralegal primarily practises;
“referral agreement” means a signed written agreement between the referring
paralegal or lawyer, the paralegal or lawyer who receives the referral and
the client, in the form provided by the Law Society from time to time, which
includes:
(a) confirmation that the client has been advised and understands that the
client has no obligation to accept the referral;
(b) confirmation that the client has been provided with information about
the Law Society’s requirements for payment and receipt of referral fees and a
reasonable opportunity to review and consider that information;
(c) confirmation that the referring paralegal or lawyer has recommended
at least two paralegals or lawyers to the client and, if not, disclosure of the
reason that it has not been reasonably possible to do so;
(d) a provision that the client is free to retain a paralegal or lawyer other than
the one who receives the referral;
(e) the reason(s) that the referring paralegal or lawyer has recommended the
specific referee to the client;
(f) full and fair disclosure of the relationship between the referring paralegal or
lawyer and the paralegal or lawyer who receives the referral;
(g) confirmation that no referral fee will be paid or payable unless and until
the paralegal or lawyer who receives the referral is paid his or her fee for legal
services for the matter; and
(h) full and fair disclosure of the referral fee including the circumstances in
which the referral fee is payable and the basis upon which the amount of the
referral fee is determined.


“referral fee” includes any financial or other reward for the referral of a matter
whether the referral fee is direct or indirect and whether the referral fee is past,
current or future. However, a referral fee does not include a referral of other work
by the licensee who received the referral.
referral fee 13. A referral fee is defined in Rule 5.01(14) of the Paralegal Rules of Conduct
a fee paid by a paralegal to and includes:
another licensee for referring a • a fee paid by a paralegal to another paralegal or lawyer for referring a client to
client to the paralegal, or a fee the paralegal, or
paid to a paralegal by another • a fee paid to a paralegal by another paralegal or lawyer for his or her referral
licensee for the paralegal’s of a client to the other paralegal or lawyer.
referral of a person to the other
licensee Rule 5.01(15) states:
(15) A paralegal may accept and a paralegal may pay a fee for the referral of a
matter provided that:
(a) the referral fee is fair and reasonable and does not increase the total
amount of the fee payable by the client;
(b) a referral agreement has been entered into at the time of the referral or as
soon as practicable after the referral;
(c) the paralegal or lawyer who receives the referral has the expertise and
ability to handle the matter;
(d) the referral was not made because the referring paralegal or lawyer:
(i) has a conflict of interest;
(ii) was a paralegal or lawyer whose license was suspended when the referral
was made and who was accordingly not permitted to act on the matter.
(e) the amount of the referral fee shall not exceed fifteen percent (15%) of the
fees paid to the paralegal or lawyer who received the referral for the first fifty
thousand dollars ($50,000) of such fees for the matter and five percent (5%) of
any additional fees for the matter to a maximum referral fee of $25,000; and
(f) the paralegal or lawyer making or accepting the referral is not providing
legal services through a civil society organization.
The paralegal who received the referral for which a referral fee is payable shall note
the referral fee on the account sent to the client at the time the referral fee is paid
or payable and obtain the client’s acknowledgement of the referral fee failing which
acknowledgement the paralegal shall confirm in writing to the client that the client
has been asked to so acknowledge but has declined to do so.18
A paralegal shall not do indirectly what the paralegal is prohibited from doing
directly under Rules 5.01(11), (14), and (15).19
14. The Rules do not prohibit a paralegal from:

(a) Making an arrangement respecting the purchase and sale of a professional
business when the consideration payable includes a percentage of revenues
generated from the business sold;
18 Rule 5.01(16).
19 Rule 5.01(21).


(b) Entering into a lease under which a landlord directly or indirectly shares in
the fees or revenues generated by the provision of legal services;
(c) Paying an employee for services, other than for referring clients, based on
the revenue of the paralegal’s firm or professional business.
15. Rule 5.01(21) is intended to ensure that paralegals do not avoid or evade Rules
5.01(11), (14), and (15).
16. Where a paralegal does anything that has the effect of obtaining or giving
financial or other reward for the referral of legal work, Rule 5.01(21) is breached
unless the paralegal may reasonably be considered to have done so primarily for
bona fide purposes other than for obtaining or giving such a reward.
17. Examples of breaches of Rule 5.01(21) could include entering into transactions
at non-market prices between the paralegal or lawyer who makes a referral and
the paralegal or lawyer who receives the referral. Specific examples could include
non-market leases or cost-sharing arrangements. Similarly, Rule 5.01(21) could be
breached where a paralegal or lawyer enters into a consulting or other relationship
with a paralegal or lawyer who has received a referral for consideration that does
not fairly reflect the work done as such.
18. A paralegal who refers clients to other paralegals or lawyers, and a paralegal
who receives referrals from other paralegals or lawyers each have fiduciary duties to
the referred clients. Referral of a client must be in the client’s best interests.
19. The decision about who to retain is that of the client. The requirements in
Rules 5.01(15) to (20) of the Paralegal Rules of Conduct are intended to ensure
that the client has all of the relevant information to make this decision, including
information about fees.
20. In the normal course, a paralegal who is referring a client should recommend
more than one paralegal or lawyer to the client. There may be circumstances
however in which there is only one suitable referral, for reasons such as expertise or
geographic location, and this must be noted in the referral agreement.
A draft referral fee agreement containing all of the required terms is available at
the Law Society website, along with Law Society Requirements for Referral Fees, an
information document for clients. As of this writing, these resources can be found
at <https://lso.ca/lawyers/practice-supports-and-resources/topics/managing-money/
fees-and-disbursements/referral-fees>.
The rules regarding referral fees were revised in 2019. Transitional requirements are
set out at Rules 5.01(18)-(20):
(18) The provisions of subrule 5.01(15) do not apply to the payment of a referral
fee pursuant to an enforceable agreement to pay and receive referral fees that was
entered into before or on April 27, 2017.
In these circumstances, a paralegal who refers a matter to another paralegal or
lawyer because of the expertise and ability of the other licensee to handle the
matter and where the referral was not made because of a conflict of interest, the
referring paralegal may accept and a paralegal who receives a referral may pay a
referral fee provided that
(i) the fee is reasonable and does not increase the total amount of the fee
charged to the client; and
(ii) the client is informed and consents.


(19) A paralegal who is entitled to receive referral fees pursuant to an
unwritten agreement that was entered into before or on April 27, 2017 shall
confirm in writing the terms of that agreement as soon as practicable to the
other party to that agreement and shall provide a copy of such confirmation to
the client.
(20) Where a referral was made before or on April 27, 2017 but there was no
enforceable agreement for the payment of a referral fee as of that date, the
requirement that the agreement has been entered into may be met by entering
into a referral agreement at any time prior to payment of the referral fee.
Civil Society Organizations

For purposes of the Rules, a “civil society organization” means a registered charity
under the Income Tax Act,20 a not-for-profit corporation incorporated under the laws
of Ontario, or a not-for-profit corporation permitted under the laws of Ontario to
operate in the Province.
Rule 5.01(17) states that a paralegal providing legal services through a civil society
organization shall not directly or indirectly charge a fee to the person for whose
benefit the legal services are provided, but the paralegal may charge disbursements in
accordance with Rule 5.
Civil society organizations are discussed in the section in Chapter 4 called “Civil
Society Organizations (Rules 3.04(17)-(22)).”
BOX
7.1
REMINDER: AFFILIATED ENTITIES AND MULTI-
DISCIPLINE PRACTICES
An affiliated entity is any person or group of persons other than a person or group
authorized to provide legal services in Ontario. An affiliation is an arrangement
whereby a paralegal services firm provides legal services to the public jointly with
a non-legal entity whose members practise a profession, trade, or occupation that
supports or supplements the paralegal’s provision of legal services.
A multi-discipline practice is a business arrangement that permits paralegal
licensees to enter into a partnership or association that is not a corporation with
non-licensees to provide to clients the services of a non-licensee who practises a
profession, trade, or occupation that supports or supplements the provision of legal
services. Multi-discipline practices are governed by By-Law 21 7, Part III, and Rules
3.04(13) and 8.01(1) and (5). They are discussed in the section in Chapter 4 called
“Multi-discipline Practice (By-Law 7, Part III; Rules 3.04(13), 8.01).”
20 RSC 1985, c 1 (5th Supp).

by-laws> [By-Laws].


BOX
7.2
FEE SPLITTING AND REFERRAL FEES
Fact Situation
You are a paralegal licensee. You have been approached by Sandra Hobbins. Sandra
is a property manager whose portfolio includes a number of multi-unit residential
buildings. She tells you that she will refer all her residential tenancy matters to you
in return for 15 percent of your fee for each file. “It’s a good deal for both of us,”
she says. “I can guarantee you around 30 L1s per month, and there are usually one
or two other applications as well.” (An L1 is an application for termination of a res-
idential tenancy early for non-payment of rent.) Sandra also tells you that she will
require a payment of $500 as a referral fee before she starts sending you any files.

May you enter into this arrangement?
Retainers (Rule 5.01; Guideline 14; By-Law 9)
BOX
7.3
REMINDER: WHAT IS A RETAINER?
1. In the context of providing legal services, the word retainer may mean
any or all of the following:
• the client’s act of hiring the paralegal to provide legal services
(i.e., a retainer),
• the contract that outlines the legal services the paralegal will
provide to the client and the fees and disbursements and HST to
be paid by the client (i.e., a retainer agreement), or
• monies paid by the client to the paralegal in advance to secure his
or her services in the near future and against which future fees
will be charged (i.e., a money retainer).
The Retainer Agreement (Guideline 14)

If the client decides to retain you, you should discuss, at the initial consultation or as
soon as possible thereafter, the scope of the legal services to be provided, the likely
cost of those services, and other terms of the paralegal – client retainer. Guideline 14
comments:
2. Once the paralegal has been hired by a client for a particular matter, it is
advisable that the paralegal discuss with the client two essential terms of the
paralegal’s retainer by the client: the scope of the legal services to be provided and


the anticipated cost of those services. The paralegal should ensure that the client
clearly understands what legal services the paralegal is undertaking to provide.
When estimating fees, you should consider advising the client of the facts or
circumstances that form the basis of the estimate, and, if practicable, any facts
or circumstances that may result in an increase or decrease in the estimate.
Other terms that you should consider discussing with the client include, but are not
limited to,
• how fees will be calculated;

• anticipated cost of disbursements;
• HST exigible on fees and disbursements;
• your billing practices—that is, how frequently the client will be billed for fees
and disbursements;
• the circumstances in which a money retainer will be required to be
replenished; and
• how settlement funds payable to or by the client are to be managed.
Depending on the nature of the client’s matter, you may also wish to consider
including a term in the written confirmation of the retainer that any settlement funds
payable to the client by another person, or payable by the client to another person,
be paid to you in trust. If the settlement funds are payable to the client, and the client
has agreed that any outstanding fees or disbursements that have been invoiced may
be paid from settlement funds payable to the client and received in trust before paying
the balance out of trust to the client, the written confirmation of the retainer should
contain a term to that effect. You shall not pay any amounts from settlement funds
held in trust to any person until full and final waivers have been signed by all parties.
BOX
7.4
REMINDER: RETAINER AGREEMENTS
The retainer agreement is a valuable tool for managing client expectations about all
aspects of the paralegal – client retainer from its commencement. See discussion of
retainer agreements in the section in Chapter 3 called “The Retainer Agreement”
and in the section in Chapter 4 called “The Retainer.” You will find a sample retainer
agreement, adapted for a paralegal firm, at Appendix 3.1. Sample retainer agree-
ments are also available at the Lawyers’ Professional Indemnity Company website
(LawPRO) (<http://www.practicepro.ca>).
A retainer agreement may be adapted to reflect the terms of the agreement
between the paralegal and the client in a particular client matter.
Money Retainers (By-Law 9, Part IV; Guideline 14)

A money retainer is a payment made by the client to the paralegal for future legal
services and disbursements in the client matter.


4. If practical, the paralegal should obtain a money retainer from the client at
the beginning of the relationship. When determining the amount of the money
retainer, the paralegal should consider the circumstances of each case, the
circumstances of the client and the anticipated fees, disbursements and HST. Many
of the factors are the same as those used in deciding if a fee is fair and reasonable.
5. The client should be advised at the outset if and when further retainers will
be required. There may also be circumstances where a money retainer is not
appropriate, for example, when a client and the paralegal have entered into a
contingency fee agreement.
6. A money retainer must be deposited into a paralegal’s trust account. After the
paralegal has delivered to the client a statement of account or bill, the paralegal pays
the amount of his or her statement of account from the money retainer held in trust.
Disbursements and expenses paid on behalf of the client to others may be paid directly
from the money retainer in the paralegal’s trust account. To avoid disagreements in
circumstances where a disbursement will be particularly substantial, a paralegal may
want to obtain the client’s approval prior to the expense being incurred.
By-Law 9, Part IV, which governs trust accounts, states:
Money received in trust for client

7(1) Subject to section 8, every licensee who receives money in trust for a client
shall immediately pay the money into an account at a chartered bank, provincial
savings office, credit union or a league to which the Credit Unions and Caisses
Populaires Act, 1994 applies or registered trust corporation, to be kept in the name
of the licensee, or in the name of the firm of licensees of which the licensee is a
partner, through which the licensee practises law or provides legal services or by
which the licensee is employed, and designated as a trust account.
Interpretation
(2) For the purposes of subsection (1), a licensee receives money in trust for a client
if the licensee receives from a person,
(a) money that belongs in whole or in part to a client;
(b) money that is to be held on behalf of a client;
(c) money that is to be held on a client’s direction or order;
(d) money that is advanced to the licensee on account of fees for services not
yet rendered; or
(e) money that is advanced to the licensee on account of disbursements not
yet made.
Money required to be paid into the trust account shall be deposited in the trust
account as soon as possible and by no later than the following banking day.22
The money retainer shall be held in trust for the benefit of the client until part or
all of the services agreed upon have been provided and invoiced to the client. Proper
disbursements and expenses paid from the general (operating) account in the client
matter may be reimbursed to the operating account from client funds held in trust.23
22 By-Law 9, s 1(3).
23 Ibid, ss 9(1), numbers 2. and 3.


To avoid misunderstandings, in matters where it is appropriate to do so, the retainer
agreement (or other written confirmation of the paralegal – client retainer) should
contain a term stating the circumstances in which the money retainer will be required
to be replenished.
The Trust Account (Rule 5.01(5); Guideline 15;

By-Law 9, Part IV)
Client money, such as a money retainer or settlement funds, remains the property of the
client. It must be deposited to your trust account and held for the benefit of the client.
Generally, a paralegal practice will have one general (operating) bank account and
one mixed trust bank account. A mixed trust bank account is a trust account that
holds money for more than one client matter. By-Law 9 requires you to keep special
trust records for the mixed trust account so that you can keep track of what money
belongs to which client matter. Where you are retained on more than one matter for a
client, you must also keep track of the trust funds to be credited to each active matter
for that client. The tracking process is facilitated by assigning a unique client matter
number to every new client matter opened. Where a particular client has several dif-
ferent matters ongoing at the same time, each of those matters should be assigned a
unique client matter number for file management and accounting purposes.
(5) A paralegal shall not appropriate any funds of the client held in trust, or
otherwise under the paralegal’s control, for or on account of fees, except as
permitted by the by-laws under the Law Society Act.
1. A paralegal has special obligations when handling client funds. When a
paralegal receives money that belongs to a client or is to be held on behalf of a
client, the funds must be deposited to a trust account. Because client funds must
be held in trust by the paralegal, they are also known as trust funds.
2. By-Law 9 outlines a paralegal’s responsibilities regarding financial transactions
and record-keeping, including the operation of a trust account.
By-Law 9, Part IV, section 9(1), states that a licensee may withdraw from a trust
account only the following money:
1. Money properly required for payment to a client or to a person on behalf of

a client.
2. Money required to reimburse the licensee for money properly expended on
behalf of a client or for expenses properly incurred on behalf of a client.
3. Money properly required for or toward payment of fees for services
performed by the licensee for which a billing has been delivered.
4. Money that is directly transferred into another trust account and held on
behalf of a client.
5. Money that under this Part should not have been paid into a trust account
but was through inadvertence paid into a trust account.


You shall never disburse from trust an amount in excess of the amount actually held
in trust in a particular client matter. You are personally responsible for reimbursing the
trust account from your operating account for any amount paid out of a client trust
account in error.
After you have prepared a statement of account and delivered it to a client, you may
transfer funds held in trust to the credit of that client matter out of the trust account
into your general (operating) account, in payment of the statement of account. The
payment from trust must be stated in a separate line on the statement of account. Any
amount still owing after payment has been made from trust must also be stated in a
separate line on the statement of account. If the amount invoiced was paid in full out
of trust, the amount owing on the statement of account will be stated in a separate
line as zero. If there is money left in trust to the credit of the client matter after the
final statement of account for that client matter has been paid in full, the balance in
trust must be stated on the final statement of account on a separate line, and you
must seek the client’s instructions about how the balance in trust is to be dealt with.
You will find sample statements of account at Appendixes 7.1 and 7.2.
If the funds held in trust to the credit of the client matter are not adequate to pay the
total amount of the statement of account, you may deduct only the amount actually
held in trust from the statement of account, and transfer only the amount actually held
in trust to the general account. The client is responsible for paying any balance still
owing after the funds held in trust to the credit of the client matter are deducted from
the amount owing and transferred to your general account. Where the client pays
an outstanding balance on a statement of account, the payment may be deposited
directly to your general (operating) account, because it is for legal services that have
been performed and for reasonable disbursements and expenses that have been
incurred and billed to the client.
You do not have to wait until a client matter is concluded to bill the file. In an ongoing
matter, an interim statement of account for fees and disbursements incurred to the interim statement
date of the interim statement of account may be delivered to the client before the of account
client matter is completed. You should consider interim billing in any client matter that a statement of account that is
is ongoing over a period of time. Presenting interim accounts at reasonable intervals in delivered to the client before
the client matter is completed,
a lengthy client matter is an effective way of managing client expectations about the
for fees and disbursements
cost of a matter. If interim billing depletes the funds held in trust to the credit of the
to the date of the interim
client matter, you may require additional money retainers at reasonable intervals as well.
statement of account; also
You should advise the client of your billing practices at the outset of the retainer, and referred to as an interim invoice
confirm that advice in writing in the retainer agreement or engagement letter.
When determining the frequency and amount of the money retainers required of
clients, you should consider your obligation to continue to represent clients in certain
circumstances despite non-payment of fees. You may not withdraw from representing a
non-paying client if serious prejudice to the client would result. Refer to Rule 3.08, With-
drawal from Representation, discussed in the section in Chapter 4 called “Withdrawal
from Representation (Rule 3.08; Guideline 11).”
10. The Rules are not intended to be an exhaustive statement of the considerations

that apply to payment of a paralegal’s account from trust. The handling of trust
money is generally governed by the by-laws of the Law Society.


11. Refusing to reimburse any portion of advance fees for work that has not
been carried out when the contract of professional services with the client has
terminated is a breach of the obligation to act with integrity.
BOX
7.5
BILLING THE CLIENT
You are holding money in your mixed trust bank account as follows:
Client Matter number Amount
A 001 $500
B 002 $1,000
C 003 $400
D 004 $600
Total monies held in trust: $2,500
Assume that all matters are being billed at an hourly rate.
Fact Situation 1
You have completed legal services in Matter 001 for Client A. The total of fees, dis-
bursements, and HST is $650.

Can you pay the total amount owing from trust?
What information should be stated on the statement of account?
Fact Situation 2
You have completed legal services in Matter 004. The amount of the final statement
of account is $400.

Can you pay the total amount owing from trust?
Fact Situation 3
Matter 002 is ongoing. You have completed several steps in the proceeding, includ-
ing the settlement conference. To date, your legal services total $850 including HST.
A trial date has been set for four months’ time. For the trial, you will need to inter-
view and obtain statements from three witnesses for your client, and serve a sum-
mons upon an opposing party’s witness whom you wish to cross-examine. You will
also require an expert’s report, which will cost $500.

What are your next steps?
Trust Controls (By-Law 9; Guideline 15)

A paralegal is a fiduciary with respect to trust funds. A paralegal must ensure that
all trust transactions comply with By-Law 9 and that proper records of all trust trans-
actions are kept. The trust ledger accounts for all client matters where money is held
in trust should be reviewed by the paralegal on a monthly basis.


3. A paralegal must be in control of his or her trust account. Although a person
who is not a licensed paralegal or lawyer may be permitted to disburse trust
funds alone in exceptional circumstances, the Law Society has found appropriate
exceptional circumstances to be very rare.
4. If there is only one paralegal with signing authority on the trust account(s) it
would be prudent to make arrangements for another paralegal or a lawyer to have
signing authority on the trust account(s) in case of an unexpected emergency (i.e.
illness or accident) or planned absence (i.e. vacation). The paralegal may arrange
this through his or her financial institution through a power of attorney. The chosen
paralegal or lawyer must be insured and entitled to provide legal services or to
practise law.
5. To ensure that no unauthorized withdrawals from trust are being made, the
paralegal should limit access to blank trust account cheques and electronic banking
software. A paralegal should never sign blank trust cheques. The paralegal should
use pre-numbered trust cheques and keep them locked up when not in use.
Non-licensees are not permitted by By-Law 9 to disburse funds from trust. There is
a very limited exception in By-Law 9, section 11(b):
11. A cheque drawn on a trust account shall not be …

(b) signed by a person who is not a licensee except in exceptional
circumstances and except when the person has signing authority on the trust
account on which a cheque will be drawn and is bonded in an amount at least
equal to the maximum balance on deposit during the immediately preceding
fiscal year of the licensee in all the trust accounts on which signing authority
has been delegated to the person.
Signing authority on the trust account should be limited to senior paralegals. If

paralegal associates are given signing authority on the trust account, a limit should be
established on the amount that they can sign for.
If trust money has been wrongfully withdrawn from a client matter account, you
shall reimburse the client matter account from your general (operating) account
immediately upon discovery of the error.
Retention of Financial Records (By-Law 9)

A paralegal shall retain the following records for at least the six-year period immedi-
ately preceding the paralegal’s most recent fiscal year end:
• general receipts and disbursements journals, and

• fees book or chronological record of billings.24
A paralegal shall retain the following records for at least the ten-year period
immediately preceding the paralegal’s most recent fiscal year end:
• trust receipts and disbursements journals;

• clients’ trust ledger;
24 By-Law 9, s 23(1).


• trust comparisons;
• valuable property record; and
• trust bank statements or pass books, cashed cheques and detailed duplicate
deposit slips for all trust accounts, and signed electronic trust transfer requisitions
and signed printed confirmations of electronic transfers of trust funds.25
By-Law 9 is a minimum standard and concerns itself principally with maintenance

and retention of records of all transactions related to trust accounts. As a business, you
will also be required to maintain current, accurate records of all transactions on your
general (operating) account.
Practice Management (Rule 8;

Guidelines 6, 18)
Running an effective paralegal practice involves a range of responsibilities. You must
make decisions about what procedures and systems you need to have in place to make
the business successful, while ensuring compliance with and being responsible for your
professional obligations under the Rules and By-Laws.
13. In a busy office, practice management includes ensuring that there is sufficient
staff to assist the paralegal in fulfilling his or her professional responsibilities, for
example, ensuring that communications from clients, other paralegals or lawyers
are responded to and that financial records are kept in accordance with the
requirements of By-Law 9.
14. Competent practice management requires that the paralegal effectively
manage his or her staff, time, finances and client information. A paralegal should
consider the following practice management tools:
14.1 workplace policies and business procedures for staff,
14.2 planning and reminder systems, and time docketing systems for time
management, and
14.3 filing organizational and storage systems for management of client
information and a system for effectively identifying and avoiding conflicts.
When developing and implementing policies and practices, paralegals should be

mindful of their obligation to support the integration of cultural diversity, equality, and
inclusion in the provision of legal services. See the section in Chapter 2 called “Policies
and Procedures.”
Delegation and Supervision (Rules 8.01(1), (3)-(5);

By-Law 7.1, Part I; Guideline 18)
Delegation
A paralegal shall, in accordance with the By-Laws, assume complete professional
responsibility for all business entrusted to her or him.26
25 Ibid, s 23(2).
26 Rule 8.01(1).


In appropriate circumstances, a paralegal should consider providing legal services
with the assistance of competent non-licensees. For purposes of By-Law 7.1, Part I,
“non-licensee” means an individual who,

(a) is not a Canadian law student, an Ontario law student or an Ontario paralegal
student,
(b) is engaged by a licensee to provide her or his services to the licensee,
(c) expressly agrees with the licensee that the licensee shall have effective control
over the individual’s provision of services to the licensee, and
(d) in the case of the assignment of tasks and functions by a person licensed to
practise law in Ontario as a barrister and solicitor, is not a person licensed
to practise law in Ontario as a barrister and solicitor and, in the case of the
assignment of tasks and functions by a person licensed to provide legal services in
Ontario, is neither a person licensed to practise law in Ontario as a barrister and
solicitor nor a person licensed to provide legal services in Ontario.
For purposes of Rule 8.02(1), a licensee has effective control over an individual’s
provision of services to the licensee when the licensee may, without the agreement of
the individual, take any action necessary to ensure that the licensee complies with the
Law Society Act,27 the By-Laws, the Society’s rules of professional conduct, and the
Society’s policies and guidelines.28
A paralegal may, in accordance with Part I of By-Law 7.1, assign to a non-licensee
tasks and functions in connection with the paralegal’s provision of legal services in
relation to the affairs of the licensee’s client.29
1. A paralegal may, in appropriate circumstances, provide services with the

assistance of persons of whose competence the paralegal is satisfied. Proper use
of support staff allows the paralegal to make efficient use of the time he or she
has for providing legal services, and may result in savings to the client. Under
By-Law 7.1, some tasks may be delegated to persons who are not licensed and
other tasks may not. Though certain tasks may be delegated, the paralegal remains
responsible for all services rendered and all communications by and prepared by his
or her employees.
2. The extent of supervision required will depend on the task, including the
degree of standardization and repetitiveness of the task and the experience of the
employee. Extra supervisory care may be needed if there is something different or
unusual in the task. The burden rests on the paralegal to educate the employee
concerning the tasks that may be assigned and then to supervise the manner in
which these tasks are completed.
3. A paralegal should ensure that employees who are not licensed clearly
identify themselves as such when communicating with clients, prospective
clients, courts or tribunals, or the public. This includes both written and verbal
communications.
27 RSO 1990, c L.8.

28 By-Law 7.1, s 1(2).
29 Ibid, s 3(1).


Affiliation (By-Law 7, Part IV; By-Law 7.1, s 3(2);
Rules 3.04(14)-(16))
An affiliated entity is one or more persons, none of whom are licensed or otherwise
authorized to practise law or provide legal services in or outside of Ontario.30 A licensee
affiliates with an affiliated entity when, on a regular basis, the licensee joins with the
affiliated entity in the delivery or the promotion and delivery of the services of both the
licensee and the affiliated entity.31
A paralegal who is affiliated with an entity under By-Law 7, Part IV, may assign
to the entity or its staff tasks and functions in connection with the provision of
legal services in relation to the affairs of the licensee’s client only if the client con-
sents to the licensee’s doing so.32 The client’s consent shall be fully informed and
voluntary after disclosure, and shall be in writing or, if spoken, shall be confirmed
in writing.33
Multi-Discipline Practice (By-Law 7, Part III; Rules 3.04(13),

8.01(1), (5))
A multi-discipline practice is a business arrangement that permits paralegal licensees
to provide to clients the services of a non-licensee who practises a profession, trade,
or occupation that supports or supplements the provision of legal services.34 The para-
legal licensee must have effective control over the non-legal professional’s provision of
services to clients of the multi-discipline practice.35
A paralegal in a multi-discipline practice shall, in accordance with the By-Laws,
assume complete professional responsibility for all business entrusted to him or her.36
A paralegal in a multi-discipline practice shall ensure that non-licensee partners and
associates comply with the Rules and with all ethical principles that govern a paralegal
in the discharge of his or her professional obligations.37
A paralegal in a multi-discipline practice must ensure that the client understands
that legal services are provided by the paralegal and supplemented by the non-legal
professional services of non-licensee partners and associates.
Assignment of Tasks or Functions—Direct Supervision

(Rule 8.01(3); By-Law 7.1, s 4)
A paralegal shall, in accordance with the By-Laws, directly supervise staff and assistants
to whom particular tasks and functions are delegated.38
A licensee shall assume complete professional responsibility for her or his practice
of law or provision of legal services in relation to the affairs of the licensee’s clients
and shall directly supervise any non-licensee to whom are assigned particular tasks and
30 By-Law 7, s 31(1).
31 Ibid, s 31(2).
32 By-Law 7.1, s 3(2).
33 Rule 1.02.
34 By-Law 7, ss 17, 18(1).
35 Ibid, s 18(2)2.
36 Rule 8.01(1).
37 Rule 8.01(5).
38 Rule 8.01(3).


functions in connection with the licensee’s provision of legal services in relation to the
affairs of each client.39
By-Law 7.1, section 4(2), states:
(2) Without limiting the generality of subsection (1),

(a) the licensee shall not permit a non-licensee to accept a client on the
licensee’s behalf;
(b) the licensee shall maintain a direct relationship with each client throughout
the licensee’s retainer;
(c) the licensee shall assign to a non-licensee only tasks and functions that the
non-licensee is competent to perform;
(d) the licensee shall ensure that a non-licensee does not act without the
licensee’s instruction;
(e) the licensee shall review a non-licensee’s performance of the tasks and
functions assigned to her or him at frequent intervals;
(f) the licensee shall ensure that the tasks and functions assigned to a non-
licensee are performed properly and in a timely manner;
(g) the licensee shall assume responsibility for all tasks and functions
performed by a non-licensee, including all documents prepared by the non-
licensee; and
(h) the licensee shall ensure that a non-licensee does not, at any time, act
finally in respect of the affairs of the licensee’s client.
Assignment of Tasks or Functions—Express Instruction

and Authorization (By-Law 7.1, s 5(1))
(1) A licensee shall give a non-licensee express instruction and authorization prior
to permitting the non-licensee,
(a) to give or accept an undertaking on behalf of the licensee;
(b) to act on behalf of the licensee in respect of a scheduling or other related
routine administrative matter before an adjudicative body; or
(c) to take instructions from the licensee’s client.
Assignment of Tasks or Functions—Prior Consent and Approval

(By-Law 7.1, s 5(2))
A paralegal shall obtain a client’s consent to permit a non-licensee to conduct routine
negotiations with third parties in relation to the affairs of the paralegal’s client and
shall approve the results of the negotiations before any action is taken following from
the negotiations.
be in writing or, if spoken, shall be confirmed in writing.40
39 By-Law 7.1, s 4(1).

40 Rule 1.02.


Tasks and Functions That May Not Be Assigned
(Rule 8.01(4); By-Law 7.1, s 6)
Certain tasks and functions cannot be assigned by a paralegal to a non-licensee. Rule
8.01(4) states:
(4) A paralegal shall not permit a non-licensee,

(a) to provide legal services;
(b) to be held out as a licensee; or
(c) to perform any of the duties that only paralegals may perform or do things
that paralegals themselves may not do.
(1) A licensee shall not permit a non-licensee,

(a) to give the licensee’s client legal advice;
(b) to act on behalf of a person in a proceeding before an adjudicative body,
other than on behalf of the licensee in accordance with subsection 5(1), unless
the non-licensee is authorized under the Law Society Act to do so;
(c) to conduct negotiations with third parties, other than in accordance with
subsection 5(2);
(d) to sign correspondence, other than correspondence of a routine
administrative nature; or
(e) to forward to the licensee’s client any document, other than a routine
document, that has not been previously reviewed by the licensee.
In your supervisory role, as the person responsible for all business entrusted to
you, you shall not permit an employee to do anything that paralegals may not do,
including engaging in unauthorized practice. If a paralegal employs a lawyer, the
lawyer employee cannot practise law, because the paralegal employer does not have
the education, training, and knowledge to supervise someone engaged in the practice
of law. A paralegal employer may supervise a lawyer employee if the lawyer employee
practises within the permitted scope of practice for paralegals.
Collection Letters (By-Law 7.1, s 7)

Special restrictions apply to collection letters. By-Law 7.1, section 7, states:
(7) A licensee shall not permit a collection letter to be sent to any person unless,
(a) the letter is in relation to the affairs of the licensee’s client;
(b) the letter is prepared by the licensee or by a non-licensee under the direct
supervision of the licensee;
(c) if the letter is prepared by a non-licensee under the direct supervision of
the licensee, the letter is reviewed and approved by the licensee prior to it
being sent;
(d) the letter is on the licensee’s business letterhead; and
(e) the letter is signed by the licensee.


TABLE 7.1 Delegation to Non-Licensee Employees (Rule 8.01; By-Law 7.1)
Is an employee permitted to perform the
Task, function, or conduct Authority
task or function?
Accept a client on the paralegal’s behalf No By-Law 7.1, s. 4
Act without the paralegal’s instruction No By-Law 7.1, s. 4
Act finally in a client’s affairs No By-Law 7.1, s. 4
Yes, with the paralegal’s express instruction and

Give or accept an undertaking on behalf authorization permitting the employee to do so By-Law 7.1, s. 5(1)
of the paralegal
No, in any other circumstances
Yes, on scheduling or other routine administra-

tive matters and with the paralegal’s express
By-Law 7.1, s. 5(1)
instruction and authorization permitting the
employee to do so
Appear before an adjudicative body
Law Society Act, s. 1(8)
Yes, if non-licensee falls within the exemptions
By-Law 4
No, in any other circumstances By-Law 7.1, s. 6
Give a client legal advice No By-Law 7.1, s. 6
Yes, with the paralegal’s express instruction and

Take instructions from a client authorization permitting the employee to do so By-Law 7.1, s. 5(1)
Yes, in routine negotiations, with the client’s

prior consent and with the paralegal’s approval
By-Law 7.1, s. 5(2)
Conduct negotiations with third parties of the results of the negotiations before any
further action following from the negotiations
No, if it is not a routine negotiation By-Law 7.1, s. 6
Yes, if correspondence is of a routine adminis-

Sign correspondence trative nature By-Law 7.1, s. 6
Forward a document to the client with- Yes, if it is a routine document

By-Law 7.1, s. 6
out review by the paralegal No, in any other circumstances
Provide legal services No Rule 8.01(4)
Hold himself out as a licensee No Rule 8.01(4)
Perform any duty that only a paralegal

No Rule 8.01(4)
may perform
Do anything that a paralegal may not do No Rule 8.01(4)


Hiring and Training of Staff (Guideline 18)
A paralegal shall, in accordance with the By-Laws, assume complete professional
responsibility for all business entrusted to him or her.41 In order to run your practice
efficiently and to comply with your obligations to clients and others under the Rules
and By-Laws, you must take steps to hire appropriate staff and train them to be com-
petent and trustworthy. You cannot make legal services available to the public in an
efficient and convenient way if you do not have trained, competent staff to assist you.
Training ensures that staff have the knowledge, skills, and attributes to perform their
employment duties effectively. It also ensures that they are aware of their professional
obligations in a legal services practice.
5. In order to fulfill his or her responsibilities to clients under the Rules and
By-Laws, a paralegal should take care to properly hire and train staff. A paralegal
should obtain information about a potential employee to inform himself or herself
about the employee’s competence and trustworthiness. If the position involves
handling money, the paralegal may ask for the applicant’s consent to check his
or her criminal record and credit reports. A paralegal must comply with privacy
legislation and should refer to the Rules to review questions that can and cannot be
asked of an applicant, as outlined in the Human Rights Code. A paralegal should
confirm the information contained in a candidate’s resume, consult references,
and verify previous employment experiences before offering employment to a
candidate.
6. Proper hiring and training of persons who are not licensed will assist the paralegal
in managing his or her practice effectively, as required by Rule 3.01(4)(c)(h). Since
the paralegal is responsible for the professional business, it will assist the paralegal in
fulfilling this responsibility if the paralegal educates staff regarding
• the types of tasks which will and will not be delegated,

• the need to act with courtesy and professionalism,
• the definition of discrimination and harassment, and the prohibition against
any conduct that amounts to discrimination and harassment,
• the duty to maintain client confidentiality and methods used to protect
confidential client information (e.g. avoiding gossip inside and outside of the
office),
• the definition of a conflict of interest, the duty to avoid conflicts and how to
use a conflicts checking system,
• proper handling of client property, including money, and
• proper record keeping.
An office procedures manual that sets out firm policies and procedures is a valuable
tool to help staff perform their duties effectively and professionally.
Financial Responsibility (Rule 8.01(2); Guideline 23)

A paralegal shall promptly meet financial obligations incurred in the course of practice
on behalf of clients unless, before incurring such an obligation, the paralegal clearly
41 Rule 8.01(1).


indicates in writing to the person to whom it is to be owed that it is not to be a
personal obligation of the paralegal.42
1. Rule 8.01 establishes a professional duty (apart from any legal liability) regarding
financial obligations incurred in the course of providing legal services on behalf of a
client.
2. The business of providing legal services often requires that a paralegal incur
financial obligations to others on behalf of clients. Such obligations include charges
for medical reports, disbursements payable to government registries, fees charged
by expert witnesses, sheriffs, special examiners, registrars, court reporters and
public officials and the accounts of agents retained in other jurisdictions.
3. To assist in avoiding disputes about payment of accounts, where a paralegal
retains a person on behalf of a client, the paralegal should clarify the terms of
the retainer in writing. This includes specifying the fees, the nature of the services
to be provided, and the person responsible for payment. If the paralegal is not
responsible for the payment of the fees, the paralegal should help in making
satisfactory arrangements for payment if it is reasonably possible to do so.
4. If there is a change of representative, the paralegal who originally retained the
person to whom the financial obligation will be owed should advise him or her
about the change and provide the name, address, telephone number, fax number
and e-mail address of the new paralegal or lawyer.
To avoid misunderstandings, a paralegal should consider discussing anticipated

expenses and disbursements (including extraordinary disbursements such as medical
reports, if they are foreseeable at the time) with the client at the initial consultation,
and clarifying with the client who is responsible for payment. The arrangement should
be confirmed in the written confirmation of the paralegal – client retainer.
Making Legal Services Available

A paralegal shall make legal services available to the public in an efficient and conven-
ient way.43
This does not mean that you must accept every retainer that is offered. Guideline 19
comments:
1. … A paralegal has a general right to decline a particular representation (except

when assigned as representative by a tribunal), but it is a right that should be
exercised prudently, particularly if the probable result would be to make it difficult
for a person to obtain legal advice or representation. Generally, the paralegal
should not exercise the right merely because a person seeking legal services or
that person’s cause is unpopular or notorious, or because powerful interests or
allegations of misconduct or malfeasance are involved, or because of the paralegal’s
private opinion about the guilt of the accused. A paralegal declining representation
42 Rule 8.01(2).
43 Rule 8.02(1).


should assist in obtaining the services of a lawyer or another licensed paralegal
qualified in the particular field and able to act.
2. A person who is vulnerable or who has suffered a traumatic experience and
has not yet had a chance to recover may need the professional assistance of a
paralegal. A paralegal is permitted to provide assistance to a person if a close
relative or personal friend of the person contacts the paralegal for this purpose,
and to offer assistance to a person with whom the paralegal has a close family or
professional relationship. Rules 8.02 and 8.03 prohibit the paralegal from using
unconscionable or exploitive or other means that bring the profession or the
administration of justice into disrepute.
A person requiring legal services should be able to find a qualified paralegal with
minimum delay and inconvenience. A paralegal assists in this process by promoting
her or his legal services to the public. A paralegal’s promotional strategies must comply
with the Rules. They must be in the best interests of the public, and consistent with a
high standard of professionalism.
Rule 8.02(2) imposes restrictions upon the manner in which a paralegal offers legal
services:
(2) In offering legal services, a paralegal shall not use means that
(a) are false or misleading;
(b) amount to coercion, duress or harassment;
(c) take advantage of a person who is vulnerable or who has suffered a
traumatic experience and has not yet had a chance to recover;
(d) are intended to influence a person who has retained another paralegal
or a lawyer for a particular matter to change his or her representative
for that matter, unless the change is initiated by the person or the other
representative; or
(e) otherwise bring the paralegal profession or the administration of justice
into disrepute.
A paralegal shall not advertise services that are beyond the permissible scope of
paralegal practice.44
Marketing of Legal Services (Rule 8.03; Guideline 19)

marketing For the purposes of Rule 8.03, marketing includes advertisements and other similar
includes advertisements and communications in various media, as well as firm names (including trade names),
similar communications in letterhead, business cards, and logos.45
various media, as well as firm Rules 8.03(2) to (5) set out parameters for the marketing of legal services.
names (including trade names),
letterhead, business cards, and (2) A paralegal may market legal services only if the marketing
logos (Rule 8.03(1)) (a) is demonstrably true, accurate and verifiable;
(b) is neither misleading, confusing, or deceptive, nor likely to mislead,
confuse or deceive; and
(c) is in the best interests of the public and is consistent with a high standard
of professionalism.
44 Rule 8.02(3).
45 Rule 8.03(1).


Advertising of Fees
(3) A paralegal may advertise fees charged by the paralegal for legal services if
(a) the advertising is reasonably precise as to the services offered for each fee
quoted;
(b) the advertising states whether other amounts, such as disbursements and
taxes, will be charged in addition to the fee; and
(c) the paralegal strictly adheres to the advertised fee in every applicable case.
Identification of the Type of Licence
(4) A paralegal marketing legal services shall specifically identify in all marketing
materials that he or she is licensed as a paralegal.
Second Opinion Services
(5) The marketing of second opinion services is prohibited.
Rules 8.02 and 8.03 are intended to ensure that a paralegal does not market his
or her services in a way that misleads clients or the public, while still permitting the
paralegal to differentiate his or her services from those of other licensees.
3. In presenting and promoting a paralegal practice, a paralegal must comply with
the Rules regarding the marketing of legal services.
4. Rules 8.02 and 8.03 impose certain restrictions and obligations on a paralegal
who wishes to market and/or advertise his or her legal services. The Rules help to
ensure that a paralegal does not mislead clients or the public while still permitting
the paralegal to differentiate himself or herself and his or her services from those
of lawyers or other paralegals. A paralegal should ensure that his or her marketing
and advertising does not suggest that the paralegal is a lawyer and should take
steps to correct any misapprehension on the part of a client or prospective client in
that respect.
5. Examples of marketing practices that may contravene Rule 8.03(1) include:
(a) stating an amount of money that the paralegal has recovered for a client
or refer[ring] to the paralegal’s degree of success in past cases, unless such
statement is accompanied by a further statement that past results are not
necessarily indicative of future results and that the amount recovered and
other litigation outcomes will vary according to the facts in individual cases;
(b) suggesting qualitative superiority to lawyers or other paralegals;
(c) raising expectations;
(d) suggesting or implying the paralegal is aggressive;
(e) disparaging or demeaning other persons, groups, organizations or
institutions;
(f) using testimonials or endorsements which contain emotional appeals.
6. Examples of marketing that do contravene Rule 8.03(1) include:
(a) marketing services that the paralegal is not currently able to perform to the
standard of a competent paralegal;
(b) bait and switch marketing, that is marketing by which clients are attracted
by offers of services, prices or terms different from those commonly provided
to clients who respond to the marketing;
(c) marketing that fails to clearly and prominently disclose a practice that the
paralegal has of referring clients for a fee, or other consideration, to other
licensees;


(d) failing to expressly state that the marketed services will be provided by
licensed lawyers, by licensed paralegals or both as the case may be;
(e) referring to awards, rankings and third party endorsements that are not
bona fide or are likely to be misleading, confusing, or deceptive; and
(f) taking advantage of a vulnerable person or group.
7. Rule 8.03(2) establishes, among other things, requirements for communication
in the marketing of legal services. These requirements apply to different forms
of marketing including advertisements about the size, location and nature of the
paralegal’s practice and awards and endorsements from third parties.
8. Paragraphs 6(a-d) of these Guidelines are intended to ensure that marketing
does not mislead by failing to make clear what services are actually available
and are intended to be provided. Paragraph (d) is intended to better ensure that
prospective clients are aware whether the marketed services being offered will be
performed by lawyers or paralegals.
9. Paragraph 6(e) of these Guidelines addresses marketing by reference to awards,
rankings and third party endorsements. The terms “awards” and “rankings”
are intended to be interpreted broadly and to include superlative titles such as
“best,” “super,” “#1” and similar indications. Awards, rankings and third party
endorsements which contravene this rule include awards or rankings that:
(a) do not genuinely reflect the performance of the paralegal and the quality
of services provided by the paralegal but appear to do so;
(b) are not the result of a reasonable evaluative process;
(c) are conferred in part as a result of the payment of a fee or other
consideration rather than as a result of a legitimate evaluation of the
performance and quality of the paralegal; or
(d) the paralegal could not have demonstrated, at the time of reference, were
compliant with this rule.
10. Particular care should be taken in respect of awards and rankings referenced
in mass advertising, such as in newspaper and internet advertising and advertising
on television, billboards, taxis, buses and the like. In such contexts, references
to awards, rankings and third party endorsements must be particularly clear and
straightforward as there is little opportunity for reflection or appreciation on the
part of the potential client or to provide context.
11. References to awards and honours that are genuine reflections of the
professional or civic service do not contravene this rule. For example, a potential
client may consider it useful to know that a paralegal has been honoured for
their service by the Canadian or the Ontario government, the Law Society or a
professional organization. However, the paralegal should take care to ensure that
such awards and honours reflect a genuine and responsible assessment in the
public interest.
12. Rule 8.03(2) also requires marketing to be consistent with a high standard of
professionalism. Unprofessional marketing is not in the best interests of the public.
It has a negative impact on the reputation of paralegals, the legal professions and
the administration of justice. The Law Society has acknowledged in the Rules the
special role of the professions to recognize and protect the dignity of individuals
and the diversity of the community in Ontario. Marketing practices must conform
to the requirements of human rights laws in Ontario.


13. Examples of marketing practices which may be inconsistent with a high degree
of professionalism would be images, language or statements that are violent,
racist or sexually offensive, take advantage of a vulnerable person or group or refer
negatively to other licensees, the legal professions or the administration of justice.
14. Rule 8.03(4) and Guideline 6(d) to Rule 8.03(1) foster public awareness that
both lawyers and paralegals are licensed by the Law Society, and transparency as to
who is offering to provide services.
15. Rule 8.03(5) prohibits the marketing of second opinion services. The provision
of second opinions is a valuable service to clients. However, second opinion
marketing is commonly with a view of obtaining the retainer, rather than providing
a second opinion. Such “bait and switch” marketing is inappropriate. The
marketing of second opinions is prohibited under this rule, whatever the intent of
the marketing.
BOX
7.6
MARKETING A PARALEGAL FIRM
Fact Situation
Your paralegal firm does a lot of work for multi-unit
residential landlords. Most of the matters involve
terminating tenancies and evicting tenants for non-
payment of rent. You are designing a brochure to
advertise your firm to potential landlord clients. You
want to use this logo on your brochure:

Is the logo an acceptable marketing strategy?
Internet Marketing
Advertising by paralegals that uses electronic media, such as websites, social media,
and email, is governed by the Rules.
In addition to the Rules, paralegals who are contemplating marketing their services
using electronic media should review and consider their obligations under Rule 8.03,
along with any material relating to this issue that is posted from time to time in the
Practice Management Topics at the Law Society website.
Internet advertising is not limited to a particular geographic area, and access is
not confined to a particular group of users. Anyone anywhere in the world who has
Internet access can view your website.
To prevent confusion in the minds of users as to your identity, location, and qualifi-
cations, you should provide the following information:
• your name;
• your status as a licensed paralegal;


• the name of your paralegal firm;
• your mailing address;
• your licensed jurisdiction of practice; and
• the email address of at least one paralegal responsible for communication.
You should consider stating the areas of law in which paralegals are authorized to
provide legal services in Ontario, to ensure compliance with Rule 8.02(3).
Any information about you or your firm posted at a website shall comply with
Rule 8.03.
Compulsory Errors and Omissions Insurance

(Rule 8.04; By-Law 6, Part II; Guideline 20)
Errors and omissions insurance is professional liability insurance intended to reimburse
clients for any damage or loss suffered as a result of a paralegal’s negligence or wrong-
doing when working on a client matter.
All paralegals practising in Ontario shall obtain and maintain adequate errors and
omissions insurance as required by the Law Society.46
A paralegal shall give prompt notice of any circumstance that may give rise to a
claim to an insurer or other indemnitor, so that the client’s protection from that source
will not be prejudiced.47
When a claim of professional negligence is made against a paralegal, she or he shall
assist and cooperate with the insurer or other indemnitor to the extent necessary to
enable the claim to be dealt with promptly.48
In cases where liability is clear and the insurer is prepared to pay its portion of the
claim, the paralegal shall pay the balance.49
1. As soon as a paralegal discovers an error or omission that is or may reasonably

be expected to involve liability to his or her client, the paralegal should take the
following steps, in addition to those required by Rule 8.04:
• immediately arrange an interview with the client and advise the client that
an error or omission may have occurred that may form the basis of a claim
against the paralegal by the client;
• advise the client to obtain an opinion from an independent paralegal or
lawyer and that, in the circumstances, the paralegal may not be able to
continue acting for the client; and
• subject to the rules about confidentiality, inform the insurer of the facts of the
situation.
2. While the introduction of compulsory insurance imposes additional obligations

upon a paralegal, those obligations must not impair the relationship between the
paralegal and client or the duties owed to the client.
46 Rule 8.04(1).
47 Rule 8.04(2).
48 Rule 8.04(3).
49 Rule 8.04(4).


CHAPTER SUMMARY
A paralegal shall not charge or accept any amount for a You shall not give any financial or other reward to any
fee or disbursement unless it is fair and reasonable and person who is not a licensee, including an affiliated entity,
has been disclosed in a timely fashion. At the outset of the for the referral of clients or client matters.
paralegal – client retainer, you should discuss with the client If you refer a matter to another licensee because of that
the scope of the legal services to be provided and the likely licensee’s expertise and ability to handle the matter, you
cost of those services. You should also discuss the money may accept, and the other licensee may pay, a referral fee
retainer, your billing practices, and other important terms if the referral was not made because of a conflict of interest,
of the paralegal – client retainer. the referral fee is reasonable and does not increase the
You must ensure that the client understands the scope total amount of the fee charged to the client, the client is
of the legal services to be provided; how fees, disburse- informed and consents to the referral, and a referral agree-
ments, and HST will be charged; and any other terms of ment is entered into at the time of the referral or as soon
the retainer. The terms of the paralegal – client retainer as practicable thereafter. A draft referral fee agreement
in a client matter should be confirmed in writing, via a containing all of the required terms is available at the Law
retainer agreement, engagement letter, or confirming Society website, along with an information document for
memorandum. clients.
You may not take any fee, reward, costs, commission, Client money, such as a money retainer or settlement
interest, rebate, agency or forwarding allowance, or other funds payable to or by the client, remains the property of the
compensation related to your employment from anyone client. It must be deposited to your trust account and held
other than the client without full disclosure to, and consent for the benefit of the client. A paralegal shall not appropriate
of, the client. any funds of the client held in trust or otherwise under the
In a statement of account to a client, you shall clearly paralegal’s control, for or on account of fees, except as
and separately detail amounts charged as fees, amounts permitted by the By-Laws under the Law Society Act.
charged as disbursements, and the amount payable for A paralegal shall, in accordance with the By-Laws,
HST. You should review and sign the statement of account assume complete professional responsibility for all business
before it is delivered to the client. entrusted to him or her. In appropriate circumstances, a
If a client disputes a paralegal’s account, and the dispute paralegal should consider providing legal services with the
cannot be settled by the client and the paralegal, the dis- assistance of competent non-licensees. A paralegal may
pute must be adjudicated by a court. If the amount of fees assign to a non-licensee tasks and functions in connection
or disbursements charged is reduced by a court order, the with the paralegal’s provision of legal services in relation to
paralegal must repay the monies to the client as soon as is the affairs of the licensee’s client. When doing so, you shall
practicable. ensure compliance with Rule 8.01(4) and By-Law 7.1, Part I.
Except in quasi-criminal or criminal matters, you may In order to run your practice efficiently and effectively,
enter into a written agreement that provides that your fee you must take steps to hire trustworthy, competent staff,
is contingent, in whole or in part, on the successful dispos- and ensure that they receive appropriate training before
ition or completion of the matter for which your services you delegate tasks or functions to them. You shall, in
are to be provided. accordance with the By-Laws, directly supervise staff and
If you are acting for two or more clients in a joint retainer assistants to whom particular tasks and functions are
arrangement, you shall divide the fees and disbursements delegated.
equitably between or among them, unless the clients have A paralegal shall promptly meet financial obligations
agreed to another arrangement. Each joint client shall incurred in the course of practice on behalf of clients
receive a separate statement of account. unless, before incurring the obligation, the paralegal clearly
Fees for a matter may be divided between licensees indicates in writing to the person to whom it is to be owed
who are not in the same firm if the client consents and the that it is not to be a personal obligation of the paralegal.
fees are divided in proportion to the work done and the A paralegal shall make legal services available to the pub-
responsibilities assumed. lic in an efficient and convenient way. A paralegal shall not
You shall not share, split, or divide your fees with any use marketing strategies that are misleading, confusing, or
person who is not a licensee, including an affiliated entity. deceptive or are likely to mislead, confuse, or deceive; not


in the best interests of the public; or inconsistent with high The Rules govern marketing by paralegals that uses
standards of professionalism. A paralegal marketing legal electronic media.
services shall specifically identify in all marketing materials All paralegals practising in Ontario shall obtain and
that she or he is licensed as a paralegal. The marketing of maintain adequate errors and omissions insurance as
second opinion services is prohibited. required by the Law Society.
KEY TERMS
billable time, 241 fees by stages, 242 non-billable time, 241
contingency fee, 243 fee splitting, 250 referral fee, 252
docket, 241 fixed, flat, or block fee, 242 statement of account, 246
docketed time, 241 interim statement of account, 259 to write off time, 241
fees based on an hourly rate, 241 marketing, 270
1. You are going through a slow period in your paralegal Henrietta arranges with the paralegal for the
practice. A client approaches you about a Highway defendant for the settlement funds to be paid to
Traffic Act matter. The client, if convicted, could face her in trust. She invoices Stephen for $3,000, and
a substantial fine. Ordinarily, you would charge an remits the balance to him. Stephen is outraged. “I
hourly rate of $100 for your fees in such a matter, already paid you $600!” he says. “I thought that was
but you need the business, so you give the client an your fee! Now you turn around and give yourself a
estimate of the total cost based on an hourly rate of bonus for doing a lousy job?” He says he is going to
$70. You figure you can always adjust your fee later, complain to the Law Society and he is also going to
pleading unforeseen circumstances. You also plan to go to court to dispute the account.
make a little extra by padding the disbursements. What steps could Henrietta have taken to avoid
Discuss, referring to the applicable rule(s) and this outcome?
other authorities, if any. 3. Robert Miller is a paralegal licensee who specializes in
2. Henrietta Stackpole is a licensed paralegal. Henrietta defending persons charged with Highway Traffic Act
is retained by Stephen Foster to represent him in a offences.
Small Claims Court action for damages for a minor Robert has grown his practice by approaching
personal injury. The initial consultation is brief, as police officers who appear as witnesses on his own
Henrietta is very busy at the time. She quotes an or other matters at the courthouse, asking them to
hourly rate of $100. She requires Stephen to pay a direct to him the people they charge, and offering to
money retainer of $600, which she pays into her trust pay the officers a fee for every defendant who retains
account. She never does get around to confirming the Robert to defend them. He gives each officer who
paralegal – client retainer in writing. agrees to this arrangement a set of his business cards,
The matter fails to settle, and a trial date is telling the officer to mark it in a particular manner
scheduled. At trial, Henrietta intends to rely upon a and give it to the defendant at the time the charge is
medical report from Stephen’s treating physician. The made, with instructions to present it to Robert, who
fee for the report is $400. The deadline for service will give the defendant a “special price.”
of the medical report on the other parties is fast Many officers refuse to agree to the arrangement,
approaching. Henrietta pays for the report from the but several do agree. Robert keeps a list of the
funds in trust. She moves the balance in trust into officers’ names and the special marks made on their
her general account to pay for some disbursements cards so that he knows whom to pay and how much.
incurred at the commencement of the matter, He charges the clients who are referred to him in this
including the cost of issuing the plaintiff’s claim. manner a higher fee than he charges his other clients
At trial, Stephen is awarded $12,000 plus costs. He because he factors in the referral fee.
is very disappointed with this result.


All defendants who are referred to Robert in this convictions. He tells Eugene that he can’t afford to
manner are required to swear an affidavit at the time pay the fine.
of retaining him that states one of the following: “Don’t worry!” Eugene tells Aleksandr. “If you get
“I learned of the licensed paralegal in the following convicted, you pay the fine, but you don’t pay me!!”
manner: From a friend / By observing him in court / Discuss, referring to any rules or other authorities
Through advertising.” Robert tells them that the upon which you are relying.
affidavits are totally confidential and that he uses
9. Pamela Okker is a licensed paralegal. To market her
them to formulate marketing strategies.
firm, she is setting up a website. At the website,
Has Robert behaved ethically? below her name, is the statement: “Highway Traffic
4. You specialize in residential tenancies matters. Act offences: 100% acquittals. We are quite simply
A landlord whom you have never represented THE BEST!! We are AWESOME!!” She is described as
telephones you seeking legal services. When you “Duly licensed by the Law Society of Ontario.”
perform a conflict check, you discover a conflicting Discuss, referring to any rules or other authorities
interest. You refer the landlord to another paralegal, upon which you are relying.
who is also a residential tenancies specialist. The other
10. Amy has been approached by a former client, Jian,
paralegal wishes to pay you a referral fee. She has her
whom she acted for in the past on a Small Claims
client’s consent. May she pay, and may you accept,
Court matter. Jian was extremely pleased with Amy’s
the referral fee?
representation and wants to retain her in connection
5. You have just received a money retainer from a new with an employment matter. Recently, Jian was
client. You have some bills you need to pay, and you terminated from his employment due to restructuring.
are running short of cash in the general account. You He is being provided with only his statutory
would like to deposit the new client’s money retainer entitlement under the Employment Standards Act.
directly to the general account and use it to pay the Amy believes he has a strong case for wrongful
bills. You plan to replace it later. dismissal because there is no written employment
Discuss. agreement between the parties and Jian has 18
6. A client sends you a cheque for payment of an years of service with the employer. Amy immediately
outstanding invoice. What do you do with the recognizes that Jian’s monetary claim will fall outside
money? the jurisdiction of the Small Claims Court. She refers
7. You are holding $800 in trust in a client matter. You Jian to Charles, the only lawyer in their remote town
have completed the preliminary steps in the matter, who practises employment law. Amy and Charles
and have delivered an interim statement of account enter into a referral fee arrangement. Charles will pay
for $600 to the client. May you use the money held in her the maximum entitlement permitted by the Rules.
trust to pay the invoice? Ultimately, Charles’s legal fees amount to $22,400.
8. Eugene Onegin is a licensed paralegal with a Assuming Charles and Amy complied with the
specialization in Highway Traffic Act offences. requirements under the Rules pertaining to referral
Aleksandr Pushkin consults with Eugene about a fees, what amount is Amy entitled to for the referral?
careless driving charge. Aleksandr has several previous Refer to the Rules in your answer.


Appendix 7.1 Sample Invoice—No Money Retainer
Judith N. Black, Licensed Paralegal

123 Radiant Way, Suite 200
Brampton, Ontario X1X 2Y3
TEL: 905 122 3333 FAX: 905 123 4444 email: jblack@paralegal.emp.ca
HST Registration No.: 12568 8777 RT

Client Matter No.: 01328
Invoice No.: 859
Date: June 30, 20—
Sylvia Cisco
1234 Pleasant Valley Crescent
Mississauga, Ontario X1X 3Y4
Re: Sylvia Cisco v. 880345 Ontario Inc.
For Professional Services Rendered:
[Description of legal services in the client matter for the period ending June 30, 20—]
MY FEE: $400.00
TOTAL FEE: $400.00
DISBURSEMENTS Disbursements
Photocopies $56.25
Court work* $37.00
Issue claim* $75.00
Service* $50.00
Default judgment* $35.00
Total disbursements $253.25
* HST exempt
TOTAL FEES AND DISBURSEMENTS $653.25

13% HST on account $ 59.31
$712.56
Transferred from trust $0.00

Balance in trust $0.00
Previous balance $0.00
Previous payments $0.00
BALANCE DUE AND OWING $712.56
THIS IS MY ACCOUNT HEREIN
Judith Black
Judith N. Black
Licensed Paralegal
Interest will be charged on accounts not paid within 30 days at a rate of

3.0% per annum from the date of the account until any outstanding balance is paid in full.


Appendix 7.2 Sample Invoice—Money Retainer
Judith N. Black, Licensed Paralegal

123 Radiant Way, Suite 200
Brampton, Ontario X1X 2Y3
TEL: 905 122 3333 FAX: 905 123 4444 email: jblack@paralegal.emp.ca
HST Registration No.: 12568 8777 RT

Client Matter No.: 01315
Invoice No.: 860
Date: June 30, 20—
Frances Ciccone
88 Hayward Boulevard
Georgetown, Ontario X1X 4Z5
Re: Ciccone—Careless driving charge
For Professional Services Rendered:
[Description of legal services in the client matter for the period ending June 30, 20—]
MY FEE: $600.00
TOTAL FEE: $600.00
DISBURSEMENTS Disbursements
Photocopies $42.50
* HST exempt
Total disbursements $ 42.50
TOTAL FEES AND DISBURSEMENTS $642.50

13% HST on account $ 83.53
$726.03
Transferred from trust $726.03

Balance in trust $73.97
Previous balance $0.00
Previous payments $0.00
BALANCE DUE AND OWING $0.00
THIS IS MY ACCOUNT HEREIN
Judith Black
Judith N. Black
Licensed Paralegal
Interest will be charged on accounts not paid within 30 days at a rate of

3.0% per annum from the date of the account until any outstanding balance is paid in full.



APPENDIX
Paralegal Rules of Conduct
A
Adopted by Convocation March 29, 2007, effective May 1, 2007
Amendments based on the Federation of Law Societies Model Code of Professional Conduct
adopted by Convocation February 27, 2014, effective October 1, 2014
Amendments current to October 24, 2019
Rule 1 Citation and Interpretation under the laws of Ontario, or a not-for-profit corporation permitted
under the laws of Ontario to operate in the Province;
1.01 CITATION
[New—February 2019]
1.01 (1) These Rules may be cited as the Paralegal Rules of
“client” means a person who:
Conduct.
(a) consults a paralegal and on whose behalf the paralegal
1.02 INTERPRETATION provides or agrees to provide legal services; or
Definitions (b) having consulted the paralegal, reasonably concludes that
the paralegal has agreed to provide legal services on his
1.02 In these Rules, or her behalf
“affiliated entity” means any person or group of persons other than and includes a client of the firm of which the paralegal is a partner
a person or group authorized to provide legal services in Ontario; or associate, whether or not the paralegal handles the client’s work;
“affiliation” means the joining on a regular basis of a paralegal or “conflict of interest” means the existence of a substantial risk that a
group of paralegals with an affiliated entity in the delivery or pro- paralegal’s loyalty to or representation of a client would be mater-
motion and delivery of the legal services of the paralegal or group ially and adversely affected by the paralegal’s own interest or the
of paralegals and the non-legal services of the affiliated entity; paralegal’s duties to another client, a former client or a third person.
[New—October 2008] The risk must be more than a mere possibility; there must be a
“associate” includes: genuine, serious risk to the duty of loyalty or to client representation
arising from the retainer.
(a) a licensee who provides legal services in a firm of
licensees through an employment or other contractual “consent” means fully informed and voluntary consent after disclosure:
relationship; and (a) in writing, provided that where more than one person
(b) a non-licensee employee of a multi-discipline practice consents, each signs the same or a separate document
providing services that support or supplement the practice recording the consent, or
of law or provision of legal services. (b) orally, provided that each person consenting receives a
[Amended—October 2014] separate written communication recording their consent
as soon as practicable;
“civil society organization” means a registered charity under the
Income Tax Act (Canada), a not-for-profit corporation incorporated [Amended—October 2014]
Note: Please check the LSO website for the most current version of the Rules. Available online at https://lso.ca/about-lso/
legislation-rules/paralegal-rules-of-conduct/complete-paralegal-rules-of-conduct. © The Law Society of Ontario, 2007–2019.
All rights reserved. Reprinted with permission of The Law Society of Ontario.
281

“Law Society” means the Law Society of Ontario; 2.02 UNDERTAKINGS AND TRUST CONDITIONS
licensee” means, 2.02 (1) A paralegal shall fulfil every undertaking given and shall
(a) a person licensed to practise law in Ontario as a barrister not give an undertaking that cannot be fulfilled.
and solicitor, or (2) Except in exceptional circumstances, a paralegal shall give his
(b) a person licensed to provide legal services in Ontario; or her undertaking in writing or confirm it in writing as soon as
“legal practitioner” means a person practicable after giving it.
(a) who is a licensee; (3) Unless clearly stated in the undertaking, a paralegal’s under-
taking is a personal promise and it is his or her personal
(b) who is not a licensee but who is a member of the bar of a
responsibility.
Canadian jurisdiction, other than Ontario, and who is
authorized to practise law as a barrister and solicitor in (4) A paralegal shall honour every trust condition once accepted.
that other jurisdiction. [Amended—October 2014]
[Amended—October 2014]
2.03 HARASSMENT AND DISCRIMINATION
“limited scope retainer” means the provision of legal services by a
paralegal for part, but not all, of a client’s legal matter by agree- Application of Human Rights Code
ment between the paralegal and the client. 2.03 (1) The principles of the Ontario Human Rights Code and
[Amended—October 2014] related case law apply to the interpretation of this rule.
“paralegal” means a paralegal licensee of the Law Society; (2) A term used in this rule that is defined in the Human Rights
“paralegal firm” includes one or more paralegals practising in a sole Code has the same meaning as in the Human Rights Code.
proprietorship, partnership or professional corporation; Harassment
“Rules” means the Paralegal Rules of Conduct; (3) A paralegal shall not engage in sexual or other forms of
“tribunal” includes courts, boards, arbitrators, mediators, adminis- harassment of a colleague, a staff member, a client or any other
trative agencies, and bodies that resolve disputes, regardless of their person on the ground of race, ancestry, place of origin, colour,
function or the informality of their procedures. ethnic origin, citizenship, creed, sex, sexual orientation, gender
identity, gender expression, age, record of offences, marital status,
Rule 2 Professionalism family status or disability.
2.01 INTEGRITY AND CIVILITY Discrimination

(4) A paralegal shall respect the requirements of human rights
Integrity
laws in force in Ontario and without restricting the generality of the
2.01 (1) A paralegal has a duty to provide legal services and dis- foregoing, a paralegal shall not discriminate on the grounds of race,
charge all responsibilities to clients, tribunals, the public and other ancestry, place of origin, colour, ethnic origin, citizenship, creed,
members of the legal professions honourably and with integrity. sex, sexual orientation, gender identity, gender expression, age,
(2) A paralegal has a duty to uphold the standards and reputa- record of offences, marital status, family status or disability with
tion of the paralegal profession and to assist in the advancement of respect to the employment of others or in dealings with other
its goals, organizations and institutions. licensees or any other person.
(5) The right to equal treatment without discrimination because
Civility
of sex includes the right to equal treatment without discrimination
(3) A paralegal shall be courteous and civil, and shall act in good because a woman is or may become pregnant.
faith with all persons with whom he or she has dealings in the
course of his or her practice. Services
(6) A paralegal shall ensure that no one is denied services or
Outside Interests and Public Office
receives inferior service on the basis of the grounds set out in this
(4) A paralegal who engages in another profession, business, rule.
occupation or other outside interest or who holds public office
concurrently with the provision of legal services, shall not allow the Employment Practices
outside interest or public office to jeopardize the paralegal’s integ- (7) A paralegal shall ensure that his or her employment practices
rity, independence, or competence. do not offend this rule.
(5) A paralegal shall not allow involvement in an outside interest [Amended—October 2014]
or public office to impair the exercise of his or her independent
judgment on behalf of a client.
Acting as Mediator Rule 3 Duty to Clients

(6) A paralegal who acts as a mediator shall, at the outset of the 3.01 COMPETENCE
mediation, ensure that the parties to it understand fully that the para-
legal is not acting as a representative for either party but, as mediator, Required Standard
is acting to assist the parties to resolve the issues in dispute. 3.01 (1) A paralegal shall perform any services undertaken on a
[Amended—October 2014] client’s behalf to the standard of a competent paralegal.
282 APPENDIX A Paralegal Rules of Conduct


(2) A paralegal is required to recognize a task for which the 3.02 ADVISING CLIENTS
paralegal lacks competence and the disservice that would be done
to the client by undertaking that task. A paralegal shall not under- Quality of Service
take a matter without being competent to handle it or being able to 3.02 (1) A paralegal has a duty to provide courteous, thorough
become competent without undue delay or expense to the client. and prompt service to clients. The quality of service required of a
(3) If a paralegal discovers that he or she lacks the competence to paralegal is service that is competent, timely, conscientious, diligent,
complete the task for which he or she has been retained, the para- efficient and civil.
legal shall: (2) A paralegal shall be honest and candid when advising
(a) decline to act; clients.
(b) obtain the client’s consent to retain, consult or collaborate (3) A paralegal shall not undertake or provide advice with
with another licensee who is competent and licensed to respect to a matter that is outside his or her permissible scope of
perform that task; or practice.
(c) obtain the client’s consent for the paralegal to become [Amended—October 2014]
competent without undue delay, risk or expense to the
client. Dishonesty, Fraud, etc. by Client or Others
(4) A paralegal shall not
Who Is Competent
(a) knowingly assist in or encourage any dishonesty, fraud,
(4) For the purposes of this rule, a competent paralegal is one crime, or illegal conduct;
who has and applies the relevant knowledge, skills, and attributes (b) do or omit to do anything that the paralegal ought to
appropriate to each matter undertaken on behalf of a client know assists in, encourages or facilitates any dishonesty,
including, fraud, crime, or illegal conduct by a client or any other
(a) knowing general legal principles and procedures and the person; or
substantive law and procedures for the legal services that (c) advise a client or any other person on how to violate the
the paralegal provides; law and avoid punishment.
(b) investigating facts, identifying issues, ascertaining client (5) When retained by a client, a paralegal shall make reasonable
objectives, considering possible options, and developing efforts to ascertain the purpose and objectives of the retainer and
and advising clients on appropriate courses of action; to obtain information about the client necessary to fulfill this
(c) implementing, as each matter requires, the chosen course obligation.
of action through the application of appropriate skills, (6) A paralegal shall not use his or her trust account for purposes
including, not related to the provision of legal services.
(i) legal research,
[Amended—October 2014, September 2017]
(ii) analysis,
(7)—Revoked
(iii) application of the law to the relevant facts,
[Revoked—September 2017]
(iv) writing and drafting,
(8) A paralegal who is employed or retained by an organization
(v) negotiation, to act in a matter in which the paralegal knows that the organiza-
(vi) alternative dispute resolution, tion has acted, is acting or intends to act dishonestly, fraudulently,
criminally, or illegally shall do the following, in addition to their
(vii) advocacy, and
obligations under subrule (4):
(viii) problem-solving;
(a) advise the person from whom the paralegal takes
(d) representing the client in a conscientious, diligent, and instructions and the chief legal officer, or both the chief
cost-effective manner; legal officer and the chief executive officer, that the
(e) communicating with the client at all relevant stages of a conduct is, was or would be dishonest, fraudulent,
matter in a timely and effective manner; criminal, or illegal and should be stopped,
(f) answering reasonable client requests in a timely and (b) if necessary because the person from whom the
effective manner; paralegal takes instructions, the chief legal officer, or the
(g) ensuring that all applicable deadlines are met; chief executive officer refuses to cause the conduct to
(h) managing one’s practice effectively; be stopped, advise progressively the next highest
persons or groups, including ultimately, the board of
(i) applying intellectual capacity, judgment, and deliberation
directors, the board of trustees, or the appropriate
to all functions;
committee of the board, that the conduct was, is or
(j) pursuing appropriate training and development to would be dishonest, fraudulent, criminal, or illegal and
maintain and enhance knowledge and skills; should be stopped, and
(k) adapting to changing requirements, standards, (c) if the organization, despite the paralegal’s advice,
techniques and practices; and continues with or intends to pursue the wrongful
(l) complying in letter and in spirit with all requirements conduct, withdraw from acting in the matter in
pursuant to the Law Society Act. accordance with Rule 3.08.
[Amended—October 2014] [Amended—October 2014]
APPENDIX A Paralegal Rules of Conduct 283


Threatening Penal or Regulatory Proceedings (d) summary advice provided by the paralegal to a client in
(9) A paralegal shall not, in an attempt to gain a benefit for a the context of an introductory consultation, where the
client, threaten, or advise a client to threaten without reasonable intention is that the consultation, if the client so chooses,
and lawful justification: would develop into a retainer for legal services for all
aspects of the legal matter; or
(a) to initiate or proceed with a charge for an offence,
(e) pro bono summary legal services provided in a non-profit
including an offence under
or court-annexed program.
(i) the Criminal Code or any other statute of Canada;
[New—September 2011]
(iii) a municipal by-law; or Medical-Legal Reports
(b) to make a complaint to a regulatory authority. (18) A paralegal who receives a medical-legal report from a physician
or health professional that is accompanied by a proviso that it not be
[Amended—February 2017]
shown to the client, shall return the report immediately to the physician
(10) Revoked or health professional, without making a copy, unless the paralegal has
[Amended—February 2017] received specific instructions to accept the report on that basis.
(19) A paralegal who receives a medical-legal report from a phys-
Settlement and Dispute Resolution ician or health professional containing opinions or findings that, if
(11) A paralegal shall advise and encourage a client to compromise disclosed, might cause harm or injury to the client, shall attempt to
or settle a dispute whenever it is possible to do so on a reasonable dissuade the client from seeing the report but, if the client insists,
basis, and shall discourage the client from commencing or continu- the paralegal shall produce the report.
ing useless legal proceedings. (20) If a client insists on seeing a medical-legal report about
(12) The paralegal shall consider the use of alternative dispute which the paralegal has reservations for the reasons noted in sub-
resolution (ADR) when appropriate, inform the client of ADR rule (19), the paralegal shall recommend that the client attend at
options, and, if so instructed, take steps to pursue those options. the office of the physician or health professional to see the report,
in order that the client will have the benefit of the expertise of the
Client with Diminished Capacity physician or health professional in understanding the significance
of the conclusions contained in the medical-legal report.
(13) If a client’s ability to make decisions is impaired because of
minority, mental disability or for some other reason, the paralegal Errors
shall, as far as reasonably possible, maintain a normal professional
(21) If, in connection with a matter for which a paralegal is respon-
relationship with that client.
sible, the paralegal discovers an error or omission that is or may be
(14) If the disability of the client is such that the client no longer damaging to the client and that cannot be rectified readily, the
has the legal capacity to manage his or her legal affairs, the para- paralegal shall,
legal shall take such steps as are appropriate to have a lawfully
(a) promptly inform the client of the error or omission, being
authorized representative appointed.
careful not to prejudice any rights of indemnity that either
of them may have under an insurance, client’s protection
Providing Legal Services Under a Limited Scope
or indemnity plan, or otherwise;
Retainer
(b) recommend that the client obtain legal advice elsewhere
(15) Before providing legal services under a limited scope retainer, concerning any rights the client may have arising from the
a paralegal shall advise the client honestly and candidly about the error or omission; and
nature, extent and scope of the services that the paralegal can
(c) advise the client that in the circumstances, the paralegal
provide and, where appropriate, whether the services can be pro-
may no longer be able to act for the client.
vided within the financial means of the client.
[Amended—October 2014] Official Language Rights
(16) When providing legal services under a limited scope retainer, (22) A paralegal shall, when appropriate, advise a client of the
a paralegal shall confirm the services in writing and give the client a client’s language rights, including the right to use
copy of the written document when practicable to do so. (i) the official language of the client’s choice; and
[New—September 2011] (ii) a language recognized in provincial or territorial
(17) Subrule (16) does not apply to a paralegal if the legal services legislation as a language in which a matter may be
are pursued, including, where applicable, aboriginal
languages.
(a) legal services provided by a licensed paralegal in the
course of his or her employment as an employee of Legal [Amended—September 2017]
Aid Ontario; (23) If a client proposes to use a language of his or her choice, and
(b) summary advice provided in community legal clinics, the paralegal is not competent in that language to provide the
student clinics or under the Legal Aid Services Act, 1998; required services, the paralegal shall not undertake the matter
(c) summary advice provided through a telephone-based unless he or she is otherwise able to competently to provide those
service or telephone hotline operated by a community- required services and the client consents in writing.
based or government funded program. [Amended—September 2017]


3.03 CONFIDENTIALITY 3.04 CONFLICTS OF INTEREST—GENERAL
Confidential Information Avoidance of Conflicts of Interest
3.03 (1) A paralegal shall, at all times, hold in strict confidence (1) A paralegal shall not act or continue to act for a client where
all information concerning the business and affairs of a client there is a conflict of interest, except as permitted under this rule.
acquired in the course of their professional relationship and shall (2) A paralegal shall not advise or represent opposing parties in a
not disclose any such information unless: dispute.
(a) expressly or impliedly authorized by the client; (3) A paralegal shall not represent a client in a matter when there
(b) required by law or by order of a tribunal of competent is a conflict of interest unless
jurisdiction to do so; (a) there is consent which must be fully informed and
(c) required to provide the information to the Law Society, or voluntary after disclosure from all affected clients; and
(d) otherwise permitted by this rule. (b) the paralegal reasonably believes that he or she is able to
(2) The duty of confidentiality under subrule (1) continues represent each client without having a material adverse
indefinitely after the paralegal has ceased to act for the client, effect upon the representation of or loyalty to the
whether or not differences have arisen between them. other client.
(3) The paralegal shall keep the client’s papers and other prop- [Amended—April 2017]
erty out of sight, as well as out of reach, of those not entitled to see
them. Acting Against Former Clients
(4) Unless the former client consents, a paralegal shall not act
Justified or Permitted Disclosure against a former client in,
(4) A paralegal shall disclose confidential information when (a) the same matter;
required by law or by order of a tribunal of competent jurisdiction. (b) any related matter; or
(5) A paralegal may disclose confidential information when the (c) except as provided by subrule (5), in any new matter, if
paralegal believes on reasonable grounds that there is an imminent the paralegal has relevant confidential information arising
risk of death or serious bodily harm, and disclosure is necessary to from the representation of the former client that may
prevent the death or harm. prejudice that client.
(6) In order to defend against the allegations, a paralegal may (5) If a paralegal has acted for a client and obtained confidential
disclose confidential information if it is alleged that the paralegal or information relevant to a matter, the paralegal’s partner or employee
his or her employees, may act in a subsequent matter against that client, provided that:
(a) have committed a criminal offence involving a client’s (a) the former client consents to the paralegal’s partner or
affairs; employee acting; or
(b) are civilly liable with respect to a matter involving a (b) the paralegal’s firm establishes that it has taken adequate
client’s affairs; measures on a timely basis to ensure that there will be no risk
(c) have committed acts of professional negligence; or of disclosure of the former client’s confidential information to
(d) have engaged in acts of professional misconduct or the other licensee having carriage of the new matter.
conduct unbecoming a paralegal. Joint Retainers
(7) A paralegal may disclose confidential information in order to
(6) Before agreeing to act for more than one client in a matter or
establish or collect his or her fees.
transaction, a paralegal shall advise the clients that,
(8) A paralegal may disclose confidential information to a lawyer
or another paralegal to secure legal advice about the paralegal’s
proposed conduct. (b) no information received in connection with the matter
from one client can be treated as confidential so far as
(9) A paralegal shall not disclose more information than is neces- any of the others are concerned; and
sary when he or she discloses confidential information as required
(c) if a conflict develops that cannot be resolved, the
or permitted by subrules (4), (5), (6) and (7).
paralegal cannot continue to act for both or all of them
[Amended—October 2014] and may have to withdraw completely.
Justified or Permitted Disclosure (7) If a paralegal has a continuing relationship with a client for
whom he or she acts regularly, before agreeing to act for that client
(10) A paralegal may disclose confidential information to the and another client in a matter or transaction, the paralegal shall advise
extent reasonably necessary to detect and resolve conflicts of the other client of the continuing relationship and recommend that the
interest arising from: client obtain independent legal advice about the joint retainer.
(a) the paralegal’s change of employment; or (8) If a paralegal has advised the clients, as provided under sub-
(b) changes in the composition or ownership of a paralegal rules (6) and (7), and the parties are content that the paralegal act
firm for both or all of them, the paralegal shall obtain their consent.
but only if the information disclosed does not compromise client (9) Consent to a joint retainer must be obtained from each client
confidentiality or otherwise prejudice the client. in writing, or recorded through a separate written communication
[New—September 2015] to each client.


(10) Although all parties concerned may consent, a paralegal shall Civil Society Organizations
avoid acting for more than one client if it is likely that an issue con- (17) When practising through a civil society organization, a licen-
tentious between them will arise or their interests, rights, or obliga- see shall establish a system to search for conflicts of interest of the
tions will diverge as the matter progresses. civil society organization.
(11) Except as provided by subrule (12) if a contentious issue arises (18) In this rule,
between two clients who have consented to a joint retainer, the
paralegal must not advise either of them on the contentious issue “paralegal’s firm” means the paralegal firm at which the pro bono
and the following rules apply: paralegal provides legal services as a partner, associate, employee,
or otherwise;
“pro bono provider” means a pro bono or not-for-profit legal ser-
(i) refer the clients to other licensees for that purpose;
vice provider that makes pro bono paralegals available to provide
or
advice or representation to clients;
(ii) if no legal advice is required and the clients are
“pro bono paralegal” means (i) a volunteer paralegal who provides
sophisticated, advise them of their option to settle
short-term pro bono services to clients under the auspices of a pro
the contentious issue by direct negotiation in which
bono provider; or (ii) a paralegal providing services under the aus-
the paralegal does not participate.
pices of a Pro Bono Ontario program;
(b) If the contentious issue is not resolved, the paralegal shall
“short-term pro bono services” means pro bono legal services or
withdraw from the joint representation.
representation to a client under the auspices of a pro bono provider
(12) If a paralegal’s clients consent to a joint retainer and also with the expectation by the pro bono paralegal and the client that
agree that if a contentious issue arises the paralegal may continue the pro bono paralegal will not provide continuing legal services or
to advise one of them and a contentious issue does arise, the para- representation in the matter.
legal may advise the one client about the contentious matter and
(19) A pro bono paralegal may provide short-term pro bono servi-
shall refer the other or others to another licensee for that purpose.
ces without taking steps to determine whether there is a conflict of
interest arising from duties owed to current or former clients of the
Multi-Discipline Practices paralegal’s firm or of the pro bono provider;
(13) A paralegal in a multi-discipline practice shall ensure that (20) A pro bono paralegal shall take reasonable measures to
non-licensee partners and associates observe this rule for the ensure that no disclosure of the client’s confidential information is
provision of legal services and for any other business or profes- made to another paralegal in the paralegal’s firm;
sional undertaking carried on by them outside the professional
business. (21) A pro bono paralegal shall not provide or shall cease providing
short-term pro bono services to a client where the pro bono para-
legal knows or becomes aware of a conflict of interest;
Affiliations
(22) A pro bono paralegal who is unable to provide short-term pro
(14) Where there is an affiliation, before accepting a retainer to
bono services to a client because there is a conflict of interest shall
provide legal services to a client jointly with non-legal services of an
cease to provide such services as soon as the paralegal becomes
affiliated entity, a paralegal shall disclose to the client
aware of the conflict of interest and the paralegal shall not seek the
(a) any possible loss of confidentiality because of the pro bono client’s waiver of the conflict.
involvement of the affiliated entity, including
[New—September 2016, Amended—February 2019]
circumstances where a non-licensee or staff of the
affiliated entity provide services, including support
services, in the paralegal’s office, 3.05 CONFLICTS OF INTEREST—TRANSFERS
(b) the paralegal’s role in providing legal services and in
providing non-legal services or in providing both legal and Conflicts from Transfer Between Firms
non-legal services, as the case may be,
Interpretation and Application of Rule
(c) any financial, economic or other arrangements between
3.05 (0.1) In Rule 3.05
the paralegal and the affiliated entity that may affect the
independence of the paralegal’s representation of the “matter” means a case, a transaction, or other client representation, but
client, including whether the paralegal shares in the within such representation does not include offering general “know-
revenues, profits or cash flows of the affiliated entity; and how” and, in the case of government paralegal, providing policy advice
(d) agreements between the paralegal and the affiliated unless the advice relates to a particular client representation.
entity, such as agreements with respect to referral of [New—September 2015]
clients between the paralegal and the affiliated entity, (1) Rules 3.05(2) to 3.05(7) apply when a paralegal transfers from
that may affect the independence of the paralegal’s one paralegal firm (“former paralegal firm”) to another (“new
representation of the client. firm”), and
(15) Where there is an affiliation, after making the disclosure as (a) the transferring paralegal or the new firm is aware of the
required by subrule (14), a paralegal shall obtain the client’s consent time of the transfer or later discovers it is reasonable to
before accepting a retainer under that subrule. believe the transferring paralegal has confidential
(16) Where there is an affiliation, a paralegal shall establish a sys- information relevant to the new firm’s matter for its client; or
tem to search for conflicts of interest of the affiliation. (b) the transferring paralegal or the new firm is aware at the
[Amended—October 2014] time of the transfer or later discovers that


(i) the new firm represents a client in a matter that is 3.06 TRANSACTIONS WITH CLIENTS
the same as or related to a matter in which the 3.06 For the purposes of subrules 3.06(1) to (7),
former firm represents its client (“former client”);
“regulated lender” means a bank, trust company, insurance com-
(ii) the interests of those clients in that matter conflict; pany, credit union or finance company that lends money in the
and ordinary course of business;
(iii) the transferring paralegal actually possesses relevant “related person” in relation to a paralegal means
information respecting that matter.
(a) a spouse, child, grandparent, parent, or sibling of the
[Amended—September 2015] paralegal,
(1.1) Rules 3.05(2) to 3.05(7) do not apply to a paralegal employed (b) a corporation that is owned or controlled directly or
by the federal, a provincial or territorial government who, after indirectly by the paralegal or that is owned or controlled
transferring from one department, ministry or agency to another, directly or indirectly by the paralegal’s spouse, child,
continues to be employed by that government. grandparent, parent, or sibling,
[New—September 2015] (c) an associate or partner of the paralegal.
“transaction with a client” means a transaction to which a paralegal
Paralegal Firm Disqualification
and a client of the paralegal are parties, whether or not other per-
(2) If the transferring paralegal actually possesses confidential sons are also parties, including lending or borrowing money, buying
information relevant to a matter respecting the former client that or selling property or services having other than nominal value,
may prejudice the former client if disclosed to a member of the new giving or acquiring ownership, security or other pecuniary interest
firm, the new firm shall cease its representation of its client in that in a company or other entity, recommending an investment, or
matter unless entering into a common business venture.
(a) the former client consents to the new firm’s continued (1) A paralegal shall not enter into a transaction with a client
representation of its client; or unless the transaction is fair and reasonable to the client.
(b) the new firm has (2) Except for borrowing from a regulated lender or from a
(i) taken reasonable measures to ensure that there will related person, a paralegal shall not borrow from a client.
be no disclosure of the former client’s confidential (3) A paralegal shall not do indirectly what the paralegal is pro-
information by the transferring paralegal to any hibited from doing directly under subrules (1) to (7).
member of the new firm; and
(4) In any transaction with a client that is permitted under sub-
(ii) advised the paralegal’s former client, if requested by rules (1) to (7), the paralegal shall,
the client, of the measures taken.
a. disclose the nature of any conflicting interest, or how and
why it might develop later;
Transferring Paralegal Disqualification
b. with respect to independent legal advice and
(3) Unless the former client consents, a transferring paralegal
independent legal representation:
referred in subrules (2) or (4) shall not,
i. in the case of a loan to a client who is not a related
(a) participate in any manner in the new paralegal firm’s person, the paralegal shall require that the client
representation of its current client in the matter; or receive independent legal representation;
(b) disclose any confidential information respecting the
ii. in the case of a loan to a client who is a related
former client except as permitted by Rule 3.03.
person, the paralegal shall require that the client
(4) Unless the former client consents, members of the new firm receive independent legal advice;
shall not discuss the new firm’s representation of its current client or
iii. in the case of a corporation, syndicate or
the former firm’s representation of the former client in that matter
partnership borrowing money from a client of the
with a transferring paralegal described in subrules (2) or (4) except
paralegal where either or both the paralegal and
as permitted by Rule 3.03.
the paralegal’s spouse has a direct or indirect
(5) Anyone who has an interest in, or who represents a party in, substantial interest in the corporation, syndicate or
a matter referred to in this rule may apply to a tribunal of competent partnership, the paralegal shall require that the
jurisdiction for a determination of any aspect of this rule. client receive independent legal representation;
Paralegal Due Diligence for Non-Licensee Staff iv. in all other cases, the paralegal shall recommend
that the client receive independent legal advice and,
(6) A transferring paralegal and the members of the new firm
where the circumstances reasonably require,
shall exercise due diligence in ensuring that each member and
recommend or require that the client receive
employee of the paralegal’s firm, and all other persons whose servi-
independent legal representation; and
ces the paralegal or the firm has retained
c. the paralegal shall obtain the client’s consent to the
(a) comply with Rule 3.03; and
transaction
(b) do not disclose confidential information of
(i) after the client receives the disclosure, legal advice
(i) clients of the firm; or or representation required under subrule (4), or
(ii) any other paralegal firm in which the person has (ii) where a recommendation required under subrule (4)
worked. is made and not accepted, before proceeding with
[Amended—September 2015] the transaction.


(5) Despite subrule (4), a paralegal need not recommend 3.07 CLIENT PROPERTY
independent legal advice or independent legal representation if the
paralegal is borrowing money from a client who is a regulated Preservation of Client’s Property
lender. 3.07 (1) A paralegal shall care for a client’s property as a careful
and prudent owner would when dealing with like property and shall
No Advertising observe all relevant rules and law about the preservation of prop-
(6) A paralegal shall not promote, by advertising or otherwise, erty entrusted to a fiduciary.
individual or joint investment by clients or other persons who have
money to lend, in any mortgage in which a financial interest is held Notification of Receipt of Property
by the paralegal, a related person, or a corporation, syndicate, (2) A paralegal shall promptly notify the client of the receipt of
partnership, trust or other entity in which the paralegal or related any money or other property of the client, unless satisfied that the
person has a financial interest, other than an ownership interest of client is aware they have come into the paralegal’s custody.
a corporation or other entity offering its securities to the public of
less than five per cent (5%) of any class of securities. Identification of Property
(3) A paralegal shall clearly label and identify the client’s property
Guarantees by a Paralegal and place it in safekeeping, distinguishable from the paralegal’s
(7) Except as provided by subrule (8), a paralegal shall not guar- own property.
antee personally, or otherwise provide security for, any indebted- (4) A paralegal shall maintain such records as necessary to iden-
ness in respect of which a client is a borrower or lender. tify a client’s property that is in the paralegal’s custody.
(8) A paralegal may give a personal guarantee in the following
circumstances: Accounting and Delivery
a. the lender is a regulated lender, and the lender is directly (5) A paralegal shall account promptly for a client’s property that
or indirectly providing funds solely for the paralegal, or is in the paralegal’s custody and upon request, shall deliver it to the
the paralegal’s spouse, parent or child; order of the client or, if appropriate, at the conclusion of the
retainer.
b. the transaction is for the benefit of a non-profit or
charitable institution, and the paralegal provides a (6) If a paralegal is unsure of the proper person to receive a
guarantee as a member or supporter of such institution, client’s property, the paralegal shall apply to a tribunal of competent
either individually or together with other members or jurisdiction for direction.
supporters of the institution; or [Amended—October 2014]
c. the paralegal has entered into a business venture with a
client and a lender requires personal guarantees from all 3.08 WITHDRAWAL FROM REPRESENTATION
participants in the venture as a matter of course and
Withdrawal from Representation
i. the paralegal has complied with subrules (1) to (7) and
3.08 (1) A paralegal shall not withdraw from representation of
ii. the lender and participants in the venture who are a client except for good cause and on reasonable notice to the
clients or former clients of the paralegal have client.
independent legal representation.
Optional Withdrawal
Payment for Legal Services
(2) Subject to subrules (7), (8) and (9) and the direction of the
(9) When a client intends to pay for legal services by transferring tribunal, a paralegal may withdraw if there has been a serious loss
to a paralegal a share, participation or other interest in property or of confidence between the paralegal and the client.
in an enterprise, other than a non-material interest in a publicly
(3) Without limiting subrule (2), a paralegal may withdraw if the
traded enterprise, the paralegal shall recommend but need not
client deceives the paralegal or refuses to accept and act upon the
require that the client receive independent legal advice before
paralegal’s advice on a significant point.
accepting a retainer.
(4) A paralegal shall not use the threat of withdrawal as a device
Judicial Interim Release to force a hasty decision by the client on a difficult question.
(10) Subject to subrule (11), a paralegal shall not in respect of any
Mandatory Withdrawal
accused person for whom the paralegal acts,
(5) Subject to subrules (7), (8) and (9) and the direction of the
a. act as a surety for the accused;
tribunal, a paralegal shall withdraw if,
b. deposit with a court the paralegal’s own money or that of
(a) discharged by the client;
any firm in which the paralegal is a partner to secure the
accused’s release; (b) the client’s instructions require the paralegal to act
contrary to the Rules, or By-Laws; or
c. deposit with any court other valuable security to secure
the accused’s release; or (c) the paralegal is not competent to continue to handle the
matter.
d. act in a supervisory capacity to the accused.
(11) A paralegal may do any of the things referred to in subrule Non-Payment of Fees
(10) if the accused is in a family relationship with the paralegal and (6) Subject to subrules (7), (8) and (9) and the direction of the
the accused is represented by the paralegal’s partner or associate. tribunal, unless serious prejudice to the client would result, a para-
[Amended—May 2016] legal may withdraw from a case if, after reasonable notice, the


client fails to provide a retainer or funds on account of disburse- (e) cooperate with the successor licensee so as to minimize
ments or fees. expense and avoid prejudice to the client; and
(f) comply with the applicable rules of court.
Withdrawal from Quasi-Criminal and Criminal Cases
(12) In addition to the obligations set out in subrule (11), upon
(7) A paralegal who has agreed to act in a quasi-criminal or crim- withdrawal, a paralegal shall notify the client in writing, stating:
inal case may withdraw because the client has not paid the agreed
fee or for other adequate cause if the interval between the with- (a) the fact that the paralegal has withdrawn;
drawal and the date set for the trial of the case is sufficient to enable (b) the reasons, if any, for the withdrawal; and
the client to obtain alternate representation and to allow such other (c) in the case of litigation, that the client should expect that
licensee adequate time for preparation and if the paralegal, the hearing or trial will proceed on the date scheduled
(a) advises the client, preferably in writing, that the paralegal and that the client should retain a new legal practitioner
is withdrawing and the reason for the withdrawal; promptly.
(b) accounts to the client for any monies received on account (13) If the paralegal who is discharged or withdraws is a member
of fees and disbursements; of a firm, the client shall be notified that the paralegal and the firm
are no longer acting for the client.
(c) notifies the prosecution in writing that the paralegal is no
longer acting; Leaving a Firm
(d) in a case where the paralegal’s name appears in the (13.1)(1) In this subrule
records of the court as acting for the accused, notifies the
clerk or registrar of the appropriate court in writing that (a) “affected client” means a client for whom the firm has a
the paralegal is no longer acting; and relevant matter;
(e) complies with the applicable rules of the tribunal or court. (b) “relevant matter” means a current matter for which the
paralegal who is leaving the firm has conduct or
(8) A paralegal who has agreed to act in a quasi-criminal or
substantial responsibility;
criminal case may not withdraw because of non-payment of fees if
the date set for the trial of the case is not far enough removed to (c) “remaining paralegals” means the paralegals who have,
enable the client to obtain the services of another licensee or to or are intended by the firm to have, conduct of a relevant
enable the other licensee to prepare adequately for trial and if an matter and the paralegals in the firm who have direct and
adjournment of the trial date cannot be obtained without adversely indirect management responsibility in respect of the
affecting the client’s interests. paralegal who is leaving the firm.
(2) When a paralegal leaves a firm to provide legal services else-
(9) If,
where, the paralegal and the remaining paralegals shall:
(a) a paralegal is justified in withdrawing from a quasi-
(a) ensure that affected clients are given reasonable notice
criminal or criminal case for reasons other than non-
that the paralegal is departing and are advised of their
payment of fees; and
options for retaining other representation; and
(b) there is not a sufficient interval between a notice to the
(b) take reasonable steps to obtain the instructions of each
client of the paralegal’s intention to withdraw and the
affected client as to whom they will retain to act in
date when the case is to be tried to enable the client to
relevant matters.
obtain the services of another licensee and to enable the
new licensee to prepare adequately for trial, the paralegal, (3) The obligations in Rules (13.1)(2)(a) and (b) also apply to the
unless instructed otherwise by the client, shall attempt to departure of a lawyer from a firm to practice elsewhere.
have the trial date adjourned and may withdraw from the (13.2) Rule 3.08(13.1) does not apply to a paralegal leaving (a) a
case only with permission of the court before which the government, a Crown corporation or any other public body or (b) a
case is to be tried. corporation or other organization for which the paralegal is
employed in-house.
Manner of Withdrawal
[New—June 2017]
(10) When a paralegal withdraws, he or she shall try to minimize
expense and avoid prejudice to the client and shall do all that can Duties of Successor Paralegal
reasonably be done to facilitate the orderly transfer of the matter to
(14) Before agreeing to represent a client of a predecessor licen-
the successor licensee.
see, a successor paralegal shall be satisfied that the predecessor has
(11) Upon discharge or withdrawal, a paralegal shall, withdrawn or has been discharged by the client.
(a) deliver to the client or to the order of the client, all papers [Amended—October 2014]
and property to which the client is entitled (subject to the
paralegal’s right to a lien);
(b) subject to any applicable trust conditions, give the client Rule 4 Advocacy
all information that may be required in connection with 4.01 THE PARALEGAL AS ADVOCATE
the case or matter;
(c) account for all funds of the client then held or previously Duty to Clients, Tribunals and Others
dealt with, including the refunding of any monies not 4.01 (1) When acting as an advocate, the paralegal shall repre-
earned during the representation; sent the client resolutely and honourably within the limits of the law
(d) promptly render an account for outstanding fees and while, at the same time, treating the tribunal and other licensees
disbursements; with candour, fairness, courtesy and respect.


(2) This rule applies to appearances and proceedings before all (i) knowingly misstate the contents of a document, the
tribunals in which the paralegal may appear. testimony of a witness, the substance of an argument or
(3) This rule does not require a paralegal, except as otherwise the provisions of a statute or like authority;
provided in these Rules, to assist an adversary or advance matters (j) knowingly permit a witness or party to be presented in a
derogatory to the client’s case. false or misleading way or to impersonate another;
(4) Without restricting the generality of subrule (1), the paralegal (k) knowingly misrepresent the client’s position in the
shall, litigation or the issues to be determined in the litigation;
(a) raise fearlessly every issue, advance every argument, and (l) needlessly abuse, hector, harass or inconvenience a
ask every question, however distasteful, that the paralegal witness;
thinks will help the client’s case; (m) improperly dissuade a witness from giving evidence or
(b) endeavour, on the client’s behalf, to obtain the benefit of suggest that a witness be absent;
every remedy and defence authorized by law; (n) when representing a complainant or potential
(c) never waive or abandon a client’s legal rights, for complainant, attempt to gain a benefit for the
example, an available defence under a statute of complainant by threatening the laying of a criminal charge
limitations, without the client’s informed consent; and or by offering to seek or to procure the withdrawal of a
criminal charge;
(d) avoid and discourage the client from resorting to frivolous
and vexatious objections, or from attempts to gain (o) needlessly inconvenience a witness and
advantage from mistakes or oversights not going to the (p) appear before a court or tribunal while under the
merits, or from tactics designed to merely delay or harass influence of alcohol or a drug.
the other side. [Amended—October 2014]
Duty as Prosecutor
The Paralegal and the Tribunal Process
(5.1) When acting as a prosecutor, a paralegal shall act for the
(5) When acting as an advocate, the paralegal shall not,
public and the administration of justice resolutely and honourably
(a) abuse the process of the tribunal by instituting or within the limits of the law while treating the tribunal with candour,
prosecuting proceedings which, although legal in fairness, courtesy, and respect.
themselves, are clearly motivated by malice on the part of
[New—May 2010]
the client and are brought solely for the purpose of
injuring the other party; Incriminating Physical Evidence
(b) knowingly assist or permit the client to do anything that (5.2) A paralegal shall not counsel or participate in the conceal-
the paralegal considers to be dishonest or ment, destruction or alteration of incriminating physical evidence or
dishonourable; otherwise act so as to obstruct or attempt to obstruct the course of
(c) knowingly attempt to deceive a tribunal or influence the justice.
course of justice by offering false evidence, misstating [New—April 2016]
facts or law, presenting or relying upon a false or
deceptive affidavit, suppressing what ought to be Disclosure of Documents
disclosed, or otherwise assisting in any deception, crime (6) If the rules of a tribunal require the parties to produce docu-
or illegal conduct; ments, a paralegal, when acting as an advocate,
(d) deliberately refrain from informing the tribunal of any
(a) shall explain to his or her client the necessity of making
binding authority that the paralegal considers to be
full disclosure of all documents relating to any matter in
directly on point and that has not been mentioned by an
issue and the duty to answer to the best of his or her
opponent;
knowledge, information and belief, any proper question
(e) appear before a judicial officer when the paralegal, a relating to any issue in the action;
partner of the paralegal, a paralegal employed by the
(b) shall assist the client in fulfilling his or her obligation to
paralegal firm or the client has a business or personal
make full disclosure; and
relationship with the officer that gives rise to, or might
reasonably appear to give rise to, pressure, influence or (c) shall not make frivolous requests for the production of
inducement affecting the impartiality of the officer, documents or make frivolous demands for information.
unless all parties consent and it is in the interests Errors and Omissions
of justice;
(7) A paralegal who does, or fails to do, something which may
(f) knowingly assert as true, a fact when its truth cannot involve a breach of this rule, shall, subject to Rule 3.03 relating to
reasonably be supported by the evidence or as a matter confidentiality, disclose the error or omission and do all that can
of which notice may be taken by the tribunal; reasonably be done in the circumstances to rectify it.
(g) make suggestions to a witness recklessly or knowing
them to be false; Agreement on Guilty Pleas
(h) endeavour or allow anyone else to endeavour, directly or (8) Before a charge is laid or at any time after a charge is laid, a
indirectly, to influence the decision or action of the paralegal acting for an accused or potential accused may discuss
tribunal or any of its officials in any case or matter by any with the prosecutor the possible disposition of the case, unless the
means other than open persuasion as an advocate; client instructs otherwise.


(9) A paralegal, on behalf of his or her client, may enter into an communications during examination-in-chief of one’s
agreement with a prosecutor about a guilty plea, if, following own witness.
investigation, (h) During re-examination of a witness called by an opposing
(a) the paralegal advises the client about the prospects for an licensee, if the witness is sympathetic to the paralegal’s
acquittal or finding of guilt; cause, the paralegal ought not to discuss the evidence to
(b) the paralegal advises the client of the implications and be given by that witness during re-examination. The
possible consequences of a guilty plea and particularly of paralegal may, however, properly discuss the evidence
the sentencing authority and discretion of the court, with a witness who is adverse in interest.
including the fact that the court is not bound by any (2) With the consent of the opposing licensee or with leave of the
agreement about a guilty plea; tribunal, a paralegal may enter into discussions with a witness that
(c) the client is prepared voluntarily to admit the necessary might otherwise raise a question under this rule as to the propriety
factual and mental elements of the offence charged; and of the discussions.
(d) the client voluntarily instructs the paralegal to enter into (3) This rule applies, with necessary modifications, to examina-
an agreement as to a guilty plea. tions out of court.
4.02 INTERVIEWING WITNESSES 4.04 THE PARALEGAL AS WITNESS

Interviewing Witnesses The Paralegal as Witness
4.02 (1) Subject to the rules on communication with a repre- 4.04 (1) A paralegal who appears as advocate shall not testify or
sented party at Rule 7.02, a paralegal may seek information from submit his or her own affidavit evidence before the tribunal unless
any potential witness, whether under subpoena or not, but shall (a) permitted to do so by law, the tribunal, the rules of court
disclose the paralegal’s interest and take care not to subvert or or the rules of procedure of the tribunal, or
suppress any evidence or procure the witness to stay out of the way.
(b) the matter is purely formal or uncontroverted.
4.03 COMMUNICATION WITH WITNESSES GIVING
4.05 DEALING WITH UNREPRESENTED PERSONS
TESTIMONY
Communication with Witnesses Giving Testimony
4.05 When a paralegal deals on a client’s behalf with an unrepre-
4.03 (1) Subject to the direction of the tribunal, a paralegal shall sented person, the paralegal shall,
observe the following rules respecting communication with wit-
nesses giving evidence: (a) take care to see that the unrepresented person is not
proceeding under the impression that his or her interests
(a) During examination-in-chief, the examining paralegal may will be protected by the paralegal; and
discuss with the witness any matter that has not been
(b) make clear to the unrepresented person that the paralegal
covered in the examination up to that point.
is acting exclusively in the interests of the client and
(b) During examination-in-chief by another licensee of a accordingly his or her comments may be partisan.
witness who is unsympathetic to the paralegal’s cause,
the paralegal not conducting the examination-in-chief
may discuss the evidence with the witness.
(c) Between completion of examination-in-chief and
commencement of cross-examination of the paralegal’s
Rule 5 Fees and Retainers
own witness, the paralegal ought not to discuss the 5.01 FEES AND RETAINERS
evidence given in chief or relating to any matter
introduced or touched on during the Reasonable Fees and Disbursements
examination-in-chief. 5.01 (1) A paralegal shall not charge or accept any amount for a
(d) During cross-examination by an opposing licensee, the fee or disbursement unless it is fair and reasonable and has been
witness’s own representative ought not to have any disclosed in a timely fashion.
conversation with the witness about the witness’s (2) What is a fair and reasonable fee will depend upon such fac-
evidence or any issue in the proceeding. tors as,
(e) Between completion of cross-examination and (a) the time and effort required and spent;
commencement of a re-examination, a paralegal who is (b) the difficulty of the matter and importance of the matter
going to re-examine the witness ought not to have any to the client;
discussion about evidence that will be dealt with on
(c) whether special skill or service was required and provided;
re-examination.
(d) the amount involved or the value of the subject matter;
(f) During cross-examination by the representative of a witness
unsympathetic to the cross-examiner’s cause, the paralegal (e) the results obtained;
may discuss the witness’s evidence with the witness. (f) fees authorized by statute or regulation;
(g) During cross-examination by the representative of a (g) special circumstances, such as the loss of other retainers,
witness who is sympathetic to that licensee’s cause, any postponement of payment, uncertainty of reward, or
conversations ought to be restricted in the same way as urgency;


(h) the likelihood, if made known to the client, that (b) give any financial or other reward to any person who is
acceptance of the retainer will result in the paralegal’s not a paralegal or lawyer, including an affiliated entity for
inability to accept other employment; the referral of clients or client matters.
(i) any relevant agreement between the paralegal and the (13) Subrule (11) does not apply to multi-discipline practices of
client; paralegal and non-licensee partners where the partnership agree-
(j) the experience and ability of the paralegal; ment provides for the sharing of fees, cash flows or profits among
members of the firm.
(k) any estimate or range of fees given by the paralegal; and
(l) the client’s prior consent to the fee. [Amended—October 2014, April 2017]
(3) No fee, reward, costs, commission, interest, rebate, agency or Referral Fees
forwarding allowance, or other compensation related to his or her
(14) In this rule and Rule 5.01(15),
employment may be taken by the paralegal from anyone other than
the client, without full disclosure to, and the consent of, the client. “referral” includes recommending another paralegal or lawyer to do
legal work for anyone except where the work is done through the same
(4) In a statement of account delivered to the client, a paralegal
paralegal firm in which the referring paralegal primarily practices;
shall clearly and separately detail amounts charged as fees and as
disbursements. “referral agreement” means a signed written agreement between
the referring paralegal or lawyer, the paralegal or lawyer who
(5) A paralegal shall not appropriate any funds of the client held
receives the referral and the client, in the form provided by the Law
in trust, or otherwise under the paralegal’s control, for or on
Society from time to time, which includes:
account of fees, except as permitted by the By-Laws under the Law
Society Act. (a) confirmation that the client has been advised and understands
that the client has no obligation to accept the referral;
(6) If the amount of fees or disbursements charged by a paralegal
is reduced by a Court Order, the paralegal must repay the monies to (b) confirmation that the client has been provided with
the client as soon as is practicable. information about the Law Society’s requirements for
payment and receipt of referral fees and a reasonable
Contingency Fees opportunity to review and consider that information;
(7) Except in quasi-criminal or criminal matters, a paralegal may (c) confirmation that the referring paralegal or lawyer has
enter into a written agreement that provides that the paralegal’s fee recommended at least two paralegals or lawyers to the
is contingent, in whole or in part, on the successful disposition or client and, if not, disclosure of the reason that it has not
completion of the matter for which the paralegal’s services are to been reasonably possible to do so;
be provided. (d) a provision that the client is free to retain a paralegal or
(8) In determining the appropriate percentage or other basis of a lawyer other than the one who receives the referral;
contingency fee under subrule (7), the paralegal shall advise the (e) the reason(s) that the referring paralegal or lawyer has
client on the factors that are being taken into account in determin- recommended the specific referee to the client;
ing the percentage or other basis, including the likelihood of suc- (f) full and fair disclosure of the relationship between the
cess, the nature and complexity of the claim, the expense and risk referring paralegal or lawyer and the paralegal or lawyer
of pursuing it, the amount of the expected recovery, who is to who receives the referral;
receive an award of costs and the amount of costs awarded. (g) confirmation that no referral fee will be paid or payable
(9) The percentage or other basis of a contingency fee agreed unless and until the paralegal or lawyer who receives the
upon under subrule (7) shall be fair and reasonable, taking into referral is paid his or her fee for legal services for the
consideration all of the circumstances and the factors listed in sub- matter; and
rule (8). (h) full and fair disclosure of the referral fee including the
circumstances in which the referral fee is payable and the
Joint Retainers
basis upon which the amount of the referral fee is
(10) If a paralegal is acting for two or more clients in the same determined.
matter, the paralegal shall divide the fees and disbursements equit-
“referral fee” includes any financial or other reward for the referral
ably between them, unless there is an agreement by the clients
of a matter whether the referral fee is direct or indirect and whether
otherwise.
the referral fee is past, current or future. However, a referral fee
Division of Fees does not include a referral of other work by the licensee who
received the referral.
(11) With the client’s consent, fees for a matter may be divided
between paralegals or paralegals and lawyers who are not in the (15) A paralegal may accept and a paralegal may pay a fee for the
same firm, if the fees are divided in proportion to the work done referral of a matter provided that:
and the responsibilities assumed. (a) the referral fee is fair and reasonable and does not
[Amended—October 2014, April 2017] increase the total amount of the fee payable by the client;
(b) a referral agreement has been entered into at the time of
Fee Splitting the referral or as soon as practicable after the referral;
(12) A paralegal shall not, (c) the paralegal or lawyer who receives the referral has the
(a) directly or indirectly share, split, or divide his or her fees expertise and ability to handle the matter;
with any person who is not a paralegal or lawyer, (d) the referral was not made because the referring paralegal
including an affiliated entity; or or lawyer;


(i) has a conflict of interest; (2) A paralegal shall take care not to weaken or destroy public
(ii) was a paralegal or lawyer whose license was confidence in legal institutions or authorities by making irrespon-
suspended when the referral was made and who sible allegations or comments particularly when commenting on
was accordingly not permitted to act on the matter; judges or members of a tribunal.
(e) the amount of the referral fee shall not exceed fifteen Security of Court Facilities
percent (15%) of the fees paid to the paralegal or lawyer (3) Subject to Rule 3.03 relating to confidentiality, a paralegal
who received the referral for the first fifty thousand who has reasonable grounds for believing that a dangerous situa-
dollars ($50,000) of such fees for the matter and five tion is likely to develop at a court facility shall inform the persons
percent (5%) of any additional fees for the matter to a having responsibility for security at the facility and give particulars.
maximum referral fee of $25,000.
Public Appearances and Statements
(16) The paralegal who received the referral for which a referral fee
is payable shall note the referral fee on the account sent to the client (4) So long as there is no infringement of the paralegal’s obliga-
at the time the referral fee is paid or payable and obtain the client’s tion to the client, the paralegal profession, the courts, or the
acknowledgement of the referral fee, failing which acknowledge- administration of justice, a paralegal may communicate information
ment the paralegal shall confirm in writing to the client that the client to the media and may make public appearances and statements.
has been asked to so acknowledge but has declined to do so. (4.1) A paralegal shall not communicate information to the media
or make public statements about a matter before a tribunal if the
Civil Society Organization Clients paralegal knows or ought to know that the information or state-
(17) A paralegal providing legal services through a civil society ment will have a substantial likelihood of materially prejudicing a
organization shall not directly or indirectly charge a fee to the per- party’s right to a fair trial or hearing.
son for whose benefit the legal services are provided, but the [Amended—October 2014]
paralegal may charge disbursements in accordance with Rule 5.
Working With or Employing Unauthorized Persons
Transitional Requirements (5) A paralegal shall assist in preventing the unauthorized prac-
(18) The provisions of subrule 5.01(15) do not apply to the payment tice of law and the unauthorized provision of legal services.
of a referral fee pursuant to an enforceable agreement to pay and (6) Without the express approval of a panel of the Hearing Div-
receive referral fees that was entered into before or on April 27, 2017. ision of the Law Society Tribunal, a paralegal shall not retain, occupy
In these circumstances, a paralegal who refers a matter to another office space with, use the services of, partner or associate with, or
paralegal or lawyer because of the expertise and ability of the other employ in any capacity having to do with the provision of legal
licensee to handle the matter and where the referral was not made services any person who, in Ontario or elsewhere,
because of a conflict of interest, the referring paralegal may accept and (a) is disbarred and struck off the Rolls,
a paralegal who receives a referral may pay, a referral fee provided that
(b) is a person whose licence to practise law or to provide
(i) the fee is reasonable and does not increase the total legal services is revoked,
amount of the fee charged to the client; and (c) as a result of disciplinary action, has been permitted to
(ii) the client is informed and consents. resign his or her membership in the Law Society or to
(19) A paralegal who is entitled to receive referral fees pursuant to surrender his or her licence to practise law or to provide
an unwritten agreement that was entered into before or on April legal services, and has not had his or her licence restored,
27, 2017 shall confirm in writing the terms of that agreement as (d) is suspended,
soon as practicable to the other party to that agreement and shall (e) is a person whose licence to practise law or to provide
provide a copy of such confirmation to the client. legal services is suspended, or
(20) Where a referral was made before or on April 27, 2017 but (f) is subject to an undertaking not to practise law or to
there was no enforceable agreement for the payment of a referral provide legal services.
fee as of that date, the requirement that the agreement has been [Amended—February 2016]
entered into may be met by entering into a referral agreement at
any time prior to payment of the referral fee.
(7) A paralegal whose licence to provide legal services is suspended
(21) A paralegal shall not do indirectly what the paralegal is pro-
shall comply with the requirements of the by-laws and shall not
hibited from doing directly under
Rules 5.01(11), (14) and (15).
(b) represent or hold himself or herself out as a person
[Amended—October 2014, April 2017] entitled to provide legal services.
Rule 6 Duty to the [New—January 2008]
Administration of Justice Undertakings Not to Provide Legal Services

(8) A paralegal who gives an undertaking to the Law Society not
6.01 ENCOURAGING RESPECT FOR THE ADMINISTRATION
to provide legal services shall not,
OF JUSTICE
General Duty (b) represent or hold himself or herself out as a person
6.01 (1) A paralegal shall encourage public respect for, and try entitled to provide legal services.
to improve, the administration of justice. [New—January 2008]


Undertakings to Provide Legal Services Subject to the matter, unless the paralegal receives written notice of the lim-
Restrictions ited nature of the legal services being provided by the legal practi-
tioner and the approach, communication or dealing falls within the
(9) A paralegal who gives an undertaking to the Law Society to
scope of the limited scope retainer.
restrict his or her provision of legal services shall comply with the
undertaking. (3) A paralegal who is not otherwise interested in a matter may
give a second opinion to a person who is represented by a legal
[New—January 2008]
practitioner with respect to that matter.
(4) A paralegal retained to act on a matter involving a corpora-
Rule 7 Duty to Licensees and Others tion or organization that is represented by a legal practitioner in
respect of that matter shall not, without the legal practitioner’s
7.01 COURTESY AND GOOD FAITH consent or unless otherwise authorized or required by law, com-
municate, facilitate communication with or deal with a person
Courtesy and Good Faith
(a) who is a director or officer, or another person who is
(1) A paralegal shall avoid sharp practice and shall not take
authorized to act on behalf of the corporation or
advantage of or act without fair warning on slips, irregularities or
organization,
mistakes on the part of other licensees not going to the merits or
involving the sacrifice of a client’s rights. (b) who is likely involved in decision-making for the
corporation or organization or who provides advice in
(2) A paralegal shall agree to reasonable requests concerning trial relation to the particular matter,
dates, adjournments, waiver of procedural formalities and similar
(c) whose act or omission may be binding on or imputed to
matters that do not prejudice the rights of the client.
the corporation or organization for the purposes of its
(3) A paralegal shall not, in the course of providing legal services, liability, or
communicate, in writing or otherwise, with a client, another licen-
(d) who supervises, directs or regularly consults with the legal
see, or any other person in a manner that is abusive, offensive, or
practitioner and who makes decisions based on the legal
otherwise inconsistent with the proper tone of a professional com-
practitioner’s advice.
munication from a paralegal.
(5) If a person described in subrule (4) (a), (b), (c) or (d) is repre-
(4) A paralegal shall not engage in ill-considered or uninformed sented in the matter by a legal practitioner, the consent of the legal
criticism of the competence, conduct, advice or charges of other practitioner is sufficient to allow a paralegal to communicate,
licensees, but should be prepared, when requested, to represent a facilitate communication with or deal with the person.
client in a complaint involving another licensee.
(6) In subrule (4), “organization” includes a partnership, limited
(5) A paralegal shall answer with reasonable promptness, all partnership, association, union, fund, trust, co-operative, unincor-
professional letters and communications from other licensees that porated association, sole proprietorship and a government depart-
require an answer, and a paralegal shall be punctual in fulfilling all ment, agency, or regulatory body.
commitments.
(7) This rule applies to communications with any person, whether
(6) A paralegal shall not use any device to record a conversation or not a party to a formal adjudicative proceeding, contract, or
between the paralegal and a client or another licensee, even if negotiation, who is represented by a licensee concerning the matter
lawful, without first informing the other person of the intention to to which the communication relates.
do so.
(8) The prohibition on communications with a represented per-
(7) A paralegal who receives a document relating to the rep- son applies if the paralegal has direct knowledge of the representa-
resentation of the paralegal’s client and knows or reasonably should tion or if he or she should be able to infer the representation from
know that the document was inadvertently sent shall promptly the circumstances.
notify the sender.
[New—October 2012]
7.02 COMMUNICATION WITH A REPRESENTED PERSON, Rule 8 Practice Management

CORPORATION OR ORGANIZATION 8.01 GENERAL OBLIGATIONS
Communication with a Represented Person, Professional Responsibility
Corporation or Organization 8.01 (1) A paralegal shall, in accordance with the by-laws,
(1) Subject to subrules (2) and (3), if a person is represented by a assume complete professional responsibility for all business
legal practitioner in respect of a matter, a paralegal shall not, except entrusted to him or her.
through or with the consent of the legal practitioner,
(a) approach or communicate or deal with the person on the
matter; or Financial Responsibility
(b) attempt to negotiate or compromise the matter directly (2) A paralegal shall promptly meet financial obligations incurred
with the person. in the course of practice on behalf of clients unless, before incurring
(2) Subject to subrule (3), if a person is receiving legal services such an obligation, the paralegal clearly indicates in writing to the
from a legal practitioner under a limited scope retainer on a particu- person to whom it is to be owed that it is not to be a personal
lar matter, a paralegal may, without the consent of the legal practi- obligation of the paralegal.
tioner, approach, communicate or deal directly with the person on [Amended—January 2009]


Supervisory Responsibility (a) the advertising is reasonably precise as to the services
(3) A paralegal shall, in accordance with the by-laws, directly offered for each fee quoted;
supervise staff and assistants to whom particular tasks and func- (b) the advertising states whether other amounts, such as
tions are delegated. disbursements and taxes will be charged in addition to
the fee; and
(c) the paralegal strictly adheres to the advertised fee in
Delegation every applicable case.
(4) A paralegal shall not permit a non-licensee, [Amended—November 2008]
(a) to provide legal services; Identification of the Type of Licence
(b) to be held out as a licensee; or
(4) A paralegal marketing legal services shall specifically identify
(c) to perform any of the duties that only paralegals may in all marketing materials that he or she is licensed as a paralegal.
perform or do things that paralegals themselves may not
do. Second Opinion Services
(5) A paralegal in a multi-discipline practice shall ensure that (5) The marketing of second opinion services is prohibited.
non-licensee partners and associates comply with these rules and all [New—February 2017]
ethical principles that govern a paralegal in the discharge of his or
her professional obligations. 8.04 COMPULSORY ERRORS AND OMISSIONS INSURANCE
[New—October 2008]
Duty to Obtain and Maintain Insurance
8.02 MAKING LEGAL SERVICES AVAILABLE 8.04 (1) All paralegals practising in Ontario shall obtain and
maintain adequate errors and omissions insurance as required by
Making Legal Services Available the Law Society.
8.02 (1) A paralegal shall make legal services available to the (2) A paralegal shall give prompt notice of any circumstance that
public in an efficient and convenient way. may give rise to a claim to an insurer or other indemnitor so that the
Restrictions client’s protection from that source will not be prejudiced.
(2) In offering legal services, a paralegal shall not use means that [Amended—May 2016]
(a) are false or misleading; (3) When a claim of professional negligence is made against a
paralegal, he or she shall assist and cooperate with the insurer or
(b) amount to coercion, duress or harassment;
other indemnitor to the extent necessary to enable the claim to be
(c) take advantage of a person who is vulnerable or who has dealt with promptly.
suffered a traumatic experience and has not yet had a
(4) In cases where liability is clear and the insurer or other indem-
chance to recover;
nitor is prepared to pay its portion of the claim, the paralegal shall
(d) are intended to influence a person who has retained another pay the balance.
paralegal or a lawyer for a particular matter to change his or
her representative for that matter, unless the change is [Amended—January 2010]
initiated by the person or the other representative; or
(e) otherwise bring the paralegal profession or the
administration of justice into disrepute. Rule 9 Responsibility to the Law Society
(3) A paralegal shall not advertise services that are beyond the
9.01 RESPONSIBILITY TO THE LAW SOCIETY
permissible scope of practice of a paralegal.
[Amended—February 2017] Communications from the Law Society
9.01 (1) A paralegal shall reply promptly and completely to any
8.03 MARKETING OF LEGAL SERVICES communication from the Law Society and shall provide a complete
response to any request from the Law Society.
Marketing of Legal Services
(1) In this rule, “marketing” includes advertisements and other Duty to Report
similar communications in various media as well as firm names (2) A paralegal shall report to the Law Society, unless to do so
(including trade names), letterhead, business cards and logos. would be unlawful or would involve a breach of confidentiality
(2) A paralegal may market legal services only if the marketing between the paralegal and his or her client,
(a) is demonstrably true, accurate and verifiable; (a) the misappropriation or misapplication of trust monies by
a licensee;
(b) is neither misleading, confusing, or deceptive, nor likely to
mislead, confuse or deceive; and (b) the abandonment of a law practice by a lawyer or a legal
services practice by a paralegal;
(c) is in the best interests of the public and is consistent with
a high standard of professionalism. (c) participation in serious criminal activity related to a
licensee’s practice;
Advertising of Fees (d) conduct that raises a substantial question as to another
(3) A paralegal may advertise fees charged by the paralegal for licensee’s honesty, trustworthiness or competency as a
legal services if paralegal;


(e) conduct that raises a substantial question about a Definitions
licensee’s capacity to provide professional services; and (13) In subrules (11) and (12),
(f) any other situation where a licensee’s clients are likely to
“conduct unbecoming a paralegal” means conduct in a paralegal’s
be severely prejudiced.
personal or private capacity that tends to bring discredit upon the
[Amended—May 2016] paralegal profession including,
(3) Nothing in subrule (2) is meant to interfere with the para- (a) committing a criminal act that reflects adversely on the
legal’s duty to the client. paralegal’s honesty, trustworthiness, or fitness as a
(4) A report under subrule (2) must be made in good faith and paralegal,
without malice or ulterior motive. (b) taking improper advantage of the youth, inexperience,
(5) A paralegal shall encourage a client who has a claim or com- lack of education, unsophistication, ill health, vulnerability
plaint against an apparently dishonest licensee to report the facts to or unbusinesslike habits of another, or
the Law Society as soon as reasonably practicable. (c) engaging in conduct involving dishonesty;
(6) If the client refuses to report a claim against an apparently “professional misconduct” means conduct in a paralegal’s profes-
dishonest licensee to the Law Society, the paralegal shall obtain sional capacity that tends to bring discredit upon the paralegal
instructions in writing to proceed with the client’s private remedies profession, including,
without notice to the Law Society. (a) violating or attempting to violate one of the Paralegal
(7) A paralegal shall inform the client of the provision of the Criminal Rules of Conduct, or a requirement of the Law Society Act
Code dealing with the concealment of an indictable offence in return or its regulations or by-laws,
for an agreement to obtain valuable consideration (section 141). (b) knowingly assisting or inducing another licensee to violate
(8) If the client wishes to pursue a private agreement with the appar- or attempt to violate the Paralegal Rules of Conduct, a
ently dishonest licensee, the paralegal shall not continue to act if the requirement of the Law Society Act or its regulations or
agreement constitutes a breach of section 141 of the Criminal Code. by-laws,
(c) knowingly assisting or inducing a non-licensee partner or
Duty to Report Certain Offences associate of a multi-discipline practice to violate or
(9) If a paralegal is charged with an offence described in By-Law attempt to violate the rules in the Paralegal Rules of
8 of the Law Society, he or she shall inform the Law Society of the Conduct or a requirement of the Law Society Act or its
charge and of its disposition in accordance with the By-Law. regulations or by-laws,
Disciplinary Authority
(d) misappropriating or otherwise dealing dishonestly with a
(10) A paralegal is subject to the disciplinary authority of the Law
client’s or a third party’s money or property,
Society regardless of where the paralegal’s conduct occurs.
(e) engaging in conduct that is prejudicial to the
Professional Misconduct administration of justice,
(11) The Law Society may discipline a paralegal for professional (f) stating or implying an ability to influence improperly a
misconduct. government agency or official, or
(g) knowingly assisting a judge or judicial officer in conduct
Conduct Unbecoming a Paralegal
that is a violation of applicable rules of judicial conduct or
(12) The Law Society may discipline a paralegal for conduct other law.
unbecoming a paralegal.


APPENDIX
Paralegal Professional
Conduct Guidelines B
Adopted by Convocation October 2008
Amendments based on the Federation of Law Societies Model Code of Professional Conduct effective October 1, 2014
Amendments current to May 24, 2018
Introduction to the Paralegal Professional Terminology

4. For the purposes of these Guidelines, the word
Conduct Guidelines • “Act” refers to the Law Society Act,
Purpose • “Guidelines” refers to the Paralegal Professional
1. Under the Law Society Act (“Act”), the Law Society has Conduct Guidelines,
the right to make rules and regulations to govern the • “Rules” refers to the Paralegal Rules of Conduct,
professional conduct of lawyers and paralegals. The Act
• “paralegal” refers to paralegals licensed to provide legal
also gives the Society the ability to discipline those
services by the Law Society of Ontario, and
lawyers or paralegals who do not adhere to the rules.
Regulations include the By-Laws under the Act and the • “lawyer” refers to lawyers licensed to practise law by
Paralegal Rules of Conduct (“Rules”), which were adopted the Law Society of Ontario.
to govern the professional conduct of licensed paralegals. 5. The following may be of assistance in interpreting the
2. The Paralegal Professional Conduct Guidelines Guidelines:
(“Guidelines”) have been created to assist paralegals with • The terms “shall” or “must” are used in those instances
the interpretation and application of the Paralegal Rules of where compliance is mandated by either the by-laws
Conduct. The Guidelines should be considered along with made pursuant to the Act or the Rules.
the Rules, the Act, the By-Laws made under the Act and • The term “should” and the phrase “should consider”
any other relevant case law or legislation. Neither the Rules indicate a recommendation. These terms refer to those
nor the Guidelines can cover every situation; they should practices or policies that are considered by the Law
be interpreted and applied with common sense and in a Society to be a reasonable goal for maintaining or
manner consistent with the public interest and the integrity enhancing professional conduct.
of the profession. It is expected that a paralegal will • The term “may” and the phrase “may consider” convey
exercise his or her professional judgment in interpreting the discretion. After considering suggested policies or
Guidelines, keeping in mind the paralegal’s obligations to procedures preceded by “may” or “may consider,” a
the client, the court or tribunal and the Law Society. paralegal has discretion whether or not to follow the
Accessing the Guidelines suggestions, depending upon the paralegal’s particular
circumstances, areas of professional business or
3. The Guidelines are available in electronic form. They are clientele, or the circumstances of a particular client or
cross-referenced to the Rules and are linked directly to the matter.
Rules on the Law Society’s website.
Note: Please check the LSO website for the most current version of the Guidelines. Available online at https://lso.ca/about-
lso/legislation-rules/paralegal-professional-conduct-guidelines. © The Law Society of Ontario, 2008–2019. All rights reserved.
Reprinted with permission of The Law Society of Ontario.
297

Guideline 1: Professionalism—Integrity & relationship has been established. A paralegal should not
carry on, manage or be involved in any outside interest in
Civility such a way that makes it difficult to distinguish in which
General capacity the paralegal is acting, or that would give rise to
a conflict of interest or duty to a client.
Rule Reference: Rule 2.01(1) & (2) 3. It is the paralegal’s responsibility to consider whether the
1. A paralegal should inspire the respect, confidence and outside interest may impair his or her ability to act in the
trust of clients and the community. best interest of his or her client(s). If so, the paralegal
2. Public confidence in the administration of justice and in must withdraw, either from representation of the client or
the paralegal profession may be eroded by a paralegal’s from the outside interest.
unprofessional conduct. A paralegal’s conduct should 4. When acting in another role, the paralegal must continue
reflect favourably on the legal professions, inspire the to fulfill his or her obligations under the Rules, for
confidence, respect and trust of clients and of the example, to
community, and avoid even the appearance • act with integrity,
of impropriety. • be civil and courteous,
3. A paralegal has special responsibilities by virtue of the • be competent in providing legal services,
privileges afforded the paralegal profession and the
• avoid conflicts of interest, and
important role it plays in a free and democratic society
and in the administration of justice. This includes a special • maintain confidentiality.
responsibility to recognize the diversity of the Ontario
Acting as a Mediator
community, to protect the dignity of individuals and to
respect human rights laws in force in Ontario. Rule Reference: Rule 2.01(6)
Integrity and Civility 5. A mediator works with disputing parties to help them
resolve their dispute. A paralegal acting as a mediator is
Rule Reference: Rule 2.01(1) & (2) not providing legal services to either party—the
4. Acting with integrity means that a paralegal will be relationship is not a paralegal –client relationship. This
honest and will act with high ethical and moral principles. does not preclude the mediator from giving information
Integrity is the fundamental quality of any person who on the consequences if the mediation fails.
seeks to provide legal services. If integrity is lacking, the 6. When acting as a mediator, the paralegal should guard
paralegal’s usefulness to the client and reputation within against potential conflicts of interest. For example, neither
the profession will be destroyed regardless of how the paralegal nor the paralegal’s partners or associates
competent the paralegal may be. should provide legal services to the parties. Further, a
5. Acting with civility means that a paralegal will paralegal-mediator should suggest and encourage the
communicate politely and respectfully and act in a parties to seek the advice of a qualified paralegal or a
manner that does not cause unnecessary difficulty or lawyer before and during the mediation process if they
harm to another. have not already done so. Refer to Guideline 9: Conflicts
of Interest for more information on how a paralegal’s
6. The obligation to show courtesy and good faith extends
outside interests may conflict with the paralegal’s duty to
to clients, opposing parties, other paralegals and lawyers,
his or her clients.
support staff, adjudicators, court and tribunal officers and
staff and representatives of the Law Society. This
obligation applies regardless of where the paralegal may Guideline 3: Undertakings and
be appearing or at what stage of the process the matter
may be. Trust Conditions
General
Guideline 2: Outside Interests Rule Reference: Rule 2.02

1. Money and property change hands in most legal
General
transactions. A paralegal may be required to hold
Rule Reference: Rule 2.01(4) & (5) documents and property in trust until the performance of
particular conditions. These conditions are called trust
1. The term “outside interest” covers the widest range of
conditions. Promises to carry out specific tasks and/or
activities. It includes activities that may overlap or be
fulfill specific conditions are called undertakings. Rule
connected with provision of legal services, for example,
2.02 sets out a paralegal’s obligations in relation to
acting as a director of a corporation or writing on legal
undertakings and trust conditions.
subjects, as well as activities less connected such as, for
example, a career in business, politics, broadcasting or Undertakings
the performing arts.
2. When participating in community activities, a paralegal Rule Reference: Rule 2.02(1), (2) & (3)
should be mindful of the possible perception that the 2. An undertaking is a personal promise. A paralegal could,
paralegal is providing legal services and a paralegal–client for example, give an undertaking to complete a task or
298 APPENDIX B Paralegal Professional Conduct Guidelines


provide a document. Fulfilling that promise is the
responsibility of the paralegal giving the undertaking.
Guideline 4: Harassment
3. The person who accepts the paralegal’s undertaking is and Discrimination
entitled to expect the paralegal to carry it out The Human Rights Code
personally. Using the phrase “on behalf of my client,”
even in the undertaking itself, may not release the Rule Reference: Rule 2.03
paralegal from the obligation to honour the 1. A paralegal’s obligations regarding harassment and
undertaking. If a paralegal does not intend to take discrimination are outlined in the Rules, the Human Rights
personal responsibility, this should be clearly outlined in Code and related case law.
the written undertaking. In those circumstances, it may 2. The Human Rights Code gives everyone equal rights and
only be possible for the paralegal to personally opportunities without discrimination relating to matters such as
undertake to make “best efforts.” employment, housing and services. The purpose of the Code is
4. A court or a tribunal may enforce an undertaking. The to prevent discrimination or harassment on the grounds of
paralegal may be brought before a court or tribunal to • race or colour,
explain why the undertaking was not fulfilled. The court
• citizenship, ancestry, place of origin or ethnic origin,
or tribunal may order the paralegal to take steps to fulfill
the undertaking and/or pay damages caused by the • creed,
failure to fulfill the undertaking. • sex (including pregnancy),
5. To avoid misunderstandings and miscommunication, a • sexual orientation,
paralegal should remember the following points about • age (means an age that is 18 or more),
undertakings. A paralegal • record of offences (in the context of employment only),
• should ensure that the wording of the undertaking is • marital or family status,
clear. If a paralegal is the recipient of an undertaking
• disability,
given by another paralegal or a lawyer, the paralegal
should ensure that the wording is clear and consistent • gender identity or gender expression or
with his or her understanding of the undertaking. The • the receipt of public assistance (in the context of
paralegal should contact the other paralegal or lawyer housing only).
to clarify the issue as soon as possible if this is not the 3. More information about obligations under the Human Rights
case. Code may be found at http://www.ohrc.on.ca/.
• should consider specifying a deadline for fulfilling the
undertaking.
Discrimination
• should ensure that the undertaking provides for Rule Reference: Rule 2.03(4) & (5)
contingencies (e.g. if the obligations in the undertaking 4. Discrimination means treating another person in the
rely on certain events occurring, the paralegal should context, for example, of employment, services or housing,
indicate what will happen if these events do not occur). differently and less than others, because of any of the
• should confirm whether or not the individual providing Code’s prohibited grounds.
the undertaking is a paralegal or a lawyer. 5. A paralegal should review and become familiar with
human rights laws to ensure that the paralegal is meeting
Trust Conditions
his or her legal and ethical obligations to others.
Rule Reference: Rule 2.02(4)
Harassment
6. Once a trust condition is accepted, it is binding upon a
paralegal, whether imposed by another legal practitioner Rule Reference: Rule 2.03(3)
or by a lay person. 6. Harassment is a form of discrimination. Harassment means
7. Trust conditions should be clear, unambiguous and vexatious comments or actions that are unwelcome to the
explicit and should state the time within which the person receiving the comments or actions, or comments or
conditions must be met. Trust conditions should be actions that ought reasonably be known to be unwelcome.
imposed and accepted in writing. Trust conditions may be Generally speaking, harassment is a “course of conduct” or
varied with the consent of the person imposing them, and a pattern of behaviour where more than one incident has
the variation should be confirmed in writing, occurred. Even one incident, however, may constitute
8. A paralegal should not impose or accept trust conditions harassment if the incident is serious in nature.
that are unreasonable, nor accept trust conditions that 7. Sexual harassment means an incident or series of
cannot be fulfilled personally. When a paralegal accepts incidents involving unwelcome sexual advances, requests
property subject to trust conditions, the paralegal must for sexual favours or other verbal or physical conduct of a
fully comply with such conditions, even if the conditions sexual nature when one or more of the following
subsequently appear unreasonable. circumstances are present:
9. A paralegal may seek to impose trust conditions upon a • such conduct might reasonably be expected to cause
non-licensee, but great caution should be exercised in so insecurity, discomfort, offence or humiliation to the
doing since such conditions would be enforceable only recipient(s) of the conduct,
through the courts as a matter of contract law.
APPENDIX B Paralegal Professional Conduct Guidelines 299


• submission to such conduct is made implicitly or explicitly 11. Employers must also develop a program to implement the
a condition for the provision of professional services, workplace harassment policy, which must include
• submission to such conduct is made implicitly or measures and procedures for workers to report incidents
explicitly a condition of employment, of workplace harassment to the employer or their
supervisor, or to another person if the employer or
• submission to or rejection of such conduct affects the
supervisor is the alleged harasser. The program must also
paralegal’s employment decisions regarding his or her
set out:
employee (which may include assigning file work to the
employee, matters of promotion, raise in salary, job a. how incidents or complaints of workplace harassment will
security, and employee benefits, among other things), or be investigated and dealt with;
• such conduct has the purpose or the effect of b. how information obtained about an incident or
interfering with work performance or creating an complaint, including identifying information about any
intimidating, hostile, or offensive work environment. individuals involved, will not be disclosed unless necessary
for the investigation or for taking corrective action with
8. Examples of behaviour considered as harassment include,
respect to the incident or complaint, or is otherwise
but are not limited to
required by law; and
• sexist jokes causing embarrassment or offence,
c. how a worker who has allegedly experienced workplace
• the display of offensive material, such as racial graffiti, harassment and the alleged harasser will be informed of
• the use of sexually degrading words to describe a person, the results of the investigation or the results of the
• the use of derogatory or degrading remarks directed at investigation and of any corrective action taken as a result
one’s sex or one’s sexual orientation, of the investigation.
• the use of sexually suggestive or obscene comments or 12. The OHSA also provides than an inspector may order, at
gestures, the employer’s expense, a third party investigation into
• unwelcome comments or inquiries about one’s sex life, allegations of workplace harassment.
• repeated racial slurs directed at the language or accent Promoting Equity and Diversity
of a particular group,
13. The Law Society’s Equity Initiatives department
• unwelcome sexual flirtations, advances or propositions, has developed a series of best practices and model
• leering, policies to guide paralegals and lawyers in promoting
• persistent unwanted contact or attention after the end equity and diversity in all areas of their professional
of a consensual relationship, business. All paralegals should consider adopting
• requests for sexual favours, model policies to assist them in meeting their
legal and professional conduct responsibilities.
• unwanted touching,
Model policies cover practices relating to
• verbal abuse or threats, or employment and the provision of services to
• sexual assault. clients and include
Employment Practices • preventing and responding to workplace harassment
and discrimination,
Rule Reference: Rule 2.03(7) • promoting equity in the workplace,
9. Paralegals who employ one or more workers or who • parental and pregnancy leaves and benefits,
contract for the services of one or more workers are also • accommodation in the workplace, flexible work
required to comply with workplace violence and arrangements, and
harassment provisions in the Occupational Health and
• issues relating to creed and religious beliefs, to gender
Safety Act (“OHSA”). Under the OHSA, employers must
and sexual orientation, and to individuals with
prepare written workplace violence and workplace
disabilities.
harassment policies and must review those policies as
often as necessary, but at least annually. Paralegals who 14. Equity Initiatives has also developed a professional
employ six or more workers must post their written development program to design and deliver education
policies at a conspicuous place in the workplace. and training to legal service providers regarding these
equity and diversity issues. A paralegal may contact the
10. The OHSA requires that employers assess the risks of
Law Society to discuss available training sessions, which
workplace violence that may arise from the nature of the
may be offered as seminars, workshops or informal
workplace, the type of work or the conditions of work,
meetings. Full information regarding these initiatives is
and then develop and maintain a program to implement
available on the Equity section of the Law Society
their workplace violence policy. That program must set
website.
out how the employer will investigate and deal with
incidents or complaints or workplace violence, and must Discrimination and Harassment Counsel
include measures and procedures to control any risks 15. The Law Society provides the services of Discrimination
identified in the assessment, for summoning immediate and Harassment Counsel to anyone who may have
assistance when workplace violence occurs or is likely to experienced discrimination by a paralegal or a lawyer, or
occur, and for workers to report incidents of workplace within a paralegal or lawyer’s professional business. This
violence to the employer or supervisor. service is funded by the Law Society but is completely


independent of the Law Society. The service is free to the Authorized Representatives
Ontario public, including paralegals and lawyers, and is
strictly confidential. Rule Reference: Rule 3.02(13) & (14)
16. The Discrimination and Harassment Counsel can provide Rule Reference: Rule 3.04(6)–(12)
advice and support and will review options with the
5. Identifying who is the client and whose instructions should
individual using the service, which may include
be followed can be difficult where a client representative is
• filing a complaint with the Law Society, involved. The paralegal should consider, determine and
• filing a complaint with the Ontario Human Rights clearly outline these matters at the start of the relationship. If
Commission, and a paralegal is acting for both the individual and the
• allowing the Discrimination and Harassment Counsel to individual’s authorized representative, the paralegal must
mediate a resolution if all parties agree. comply with the rules regarding joint retainers.
17. More information is available at www.dhcounsel.on.ca/.
Acting for an Organization
Rule Reference: Rule 3.04(6)–(12)
Guideline 5: Clients 6. When acting for a client that is an organization, it is in the
General paralegal’s interests to clarify which officers, employees or
agents of the organization may properly give instructions
Rule Reference: Rule 1.02, Rule 3 on the organization’s behalf. The paralegal should confirm
1. One of the most important duties of a paralegal with those individuals that the paralegal acts for the
is the duty of service to his or her client. This duty organization and not for the individuals who act as its
includes obligations to be competent, maintain instructing agents.
confidentiality, avoid conflicts of interest and 7. If a paralegal is retained by both the organization and one
continue to represent the client unless the paralegal or more of its officers, employees, or agents in the same
has good reason for withdrawing. As a result, it is matter, the paralegal must comply with Rule 3.04(6) –(12)
important for the paralegal to know exactly who is a regarding joint retainers.
client because it is to the client that most of the duties
outlined in the Rules are owed. Client is defined in “Phantom” Clients
Rule 1.02. 8. An individual may believe that he or she is represented by a
2. The courts have made a distinction between a solicitor– paralegal, though he or she has not formally retained or
client relationship and a solicitor–client retainer. hired the paralegal. In these cases, the paralegal may be
This jurisprudence may be used by the courts to unaware that the individual considers himself or herself the
define the paralegal–client relationship and paralegal– paralegal’s client. These types of individuals are sometimes
client retainer in future. The relationship is established referred to as “phantom” clients.
when the prospective client has his or her first 9. Phantom clients are problematic because they may in fact
consultation with the lawyer or law firm about retaining be clients or prospective clients to whom the paralegal
services. The relationship may be established without owes duties, yet they are phantoms that the paralegal
formality. The retainer is established once the lawyer does not see. This situation may arise when something
agrees (expressly or implied by the lawyer’s conduct) the paralegal has done or a conversation the paralegal
to provide legal services. The solicitor–client has had, has led a person to believe that the paralegal
relationship, with all of its important duties, for represents that person. One of the common ways in
example confidentiality, continues after the retainer is which phantom clients are created is through a person
established. who consults with the paralegal on a matter but does not
3. In most cases, it is clear who is the client. However, there clearly indicate whether he or she wants to hire the
may be situations where it is difficult to determine who is paralegal or pursue the matter.
the client from whom the paralegal should be receiving 10. To avoid the problem of phantom clients, it is helpful for
instructions. Problems may develop in situations involving the paralegal to clearly identify who is the client, what is
joint clients, authorized representatives, the client’s matter, and who is to provide instructions. To
organizations, “phantom” clients or unrepresented avoid collecting phantom clients, a paralegal should also
opposing parties. clearly communicate his or her role with anyone the
paralegal deals with as a paralegal. It may be helpful for
Joint Clients
the paralegal to
Rule Reference: Rule 3.04(6)–(12) • confirm in writing whether or not the paralegal will
4. A joint retainer occurs where a paralegal agrees to provide legal services for a person who has consulted with
represent two or more clients in the same matter. As him or her and refer to any limitation periods (i.e. retainer
with any retainer, the paralegal should clearly identify agreement, engagement or non-engagement letter),
the clients to whom legal services will be provided, to • inform third party individuals who attend meetings
ensure that the paralegal fulfills his or her duties to with a client that the paralegal represents the client
those clients. only, and not the third party,


• discourage clients from relaying legal advice to third knowledge of the practice and procedures by which such
parties, and principles can be effectively applied. To accomplish this,
• avoid discussing legal matters outside the working the paralegal should keep abreast of developments in
environment or a working relationship. all areas of law in which the paralegal provides
legal services.
5. The competent paralegal will ensure that only after all
Guideline 6: Competence and necessary information has been gathered, reviewed and
considered does he or she advise the client as to the
Quality of Service course(s) of action that will most likely meet the client’s
General goals, taking care to ensure that the client is made aware
of all foreseeable risks and/or costs associated with the
Rule Reference: Rule 3.01 course(s) of action.
Rule 3.02(1) 6. Unless the client instructs otherwise, the paralegal should
1. A licensed paralegal is held out to be knowledgeable, skilled investigate the matter in sufficient detail to be able to
and capable in his or her permissible area of practice. A express an opinion, even where the paralegal has been
client hires a legal service provider because the client does retained to provide services under a limited scope
not have the knowledge and skill to deal with the legal retainer. If the circumstances do not justify an exhaustive
system on his or her own. When a client hires a paralegal, investigation with consequent expense to the client, the
the client expects that the paralegal is competent and has paralegal should so state in the opinion.
the ability to properly deal with the client’s case. 7. A paralegal should only provide his or her legal opinion to
2. A paralegal should not undertake a matter without a client when it is the legal opinion that the paralegal
honestly feeling competent to handle it, or being able to holds and it is provided to the standard of a competent
become competent without undue delay, risk, or expense paralegal.
to the client. This is an ethical consideration and is distinct 8. A paralegal should be wary of providing unreasonable or
from the standard of care that a tribunal would invoke for over-confident assurances to the client, especially when
purposes of determining negligence. the paralegal’s employment or retainer may depend upon
advising in a particular way.
Limited Scope Retainers
[Amended—September 2017]
3. A paralegal may provide legal services under a limited
scope retainer, but must carefully assess in each case
Client Service and Communication
whether, under the circumstances, it is possible to render
those services in a competent manner. Although an Rule Reference: Rule 3.01(4)(d), (e), (f) & (g)
agreement for such services does not exempt a paralegal
9. Client service is an important part of competence. Most
from the duty to provide competent representation, the
of the complaints received by the Law Society relate to
limitation is a factor to be considered when determining
client service, such as not communicating with a client,
the legal knowledge, skill, thoroughness and preparation
delay, not following client instructions and not doing
reasonably necessary for the representation. The
what the paralegal or lawyer was retained to do.
paralegal should ensure that the client is fully informed of
the nature of the arrangement and clearly understands 10. Rule 3.01(4) contains important requirements for
the scope and limitation of the services. paralegal–client communication and service. In addition
to those requirements, a paralegal can provide more
3.1. A paralegal who is asked to provide legal services under a
effective client service by
limited scope retainer to a client who has diminished
capacity to make decisions should carefully consider and 10.1 keeping the client informed regarding his or her matter,
assess in each case if, under the circumstances, it is through all relevant stages of the matter and concerning
possible to render those services in a competent manner all aspects of the matter,
and in compliance with Rule 3.02(13) and (14). 10.2 managing client expectations by clearly establishing with
[New—September 2015] the client what the paralegal will do or accomplish and at
what cost, and
Cross-reference Rule 3.02(15) –(17)
10.3 being clear about what the client expects, both at
The Required Standard of Competence the beginning of the retainer and throughout the
retainer.
Rule Reference: Rule 3.01(1) 11. A paralegal should meet deadlines, unless the paralegal
Rule Reference: Rule 3.01(4) is able to offer a reasonable explanation and ensure
that no prejudice to the client will result. Whether or
Knowledge not a specific deadline applies, a paralegal should be
prompt in prosecuting a matter, responding to
Rule Reference: Rule 3.01(4)(a) & (b) communications and reporting developments to the
4. Competence is founded upon both ethical and legal client. In the absence of developments, contact with the
principles. Competence involves more than an client should be maintained to the extent the client
understanding of legal principles; it involves an adequate reasonably expects.


Providing Services Under a Limited Scope Retainer 16. A competent paralegal knows the Rules and understands
why each rule is important. The paralegal uses this
Rule Reference: Rule 3.02(15)–(17) knowledge and understanding to guide his or her own
12. Where a paralegal provides services under a limited scope conduct.
retainer to a client, it is very important to clearly identify
Continuing Education/Professional Development
the scope of the retainer, such as identifying the services
that the paralegal will and will not be providing to the Rule Reference: Rule 3.01(4)(j) & (k)
client. It is advisable that the limits of the paralegal’s
17. A paralegal is responsible for remaining competent
retainer be clearly stated in a written retainer agreement.
throughout his or her career. A competent paralegal
12.1 For greater clarity and to avoid miscommunications, a understands that maintaining competence is an ongoing
paralegal should confirm with the client in writing when professional commitment that requires the paralegal to
the limited scope retainer is complete. Where appropriate constantly assess his or her knowledge and skills.
under the rules of the tribunal, the paralegal may
consider providing notice to the tribunal that the retainer is Failing to Be Competent
complete.
Rule Reference: Rule 3.01
[New—September, 2015]
18. The Rules do not require a standard of perfection. An
12.2 Where the limited services being provided include an
error or omission, even though it might be actionable for
appearance before a tribunal, a paralegal must be careful
damages in negligence or contract, will not necessarily
not to mislead the tribunal as to the scope of the retainer,
constitute a breach of Rule 3.01. Conversely, incompetent
and should consider whether disclosure of the limited
professional practice may constitute professional
nature of the retainer is required by the rules of practice
misconduct whether or not the error or omission is
or the circumstances.
actionable through the courts for professional negligence.
12.3 A paralegal should also consider whether the existence of a While damages may be awarded for negligence,
limited scope retainer should be disclosed to the tribunal or incompetence can give rise to the additional sanction of
to an opposing party or, if represented, to an opposing disciplinary action.
party’s representatives. The paralegal may need to obtain
instructions from the client to make the disclosure.
Guideline 7: Advising Clients
Practice Management
Honesty and Candour
Rule Reference: Rule 3.01(4)(h)
Rule Reference: 3.02(2)
By-Law 9 1. A paralegal has a duty of candour with the client on
13. In a busy office, practice management includes ensuring matters relevant to the retainer. A paralegal is required
that there is sufficient staff to assist the paralegal in to inform the client of information known to the
fulfilling his or her professional responsibilities, for paralegal that may affect the interests of the client in the
example, ensuring that communications from clients, matter.
other paralegals or lawyers are responded to and that 2. A paralegal must honestly and candidly advise the client
financial records are kept in accordance with the regarding the law and the client’s options, possible
requirements of By-Law 9. outcomes and risks of his or her matter, so that the client
14. Competent practice management requires that the is able to make informed decisions and give the paralegal
paralegal effectively manage his or her staff, time, appropriate instructions regarding the case. Fulfillment of
finances and client information. A paralegal should this professional responsibility may require a difficult but
consider the following practice management tools: necessary conversation with a client and/or delivery of
14.1 workplace policies and business procedures for staff, bad news. It can be helpful for advice that is not well-
14.2 planning and reminder systems, and time docketing received by the client to be given or confirmed by the
systems for time management, and paralegal in writing.
14.3 filing organizational and storage systems for management When advising a client, a paralegal
of client information and a system for effectively • should explain to and obtain agreement from the client
identifying and avoiding conflicts. about what legal services the paralegal will provide and
at what cost. Subject to any specific instructions or
Applying Skills & Judgment agreement, the client does not direct every step taken
in a matter. Many decisions made in carrying out the
Rule Reference: Rule 3.01(4)(c), (i) & (l) delivery of legal services are the responsibility of the
15. When serving clients, or otherwise acting in a paralegal, not the client, as they require the exercise of
professional capacity, a competent paralegal should professional judgment. However, the paralegal and the
understand the legal concepts, issues and facts, give client should agree on the specific client goals to be
careful consideration to the matters he or she handles met as a result of the retainer. This conversation is
and make decisions that are reasoned and make sense in particularly important in the circumstances of a limited
the client’s circumstances. scope retainer.


• should explain to the client under what circumstances reasons for and against starting the proceeding, and
he or she may not be able to follow the client’s explaining the potential consequences of a decision to
instructions (for example, where the instructions would commence litigation.
cause the paralegal to violate the Rules). 10. In the course of the proceedings, the paralegal should
• should ensure that clients understand that the paralegal seek the client’s instructions to make an offer of
is not a lawyer and should take steps to correct any settlement to the other party as soon as reasonably
misapprehension on the part of a client, or prospective possible. As soon as possible after receipt of an offer of
client. settlement from the other party, the paralegal must
3. In some limited circumstances, it may be appropriate to explain to the client the terms of the offer, the
withhold information from a client. For example, with implications of accepting the offer and the possibility of
client consent, a paralegal may act where the paralegal making a counter-offer. When making an offer of
receives information in the course of representing the settlement, a paralegal should allow the other party
client on the basis that the paralegal is not permitted to reasonable time for review and acceptance of the offer.
share the information with the client. However, it would The paralegal should not make, accept or reject an
not be appropriate to act for a client where the paralegal offer of settlement without the client’s clear and
has relevant material information about that client informed instructions. To avoid any misunderstandings,
received through a different retainer. In those the paralegal should confirm the client’s instructions
circumstances the paralegal cannot be honest and candid in writing.
with the client and should not act.
Client with Diminished Capacity
Dishonesty, Fraud or Crime by Client or Others
Rule Reference: Rule 3.02(13) & (14)
Rule Reference: Rule 3.02(4), (5), (6), (7) & (8)
11. A paralegal must be particularly sensitive to the individual
4. A paralegal must be alert to the warning signs that may needs of a client under a disability. The paralegal should
indicate dishonesty or illegal conduct by a client or any maintain a good professional relationship with the
other person. The paralegal may need to, or be forced to, client, even if the client’s ability to make decisions is
withdraw from representing a client where the client impaired because of minority, mental disability or
takes part in this type of dishonourable conduct. some other reason. The paralegal should also be aware
5. The requirement in subrule (5) is especially important of his or her duty to accommodate a client with
where a paralegal has suspicions or doubts about whether a disability.
he or she might be assisting a client in crime or fraud. For 12. A paralegal who is asked to provide services under a
example, if a paralegal is consulted by a prospective client limited scope retainer to a client under a disability should
who requests the paralegal to deposit an amount of cash carefully consider and assess in each case how, under the
into the paralegal’s trust account but is vague about the circumstances, it is possible to render those services in a
purpose of the retainer, the paralegal has an obligation to competent manner.
make further inquiries about the retainer. (The paralegal
should also have regard to the provisions of By-Law 9
regarding cash transactions). The paralegal should make a Medical-Legal Reports
record of the results of these inquiries. Rule Reference: Rule 3.02(18), (19) & (20)
6. A client or another person may attempt to use a 13. On occasion, in the course of representing and advising a
paralegal’s trust account for improper purposes, such as client, a paralegal may need to obtain a report from an
hiding funds, money laundering or tax sheltering. These expert to help the client’s case. Since a medical-legal
situations highlight the fact that when handling trust report may contain information sensitive to the client, a
funds, it is important for a paralegal to be aware of his or paralegal has special responsibilities where such reports
her obligations under the Rules and the Law Society’s are concerned.
By-Laws regulating the handling of trust funds.
14. After an expert has been hired, but before the report has
7. Rule 3.02(8) speaks of conduct that is dishonest, been prepared, the paralegal should speak to the expert
fraudulent, criminal or illegal, and this conduct would to see if the findings in the report will advance the client’s
include acts of omission as well as acts of commission. cause. If the findings do not, and subject to any legal
Conduct likely to result in substantial harm to the requirements, the paralegal may decide not to obtain a
organization, as opposed to genuinely trivial misconduct written report.
by an organization, would invoke this rule.
Settlement and Dispute Resolution Errors

Rule Reference: Rule 3.02(11) & (12) Rule Reference: Rule 3.02(21)
8. A paralegal has an important role to play in both 15. When providing legal services, the paralegal may make a
commencing and settling legal proceedings. mistake or fail to do something he or she should have
9. The paralegal should assist the client in his or her decision done. When the paralegal realizes this has happened, he
about commencing legal proceedings by reviewing the or she must fulfill specific duties to the client.


Official Language Rights paralegal can provide through the civil society
organization; and
Rule Reference: Rule 3.02(22) & (23) (c) avoid conflicts of interest between the client and the
16. When advising a client of the client’s language rights, a civil society organization.
paralegal should consider the following: 20. Where other services are provided through the civil society
• the paralegal should advise the client of the client’s organization, or where the paralegal’s services are provided
language rights as soon as possible; together with other services, the paralegal should take care
• the choice of language is that of the client not the to protect client confidentiality and privilege, and should
paralegal. The paralegal should be aware of relevant only disclose client confidential or privileged information
statutory and constitutional law relating to language with client consent, or as required by law.
rights including the Canadian Charter of Rights and
Freedoms, s. 19(1) and Part XVII of the Criminal Code
regarding language rights in courts under federal Guideline 8: Confidentiality
jurisdiction and in criminal proceedings. The paralegal
General
should also be aware that provincial or territorial
legislation may provide additional language rights, Rule Reference: Rule 3.03(1)
including in relation to aboriginal languages; and
1. A paralegal cannot render effective professional service to
• when a paralegal considers whether to provide the a client, unless there is full and unreserved
required services in the language chosen by the client, communication between them. The client must feel
the paralegal should carefully consider whether it is completely secure that all matters discussed with the
possible to render those services in a competent paralegal will be held in strict confidence. The client is
manner as required by Rule 3.02(23). entitled to proceed on this basis, without any express
request or stipulation.
Multi-Discipline Practices
2. A paralegal’s duty of loyalty to a client prohibits the
Rule Reference: Rule 3.04(14) paralegal from using any client information for a purpose
other than serving the client in accordance with the terms
Rule Reference: Rule 8.01(5) of the retainer. A paralegal cannot disclose client
Rule 1.02 definitions of “associate” and “professional misconduct” information to serve another client or for his or her own
benefit.
By-Law 7
17. In a multi-discipline practice, a paralegal should be What Information Must Be Protected?
particularly alert to ensure that the client understands that
he or she is receiving legal services only from the paralegal. Rule Reference: Rule 3.03(1)
If advice or service is sought from non-licensed members of 3. The obligation to protect client information extends to
the firm, it should be sought and provided independently information whether or not it is relevant or irrelevant to
of and outside the scope of the retainer for the provision of the matter for which the paralegal is retained. The source
legal services. A paralegal should also be aware that advice of the information does not matter. The information could
or services provided by a non-licensed member of the firm be received from the client or from others. The
will be subject to the constraints outlined in the relevant information may come in any form—the spoken word,
by-laws and rules governing multi-discipline practices. One paper, computer documents, e-mails, audio or video
way to distinguish the advice or services of non-licensed recordings. The obligation also extends to the client’s
members of the firm is to ensure that such advice or papers and property, the client’s identity and the fact that
services is provided from a location separate from the the client has consulted or retained the paralegal.
premises of the multi-discipline practice. 4. A paralegal should be cautious in accepting confidential
information on an informal or preliminary basis from
Affiliations anyone, since possession of the information may prevent
the paralegal from subsequently acting for another party
Rule Reference: Rule 3.04(15), (16) & (17) in the same or a related matter.
Rule 1.02 definitions of “affiliated entity” and “affiliation” 5. Generally, unless the nature of the matter requires such
By-Law 7 disclosure, a paralegal should not disclose having been
18. Before accepting a retainer, the Rules impose certain retained by a person about a particular matter; or
disclosure and consent requirements on a paralegal consulted by a person about a particular matter, whether
providing legal services jointly with non-legal services of or not a paralegal –client relationship has been established
an affiliated entity. between them.
19. Paralegals who provide legal services through civil society How Long Does the Duty Last?
organizations to clients are required to control the delivery
of legal services. The paralegal should take care to: Rule Reference: Rule 3.03(2)
(a) act on behalf of the client’s interest; 6. The Rules provide that the duty of confidentiality lasts
(b) advise the client honestly and candidly about the indefinitely. The duty continues, even after the client or
nature, extent and scope of the services that the former client dies.


7. Problems can arise when information is provided to a Disclosure Without Client Authority to Prevent Serious
paralegal or a paralegal firm by a prospective client. For Bodily Harm
lawyers, the duty to protect confidential information
begins when a prospective client first contacts the lawyer Rule Reference: Rule 3.03(5), (8) & (9)
or law firm. The courts may determine that a paralegal 13. Serious psychological harm may constitute serious bodily
also owes a duty of confidentiality to prospective clients, harm if it substantially interferes with the health or well-
even if the paralegal is never actually retained by the being of an individual.
prospective client. 14. A paralegal who believes that disclosure may be
Who Owes the Duty? warranted may wish to seek legal advice. In assessing
whether disclosure of confidential information is justified
Rule Reference: Rule 3.03(1) & (3) to prevent death or serious bodily harm, the paralegal
should consider a number of factors, including:
(a) the likelihood that the potential injury will occur and
8. The paralegal, and all other employees of the paralegal its imminence;
firm, owe the duty of confidentiality to every client.
(b) the apparent absence of any other feasible way to
A paralegal must ensure that his or her employees, and
prevent the potential injury; and
anyone involved with the client’s matter, understand the
duty of confidentiality as set out in the Rules. The (c) the circumstances under which the paralegal
paralegal is ultimately responsible, if someone acquired the information of the client’s intent or
employed by the paralegal discloses confidential prospective course of action.
information without client authorization or as permitted 15. If confidential information is disclosed, the paralegal
by the Rules. should record the circumstances of the disclosure as soon
as possible.
When, If Ever, Is Disclosure of Confidential Information
Permitted? Disclosure Without Client Authority to Establish or Collect
Disclosure With Client Authority Fees
Rule Reference: Rule 3.03(1) Rule Reference: Rule 3.03(7) & (9)
16. If a paralegal wishes to use a collection agency for an
9. Disclosure of confidential information may be
outstanding account, the information provided to the
authorized by the client. This authorization may be
collection agency should be limited to that necessary to
express or implied. For example, where a paralegal is
collect the fees. Information contained in documents that
retained to represent a client in a Small Claims Court
is not necessary to enforce payment should either be
matter, the paralegal has the client’s implied authority
deleted or blocked out.
to disclose enough information to complete the
necessary forms. Disclosure Without Client Authority to Detect Conflict
10. When disclosing confidential information on the express
authority of the client, the paralegal should consider Rule Reference: Rule 3.03(10)
• whether the client understands his or her right to 16.1. Rule 3.03 provides that a paralegal may disclose
confidentiality, information to the extent reasonably necessary to detect
• whether the client understands the potential and resolve conflicts of interest arising from a paralegal’s
implications of disclosure, change of employment, or from changes in the
composition or ownership of a paralegal firm, but only if
• whether the client has shown a clear, informed and
the information disclosed does not compromise client
voluntary intention to forego the right to
confidentiality or otherwise prejudice a client.
confidentiality, and
16.2. In these situations, the rule permits paralegals and law
• whether, in the particular circumstances, it would be
firms to disclose limited information. This type of
prudent to obtain the client’s written authorization to
disclosure would only be made once substantive
disclose.
discussions regarding the new relationship have occurred.
Disclosure Without Client Authority: General This exchange of information needs to be done in a
manner consistent with the obligation to protect client
Rule Reference: Rule 3.03(4), (5), (6), (7) (8) & (9) confidentiality and avoid prejudice to the client. It
11. Rule 3.03 identifies a number of situations in which a ordinarily would include no more than the names of the
paralegal shall or may disclose confidential client persons and entities involved in a matter. Depending on
information, whether or not the client consents to the the circumstances, it may include a brief summary of the
disclosure. general issues involved, and information about whether
12. This rule does not permit the paralegal to reveal the representation has come to an end.
confidential information about past criminal conduct, or 16.3. The disclosure should be made to as few persons at the
to prevent future illegal or criminal conduct that does not new firm as possible, ideally to only one person. The
involve death or serious bodily harm. information should always be disclosed only to the extent


reasonably necessary to detect and resolve conflicts of space-sharing or other arrangements, and taking steps
interest that might arise from the possible new to minimize the risk,
relationship. • avoiding indiscreet conversations about a client’s
16.4. Since the disclosure would be solely for the purpose of affairs, even with the paralegal’s spouse or family,
checking for conflicts, the disclosure should be coupled • shunning any gossip about a client’s affairs, even
with an undertaking by the new firm to the former firm though the client is not named or otherwise identified,
that it will: • not repeating any gossip or information about a client’s
(a) limit access to the disclosed information; business or affairs that is overheard or recounted to the
(b) not use the information for any purpose other than paralegal, and
detecting and resolving conflicts; and • avoiding indiscreet shop-talk between colleagues that
(c) return, destroy, or store in a secure and confidential may be overheard by third parties.
manner the information provided once appropriate
confidentiality screens are established. Office Procedures
16.5. The client’s consent to disclosure of such information
may be specifically addressed in a retainer agreement Rule Reference: Rule 3.03(1) & (3)
between the paralegal and client. In some
circumstances, however, because of the nature of the
retainer, the transferring paralegal and the new firm may 20. A paralegal should establish office procedures to ensure
be required to obtain the consent of clients to such that the confidentiality of client information is protected,
disclosure or to the disclosure of any further information such as:
about the clients. This is especially the case where • recording the identity and particulars of every client or
disclosure would prejudice the client, such as where a potential client,
person has consulted a paralegal about a criminal • screening for conflicts of interest when a potential
investigation that has not led to a public charge. client first contacts the firm, and prior to his or her
[New—December 2015] disclosure of confidential information to the paralegal,
• establishing a communication policy with each client
Other Obligations Relating to Confidential Information—
outlining how communications between the client and
Security of Court Facilities and Misconduct firm will be conducted,
Rule Reference: Rule 3.03 • keeping file cabinets away from the reception area,
placing computer screens so they cannot be viewed by
Rule Reference: Rule 6.01(3) people not in the firm, keeping client files out of sight,
locking file cabinets when no one is in the office, limiting
access to client files only to staff who work on the matter,
17. The Rules require a paralegal to disclose confidential client shredding confidential information before discarding and
information in other circumstances—for the security of ensuring appropriate security for off-site storage of files,
court facilities, and to report certain acts of misconduct to • taking steps to protect confidential information
the Law Society. obtained and sent in an electronic form,
18. Where a paralegal discloses confidential information to • ensuring that all staff understand their obligations with
prevent a dangerous situation from developing at a court respect to confidentiality, and
facility, the paralegal should consider providing this
• limiting access to confidential information by outside
information to the persons having responsibility for
service providers.
security at the facility anonymously or through another
Avoiding Inadvertent Disclosure Guideline 9: Conflicts of Interest

GENERAL
19. The following steps may assist a paralegal in meeting his Definition
or her obligation to protect confidential client
information: Examples of Conflicts of Interest
• not disclosing having been consulted or retained by a Rule Reference: Rule 1.02
particular person unless the nature of the matter 1. Conflicts of interest are defined in Rule 1.02.
requires disclosure,
• taking care not to disclose to one client confidential DUTY TO AVOID CONFLICTS OF INTEREST
information about another client and declining any
The Duty
retainer that might require such disclosure,
• being mindful of the risk of disclosure of confidential Rule Reference: Rule 3.04(1) & (2)
information when the paralegal provides legal services 2. The duty to avoid conflicts of interest is found in Rule
in association with other licensees in cost-sharing, 3.04 (1) and (2)


To Whom Is the Duty Owed—Current Clients and represent a client in respect of a matter in which the
Prospective Clients paralegal, the paralegal’s partner or associate or a family
member has a material direct or indirect financial interest.
Rule Reference: Rule 1.02 Another example of a personal interest conflict is a close
personal relationship, sexual or otherwise, with a client.
3. A conflict of interest exists when there is a substantial risk Current Client Conflicts
that a paralegal’s loyalty to or representation of a client 10. Duties owed to another current client may also impair
would be materially and adversely affected by the client representation and loyalty. Representing opposing
paralegal’s own interest or the paralegal’s duties to another parties in a dispute provides a particularly stark example
client, a former client, or a third person. A “substantial of a current client conflict.
risk” is one that is significant and plausible, even if it is not 11. A bright line rule has been developed by the courts to
certain or even probable that it will occur. There must be protect the representation of and loyalty to current
more than a mere possibility that impairment will occur. clients. Subject to certain limited exceptions, the bright
4. Rule 3.04 protects the duties owed by paralegals to their line rule holds that a paralegal cannot act directly adverse
clients and the paralegal–client relationship from to the immediate legal interests of a current client,
impairment as a result of a conflicting duty or interest. A without the client’s consent. Paralegals should assume
client’s interests may be seriously prejudiced unless the that matters undertaken against a current client are
paralegal’s judgment and freedom of action on the client’s directly adverse to the immediate legal interests of that
behalf are as free as possible from conflicts of interest. A current client and that the bright line rule ordinarily
paralegal owes the duty of avoiding conflicts of interest to applies because of the nature of paralegal practice.
all clients, including prospective clients. A paralegal should
identify potential conflicts of interest at the first contact Former Client Conflicts
with a prospective client. A prospective client can be 12. Duties owed to a former client can impair client
described as one who has consulted with a paralegal or representation and loyalty.
paralegal firm to see if the firm will take on his or her matter
Conflicts Arising from Duties to Other Persons
or to see if he or she would like to hire the paralegal or firm.
5. Conflicts of interest may arise at any time. A paralegal 13. Duties owed to other persons can impair client
should use a conflicts checking system to assist in representation and loyalty. Paralegals should carefully
managing conflicts of interest. The paralegal should consider the propriety, and the wisdom, of wearing
examine whether a conflict of interest exists not only at “more than one hat” at the same time.
the outset, but throughout the duration of a retainer
Other Issues to Consider
because new circumstances or information may establish
or reveal a conflict of interest. 14. A paralegal should examine whether a conflict of interest
exists not only from the outset but throughout the duration
6. At the time that a paralegal becomes aware of a conflict,
of a retainer because new circumstances or information may
or potential conflict, the paralegal should consider whether
establish or reveal a conflict of interest. For example, the
to accept the retainer, or to continue to act. This applies
addition of new parties in litigation can give rise to new
even where the client consents or where the retainer
conflicts of interest that must be addressed.
would not, in the paralegal’s opinion, breach the Rules. The
paralegal should consider the delay, expense and To Whom Is the Duty Owed—the Firm’s Clients
inconvenience that would arise for the client and/or the
Rule Reference: Rule 1.02 definition of “client”
paralegal, should the paralegal be required to withdraw
from the matter at a later stage in the proceedings. 15. Since every client of a paralegal firm is also the client of
every other paralegal employed at the firm, if one
7. In addition to the duties of representation arising from a
paralegal in the firm has a conflict of interest in a matter,
retainer, the law imposes other duties on the paralegal,
then all paralegals in the firm have a conflict in that
particularly the duty of loyalty. The duty of confidentiality,
matter. As a result, when checking for conflicts, the
the duty of candour and the duty of commitment to the
paralegal should review the names of all current and
client’s cause are aspects of the duty of loyalty. The rule
former clients of the firm and not just the clients
protects all of these duties from impairment by a
personally served by the individual paralegal.
conflicting duty or interest.
DEALING WITH A CONFLICT OF INTEREST
Examples of Conflicts of Interest
Disclosing All Information
8. Examples of conflicts of interest include: personal interest Rule Reference: Rule 3.04(3)
conflicts, current client conflicts, former client conflicts 16. Disclosure is an essential element to obtaining a client’s
and conflicts arising from duties to other persons. consent and arises from the duty of candour owed to the
client. The client needs to know of anything that may
Personal Interest Conflicts influence the paralegal’s judgment or loyalty. Once the
9. A paralegal’s own interests can impair client paralegal has provided the client with all the details, the
representation and loyalty. This can be reasonably paralegal must allow the client time to consider them or
obvious, for example, where a paralegal is asked to to ask for further clarification.


17. There may be situations where it is impossible for a matter, associated parties or the paralegal. He or she is
paralegal to give a client or prospective client all necessary unbiased and objective and does not have a conflict of
information. This may happen when the details about the interest.
conflict involve another client or a former client. Since a 24. In circumstances where the paralegal is prohibited from
paralegal cannot reveal confidential information regarding acting for a client or prospective client, the paralegal must
another client, the paralegal may only say that there is a suggest that the individual obtain his or her own
conflict and that he or she cannot continue with or accept independent legal representation. Independent legal
the retainer. representation means that the individual has retained a
legal representative, either a paralegal or lawyer, to act as
Obtaining Consent his or her own representative in the matter. This retained
Rule Reference: Rule 1.02 definition of “consent” representative is objective and does not have any
conflicting interest with regards to the matter.
Refusal to Act, Withdrawal of Services
18. The client may only consent after being given all
information required to make an informed decision. This Rule Reference: Rule 3.04(1)
is called informed consent. Disclosure is an essential
requirement to obtaining a client’s consent and arises Rule Reference: Rule 3.08
from the duty of candour owed to the client. Where it is [Amended—April 2017]
not possible to provide the client with adequate disclosure 25. In some cases, the only way to deal with the conflict is to
of the confidentiality of the information of another client, refuse to act. The paralegal may have to decline the
a paralegal should decline to act. retainer at the outset or may have to terminate the
19. Disclosure means full and fair disclosure of all information retainer and withdraw from representing the client at a
relevant to a person’s decision in sufficient time for the later time. A paralegal may need to take this step even
person to make a genuine and independent decision, and where the client wants the paralegal to accept the
the taking of reasonable steps to ensure understanding of retainer, or to continue to act.
the matters disclosed. The paralegal should therefore JOINT CLIENTS
inform the client of the relevant circumstances and the
reasonably foreseeable ways that the conflict of interest General
could adversely affect the client’s interests. This would
include the paralegal’s relation to the parties and any Rule Reference: Rule 3.04(6)–(12)
interest in and connection with the matter. 26. A paralegal may be asked to represent more than one
20. Following the required disclosure, the client can decide client in a matter or transaction. This is referred to as a
whether to give consent. Factors to be taken into joint retainer.
consideration may include the availability of another 27. Acting in a joint retainer places the paralegal in a
paralegal of comparable expertise and experience, the potential conflict of interest. A paralegal has an obligation
stage that the matter or proceeding has reached, the to all clients and in a joint retainer, the paralegal must
extra cost, delay and inconvenience involved in engaging remain loyal and devoted to all clients equally—the
another paralegal, and the latter’s unfamiliarity with the paralegal cannot choose to serve one client more carefully
client and the client’s affairs. or resolutely than any other. If the interests of one client
21. A paralegal may be able to request that a client consent in change during the course of the retainer, the paralegal
advance to conflicts that might arise in the future. The may be in a conflict of interest.
effectiveness of such consent is generally determined by Before Accepting the Joint Retainer
the extent to which the client understands the material
risks involved. A paralegal may wish to recommend that Rule Reference: Rule 3.04(6)–(12)
the client obtain independent legal advice before deciding
whether to provide consent. Advance consent should be Rule Reference: Rule 3.02(13) & (14)
recorded in writing. 28. In cases where one of the joint clients is not sophisticated
or is vulnerable, the paralegal should consider the
Independent Legal Advice/Legal Representation provisions of Rule 3.02(13) and (14) regarding clients
under a disability. The paralegal may want to recommend
Rule Reference: Rules 3.04(7), 3.06(2)(b), (4)(b),
that the client obtain independent legal advice prior to
& (6)(c)
agreeing to the joint retainer. This will ensure that the
22. There are situations where the client’s informed and client’s consent to the joint retainer is informed, genuine,
written consent is not enough to allow the paralegal to and not obtained through coercion.
accept or continue with a matter. In some circumstances,
the client must receive advice from an independent legal If a Conflict Develops Between Joint Clients
advisor regarding the matter or transaction before the
paralegal may take any further steps in the client’s matter.
29. Subrules 3.04(11)–(12) set out the steps a paralegal must
23. An independent legal advisor is another paralegal or
take in the event that a conflict develops between joint
lawyer, who can provide the client with independent
clients.
legal advice. This advisor is unrelated to the client’s


ACTING AGAINST CLIENTS government, a corporation with separate regional legal
departments and an inter-jurisdictional legal firm.
Acting Against Former Clients in the Same or Related
Matters How to Determine If a Conflict Exists Before a Paralegal
Changes Firms
Rule Reference: Rule 3.04(2), & (4)(a) & (b)
30. A paralegal is not permitted to act against a former client
in the same or related matters, except with the former 37. When a firm considers hiring a paralegal from another
client’s informed consent. firm, the transferring paralegal and the new firm need to
determine, before the transfer, whether any conflicts of
Acting Against Former Clients in New Matters interest will be created. Conflicts can arise with respect to
Rule Reference: Rule 3.04(4)(c) & (5) clients of the law firm that the transferring paralegal is
leaving and with respect to clients of a firm in which the
31. A paralegal is not permitted to act against a former client
transferring paralegal worked at some earlier time.
in a new matter, except in accordance with subrules
3.04(4)(c) and (5). 38. After completing the interview process and before hiring the
transferring paralegal, the new firm should determine
32. Even where the Rules do not prohibit a paralegal from
whether any conflicts exist. In determining whether the
acting against a client or former client, the paralegal
transferring paralegal actually possesses relevant confidential
should consider whether to accept the retainer (or
information, both the transferring paralegal and the new
continue acting). To act against a client or former client
firm must be very careful, during any interview of a potential
may damage the paralegal–client relationship, result in
transferring paralegal, or other recruitment process, to
court proceedings or a complaint to the Law Society.
ensure that they do not disclose client confidences. See Rule
PARALEGAL TRANSFER BETWEEN FIRMS 3.03, which provides that a paralegal may disclose
General confidential information to the extent the paralegal
reasonably believes necessary to detect and resolve conflicts
Rule Reference: Rule 3.05 of interest where paralegals transfer between firms.
Paralegal Changing Firms 39. A paralegal’s duty to the firm may also govern a paralegal’s
conduct when exploring a professional opportunity with
Rule Reference: Rule 3.05 another firm and is beyond the scope of these Rules.
33. Problems concerning confidential information may arise [New—December 2015]
when a paralegal changes firms and the firms act for
opposing clients in the same or a related matter. The DEALING WITH UNREPRESENTED PERSONS
potential risk is that confidential information about the General
client from the paralegal’s former office may be revealed
to the members of the new firm and used against that Rule Reference: Rule 4.05
client. A paralegal should carefully review the Rules when
transferring to a new office or when a new paralegal is
about to join the paralegal firm. 40. When a paralegal deals on a client’s behalf with an
unrepresented person, there is a potential danger to the
Actual Knowledge paralegal that the unrepresented person may think that the
paralegal is looking after his or her interests. Rule 4.05
provides specific requirements aimed at minimizing this risk.
34. The purpose of the rule is to deal with what a paralegal
41. If an unrepresented person who is the opposite party
actually knows, not what a paralegal might be assumed
requests the paralegal to advise or act in the matter, the
to know. Paralegals working together in the same firm are
paralegal is not permitted to accept the retainer. If the
assumed to share confidences on the matters on which
unrepresented party otherwise has an interest in the matter,
they are working, with the result that actual knowledge
such as a co-accused, the paralegal may be permitted to
may be presumed. However, that presumption of actual
act, but should be governed by the considerations outlined
knowledge can be rebutted by clear and convincing
in Rule 3.04(6)–(12) about joint retainers.
evidence that all reasonable measures have been taken to
ensure that no disclosure will occur by the transferring FINANCIAL INTERESTS
paralegal to the member or members of the firm who are
Doing Business with a Client
engaged against a former client.
35. The duties imposed by this rule concerning confidential Rule Reference: Rule 3.06(1)–(3)
information are in addition to the general ethical duty to 42. A paralegal should be cautious about entering into a
hold in strict confidence all information concerning the business arrangement with his or her client(s) that is
business and affairs of the client acquired in the course of unrelated to the provision of paralegal services. This includes
the professional relationship, which duty applies without any transaction with a client, including lending or borrowing
regard to the nature or source of the information or to money, buying or selling property, accepting a gift, giving or
the fact that others may share the knowledge. acquiring ownership, security or other pecuniary interest in a
36. Firms with multiple offices—this rule treats as one “firm” company or other entity, recommending an investment and
such entities as the various legal services units of a entering into a common business venture.


43. Since the paralegal is or was the client’s advisor, the Conflicts of Interest Arising from a Paralegal’s Outside
paralegal may have a conflict of interest. The paralegal Interests
may unknowingly influence the client to agree to an
arrangement that may be unfair or unreasonable to the Rule Reference: Rule 1.02 definition of “conflict
client. This danger is present when the client wants to of interest”
invest with the paralegal.
Borrowing from Clients 49. A conflict of interest may arise from the paralegal’s
outside interests. Outside interests covers the widest
Rule Reference: Rule 3.06(5) possible range of activities and includes those that may
44. A paralegal must not borrow from clients except in overlap with the business of providing legal services, as
accordance with Rule 3.06(4). well as activities that have no connection to the law or
working as a paralegal. If a paralegal has other
Guaranteeing Client Debts businesses or interests separate from his or her
paralegal firm, those interests may influence the way
Rule Reference: Rule 3.06(5)–(6) the paralegal serves clients. Whatever the outside
45. A paralegal must not guarantee client debts except in interest, a paralegal must guard against allowing those
accordance with Rule 3.06(5) and (6). outside interests to interfere or conflict with his or her
duties to clients. (Also refer to Guideline 2: Outside
PERSONAL INTERESTS Interests.)
Conflicts of Interest Arising from Personal Relationships 50. If a paralegal is in public office while still providing legal
services to clients, the paralegal must not allow his or her
Rule Reference: Rule 3.04(1) duties as a public official to conflict with his or her duties
46. The Rules do not prohibit a paralegal from providing legal as a paralegal. If there is a possibility of a conflict of
services to friends or family members, but they do require interest, the paralegal should avoid it either by removing
the paralegal to avoid existing or potential conflicts of himself or herself from the discussion and voting in the
interest. public capacity or by withdrawing from representation of
47. A conflict of interest may arise when a paralegal the client.
provides legal services to a friend or family member, or
when the client and the paralegal have a sexual or MULTI-DISCIPLINE PRACTICE
intimate personal relationship. In these circumstances, Conflicts of Interest Arising from Multi-Discipline Practice
the paralegal’s personal feelings for the client may
impede the paralegal’s ability to provide objective, Rule Reference: 3.04(13)
disinterested professional advice to the client. Before By-Law 7
accepting a retainer from or continuing a retainer with a
51. A paralegal should be alert to conflicts of interest arising
person with whom the paralegal has a sexual or
from a multi-discipline practice, as he or she is subject to
intimate personal relationship, a paralegal should
the requirements of Rule 3.04(14).
consider the following factors:
• The vulnerability of the client, both emotional and AFFILIATIONS
economic;
Conflicts of Interest Arising from Paralegals and Affiliated
• The fact that the paralegal and client relationship may Entities
create a power imbalance in favour of the paralegal or,
in some circumstances, in favour of the client; Rule Reference: Rule 1.02 definition of “conflict
• Whether the sexual or intimate personal relationship of interest”
may jeopardize the client’s right to have all information
concerning the client’s business and affairs held in strict Rule Reference: Rule 3.04(14), (15) & (16)
confidence. For example, the existence of the personal By-Law 7
relationship may obscure whether certain information 52. A conflict of interest may arise from a paralegal’s, or his
was acquired by the paralegal in the course of the or her associate’s, interest in an affiliated firm of non-
paralegal and client relationship; licensees where that interest conflicts with the
• Whether such a relationship may require the paralegal paralegal’s duties to a client. Rule 3.04(14) and (15)
to act as a witness in the proceedings; impose disclosure and consent requirements on a
• Whether such a relationship may interfere with the paralegal in an affiliation.
paralegal’s fiduciary obligations to the client, including 53. Conflicts of interest arising out of a proposed retainer by
his or her ability to exercise independent professional a client should be addressed as if the paralegal’s practice
judgment and his or her ability to fulfill obligations to and the practice of the affiliated entity were one where
the administration of justice. the paralegal accepts a retainer to provide legal services
48. Generally speaking, there is no conflict of interest if to that client jointly with non-legal services of the
another paralegal or lawyer at the firm who does not affiliated entity.
have a sexual or intimate personal relationship with the 54. The affiliation is subject to the same conflict of interest
client handles the client’s matter. rules as apply to paralegals.


Guideline 10: Dealing with Client Property • trial preparation documents, trial briefs, document
briefs, trial books,
General • copies of vouchers and receipts for disbursements a
Rule Reference: Rule 3.07 lawyer made on the client’s behalf,
By-Law 9 • experts’ reports,
• photographs, and
1. The term client property covers a wide range of items
such as money or other valuables, physical items and • electronic media such as computer discs.
information. For proper receipt, handling and 6. Documents belonging to a lawyer (for example, notes or
disbursement of monies received from or on behalf of a memoranda of meetings or telephone calls with the
client, refer to By-Law 9 and Guideline 15: Trust Accounts. client) would not need to be provided to the client.
7. A paralegal should consider retaining copies of client
The Valuable Property Record
documents, at his or her own cost, to defend against
Rule Reference: By-Law 9, section 18.9 complaints or claims that may be made against the
2. The valuable property record documents the paralegal’s paralegal in future.
receipt, storage and delivery of client property. Client
property may include, for example: Guideline 11: Withdrawal
• stocks, bonds or other securities in bearer form,
from Representation
• jewelry, paintings, furs, collector’s items or any saleable
valuables, and General
• any property that a paralegal can convert to cash on his Rule Reference: Rule 3.08
or her own authority.
1. A client may end the paralegal–client relationship at any
3. The valuable property record should not include items time and for any reason. A paralegal is subject to certain
that cannot be sold or negotiated by the paralegal, for restrictions in ending the paralegal–client relationship.
example, wills, securities registered in the client’s name, The Rule requires reasonable notice; an essential element
corporate records or seals. A paralegal should maintain a of reasonable notice is notification to the client, unless
list of these items, but that list should be separate from the client cannot be located after reasonable efforts.
the valuable property record.
2. Whether the paralegal has good cause for withdrawal will
The Client File depend on many factors, including
• the nature and stage of the matter,
• the relationship with the client,
Rule Reference: Rule 3.03(3) • the paralegal’s expertise and experience, and
4. The duty to preserve client property also applies to the • any harm or prejudice to the client that may result from
documents that a client may give to the paralegal at the the withdrawal.
beginning of the paralegal–client relationship and 3. Rule 3.08 specifies a paralegal’s obligations when
documents that are created or collected by the paralegal withdrawing legal services. It sets out situations in which
for the client’s benefit during the relationship. the paralegal
5. The courts have developed law on the issue of the client • may choose to withdraw (optional withdrawal),
file as between lawyers and clients. This jurisprudence
• must withdraw (mandatory withdrawal), and
may be applied to define the paralegal’s client file in
future. Generally, documents provided to a lawyer at the • must comply with special rules (withdrawal from
start of the retainer and those created during the retainer quasi-criminal and criminal cases).
as part of the services provided would belong to the 4. To avoid misunderstandings, it will be helpful for the
client. These include paralegal to explain to the client, at the beginning of the
• originals of all documents prepared for the client, relationship
• all copies of documents for which copies the client has • that all documents to which the client is entitled will be
paid, returned to the client when their relationship ends or
the matter concludes, and
• a copy of letters from a lawyer to third parties or from
third parties to a lawyer, • which documents in the file will belong to the
paralegal, so that they will be kept by the
• originals of letters from a lawyer to the client
paralegal when their relationship ends or the matter is
(presumably these would have already been sent to the
finished.
client in the course of the retainer),
5. To ensure that the client understands these details, the
• copies of case law,
paralegal should consider including them in his or her
• briefs, engagement letter or retainer agreement.
• memoranda of law, where the client paid for 6. Every effort should be made to ensure that withdrawal
preparation of the memoranda, occurs at an appropriate time in the proceedings in
• notes or memoranda of meetings with opposing parties keeping with the paralegal’s obligations. The tribunal,
or their representatives, court or tribunal conferences, opposing parties and others directly affected should also
interviews of witnesses, etc., be notified of the withdrawal.

7. When the paralegal withdraws, he or she is subject to Manner of Withdrawal
restrictions relating to the disclosure of client information.
This would restrict the paralegal from revealing the reason Rule Reference: Rules 3.08(10), (11), (12) & (13)
for withdrawing to a successor (a paralegal or lawyer 17. Where a paralegal withdraws from representation of a
who accepts the client’s matter after the original client, the required manner of withdrawal is set out in
paralegal has withdrawn). Refer to Guideline 8: subrules 3.08(10), (11), (12) and (13).
Confidentiality for further information on this subject.
8. Cooperation with the successor licensee will normally Leaving a Firm
include providing any memoranda of fact or law that have Rule Reference: Rule 3.08 (13.1)
been prepared by the paralegal in connection with the
matter, but confidential information not clearly related to 18. When a paralegal leaves a firm to provide legal services
the matter should not be disclosed without the written elsewhere, it may result in the termination of the
consent of the client. paralegal–client relationship between that paralegal and a
client.
Optional Withdrawal 19. The client’s interests are paramount. Clients should be
free to decide whom to retain without undue influence or
Rule Reference: Rule 3.08(2), (3), (4), (6), (7), (8) & (9) pressure by either the paralegal or the firm. The client
9. During a retainer, a situation may arise that will allow the should be provided with sufficient information by the
paralegal to withdraw from representing the client. paralegal and the remaining paralegals to make an
10. A serious loss of confidence means that the paralegal informed decision about whether to continue with the
and the client can no longer trust and rely on each departing paralegal, remain with the firm where that is
other, making it impossible to have a normal paralegal– possible, or retain a new paralegal.
client relationship. An example would be where the 20. The paralegal and the remaining paralegals should
client deceives or lies to the paralegal. Another example cooperate to ensure that the client receives the necessary
would be where the client refuses unreasonably to information on the available options. While it is preferable
accept and act on the paralegal’s advice on an to prepare a joint notification setting forth such
important point. information, factors to consider in determining who
11. If the retainer relates to a criminal or quasi-criminal should provide it to the client include the extent of the
matter, the paralegal must ensure that he or she complies paralegal’s work for the client, the client’s relationship
with the special rules relating to withdrawal in those with other paralegals in the firm and access to client
types of cases (refer to section entitled “Withdrawal from contact information. In the absence of agreement
Quasi-Criminal and Criminal Cases” at Rule 3.08(7)). between the departing paralegal and the remaining
paralegals as to who will notify the clients, both the
Mandatory Withdrawal departing paralegal and the remaining paralegals should
provide notification.
Rule Reference: Rule 3.08(5), (7), (8) & (9)
21. If a client contacts a firm to request a departed paralegal’s
12. In certain situations, a paralegal is required to withdraw contact information, the remaining paralegals should
from representing a client, even if the paralegal or the provide the professional contact information where
client wishes to continue with the retainer. reasonably possible.
Withdrawal from Criminal or Quasi-Criminal Matters 22. Where a client decides to remain with the departing
paralegal, the instructions referred to in the rule should
Rule Reference: Rule 3.08(7), (8) & (9) include written authorizations for the transfer of files and
13. Whether a paralegal may withdraw in these types of client property. In all cases, the situation should be
matters has to do with the amount of time between the managed in a way that minimizes expense and avoids
withdrawal (the date and time the paralegal intends to prejudice to the client.
stop representing the client) and the trial (the date and 23 In advance of providing notice to clients of his or her
time the client’s trial begins). intended departure the paralegal should provide such
14. Generally, the amount of time between the withdrawal notice to the firm as is reasonable in the circumstances.
and trial must be sufficient to allow the client to hire 24. When a client chooses to remain with the firm, the firm
another representative and the new representative to should consider whether it is reasonable in the
prepare properly for trial. circumstances to charge the client for time expended by
15. While the Rules do not require the paralegal to make an another firm member to become familiar with the file.
application to be removed as the client’s representative, 25. The principles outlined in this rule and commentary will
most tribunal rules do. Therefore, the paralegal should apply to the dissolution of a firm. When a firm is
consult the rules of the tribunal to determine what dissolved, the paralegal–client relationship may end with
process is to be followed. The paralegal must not tell the one or more of the paralegals involved in the retainer. The
tribunal or the prosecutor the reasons for withdrawal, client should be notified of the dissolution and provided
unless disclosure is justified in accordance with the Rules. with sufficient information to decide who to retain. The
16. The paralegal may seek to adjourn the trial to give the paralegals who are no longer retained by the client should
client or the new representative more time to prepare, as try to minimize expense and avoid prejudice to the client.
long as the adjournment does not prejudice the client. [Amended—June 2017]


26. Paralegals are reminded that Rules 3.7-7A(1) and 3.7-7A(2) Candour, Fairness, Courtesy and Respect
and Commentary of the Rules of Professional Conduct
describe similar obligations for lawyers. Rule Reference: Rule 4.01(1), 4.01(4)(d)
Duties of the Successor Paralegal Rule Reference: Rule 4.01(5)(o)
Rule Reference: Rule 3.08(14) Rule Reference: Rule 7.01(3)

27. If a client who was represented by another paralegal or a 3. A paralegal should not engage in rude and disruptive
lawyer contacts a paralegal, that paralegal has obligations behaviour before a tribunal, or uncivil correspondence,
as the successor paralegal. language or behaviour towards opposing parties or their
advocates.
Written Confirmation
Malicious Proceedings
28. If a paralegal’s services are terminated while the client’s
matter is ongoing and the client requests that the Rule Reference: Rule 4.01(5)(a)
matter be transferred to a new paralegal or lawyer, the
4. A paralegal should not help a client to bring proceedings
paralegal should confirm, in writing, the termination of
that have no merit. Claims that have no merit waste the
the retainer. The paralegal should also obtain a
time of the tribunal and its officers, and do not further
direction, signed by the client, for release of the
the cause of justice.
client’s file to a successor paralegal or lawyer. A
direction is a written document instructing the Misleading the Tribunal
paralegal to release the file to the successor paralegal or
lawyer. If the file will be collected by the client Rule Reference: Rule 4.01(5)(c), (d), (f), (i), (j), & (k)
personally, the paralegal should obtain a written 5. A paralegal must ensure that neither the paralegal nor his
acknowledgement signed by the client, confirming that or her client(s) misleads the tribunal. For a tribunal to
the client has received the file. decide a matter effectively and appropriately, the tribunal
must have access to everything that is relevant to the
issues to be decided.
Guideline 12: Advocacy Improperly Influencing the Tribunal
Definitions
Rule Reference: Rule 4.01(5)(e) & (h)
Rule Reference: Rule 4 6. For the public to have respect for the administration of
justice, tribunals must be fair, objective, independent and
Rule Reference: Rule 1.02 definition of “tribunal”
neutral. There should be no personal connection between
1. An advocate is someone who speaks and acts on an adjudicator and any of the parties to a proceeding or
behalf of others. Rule 4 outlines a paralegal’s duties their advocates.
when appearing as an advocate before a tribunal. 7. The only appropriate way to influence the tribunal’s
Rule 4 applies to all appearances and all proceedings decision is through open persuasion as an advocate. This
before all tribunals. A tribunal can be either an is done by making submissions based on legal principles
administrative board or a court of law. An adjudicator and offering appropriate evidence before the tribunal in
is any person who hears or considers any type of the presence of, or on notice to, all parties to the
proceeding before a tribunal and renders a decision proceeding, or as otherwise permitted or required by the
with respect to that proceeding. tribunal’s rules of procedure. A paralegal should not
General communicate directly with the adjudicator in the absence
of the other parties, unless permitted to do so by the
Rule Reference: Rule 4 tribunal’s rules of procedure.
2. The paralegal has a duty to represent his or her client Dishonest Conduct
diligently and fearlessly. Generally, the paralegal has
no obligation to assist an opposing party, or to Rule Reference: Rule 4.01(5)(b), (c) & (f)
advance matters harmful to the client’s case. 8. Acting with integrity before a tribunal means being
However, these general principles do not mean that, honest and acting with high ethical principles.
when acting as advocate for a client before a tribunal,
the paralegal can behave as he or she likes or, in some Admissions by the Client
cases, as his or her client may instruct. Rule 4
describes the professional obligations that a paralegal Rule Reference: Rule 4.01(5)(b), (c) & (f)
owes to opposing parties, other paralegals and 9. When defending an accused person, a paralegal’s duty is
lawyers, the tribunal and the administration of to protect the client from being convicted, except by a
justice. These obligations are paramount, and must be tribunal of competent jurisdiction and upon legal
met by the paralegal in each and every tribunal evidence sufficient to support a conviction for the offence
proceeding in which the paralegal acts as advocate for with which the client is charged. Accordingly, a paralegal
a client. may properly rely on any evidence or defences, including


“technicalities,” as long as they are not known to be false (c) delivering the evidence to the tribunal in the
or fraudulent. relevant proceeding, which may also include seeking
10. However, admissions made by a client to a paralegal may the direction of the tribunal to facilitate access by
impose strict limitations on the paralegal’s conduct of the the prosecution or defence for testing or
client’s defence. The client should be made aware of this examination; or
by the paralegal. Where the client has admitted to the (d) disclosing the existence of the evidence to the
paralegal any or all of the elements of the offence with prosecution.
which the client is charged, a paralegal must not do or say 13. A paralegal should balance the duty of loyalty and
anything before the tribunal, including calling any confidentiality owed to the client with the duties owed to
evidence, that would contradict the facts admitted by the the administration of justice. When a paralegal discloses
client to the paralegal. This would be misleading the or delivers incriminating physical evidence to law
court. enforcement authorities or to the prosecution, the
11. Where the client has admitted to the paralegal all the paralegal has a duty to protect client confidentiality,
elements of the offence, and the paralegal is convinced including the client’s identity.
that the admissions are true and voluntary, the paralegal 14. A paralegal has no obligation to assist the authorities in
may properly take objection to the jurisdiction of the gathering physical evidence of crime but cannot act or
tribunal, or to the form, admissibility or sufficiency of the advise anyone to hinder an investigation or a prosecution.
evidence. The paralegal could not suggest that someone The paralegal’s advice to a client that the client has the
else committed the offence, try to establish an alibi or call right to refuse to divulge the location of physical evidence
any evidence which, by reason of the admissions, the does not constitute hindering an investigation. A
paralegal believes to be false. Admission by the client to paralegal who becomes aware of the existence of
the paralegal of all of the elements of the offence with incriminating physical evidence or declines to take
which the paralegal is charged also limits the extent to possession of it should not participate in its concealment,
which the paralegal may attack the evidence for the destruction or alteration.
prosecution. The paralegal may test the evidence given by [Amended—June 2017]
each witness for the prosecution and may argue that the
evidence, as a whole, is not enough to prove the client Witnesses
guilty. The paralegal should go no further than that.
Rule Reference: Rule 4.01(5) (g), (i), (j), (l), (m) & (n)
Incriminating Physical Evidence
Rule Reference: Rule 4.01(5.2)
12. A paralegal is not ordinarily required to take or keep
possession of incriminating physical evidence or to Rule Reference: Rule 7.01(6)
disclose its existence. Possession of illegal things could 15. As an advocate, a paralegal may contact all possible
constitute an offence. A paralegal should immediately witnesses for both sides of a matter (subject to Rule 7.02
consult an experienced criminal lawyer regarding their regarding communications with a represented person,
professional obligations. The paralegal should carefully corporation, or organization), but the paralegal must be
consider his or her options, which may include, as soon as fair and honest when dealing with them. This includes the
reasonably possible; paralegal speaking to the opposing party or co-accused.
(a) considering whether to retain independent legal The paralegal must make it clear to the witness who the
counsel to provide advice about the paralegal’s paralegal’s client(s) is/are and that the paralegal is acting
obligations. If retained, the paralegal and only in the interests of his or her client(s). As part of this
independent legal counsel should consider disclosure, the paralegal should give the witness his or her
(i) whether independent legal counsel should be name and tell the witness that he or she is a paralegal,
informed of the identity of the client and the name of the client(s) he or she represents in the
instructed not to disclose the identity of the matter, and his or her status in the proceeding. A
instructing paralegal to law enforcement paralegal should make an extra effort to be clear when
authorities or to the prosecution, and the witness does not have legal representation. Note that,
(ii) whether independent legal counsel should, although a paralegal may ask to speak to a potential
either directly or anonymously, taking into witness, the witness does not have to speak to
account the procedures appropriate in the the paralegal.
circumstances 16. During a hearing, a paralegal’s ability to speak with a
witness giving testimony is limited. This ensures that the
(I) disclose or deliver the evidence to law
paralegal does not influence the evidence the witness will
enforcement authorities or the prosecution, or
give. A comment made by the paralegal to the paralegal’s
(II) both disclose and deliver the evidence to law own witness during court recess, for example, may result
enforcement authorities and to the prosecution; in a breach of the Rules. The witness may return to the
(b) delivering the evidence to law enforcement witness box and, as a result of the communication with
authorities or to the prosecution, either directly or the paralegal, offer evidence that is slanted to benefit the
anonymously, taking into account the procedures paralegal’s client. Such evidence is no longer neutral and
appropriate in the circumstances; could mislead the tribunal.


Disclosure of Documents Withdrawal and Disclosure Obligations
Rule Reference: Rule 4.01(6) Rule Reference: Rule 4.01(7)
17. The rules of procedure of the tribunal may require parties Rule Reference: Rule 3.08
to produce documents and information to the tribunal or
to the other parties in the matter. Timely, complete and 23. If, after explanation and advice from the paralegal, the client
accurate disclosure helps settlement efforts and makes persists in instructing the paralegal to engage in or continue
the hearing process more effective and fair. a type of conduct prohibited by Rule 4, the paralegal must
withdraw from representing the client in the matter. (See
Agreement on Guilty Pleas Guideline 11: Withdrawal of Representation.)

18. As an advocate for a person accused in a criminal Guideline 13: Fees
or quasi-criminal matter, the paralegal should take
Introduction
steps reasonable in the circumstances to satisfy himself
or herself that the client’s instructions to enter into the Rule Reference: Rule 5.01(1)
agreement on a guilty plea are informed and voluntary.
1. Too often, misunderstandings about fees and
The paralegal should ensure the client’s instructions
disbursements result in disputes over legal bills and
to enter into an agreement on a guilty plea are in
complaints from unhappy clients. Since these disputes
writing.
reflect badly on the paralegal profession and the
The Paralegal as Witness administration of justice, it is important that a paralegal
discuss with his or her client(s) the amount of fees and
Rule Reference: Rule 4.04 disbursements that will likely be charged. It will be to the
19. As an advocate, the paralegal’s role is to further benefit of all concerned if the paralegal ensures that the
the client’s case within the limits of the law. The role client has a clear understanding not only of what legal
of a witness is to give evidence of facts that may or services the paralegal will provide, but how much those
may not assist in furthering the case of any of the services are likely to cost.
parties to a proceeding. Because these roles are
Fees and Disbursements
different, a person may not be able to carry out the
functions of both advocate and witness at the 2. Generally, a fee refers to the paralegal’s wage. Clients
same time. pay fees for the legal services provided by the paralegal.
Fees may be billed in a variety of ways, including:
20. Unless permitted by the Tribunal, when acting as an
advocate for his or her client before a tribunal, the • An hourly rate, charging for the actual time spent on
paralegal should not express personal opinions or the client matter,
beliefs or assert as a fact anything that is properly subject • A block, fixed or flat fee, charging a fixed amount for
to legal proof, cross-examination, or challenge, or performing a particular task,
otherwise appear to be giving unsworn testimony. This is • Fees by stages, charging for a matter which is broken
improper and may put the paralegal’s own credibility down into stages, and an estimate is given as to the fee
in issue. for each stage or step in the matter, or
20.1 Unless permitted by the tribunal, the paralegal who is a • Contingency fees, where part or all of the paralegal’s
necessary witness should testify and entrust the conduct fee depends on the successful completion of the
of the case to another licensee. A paralegal who has matter, and the amount may be expressed as a
appeared as a witness on a matter should not act as an percentage of the client’s recovery in the matter.
advocate or legal representative in any appeal of 3. The paralegal should consider which method best suits
that matter. the circumstances and the client.
20.2 There are no restrictions on the advocate’s right to 4. A disbursement refers to any expense that the paralegal
cross-examine another licensee, however, and the pays on behalf of the client for which the paralegal is
paralegal who does appear as a witness should not entitled to be reimbursed by the client. Common
expect to receive special treatment because of disbursements include charges for
professional status.
• research, such as Quicklaw charges or research
Dealing with Unrepresented Persons conducted by third party professionals,
• mileage,
• postage, photocopying, faxing documents or sending
21. The paralegal has a special duty when representing a documents by courier,
client and an opposing party is not represented by a
• long-distance phone calls,
• expert reports,
22. To avoid misunderstandings, it will be helpful for the
paralegal to confirm in writing the steps he or she takes • transcripts or certified documents, and/or
to fulfill the requirements of Rule 4.05. • tribunal or court filing fees related to the client matter.


5. A paralegal cannot charge more than the actual cost of 11. Refusing to reimburse any portion of advance fees for
the disbursement. A paralegal cannot make a profit from work that has not been carried out when the contract of
disbursements at the client’s expense. professional services with the client has terminated is a
breach of the obligation to act with integrity.
Discussing Fees and Disbursements
Fee Splitting and Referral Fees
Rule Reference: Rule 5.01(11), (12) & (13)
6. The following are steps that will assist a paralegal in
meeting his or her obligations under Rule 5.01(1). By-Law 7 (Multi-Discipline Practices)
(a) A paralegal should provide to the client in writing, 12. Fee splitting occurs when a paralegal shares or divides
before or within a reasonable time after commencing his or her fee with another person. Where a client
a representation, as much information regarding fees consents, a paralegal and another paralegal or lawyer
and disbursements, and interest as is reasonable and who are not at the same firm may divide between them
practical in the circumstances, including the basis on the fees for a matter, so long as the fees are split relative
which fees will be determined; to the work done and the responsibility assumed by each
paralegal and/or lawyer. Multi-discipline practices are
(b) A paralegal should confirm with the client in writing
exempt from the prohibition against fee-splitting in
the substance of all fee discussions that occur as a
certain circumstances.
matter progresses. The paralegal may revise the
initial estimate of fees and disbursements. 13. A referral fee is defined in Rule 5.01(14) of the Paralegal
Rules of Conduct and includes:
(c) A paralegal should openly disclose and discuss with
clients all items that will be charged as disbursements • a fee paid by a paralegal to another paralegal or lawyer
and how those amounts will be calculated. If an for referring a client to the paralegal, or
administrative charge forms part of the amount • a fee paid to the paralegal by another paralegal or
charged as a disbursement, disclosure of such charge lawyer for his or her referral of a client to the other
should be made to the client(s) in advance. paralegal or lawyer.
7. In discussing fees and disbursements with clients, it is 14. The Rules do not prohibit a paralegal from:
appropriate for a paralegal to (a) Making an arrangement respecting the purchase and
• provide a reasonable estimate of the total cost as sale of a professional business when the
opposed to an unreasonable estimate designed to consideration payable includes a percentage of
garner the client’s business, and revenues generated from the business sold;
• not manipulate fees and disbursements in a manner as (b) Entering into a lease under which a landlord directly
to provide a lower fee estimate. or indirectly shares in the fees or revenues generated
8. When something happens in the matter that the by the provision of legal services;
paralegal or client did not expect, resulting in costs (c) Paying an employee for services, other than for
that are higher than the paralegal’s original estimate, referring clients, based on the revenue of the
the paralegal should immediately give the client a paralegal’s firm or professional business.
revised estimate of cost, and an explanation of why 15. Rule 5.01(20) is intended to ensure that paralegals do not
the original estimate has changed. The client can then avoid or evade Rules 5.01(11), (14), and (15).
instruct the paralegal based on the new information.
16. Where a paralegal does anything that has the effect of
The new understanding should be confirmed in
obtaining or giving financial or other reward for the
writing.
referral of legal work, Rule 5.01(20) is breached unless the
Hidden Fees paralegal may reasonably be considered to have done so
primarily for bona fide purposes other than for obtaining
Rule Reference: Rule 5.01(3) or giving such a reward.
9. The relationship between paralegal and client is based on 17. Examples of breaches of Rule 5.01(20) could include
trust. The client must be able to rely on the paralegal’s entering into transactions at non-market prices between
honesty and ability to act in the client’s best interests. the paralegal or lawyer who makes a referral and the
This means that the paralegal cannot hide from the client paralegal or lawyer who receives the referral. Specific
any financial dealings in his or her matter. examples could include non-market leases or cost-sharing
arrangements. Similarly, Rule 5.01(20) could be breached
Payment and Appropriation of Funds where a paralegal or lawyer enters into a consulting or
other relationship with a paralegal or lawyer who has
Rule Reference: Rule 5.01(5) received a referral for consideration that does not fairly
Rule 2.01(1) reflect the work done as such.
10. The Rules are not intended to be an exhaustive statement 18. A paralegal who refers clients to other paralegals or
of the considerations that apply to payment of a lawyers, and a paralegal who receives referrals from other
paralegal’s account from trust. The handling of trust paralegals or lawyers each have fiduciary duties to the
money is generally governed by the by-laws of the Law referred clients. Referral of a client must be in the client’s
Society. best interests.


19. The decision about who to retain is that of the client. The The Retainer Agreement
requirements in Rules 5.01(15) to (19) of the Paralegal
Rules of Conduct are intended to ensure that the client Rule Reference: Rule 5.01(1)
has all of the relevant information to make this decision, 2. Once the paralegal has been hired by a client for a
including information about fees. particular matter, it is advisable that the paralegal discuss
20. In the normal course, a paralegal who is referring a client with the client two essential terms of the paralegal’s
should recommend more than one paralegal or lawyer to retainer by the client: the scope of the legal services to be
the client. There may be circumstances however in which provided and the anticipated cost of those services. The
there is only one suitable referral, for reasons such as paralegal should ensure that the client clearly understands
expertise or geographic location, and this must be noted what legal services the paralegal is undertaking to
in the referral agreement. provide. It is helpful for both the paralegal and client to
confirm this understanding in writing by
The Statement of Account
• a written retainer agreement signed by the client,
Rule Reference: Rule 5.01(4) • an engagement letter from the paralegal, or
21. In addition to detailing fees and disbursements, the • a confirming memo to the client (sent by mail, e-mail or
statement of account or bill delivered to the client by the fax).
paralegal should detail clearly and separately the amount
the paralegal has charged for Harmonized Sales Tax (HST).
The HST applies to fees and some disbursements, as 2.1. A written retainer agreement is particularly helpful in the
outlined by the Canada Revenue Agency (CRA) guidelines. circumstances of a limited scope retainer.
The paralegal should review and sign the statement of 3. This written confirmation should set out the scope of
account before it is sent to the client. legal services to be provided and describe how fees,
22. Should a dispute arise about the statement of account, disbursements and HST will be charged (see Guideline 13:
the paralegal should discuss the matter openly and calmly Fees).
with the client in an effort to resolve the matter. Civility The Money Retainer
and professionalism must govern all discussions, including
discussions relating to fee disputes with clients. Rule Reference: By-Law 9, part IV
Contingency Fees Rule Reference: Rule 5.01
Rule Reference: Rule 5.01(6)–(8) 4. If practical, the paralegal should obtain a money retainer
from the client at the beginning of the relationship. When
23. A contingency fee is a fee that is paid when and if a
determining the amount of the money retainer, the
particular result is achieved in a client’s matter.
paralegal should consider the circumstances of each case,
24. Rule 5.01(7) outlines the factors to be considered in the circumstances of the client and the anticipated fees,
determining the appropriate percentage (or other basis) of disbursements and HST. Many of the factors are the same
the contingency fee agreement. Regardless of which as those used in deciding if a fee is fair and reasonable.
factors are used to determine the fee and the other terms
5. The client should be advised at the outset if and when
of the contingency fee agreement, the ultimate fee must
further retainers will be required. There may also be
still be fair and reasonable.
circumstances where a money retainer is not appropriate,
25. The contingency fee agreement should be clear about for example, when a client and the paralegal have entered
how the fee will be calculated. into a contingency fee agreement.
26. It may be helpful for a paralegal to refer to Regulation 6. A money retainer must be deposited into a paralegal’s
195/04 to the Solicitor’s Act (which applies to contingency trust account. After the paralegal has delivered to the
fees for lawyers) for guidance as to what terms should be client a statement of account or bill, the paralegal pays
included in a paralegal contingency fee agreement. the amount of his or her statement of account from the
money retainer held in trust. Disbursements and expenses
Guideline 14: Retainers paid on behalf of the client to others may be paid directly
from the money retainer in the paralegal’s trust account.
General To avoid disagreements in circumstances where a
1. In the context of providing legal services, the word disbursement will be particularly substantial, a paralegal
retainer may mean any or all of the following: may want to obtain the client’s approval prior to the
• the client’s act of hiring the paralegal to provide legal expense being incurred.
services (i.e., a retainer),
• the contract that outlines the legal services the
paralegal will provide to the client and the fees and Guideline 15: Trust Accounts
disbursements and HST to be paid by the client (i.e., a General
retainer agreement), or
• monies paid by the client to the paralegal in advance to Rule Reference: By-Law 9
secure his or her services in the near future and against 1. A paralegal has special obligations when handling client
which future fees will be charged (i.e., a money retainer). funds. When a paralegal receives money that belongs to a


client or is to be held on behalf of a client, the funds must Public Appearances and Statements
be deposited to a trust account. Because client funds
must be held in trust by the paralegal, they are also Rule Reference: Rule 6.01(1), (2), (4) & (4.1)
known as trust funds.
Rule Reference: Rule 3.03, 3.04
2. By-Law 9 outlines a paralegal’s responsibilities regarding
financial transactions and record-keeping, including the Rule Reference: Rule 4.01(1)
operation of a trust account.
Authorization to Withdraw from Trust 3. When making statements to the media with, or on behalf
of, a client, a paralegal must be mindful of his or her
Rule Reference: By-Law 9 obligations to act in the client’s best interests and within
3. A paralegal must be in control of his or her trust the scope of his or her instructions from the client. It is
account. Although a person who is not a licensed also important that a person’s, particularly an accused
paralegal or lawyer may be permitted to disburse trust person’s, right to a fair trial or hearing not be impaired by
funds alone in exceptional circumstances, the Law inappropriate public statements made before a case
Society has found appropriate exceptional has concluded.
circumstances to be very rare.
4. If there is only one paralegal with signing authority on Provision of Legal Services Without a Licence/Practice of
the trust account(s) it would be prudent to make Law Without a Licence
arrangements for another paralegal or a lawyer to have
signing authority on the trust account(s) in case of an
unexpected emergency (i.e. illness or accident) or 4. The obligations found in subrules 6.01(5) & (6) stem from
planned absence (i.e. vacation). The paralegal may a paralegal’s obligation to the administration of justice
arrange this through his or her financial institution and from the regulatory scheme for paralegals and
through a power of attorney. The chosen paralegal or lawyers set out in the Act and discussed below.
lawyer must be insured and entitled to provide legal 5. Under the Act, anyone who provides legal services or
services or to practise law. practises law must be licensed by the Law Society, unless
5. To ensure that no unauthorized withdrawals from trust they are exempt from this requirement, or deemed not to
are being made, the paralegal should limit access to blank be providing legal services or practising law. A person
trust account cheques and electronic banking software. A who is not a lawyer or a licensed paralegal is subject
paralegal should never sign blank trust cheques. The neither to a professional code of conduct nor the Law
paralegal should use pre-numbered trust cheques and Society’s jurisdiction, which exist to protect the public.
keep them locked up when not in use. Only clients of regulated service providers have important
protections, such as the following:
• adherence to a mandatory code of professional
Guideline 16: Duty to the conduct,
• maintenance and operation of a trust account in
Administration of Justice accordance with strict mandatory guidelines,
General • mandatory professional liability insurance coverage, and
Rule Reference: Rule 6.01 • the Law Society’s Compensation Funds.
1. An important part of a paralegal’s duty to act with

integrity is his or her obligation to the administration of
justice detailed in Rule 6. The obligation includes a Guideline 17: Duty to Paralegals, Lawyers
paralegal’s duty to assist in maintaining the security of and Others
court facilities, to refrain from inappropriate public
statements, and the obligation to prevent unauthorized General
practice. Rule Reference: Rule 2.01(3)
Security of Court Facilities Rule Reference: Rule 7.01
Rule Reference: Rule 6.01(3) 1. Discourteous and uncivil behaviour between paralegals or
between a paralegal and a lawyer will lessen the public’s
Rule 3.03 respect for the administration of justice and may harm the
2. An aspect of supporting the justice system is ensuring clients’ interests. Any ill feeling that may exist between
that its facilities remain safe. Where appropriate, a parties, particularly during adversarial proceedings, should
paralegal in the situation covered by Rule 6.01(3) should never be allowed to influence paralegals or lawyers in
consider requesting additional security at the facility and their conduct and demeanour toward each other or the
notifying other paralegals or lawyers who may be parties. Hostility or conflict between representatives may
affected. In considering what, if any, action to take with impair their ability to focus on their respective clients’
respect to this obligation, the paralegal must consider his interests and to have matters resolved without undue
or her obligations under Rule 3.03. delay or cost.


Prohibited Conduct 3. A paralegal should ensure that employees who are not
licensed clearly identify themselves as such when
Rule Reference: Rule 7.01 communicating with clients, prospective clients, courts or
2. The presence of personal animosity between paralegals or tribunals, or the public. This includes both written and
between a paralegal and a lawyer involved in a matter verbal communications.
may cause their judgment to be clouded by emotional 4. A paralegal in a multi-discipline practice is responsible for
factors and hinder the proper resolution of the matter. To the actions of his or her non-licensee partners and
that end, Rule 7.01 outlines various types of conduct that associates as set out in Rule 8.01(5).
are specifically prohibited.
Hiring & Training Staff
3. One of the prohibitions in Rule 7.01(1) refers to sharp
practice. Sharp practice occurs when a paralegal obtains, or Rule Reference: Rule 8.01(1)
tries to obtain, an advantage for the paralegal or client(s), by
using dishonourable means. This would include, for example, Rule Reference: Rule 3.01(4)(c)(h)
lying to another paralegal or a lawyer, trying to trick another 5. In order to fulfill his or her responsibilities to clients under the
paralegal or a lawyer into doing something or making an Rules and By-Laws, a paralegal should take care to properly
oral promise to another paralegal or lawyer with the hire and train staff. A paralegal should obtain information
intention of reneging on the promise later. As another about a potential employee to inform himself or herself
example, if an opposing paralegal were under a mistaken about the employee’s competence and trustworthiness. If
belief about the date of an upcoming trial, a paralegal would the position involves handling money, the paralegal may ask
be obligated to tell the opposing representative about the for the applicant’s consent to check his or her criminal record
error, rather than ignoring the matter in the hope the and credit reports. A paralegal must comply with privacy
opposing representative would not appear at the trial. legislation and should refer to the Rules to review questions
Limited Scope Retainer that can and cannot be asked of an applicant, as outlined in
the Human Rights Code. A paralegal should confirm the
Rule Reference: Rule 7.02(2) information contained in a candidate’s resume, consult
3.1. Where notice as described in Rule 7.02(2) has been references and verify previous employment experiences
provided to a paralegal, the paralegal is required to before offering employment to a candidate.
communicate with the legal practitioner who is 6. Proper hiring and training of persons who are not licensed
representing the person under a limited scope retainer, will assist the paralegal in managing his or her practice
but only to the extent of the matter(s) within the limited effectively, as required by Rule 3.01(4)(c)(h). Since the
scope retainer as identified by the legal practitioner. The paralegal is responsible for the professional business, it
paralegal may communicate with the person on matters will assist the paralegal in fulfilling this responsibility if the
outside the limited scope retainer. paralegal educates staff regarding
• the types of tasks which will and will not be delegated,
• the need to act with courtesy and professionalism,
Guideline 18: Supervision of Staff • the definition of discrimination and harassment, and
General the prohibition against any conduct that amounts to
discrimination and harassment,
Rule Reference: By-Law 7.1 • the duty to maintain client confidentiality and methods
Rule 8.01(1), (3), (4) & (5) used to protect confidential client information (e.g.
avoiding gossip inside and outside of the office),
By-Law 7 (Multi-Discipline Practices)
• the definition of a conflict of interest, the duty to avoid
1. A paralegal may, in appropriate circumstances, provide conflicts and how to use a conflict checking system,
services with the assistance of persons of whose
• proper handling of client property, including money, and
competence the paralegal is satisfied. Proper use of
support staff allows the paralegal to make efficient use of • proper record keeping.
the time he or she has for providing legal services, and
may result in savings to the client. Under By-Law 7.1,
some tasks may be delegated to persons who are not Guideline 19: Making Legal Services
licensed and other tasks may not. Though certain tasks
may be delegated, the paralegal remains responsible for
Available and Marketing of Legal
all services rendered and all communications by and Services
prepared by his or her employees.
Making Legal Services Available
2. The extent of supervision required will depend on the
task, including the degree of standardization and Rule Reference: Rule 8.02
repetitiveness of the task and the experience of the
employee. Extra supervisory care may be needed if there Rule Reference: Rule 8.03
is something different or unusual in the task. The burden 1. Rule 8.02(1) describes the paralegal’s obligation to make
rests on the paralegal to educate the employee legal services available and the manner in which he or she
concerning the tasks that may be assigned and then to must do so. A paralegal has a general right to decline a
supervise the manner in which these tasks are completed. particular representation (except when assigned as


representative by a tribunal), but it is a right that should be 6. Examples of marketing that do contravene Rule 8.03(1)
exercised prudently, particularly if the probable result include:
would be to make it difficult for a person to obtain legal (a) marketing services that the paralegal is not currently
advice or representation. Generally, the paralegal should able to perform to the standard of a competent
not exercise the right merely because a person seeking paralegal;
legal services or that person’s cause is unpopular or
(b) bait and switch marketing, that is marketing by
notorious, or because powerful interests or allegations of
which clients are attracted by offers of services,
misconduct or malfeasance are involved, or because of the
prices or terms different from those commonly
paralegal’s private opinion about the guilt of the accused.
provided to clients who respond to the marketing;
A paralegal declining representation should assist in
obtaining the services of a lawyer or another licensed (c) marketing that fails to clearly and prominently
paralegal qualified in the particular field and able to act. disclose a practice that the paralegal has of referring
clients for a fee, or other consideration, to
2. A person who is vulnerable or who has suffered a
other licensees;
traumatic experience and has not yet had a chance to
recover may need the professional assistance of a (d) failing to expressly state that the marketed services
paralegal. A paralegal is permitted to provide assistance will be provided by licensed lawyers, by licensed
to a person if a close relative or personal friend of the paralegals or both as the case may be;
person contacts the paralegal for this purpose, and to (e) referring to awards, rankings and third party
offer assistance to a person with whom the paralegal has endorsements that are not bona fide or are likely to
a close family or professional relationship. Rules 8.02 and be misleading, confusing, or deceptive; and
8.03 prohibit the paralegal from using unconscionable or (f) taking advantage of a vulnerable person or group.
exploitive or other means that bring the profession or the
administration of justice into disrepute. 7. Rule 8.03(2) establishes, among other things,
requirements for communication in the marketing of legal
Marketing of Legal Services services. These requirements apply to different forms of
marketing including advertisements about the size,
Rule Reference: Rule 8.02 location and nature of the paralegal’s practice and awards
Rule Reference: Rule 8.03 and endorsements from third parties.
8. Paragraphs 6(a) –(d) of these Guidelines are intended to
3. In presenting and promoting a paralegal practice, a
ensure that marketing does not mislead by failing to make
paralegal must comply with the Rules regarding the
clear what services are actually available and are intended
marketing of legal services.
to be provided. Paragraph (d) is intended to better ensure
4. Rules 8.02 and 8.03 impose certain restrictions and that prospective clients are aware whether the marketed
obligations on a paralegal who wishes to market and/or services being offered will be performed by lawyers or
advertise his or her legal services. The Rules help to paralegals.
ensure that a paralegal does not mislead clients or the
9. Paragraph 6(e) of these Guidelines addresses marketing by
public while still permitting the paralegal to differentiate
reference to awards, rankings and third party
himself or herself and his or her services from those of
endorsements. The terms “awards” and “rankings” are
lawyers or other paralegals. A paralegal should ensure
intended to be interpreted broadly and to include
that his or her marketing and advertising does not
superlative titles such as “best,” “super,” “#1” and similar
suggest that the paralegal is a lawyer and should take
indications. Awards, rankings and third party endorsements
steps to correct any misapprehension on the part of a
which contravene this rule include awards or rankings that:
client or prospective client in that respect.
(a) do not genuinely reflect the performance of the
5. Examples of marketing practices that may contravene Rule
paralegal and the quality of services provided by the
8.03(1) include:
paralegal but appear to do so;
(a) stating an amount of money that the paralegal has
recovered for a client or refer to the paralegal’s (b) are not the result of a reasonable evaluative process;
degree of success in past cases, unless such (c) are conferred in part as a result of the payment of a
statement is accompanied by a further statement fee or other consideration rather than as a result of a
that past results are not necessarily indicative of legitimate evaluation of the performance and quality
future results and that the amount recovered and of the paralegal; or
other litigation outcomes will vary according to the (d) the paralegal could not have demonstrated, at the
facts in individual cases; time of reference, were compliant with this rule.
(b) suggesting qualitative superiority to lawyers or other 10. Particular care should be taken in respect of awards and
paralegals; rankings referenced in mass advertising, such as in
(c) raising expectations; newspaper and internet advertising and advertising on
(d) suggesting or implying the paralegal is aggressive; television, billboards, taxis, buses and the like. In such
contexts, references to awards, rankings and third party
(e) disparaging or demeaning other persons, groups, endorsements must be particularly clear and
organizations or institutions; straightforward as there is little opportunity for reflection
(f) using testimonials or endorsements which contain or appreciation on the part of the potential client or to
emotional appeals. provide context.


11. References to awards and honours that are genuine
reflections of the professional or civic service do not
Guideline 21: Duty to the Law Society
contravene this rule. For example, a potential client may General
consider it useful to know that a paralegal has been Rule Reference: Rule 9
honoured for their service by the Canadian or the Ontario
1. All paralegals and lawyers owe a duty to their governing
government, the Law Society or a professional
body, the Law Society, so that it can effectively and
organization. However, the paralegal should take care to
efficiently carry out its mandate to govern the legal
ensure that such awards and honours reflect a genuine
professions in the public interest. Rule 9 details various
and responsible assessment in the public interest.
obligations owed to the Law Society, many of which focus
12. Rule 8.03(2) also requires marketing to be consistent with on measures to protect the public from inappropriate
a high standard of professionalism. Unprofessional paralegal or lawyer conduct.
marketing is not in the best interests of the public. It has a
negative impact on the reputation of paralegals, the legal Duty to Respond Promptly and to Co-operate with an
professions and the administration of justice. The Law Investigation
Society has acknowledged in the Rules the special role of Rule Reference: Rule 9.01(1)
the professions to recognize and protect the dignity of
individuals and the diversity of the community in Ontario. 2. In addition to the obligation to reply promptly and
Marketing practices must conform to the requirements of completely to communication from the Law Society which is
human rights laws in Ontario. set out in Rule 9.01(1), a paralegal also has a duty to
cooperate with a person conducting an investigation under
13. Examples of marketing practices which may be
the Act. A paralegal who fails to respond promptly and
inconsistent with a high degree of professionalism would
completely to a Law Society inquiry about a complaint, or
be images, language or statements that are violent, racist
who fails to cooperate with a Law Society investigation, may
or sexually offensive, take advantage of a vulnerable
be disciplined on that issue, regardless of the merits or
person or group or refer negatively to other licensees, the
outcome of the original complaint.
legal professions or the administration of justice.
14. Rule 8.03(4) and Guideline 6(d) to Rule 8.03(1) foster Duty to Report Misconduct
public awareness that both lawyers and paralegals are Rule Reference: Rule 9.01(2)–(8)
licensed by the Law Society, and transparency as to who
3. Unless a paralegal or lawyer who departs from proper
is offering to provide services.
professional conduct is checked at an early stage, loss
15. Rule 8.03(5) prohibits the marketing of second opinion or damage to clients and others may ensue. As such, a
services. The provision of second opinions is a valuable service paralegal must assist the Law Society in upholding the
to clients. However, second opinion marketing is commonly integrity of the profession by reporting professional
with a view of obtaining the retainer, rather than providing a misconduct of the type outlined in Rule 9.01(2).
second opinion. Such “bait and switch” marketing is
4. Evidence of seemingly isolated events, or “less serious”
inappropriate. The marketing of second opinions is prohibited
breaches of the Rules, may, under investigation, disclose a
under this rule, whatever the intent of the marketing.
more serious situation or may indicate the commencement
of a course of conduct that may lead to serious breaches in
the future. It is proper therefore (unless it is confidential or
Guideline 20: Insurance otherwise unlawful) for a paralegal to report to the Law
General Society any instance involving a breach of the Rules or the
Rules of Professional Conduct.
Rule Reference: Rule 8.04(1)–(3) 5. The obligation to report misconduct applies to the
1. As soon as a paralegal discovers an error or omission that paralegal’s own conduct, as well as that of other
is or may reasonably be expected to involve liability to his paralegals and lawyers.
or her client, the paralegal should take the following 6. The onus is on the paralegal to take the necessary steps
steps, in addition to those required by Rule 8.04: to carry out his or her obligations to the Law Society and
• immediately arrange an interview with the client and to protect both himself or herself and his or her client. If
advise the client that an error or omission may have a paralegal is unsure as to whether to report another
occurred that may form the basis of a claim against the paralegal’s or lawyer’s conduct, the paralegal should
paralegal by the client; consider seeking the advice of the Law Society directly
• advise the client to obtain an opinion from an (through the Practice Management Helpline at 416-947-
independent paralegal or lawyer and that, in the 3315 or 1-800-668-7380 extension 3315) or indirectly
circumstances, the paralegal may not be able to (through another paralegal or lawyer).
continue acting for the client; and Duty to Report Certain Offences
• subject to the rules about confidentiality, inform the
Rule Reference: By-Law 8, subsection 3
insurer of the facts of the situation.
2. While the introduction of compulsory insurance imposes Rule Reference: Rule 9.01(9)
additional obligations upon a paralegal, those obligations 7. All paralegals have a duty to report themselves to the Law
must not impair the relationship between the paralegal Society if certain charges (identified in By-Law 8,
and client or the duties owed to the client. subsection 3) have been laid against them.


8. The By-Law only requires the paralegal to self-report the rule is the sense of the rule or the meaning or importance
above-mentioned criminal charges or convictions. A of the rule, even though it may not be explicit or stated in
paralegal is only required to report another paralegal or the written version of the Rule.
lawyer who is involved in criminal activity in certain
circumstances.
Guideline 23: Financial Obligations
General
Guideline 22: The Law Society and
Rule Reference: 8.01(2)
Its Disciplinary Authority 1. Rule 8.01 establishes a professional duty (apart from
General any legal liability) regarding financial obligations
incurred in the course of providing legal services on
behalf of a client.
1. A paralegal may be disciplined by the Law Society for 2. The business of providing legal services often requires
either professional misconduct or for conduct that a paralegal incur financial obligations to others on
unbecoming a paralegal. behalf of clients. Such obligations include charges for
2. Examples of conduct unbecoming a paralegal include a medical reports, disbursements payable to government
paralegal’s conviction of a criminal offence or a finding or registries, fees charged by expert witnesses, sheriffs,
sanction imposed on the paralegal by a tribunal or special examiners, registrars, court reporters and public
licensing body. officials and the accounts of agents retained in
3. Dishonourable or questionable conduct on the part of a other jurisdictions.
paralegal in either private life or while providing legal 3. To assist in avoiding disputes about payment of accounts,
services will reflect adversely upon the integrity of the where a paralegal retains a person on behalf of a client,
profession and the administration of justice. Whether the paralegal should clarify the terms of the retainer in
within or outside the professional sphere, if the conduct is writing. This includes specifying the fees, the nature of
such that knowledge of it would be likely to impair a the services to be provided, and the person responsible
client’s trust in the paralegal, the Law Society may be for payment. If the paralegal is not responsible for the
justified in taking disciplinary action. payment of the fees, the paralegal should help in making
4. Generally, however, the Law Society will not be satisfactory arrangements for payment if it is reasonably
concerned with the purely private or extra-professional possible to do so.
activities of a paralegal that do not bring into question 4. If there is a change of representative, the paralegal who
the paralegal’s professional integrity. originally retained the person to whom the financial
5. The Rules cannot address every situation. As such, a obligation will be owed should advise him or her about
paralegal is required to follow both the “letter” and the the change and provide the name, address, telephone
“spirit” of the Rules. The “letter” of the rule is the number, fax number and e-mail address of the new
meaning of the rule as it is written. The “spirit” of the paralegal or lawyer.



Glossary
accommodation an action taken or a change made to allow a beneficiary a person who benefits from the efforts of another
person or group protected by the Ontario Human Rights Code to
best efforts a paralegal’s effort to do what he or she can to
engage in any of the activities covered by the Code—for example,
ensure that an undertaking is fulfilled, without assuming personal
employment
responsibility
accredited legal services program a paralegal program in
billable time time that is charged to the client on an invoice
Ontario that is approved by the Ministry of Training, Colleges and
Universities and accredited by the Law Society of Ontario binding authority a judicial decision by a higher court that must
be followed by lower courts; also known as a binding precedent
acting in good faith making legitimate and honest efforts
to meet your obligations in a given situation, without trying to breach of undertaking failure to fulfill an undertaking
gain an unfair advantage over or mislead other persons or parties
through legal technicalities or otherwise client a person who consults a paralegal and on whose behalf
the paralegal provides or agrees to provide legal services, or who,
acting with civility being polite, respectful, and considerate of having consulted the paralegal, reasonably concludes that the
others paralegal has agreed to provide legal services on that person’s
behalf; includes a client of the firm of which the paralegal is a
acting with integrity being honest and acting with high ethical
partner or associate, whether or not the paralegal handles the
and moral principles
client’s work
adjudicative body a body—such as a federal or provincial court,
client identification information that By-Law 7.1 requires a
an administrative tribunal, a statutory board, or an arbitrator—that
licensee to obtain from a client about who the client is and what
hears evidence or legal arguments and makes a decision affecting
the client does
the legal interests, rights, or responsibilities of a person (Law
Society Act, s 1) client verification information that By-Law 7.1 requires a
licensee to obtain in order to confirm that the client is who they
adjudicator a person who hears or considers a proceeding
say they are
before a tribunal and makes a decision with respect to that
proceeding client with diminished capacity a client whose capacity to
make decisions is impaired because of minority, mental disability,
adverse impact discrimination see constructive discrimination
or for some other reason
advocate a person who assists, defends, or pleads for others
competent paralegal a paralegal who has and applies the
before a tribunal
relevant skills, attributes, and values appropriate to each matter
affidavit a written statement of facts that is confirmed under undertaken on behalf of a client
oath or by affirmation by the person making it
complainant a person who alleges that he or she was the victim
affiliated entity any person or group of persons other than a of a crime and who takes part in the prosecution of the person(s)
person or group authorized to provide legal services in Ontario; a accused of committing the crime
non-licensee or group of non-licensees
conduct unbecoming a paralegal conduct in a paralegal’s
affiliation an arrangement whereby a paralegal services firm personal or private capacity that tends to bring discredit upon the
provides legal services to the public jointly with a non-legal entity paralegal profession
whose members practise a profession, trade, or occupation that
confidential information any information touching on the
supports or supplements the paralegal’s provision of legal services
business and affairs of a client acquired in the course of the para-
alternative dispute resolution resolution of a dispute through legal – client relationship; a paralegal has a duty to hold all such
negotiation, mediation, arbitration, or similar means, instead of information in strictest confidence and not to disclose it to any
through litigation other person, unless authorized to do so by the client or required
to do so by law (Rule 3.03(1))
ancestry family descent
325

conflict of interest an interest, financial or otherwise, that may elements of the offence the components of an offence that
negatively affect a paralegal’s ability to fulfill her or his professional must be proven beyond a reasonable doubt by the prosecution in
and ethical obligations to a client order to obtain a conviction
conflicts checking system a list of all clients (including pro- engagement letter a letter to the client from the paralegal that
spective clients), opposing parties, and related parties, if any, that confirms the retainer and the terms of the retainer
is checked to ensure that there are no conflicts of interest on any
error an action by a legal representative that may cause harm to
client files
a client
constructive discrimination a requirement, qualification, or fac-
errors and omissions insurance insurance intended to reimburse
tor that is not discrimination on a prohibited ground but that results
clients for loss or damage suffered as a result of negligence or
in the exclusion, restriction, or preference of a group of persons
wrongdoing by a legal representative
who are identified by a prohibited ground of discrimination (Human
Rights Code, s 11(1)); also known as adverse impact discrimination ethnic origin cultural background
contingency fee a fee that is contingent, in whole or in part, on examination out of court a procedure during which a party or
the successful disposition or completion of the matter for which the witness is examined under oath or affirmation by opposing parties or
paralegal’s services are to be provided their representatives with a view to obtaining facts and information
that will assist the parties in preparing their case
continuing client a client for whom a paralegal acts in several
different matters or transactions over a period of time express (or explicit) authorization fully informed and voluntary
written or spoken authorization given by the client to the paralegal
continuing professional development the maintenance and
permitting disclosure of confidential information to specified third
enhancement of a licensee’s knowledge, skills, attitudes, and profes-
parties; if spoken, then the client shall receive a written confirmation
sionalism throughout the licensee’s career
of the consent as soon as is practicable
continuing relationship a paralegal – client relationship in which
family status parent and child relationships (Human Rights Code,
a paralegal acts for the same client in several different matters or
s 10(1)); a parent may be a biological parent, an adoptive parent, or
transactions over a period of time
a legal guardian
Convocation the governing body of the Law Society of Ontario
fee splitting an arrangement whereby a paralegal shares or splits
creed religion or faith a client fee with another person
deponent a person who makes an affidavit fees the amount charged to a client by a paralegal for legal services
provided by the paralegal to the client, including advice, correspond-
diarize to note a deadline or other important date in a tickler
ence, drafting pleadings and other documents, and time spent in court
system, along with a series of bring-forward dates as reminders that
the deadline is approaching fees based on an hourly rate an arrangement whereby a para-
legal is paid for actual time spent on the client matter; calculated by
direction a written document, signed by the client, that instructs
multiplying the paralegal’s hourly rate (or that of others who have
a paralegal to take a particular course of action in a client matter
completed work on the file) by the amount of time spent on the
disbursements expenses related to the client matter that are paid client matter to the date of the invoice
by the paralegal on behalf of the client and for which the paralegal
fees by stages an arrangement whereby the client matter is
is entitled to be reimbursed
broken down into stages and the client is charged based on a
discrimination unfair treatment by one person of another person reasonable estimate of the fee for each stage or step in the matter
or group on any of the prohibited grounds under the Human Rights
fiduciary a person who must act with scrupulous good faith,
Code
honesty, and candour for the benefit of another person, who places
dispute an argument or disagreement between two or more absolute trust and confidence in the fiduciary
parties in which the interest of one side is adverse to that of the
fiduciary relationship a relationship of trust and confidence
other side
between two persons in which one person (the fiduciary) is required
docket a manual or electronic record of all time spent on a client to act with scrupulous good faith, honesty, and candour for the
matter benefit of the other person
docketed time the total time recorded to a client matter fixed, flat, or block fee a fixed amount charged for a particular
task or client matter
due diligence in a legal context, exercising prudence and vigilance
in determining the facts fresh evidence evidence of something that has happened since
the first hearing, or that has come to the knowledge of the applicant
duty of loyalty see duty of service since the hearing and could not by reasonable means have come to
duty of service the paralegal’s duty to be competent, maintain the applicant’s knowledge before that time
confidentiality, avoid conflicts of interest, and continue to represent frivolous and vexatious objection an objection that has no legal
the client unless the paralegal has good reason to withdraw; also merit and is made to annoy, harass, or embarrass the other side
known as the duty of loyalty
fulfill (or answer) an undertaking to complete the requirements
elected bencher a licensee who is elected to sit on Convocation of the undertaking


funds cash, currency, securities, negotiable instruments, and other marketing includes advertisements and similar communications
financial instruments that indicate a person’s title or interest in them in various media, as well as firm names (including trade names),
letterhead, business cards, and logos (Rule 8.03(1))
general (operating) bank account holds money belonging to
the paralegal firm, which is used for operating expenses of the firm, material change in circumstances a change in the applicant’s
such as staff salaries, office expenses, and so on circumstances that has occurred since the previous hearing and that
may justify a variation of the original order
guarantee an agreement to make oneself liable or responsible to
a lender for the payment of a debt if the debtor defaults in payment mediation a non-adversarial process in which a qualified and
impartial third party (the mediator) helps the parties to a dispute
harassment engaging in a course of vexatious comment or
resolve their differences
conduct that is known or ought reasonably to be known to be
unwelcome (Human Rights Code, s 10(1)) mediator a qualified and impartial third party who helps the
parties to a dispute resolve their differences through mediation
honest and candid being truthful, forthright, and sincere, and
looking at both sides of each issue without bias merits of the case the legal principles upon which a party’s
implied authorization client authorization to reveal confidential assertion of rights is based
information that is not spoken or written down, but is implied by misrepresentation a statement or conduct by a person that is
the paralegal – client relationship and the nature of the client matter misleading or false, and that is intended to deceive another person;
independent legal advice impartial, confidential advice obtained includes a deliberate failure to disclose correct information
from a competent licensee with no personal interest in the matter; mixed trust bank account a trust account that holds money
also called ILA for more than one client matter; also referred to as “mixed trust
independent legal representation legal advice and assistance account” and “trust account”
from a competent paralegal or lawyer with no personal interest in money retainer payment for future legal services, which must be
the matter held in trust for the benefit of the client until part or all of those
instructions directions or authorizations from a client to a para- services have been provided and invoiced to the client
legal with respect to a particular course of action to be taken in a multi-discipline practice a business arrangement that
matter permits paralegal licensees to provide to clients the services of
interim statement of account a statement of account that is a non-licensee who practises a profession, trade, or occupation
delivered to the client before the client matter is completed, for fees that supports or supplements the provision of legal services; also
and disbursements to the date of the interim statement of account; called MDP
also referred to as an interim invoice negotiable instrument an unconditional order or promise to
joint clients the clients in a joint retainer pay an amount of money, which can be transferred—for example,
cheques or banknotes (paper money)
joint retainer an arrangement whereby a paralegal is hired to
represent more than one client in a matter or transaction non-billable time time that is docketed to a client matter but is
not billed to the client
judicial notice when a tribunal notices, or accepts as true, certain
notorious facts or matters of common knowledge without hearing non-engagement failure to enter into a contract or agreement
evidence and without inquiry; other lesser-known facts may be for legal services
noticed after inquiry
non-engagement letter a letter written by a paralegal to a client
justified disclosure mandatory disclosure of confidential informa- confirming that, in a particular matter, the paralegal has declined
tion without the client’s authority to provide legal services to the client, or the client has declined to
retain the paralegal
Law Society of Ontario a self-governing body that regulates
the legal and paralegal professions in Ontario in the public interest, objection an argument by a party that a particular piece of evi-
according to Ontario law and the Law Society’s Rules, By-Laws, and dence, line of questioning, or other matter is improper or unlawful
Guidelines; formerly the Law Society of Upper Canada, it changed and should not be allowed by the court
its name in 2018 to increase awareness and relevance of the Law
omission a failure to act by a legal representative that may cause
Society with the public
harm to a client
lay bencher a non-licensee who sits on Convocation
outside interest any profession, business, occupation, or other
legal practitioner a person who is a member of the bar in a Can- activity, including holding public office, engaged in by a paralegal
adian jurisdiction other than Ontario, and is authorized to practise concurrently with the provision of legal services
law as a barrister and solicitor in that jurisdiction; a lawyer
paralegal in Ontario, a non-lawyer agent who provides legal
limited scope retainer a retainer whereby the client hires a para- services to the public and who must be licensed to do so unless the
legal to perform one specific task, such as drafting a demand letter agent falls within one of the categories of exemptions; the paralegal
profession is governed by the Law Society of Ontario
marital status for purposes of the Ontario Human Rights Code,
the status of being married, single, widowed, divorced, separated, paralegal licensee a person licensed to provide legal services in
or living with a person in a conjugal relationship outside of marriage Ontario
GLOSSARY 327

Paralegal Standing Committee a committee of five paralegal record of offence for purposes of the Ontario Human Rights
licensees who are benchers, five lawyer licensees who are benchers, Code, a Criminal Code conviction that has been pardoned, or a
and three lay (non-licensee) benchers, which is responsible for provincial offence
developing policy on all issues affecting paralegal practice in Ontario
referral fee a fee paid by a paralegal to another licensee for
paralegal – client relationship the professional relationship referring a client to the paralegal, or a fee paid to a paralegal by
between a paralegal and a client that gives rise to a range of duties another licensee for the paralegal’s referral of a person to the other
that include the duties of competence, confidentiality, and avoidance licensee
of conflicts of interest, and the duty to continue to represent the
remedy a way of enforcing a right, or of preventing or compen-
client unless the paralegal has good reason for withdrawing
sating for a wrong
paralegal – client retainer the contractual relationship between
representing a person in a proceeding representation includes
the client and the paralegal, which establishes the scope of the
making decisions about service and filing of documents relating to a
retainer, what the client will be charged for the legal services pro-
proceeding; deciding what persons to serve a document on or with
vided, and other terms of the agreement; also called retainer
whom to file a document; deciding when, where, or how to serve or
permitted disclosure discretionary disclosure of confidential file a document; and/or engaging in any other conduct necessary to
information by a paralegal without the client’s authority the conduct of the proceeding
permitted scope of paralegal practice areas of law in which retained hired to represent a person in a legal matter
licensed paralegals may provide legal services, as prescribed by the
retainer see paralegal – client retainer
Law Society Act and the By-Laws
retainer agreement a written agreement between the client
person any entity that is recognized by law as the subject of legal
and the paralegal that confirms that the paralegal has been hired
rights and obligations, including the right to sue and be sued
to provide legal services to the client, and confirms the terms upon
phantom client a person who believes that a paralegal is repre- which the paralegal has been hired
senting him or her, even though the paralegal has not been formally
retainer letter a letter to the client confirming the terms of the
retained and may be unaware of the person’s belief
paralegal – client retainer, including the scope of the legal services
place of origin for purposes of the Ontario Human Rights Code, to be provided in the client matter, the likely cost of those services,
a person’s country or region of birth, including a region in Canada events of termination, and so on; not signed back to the paralegal
by the client
private company a corporation whose shares are not publicly
traded; also called a closely held company scope of the retainer the nature and extent of the legal services
to be provided by the paralegal pursuant to the paralegal – client
procedural law the rules for judicial enforcement of a person’s
retainer
legal rights and obligations as set out in substantive law
serious loss of confidence a situation in which the paralegal and
professional judgment the competent paralegal’s capacity to
the client no longer trust and rely on each other, making a normal
assess situations or circumstances carefully and to make sensible
paralegal – client relationship impossible
decisions about client matters and her or his own conduct
sexual harassment an incident or series of incidents involving
professional misconduct conduct in a paralegal’s professional
unwelcome sexual advances, requests for sexual favours, or other
capacity that tends to bring discredit upon the paralegal profession
verbal or physical conduct of a sexual nature
prohibited grounds grounds upon which discrimination is pro-
sharp practice dishonourable taking of advantage; trickery
hibited by the Ontario Human Rights Code (s 1)—race or colour,
ancestry, place of origin, ethnic origin, citizenship, creed, sex, sexual statement of account a statement (that is, an invoice or bill)
orientation, gender identity, gender expression, age, marital or family that tells the client how much is owed to the paralegal for fees,
status, or disability; for purposes of employment, record of offence disbursements, and HST as of the date of the account
is a prohibited ground of discrimination; in the context of housing
statute-barred a proceeding that is prevented by the expiry of the
only, the receipt of public assistance is also a prohibited ground of
statutory limitation period
discrimination
statutory limitation period a period of time established by a
prospective client a person who consults a paralegal regarding a
statute for commencing a proceeding
legal issue but has not yet retained the paralegal and for whom the
paralegal has not yet agreed to provide legal representation substantive law the statutory law and jurisprudence that creates,
defines, and interprets the rights and obligations of those who are
provide legal services to engage in conduct involving the appli-
subject to it
cation of legal principles and legal judgment to the circumstances or
objectives of another person surety a person who is responsible for an accused, and exercises
supervisory functions over the accused; the surety must ensure that
public company a corporation whose shares are for sale to the
the accused attends court as required until the case is concluded and
general public and which is subject to rigorous disclosure require-
abides by any conditions of judicial interim release
ments under securities legislation


sympathetic witness a witness who gives evidence that supports trust condition a condition or conditions that must be performed
a party’s cause before a paralegal may release certain documents and/or property
held in trust by the paralegal
tickler system a paper or electronic system that gives notice of
upcoming deadlines (including limitation periods) or tasks to be undertaking an unequivocal, personal promise by a paralegal to
completed perform a certain act
to write off time to not bill a client for time that was spent on unsympathetic witness a witness who gives evidence that sup-
the client matter ports an opposing party’s cause
tribunal includes courts, boards, arbitrators, mediators, adminis- valuable property record a record of all property, other than
trative agencies, and bodies that resolve disputes, regardless of their money, held in trust for clients, as required by By-Law 9, section 18(9)
function or the informality of their procedures
GLOSSARY 329


Index
accommodation, 51-52 tribunal process

accredited legal services program, 8 abuse of, 193
acting in good faith, 34 admissions by client, 197
acting with civility, 33 affidavits, 194
acting with integrity, 33 binding authorities, 194, 195
adjudicative body, 11 deponent, 194
adjudicator, 189 dishonest conduct, 196, 197
administration of justice, respect for document disclosure, 200
irresponsible allegations, 211 elements of offence, 198
public appearances and statements, 214 errors and omissions, 200
Rule re, 211 guilty pleas, agreement on, 200
security of court facilities, 212-13 improperly influencing tribunal, 196
suspended paralegal, prohibition on practice incriminating physical evidence, 198
by-law provisions, 217 judicial notice, 195
compliance report to Law Society, 221 malicious proceedings, 192
exemption permission, 221 misleading tribunal, 194
Law Society Act provisions, 216 Rule re, 191
notice requirements, 217-18 threat of criminal proceedings, 193
trust account and general account, 218-21 witnesses, 199
undertaking not to provide legal services, 222 unrepresented persons, dealing with, 205
unauthorized persons, employing/working with, 214-16 witnesses
adverse impact discrimination, 53 communication with witness giving evidence, 201-204
advertising, 167, 270-74 examination out of court, 204
advice, see duty to clients paralegal as witness, 204
advocacy sympathetic witness, 202
adjudicator, defined, 189 tribunal process and, 199
advocate, defined, 189 unsympathetic witness, 202
complainant, defined, 194 advocate, 189
frivolous and vexatious objection, 190 affidavit, defined, 194
merits of the case, 190 affiliated entity, 161
objection, 190 affiliation, 160
paralegal’s duties alternative dispute resolution, 128
as prosecutor, 190 ancestry, 51
candour, fairness, courtesy and respect, 191 beneficiary, 109
to clients, tribunals and others, 189 best efforts, 49
tribunal process and, see tribunal process billable time, 241
remedy, defined, 190 binding authority, 194
statute-barred proceeding, 190 breach of undertaking, 48
statutory limitation period, defined, 190 charities, 161-63, 254
tribunals, defined, 189 civil society organizations, 161-63, 254
331

civility, acting with, 33-44 non-engagement letter, 73, 100
client, see also conflicts of interest; duty to clients scope of, 71
admissions by, 197 rules of conduct definition, 66-68
confidential information, 68 verification, see identification and verification
conflict of interest, 68, 69, 73, 75, 76, 100 communications
conflicts checking system, 68 client service, elements of, 115
consent, defined, 77 corporation/organization, 227
defined, 17, 66, 79 exceptions to Rule, 226
difficult clients, 70 Law Society of Ontario, to/from, 229
diminished capacities, with, 77 licensees, to, see duty to licensees and others
duty of loyalty to, 65 represented persons, 227-28
duty of service to, 64 Rule re, 226
identification and verification second opinion, 227
agent, use of, 88 with witness giving evidence, 201-204
by-law re, 81 competence, see duty to clients
by-law requirements, 82-89 competent paralegal, 112
criminal activity, 88 complainant, 194
criteria for, 85-87 conduct unbecoming paralegal, 233
documentation, 88 confidentiality, see client; duty to clients
due diligence, 87 conflicts checking system, 68
exempt clients, 83 conflicts of interest, see also client
exemptions for certain licensees, 82 affiliations context, 160
exemptions for certain types of funds, 83 charities context and pro bono work, 161-63
forms, 103-106 civil society organizations context, 161-63
funds, 82, 83 client consent rules, 149-51
identification vs. verification, 82 clients, transactions with
meaning of, 82 generally, 166
negotiable instruments, 82 guarantees by paralegal, 167
non-face-to-face verification, 85, 87 individual/joint investment, advertising prohibition, 167
previous client verification, 88 judicial interim release, 169
independent legal advice, 76 legal services, payment for, 169
initial consultation, 69 permitted transactions, procedure in, 168
initial contact with, 68 surety, prohibition on acting as, 169
instructions from, 76 continuing relationship, meaning of, 158
joint client, 75 defined, 45, 146
joint retainer client, 75-77 disclosure, 149
mixed trust bank account, 67 dispute, meaning of, 147
non-engagement letter, 73, 100 existing client context, 153
“not your legal representative” letter, 102 former clients, acting against, 156-57
organization, acting for, 78 independent legal advice, 151
paralegal – client relationship, 65-66, 79-81 independent legal representation, 151
paralegal – client retainer, 66 joint retainers context, 157-59
phantom clients, 78 management of, 148
prospective client, 69 multi-discipline practice, 160
retainer outside interest context, 155
agreement, 71-73, 92-95 personal relationship, conflicts arising from, 154, 155
disbursements, 71 persons to whom duty to avoid owed, 147
engagement letter, 67, 96-99 pro bono services context, 162-63
fees, 71 prospective clients context, 147, 151-52
joint retainer, 76-77 public office context, 155
letter, 67 Rule re, 146
meaning of, 67 transfers between firms
money retainer, 67 determination of conflicts, timing, 165
limited scope retainer, 73-75 due diligence for non-licensee staff, 166


firm disqualification, 165 initial consultation, 117
paralegal disqualification, 165 knowledge and investigation element, 113
Rule re, 163-64 Law Society Act provisions, 110
types of, 147-48 limited scope retainers, 112
unrepresented parties, dealing with, 159 meaning of, 112
constructive discrimination, 53 practice management, 117
contingency fee, 243, 247-49 procedural law, knowledge of, 113
continuing client, 133 professional judgment, application of, 114
continuing professional development, 25 records and filing, 116
continuing relationship, 158 scope of, 111
Convocation, see paralegal governance skill and judgment, application of, 114
creed, 51 substantive law, knowledge of, 113
deponent, 194 confidential information, disclosure of
diarize, 48 client authority, with, 137
direction, 170 court facilities, security of, 143
disbursements, 71, 243 express authorization, 138
discipline, see Law Society of Ontario future harm and imminent risk, 140
disclosure imminent risk of death/serious bodily harm, 140
discrimination, see Ontario Human Rights Code implied authorization, 137
dishonesty, 196, 197, 121-27 justified disclosure, 138, 139
dispute, 147 misconduct, duty to report, 144
docket, 241 permitted disclosure, see permitted disclosure
docketed time, 241 of confidential information
due diligence, 87, 166 rule re, 137
duty of loyalty, 65 without client authority, 138
duty of service, 64 confidentiality
duty to clients, see also advocacy; client conversation with friends, 135
advising clients disclosure, see confidential information, disclosure of
alternative dispute resolution, 128 literary works, 136
client with diminished capacity, 129 office procedures, 136
dishonesty, see dishonesty/fraud/crime duration of duty, 133
errors and omissions, 130 duty re, 132
honesty and candour, 119-21 inadvertent disclosure, 135
instructions, asking for, 121 persons owing duty of, 134
Official Language rights, 131 precedent documents, use of, 134
medical–legal reports, 129 scope of duty, 132
quality of service, 119, 122 conflicts of interest, see conflicts of interest
settlement, 128 dishonesty/fraud/crime
alternative dispute resolution advice, 128 client/other, by, 126
beneficiary, 109 general/operating bank account, 124
client property organization, by, 125
client file, documents, 172-73 rules re, 121, 124
dealing with, 170-72 threatening of penal/regulatory proceedings, 127
direction, 170 trust account, 124
financial records, requirement to maintain, 171 errors and omissions, 130
paralegal as fiduciary, 170 fiduciary, paralegal as, 109
valuable property record, 171, 172 fiduciary relationship, 109
competence medical – legal reports, 129
acceptance of retainer and, 113 permitted disclosure of confidential information
client service and communication, elements of, 115 conflict, detection of, 142
competent paralegal, meaning of, 112 fees, establishment/collection of, 142
continuing education and professional development, 118 generally, 138
error/omission, 119 imminent risk of death/serious bodily harm, 140-41
failure of competence, 119 justified disclosure, 138, 139
INDEX 333

permitted disclosure of confidential information (cont.) non-payment, 176-77
permitted disclosure, defined, 138 reasonable fees and disbursements
self-defence in litigation context, 142 assessment of accounts, 236
Personal Information Protection and fair and reasonable fee, 244
Electronic Documents Act, 144-46 Guideline re, 244
quality of service, 119, 122 hidden fees, 244
settlement, advice re, 128 statement of account, 246
withdrawal from representation timely disclosure of fees, 245
criminal and quasi-criminal cases, 176-78 referral fees, 251-54, 255
generally, 173-74 retainer, 71
leaving firm context, 180 writing off time, 241
mandatory withdrawal, 175 fiduciary relationship, 109, 170
manner of withdrawal, 178-79 fixed/flat/block fee, 242
non-payment of fees context, 176-77 fresh evidence, 10
optional withdrawal, 174 frivolous and vexatious objection, 190
serious loss of confidence, 174-175 fulfil/answer undertaking, 48
successor licensee, obligations to, 181 funds, 82
duty to licensees and others, see also communications general/operating bank account, 124
abusive communication, 224 good faith, acting in, 34-44
courtesy and good faith, 222, 225 governance, see paralegal governance
documents sent in error, 225 guarantee, 167
innocent mistake, taking advantage of, 224 harassment, 53-57
prompt communication, 225 honest and candid, 119
reasonable requests, 224 Human Rights Code, see Ontario Human Rights Code
recording communications, 225 identification and verification of client, see client
sharp practice, 223 immigration law, 14
unfounded criticisms, 225 implied authorization, 137
elected bencher, 25 independent legal advice, 76, 151
elements of offence, 198 independent legal representation, 151
engagement letter, 17, 67 instructions, 76
errors and omissions, 3, 119, 130, 200, 274 integrity, acting with, 33-44
ethnic origin, 51 interim statement of account, 259
examination out of court, 204 joint clients, 75
express/explicit authorization, 138 joint retainer, 75-77, 157-59, 250
family law services, 14-17 judicial notice, 195
family status, 52 justified disclosure, 138
fees Law Society of Ontario
affiliated entities, 254 authority of, 3-6
assessment of accounts, 236 compliance report to, 221
billable time, 241 disciplinary authority of
by stages, 242 conduct unbecoming a paralegal, 233
civil society organization/charity, 254 generally, 232
collection, permitted disclosure, 142 professional misconduct, 233
contingency fees, 243, 247-49 responsibility to
defined, 71 communications from, 229
disbursements, 243 duty to report, 229-32
division of fees, 250 Guideline re, 229
docket, 241 undertaking given to, 49
docketed time, 241 lay bencher, 25
fee splitting, 250, 255 legal practitioner, 50
fixes/flat/block fee, 242 legal services, provision of, see licensing
hourly rate basis, 241 licensees
multi-discipline practices, 254 defined, 6
non-billable time, 241 duty to, see duty to licensees and others


licensing prohibited grounds
accredited legal services program, 8 accommodation, 51
disclosure to client, 17 age, 52
exemption from education requirement, 7 ancestry, 51
exemptions from licensing citizenship, 51
persons deemed not to be practising law/ creed, 51
providing legal services, 18 disability, 52
persons providing legal services who are ethnic origin, 51
exempt from licensing, 19-23 gender identification, 52
false/misleading representations, 9 marital/family status, 52
good character requirement, 9, 11 place of origin, 51
offences, 18 race/colour, 51
P1 licence, requirements for issuance, 6-8 receipt of public assistance, 52
paralegal licensee, 6 record of offences, 52
permitted scope of paralegal practice, 8, 13-17 sex, 52
Bill C-75, effect of, 13 sexual orientation, 52
family law services, 14-17 sexual harassment, 54-56
immigration law, representation/advice, 14 workplace violence/harassment provision of OHSA, 57
provide legal services, meaning of, 6 organizations, 78, 125, 161-63, 227, 254
provision of legal services, 10-13, 24 outside interest, 45, 155
refusal of application, fresh evidence/ paralegal governance
change of circumstances, 10 continuing professional development, 25
retainer Convocation
agreement, 17 defined, 25
letter, 17 elected bencher, 25
non-engagement letter, 17 lay bencher, 25
limited scope retainer, 73, 112, 242 Paralegal Standing Committee, 26
marital status, 52 errors and omissions insurance, 3
marketing, 270-74 licensing, see licensing
material change in circumstances, 10 paralegal, defined, 2
mediation, 46 regulation, effect of, 5
mediator, 46 scope of practice, 2
merits of case, 190 good character requirement, 2-4
misrepresentation, 9 Law Society of Ontario, regulation by, 3-6
mixed trust bank account, 67 paralegal licensee, see licensees
money retainer, 67, 256-58, 279 paralegal practice, see licensing
multi-discipline practice, 160, 254, 264 Paralegal Professional Conduct Guidelines, see also advocacy;
negotiable instrument, 82 client; duty to clients; duty to licensees and others;
non-billable time, 241 Ontario Human Rights Code; practice management
non-engagement, 73 generally, 31
non-engagement letter, 17, 73, 100 professionalism, 33
objection, 190 outside interests and public office, 45
omission, see errors and omissions mediator, acting as, 46
Ontario Human Rights Code undertakings, 47-50
discrimination trust conditions, 50
adverse impact, 53 Paralegal Rules of Conduct, see also advocacy; client;
constructive, 53 duty to clients; duty to licensees and others; Ontario
meaning of, 53 Human Rights Code; practice management
prohibited grounds, see prohibited grounds civility, acting with, 33-44
employment practices, 57 conflict of interest, 45
generally, 51 generally, 30
harassment, 53-57 good faith, acting in, 34-44
Law Society Discrimination and Harassment Counsel, 58 integrity, acting with, 33-44
policies and procedures, 58 interpretation of, 31-32
INDEX 335

Paralegal Rules of Conduct (cont.) prospective client, 69, 147, 151-52
legal practitioner, 50 provide legal services, 6
LSUC v Groia, 34-44 public company, 85
mediator, acting as, 46 record of offence, 52
outside interests and public office, 45 referral fee, 252-54, 255
professionalism, 33 remedy, 190
trust conditions, 50 representation
undertaking independent legal representation, 151
best efforts undertaking, 48-49 withdrawal from, see duty to clients
breach of, 48 representing person in proceeding, 11
defined, 47 retained, 67
diarize, 48 retainer, see also client
fulfil/answer, 48 acceptance of, 113
generally, 47-48 defined, 66
Law Society, given to, 49 joint retainers, 75-77, 157-59, 250
tickler system, 48 limited scope retainer, 73, 112, 242
Paralegal Standing Committee, 26 money retainers, 256-58, 279
paralegal – client relationship, 66 no money retainer, 278
paralegal – client retainer, see retainer retainer agreement, 17, 255-56
permitted disclosure, see duty to clients retainer letter, 17, 67
permitted scope of paralegal practice, 8 scope of, 71
person, 12 rules of conduct, see Paralegal Rules of Conduct
phantom client, 78 scope of retainer, 71
place of origin, 51 security of court facilities, 143, 212-13
practice management serious loss of confidence, 175
advertising and marketing, 270-74 sexual harassment, 54-56
affiliation, 264 sharp practice, 223
assignment of tasks/functions, 264-66 statement of account, 246
collection letters, 266 statute-barred, 190
delegation, 262-63, 267 statutory limitation period, 190
errors and omissions insurance, compulsory, 274 substantive law, 113
fees, see fees surety, 170
financial responsibility, 268 suspension, see administration of justice, respect for
legal services sympathetic witness, 202
making available, 269 transfers between firms, see conflicts of interest
marketing and advertising, 270-74 tickler system, 48
multi-discipline practice, 264 tribunals
retainers, see retainers defined, 189
Rule re, 262 process, see under advocacy
staff, hiring and training, 268 trust account
supervision, 264 billing client and, 260
trust account, see trust accounts generally, 258-59
private company, 85 interim statement of account, 259
procedural law, 113 retention of financial records, 261
professional judgment, 114 Rule re, 258
professional misconduct, 233 trust controls, 260
professionalism trust condition, 50
generally, 30 undertaking, see Paralegal Rules of Conduct
practice management, see practice management unrepresented persons, 159, 205
professional conduct guidelines, see Paralegal unsympathetic witness, 202
Professional Conduct Guidelines valuable property record, 171
rules of conduct, see Paralegal Rules of Conduct withdrawal from representation, see duty to clients
prohibited grounds of discrimination, see witnesses, see advocacy; communications
Ontario Human Rights Code writing off time, 241


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S. Patricia Knight - Ethics and Professional Practice For Paralegals

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Ethics and Professional

Practice for Paralegals

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Copyright © 2020 Emond Montgomery Publications. All Rights Reserved.

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Emond Montgomery Publications Limited

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Emond Montgomery Publications has no responsibility for the persistence or accuracy of

Vice president, publishing: Anthony Rezek

Copyright © 2020 Emond Montgomery Publications. All Rights Reserved.

05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for

CHAPTER 1 Paralegal Governance in Ontario . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CHAPTER 3 The Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

CHAPTER 4 Duty to Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

CHAPTER 5 Advocacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

CHAPTER 6 Duty to Licensees and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

CHAPTER 7 Practice Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239

APPENDIX A Paralegal Rules of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

APPENDIX B Paralegal Professional Conduct Guidelines . . . . . . . . . . . . . . . . . . . . . . 297

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05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for

Brief Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

1 Paralegal Governance in Ontario

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Table of Contents vii

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viii Table of Contents

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05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for

A Note from the Publisher

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05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for

05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for

Patricia Knight is a former professor in the Paralegal Program at Sheridan College

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05/26/2020 - tp-dabe862c-9f3c-11ea-a29c-024 (temp temp) - Ethics and Professional Practice for

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Good Character Requirement and Paralegal Scope of Practice

Questions for Discussion

2 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS

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1 RSO 1990, c C.43.

CHAPTER 1 Paralegal Governance in Ontario 3

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Regulation by the Law Society of Ontario

How Did the Law Society Become the Regulator?

• there was public demand for paralegal services, and

7 Ibid at para 88.

4 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS

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How Does Paralegal Regulation Affect the Role

CHAPTER 1 Paralegal Governance in Ontario 5