Non-Lawyer Legal Services: An international round-up

  • June 22, 2017
  • Ivan Mitchell Merrow and Madeleine Dusseault

Jurisdictions across the world have grappled with the challenge of providing high-quality legal services to the public at a cost the public can afford. In finding solutions, Canada and Ontario may look to how different countries have incorporated non-lawyers into the provision of legal services in order to reduce costs. For example, by expanding the scope of legal services non-lawyers can provide in order to lower prices, or by letting non-lawyers manage, invest in, or own law firms in order to increase the variety and supply of legal services available.

This article is far from a comprehensive review of the world’s legal service regulatory systems. What follows is a survey of different jurisdictions around the world and a sample of some contrasting approaches to legal services regulation.

North America: self-regulation and restrictions on non-lawyers


In the United States and Canada, non-lawyers are generally prohibited from representing clients’ interests in court, or providing legal advice in designated areas of law. The vast majority of Canadian and US jurisdictions, with the exception of Washington in the District of Columbia, also prohibit non-lawyers from owning or investing in law firms, or other entities in the business of providing regulated legal services.

Even so, both the US and Canada have created limited roles for non-lawyers in the legal system. In Canada, various provincial bars have allowed for an increasing role for non-lawyers in the provision of legal services. As outlined in a recent LSUC report, in British Columbia and Ontario, paralegals are regulated, and can independently provide some legal services. Further, some provinces also permit limited non-lawyer ownership of legal services. Ontario, BC and Quebec allow multi-disciplinary practices, where lawyers can work with non-lawyers to provide complementary services from the same location – providing, for example, accounting and legal services from the same office.

Legal services delivery through technology appears to be here to stay, and is well placed to grow in the coming years.

In the US, non-lawyers are similarly able to get involved in the legal sector to a limited degree. Non-lawyers are able to take on limited roles in areas like business advertising, patents, tax and immigration.

Non-lawyers have also been involved with innovating in the legal tech sphere. Services like Rocket Lawyer and Legal Zoom provide legal services to Americans online, providing users with legal form services, and connecting them to practicing lawyers. Legal academic Judith McMorrow has outlined how these companies need to work around the confines of the laws prohibiting non-lawyers from providing services. To do so,  Legal Zoom includes a disclaimer stating they are not attorneys, and cannot provide “legal advice, explanation or opinions.” Rather, the service states they merely connect Americans with practicing lawyers.

According to the ABA Journal, Legal Zoom has successfully fought off seven legal challenges from state bar associations and other organizations alleging that the company engages in the “unauthorized practice of law”.[1] Legal services delivery through technology appears to be here to stay, and is well placed to grow in the coming years.

UK and Australia: involving non-lawyers in providing legal services


Australia and the United Kingdom are experimenting with new regulatory systems in an effort to make legal services more accessible. Both have adopted innovative systems that allow non-lawyers to be involved in running legal practices or law firms. That said, non-lawyers do not have unlimited freedom - both countries still regulate who is allowed to call themselves a lawyer, and require lawyer involvement and supervision of many of the activities these alternative business structures undertake.

Australia permits legal practices to incorporate and involve non-lawyers in the legal sphere. As a LSUC report recently outlined, once an Australian law practice has incorporated, there are no limitations on what type of business can be carried on, and anyone – including non-lawyers - can own shares in the company. This gives law firms the option of going public - Slater & Gordon, a personal injury firm, was the first to do so. The firm is now a juggernaut, employing 1,350 people in 69 locations. That said, lawyers are still involved in these incorporated legal practices. Australian legislation requires each to have a 'legal practitioner director', who is responsible for implementing appropriate management systems for things like negligence, conflicts and trust accounts.

The UK has adopted a similar approach. Under the Legal Services Act 2007, the UK Parliament stated that its purpose in regulating legal services is not only the public interest, but “[protecting] and [promoting] consumer interests and competition.” In this vein, non-lawyers are permitted to invest in and own law firms, otherwise known as “alternative business structures”. Nick Robinson, who recently authored an article in the Georgetown Journal of Legal Ethics on this topic, suggests that the legal profession is now more varied – it includes traditional law firms experimenting with different ownership structures, as well as entirely new actors who have recently entered the field.

According to Robinson, the UK also structures its licensing process differently, licensing eight different types of legal professionals: barristers, solicitors, notaries, patent and trademark attorneys, costs lawyers, and a group who function similarly to paralegals. In theory, this system is designed to reduce costs by allowing lawyers to specialize and therefore reduce the cost of their training. Further, non-litigation activity is often not solely reserved for lawyers, and non-lawyers have the ability to provide legal advice in a limited scope.

The EU: Various Roles for Non-Lawyers


The European Union also permits greater non-lawyer involvement in the profession than North America does. Like North America, EU countries restrict entry to the legal profession, and reserve certain activities for it. According to an International Bar Association Report, in at least 14 countries, non-lawyers can provide legal advice, and only some restrict transactional advice to the legal profession. However, European countries differ in how they define the scope of activities that are restricted to lawyers.

Germany, for example, has restrictions similar to North America, and only allows lawyers to represent clients in court or give legal advice. However, it should also be noted that Germany counterbalances lawyers’ monopoly on legal services by imposing strict fee schedules on them in order to increase affordability and efficiency.

Most EU countries do not permit non-lawyer management and ownership of law firms, and it is even illegal in some countries. However, Scotland, Italy, Spain and Denmark do allow non-lawyer involvement in firms to some limited degree.

Asia: A few case studies


There are broad differences in how legal practice is regulated across Asia, and what non-lawyers are allowed to do. Laurel Terry, an expert in this area, has found that Asian legal regulation systems run the gamut from more protected, like North America, to systems with little regulation of legal advice at all.

Japan is an interesting case study; Japan imposes a strong monopoly on the provision of legal services, and even criminalizes the unauthorized practice of law. The extent of the monopoly, however, is relatively narrow. It primarily relates to the right to appear in court. It is less clear whether lawyers enjoy a legally protected monopoly over transactional work in Japan.

Japan has also historically restricted entry to the legal profession, and has very few lawyers per capita as a result, though it has opened up somewhat more in the past 20 years. As a result, it is very challenging for individuals to obtain access to legal services, and non-lawyers have become involved in the provision of legal services in several ways.

J. Mark Ramseyer, an academic who has studied the Japanese legal industry, outlines several ways this status quo impacts the legal market: first, lay-people often come up with their own extra-legal solutions to problems. They may litigate as self-reps, relying on ‘black market’ legal advice from non-lawyers. In addition, there is a subset of ‘legal advisors’ who are not lawyers but provide various services related to the legal system. For example, judicial scriveners assist with preparing documents for filing with the court, and administrative scriveners handle documents that are to be filed with administrative agencies. There are also tax and patent advisors who assist with matters in these narrow subject-areas.

the legal profession’s rapid growth has caused commenters...concerned about the quality of the services that are available, and whether those issues may lead to public dissatisfaction with the system.

China is another interesting example. As outlined in Foreign Policy, and by legal academics like Weifang He, China also restricts non-lawyers from providing legal services. However, in China, there are far more lawyers available to the population. The legal profession has enjoyed extremely rapid growth in the past 30 years, with law becoming a popular major, and law schools opening across the country. As a result, the number of lawyers in the country has boomed, and it has become one of the countries with the most lawyers per capita.

However, despite the easy access to legal services this boom creates, the legal profession’s rapid growth has caused commenters like He to be concerned about the quality of the services that are available, and whether those issues may lead to public dissatisfaction with the system. Recently, the government has taken steps toward judicial reform in an effort to raise the quality of Chinese justice. Set out in a report called the Court Reform Plan, the Chinese government is attempting to give the judiciary more autonomy, and professionalize court personnel by distinguishing them from other types of government officials.


Scanning the globe, it is apparent how varied lawyer regulations are, and how often those differences stem from specific historical and cultural contexts. However, despite these fundamental differences, the varied responses to increasing access to justice provide interesting ideas and examples that could be instructive to Canada’s own path forward.

 

About the authors


Ivan Mitchell Merrow is a litigation lawyer at Miller Thomsons, where he specializes in commercial litigation, construction litigation and dispute resolution, contract and shareholder disputes.

Ivan articled at a well-respected Toronto law firm where he gained significant hands-on litigation experience in the business and construction industry. He has appeared before Masters and Judges in the Ontario Superior Court of Justice and attended hearings before the Ontario Court of Appeal and the Ontario Municipal Board. While in law school, Ivan founded the student organization Law Students for Innovation and Technology.
 

Madeleine Dusseualt is currently enrolled in the J.D. program at the University of Toronto Faculty of Law.

Prior to attending law school, Madeleine spent several years as a legal assistant at a Toronto law firm, where she coordinated administrative support for a cross-Canada litigation portfolio. Madeleine spent her first summer of law school at the Canadian Civil Liberties Association as a Donnor Civic Leadership Fund Fellow, where she completed legal research on privacy law and co-wrote policy submissions to to the Office of the Privacy Commissioner of Canada.

 
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