Clients and the Public

• Author: Michelle Roy McSpurren/Rosemary Bocska
• Pages: 185-218

9

Clients and

thePublic

Learning Outcomes

After completing this chapter, you should be able to:

• Understand the obligations of paralegals with

respect to competence.

• Understand the duty on paralegals to discharge

their obligations to clients honourably and with

integrity.

• Understand the obligations of paralegals with

respect to advising clients.

• Understand the obligations of paralegals with

respect to confidentiality.

• Understand the obligations of paralegals in

connection with holding intake interviews with

potential clients.

• Understand the obligations of paralegals with

respect to conflicts of interest and client

identification.

• Understand the importance of client verification and

know how to create retainer letters, retainer

agreements, and non-engagement letters.

• Recognize the requirements in Rule 3.08 and

Guideline 11 that govern withdrawal from

representation.

• Understand how to use technology effectively, in

accordance with the Rules and your professional

obligations, in your communications with clients.

• Recognize the requirement in Rule 8.04 and part II

of By-Law 6 for errors and omissions insurance and

understand its importance.

185

Dealing with Clients ................... 186

Competence .......................... 186

Discharging Responsibilities to Clients

Honourably and with Integrity ...... 188

Advising Clients ....................... 191

Confidentiality ........................ 196

Client Intake Interviews ................ 199

Conflicts of Interest and Identifying/

Verifying Clients ................... 200

Conflicts in Pro Bono and Short-Term

LegalServices .................... 204

The Paralegal – Client Relationship ....... 204

Phantom Clients ...................... 204

Documents That Clarify the Role of

the Paralegal ..................... 204

Withdrawal from Representation ....... 207

Technology and Client Communications ... 209

Errors and Omissions Insurance ......... 210

Conclusion ............................ 211

Key Terms ............................ 213

Useful URLs ........................... 213

Review Questions ..................... 213

Discussion Questions .................. 214

Scenario-Based Questions .............. 214

Appendix 9.1 Sample Retainer

Agreement ........................ 215

Appendix 9.2 Sample Non-Engagement

Letter ............................. 218

© 2022 Emond Montgomery Publications. All Rights Reserved.

Dealing with Clients

Unlike customers, who purchase products, clients are purchasers of services—for example,

legal services. Rule 3 of the Paralegal Rules of Conduct,1 as established by the Law Society

of Ontario (LSO), sets out the duties of paralegals to their clients. You must balance these

duties with your duties to the general public and with your duty to foster the administra-

tion of justice, as set out in Rule 2.01(1). That provision dictates that “[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 obligations around acting with honour and integrity cover a wide range

of conduct. In Law Society of Ontario v Gill,2 a paralegal was found to have breached

that duty by sending abusive and offensive emails to his own client, which included

accusations of lying and criticism that referred specifically to the client’s faith. These

emails were in response to the client threatening to complain to the LSO about the

paralegal. In Law Society of Ontario v Isaac,3 the paralegal was found to have breached

the duty by interfering with the LSO’s complaints and investigation processes. Finally, in

Law Society of Ontario v McEachern,4it was noted, at paragraph 57, that a paralegal’s

legal and professional duty extends to complying with the Law Society Tribunal’s orders;

a deliberate failure to do so raises “obvious and significant issues going to the heart of

public interest in the administration of justice.”

Competence

According to Rule 3.01(1), paralegals must perform all services undertaken on a client’s

behalf to the standard of a competent paralegal. A competent paralegal is a para-

legal who has and applies the relevant skills, attributes, and values appropriate to each

matter undertaken on a client’s behalf (Rule 3.01(4)). These may include—but are not

limited to—legal research, analysis, writing and drafting, negotiation, and all aspects

of advocacy. A paralegal who neglects important aspec ts of a client’s file or matter will

naturally be held to fall short of their duty.

Law Society of Upper Canada v Archambault5

A paralegal who missed a trial date was found not to have served his client to the

standard of a competent paralegal. Likewise in Gill,6 the paralegal was found to

have breached his duty by failing to send a letter to inform the court of his retainer,

failing to send a reminder to follow up with the client, not providing the client with

notice of the trial and failing to attend the trial date itself. The paralegal’s inattention

to the matter resulted in the client being convicted of the offences charged.

1 Law Society of Ontario, Paral egal Rules of Conduct (1 October 2014; amendment s current to 1 July 2021), online:

<https://lso.ca/about-lso/legislation-rules/paralegal-professional-conduct-guidelines> [the Rules].

2 2021 ONLSTH 84.

3 2018 ONLSTH 125.

4 2021 ONLSTH 62.

5 2017 ONLSTH 8 6.

6 Supra note 2.

client

a person who (a) consults

a paralegal and on whose

behalf the paralegal provi des

or agrees to provide leg al

services, or (b) having

consulted the paralegal,

reasonably concludes that

the paralegal has agreed t o

act on their behalf; inclu des

a client of the firm of which

the paralegal is a part ner or

associate, whether or not

the paralegal handles the

client’s work (Rule 1.02)

competent paralegal

a paralegal who has and

applies the relevant skills,

attributes, and va lues

appropriate to each matter

undertaken on a client’s

behalf (Rule 3.01(4))

186 PRACTICE MANAGEMENT FOR PARALEGALS

© 2022 Emond Montgomery Publications. All Rights Reserved.

In Law Society of Ontario v Alfano,7 a paralegal’s reprimand by the Law Society

Tribunal was prompted (in part) by his failure to properly implement a new computer-

based file management system for his office. Since not all of the client matters from

the old file management system had been transferred to the new one, the paralegal

missed some important court dates for some of his clients. In one instance, he failed

to attend the trial date on a client’s traffic ticket, even though he was already at the

courthouse that day to appear on other matters. The client was convicted as a result

of the paralegal’s non-appearance. The paralegal then told the client, in error, that an

agent had attended the trial and that the case had been deferred for a few months.

When he realized what had happened, the paralegal offered to give the client a refund

and return her paperwork but—inexplicably—this took the paralegal several more

months to accomplish. The refund was achieved only when the client requested a

reversal of the charge directly through her credit card company. The paralegal was

reprimanded by the Tribunal and was ordered to pay costs of $3,000.

As Guideline 6 of the LSO’s Paralegal Professional Conduct Guidelines 8 points out,

clients who hire paralegals have the expectation that those paralegals are competent

and have the ability to properly represent them. Section 2 of that guideline provides

that paralegals “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.”

In addition, section 4 of that guideline indicates that 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.” It is also

a requirement that paralegals be aware of developments in all areas of law in which

they practise.

Law Society of Upper Canada v McLean9

The agreed statement of facts indicated that the paralegal was retaine d to represent

a client charged with a traffic offence. On his client’s behalf, the paralegal negoti-

ated a deal with the prosecutor that resulted in the client being convicted of a

charge that carried a greater number of demerit points than that attached to the

original offence. The paralegal did not consult the relevant legislation to determine

the demerit points applicable to the offence and did not obtain the client’s instruc-

tions before entering into the agreement. The unhappy client appealed the convic-

tion, using a different paralegal to do so, and, in the course of that proceeding,

the judge made an order compelling the original paralegal to appear. The paralegal

failed to do so. Although a bench summons was subsequently issued, ordering the

paralegal to attend court with his client file, he advised the prosecutor that he had

a scheduling conflict and did not attend. This clear instance of a lack of competence

(in addition to a failure to secure instructions) resulted in the imposition of a $2,000

fine and $2,000 in costs payable to the LSO.

7 2019 ONLST H 59.

8 Law So ciety of Ontario, Paralegal Professional Conduct Guidelines (1 Octobe r 2014; amendments current to

22October 2020), online: <https://lso.ca/about-lso/legislation-rules/paralegal-professional-conduct-guidelines>

[the Guidelines].

9 2014 ONLST H 100.

CHAPTER 9 CLIENTS AN D THEPUBLIC 187

© 2022 Emond Montgomery Publications. All Rights Reserved.