The Paralegal Puzzle

An edited version of this article first appeared in the July, 2003 issue of Canadian Lawyer. If you wish to reproduce this article, click here for copyright info.

Independent paralegals aren’t people I ordinarily spend a whole lot of time thinking about. However, they appear to be a perpetual thorn in the side of many lawyers, judging by the campaign literature I received during Ontario’s recent bencher election.

One candidate thundered that the very existence of this unregulated group is "unconscionable", and that the Law Society must commit itself to "bringing these people to heel". Is there any other group about whom lawyers would feel free to speak in the same language we use for dogs?

The complaints about paralegals seem to fall into two categories. The first invokes the public interest. These complaints portray paralegals as "untrained", "unskilled" or "inadequately qualified" individuals preying upon unwary members of the public. According to one bencher candidate, paralegals do such dastardly deeds as representing both spouses in a separation agreement (as if you can’t find lawyers willing to do the same) or "sitting at the counsel table in the Ontario Court of Justice" (quick—my smelling salts!).

The second category of complaint seems to be the impact of paralegals on lawyers’ incomes. "Every year, more of our business is being eroded," wrote one candidate. Paralegals constitute "unfair competition to sole practitioners and small practices," wrote another.

Several bencher candidates argued both propositions simultaneously. Said one: "Unregulated paralegals pose a threat to both the public and the profession." Or another: "The issue is not simply that of lawyers protecting their incomes but it is also one of justice."

Sorry, folks, but you can’t have it both ways. Either paralegals are so thoroughly incompetent that they are virtually swindling their clients out of their money and thereby endangering the public, or they are so capable of providing satisfactory services at reasonable prices that they are taking business away from lawyers. They can’t logically be both.

Pardon the cynicism, but if paralegals are actually incompetent, then lawyers should thank them for making work for us. Their victims—dissatisfied clients—have to employ us to rectify their mistakes, and the bill for fixing up a botched job is usually greater than the bill for doing it right in the first place. We can move to set aside those defective separation agreements, appeal those wrongful convictions, and litigate over those sloppily drafted wills until the estates are exhausted.

On the other hand, if paralegals are actually taking away business from lawyers, this is probably just everyday economics at work. From time immemorial, lawyers have enjoyed incomes at or near the top of the heap. Whenever an industry is more profitable than average, it attracts more entrants. Ultimately, it becomes so saturated with participants that the above-average profits are competed away.

Let’s face it—although we might try to pretend otherwise, much of what lawyers do is not rocket science. The law is supposed to be sufficiently simple for the average citizen to live by, so if the average citizen decides to hang out his shingle and perform legal services for others, who can blame him for thinking he’s qualified?

Fortunately, Murphy’s Law is a fallacy. Most of the time, nothing will go wrong. The people will live by their separation agreement even though one paralegal acted on both sides, and life will roll on just as if they had each hired $400-an-hour LLBs. Paralegals may not do the best job in the world, but consumers understand that buying cheap usually means compromising a bit on quality. If some people are prepared to take those risks, who has the right to deny them this option?

Paralegals vary: there may indeed be some bumbling idiots who do their clients more harm than good, while others may be intelligent, knowledgeable and conscientious. But the same applies to lawyers.

The fact that lawyers are licensed, regulated and insured does not guarantee quality workmanship. In fact, the licence may mislead some unsophisticated clients into thinking that all lawyers are equally safe to hire. Meanwhile, there are lawyers who come to court stoned on cocaine or drunk. There are lawyers who are as stupid as trees. Don’t forget—every year, in every law school, someone graduates last in the class.

Years ago, a client came to me with a document drafted by her business partner’s lawyer. The lawyer had apparently taken a precedent shareholder agreement and attempted to transform it into a partnership agreement. The agreement showed astonishing ignorance of the differences between corporations and partnerships. The most incompetent paralegal could hardly have done a worse job. I was appalled—and even more so when I heard, years later, that the lawyer had been appointed to the bench.

Off the top of my head, I can think of two other instances from my own practice in which lawyers who are now judges demonstrated a surprising lack of knowledge or attentiveness in drafting documents for clients. One defective document has held up the administration of an estate for years.

Having accepted the yoke of regulation for themselves, it’s not surprising that many lawyers wish to impose it on paralegals. Instead, lawyers should consider the futility of trying to protect the public by regulation at all. Ultimately, it’s only the marketplace that can protect the public.

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September 22, 2003