The Regulation of Paralegals in Ontario: Increased Access to Justice?

The legal profession throughout most of Canada enjoys the privilege of self-regulation and a (purported) monopoly over legal practice. In Ontario, the Law Society must regulate so as to facilitate access to justice and protect the public interest. Critics argue that self-regulation is anti-competitive it allows the profession to control the market for legal services, increasing the cost of services and restricting access to them and serves professional interests over the public interest. The Ontario government introduced paralegal regulation to enhance access to justice. Regulation would increase consumer choice and the competence and affordability of non-lawyer legal service providers. The Law Society agreed to regulate paralegals in the public interest. After decades of discord between lawyers and non-lawyers, paralegal regulation was implemented in 2006. Many were opposed to lawyers regulating competitors. For some, it was akin to having the fox watch over the chickens. It also confounded self-regulation the legal profession now regulating itself and others. Paralegals are licensed to provide legal services directly to the public independent of lawyers but they are regulated by lawyers. The Law Society has declared paralegal regulation a success and itself the right choice of regulator. This dissertation explores whether paralegal regulation has increased access to justice, as the government promised and Law Society claims. It examines the history of the legal profession and Law Society in Ontario and the events leading to paralegal regulation. Using both market control and the cultural history of the legal profession as theoretical underpinnings, and through the lens of access to justice, this dissertation analyzes the Law Societys exercise of regulatory authority over paralegals and undertakes empirical research of paralegal representatives at the Workplace Safety and Insurance Appeals Tribunal. This dissertation concludes that paralegal regulation has done little to increase access to justice and that self-regulation and the Law Societys manner of regulating are barriers to increased access to justice.

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Making sense of professional enablers’ involvement in laundering organized crime proceeds and of their regulation

Money laundering has ascended the enforcement and criminological agenda in the course of this century, and has been accompanied by an increased focus on legal professionals as ‘enablers’ of crime. This article explores the dynamics of this enforcement, media and political agenda, and how the legal profession has responded in the UK and elsewhere, within the context of ignoring the difficulties of judging the effectiveness of anti money laundering. It concludes that legal responses are a function of their lobbying power, the determination of governments to clamp down on the toxic impacts of legal structures, and different legal cultures. However, it remains unclear what the effects on the levels and organization of serious crimes for gain are of controls on the professions.

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A Preliminary Study of Third-Party Funding Regulation for International Commercial Arbitration

In the context of increasingly complex international commercial disputes and diversified demands for dispute settlement, the development of third-party funding is irresistible. The third-party funding model while providing investment opportunities for the funders and sharing the economic burden and arbitration risks for the parties to disputes, makes up for the lack of a legal aid system in the arbitration field which indirectly improves the quality of arbitration trials, thus promoting the better development of arbitration as a dispute settlement method.

However, the ensuing conflicts of interest, the confidentiality of cases, enforcement, and other risks also pose significant challenges to arbitration practice. It is, therefore, necessary to establish sound regulatory mechanisms to protect the development of third-party funding models. In this paper, the risks faced by the model in practice are analyzed, and the relevant factors hindering the better development of the model are clarified. On this basis, the interests of all subjects are taken into account, the process of each stage is regulated in detail, and the “regulation” of third-party funding is overall structured.

Jillani, Muhammad Abid Hussain Shah, et al. “A Preliminary Study of Third-Party Funding Regulation for International Commercial Arbitration.”

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I Think I Can: How Self-Efficacy and Self-Regulation Impacts Black and Latinx Bar Examinees

This study examined experiences of bar exam takers of color who passed on either the first or the second time. The theories of self-efficacy and self-regulation served as a conceptual framework for this study and were used to shape the interview questions as well as the data analysis. Eight participants were interviewed who graduated from law school within the last five years, passed the bar exam on either the first or second time, and identified as Black or Latinx. Through analysis of the participants’ interviews, nine themes emerged. Participants who passed on the first time overcame academic insecurity early on, were mindful of study strategies that worked, and found support.

Participants who passed on the second attempt were isolated in studying and experienced outside distractions, but when taking the exam the second time, found their familiarity with the bar exam relieved stress. Finally, both groups found balance in studying, were aware of their ethnic and racial background, and experienced nervousness and anxiety during the exam. Each of these findings had implications for the participants’ self-efficacy and self-regulation while preparing for and taking the bar exam.

Erin Lain, I Think I Can: How Self-Efficacy and Self-Regulation Impacts Black and Latinx Bar Examinees, 10 Ind. J.L. & Soc. Equal. 113 (2022).

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Solicitors’ rights of audience, competence and regulation: a responsibility rights approach

Ching, Jane. “Solicitors’ rights of audience, competence and regulation: a responsibility rights approach.” Legal Studies 41.4 (2021): 585-602.

This paper takes as its context the decision of the Solicitors Regulation Authority in England and Wales to abandon before the event regulation of lower court trial advocacy. Although solicitors will continue to acquire rights of audience on qualification, they will no longer be required to undertake training or assessment in witness examination, by contrast with other, competing, legal professions. Their opportunities to acquire competence outside the classroom will remain limited. The paper first explores this context and its implications for the three key factors of rights to perform, competence and regulatory accountability. The current regulatory system is then displayed as a Hohfeldian network of rights and duties held in tension between stakeholders intended to inhibit the incompetent exercise of rights to conduct trial advocacy. The SRA’s proposal weakens this tension field and threatens the competitive position of solicitors. The paper therefore finally offers a radical alternative reconceptualisation of rights of audience in terms of Waldron’s ‘responsibility rights’ as a solution, albeit one with significant implications for the individual advocate. This model, applicable globally, is closer to notions of societal good and professionalism than to those of the competitive market, whilst inhibiting incompetent performance and remediating the SRA’s approach.

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Agency over technocracy: how lawyer archetypes infect regulatory approaches: the FCA example

Clark, Trevor, et al. “Agency over technocracy: how lawyer archetypes infect regulatory approaches: the FCA example.” Legal Ethics (2022): 1-20.

In this article, we look at the contested role of in-house lawyers in regulated organisations in the financial sector. A recent Financial Conduct Authority consultation on whether to designate the head of legal of banks, insurance companies and other financial firms as ‘Senior Managers’ and the decision which flowed from it, reflected a flawed view of lawyers as a neutral technocracy of mere legal technicians; we show how the FCA’s decision is potentially damaging to the public interest and failed to take into account that in-house lawyers are often important decision-makers and influencers within their organisations. We put the case for an alternative view; that in-house lawyers are professionals, with agency that requires them to act in accordance with ethical norms and means they should be made more accountable for their conduct.

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Making sense of professional enablers’ involvement in laundering organized crime proceeds and of their regulation

Abstract:

Money laundering has ascended the enforcement and criminological agenda in the course of this century, and has been accompanied by an increased focus on legal professionals as ‘enablers’ of crime. This article explores the dynamics of this enforcement, media and political agenda, and how the legal profession has responded in the UK and elsewhere, within the context of ignoring the difficulties of judging the effectiveness of anti money laundering. It concludes that legal responses are a function of their lobbying power, the determination of governments to clamp down on the toxic impacts of legal structures, and different legal cultures. However, it remains unclear what the effects on the levels and organization of serious crimes for gain are of controls on the professions.

Read the full article here.

Lawyer Regulation Stakeholder Networks and the Global Diffusion of Ideas

This Article examines the increasingly global nature of the networks to which lawyer regulation stakeholders belong. After identifying who lawyer regulation stakeholders are, the Article identifies five different kinds of opportunities these stakeholders have to interact with global counterparts or to be exposed to global perspectives. For each of the five identified opportunities, the Article provides several examples that illustrate the ways in which U.S. lawyer regulation stakeholders are connected to global networks. The Article explains the broad impact that these kinds of networks can have and concludes that global networks, and the perspectives they bring, should now be viewed as a regular part of U.S. lawyer regulation stakeholder conversations.