Context: The Current Paradigm in Canada and Comparative Jurisdictions

In this section, we provide:

The current paradigm in Canada and comparative jurisdictions

Objectives of regulation of legal assistance

Scholarly analysis of the regulation of the legal profession has identified a range of key regulatory objectives.2 In a survey and analysis of regulatory approaches in Canada and comparable international jurisdictions – the United States, England and Wales, New Zealand, and Australia – it is argued by Noel Semple that the regulation of legal services generally invokes three justificatory principles:3

  1. Consumer/client protection – primarily for clients who are the immediate recipients of legal services;
  2. Minimization of negative externalities – primarily for third parties to the licensee-client relationship, both individuals and society-as-a-whole, who may be negatively affected by the delivery of poor quality or otherwise detrimental legal services; and
  3. Encouragement of positive externalities – again, primarily for third parties to the licensee-client relationship, both individuals and society-as-a-whole, who may be positively affected by the delivery of good quality or otherwise beneficial legal services.

As Semple notes, at the society-wide level, the concern for positive and negative externalities can include the objectives of preserving the rule of law and improving access to justice.4

At the same time, scholars have also identified a self-interested bias in the rule-making actions, if not the justifications, of self-regulating lawyers.5 Further, bias has also been detected in regulatory monitoring and enforcement actions.6

Legal regulatory bodies themselves generally acknowledge a similar range of objectives. For some of those bodies, such as the LSO, these objectives are identified in their enabling legislation. Under the Law Society Act, the LSO’s primary function is to ensure that all people who practise law or provide legal services in Ontario “meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide”.7 This mission would appear to automatically give rise to two corresponding primary regulatory principles: the provision of legal services must meet appropriate standards of quality/competence and the provision of legal services must meet appropriate ethical standards.

The Law Society Act goes on to provide that the LSO, in “carrying out its function, duties and powers … shall have regard to”8 the following five 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. 2006, c. 21, Sched. C, s. 7.

At the same time, informed by these principles and the objectives, the LSO has articulated a more specific set of criteria for assessing regulatory reform proposals. This is particularly evident, for instance, in the regulatory reports of the LSO on the issue of whether to allow so-called “alternative business structures” (ABS) in Ontario. As further discussed in Section 4.1.2-h below, allowing ABS amounts to allowing entities and organizations that are not owned or controlled by lawyers to deliver legal services to the public. In the course of its work on the issue, the ABS Working Group identified the following seven criteria to guide its assessment of proposals: access to justice, responsiveness to the public, professionalism, protection of solicitor-client privilege, promotion of innovation, orderly transition, and efficient and proportionate regulation.9

The enabling legislation for other Canadian law societies do not generally go as far as the Ontario legislation in expressing regulatory principles, but those law societies commonly acknowledge a similar range of principles and other criteria. For example, in its Strategic Plan 2019-2021, the mission statement of the Law Society of Saskatchewan says that it “serves the public interest and advances the administration of justice by regulating the competence and integrity of the practice of law in a flexible and innovative manner, ensuring the independence of the legal profession, and promoting access to justice.”10

The lawyer-centric regulatory schemes in Canadian jurisdictions

In what follows, we summarize the general approach to regulation of the legal profession and the delivery of legal services across Canadian jurisdictions. The general approach is founded on a common “lawyer-centric” restriction on who may provide legal services, but also involves a variety of extensions and exemptions that provide opportunities for people other than lawyers to provide some legal services in specified circumstances. In the Appendix to this report, we provide more detailed summaries of the approach taken in each Canadian jurisdiction (generally, citations to specific statutes and by-laws are left to the Appendix). In doing so, our main objectives are to both identify and situate the extent to which community justice help might be allowed within each jurisdiction’s approach.

Common foundational “lawyer-centric” general restriction

All jurisdictions in Canada use a regulatory framework for the legal profession and the provision of legal services that is founded on a general lawyer-centric restriction. This foundational restriction is “lawyer-centric” because it prohibits all people other than licensed lawyers (or, in the case of Quebec, advocates) from engaging in the practice of law or the provision of legal services. The activities that constitute the practice of law are essentially the same as those that constitute the provision of legal services. Whether the restriction is framed in terms of “the practice of law” or “the provision of legal services”, or both, differs from jurisdiction to jurisdiction.

At the same time, it should be noted that, across Canada, the provision of legal information is not regarded as the practice of law or the provision of legal services. Along the spectrum of law-related assistance, and as already mentioned in Section 3, above, this creates what is often referred to as a regulatory “dividing line” between “legal information” (on the largely unregulated side of the line) and “legal advice” or, more broadly, “legal services” (on the regulated side).

Generally speaking, a dividing line may be theoretically drawn by reference to a point at which law-related assistance requires the application of legal knowledge, principles, and judgment to specific circumstances. As such, the dividing line is both blurry and potentially widely encompassing; nevertheless, the common structure of the lawyer-centric regulatory frameworks in Canada attempts to restrict activity on the legal services side of the line by requiring regulatory authorization or permission to engage in those activities.

This general restriction is foundational in the sense that it has built upon it a variety of extensions and exemptions that permit a range of non-lawyers to engage in some or all activities that comprise the practice of law or the provision of legal services. We identify and explain these extensions and exemptions in what follows.

Jurisdictionally varying extensions to availability of legal services

We use the term “extension” to refer to two types of authorizations, both of which operate to extend the availability of legal services associated with licensed legal professionals. The first type does this by extending the scope of the licensed legal profession through the authorization of the activities of lawyer-like independent licensees. This “independent legal professional licensees” extension is part of the regulatory frameworks in:

Alberta takes a unique approach to the role of independent legal professionals. Its regulatory scheme does not expressly allow them, let alone license them, as a general type of legal services provider, but there are a variety of specific authorizations for non-lawyer “agents” spread across a range of legislative enactments relating to particular areas of law and legal processes.

The services provided by independent paralegals in Alberta are based on these ad hoc authorizations, but also often appear to extend beyond them. The Law Society of Alberta acknowledges this and has essentially adopted a position of regulatory tolerance.

The second type of extension expands the service capacity of lawyers and other licensed legal professionals by authorizing their employees or others whom they supervise, such as articled clerks and law students, to participate in the provision of legal services. This “supervised legal services provision” extension is part of the regulatory framework in all jurisdictions, although in the case of law students there is some variation in the range of contexts in which the extension applies. In particular, in some jurisdictions it is limited to employed law students, while in other jurisdictions it extends to law students who are participating in supervised clinical or experiential learning programs.11

Jurisdictionally varying exemptions from the lawyer-centric restriction

We use the term “exemption” to refer to types of authorizations that enable people other than licensed legal professionals to undertake a limited range of activities that fall into the practice of law or provision of legal services, or to undertake any such activities but only in particular circumstances or to a limited extent. We identify five main types of exemptions:

  1. “Self-help” exemption: Authorizes people to do any activities on their own behalf. We also include in this exemption the authorization for employees to prepare “in-house” documents for their employer.
    • All Canadian jurisdictions provide this exemption.
  2. “Non-lawyer roles” exemption: Authorizes people serving in particular roles to undertake, for others, some or all activities that fall into the categories of practice of law or provision of legal services. This type of exemption typically covers several of the following specified roles: public officers, traditional notaries, insurance adjusters, trade union representatives, and elected representatives.
    • All Canadian jurisdictions use this type of exemption, although there are differences between jurisdictions in the precise roles that are included.
    • This category often includes specific allowance for or power to authorize Indigenous Court Workers.
  3. “Non-legal professions or occupations” exemption: Authorizes members of non-legal professions or occupations to perform law-related tasks when undertaken in the course of their normal professional or occupational activities, such as accountants and social workers.
    • This exemption is used in Ontario, New Brunswick, and Yukon.
  4. “No-fee provision” exemption: Authorizes anyone to provide legal services if they do so for no fee, gain, or reward or, in other words, an exemption for the “no-fee” provision of legal services.
    • This exemption is part of the regulatory frameworks in Manitoba, PEI, Nova Scotia, Nunavut, and British Columbia, although it does not appear to be expressly relied upon or put to any systematic use by any provider of law-related assistance in any of these jurisdictions. It is also worth noting that the precise wording of this exemption differs in each jurisdiction where it appears, and this may mean that the scope of the exemption varies from jurisdiction to jurisdiction.
  5. “Personal-relationship” exemption: Allows people in some personal relationships, specifically, family, friends, or neighbours, to assist with or provide representation in select legal proceedings, provided they do so on a no-fee basis and, in some cases, for only a limited number of times per year.
    • This exemption is used in Ontario.

The table on the following page provides a compilation of extensions and exemptions by jurisdiction.

FIGURE. 1: Summary Table of Extensions and Exemptions by Canadian jurisdiction
Jurisdiction ON AB BC MB SK NS QC NB NF&L PEI YK NVT

Lawyer-centric foundational restriction

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Extensions

Independent legal professional licensees

Y

Y^

Y

Y*

Y*

Y

Y*

Supervised legal services provision

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Exemptions

Self-help

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Non-lawyer roles

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Non-legal professions or occupations

Y

Y

Y

No-fee provision

Y

Y

Y

Y

Y

Personal relationship

Y

* For these jurisdictions, refers to legislated power for limited licensing

^ Independent paralegals, but unlicensed

The foregoing range of exemptions are grounded either in the foundational statutes granting self-regulatory powers to lawyers or in the by-laws of the self-regulatory bodies themselves. As noted, in many jurisdictions there is express recognition that other provincial, territorial, and federal statutes provide authorizations to non-lawyers to appear on behalf of parties in specified dispute resolution proceedings before courts, tribunals or other decision-making institutions. A survey of these authorizations has been undertaken by Lisa Trabucco as part of a broader review of the extent to which the idea of a “lawyers’ monopoly” is a misperception, both in relation to representation in legal proceedings and other types of legal assistance.12 These ad hoc statutory authorizations are too numerous to summarize here, but it is important to recognize that they exist and serve a significant and useful function in their particular contexts, even though lawyers continue to be the predominant providers of legal representation in Canada.

A note on judicial power to approve non-lawyer representatives and McKenzie Friends

It should also be noted that there is one other component of the legal regulatory framework relevant to roles for non-lawyers, which is the inherent power of courts to control their proceedings, as well as the related rules of courts. This component is relevant because, in a number of Canadian jurisdictions, courts (or court rules) permit non-lawyers to represent parties in certain types of proceedings (primarily, in family law proceedings) or to act as support persons during court proceedings (so-called “McKenzie Friends”). Non-lawyers are permitted to act as representatives in family law matters, with the approval of the court, in Ontario, Newfoundland and Labrador, and Nova Scotia.13

“McKenzie Friends” is the label commonly applied to unpaid trusted helpers of people involved in court proceedings, who are permitted to provide support and assistance during the proceedings, sometimes including speaking to the court, but are typically not permitted to act as the representative of the person being assisted before the court. McKenzie Friends are permitted by court rules or have been approved by courts in Ontario, Alberta, British Columbia, Manitoba, and Newfoundland and Labrador,14 but in all jurisdictions their appointment occurs case-by-case and is always at the discretion of the presiding judge.

A note on federal jurisdiction

As the legal profession is primarily regulated at the sub-national level in Canada, there is no general regulatory framework applicable to legal professionals at the federal level. However, as just mentioned, in some areas of federal jurisdiction, the federal government has enacted provisions that impact the delivery of legal services, including by authorizing non-lawyers to appear as representatives in dispute resolution proceedings, in those specific areas.15

These specific authorizations expand the scope of the potential for non-lawyers to meet legal needs, but there is a general lack of data and literature on the extent to which this potential is realized in practice.16 There is also a substantial degree of variation in the specific regulatory structure and operation of these various decision-making institutions, which affects the significance of the authorization for non-lawyers. For instance, in the area of veterans’ affairs, people seeking review of departmental decisions on benefits entitlements, which are heard by the Veterans’ Review and Appeal Board (VRAB), are authorized to be represented by non-lawyers before the Board. However, via the Bureau of Pensions Advocates, the government of Canada provides free access to legal assistance, including representation, by staff lawyers. Consequently, the VRAB observes that claimants before it are only occasionally represented by non-lawyers.17

Given the focus of this report, the most relevant example of non-lawyer authorization in the federal sphere is the authorization in the Immigration and Refugee Protection Act (IRPA) for legal services to be provided by immigration consultants, who are non-lawyer professionals who have recently been subjected to more extensive regulation.18 The IRPA also appears to contain a “no-fee provision” exemption, that allows people such as refugee support workers to provide law-related assistance as well, although there is currently controversy in the sector over a contrary interpretation of the relevant provision put forward by legal counsel in the Department of Immigration, Refugees and Citizenship Canada.19

Situating “access-oriented” non-lawyer law-related assistance and community justice help in the current paradigm

Given the range of exemptions and extensions that allow non-lawyers to participate in the provision of legal assistance, the current regulatory paradigm for legal services in Canadian jurisdictions cannot be characterized as “lawyer-exclusive”.20 Nevertheless, we maintain that the current paradigm remains substantially lawyer-centric, both in terms of the common foundational prohibition on people other than lawyers engaging in the practice of law and in terms of the dominant quantitative and qualitative role that lawyers continue to play in the day-to-day delivery of legal services in Canada.

It is important to recognize though that the regulatory paradigm has long contained a range of permissions for delivery of a variety of legal services by different types of non-lawyers. This is important because it indicates that, within the current lawyer-centric paradigm, at the most general level, the provision of legal assistance by non-lawyers has for some time been recognized to be both justifiable and feasible. While the focus of the present report is on recent developments and trends in community-based not-for-profit non-lawyer assistance, in this part, we briefly describe some long-standing examples of what we will call “access-oriented” non-lawyer law-related assistance programs and providers and situate them in relation to community justice help. These examples are “access-oriented” in the sense that their assistance is typically targeted at particular communities experiencing social disadvantage and is available at low or no cost (often because government-funded). At the same time, these examples are distinguishable from community justice help because they are typically associated with or embedded in the formal legal system, including legal aid programs.

A long-standing example of an access-oriented form of non-lawyer assistance, which is included in Trabucco’s review, are Indigenous Court Workers in the criminal justice system. The current intergovernmental framework for the Indigenous Court Worker (ICW) Program (as it is now called) dates back to the late 1970s. According to a 2018 evaluation report, “over 190 full time and part time”21 court workers provided a wide range of assistance to “Indigenous persons (clients) involved with the criminal justice system (whether as accused persons, victims, witnesses, family members, others)”.22 The report summarized the range of assistance provided by ICWs as follows:

They provide information on charges, court procedures, rights and responsibilities, bail, diversion, restorative justice and Indigenous community justice alternatives; offer support in accessing legal resources, as well as appropriate community programming including wellness, trauma, housing, family and employment services; and facilitate communication with court officials, accused persons, family members and communities to ensure understanding and collaboration. As “Friends of the Court”, they also provide critical background and contextual information on the accused, make the court aware of alternative measures and options available in the Indigenous community, and ensure that the accused comprehends the court process.23

Generally speaking, the formal descriptions of the role of ICWs by the local organizations where they are based note that they are not providers of legal advice, but it seems clear from the evaluation report that there is much they do that goes beyond the mere provision of general legal information. And the fact that they are the subject of express exemptions and allowances in the legal services regulatory regimes of some provinces and territories reinforces the notion that at least some of their services could be regarded as the provision of legal services – otherwise, the exemptions and allowances would be redundant. Among the important points to note about the ICW Program is that it was evaluated as both effective and efficient and it was recommended that consideration be given to expanding the scope of services and activities of ICWs.24 In addition, it should be noted that ICWs can be embedded in community-based organizations.

Since the ICW Program has been operating for decades, it does not represent a recent development that falls within the focus of the current report. However, its long history, continuing effectiveness, and potential for expansion, illustrates the ongoing justifiability and feasibility of non-lawyer assistance in the nature of community justice help. It is an example of a program of no-fee non-lawyer assistance that is provided at the community level, in a holistic way, for people experiencing social disadvantage. Indeed, Indigenous people are generally understood to experience the most significant social disadvantages in Canadian society.

Another example, also discussed by Trabucco, are the Worker Advisors (and Employer and Appeals Advisors) employed by governments in many Canadian jurisdictions to provide free law-related assistance to people involved in the workplace injury compensation system. Worker Advisors are not community-based to the same extent as ICWs, but the allowances for their services can nevertheless be justified as contributing to access to justice for the vulnerable population of injured workers. Similarly, non-lawyer trade union representatives are also commonly exempted from prohibitions on providing legal services. This exemption can be regarded as promoting access to justice by alleviating the need to retain licensed legal professionals for day-to-day issues of labour relations. Trade union representatives are community-based in the sense of being embedded in the community of employees they serve.

A final example of a long-standing non-lawyer source of access-oriented law-related assistance is Ontario’s Community Legal Workers (CLWs). The primary role of CLWs is to engage local communities on their legal needs and to serve as liaisons between communities and the legal clinics that serve them. CLWs can perform a range of tasks, including public legal education, community organizing and assisting with various legal tasks such as preparing affidavits. To some extent, CLWs work under the supervision of clinic lawyers, especially when it comes to playing a role in providing legal advice, so to an extent they are not an independent source of non-lawyer assistance. But, as employees of community legal clinics funded by Legal Aid Ontario, CLWs are exempted from the prohibition on non-lawyers providing legal services and, again, this exemption would be redundant if CLWs did not ever cross the line from providing legal information to providing other forms of legal assistance.

While the exemption for CLWs is long-standing, the extent of their presence in the Ontario community legal clinic system has fluctuated and, for a variety of reasons (not, apparently, related to effectiveness), has decreased over time.25 Moreover, since the introduction of licensing for paralegals, some CLWs have become licensed paralegals. Nonetheless, the exemption for CLWs can also be regarded as grounded in a concern to improve access to law-related assistance in a community-based way.

It is clear then that the current paradigm for the regulation of legal services in Canada, while lawyer-centric, has a long-established place for non-lawyers to provide a variety of forms of law-related assistance. Some significant examples of these allowances for non-lawyers can be regarded as justified by a need to improve access to justice for people experiencing social disadvantage and, in turn, are “access-oriented” in their mode of delivery. In other words, in our terms, the current paradigm already expressly recognizes and allows the provision of some specific forms of non-lawyer law-related assistance that are similar to community justice help. In our analysis though, there is significant untapped potential in the current paradigm to expand the scope of non-lawyer assistance in the form of community justice help. In the next part of this section, we briefly identify the regulatory bases upon which community justice help (to the extent that it might be characterized as involving the provision of legal services) could be authorized into the future.

Regulatory bases for further developing community justice help

To the extent that community justice help may involve provision of forms of law-related assistance that may be viewed as “crossing the line” into legal services, the structure of regulatory frameworks in Canada requires authorization or permission to provide that assistance. As we have already mentioned, the location of that line is blurry, and also potentially widely encompassing. In our view, the need to improve access to justice is an important reason not to attempt to identify or enforce the point at which a particular form of law-related assistance becomes a provision of legal services, especially in contexts where the assistance is good quality. As our discussion in Sections 6 and 7 below will address, community justice help appears to be such a context.

Nevertheless, given the prevailing regulatory frameworks and ongoing potential for regulatory action against aspects of community justice help that might be seen as crossing the line, we draw attention here to two general bases upon which it could be regarded as permitted, within the existing regulatory frameworks in Canadian jurisdictions. These are the exemptions in the current regulatory frameworks for, first, “non-legal professions or occupations” and, second, for “no-fee provision”.

Not all Canadian jurisdictions include these exemptions in their regulatory frameworks, but most include at least one of them. More specifically, one or both of these exemptions appears in the regulatory frameworks of Ontario, British Columbia, Manitoba, Nova Scotia, PEI, and Newfoundland and Labrador. In these jurisdictions, therefore, there is apparent authority, and untapped potential, for community justice help to be maintained and expanded. It would not be permitted, on either of those bases, in Alberta, Quebec, Saskatchewan and New Brunswick. However, in Saskatchewan, it could in the future be permitted on the basis of the extension of the limited license scheme. Also, in Alberta, it might arguably be permissible on the same informal basis that the current legal service provision by independent unlicensed paralegals is tolerated. This current and future scope for authorized community justice help underpins our exploration of the ways in which it is being undertaken in many Canadian jurisdictions, discussed in Section 6 of this report.

Nudging the paradigm: recent Canadian initiatives to improve access to justice via means other than community justice help

In what follows, we provide a brief overview of recent Canadian initiatives aimed at improving access to justice via lawyers, or mechanisms closely associated with or similar to lawyers, that are not in the nature of community justice help. While community justice help is the focus of this report, it is important to situate recent developments and emerging trends in relation to more general initiatives that maintain a central role for lawyers, both in for-profit and pro bono contexts. Ontario provides examples of a range of these initiatives that are aimed at making lawyers themselves more accessible and so we will structure this review by reference to developments in that jurisdiction.

A first initiative of this type is the authorization for limited scope retainers, otherwise known as “unbundling” of legal services, which was introduced in an effort to enable clients to engage lawyers for only certain aspects of a legal matter, thus reducing overall costs for clients who were capable of handling the other aspects of their matter. The Ontario Family Bar recently launched a program to support the provision of unbundled service, offering training to family law lawyers relating to this type of service provision, and making dedicated efforts to spread the word about the availability of these services to the broader public.26 All other Canadian jurisdictions now authorize limited scope retainers.27

A second initiative of this type introduced in Ontario is a modified conflict standard for lawyers offering pro bono services in specified pro bono contexts.28 Similar modifications exist in British Columbia, Alberta, and Manitoba.

Third, the LSO has incrementally expanded the allowances for law and paralegal students to perform tasks, under supervision of licensed legal professionals, associated with their practice of law or their provision of legal services.

Fourth, the LSO has gone some way down the path of allowing ABS for the delivery of legal services. As briefly mentioned in the review of regulatory objectives, this allowance alters the traditional rule that only entities that are controlled and owned by lawyers may deliver legal services. According to the argument in favour of allowing ABS, the efficiency and accessibility of legal services are likely to be improved if the business expertise, technological innovation and financing capacity of non-lawyers can be applied to the delivery of legal services. Under the regular version of ABS, lawyers must still be the primary deliverers of legal services and must take professional responsibility within the entity for legal service delivery. But they will do so, it is argued, in a more efficient and effective context that will improve access to justice, at least for those people with some ability to pay.

As will be addressed shortly on comparative jurisdictions, the regular version of ABS is allowed in England and Wales and in Australia (although the extent to which those allowances have improved access to justice remains contested).29 ABS have been repeatedly rejected in the United States, but now appears to be emerging in some jurisdictions. After a significant period of deliberation, the LSO opted not to allow the regular version of ABS. Instead, it has allowed a limited and targeted form of ABS that enables only not-for-profit civil society organizations (CSOs) to employ licensee lawyers and paralegals to provide legal services directly to the clients whom those CSOs typically serve. This is a notable development because it indicates an appreciation of the need to situate lawyers and the legal services they provide in community-based contexts. To date, most other Canadian jurisdictions have given some attention to the issue of whether to allow some form of ABS, but none have yet done so.30

Ontario also provides an example of how the paradigm is being nudged by expanding the scope of the legal profession through licensing of lawyer-like providers of legal services. The introduction of paralegal licensing in Ontario was partly justified on the basis that their regularization would contribute to access to justice.31 More recently, following the Family Legal Services Review,32 a potentially significant regulatory change is currently under consideration – an expansion to include specified tasks in family law matters in the scope of authorized activities permitted to be undertaken by paralegals. Quebec has long had its notary profession, which has a broad scope of practice, though different to the Ontario paralegal profession. So far, no other Canadian jurisdiction has followed suit in creating a second category of legal professional, but two provinces – Saskatchewan and Manitoba – have now introduced legislative authorization for limited licensing on a case-by-case basis that can respond to specific local needs.

The current Canadian paradigm: summing up

In summary, the current Canadian paradigm for the regulation and delivery of legal services is lawyer-centric. The current paradigm has a common foundational prohibition on all people other than licensed lawyers (or, in the case of Quebec, advocates) from engaging in the practice of law or the provision of legal services. This general prohibition has built upon it a variety of extensions and exemptions that permit a range of non-lawyers to engage in some or all activities that comprise the practice of law or the provision of legal services. These extensions and exemptions are primarily contained in the provincial and territorial legislation, which regulates the legal profession in each jurisdiction but is supplemented by regulations of the various jurisdictional law societies, as well as by ad hoc provisions in federal, provincial, and territorial legislation, and by the inherent power of courts and associated rules of court.

It is clear that non-lawyer provision of law-related assistance is a long-standing and well-established component of the lawyer-centric paradigm. Importantly, for the purposes of the present report, the forms of approved non-lawyer assistance include no-fee or not-for-profit providers and programs that are situated in community-based contexts and are aimed at improving access to justice for people living on low incomes or experiencing other forms of social disadvantage.

In recognition of a need to continue to improve access to justice for disadvantaged people and communities, all Canadian jurisdictions have taken steps in recent years to make the services of lawyers, or other types of licensed legal professionals, more accessible. These steps can be understood to be “nudging” lawyers closer to disadvantaged communities and in this sense, are “nudging the paradigm” in the direction of improving access to justice. But this nudging is not alone likely to solve the problem of lack of access to justice for those experiencing social disadvantage, in part because many of these steps are still associated with market-based, user pays, for-profit delivery of legal services, which remains unaffordable for many people and communities.

Consequently, it is necessary to consider whether access to justice can be improved for those people and communities by shifting the paradigm away from lawyer-centricity and expanding the availability of non-lawyer assistance in the nature of community justice help. As we have outlined above, this expansion is consistent with and permitted by the existing regulatory frameworks in most Canadian jurisdictions.

Before getting to our review of recent developments in community justice help, we first review the regulatory schemes and scope for non-lawyer roles, and community justice help, in comparative jurisdictions.

Regulatory schemes and non-lawyer roles in comparative jurisdictions

In what follows, we provide an overview of the regulatory frameworks for the legal professions and providers of legal services in three jurisdictions of comparative interest: the United States (US), Australia, and England and Wales. Both the US and Australia use a lawyer-centric approach similar to that used across Canada. In England and Wales, there is also a degree of lawyer-centrism, but within a broader approach that allows far greater scope for non-lawyer provision of law-related assistance. We describe the approaches in these jurisdictions, while noting the extent to which roles for non-lawyers in general and community justice help more particularly are authorized or apparent.

United States

The regulation of the provision of legal services in the US is primarily the responsibility of the sub-national state jurisdictions. In some states, this responsibility belongs to the judiciary and the courts, while in other states it belongs to the legislature.33 In most states though, either the courts or the legislatures have delegated some or all primary responsibility to self-regulatory bar associations.34

Regardless of which governmental entity is primarily responsible, in all US jurisdictions, a relatively strict lawyer-centric prohibition on the practice of law by non-lawyers is used. At the same time, it has been recognized that the precise extent and content of the “monopoly” enjoyed by lawyers in the US are unclear.35 As well, there is a limited range of exemptions and authorizations for non-lawyers to provide some legal services, in some contexts, in some jurisdictions.36 Importantly, these exemptions and authorizations appear to be increasing in recent times in response to access to justice concerns.37 Some of these newly authorized roles take the form of newly created forms of licenses or certifications to deliver a confined set of for-fee legal services to clients who can afford to pay, for example, Limited License Legal Technicians in Washington (now to be discontinued)38 and Certified Legal Document Preparers in Arizona (who cannot provide legal advice).39 As such, these roles are not in the nature of community justice help.

Other permitted roles for non-lawyers who provide law-related assistance at no cost, are situated in court- or community-based not-for-profit service contexts and so will be considered in Section 6. One example is the use of court navigators in a number of jurisdictions, including the state of New York. A recent report by the Regulatory Innovation Working Group of the Commission to Reimagine the Future of New York’s Courts (the RIWG-NY) recommended expanding the scope and substance of the Court Navigators Program.40 Of particular significance for present purposes is a further recommendation of the RIWG-NY to allow “the provision of certain “legal” services and advocacy by trained and certified social workers”.41

US jurisdictions, and the membership of the American Bar Association (ABA), have repeatedly resisted efforts to allow ABS – that is, to allow entities providing legal services to be owned or controlled by people other than lawyers – although that issue regularly returns for reconsideration, in part because allowing ABS is supported by the ABA Center for Innovation.42 In the face of continuing resistance to approval of a national endorsement of ABS, the Center for Innovation settled for adoption of a watered-down resolution, at the 2020 midyear meeting of the ABA governing body, to encourage state-level innovation in the regulation of legal services to improve access to justice.43 The resolution itself expressly disclaimed an intention to advance ABS, which may mean that the issue will remain dormant at the national level for the time being, but the issue is being considered further in individual states. In its recent report, the RIWG-NY recommended against allowing ABS in the state of New York, but noted that a form of it is currently allowed in the District of Columbia and that it is on the cusp of being allowed in Utah, Arizona and California.44

US jurisdictions have also been wrestling with whether and how to apply unauthorized practice of law concepts and rules to technology-enabled providers of legal document assembly tools and other law-related tools that could be characterized as legal services.45 Authorization for unbundled legal services is also occurring in some jurisdictions.46

Australia

The regulation of the provision of legal services in Australia is the responsibility of the sub-national state and territory jurisdictions.47 Similar to Canada, there is a common overall approach, but some differences in details. There have been attempts to establish a uniform approach across Australian jurisdictions, most recently with the development by the Council of Australian Governments of a model National Law and National Rules for the legal profession, but the uniform approach has only been formally implemented in New South Wales (NSW) and Victoria. 48

All Australian jurisdictions use a common foundational lawyer-centric restriction that prohibits anyone other than lawyers (barristers and solicitors) from practising law or providing legal services. There is jurisdictional variation in the definitions of practising law, but generally speaking, an all-encompassing array of activities are included and therefore restricted. 49

An extension to the availability of legal services that authorizes employees of lawyers to participate in the provision of legal services, as well as other persons who are appropriately supervised by lawyers, is available in all Australian jurisdictions.50 Some Australian jurisdictions use a narrow form of the extension of licensing of lawyer-like professionals in that they authorize licensed conveyancers to provide legal services for real estate transfers and related transactions.51 All Australian jurisdictions allow for legal services to be delivered by corporations that are not owned or controlled by lawyers. These are referred to as “incorporated legal practices” in Australia, but in Canada and other jurisdictions this is commonly referred to as an allowance for “alternative business structures”. In Australia, the legal services still need to be provided by or under the professional responsibility of a lawyer.52

A number of other exemptions from the lawyer-centric restriction are also part of the regulatory frameworks throughout Australia. A self-help exemption exists in all jurisdictions. There are varying scopes of “non-lawyer roles” exemptions covering, for example, public trustees, authorized government employees and land agents. Under the Uniform Law, implemented in NSW and Victoria, there is no use of a “no-fee provision” exemption, but that exemption is used in South Australia, Western Australia, the Northern Territory and the Australian Capital Territory.53 No jurisdiction appears to use a “non-legal profession or occupation” type of exemption or a “personal-relationship” type of exemption, although Australian courts have generally affirmed their power to permit McKenzie Friends and, on occasion, to permit non-lawyers to act as representatives.54

In addition, and similar to Canada, the Australian regulatory framework includes authorization, from the federal government, for non-lawyers to be registered as migration agents and to provide law-related assistance, including representation before a court or tribunal, for a range of immigration matters. The regulatory standards applicable to migration agents are the responsibility of the Office of the Migration Agents Registration Authority (OMARA).55 OMARA enables migration agents to be registered as providing their services on a commercial or non-commercial (not-for-profit) basis.

Information in OMARA annual reports indicates that the vast majority of agents operate on a commercial basis and so do not provide an example of community justice help as understood in this report. Information on the OMARA website also indicates that there is regular concern about quality of service and regular inquiries into how best to arrange regulatory structures so as to protect the public interest.

The use of the “no-fee provision” exemption in some jurisdictions in Australia provides some scope for the provision of legal services by non-lawyers in community-based not-for-profit settings. To date, our research has not found any sources that identify or describe service providers operating under this exemption in any relevant Australian jurisdiction. Our research indicates that, to the extent that access to community-based legal services is an area of activity in Australian jurisdictions, efforts are focused on supporting and enabling so-called outreach services by lawyers – that is, integrating access to the provision of legal services by lawyers into community-based not-for-profit settings.56

This focus is reflected in the recently updated National Strategic Framework (NSF) on government-funded legal assistance released by the Council of Attorneys-General representing all jurisdictions of government in Australia (applicable from mid-2020 to mid-2025).57 The NSF sets out “overarching objectives and aspirational principles to guide legal assistance policy development, service delivery and sector planning”.58 The six principles set out in the NSF reinforce the efforts to support and enable outreach services and other mechanisms for improving access to justice at the community level, including the expansion of non-lawyer roles, but there is no specific mention of non-lawyers. Instead, the emphasis is on better focusing and integrating lawyers’ services at the community level.59

Nevertheless, the widespread health and justice partnership initiative in Australia, discussed in Section 6.3.1, that integrates lawyers into health care teams, does appear to involve non-lawyer health care workers in providing a degree of law-related assistance, but it is unclear to what extent, if any, it goes beyond mere provision of legal information. Further, studies of pathways to justice in Australia indicate that community service organizations and workers play a significant role as a “first port of call” for people seeking help with life affecting problems with a legal element.60 The studies also indicate that some forms of assistance provided in these non-lawyer settings may involve forms of community justice help,61 although it is also reported that there is a strong awareness of a need to avoid straying into the provision of legal advice.62

This suggests that it is likely that, beyond health-justice partnerships, some community justice help is being provided in Australian jurisdictions and that, in turn, the predominant lawyer-centric paradigm may have potential to shift. Notably, a report authored by a lawyer-researcher in the Victorian community legal service sector has called for community legal centres to explore the possibilities for advancing community empowerment through programs involving non-lawyer peer educators and community paralegals, based on models used in legal empowerment projects for justice-seeking groups in lower-income countries, such as South Africa, the Philippines and Kenya.63 The report mentions some examples of peer support programs in Australia, but we have not been able to identify any other such programs having been established in Australia.

England and Wales

For the purposes of this report, for comparative analysis of the approach to regulation of legal services in common law Europe,64 we will confine ourselves to the jurisdiction of England and Wales. We will first review the overall regulatory approach, with an emphasis on continuity and changes following new legislative action in 2007. This overview will reveal that non-lawyers have long been entitled to provide a range of legal services.

The regulatory framework applicable to the legal profession in England and Wales was significantly overhauled with the introduction of the Legal Services Act 2007,65 but a fundamental component remained the same. The Act maintained the long-standing approach in England and Wales of only restricting non-lawyers from engaging in a specific sub-set of legal activities, referred to as “reserved” legal activities. At the same time though, it allowed a range of other designated (non-lawyer) licensed professionals, such as conveyancers and patent attorneys, to engage in differing bundles of specific reserved activities, along with lawyers. The “reserved” legal activities are:

The first two of these reserved activities are quite broad, albeit only relating to dispute resolution, while the remaining four are quite narrow. A recent review has observed that the basis upon which these six activities are reserved is “largely an accident of history or the result of political bargaining”66 and that there is “no modern, risk-based foundation for what is reserved or not reserved”.67

Be that as it may, the approach in England and Wales thus remains that a significant array of law-related assistance activities may be undertaken by non-lawyers (who are also not designated non-lawyer licensed professionals), subject only to general laws regulating the provision of consumer services or other such general matters. It is on this basis that the long-established community-based not-for-profit agency Citizens Advice, most of whom rely on volunteers to provide a range of law-related assistance, has operated in the UK.68 That England and Wales have long-enabled community-based not-for-profit provision of law-related assistance by non-lawyers makes it a potentially interesting comparator. In particular, it raises the question of whether there is any evidence that this enablement has translated into any difference in access to justice in England and Wales. We explore the extent of evidence on that question later in this section. First though, we briefly explain what changed with the enactment of the Legal Services Act 2007.

A key change introduced by the Legal Services Act was to take a step away from the traditional approach of self-regulation in the legal profession with the creation of the Legal Services Board (LSB) as an overarching regulator with a chair and a majority of members who are non-lawyers. The LSB oversees a collection of “frontline” regulatory organizations that are primarily responsible for licensing and regulation of lawyers and the other designated non-lawyer professions who are authorized to engage in some or all of the range of “reserved” legal activities.69

As a precondition to regulatory authority, the establishment of these frontline regulators had to abide by a new statutory dictate that regulatory functions applying to particular professions had to be undertaken independently of (self-interested) representative functions. For example, a Solicitors Regulatory Authority was created as a separate regulatory arm of The Law Society. Members of these professions are authorized to engage in some or all reserved activities, and the regulatory frameworks to which they are subject tend to impose general requirements on how they provide their services. The regulatory requirements apply to all service provision by the member of the profession, not merely to their provision of services falling within the range of reserved legal activities.

The Legal Services Act also established the Office for Legal Complaints and the Legal Ombudsman, as well as the Legal Services Consumer Panel.

A final key change introduced by the Legal Services Act was the authorization of ABS. Prior to this change, the only type of business organizations authorized to deliver reserved legal services was a law firm that was wholly owned by qualified lawyers. After the change, law firms could be partly or wholly owned by non-lawyers. In addition, other types of business organizations, with non-lawyer owners, managers or investors, were permitted to deliver reserved legal services. The new regulatory requirements mandated participation of lawyers in service delivery, oversight mechanisms and professional responsibility obligations. This change opened the door for community-based not-for-profit organizations, if appropriately (re-)structured, to employ lawyers to provide legal services falling into the categories of reserved legal activities.

With community-based not-for-profit provision of law-related assistance by non-lawyers long-enabled in England and Wales, one issue we address in the next part of this report is whether there is any evidence that this enablement has translated into any difference in relative access to justice.

Current paradigms in comparative jurisdictions: summing up

Both the United States and Australia use a lawyer-centric paradigm for the regulation of the provision of legal services that is broadly similar to the Canadian paradigm, albeit with differences of detail between each. Of particular note is that all three jurisdictions maintain a place for a range of types of non-lawyers to deliver a variety of types of legal assistance, although it appears that Canada has probably gone the furthest in this respect. It also appears that regulators in the US are presently devoting some attention to the potential of expanding types of non-lawyer law-related assistance in the nature of community justice help. Such attention is less apparent in the literature we have been able to review for Australia.

England and Wales is significantly less lawyer-centric than the other three jurisdictions reviewed here, in the sense that it confines its lawyer-centrism to the “reserved” areas of legal services delivery. Outside those areas, there are few regulatory restrictions on non-lawyers providing law-related assistance and they have been doing so for a long time, including provision in the nature of community justice help. This is not to say that there are not still practical barriers to community justice help in England and Wales, at least in the sense of ongoing and increasing lack of access to adequate funding and other resources.

Having thus mapped the current regulatory paradigms relating to the provision of law-related assistance and legal services in Canada, the United States, Australia and England and Wales, we now turn to a consideration of the issue of the general state of access to justice in these comparative common law jurisdictions. In doing so, we explore the role of lawyers, non-lawyers and community justice help in advancing access to justice.

Footnotes

2 Michael J Trebilcock, “Regulating the Market for Legal Services” (2008) 45:5 Alberta L Rev 215; Gillian K Hadfield & Deborah L Rhode, “How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering” (2016) 67:5 Hastings LJ 1191; Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Gloucestershire: Edward Elgar Publishing Ltd, 2015) [Semple, Legal Services Regulation at the Crossroads ]; Richard Devlin & Porter Heffernan, “The End(s) of Self-Regulation” (2008) 45:5 Alberta Law Review 169 [Devlin & Herrnan, “The End(s) of Self-Regulation”].

3 Semple, Legal Services Regulation at the Crossroads, supra note 2 at 18-44.

4 Ibid. at 32–33.

5 For an overview of arguments for and against lawyer self-regulation, see Devlin & Herrnan, “The End(s) of Self-Regulation” supra note 2 at 185–195. See also Harry Arthurs, “The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?” (1995) 33:4 Alberta L Rev 800.

6 See: Richard L Abel, Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings (Oxford University Press: New York 2008); Joan Brockman, “Money for Nothing, Advice for Free: The Law Society of British Columbia’s Enforcement Actions against the Unauthorized Practice of Law” (2010) 29 Windsor Rev L & Soc Issues 1; Alice Woolley, “Rhetoric and Realities: What Independence of the Bar Requires of Lawyer Regulation” (2011) 4:8 UBC L Rev 145; and, Alice Woolley, “Regulation in Practice: The ‘Ethical Economy’ of Lawyer Regulation in Canada and a Case Study in Lawyer Deviance” (2012) 15:2 Leg Ethics 243.

7 Law Society Act, RSO 1990, c L 8, s 4.1.

8 Ibid., s 4.2.

9 See “Report of the Alternative Business Structures Working Group” in Margaret Drent, Professional Regulation Division, Report to Convocation (Ontario: Law Society of Upper Canada, June 2017) at 179, online (pdf): Law Society of Ontario www.lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/c/convocation-june2017-professional-regulation-committee-report.pdf.

10 Law Society of Saskatchewan, “Strategic Plan 2019-2021”, online (pdf): Law Society of Saskatchewan www.lawsociety.sk.ca/wp-content/uploads/2020/03/lssstrategicplan2019-2021.pdf.

11 For example, Ontario includes students who are participating in supervised clinical or experiential learning programs (see Appendix for more details).

12 Lisa Trabucco, “Lawyers’ Monopoly? Think Again: The Reality of Non-Lawyer Legal Service Provision in Canada” (2018) 96 Canadian Bar Review 460 at 471-7 [Trabucco, “Lawyers’ Monopoly”].

13 As identified in Trabucco, “Lawyers’ Monopoly”, supra note 12 at 462, referring to: Family Law Rules, O Reg 114/99, s 4 (Ontario); Provincial Court Family Rules, NLR 28/07, s 5.04 (Newfoundland and Labrador); and NS, Nova Scotia Civil Procedure Rules, 2009, s 34.08(1) (Nova Scotia).

14 National Self-Represented Litigants Project, “The McKenzie Friends: Canadian Cases and Additional Research” (modified June 2020), online (pdf): National Self-Represented Litigants Project www.representingyourselfcanada.com/wp-content/uploads/2020/10/The-McKenzie-Friend-Canadian-cases-and-additional-research.pdf. In British Columbia, this form of law-related assistance is referred to as the assistance of a “Support Person” and the Provincial Court has issued specific guidelines on it; see Provincial Court of British Columbia, “Support Person Guidelines” (last updated October 2020), online: Provincial Court of British Columbia www.provincialcourt.bc.ca/about-the-court/court-innovation/SupportPersonGuidelines.

15 A number of examples are provided in Trabucco, “Lawyers’ Monopoly”, supra note 12 at 477.

16 Trabucco, “Lawyers’ Monopoly”, supra note 12 at 476.

17 Veterans’ Review and Appeal Board, “Practice Note – Conduct of Representatives” (last modified 15 January 2015) at para 2, online: Veterans’ Review and Appeal Board www.vrab-tacra.gc.ca/Practice-pratique-eng.cfm.

18 Immigration consultants have been authorized under the authority vested in the Minister to designate bodies that can approve law-related assistance by non-lawyers under s. 91(2)(c) of the Immigration and Refugee Protection Act, SC 2001, c 27. The authorization established the Immigration Consultants of Canada Regulatory Council via Regulations Designating Body for the Purposes of Paragraph 91(2)(c) of the Immigration and Refugee Protection Act, SOR/2011-142. In response to concerns about inadequate quality of assistance, the federal government has since enacted legislation, not yet in force, establishing a regulatory framework for immigration and citizenship consultants: College of Immigration and Citizenship Consultants Act, SC 2019, c 29, s 292.

19 The apparent authority for ‘no-fee’ law-related assistance (framed in terms of no compensation) is contained in s. 91 of the Immigration and Refugee Protection Act. This issue underlying the controversy was discussed in Standing Committee hearings. See Starting Again: Improving Government Oversight of Immigration Consultants. Report of the Standing Committee on Citizenship and Immigration. Immigration, Refugees and Citizenship Canada (IRCC) has attempted to respond to the settlement sector’s concerns over its interpretation by clarifying the types of assistance that workers in not-for-profit agencies can provide. See https://ocasi.org/section-91-questions-and-answers-ircc. However, in our view, the clarification falls short of providing useful guidance to settlement agencies and fails to address the difficulties created by IRCC’s interpretation of section 91.

20 For present purposes, we prefer the term “lawyer-exclusive” to Trabucco’s term “lawyers’ monopoly,” but the meaning is basically the same. Trabucco argues that the idea of a “lawyers’ monopoly” is a “useless fiction” in that it not only fails to reflect reality but can also unjustifiably hinder attempts to expand the scope for non-lawyer assistance: see Trabucco, “Lawyers’ Monopoly”, supra note 12 at 482.

21 Department of Justice, “Evaluation of the Indigenous Courtwork Program” (last modified 25 July 2018), s 1.1., online: Government of Canada Department of Justice: www.justice.gc.ca/eng/rp-pr/cp-pm/eval/rep-rap/2018/icp-papa/p2.html.

22 Ibid.

23 Ibid.

24 Ibid. at Executive Summary, s 4.2, 4.3, 5.

25 For a discussion of the important early role of Community Legal Workers, see Michael Blazer, “The Community Legal Clinic Movement in Ontario: Practice and Theory, Means and Ends” (1991) 7 Journal of Law and Social Policy 49.

26 “Ontario’s Family Law Limited Scope Services Project” (accessed 18 January 2021), online: Ontario’s Family Law Limited Scope Services Project www.familylawlss.ca.

27 For example, Law Society of Nunavut, Model Code of Professional Conduct, May 2016, Rule 3.2-1.A, online (pdf): Law Society of Nunavut www.lawsociety.nu.ca/sites/default/files/website-general/LSN%20Consolidated%20Rules%20Nov%2026%202020%20SM%20v3%20final.pdf.

28 Law Society of Ontario, Rules of Professional Conduct, Rule 3.4-16.2 to 3.4-16.6, online: Law Society of Ontario www.lso.ca/about-lso/legislation-rules/rules-of-professional-conduct. According to the definition of “lawyer” relating to the expanded, modified standard, it is available to lawyers in the following contexts: (i) a volunteer lawyer who provides short-term legal services to clients under the auspices of a short-term provider; (ii) a lawyer providing services under the auspices of a Pro Bono Ontario program; iii) a lawyer providing short-term legal services under the auspices of a Legal Aid Ontario program or clinic; or iv) a lawyer providing short-term legal services under the auspices of a clinical education course or program.

29 For instance, in refusing to recommend the introduction of an allowance for ABS in New York State, the Regulatory Innovation Working Group argued that the likely impact on access to justice remained unknown, while also citing an oral report on a study from England that “the creation of ABSs in England and Wales has had no appreciable effect on the access-to-justice gap”: see Regulatory Innovation Working Group of the Commission to Reimagine the Future of New York’s Courts, “Report and Recommendations of the Working Group on Regulatory Innovation” (3 December 2020) at 49, online (pdf): New York Courts www.nycourts.gov/LegacyPDFS/publications/RWG-RegulatoryInnovation_Final_12.2.20.pdf [Commission to Reimagine the Future of New York’s Courts].

30 See, for example, Law Society of British Columbia, Independence and Self-Governance Advisory Committee, Alternative Business Structures in the Legal Profession: Preliminary Discussion and Recommendations (LSBC: Vancouver, October 2011), online (pdf): Law Society of British Columbia www.lawsociety.bc.ca/docs/publications/reports/AlternativeBusinessStructures.pdf.

31 For a discussion of the introduction of the paralegal licensing regime that raises questions about the extent to which paralegals improve access to justice for disadvantaged groups, see David Wiseman, “Paralegals and Access to Justice for Tenants: A Case Study”, in Trevor C W Farrow & Lesley A Jacobs, eds, The Justice Crisis: The Cost and Value of Accessing Law (Vancouver: UBC Press, 2020) [Wiseman, “Paralegals and Access to Justice for Tenants”]. For a more general discussion of paralegals, see Alice Woolley & Trevor C W Farrow, “Addressing Access to Justice Through New Legal Service Providers: Opportunities and Challenges” (2016) 3:3 Texas A & M Law Review 549.

32 Hon. Annemarie E. Bonkalo, Family Legal Services Review Report (Toronto: Ministry of the Attorney General, 2016), online: www.attorneygeneral.jus.gov.on.ca/english/about/pubs/family_legal_services_review/ [Bonkalo].

33 See generally: Deborah L Rhode, “Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions” (1981) 34:1 Stanford L Rev 1 at 42; W Bradley Wendel, “Foreword: The Profession’s Monopoly and Its Core Values” (2014) 82:6 Fordham L Rev 2563.

34 Lauren Moxley, “Zooming Past the Monopoly: A Consumer Rights Approach to Reforming the Lawyers’ Monopoly and Improving Access to Justice” (2015) 9-2 Harvard L & Policy Rev 553.

35 Laurel Terry, “Putting the Legal Profession’s Monopoly on the Practice of Law in a Global Context” (2014) 82:6 Fordham L Rev 2903 at 2905-2909.

36 For consideration of some long-standing representational activity by non-lawyers, see Herbert M Kritzer, Legal Advocacy: Lawyers and Nonlawyers at Work, (University of Michigan Press: 1998) [Kritzer].

37 A selected overview of recent authorizations for non-lawyers in a variety of roles is provided in Rebecca L Sandefur & Thomas M Clarke, “Designing the competition: A future of roles beyond lawyers? The case of the USA” (2016) 67:5 Hastings L J 1467 [Sandefur & Clarke, “Designing the competition”].

38 Lyle Moran, “How the Washington Supreme Court LLLT program met its demise” ABA Journal (9 July 2020), online: ABA Journal www.abajournal.com/web/article/how-washingtons-limited-license-legal-technician-program-met-its-demise.

39 Certified under the Arizona Codes of Judicial Administration; see: Arizona Courts, “Legal Document Preparer Program” (accessed 17 January 2021), online: Arizona Courts www.azcourts.gov/cld/Legal-Document-Preparer-Program.

40 Commission to Reimagine the Future of New York’s Courts, supra note 29 at 3.

41 Ibid.

42 The ABA Center for Innovation was created as a result of a recommendation in the report of the ABA Commission on the Future of Legal Services, which supported allowing ABS: American Bar Association Commission on the Future of Legal Services, Report on the Future of Legal Services in the United States, (ABA, August 2016) at 42, online (pdf): American Bar Association www.americanbar.org/content/dam/aba/images/abanews/2016FLSReport_FNL_WEB.pdf [American Bar Association Commission on the Future of Legal Services]. A brief review of the history of the consideration of the issue of allowing ABS in the US is provided in the report of the Regulatory Innovation Working Group in New York: Commission to Reimagine the Future of New York’s Courts, supra note 29 at 46 (Appendix A).

43 American Bar Association, Resolution 115 (adopted 17 February 2020), online: www.americanbar.org/groups/centers_commissions/center-for-innovation/Resolution115/.

44 Commission to Reimagine the Future of New York’s Courts, supra note 29 at 53.

45 See discussions in: Moxley, supra note 34. For an overview of recent innovations in Utah, see Hon. Deno G Himonas & Tyler J. Hubbard, “Democratizing the Rule of Law” (2020) XVI Stanford Journal of Civil Rights & Civil Liberties 261.

46 American Bar Association Commission on the Future of Legal Services, supra note 42 at 30.

47 A primary source for the overview provided in this section is Emma Beames, “Technology-based legal document generation services and the regulation of legal practice in Australia” (2017) 42:4 Alternative L J 297 [Beames]. Another useful source is Semple, Legal Services Regulation at the Crossroads, supra note 2.

48 Beames, supra note 47 at 298-9. Legal Profession Uniform Law Application Act 2014 No 16 (NSW) and Legal Profession Uniform Law Application Act 2014 Act No 17/2014(Vic).

49 Beames, supra note 47 at 298-9.

50 Ibid.

51 According to the Australian Institute of Conveyancers, there are currently licensing or registration regimes in New South Wales, the Northern Territory, South Australia, Tasmania, Victoria and Western Australia: Australian Institute of Conveyancers, “About Us” (accessed 17 January 2021), online: Australian Institute of Conveyancers www.aicnational.com.au/index.php/about/.

52 For discussion of the introduction of incorporated legal practices in New South Wales, the first Australian jurisdiction to allow them, see Steven Mark & Georgina Cowdroy, “Incorporated Legal Practices – A New Era in the Provision of Legal Services in the State of New South Wales” (2004) 22 Penn State International Law Review 672.

53 Beames, supra note 47 at 300. In some of these jurisdictions, this exemption deems no-fee provision not to be legal practice, in others it is a defence to prosecution for unauthorized practice.

54 For a recent example of the approval of an application to use a McKenzie Friend, see Keskin & Keskin and Anor [2019] FamCA 384 (19 June 2019) (AustLII)

55 See “Office of the Migration Agents Registration Authority” (accessed 18 January 2021), online: Office of the Migration Agents Registration Authority www.mara.gov.au.

56 A leading Australian study that specifically focuses on evaluations of effectiveness of such efforts is Suzie Forell & Abigail Gray, “Outreach legal services to people with complex needs: what works?” (October 2009) 12 Justice Issues 1 [Forell & Gray, “Outreach legal services to people with complex needs”].

57 Council of Attorneys-General, National Strategic Framework for Legal Assistance (2020-2025) (Commonwealth of Australia, 2019), online: Australian Government www.ag.gov.au/legal-system/legal-assistance/national-strategic-framework-legal-assistance.

58 Ibid. at 3.

59 The six principles are: 1) Focus service delivery on people facing disadvantage; 2) Client centred and appropriate services; 3) Collaboration and integrated approaches; 4) Appropriately timed responses and preventative action; 5) Empowerment and resilience; and 6) Continuous learning and improvement: Council of Attorneys-General, supra note 57 at 4.

60 Sophie Clarke & Suzie Forell, “Pathways to justice: the role of non-legal services” (1 June 2007) 1 Justice Issues 1 [Clarke & Forell].

61 Ibid. at 4.

62 Ibid. at 8.

63 Jacinta Maloney, I feel empowered, I know my rights: Communities empowered by peer educators and paralegals (Victoria Law Foundation, CLC Fellowship Report, 2014), online: Victoria Law Foundation www.victorialawfoundation.org.au/sites/default/files/1034%20CLC%20Report_JacintaMaloney.pdf [Maloney].

64 Countries in Europe are predominantly civil law jurisdictions. Ireland and the United Kingdom are common law jurisdictions, although Scotland has a mixed system of common and civil law.

65 A primary source for the overview provided in this section is Stephen Mayson, “Independent Review of Legal Services Regulation: Assessment of the Current Regulatory Framework” (2019) UCL Centre for Ethics and Law Working Paper LSR-0 [Mayson]. Another useful source is Semple, Legal Services Regulation at the Crossroads, supra note 2.

66 Mayson, supra note 65 at 8.

67 Ibid.

68 For a recent review of the sustainability and effectiveness of Citizens Advice and similar services, following government cutbacks and other policy reforms, see Samuel Kirwan, ed, Advising in Austerity: Reflections on Challenging Times for Advice Agencies (Great Britain: Policy Press, 2017).

69 There are currently 10 frontline regulators: Solicitors Regulation Authority, Bar Standards Board, CILEx Regulation, Master of the Faculties, Council for Licensed Conveyancers, Intellectual Property Regulation Board, Costs Lawyers Standards Board, Institute of Chartered Accountants in England and Wales, Institute of Chartered Accountants in Scotland, and Association of Chartered Certified Accountants.