Definitions: The Landscape of Forms of Law-related Assistance

In this section, we set out brief definitions of the main forms of provision of law-related assistance that will provide a reference point for subsequent explanation and discussion of the current paradigm and alternative approaches. Our definitions mostly focus on the identity of providers, but also include technology-enabled provision as an emerging stand-alone source of assistance.

At the outset, we should clarify our use of the term “law-related assistance”. Our objective in using this term is to allow room for inclusion of all forms of assistance relating to everyday legal problems. That is, assistance that spans the range from the types of assistance that community justice helpers often provide, such as legal information, referral to lawyers, form-filling guidance, and process navigation or accompaniment, to the types of assistance that lawyers and other licensed legal professionals typically provide, such as document drafting, legal advice, and representation in court or other dispute resolution proceedings.

As is explained more fully in Section 4, a key reason why this latter range of assistance is typically provided by lawyers and other licensed legal professionals is that other types of service providers are usually foundationally prohibited by applicable regulatory frameworks. These regulatory frameworks have led to an exclusionary boundary being drawn around the range of assistance classified as comprising “the practice of law” or “the provision of legal services”. This boundary is often referred to as creating a dividing line between the provision of “legal services” and the provision of “legal information” (which is not generally regulated), with the line theoretically located at the point where the assistance requires the application of legal knowledge, principles and judgment to an individual’s specific circumstances or, in a more shorthand formulation, at the point where the assistance involves “legal advice”.

Since this indicator for the dividing line is unclear, and potentially widely encompassing, it casts a shadow over the range of law-related assistance that community justice helpers can provide, without potentially running the risk of “crossing the line” into the unauthorized practice of law or provision of legal services. At times then, in this report, we use the term “legal services” to refer to the range of law-related assistance that is typically associated with lawyers (and other licensed legal professionals) because others (non-lawyers/non-licensees) are often foundationally prohibited from providing them.

In addition, we should note here that we prefer the term “law-related problem” (or, sometimes, “life-affecting problem with a legal element”) rather than the term “everyday legal problem”. We prefer the former because it better reflects the reality that the problems that people experience in their lives are often multidimensional (involving, say, health or financial elements) and so not merely or singularly “legal” problems. Also, our preferred term assists in avoiding the assumption that the resolution of a “legal” problem must or should rely upon engagement with the formal legal system.

Lawyers as primary legal service providers

Lawyers are a primary vehicle for the provision of legal services. In all Canadian jurisdictions, and in comparative international jurisdictions, only people who have met specific educational and other requirements are eligible to be licensed as lawyers and permitted to call themselves lawyers (or, in Quebec, advocates). Further, all Canadian jurisdictions have in place a foundational general restriction that permits only lawyers to engage in “the practice of law”. In some jurisdictions the restriction is framed not in terms of the general all-encompassing activity of “the practice of law” but, instead, is framed in terms of an expansive list of more specific activities that fall into the general category of “the provision of legal services”. All activities that have been specified as involving the provision of legal services would also fall into the category of “the practice of law”. Regardless of the terminology, lawyers have the most expansive “scope of practice” rights in the sense that they are authorized to engage in the full range of activities that are categorized as legal services and can undertake those activities across the full range of substantive areas and adjudicative processes of law.

For the purpose of this report, within the category of lawyers, we are most interested in the lawyers who provide legal services to marginalized people and their communities. Some of these lawyers are in private practice settings and provide legal services on the basis of legal aid certificates. They operate in a for-profit framework, although their potential for profit generation is, of course, limited by the extent to which they engage in legal aid work, which is generally understood to offer remuneration at below-market rates. Others are staff lawyers employed by legal aid programs, including community legal clinics, or civil society organizations, who are offering their services in a not-for-profit setting. Some lawyers, in both settings, also engage in pro bono (no-fee) provision of legal services. Some lawyers in private practice, whether or not they accept legal aid certificates, provide some legal services at “low bono” (reduced fee) rates.

Non-lawyer forms of law-related assistance

Technically, any person other than a lawyer who is entitled to engage in the provision of law-related assistance is a “non-lawyer” provider. But there are a variety of types of non-lawyer providers, with varying requirements for authorization and varying scopes of permitted practice. In what follows, we define the main types of non-lawyer providers, beginning with those who are most like lawyers. Although, consistent with much literature in this area, we use the term “non-lawyer” throughout this report, we acknowledge that it is itself a lawyer-centric term and that, ideally, the set of providers of law-related assistance who are not lawyers would be identifiable by a different label.

Generalist non-lawyer legal service providers: paralegals, notaries and “no-fee” providers

Paralegals are people who provide a limited range of legal services and can usually only do so across a limited range of substantive legal areas. Dependent paralegals are those who can only provide legal services as employees of lawyers and under their supervision. Independent paralegals can provide legal services in their own right, independent of lawyers. In some jurisdictions, independent paralegals can only practise if licensed through a regulatory regime (which is often similar in its general components to that applied to lawyer licensing). Ontario and Quebec are examples of such jurisdictions, although in Quebec they apply the label “notaries”. In those jurisdictions, their scope of practice is set out in the regulatory regime and they form a second type of “independent legal professional licensee”, alongside lawyers.

That Quebec uses the label “notary” for a role akin to a paralegal is apt to confuse and requires brief explanation. In most Canadian jurisdictions other than Quebec, “notaries” traditionally have a much more confined role than paralegals, with authority to provide only a very limited range of “procedural” legal services, such as witnessing oaths, signing affidavits and certifying true copies of documents. Typically, all lawyers (and, where they exist, licensed paralegals) are also notaries, but people other than lawyers can be licensed as notaries under dedicated legislation. Given their confined role, traditional notaries are not typically akin to paralegals. For the purposes of this report, since typical notaries can only provide a very limited range of procedural legal services, we do not include them in the category of independent licensed legal professionals.

In other jurisdictions, paralegals are not regulated or licensed and their authorization to practise is based either on statutory allowances for people to receive legal services in relation to dispute resolution proceedings from “agents” or on the informal tolerance of regulators of lawyers (who police the boundaries of the “unauthorized practice of law”). Most independent paralegals provide legal services on a private-practice for-profit model and legal aid certificates are available for some areas within their scope of practice. Some paralegals are employed in legal aid programs, community legal clinics and civil society organizations.

In some jurisdictions there are no limitations on the provision of legal services when provided “for no fee, reward or gain”. These jurisdictions thus authorize what we will refer to as “no-fee” non-lawyer legal services provision. We note though that our research has not identified any express reliance on this authorization, in jurisdictions where it exists, by non-lawyers in general or by organizations involved in community justice help more specifically.

Sector-specific non-lawyer legal service providers

In some jurisdictions there is authorization for non-lawyers to provide a full or significant range of legal services but only relating to a particular sector or substantive area of law. A prime example is immigration consultants who can provide legal services in relation to a range of immigration and refugee matters. Immigration consultants can practise on a for-profit basis.

Non-legal profession or occupation non-lawyer legal services providers

In some jurisdictions there is authorization for members of non-legal professions or occupations to provide legal services when doing so in the course of their normal professional or occupational activities. Usually, this type of authorization is not restricted as to basis of delivery, in the sense that it can be for-profit or provided on a no-fee basis.

Non-lawyer community justice help

What distinguishes community justice help as a form of non-lawyer law-related assistance is that it is provided in community-based not-for-profit settings as part of a holistic approach to meeting the needs of marginalized people and communities. To the extent that community justice help may, in some aspects, be viewed as the provision of “legal services”, it is not expressly authorized as such, but can be regarded as permitted on the basis of more general authorizations for non-lawyer provision of legal services that can cover community-based not-for-profit holistic service settings. When it comes to our focused discussion of community justice help in Section 6, we use the term “community worker” as a general label for the non-lawyers who provide law-related assistance for people’s life-affecting problems in community-based not-for-profit contexts.

Technology-enabled law-related assistance

Technology is increasingly playing a role in the provision of law-related assistance. In terms of situating technology-enabled legal resources and tools in the broader landscape, it is useful to distinguish between what can be called “direct-to-public” technology and “support-to-provider” technology. The former makes legal information and other forms of legal resources or assistance directly accessible to the general public, via a technological interface. The latter is targeted at existing providers of legal assistance – primarily lawyers – and seeks to provide technological tools that improve the efficiency and effectiveness of the work that lawyers need to do to provide legal assistance.

For the purpose of this report, we confine our exploration of technology-enabled legal assistance to the role that technology can play in facilitating the provision of community justice help.