Quick Reference Tool for Key Amendments to the Paralegal Rules of Conduct

The following list highlights some of the key amendments made to the Rules. Click on a specific topic for more information regarding the change.

1. Definition of the Term “Client”  

 2. Definition of the Term “Consent”  

3. Integrity  

4. Undertaking and Trust Conditions  

5. Quality of Service to Clients  

6. Threatening Criminal or Regulatory Proceedings to Gain a Benefit for the Client  

7. Disclosure of Confidential Information  

8. Conflicts of Interest  

9. Obtaining Client Consent to Conflicts of Interest  

10. Conflicts of Interest – Doing Business with a Client  

11. Conflicts of Interest – Paralegal Acting as Surety  

12. Withdrawal from Representation  

13. Advocacy Duties  

14. The Paralegal as a Witness  

15. Unrepresented Parties  

16. Fees and Disbursements  

17. Inadvertent Communication  

18. Making Legal Services Available  


1. Definition of the Term “Client”  

The term “client” is used throughout the Rules and Guidelines. The definition of the term “client” has changed.

The new definition of the term “client” contained in rule 1.02 specifies that a paralegal-and-client relationship may arise only in circumstances where there is a consultation between a paralegal and a client:

"client” means a person who:  

  • consults a paralegal and on whose behalf the paralegal provides or agrees to provide legal services; or  
  • having consulted the paralegal, reasonably concludes that the paralegal has agreed to provide legal services on his or her behalf  

and includes a client of the firm of which the paralegal is a partner or associate, whether or not the paralegal handles the client’s work.  

Paragraph [2] of Guideline 5: Clients indicates that the courts have made a distinction between a solicitor-client relationship and a solicitor-client retainer and this jurisprudence may be used by the courts to define the paralegal-client relationship and paralegal-client retainer in the future. In this regard, a solicitor-client relationship is established when a prospective client has his or her first consultation with the lawyer or law firm about retaining services. The relationship may be established without formality. The retainer, on the other hand, is created once the lawyer agrees (expressly or impliedly by the lawyer’s conduct) to provide legal services.

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2. Definition of the Term “Consent”  

The definition of the term “consent” has been amended.

The definition of the term “consent” in rule 1.02 now stipulates that consent must be fully informed and voluntary after disclosure. In addition the revised definition provides that where consent is given in writing by more than one person, the consent may now be provided in the same document signed by all the persons consenting, as opposed to in separate documents. If the consent is provided orally, the definition continues to provide that each person consenting must receive a separate written confirmation recording the oral consent, but also adds that this must occur as soon as practicable.

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3. Integrity  

Rule 2.01 on integrity and civility has been amended.

The new subrule 2.01(1) provides

A paralegal has a duty to provide legal services and discharge all responsibilities to clients, tribunals, the public and other members of the legal professions honourably and with integrity.  

The new subrule 2.01(2) provides  

A paralegal has a duty to uphold the standards and reputation of the paralegal profession and to assist in the advancement of its goals, organizations and institutions.  

Guideline 1: Professionalism – Integrity & Civility has been amended. It provides that a paralegal’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community and avoid even the appearance of impropriety. Furthermore a paralegal has a special responsibility by virtue of the privileges afforded the paralegal profession. Integrity is a fundamental quality of any person who seeks to provide legal services (paragraphs [2] to [4]).

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4. Undertakings and Trust Conditions  

Rule 2.02 on undertakings has been expanded to include trust conditions once accepted.

Rule 2.02 now provides that in addition to their obligations regarding the giving and fulfilling of undertakings, paralegals must also honour every trust condition once accepted.

Amendments have been made to Guideline 3: Undertakings and Trust Conditions to explain the paralegal’s duties with regard to trust conditions.

Paragraph [1] of Guideline 3 provides that

 Money and property change hands in most legal transactions. A paralegal may be required to hold documents and property in trust until the performance of  particular conditions. These conditions are called trust conditions. Promises to carry out specific tasks and/or fulfill specific conditions are called  undertakings. Rule 2.02 sets out a paralegal’s obligation in relation to undertakings and trust conditions.  

In addition, once a trust condition is accepted, it is binding on the paralegal regardless of whether it was imposed by another legal practitioner or by a lay person (paragraph [6]).

According to paragraph [7], when agreeing to or imposing trust conditions, paralegals should ensure that trust conditions

  • are clear, unambiguous and explicit;
  • state the time within which the conditions must be met;
  • are imposed and accepted in writing; and
  • if varied, are varied with the consent of the person imposing them, with the variation confirmed in writing.

A paralegal should not impose or accept trust conditions that are unreasonable or cannot be personally fulfilled. If a paralegal accepts property subject to a trust condition, the paralegal must fully comply with the conditions even if they subsequently appear unreasonable (paragraph [8]).

A paralegal should exercise great caution in imposing trust conditions on a non-licensee because such conditions would be enforceable only through the courts as a matter of contract law (paragraph [9]).

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5. Quality of Service to Clients  

A rule specifying that a paralegal has a duty to provide courteous, thorough and prompt service to clients has been added.

This new rule on quality of service is contained in subrule 3.02(1) and stipulates that the quality of service required of a paralegal is service that is competent, timely, conscientious, diligent, efficient and civil.

Guideline 6: Competence and Quality of Service provides that a paralegal should meet deadlines, unless the paralegal is able to offer a reasonable explanation and ensure that no prejudice to the client will result. In addition, a paralegal should promptly respond to communications and report developments to clients whether or not there is a specific deadline. In the absence of developments, contact with the client should be maintained to the extent that the client reasonably expects (paragraph [12]).

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6. Threatening Criminal or Regulatory Proceedings to Gain a Benefit for the Client  

Subrules 3.02(9) and (10) prohibiting a paralegal from threatening or advising a client to threaten to initiate or proceed with a criminal or quasi-criminal charge or to make a complaint to a regulatory body to attempt to gain a benefit for the client have been added.

Subrule 3.02(9) provides that a paralegal shall not, in an attempt to gain a benefit for a client, threaten or advise a client to threaten to initiate or proceed with a criminal or quasi-criminal charge or to make a complaint to a regulatory authority. Subrule 3.02(10) clarifies that the prohibition relating to the making of a complaint to a regulatory body does not apply to an application made in good faith for a benefit to which the client may be legally entitled. For example, if the regulatory authority exercises a jurisdiction that is essentially civil, a paralegal may threaten to make a complaint pursuant to that authority to achieve a benefit for the client.

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7. Disclosure of Confidential Information  

Amendments have been made to rule 3.03 (Confidentiality) dealing with the disclosure of confidential information. Two additional grounds authorizing the disclosure of confidential information have been added. Amendments have also been made to Guideline 8: Confidentiality dealing with the disclosure of confidential information.

Disclosure of Confidential Information  

Subrule 3.03(1) now provides that a paralegal shall disclose confidential information when required to provide the information to the Law Society, and the new subrule 3.03(8) provides that a paralegal may disclose confidential information to a lawyer or another paralegal to obtain legal advice about the paralegal’s proposed conduct.

Guideline 8: Confidentiality provides that a paralegal should be cautious in accepting confidential information on an informal or preliminary basis from anyone because the possession of this information may prevent a paralegal from subsequently acting for another party in the same or a related matter (paragraph [4]). In addition, generally, unless the nature of the matter requires such disclosure, a paralegal should not disclose having been retained by a person about a particular matter or consulted by a person about a particular matter whether or not a paralegal-client relationship has been established between them (paragraph [5]).

Disclosure to Prevent Death or Bodily Harm  

New provisions giving guidance on the disclosure of confidential information without client authority to prevent death or serious bodily harm have been added to Guideline 8. Paragraphs [13] to [15] state the following:

  • Serious psychological harm may constitute “serious bodily harm” if it substantially interferes with the health or well-being of an individual.
  • A paralegal who believes that disclosure may be warranted may wish to seek legal advice.
  • In assessing whether disclosure of confidential information is justified to prevent death or serious bodily harm, a paralegal should consider a number of factors, including
    • the likelihood that the potential injury will occur and its imminence;
    • the apparent absence of any other feasible way to prevent the potential injury; and
     
  • the circumstances under which the paralegal acquired the information of the client’s intent or prospective course of action.

If disclosure is made to prevent death or serious bodily harm, the paralegal should record the circumstances of the disclosure as soon as possible.

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8. Conflicts of Interest  

Rule 3.04 on conflicts of interest and Guideline 9: Conflicts of Interest have changed. There is a new definition of “conflict of interest” as well as new rules and guidelines.

A “conflict of interest” is now defined in rule 1.02 as

the existence of a substantial risk that a paralegal’s loyalty to or representation of a client would be materially and adversely affected by the paralegal’s own interest or the paralegal’s duties to another client, a former client or a third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer.  

The new subrule 3.04(1) states that a paralegal shall not act or continue to act for a client where there is a conflict of interest except as provided in rule 3.04. Subrule 3.04(3) specifies that a paralegal shall not represent a client in a matter when there is a conflict of interest unless

  • there is express or implied consent from all clients; and  
  • it is reasonable for the paralegal to conclude that he or she is able to represent each client without having a material adverse effect upon the representation of or loyalty to the other client.

The new rule deals with conflicts of interest involving current, former and joint clients as well as conflicts arising out of the paralegal’s personal interests and duties owed to third parties. Guideline 9: Conflicts of Interest has been amended to provide specific examples of situations in which conflicts of interest commonly arise.

The following resources contain more detailed information on compliance with the conflict-of-interest rule:

 

 

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9. Obtaining Client Consent to Conflicts of Interest  

The new subrule 3.04(3) states that consent for the purposes of the conflicts-of-interest rule must be express or implied. The new subrule 3.04(4) and Guideline 9: Conflicts of Interest provide more detail on what constitutes express and implied consent and elaborate on the procedures to be followed to ensure that express consent is fully informed and voluntary.

Consent must be express or implied.

Express Consent  

The new subrule 3.04(4) provides that express consent to conflicts of interest must be fully informed and voluntary after disclosure. Consent must be provided in writing or confirmed in writing. Furthermore, Guideline 9: Conflicts of Interest clarifies that disclosure is an essential element to obtaining a client’s informed consent. The client needs to know of anything that may influence the paralegal’s judgment or loyalty. Once the paralegal has provided the client with all the details, the paralegal must allow the client to consider them or ask for further clarification (paragraph [29]). The client may only consent after being given all information required to make an informed decision. This is called “informed consent” (paragraph [31]). In addition, there are situations where the client’s informed and written consent is not enough to allow the paralegal to accept or continue with a matter. In some circumstances the client must receive advice from an independent legal advisor (lawyer or paralegal) regarding the matter or transaction before the paralegal may take any further steps in the client’s matter (paragraph [35]).

Implied Consent  

Subrule 3.04(4) also provides that, in some limited circumstances, client consent may be implied and need not be in writing. Consent may be implied only if all of the following circumstances exist:

  • the client is a government, financial institution, publicly traded or similarly substantial entity, or an entity with in-house counsel;
  • the matters are unrelated;
  • the paralegal has no relevant confidential information from one client that might reasonably affect the representation of the other client; and
  • the client has commonly consented to paralegals acting for or against it in unrelated matters.

Consent in Advance  

In certain circumstances the paralegal may be able to request that a client consent in advance to conflicts that might arise in the future. The effectiveness of such consent is generally determined by the extent to which the client understands the material risks involved. A paralegal may wish to recommend that a client obtain independent legal advice before deciding whether to provide such consent. Advance consent should be recorded in writing (Guideline 9, paragraph [32]).

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10. Conflicts of Interest – Doing Business with a Client  

The new subrule 3.06(1) has been added to the rules on doing business with a client. The new subrule clarifies when a paralegal may enter into a transaction with a client and outlines the procedures to be followed.

The new subrule 3.06(1) provides that a paralegal must not enter into a transaction with a client unless

  • the transaction is fair and reasonable to the client;
  • the client consents to the transaction; and
  • the client has independent legal representation with respect to the transaction.

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11. Conflicts of Interest – Paralegal Acting as a Surety  

Subrules 3.06(9) and (10) have been added to address the issue of conflicts of interest when a paralegal acts as a surety for a client.

Subrule 3.06(9) provides that if a paralegal is acting for an accused, the paralegal must not

  • act as surety for the accused;
  • deposit with the court the paralegal’s own money or that of any firm in which the paralegal is a partner to secure the accused’s release;
  • deposit with any court any other valuable security to secure the accused’s release; or
  • act in a supervisory capacity to the accused.

Subrule 3.06(10) provides that the above does not apply in a situation where the accused is in a family relationship with the paralegal and the accused is represented by the paralegal’s partner or associate.

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12. Withdrawal from Representation  

Some changes have been made to rule 3.08 on withdrawal from representation and Guideline 11: Withdrawal from Representation. For example, a new subrule has been added requiring a paralegal to notify the client in writing upon the paralegal’s discharge or withdrawal from representation.

Duty to Notify the Client upon Withdrawal of Services  

Subrule 3.08(12) adds an additional duty on a paralegal upon withdrawing from representation. The paralegal must notify the client in writing of

  • the fact that the paralegal has withdrawn;
  • the reasons, if any, for the withdrawal; and
  • in the case of litigation, that the client should expect that the hearing or trial will proceed on the date scheduled and that the client should retain a new legal practitioner promptly.

If the paralegal who is discharged is a member of a firm, the client shall be notified that the paralegal and the firm are no longer acting for the client (subrule 3.08(13)).

A paralegal may only withdraw from representation of a client for good cause and upon reasonable notice. Guideline 11: Withdrawal from Representation indicates that an essential element of reasonable notice is notification to the client, unless the client cannot be located after reasonable efforts (paragraph [1]).

In addition paragraph [6] provides that every effort should be made to ensure that withdrawal occurs at an appropriate time in the proceedings in keeping with the paralegal’s obligations. The tribunal, opposing parties and others directly affected should be notified of the withdrawal.

The Rules provide that when a paralegal withdraws from representation, the paralegal shall try to minimize expense and avoid prejudice to the client and shall do all that can reasonably be done to facilitate the orderly transfer of the matter to the successor licensee (subrule 3.08(10)). Paragraph [8] of Guideline 11 clarifies that cooperation with the successor licensee will normally include providing any memoranda of fact or law that have been prepared by the paralegal in connection with the matter, but confidential information not clearly related to the matter should not be disclosed without the client’s written consent.

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13. Advocacy Duties  

Rule 4.01 contains some additional obligations for paralegals when acting as advocates.

Three new advocacy duties have been added to the list contained in subrule 4.01(5). When acting as an advocate, a paralegal cannot

  • make suggestions to a witness recklessly or knowing them to be false;
  • knowingly misrepresent the client’s position in the litigation or the issues to be determined in the litigation; and
  • appear before a court or tribunal while under the influence of alcohol or a drug.

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14. The Paralegal as Witness  

Rule 4.04 regarding the paralegal as a witness has been amended to address situations where paralegals testify or submit their own affidavit evidence in matters that are purely formal and uncontroverted.

Subrule 4.04(1) clarifies that the general prohibition that a paralegal not testify or submit his or her own affidavit evidence before the tribunal does not apply if

  • the paralegal is permitted to do so by law, the tribunal, the rules of the court or the rules of procedure of the tribunal; or
  • the matter is purely formal or uncontroverted.

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15. Unrepresented Parties  

Some changes have been made to rule 4.05 dealing with potential conflicts of interest where a paralegal has dealings with an unrepresented person on behalf of a client.

Rule 4.05 has been amended. When a paralegal has dealings with an unrepresented person on the client’s behalf, the paralegal is no longer required to urge the unrepresented person to obtain independent legal representation. The rule continues to provide that the paralegal must take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the paralegal and must make clear to the unrepresented person that the paralegal is acting exclusively in the interests of his or her client and accordingly his or her comments may be partisan.

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16. Fees and Disbursements  

A subrule has been added dealing with the repayment of monies by a paralegal to a client where the amount of fees or disbursements charged by the paralegal have been reduced by a court order. In addition paragraphs [11] and [12] of Guideline 13: Fees addresses the paralegal’s obligation to reimburse monies to clients upon the termination of the retainer. Paragraph [6] has been added to address the issue of disclosure of fees and disbursements to the client by the paralegal both at the commencement of the representation and during the course of the retainer. Paragraph [14] outlines situations in which a paralegal is permitted to share fees with a non-licensee.

Assessment of Fees and Disbursements  

The new subrule 5.01(6) provides that if the amount of fees or disbursements charged by a paralegal are reduced by a court order, the paralegal must repay the monies to the client as soon as is practicable.  

Reimbursement of Monies on the Termination of the Retainer  

Paragraph [12] of Guideline 13: Fees provides that a paralegal’s refusal to reimburse any portion of advance fees for work that has not been carried out when the contract of professional services with the client has been terminated is a breach of the paralegal’s obligation to act with integrity.

Disclosure of Fees and Disbursements  

Paragraph [6] states that a paralegal should provide to the client in writing, before or within a reasonable time after commencing representation, as much information regarding fees, disbursements and interest as is reasonable and practicable in the circumstances, including the basis on which fees will be determined. In addition, a paralegal should confirm with the client in writing the substance of all fee discussions that occur as the matter progresses. The paralegal may revise the initial estimate of fees and disbursements.

Circumstances when Sharing Fees with Non-Licensees Appropriate  

Paragraph [14] states that despite the rules prohibiting paralegals from entering into arrangements to compensate or reward non-licensees for the referral of clients, paralegals are permitted to

  • make an arrangement to purchase or sell a professional business where the consideration payable includes a percentage of revenues generated from the business sold;
  • enter into a lease under which the landlord directly or indirectly shares in the fees or revenues generated by the provision of legal services; and
  • pay an employee for services, other than for referring clients, based on the revenue of the paralegal’s firm or professional business.

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17. Inadvertent Communication  

A new rule has been added dealing with the paralegal’s duties when the paralegal receives inadvertent communications.

Subrule 7.01(7) The new rule provides that a paralegal who receives a document relating to the representation of the paralegal’s client and knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.

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18. Making Legal Services Available  

Two new paragraphs have been added to Guideline 19: Making Legal Services Available and Marketing of Legal Services.

The new paragraph [2] of Guideline 19 provides that a person who is vulnerable or who has suffered a traumatic experience and has not yet had a chance to recover may need the professional assistance of a paralegal. A paralegal is permitted to provide assistance to a person if a close relative or personal friend of the person contacts the paralegal for this purpose, and to offer assistance to a person with whom the paralegal has a close family or professional relationship. A paralegal cannot use unconscionable or exploitive or other means that bring the profession or the administration of justice into disrepute.

New paragraph [3] provides that in presenting and promoting a paralegal practice, a paralegal must comply with the Rules regarding the marketing of legal services.

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