Back To Law Matters | Fall 2015

Unauthorized Practice of Law

Lawyers in Alberta know that the Law Society of Alberta (the “Law Society”) acts in the best interests of the public by promoting a high standard of legal services and professional conduct among lawyers.1 They may not know, however, that in addition to acting as their regulatory body, the Law Society also plays an important role in preventing the unauthorized practice of law (“Unauthorized Practice”). 

What is Unauthorized Practice?

There is no definition of what constitutes Unauthorized Practice. Collectively, sections 102-111 of the Legal Profession Act (the “Act”)2 establish who may practice law, the exceptions to that list, and what can be done about Unauthorized Practice when it occurs.

The definition of who may practice law is set out in section 106(1) of the Act:

Practice of law

106 (1) No person shall, unless the person is an active member of the Society, 

  1. practice as a barrister or as a solicitor,
  2. act as a barrister or as a solicitor in any court of civil or criminal jurisdiction,
  3. commence, carry on or defend any action or proceeding before a court or judge on behalf of any other person, or
  4.  settle or negotiate in any way for the settlement of any claim for loss or damage founded in tort. 

The wording of section 106(1) of the Act is not as precise as similar provisions in other jurisdictions which typically list specific activities that are deemed to be the practice of law. In Alberta, it is the Courts that have provided guidance over the years about what specific types of activities are considered Unauthorized Practice. These decisions have evolved over time. For example, earlier this year, after analyzing the Act and the “new” Rules of Court, Associate Chief Justice Rooke came to the following conclusions about the legality of non-lawyers appearing in the Court of Queen’s Bench:3

 An individual may represent himself or herself in the Court of Queen’s Bench;

  1. An estate, corporation, or litigation representative must be represented in the Court of Queen’s Bench by a person authorized to practice law under the Act;
  2. Any common law or inherent discretion to permit representation in the Court of Queen’s Bench by a non-lawyer has been extinguished by the New Rules;
  3. New Rule 2.23 allows any person to provide only silent and passive support in court, provided those activities are restricted to a “McKenzie Friend” role;4 and
  4. Professional Sign Crafters (1988) Ltd. v Wedekind, Pacer Enterprises Ltd. v Cummings, and Balogun v Pandherare no longer good law in relation to the right to physically appear in court as a representative and have been overruled by Lameman v Alberta (C.A.).5

On appeal, and in considering an application for security for costs, Mr. Justice Slatter ordered the corporate appellant, which was represented by its non-lawyer directors, to retain counsel within 60 days, failing which the appeal was deemed to be abandoned.6

Several exceptions to section 106(1) are set out in section 106(2) of the Act. Two of the more commonly-encountered exceptions include the right of a person to act on his or her own behalf7 and the right to have a person appear as an agent before a justice of the peace, the Provincial Court, or a provincial judge, if permitted by statute.8 It is this latter provision that allows non-lawyers to act as agents in the civil9 and criminal10 divisions of the Provincial Court, which retains the discretion to deny the right of appearance to unsuitable persons.11 Section 106(3) of the Act prohibits disbarred lawyers from acting as agents in Provincial Court.

In addition to the exceptions listed in section 106(2) of the Act, many pieces of provincial and federal legislation permit non-lawyers to appear as agents before various tribunals. Examples include the Workers Compensation Regulation12and the Social Security Tribunal Regulations.13

 Unauthorized Practice and the Protection of the Public

Pursuant to section 6.06 of the Code of Conduct, every lawyer in Alberta is required to assist in the prevention of Unauthorized Practice. Some might argue that the Law Society is simply trying to protect its turf by preventing non-lawyers from entering the field. However, similar arguments have been made to the Court of Appeal, which has disposed of them on the ground of protection of the public.14 For example, the Court of Appeal had the following to say about the regulation of lawyers, doctors, plumbers, and electricians:15

The Legislature plainly thinks that it is dangerous to the public that an unlicensed person prescribe medicine or wire houses. Whatever may be the motives of doctors, electricians, plumbers, or lawyers, the Legislature’s aim is obviously public protection, not monopoly protection. It is not for the courts to say the contrary, and presume that there is no danger carrying on such a profession or trade without a license or enrolment...

In other words, the Law Society is involved in preventing Unauthorized Practice because it is in the public interest to prevent the practice of law by unqualified, unregulated, and unaccountable people. As stated in the Commentary to Rule 6.06 of the Code of Conduct, “unauthorized persons may have technical or personal ability, but they are immune from control, from regulation and, in the case of misconduct, from discipline by the Society.” In the absence of such oversight, there are also risks to the integrity of the justice system. A recent manifestation of these risks was described in R. v. D’Arcy,16 in which the Court dismissed criminal proceedings against an accused for want of prosecution when a non-lawyer purported to act as the agent of the accused when she in fact was not authorized to do so.

Additional reasons for prohibiting non-lawyers from practicing law include: 

  • Lawyers must meet appropriate standards of education, training, and qualifications before being licenced to practice law;
  • Lawyers must maintain standards of competence and conduct, including compliance with the requirements of the Code of Conduct, failing which they may be subject to disciplinary proceedings;
  • Lawyers must carry professional liability insurance and must contribute to a fund that compensates clients who are victims of misappropriation;
  • Lawyers are regulated in how they maintain trust accounts and manage trust monies;
  • Lawyers are subject to Court procedures that allow clients to review their bills; and
  • Lawyers are bound by the lawyer-client privilege and by their duty of confidentiality.

Complaints and Penalties

Complaints of Unauthorized Practice are reviewed and investigated by the Law Society. When a report is received, and it is clear that Unauthorized Practice has taken place within the meaning of section 106(1) of the Act and that an exception does not apply, the first step is to seek voluntary compliance by the subject of the complaint. If voluntary compliance is not forthcoming, the Act contemplates two additional remedies: the first is for the Law Society to apply for an injunction in the Court of Queen’s Bench;17 the second is to prosecute the non-lawyer in the Provincial Court.18 Prosecutions are conducted by the Ministry of Justice and Attorney General (the “Ministry”) or by designated counsel of the Law Society as agents of the Crown pursuant to Agency Agreements with the Ministry. The Act contemplates penalties of escalating fines or imprisonment for a term of up to six months for Unauthorized Practice.

Summary

If after reading this article, a person is still in doubt about what constitutes Unauthorized Practice, the most prudent course of conduct is to report it to the Law Society in writing,19 by telephone,20 or by email.21

The author would like to thank Hind Masri and Janna Crown for their assistance in drafting this article.

  1.  LSA Website (www.lawsociety.ab.ca). 
  2.  RSA 2000, c L-8. 
  3.  908077 Alberta Ltd v 1313608 Alberta Ltd, 2015 ABQB 108 at para. 56.
  4.  A “McKenzie Friend” {from McKenzie v McKenzie [1970] 3 All ER 1034 (C.A.)} is a person who may provide passive in-court support to a litigant. See paras. 20-21 of the decision.
  5.  These cases had concluded that it was permissible under certain circumstances to allow non-lawyers to appear in the Court of Queen’s Bench. See paras. 39-49 of the decision.
  6.  908077 Alberta Ltd. (Escape & Relax) v 1313608 Alberta Ltd., 2015 ABCA 117 at para. 5.
  7.  Section 106(2)(h) of the Act.
  8.  Section 106(2)(l) of the Act.
  9.  Section 62(1)(b) of the Provincial Court Act allows a litigant to be represented by a non-lawyer agent in the civil division of the Provincial Court, aka, Small Claims Court.
  10. See R. v Frick, 2010 ABPC 280. The combined effect of sections 800(2), 802(2), and 802.1 of the Criminal Code of Canada, of Alberta Order in Counsel 334/2003, and of section 106(2)(l) of the Act allows non-lawyer agents to appear in Provincial Court in summary conviction offences where the accused is liable for a period of incarceration of six months or less.
  11. See R. v Hansen, 2015 ABPC 118, in which a non-lawyer agent was denied the right to appear in Provincial Court.
  12. Alta Reg 325/2002, section 11.
  13. SOR/2013-60, sections 10, 24, 35, 40, and 46.
  14. Lameman v. Alberta, 2012 ABCA 59 at para. 17.
  15. Law Society (Alberta) v. North American Escrow Inc., 212 AR 222 (CA) at para. 11. 
  16. 2015 ABPC 6.
  17. Pursuant to section 111 of the Act.
  18. Pursuant to section 109 of the Act, which prosecution must be commenced within 2 years after the commission of the offence.
  19. To the Calgary or Edmonton offices of the Law Society (addresses on the website).
  20. 1-800-661-9003 #4789.
  21.  complaints@lawsociety.ab.ca.

Karl R. Seidenz is counsel in the Office of the General Counsel at the Law Society of Alberta. Before joining the staff of the Law Society, Karl was a partner and litigator in the Calgary office of Norton Rose Fulbright Canada LLP, and its predecessor, Macleod Dixon LLP.