Once you have been confirmed by the Law Society as a registered student-at-law, an articling student can provide legal services. That means a student can do almost whatever a lawyer can, except those things specifically proscribed. Simple, right?

You will see that the right to give legal advice and appear before courts turns upon being a lawyer, barrister, solicitor, member of the bar, advocate, avocat, attorney, agent, counsel or officer of the court. There may be even more characterizations and articling students may be all or some of them. This article attempts to bring some focus to what articling students can and cannot do to serve clients. This article will not review the technical articling obligations, or the “rights and duties” owed by students to the Law Society or CPLED.

Be aware this is not an exhaustive discussion. Principals and students-at-law should familiarize themselves with any applicable legislation or restrictions before providing legal services.

Introduction

It may be helpful to remember, as a rule of thumb, that articling students can provide legal services to the same extent as a practising lawyer provided:

• The student is acting under the supervision of the principal or another lawyer;
• And the student is not expressly precluded by law from providing a certain service.

Section 106(1) of the Legal Profession Act provides that only an “active member” of the Law Society may practise as a “barrister and solicitor” or perform certain legal services. Subsection (2) creates an exception for students, allowing students to provide legal services during articles. Section 105 specifically allows the Benchers to make rules defining the circumstances in which students-at-law may act as counsel in various levels of court. Whenever it is relevant, remember that an articling student is not a barrister or solicitor and is not a member of the Law Society until they have been admitted following the completion of articles. The balance of this article outlines the functions students are permitted to perform, and those which they are not. Topics include the following:

• Acting as counsel in various levels of court
• The ability to give and accept trust conditions and undertakings
• Acting as a Notary Public and Commissioner of Oaths
• Acting as an Immigration Representative
• Statutory restrictions on the ability of students-at-law to provide advice.

Acting as Counsel – Alberta

Rules of the Law Society of Alberta

According to section 105 of the Legal Profession Act, a registered student-at-law, who is not under suspension, may “act as counsel in proceedings before the Court of Appeal, the Court of Queen’s Bench or the Provincial Court, or before a judge of any of those courts in the circumstances provided for in the rules and subject to any conditions prescribed by the rules.”

A student-at-law during the articling term may act as counsel in the proceedings and courts identified in Rule 53 of the Rules of the Law Society of Alberta as detailed below. Court of Appeal: Rule 53(2)

A student-at-law may act as counsel in the Court of Appeal in

1. civil proceedings before a judge in chambers;
2. proceedings for speaking to the list in civil or criminal matters;
3. proceedings for the taxation of costs before a Registrar of the Court;
4. an application with respect to judicial interim release pending appeal;
5. interlocutory applications in criminal matters.

Court of Queen’s Bench: Rule 53(3)

A student-at-law may act as counsel in the Court of Queen’s Bench in

1. civil proceedings before a judge in chambers, other than a pre-trial conference or a judicial dispute resolution;
2. proceedings before a master in chambers;
3. an examination for discovery (now referred to as “questioning” in the new Rules of Court);
4. an examination of a debtor in aid of execution;
5. proceedings for the review of costs before an officer of the Court;
6. an appeal respecting a civil claim, taken pursuant to section 46 of the Provincial Court Act;
7. an application in a criminal proceeding, if the application relates to any of the following:
   (i) entering an election respecting the mode of trial;
   (ii) entering a plea of not guilty;
   (iii) fixing the date for a trial or a hearing;
   (iv) an adjournment, where the matter has been brought forward to speak to the adjournment;
   (v) an application with respect to judicial interim release.

Surrogate Court: Rule 53(4)

A student-at-law may act as counsel in the Surrogate Court in

1. proceedings before a judge in chambers;
2. proceedings for the review of costs before an officer of the Court.

Provincial Court where the Court is NOT sitting as a Youth Court: Rule 53(5)

A student-at-law may act as counsel in the Provincial Court in the following circumstances, where the Court is not sitting as a youth court:

1. in a proceeding pertaining to an offence punishable on summary conviction;
2. in a proceeding pertaining to an offence prosecutable either as an indictable offence or a summary conviction offence, where the Crown elects or is deemed to have elected to proceed by summary conviction procedure;
3. in a proceeding pertaining to an indictable offence in respect of which a Provincial Court judge has absolute jurisdiction;
4. in a proceeding pertaining to any other kind of indictable offence, if it relates to any of the following:
   (i) entering an election respecting the mode of trial;
   (ii) entering a plea of not guilty;
   (iii) fixing the date for a trial, a preliminary inquiry or a hearing;
   (iv) an application for an adjournment, where the matter has been brought forward to speak to the adjournment;
   (v) an application with respect to judicial interim release.

Provincial Court sitting as a Youth Court: Rule 53(6)

A student-at-law may act as counsel in the Provincial Court in the following circumstances, where the Court is sitting as a youth court:

1. in a proceeding pertaining to an offence punishable on summary conviction;
2. in a proceeding pertaining to an offence prosecutable either as an indictable offence or a summary conviction offence, where the Crown elects or is deemed to have elected to proceed by summary conviction procedure;
3. in a proceeding pertaining to an indictable offence in respect of which a Provincial Court judge would have absolute jurisdiction if the accused were an adult;
4. in a proceeding pertaining to any other kind of indictable offence, if it relates to any of the following:
   (i) entering a plea of not guilty;
   (ii) fixing the date for a trial or a hearing;
   (iii) an application for an adjournment, where the matter has been brought forward to speak to the adjournment;
   (iv) an application with respect to judicial interim release.

Provincial Court: Rule 53(7)

A student-at-law may act as counsel in the Provincial Court in proceedings:

1. pertaining to an application for a maintenance order or for the enforcement of a maintenance order;
2. pertaining to an application for an order for custody of or access to a child or to an application for a review of such an order;
3. under the Child, Youth and Family Enhancement Act;
4. under the Mental Health Act;
5. under Part 4 of the Provincial Court Act (Civil Claims).

All Four Alberta Courts: Rule 53(8)

A student-at-law may, with leave of the Court, act as counsel in any matter, whether contested or not, before the Court of Appeal, the Court of Queen’s Bench, the Surrogate Court of Alberta or the Provincial Court if:

1. the student-at-law is present for the purpose of assisting a member who is that student-at-law’s principal or who is qualified under Rule 55 to be a principal, and
2. the student-at-law acts in the presence of and under the supervision of the member.

Alberta Freedom of Information and Protection of Privacy Act

As previously noted, a student-at-law may act as counsel for certain criminal proceedings. As a part of that process, the student-at-law may need to access personal records of the accused held by a public body. Under section 40 of the Freedom of Information and Protection of Privacy Act, a public body may disclose this personal information “to a lawyer or student-at-law acting for an inmate under the control or supervision of a correctional authority.”

One of the purposes of the Act is to “allow any person a right of access to records [containing personal information about them] in the custody or under the control of a public body.” However, this right is subject to “limited and specific exceptions as set out in [the] Act.” Students-at-law and their principals should fully review the Act before engaging or relying on this process.

Acting as Counsel – Federal Legislation

Criminal Code: Authorized Agent

Under section 800(2), a defendant may appear personally or by counsel or agent, which may be a student. Section 802.1 permits a student-at-law to act on behalf of a defendant who may be liable, on summary conviction, to imprisonment for a term of more than six months. A defendant “may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province.”

An Alberta Order in Council has approved CPLED for this purpose and an Alberta articling student is considered an authorized agent “to provide legal services on behalf of the defendant.”

Immigration Representative

Section 91 of the Immigration and Refugee Protection Act, allows “a lawyer who is a member in good standing” with a law society or a student-at-law under their supervision to act as an immigration representative and be paid for certain services. An immigration representative can also be “someone appointed by a foreign worker to conduct business on their behalf with Citizenship and Immigration Canada (CIC), Canada Border Services Agency or the Immigration and Refugee Board” or the Alberta Provincial Nominee Program.

An articling student is not encouraged to undertake practice as an immigration representative without thorough review and understanding of the Act and regulations and experience in this field.

Federal Courts Act

Students-at-law are not permitted to act in the Federal Court or Federal Court of Appeal.

Under section 11 of the Federal Courts Act, “every person who is a barrister or an advocate in a province” and “every person who is an attorney or solicitor in a superior court of a province” may practice as such in the Federal Court of Appeal or the Federal Court. The Act does not recognize a student-at-law as a barrister, advocate, attorney or solicitor. As well, the Federal Courts Rules do not permit students to perform prescribed functions, but refer instead to “solicitors”.

Tax Court of Canada Act

The Tax Court of Canada Act, permits representation by “counsel”. That must be a person who “may practise as a barrister, advocate, attorney or solicitor in any of the provinces” and “is an officer of the Court.” There is no exception or express permission allowing students to represent a party in the in a General Procedure before Tax Court of Canada. However, the Informal Procedure under s.18 of the Act and Rule 5 of the Tax Court of Canada Rules (Informal Procedure), the Tax Court of Canada Rules of Procedure Respecting the Excise Tax Act (Informal Procedure) allow representation by “counsel or an agent”. Case law authority appears to the proposition that students can appear in Informal Procedure matters. Students and principals should be certain about which part of the Act applies to their individual circumstances.

Supreme Court Act

A student-at-law cannot represent a party or conduct business on behalf of a party in the Supreme Court of Canada.

Sections 22 and 23 of the Supreme Court Act, provide that “all persons who are barristers or advocates in a province” and “all persons who are attorneys or solicitors of the superior courts in a province” may practice as such in the Supreme Court of Canada. The Rules of the Supreme Court of Canada state that a party may act in person or be represented by counsel or conduct business through an agent. The Rules of the Supreme Court of Canada define “counsel” as “a member of the bar of a province”. The Rules define an “agent” as “a lawyer practicing in the National Capital Region” , an area which means “the seat of the Government of Canada and its surrounding area.”

Code of Conduct – Trust Conditions

An articling student is included within the definition of “lawyer” for the purposes of the Code of Conduct. Part 5 of the Code addresses students and provides in Rule 6.2-3 that an “articling student must act in good faith in fulfilling and discharging all the commitments and obligations arising from the articling experience.” As a result, students are subject to all of the ethical duties and practice obligations of lawyers.

Specifically, students are bound by trust conditions imposed on them as if they were lawyers. It follows that students have the right to impose trust conditions on other lawyers and are bound by the undertakings they give. Be familiar with Rule 6.02(13) and the commentary and see the useful Trust Conditions Guidelines on the Law Society website.

Notary Public and Commissioner of Oaths

When a student-at-law is registered by the Law Society, he or she automatically obtains the status of Notary Public and Commissioner for Oaths. Students-at-law should review both the Notaries Public Act and the Commissioners for Oaths Act and be familiar with:

• the law and practice regarding oaths, affidavits, statutory declarations and guarantees;
• the appropriate forms of jurats; and
• the need for consistency and care in the practice as a Commissioner for Oaths and Notary Public.

However, amendments to the Guarantees Acknowledgement Act, effective April 30, 2015 preclude students from notarizing certificates of guarantors.

Under section 54 of the Federal Courts Act, and section 80 of the Supreme Court Act “all persons authorized to take and receive affidavits to be used in any of the superior courts of a province may administer oaths and take and receive affidavits, declarations and solemn affirmations to be used in…” those courts.

What You Cannot Do

There are some specific legal services a student-at-law may not perform. A few examples are listed below. Again, this is not an exhaustive list. Principals and students-at-law should familiarize themselves with any applicable legislation or restrictions before providing legal services.

Matrimonial Property Act

Under section 38 of the Matrimonial Property Act (MPA), only a “lawyer” can witness an acknowledgement in writing between two spouses “that provides for the status, ownership and division” of property. This applies to pre-nuptial and ante-nuptial agreements.

The term “lawyer” is not defined in the Matrimonial Property Act, but is defined in the Interpretation Act as “an active member of The Law Society of Alberta.” A student-at-law is not an active member until he or she has been admitted. Therefore, a student-at-law may not witness an acknowledgement in writing between two spouses regarding ownership and division of property.

Divorce Act

Under Section 9 of the Divorce Act, it is the duty of “every barrister, solicitor, lawyer or advocate” who acts on behalf of a spouse in a divorce proceeding to certify in the pleading that reconciliation has been canvassed with the client. As well, for a support order or a custody order, lawyers have a duty to certify that they have recommended negotiation and mediation before litigation.

“Lawyer” is not defined in the Divorce Act but, as noted before, a student-at-law is not a barrister or solicitor. A student-at-law is also not considered an “advocate” for the purposes of the Divorce Act. Instead, the term advocate is used to be inclusive of the French word ‘avocat’ which refers to a member of the Barreau du Québec (the Law Society of Quebec). As a result, a student-at-law may not provide these legal services or provide certification of compliance with section 9 of the Divorce Act:

Dower Act

Students-at-law many not attend to the execution of a dower release.

Pursuant to section 7 of the Dower Act, a release of dower rights must be executed in prescribed form and supported by affidavit. It must be completed apart from the married person in whose favour it is made, and executed “before a solicitor, barrister, lawyer or attorney at law residing in Alberta, or residing in any other province, realm and territory, state or country, other than the solicitor or the partner or employee of the solicitor acting for the married person in whose favour the release is made.”

The Charter – Right to Retain and Instruct Counsel without Delay

When an accused is arrested or detained, he or she has the right “to retain and instruct counsel without delay, and to be informed of that right.” The term “counsel” is not defined in the Canadian Charter of Rights and Freedoms. It is a principle of statutory interpretation that a court can look to related legislation for guidance where a term is undefined.

For example, section 2 of the Criminal Code defines the term “counsel” as “a barrister or solicitor, in respect of matters or things that barristers and solicitors, respectively, are authorized by the law of a province to do or perform in relation to legal proceedings.” In R v Frick, 2010 ABPC 280, an Alberta court interpreted the term “counsel” within the context of section 10(b) of the Charter to mean a lawyer, not an agent. The matter involved an impaired driving charge under the Criminal Code, which attracted a maximum 18 month sentence. Pursuant to section 802.1 of the Criminal Code, agents are not allowed to appear on summary matters attracting a sentence in excess of six months. The court determined that a non-lawyer agent could not represent the accused.

The foregoing case would not apply to students-at-law as they are authorized to defend clients in such summary conviction matters. There is, however, some unreported authority in Alberta to suggest that advice from a student-at-law at the time of arrest and detention may not be sufficient to satisfy the Charter right of the accused to retain and instruct counsel without delay. If correct, this means a student could represent the client at trial on the substantive matter, but may not be able to give advice to the same client in custody.

This article does not purport to solve this apparent anomaly, but students and principals may wish to be cautious about calls from clients in the back of a police cruiser.

Interjurisdictional Mobility

The National Mobility Agreement (NMA) between Canada’s law societies facilitates practice by Alberta lawyers in other provinces. Alberta reciprocates, allowing lawyers from outside Alberta to practice here. Some general conditions and limitations apply there are also special restrictions on practice in the Northern Territories and in Québec.

Interpretation of the NMA leads to the conclusion that it is not intended to permit students to engage in practice outside Alberta.

Generally, the NMA applies to lawyers, defined as “a member of the signatory body”. The Agreement is silent on whether articling students are necessarily included and resort must be had to the provincial enabling legislation. The Legal Profession Act of Alberta and other provincial legislation distinguish “articling students” or “student at law” from members of the respective law societies. As a result, students do not appear to enjoy the benefit of the NMA. Manitoba may be an exception as its definition of “member” does include a student.

The NMA presumes that, before undertaking an interjurisdictional representation, a lawyer will be competent in the law and procedure of the visited jurisdiction. Other clues in the Agreement include a requirement that the visiting lawyer must “be entitled to practice law in a home jurisdiction” — something that students are not yet permitted to do fully. A lawyer must be insured in the home jurisdiction — again, students are not separately insured. Visiting lawyers must not be “subject to conditions or restrictions… as a result of… proceedings related to… admission” – students are subject to the restrictions discussed elsewhere in this article.

In Alberta, the Provincial Court Act allows representation by a non-lawyer “agent”. With leave of the court, a non-lawyer may assist a litigant as provided in the Rules of Court. An attempt by a non-Alberta trying to appear in these capacities might be unfavourably regarded as attempting to do indirectly what cannot be done directly. It is not within the scope of this article to consider whether other Canadian jurisdictions permit any degree of non-lawyer representation, by Alberta students or otherwise. Courts always have an inherent power to control their own processes.

It is possible that, in extraordinary circumstances, a court could grant leave for an Alberta student to appear. The Law Society of Alberta recommends that students take a cautious approach when considering appearing as a non-lawyer agent in other jurisdictions.