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Need some tips for working at home?

9/12/2018

Do you work from home or hope to work from home more often?

As freelance lawyers who work remotely we know it is not always easy. You can read some of Erin's tips for successful remote working for freelance lawyers (and regular lawyers alike) in the article: The Lawyer's Guide to Working from Home in Precedent Magazine's Fall 2018 Issue.

Do you have any other suggestions for a better remote working experience?

Governance Shakeup at the Law Society of Ontario?

8/24/2018

Lawyers are a self-governing profession in Ontario and we oversee our own regulation through the Law Society of Ontario. This month the LSO published a “Call for Comment” seeking feedback on suggested changes to the LSO’s governance structure. Comments are due October 15, 2018. Many lawyers may have missed the email, so we’ve summarized the key points for you here.

The Governance Task Force has identified four options to streamline the government structure at the LSO and are seeking your input on the following suggestions:

1. A smaller size for the LSO’s board and changes to the composition of the board:

Every four years lawyers and paralegals vote in a “bencher” election. Benchers are the LSO’s directors. The LSO’s board is currently called “Convocation”. The next bencher election is in 2019.

[Brief side note: Unfortunately, it appears that most lawyers are not interested in exercising their right to vote in the bencher elections. Voter turnout has basically decreased with every bencher election  with 56% of eligible voters choosing to vote in 1987, down to only 33.84% of eligible voters voting in the 2015 election. Benchers are the people who decided to: change us from “members” to “licensees”; change the Law Society of Upper Canada to the Law Society of Ontario; and implement the Statement of Principles. All of which caused a strong reaction in the legal profession (both in support of and against these decisions). Benchers potentially hold a lot of power in determining how we govern ourselves, yet few lawyers appear to be interested in voting on who can make such decisions and how.]

Currently there are 45 elected benchers (40 lawyers and 5 paralegals) and 8 “lay benchers” appointed by the government. There are also 35 ex officio benchers (such as former Treasurers, former attorney generals and “life benchers” who have been grandparented in after the 2010 governance reform which ended ex officio offices) as well as the Treasurer and the Attorney General, which makes up 90 members of Convocation.

One example to streamline LSO governance, as suggested by the Governance Task Force, is to keep the current make-up of benchers but remove the ex officio positions which were grandparented in.

Another suggestion is to reduce the number of elected positions to 29 and add 3 LSO appointments (in an attempt achieve greater diversity).

A third example is to reduce the number of elected positions even more to 20 and have a higher number of appointed positions: 7.

2. Changes to the Treasurer’s Term

The Task Force is also exploring changes to the Treasurer’s term, which is officially a one-year term but by convention is a two-year term (the Treasurer runs un-opposed for the second term). The suggestion is to make the Treasurer’s term a two-year term. Another option is to impose a Treasurer “ladder” with a vice president, president, past-president or two vice presidents and a president.

3. Changes to the Bencher terms

Currently a bencher term is four years with a 12-year term limit. The Call for Comment suggests both a shorter term and shorter term limit.

4. New Terminology

The fourth area for potential change is in the terminology we use. The Governance Task Force provided the option of changing Treasurer to President, as there may be confusion over the role of the Treasurer (i.e. people may think he or she is only responsible for financial matters rather than the whole board).

Along with this would be a change from the term "Convocation" to either Board, Board of Directors, Board of Governors, or Council and a change of the name "Bencher" to Board Member, Council Member, Director or Governor.

The LSO is taking the view that if they do go ahead and change the governance structure, significant changes must occur gradually. Some changes requiring legislative amendment would occur following the 2019 bencher election and would be in place for the 2023 bencher term.

Interested in learning more? Read the full report here. To comment you can fill out this online form.

Comments are due OCTOBER 15, 2018

**For more information on this topic see Adam Dodek's article on SLAW called Public Interest Regulation: Governance Reform at the Law Society of Ontario.

BENCHER ELECTIONS:

Are you interested in lawyer and paralegal governance? Do you want to have your say? Well there is a bencher election coming up in 2019. Consider running for a position on the board/convocation. The key dates are set out below:

Close of nominations:    February 8, 2019
Election day: April 30, 2019
First day in office:            May 23, 2019

Lawyers Looking for Leads? Some Upcoming Legal Networking Opportunities

7/23/2018

Referrals from other lawyers are a great source of new business for law firms. Attending legal events and meeting other lawyers in-person is one key way to building your personal network and finding those potential referral sources.

Sometimes, however, lawyers can get too busy to research potential networking events so we’ve done that for you! Below is a list of some networking opportunities coming up for July to October 2018. (While most CLE/CPD events contain some element of networking, our list focuses on networking-only or mainly social events):

CANADIAN/ONTARIO BAR ASSOCIATION
OBA Women Lawyers Forum - Mix and Mingle: September 12, 2018 at the Metropolitan (20 Victoria Street, Toronto) at 5:30pm. No registration fee, regular food/drink rates apply.

OBA Canadian Corporate Counsel Association, Ontario Chapter Event - Fall Social: September 20, 2018 at Jump Café & Bar, Toronto. Free for members of the CCCA but must register before September 6, 2018.

OBA Young Lawyers Division – Kick-Off Social Event: Monday September 24, 2018 at CRAFT Beer Market, Toronto. No charge for CBA Members and CBA Students. Non-Member charge of $15.00

TORONTO LAWYERS ASSOCIATION

TLA Summer Patio Pub. Wednesday August 29, 2018. Location: The Porch, 250 Adelaide St.W. Members: free Non-Members: $20. Must pre-register online.

HAMILTON LAW ASSOCIATION

New Lawyers’ Meet n’ Eat, Lunch. 12:30-2:00pm. August 15, 2018. 7th Floor John Sopinka Courthouse, Hamilton. $5.00 - at the door or in advance.

Commercial Litigation Dinner, October 4, 2018. The Spice Factory, Hamilton. $95.00.

COUNTY OF CARLETON LAW ASSOCIATION

Annual Golf Tournament & BBQ (Kanata). August 21, 2018. Golf, cart and reception $140.00 (plus HST) before August 1, 2018.

Opening of the Courts, September 26, 2018. Courtroom #37, 3rd Floor, Ottawa Courthouse.

WOMEN’S LAW ASSOCIATION OF ONTARIO

WLAO/CAWEE 17th Annual Deb Snead Memorial Golf Event, Toronto. September 17, 2018. Member: $155.00, Non-Member: $180.00

THE ADVOCATES’ SOCIETY

Big Mingle (Montreal): Young Advocates’ Standing Committee invites Montreal articling students to stop by the Bar Don B Comber on July 26, 2018.

Big Mingle (GTA): Young Advocates’ Standing Committee invites GTA articling students and summer students to drop by on August 15, 2018. Exclusive to law students and articling students only.

Young Advocates Pub Night (Toronto). September 6, 2018. Hot House Restaurant and Bar. Your business card is your ticket.

Breakfast with Tiffany’s (London). Networking breakfast for women advocates on September 13, 2018. Members: $40 (plus hst), Non-Members: $65 (plus hst).

1st Annual Montreal Gala on September 20, 2018 at the Hotel Le Mount Stephen. Hear from Canada’s Chief Justice. Members: $200.00 (plus tax), Non-Members: $250.00 (plus tax).

Young Advocates’ Standing Committee Fireside Chat (Toronto) with Justice Cynthia Petersen and Sandra Barton. October 4, 2018. Members: FREE, Non-Members: $30.00 (plus tax).

Breakfast Near Tiffany’s VII (Toronto). Beyond Mentoring: A Dialogue on Sponsorship for Women Advocates. October 10, 2018. Four Seasons Hotel. Members Only Event, $75.00 (plus tax).

YOUNG WOMEN IN LAW
Articling Student Drinks on August 29, 2018. At Batch, 75 Victoria Street, Toronto. Free for articling students, must register online.

Know of any other upcoming social or networking events? Let us know! And we hope to see you at some of these events soon.

(Please double-check dates/times/location/prices directly on the associations' website as this information may change).

*Photo by Jens Johnsson on Unsplash

Flex Founder, Erin Cowling, Published in The Advocates' Journal

7/23/2018

Erin's article "Diversity and Inclusion in the Courtroom: A Necessity, Not a Luxury" was published in the Summer 2018 Issue of The Advocates' Journal.

You can read the article here.

A Day in the Life of a Freelance Lawyer by Amy Grubb

6/19/2018

Ever wonder what it is like to be a freelance lawyer (a lawyer who assists other lawyers, law firms, and in-house legal departments with their overflow legal work)? Our Flex lawyer Amy Grubb has written this informative blog post to give you a glimpse into a day in the life of a freelance lawyer:
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As with most legal positions, no day as a freelance lawyer is ever quite the same. Here is a snapshot of a random day in my life as a part-time freelance lawyer.

5:30 am: I am not one of those people who presses the snooze button for another 45 minutes of shut eye. My alarm goes off and I am up. I figure part of this is because I never know when one of my kids is going to wake up so I might as well get going before chaos breaks out. I get dressed, check my emails and finalize and send out a freelance agreement to a new client. Believe it or not, there is no coffee for me. Ever. It’s just not my thing.

6:45 am: My little people are now rolling out of bed. This means it’s time to get breakfast ready (omelettes), get the kids dressed, make lunches and help my son fill loot bags for his upcoming birthday party.

8:40 am: I walk the kids to school. This is one of my favourite times of the day (especially now that the weather is warm). On this particular walk we discuss fossils and how they are made.

9:15 am: Gym. This is my “me time”. No work, no kids, no distractions. I then head home to shower and get to work (I have a virtual office and tend to work primarily from home).

10:30 am: I tackle a new file today: drafting a GDPR compliant privacy policy as well as researching best practices from a GDPR perspective for a company that processes a large amount of data. During this time, I put my phone and all other temptations and distractions away. I put my head down and focus on the task at hand.

Noon: I pick up my youngest from preschool. Now this is my favourite part of my day. She lights up when she sees me and gives me the biggest hug. Ahhhhhhhh, lucky me. We walk back home where I give her a snack and then she is off to bed for her afternoon nap. I then prepare lunch (shrimp and leftover veggie salad) and sit down with my husband (who also works from home) for a quick lunch.

1:00 pm: I continue on with the GDPR research outlined above. I also take care of some administrative tasks: confirm details of a conference call taking place later today, RSVP to a breakfast networking event and confirm client instructions on a file.

3:00 pm: My daughter is up and ready to go. We hang out for a bit before heading out to pick up the big kids from school.

3:20 pm: School run.

4:10 pm: Hang out with the kids. Today we are reading books and talking about what they did at school that day. Apparently my son was involved in an “epic” game of dodgeball. He tells me about every play in detail.

4:30 pm: My husband takes over with the kids while I jump on a conference call. It is a group call with a law firm that is planning to offer legal services to its clients through independent contractors, such as myself. I really think it is a great time to be an entrepreneurial minded lawyer. There is so much possibility and freedom to work in a non-traditional way than ever before.

5:45 pm: After the call, dinner is literally being put on the table. Yay for me! Hubby has made tacos with guacamole. Our dinner conversation with the kids revolves around birthday party plans, different types of cows and whether brown cows actually produce chocolate milk (some of us are still undecided on that one) as well as a vote on what food you like best among ice cream, pizza or smoothies (that’s a tough one for me but I think depending on where it is from I would have to go with pizza. It would have to be pizza from Windsor because it is the best).

6:15 pm: Tidy up the path of destruction that has been left behind by the kids. One of my kids was stuck with laundry for a chore this week so I showed him how to fold the clothes and put them away. I am pretty sure he pretended that it was too difficult so I ended up doing most of it. In the meantime, my husband helps the other with his homework and the youngest with making sure she didn’t stick her fingers in any electrical outlets.

7:00 pm: Bedtime for the kids.

7:15 pm: Grocery store run.

8:00 pm: One of my clients has reached out with a merchant contract that needs to be reviewed from a Canadian perspective. I send her a quote for my services and continue drafting the privacy policy I was working on earlier in the day.

9:30 pm: I can’t lie. I record the Bachelorette weekly and am a die hard fan. No shame. Time to sit back and enjoy!

11:00 pm: Off to get some shut eye (with visions of fossils, brown cows and loot bags dancing in my head).
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Thanks Amy for this informative (and entertaining) post! This is a great example of how freelance lawyers can provide quality legal work and excellent client service to sole practitioner, law firm, and in-house legal department clients, while still being engaged in other aspects of life. A number of our freelance lawyers do not have children, but have other responsibilities that require a flexible legal practice. Freelancing gives them this flexibility.

We also provide flexibility to you - our lawyer and law firm clients. We eliminate the need for you to hire a full-time associate or counsel (only hire us when you need us), save on overhead (we work remotely), and can give you more flexibility in your legal practice (off-load the work you don't want to do and keep the work you do!) If you are looking for a freelance lawyer to assist with your overflow legal work, please do not hesitate to reach out and find out how we can help you.

What We Learned at the “LSO Solo and Small Firm Conference: Top Tips for the 21st Century Lawyer”

6/12/2018

Did you miss the Law Society of Ontario’s solo and small firm conference this year?

We’ve attended this conference every year for the last four years and each year we are impressed with the topics and programs. This conference is always appropriately geared toward issues that solo and small firms face and provides great networking opportunities throughout the day. As freelance lawyers, we are all technically “sole practitioners” (although we are not really sole practitioners, see our blog post on why that is, here) and face the same issues solos/small firms face, so it is a great program for freelance lawyers as well.

This blog post will provide some of the highlights of this year’s conference, in case you missed it!

The title for the conference was: Solo and Small Firm Conference 2018: The 21st Century Lawyer. The chairs were, once again, Kathleen Erin Cullin and Allan Oziel, this year joined by Barbara Hicks.

The opening plenary was by Jack Newton of Clio and was called Using Data to Deliver a Better Client Experience. Jack provided quantitative data (U.S. based) to show how consumers find their lawyers and how lawyers are failing (or succeeding) in delivering legal services (are we capturing all of our time? Are we being efficient? Are we using technology to cut down on inefficiencies?) Our only feedback on this session is that it was too similar to last year’s opening plenary.

After that, we attended a session by Noel Semple called Enhancing Profitability while Increasing Access to Justice. While this topic seems like a bit of an oxymoron, Noel spoke about finding the “Sweet Spot” for personal plight lawyers (lawyers who deal with family law, criminal, and estates, etc. where personal problems and emotions are involved rather than corporate issues) between providing quality and professional services, making a profit, and offering accessible legal services. One possibility was to provide unbundled legal services or working on a limited scope retainer. Another tactic was to learn to delegate or outsource legal work. We wholeheartedly agree with this, outsourcing certain tasks (legal research, drafting, court appearances, blog post drafting) to freelance lawyers (who often charge out at a lower rate) means you can pass those savings on to your client and free up your time.

Megan Cornell, the Founder and CEO of Momentum Law next spoke on using technology to scale your firm or practice at the session Scaling Your Practice: Make More Money with Better Technology and Processes. I wish I had taken more notes during this session as it appears her presentation and slide deck are not in the provided material (unless it has now been recently added?) Megan spoke about doing more with less and getting rid of inefficiencies in your office. For example, she spoke about the “Two Scoop Solution” that her law firm embraces. This came from their use of a coffee machine that required 8 scoops of ground coffee for the perfect pot of coffee. The problem was it took a long time to scoop out 8 scoops. So, they found a larger scoop and figured out two of the larger scoops equalled 8 of the smaller scoop, reducing their time spent on making coffee in the morning. Anything that reduces redundancy and helps with efficiencies improves the overall practice of law and makes for a better client (and lawyer) experience. Megan spoke about some of the technology she uses to automate her practice as much as possible (including Clio, Office 365, Lexicata, Athennian, Closing Folders, LawPay, Typeform, etc.)

We learned how to “cherry-pick” our clients in a session by Marni MacLeod, the Vice President of Skunkworks Creative Group Inc. Marni suggested using “client personas” to target the right audience. What is a “client persona”? It is basically a composite sketch that includes realistic characteristics for a segment of your clients or a new client group you want to attract. Who is your ideal client? A starting point is to look at the clients you already have and look for patterns you can identify, for example clients with a specific legal problem, clients who came from the same referral source, etc. Marni then took us through an exercise to help us start our client personas, so we could target our marketing correctly.

Finally, we attended a session by Brooke MacKenzie of MacKenzie Barristers Professional Corporation, who spoke about 10 Ethical Issues to Watch Out for in Practice. These included the new rules on marketing and marketing restrictions, joint retainer issues, referral fees, conflicts etc.

There were several other sessions happening concurrently that included sessions on the new tax rules; a guide to working with expert witnesses; building a practice that fits your life; disability and accommodation issues in your practice; running your practice as a business; etc. (We unfortunately missed the closing plenary on “Becoming a Blockchain Lawyer” as we had to sneak out early to prep for The Advocates’ Society End of Term dinner.)

Another bonus for conference attendees were unique workshops that were available to those who signed up in advance. The topics for these workshops were: Building Your Professional and Personal Brand on LinkedIn, Using Storytelling Techniques to be more Memorable, Effective Negotiation Principles and Strategies, and Growing your Practice through Equity and Inclusion.

Networking opportunities happened throughout the day (and the night before at the Treasurer’s Dinner at Osgoode Hall), which is always a great way for solos and small firm lawyers to make connections with other lawyers in their areas of practice or to find referral sources. These breaks also gave us a chance to visit the exhibitors’ booths and learn about new technology and services geared toward solo and small firms. Or you could wander over to the “ingenious bar” where you could speak to representatives from various LSO associations: Homewood Health, LawPro, Law Society Referral Service, Practice Management Helpline, Spot Audit, the Action Group on Access to Justice, etc.

We look forward to attending next year’s Solo Small Firm Conference and hope to see you there!

Double Booked for Court? How Freelance Lawyers Can Help

5/1/2018

Many lawyers are aware that freelance lawyers can assist other lawyers and law firms with legal research, drafting, due diligence and other “behind the scenes” legal work. However, that is not all we do. Freelance lawyers can also assist with in-person court appearances, discoveries, cross-examinations, mediations, etc.

Often sole practitioners, or lawyers at smaller firms, do not have the luxury of asking the lawyer down the hall to step in for them should an emergency arise, or when they are double-booked. Flex Lawyers can be the lawyers you turn to, to act as your agent. Below are just some of the examples of how our Flex Lawyers have assisted other lawyers and law firms in the past:

attended all-day discoveries where the client was a minor party and the lawyer wanted to keep costs down;
assisted as second chair on an appeal where the sole practitioner did not represent the client at the trial and needed assistance getting up to speed quickly;
attended case conferences;
argued adjournment motions;
argued motions for substituted service;
appeared on consent matters;
appearance to vary an order; etc.
We also have experienced trial lawyers who are ready to assist!

Litigators love to be in court, we get it, we are litigators too. But sometimes it does not make sense for some lawyers to sit in court all day for a minor appearance. The costs are just too high and the time commitment can be significant. Hiring a Flex Lawyer to step in for you frees up your valuable time and you can pass those cost-savings on to you client.

Contact us to learn more about our court appearance services in Toronto.

Toronto Lawyers: Have You Volunteered with the Pro Bono Ontario Hotline, Yet? by Erin Cowling

4/10/2018

We all know there is a real “access to justice” issue in Canada; but not all of us know what steps we can take to change this. There is now one simple and rewarding way for you to help: volunteer with Pro Bono Ontario’s Free Legal Advice Hotline.

This service was launched in September 2017 and is a call-in hotline that provides real legal advice, as well as assistance with drafting letters and court forms, at no charge for people without access to legal representation. Because it is a hotline, the volunteer lawyers can help a significant number of individuals who cannot access traditional legal services due to geography, disability, childcare obligations or inflexible work schedules.

I volunteered a day of my time in early March. The call centre is easily accessible for volunteers and is located a short distance from the Eglinton subway station. Volunteers arrive at 9:00 am for a quick tutorial on how to use the phones and the intuitive Salesforce platform. Do not worry, if you forget how to use the program, they have very helpful and knowledgeable staff on hand all day to assist. Volunteers then answer phone calls from 9:30 am to 4:00 pm with a lunch break. The calls are limited to 30 minutes, so you are able to assist several individuals all across Ontario in one day.

I found it to be a very rewarding experience and quite fun. I answered a variety of questions and provided advice on possible causes of action, serving and filing deadlines, and warning of potential limitation period issues, just to name a few. While you might be wondering how you can really assist someone in just 30 mins you would be surprised to learn how much can be accomplished in this short period of time. Being immersed in the law and legal procedures on a daily basis, lawyers often forget how inaccessible the law can be for those without legal training. Volunteers can easily assist someone in moving their case forward by directing them to the correct form to fill out or by simply explaining what a “tort” is.

Volunteers can choose the areas of civil law they wish to service (no family law or criminal law): civil procedure, employment, consumer, housing, corporate law for small businesses, charities and non-profits and creating powers of attorney. Pro Bono Ontario also has a great knowledge management database with articles and other resources to help you if you are not fully up to speed on a certain area of law.

Also, in addition to helping a great cause, you get to meet other lawyers who are volunteering their time. It is an effective networking opportunity.

I would highly recommend volunteering and encourage all lawyers to consider signing up to volunteer a day of your time. All you have to do is fill out the simple online application form here. Then the next time the topic of access to justice comes up, you will know that you have taken at least one step in solving this widespread problem.

The Difference between a Sole Practitioner and a Freelance Lawyer: 3 Points to Help Clear Up Some Misconceptions

3/27/2018

As the legal profession is changing, new ways to practice law are emerging, including the option of practicing as a freelance lawyer.

While freelance lawyering is becoming more popular across the globe and in Canada, confusion still exists over what exactly a freelance lawyer is and does. At Flex, the most common misconception we see is people equating freelance lawyers with “cheaper versions” of sole practitioners. This misconception has arisen in part by some solo lawyers offering their services to the public on general freelance platforms (alongside graphic designers, photographers, etc.) at discounted rates creating some confusion in the freelance lawyering practice area.

To clear up some of these misconceptions we have summarized below three main differences between sole practitioners and freelance lawyers:

1) The Clients
The clientele is the most important distinction between a sole practitioner and a freelance lawyer.

Freelance lawyers only work for other lawyers, law firms, or in-house legal departments (normally large corporations). Unlike sole practitioners, we are not retained by the general public and do not provide legal advice directly to “non-lawyers” or what we refer to as “end-clients”. While technically we are all “sole practitioners” with our respective law societies (our governing bodies), this is only due to the absence of a “freelance lawyer” category on our annual reports, and “sole practitioner” is the closest category available to how we practice law.

So, those lawyers who offer their services on general freelance marketplace websites, are usually sole practitioners looking for work from end-clients (although not all), and they often offer their services at a lower or discounted rate. They use freelance platforms simply as another way to generate business from the public.

It is understandable why sole practitioners may be confused with freelance lawyers. In other industries where freelancing or the “gig” economy has been embraced, freelancers are generally individuals, such as graphic designers or writers, who on their own work for several clients on a project basis, as opposed to one company. Like most lawyers (other than in-house counsel) sole practitioners also work for several end-clients as opposed to one end-client. However, freelance lawyers “gig” for several law firms and lawyers, as opposed to practicing as an associate or partner of one lawyer, law firm, or company. The difference, being, as noted above, who freelance lawyers work for: “other lawyers" vs. “end-clients”.

2) The Nature of the Work

A sole practitioner will (generally) see the file through from beginning to end (i.e. from drafting the statement of claim to conducting the trial), unlike a freelance lawyer who may be called in to work on only one aspect of the file (i.e. to provide high level strategic advice, draft a pleading, review one contract, appear for one court appearance, etc.)
This distinction affects the length or duration of the work. For example, in civil litigation files can last for years. A sole practitioner's litigation files can be dormant for months and then blow up at a moment’s notice. Instead of juggling 100 files that may require attention at any moment, freelance lawyers focus on one or two assignments or projects at a time that have clear beginnings and ends. This means our lawyer and law firm clients get 100% (or close to it) of our attention on their work project. Our lawyer clients are the ones juggling the 100 files, and we assist when they catch on fire.

Also, our lawyer clients always give us very interesting and challenging legal work. The instructions are very clear and well thought out. Having a lawyer as a client means a lot less of the emotional support and psychological hand-holding that sole practitioners may have to provide to their end-clients. Some of our lawyer clients have told us that they prefer providing that emotional support and hand-holding and are not that keen about the actual law. This is how, as a freelance lawyer, we can complement a solo practitioner’s or law firm lawyer’s practice. Our clients outsource the work they do not like to us, so they can focus on the work that they do.

3) Overhead and Trust Accounts

Most sole practitioners have an office, a legal assistant or law clerk, office equipment and furniture, etc. Freelance lawyers have very little overhead. We can work from anywhere, although most of us work from home, and often have paperless 'offices'. We have lawyer and law firm clients all over Canada and can communicate with them over Skype, phone, email, etc.

While some sole practitioners may also work from home and have paperless offices, one thing a sole practitioner does have to deal with (that freelancers do not) is a trust account. Sole practitioners will often take monetary retainers from their end-clients which must be kept in a trust account. Freelancers usually only bill our lawyer and law firm clients once the work is complete which eliminates the need for a trust account.

Conclusion

While freelance lawyers and sole practitioners have a lot in common, we do practice law in a different manner. Depending on his or her personality, a lawyer may be better suited for one type of practice over the other. Those of us at Flex prefer the freelance way of life!

More information on our services can be found here and if you have more questions please see our FAQs or contact us at info@flexlegalnetwork.com.

Some U.S. Law Firms Offering "Unbundled" Legal Services Facing Pushback from Courts: Is Canada Faring Better?

3/5/2018

In a growing number of jurisdictions lawyers may choose or agree to take on part, but not all, of a client’s legal matter with the client’s consent. These agreements are often called ‘limited scope retainers’ or the provision of ‘unbundled legal services’.

The Law Society of Ontario (formerly the Law Society of Upper Canada) amended the Rules of Professional Conduct in 2011 to explicitly allow lawyers to enter into limited scope retainers and clarified the requirements when doing so, such as having the retainer in writing and signed by the client.

Limited scope retainers can cover a wide variety of situations, including when a lawyer ‘ghostwrites’ pleadings (or a factum or motion material, etc.) for a self-represented litigant, but does not appear in court on their behalf or become solicitor of record. The number of lawyers offering this type of service in Canada continues to increase. Also, in addition to unbundled services, some lawyers are also offering legal "coaching" which involves coaching or mentoring self-represented litigants through their cases.

There are many reasons why the LSO and other regulators would allow such retainers, including, most importantly, tackling the access to justice problem our society faces and providing an affordable option for litigants who cannot pay for full legal representation. While most lawyers get paid for their limited scope retainers, it can also encourage lawyers to take on manageable and limited pro bono assignments.

However, some have questioned (and I would argue unnecessarily) whether such unbundled services are ethical, especially in the context of ‘ghostwritten’ pleadings. These critics argue that the judiciary or opposing counsel may be misled by the material presented, or the clients may not understand what was written by the lawyer or their legal position. Also, some argue that these purportedly unrepresented litigants may take advantage of the courts’ tendency to overlook defects in unrepresented court filings. The main concern, however, seems to be that if a lawyer’s identity and involvement are not revealed, they may not be held accountable for potential violations of the Rules of Professional Conduct or for solicitor negligence (see the American Bar Association's Formal Opinion 07-446, which looks at, and dispels, some of these criticisms).

Just last week it was reported that a Florida law firm is facing push back from the courts for assisting pro se (self-represented) litigants. The Florida Bar's Rules of Professional Conduct allow limited representation so long as the attorneys provide clear notice of their participation. Specifically, a lawyer can draft and not sign documents for an unrepresented litigant, but must add language to show the filing was "prepared with the assistance of counsel". It appears that judges are reacting negatively when they read this on pleadings and believe that something "suspicious" is going on behind the scenes. One judge, after noticing the line saying "prepared with assistance of counsel" on a pro se litigant's document, ruled against the pro se litigant and ordered him to reimburse the plaintiff for an hour's worth of legal fees and ordered the firm to either step aside or become solicitor of record. The law firm in question believes that the issue is ignorance of the limited scope retainer rules and that instead of being "lauded or praised" for their initiatives, they are being "castigated" for their attempt to help pro se litigants.

In 2015, the top court in Rhode Island examined the practice of ghostwriting pleadings for self-represented litigants after three lawyers had been sanctioned by a lower court. In FIA Card Services, N.A. v. Pichette, No. 2012-272-Appeal (R.I.2015) the Rhode Island Supreme Court concluded that a lawyer may not ‘ghostwrite’ or otherwise assist a self-represented litigant with the preparation of pleadings, motions, or other written submissions unless the lawyer signs the document and discloses his or her identity and the extent of his or her assistance. However, the lawyer may also indicate that they are not the attorney of record.

In its decision the RI Supreme Court stated that until they are persuaded otherwise, full disclosure of a lawyer’s involvement is the better practice. A lawyer who prepares such documents must still be held to the same standards as a solicitor of record. However, the Court also asked for comments from members of the bench, bar, and public on the subject of limited scope representation in general and the practice of ghostwriting in particular.

What was concerning for the Court in the Rhode Island case was that the self-represented litigants did not understand their legal positions or the material that had been drafted by the ghostwriting lawyers. They also thought that the drafting lawyers were their retained attorneys of record. This suggests that the lawyers did not do a good job of explaining their limited scope retainer or the legal work that they provided.

Has this type of pushback occurred in Canada? What are the best practices for Canadian lawyers who provide unbundled services?

The Rules of Professional Conduct are silent on the requirement of a lawyer to reveal his or her identity and involvement in assisting a self-represented litigant and no Ontario court appears to have commented on this particular issue. The Rules of Civil Procedure (Rule 15.01(4)) and the Family Law Rules (Rule 4 (1.3)), specifically allow a lawyer to enter into a limited scope retainer and not become a solicitor of record (a party represented by a lawyer under a limited scope retainer is considered to be acting in person unless the limited scope retainer includes the lawyer acting as solicitor of record). However, with that being said, if a self-represented is asked by the court if they are receiving assistance from a lawyer, they should answer honestly.

The concerns raised by critics of unbundled legal services can all be managed with proper procedures put in place by lawyers with their clients. Having the limited scope retainer in writing, clearly communicating with the client the scope of the retainer(especially at the intake meeting), working within your expertise, being careful of clients with hidden motives or unrealistic expectations, explaining the content of the documents you draft, and using a clear fee agreement, will all help avoid any ethical issues.

Ultimately, the benefits of providing unbundled legal services and legal coaching far outweigh the negatives if the proper consideration and steps are taken. Lawyers starting their own practice can quickly build a client base due to the unmet need for affordable legal services, especially in the family law context. For more information on offering unbundled legal services in Ontario see the following resources:

LawPro - PracticePro - Limited Scope Retainer Resources
Law Society of Ontario - "Unbundling" of Legal Services
National Self-Represented Litigants Project - The Nuts and Bolts of Unbundling: A NSRLP Resource for Lawyers Considering Offering Unbundled Legal Services

This post was written by Erin Cowling. While Flex Legal does not offer unbundled legal services to self-presented litigants (we work for other lawyers and law firms), we support this type of practice and are happy to assist our lawyer and law firm clients who do provide these services.
If you are a lawyer who needs assistance with your overflow legal work, please contact us to learn how we can help you free up your time to focus on what is important to you (family, exercise, travel, or even bringing in more billable work). We are lawyers helping lawyers.

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