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Lawyers Looking for Leads: Networking Events for February & March 2020

2/2/2020

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Was your legal practice a little slow in January?

Or, maybe it's been some time since you've stretched your "networking" legs?
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We are here to help!

Below is our curated list of upcoming lawyer networking events in Ontario.  We focus on events with a social component, where lawyers can make new contacts and potential referral sources for work: 

February 4, 2020 - TORONTO - Ontario Bar Association - Institute Welcome Reception - One King West. 5:15-7:15pm. Free for anyone registered for an Institute CPD Program. Otherwise: $50.00

February 6, 2020 - TORONTO - The Advocates' Society - Toronto Mentoring Dinner Series. 250 Yonge Street, Suite 2700. 6:00pm-8:30pm. Members $75+HST. Non-Members $95+HST.

February 8, 2020 - TORONTO - Federation of Asian Canadian Lawyers (FACL) - 13th Annual Conference and Gala. Toronto Region Board of Trade, 77 Adelaide St West. Can purchase tickets just for the Gala or for Conference & Gala. See website for details. 

February 13, 2020 - HAMILTON - Hamilton Law Association - First Annual Harris Cup Curling Bonspiel in support of the Lawyers' Legacy for Children. Dundas Golf & Curling Club. 5:00pm $125/per player (includes pre-game festivities, instruction, game & dinner)

February 19, 2020 - TORONTO - Women's Law Association - Workshop: Improv(e) Your Communication Skills with Bad Dog Theatre - Ryerson University, DMZ Sandbox, 341 Yonge Street, Suite 312. 6:00pm-8:30pm. Members: $30+HST Non-Members: $35+HST.

February 20, 2020 - BRAMPTON - Ontario Bar Association - Central West Regional Social. Fionn MacCool's, 11 Ray Lawson Blvd. 5:30pm-7:00pm. Free to attend but must register in advance.  

February 20, 2020 - BRANTFORD - Brant Law Association - After Hours Social. The Brantford Club, 98 George Street, Brantford. 5:00pm 

February 21, 2020 - LONDON - Middlesex Law Association - The Women's Innovation & Networking Event (WINE). The London Club. 4:30-6:30pm. Members $55+HST. Non-Members $75+HST 

February 24, 2020- LONDON - Middlesex Law Association - Mentoring Dinner 2020 (10 years or less). The London Club. 5:30-8:30pm. Member $60+HST. Non-Member $90+HST.

February 25, 2020 - OTTAWA - County of Carleton Law Association & Ottawa Chapter of the Canadian Association of Black Lawyers. Black History Month Social. CCLA Rideau & Nepean Rooms, 2nd Floor, Ottawa Courthouse, 161 Elgin Street. $10 Registration charge (proceeds to charity). 

March 3, 2020 - TORONTO - The Advocates' Society. The Mid-Career Women's Social. Lena Restaurante. 6:00pm-8:00pm Complimentary for Women Lawyers 8-22 years of practice. 

March 4, 2020 - KINGSTON - The Advocates' Society. Kingston Trivia Challenge. The Kingston Brewing Company, 34 Clarence Street. 5:30-8:00pm.

March 5, 2020 - TORONTO - The Advocates' Society & Society of Ontario Adjudicators and Regulators - An Evening with SOAR - 250 Yonge Street, Suite 2700. 5:30-7:00pm. TAS or SOAR Members: Free Non-Members: $20+HST. 

March 5, 2020 - TORONTO - Toronto Lawyers Association - 20th TLA Awards Gala. Omni King Edward Hotel, 37 King Street E. 6:00pm. Members $130+HST. Non-Members $160+HST. Young Lawyer (10 years or less) $90 +HST.  

March 5, 2020 - TORONTO - Ontario Bar Association - Civil Litigation Section Networking Social. Duke of Westminster 77 Adelaide St W. 5:30pm-8:00pm. Free to attend but must register in advance. 

March 5, 2020 - OTTAWA - County of Carleton Law Association - Women's Speed Mentoring Event. CCLA Nepean & Rideau Boardrooms, 2nd Floor, Ottawa Courthouse, 161 Elgin Street. $20.00 (limited spots).

March 5, 2020 - HAMILTON - Hamilton Law Association - Solicitor's Dinner. The Hamilton Club, 6 Main Street E, Hamilton. 5:30pm $95.

March 12, 2020 - TORONTO - The Advocates' Society - 9th Annual Trivia Challenge for Charity. The Hot House Restaurant, 35 Church Street. 6:00-8:30pm. $300+HST for a Team of 4. 

March 25, 2020 - TORONTO - Young Women in Law - The 10th Annual Young Women In Law Charity Gala (featuring  the Honourable Justice Beverley McLachlin and lawyer Annamaria Enenajor) The Design Exchange, 234 Bay Street. 6:30pm-11:00pm. Members Only Pre-Sale $80.00, General Public Sale opens February 11, $95.00.

March 27, 2020 - OTTAWA - County of Carleton Law Association - Annual General Meeting and Awards Banquet. Trillium Ballroom, 4th Floor, Shaw Centre. (Registration to open shortly)

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

**Please double check dates/times/locations/prices directly on the associations’ websites as this information may change**
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As of January 1, 2020: Changes to Simplified Procedure and Small Claims Court in Ontario

1/22/2020

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Civil litigators in Ontario should be aware of amendments to both Rule 76 Simplified Procedure claims and claims brought in Small Claims Court which came into effect on January 1, 2020.  

​1. Simplified Procedure Changes

The limit for claims brought under the Simplified Procedure rule has now been increased to $200,000 from the previous $100,000 limit which had been in place since 2010.

According to the Ministry of the Attorney General, “[t]his change will require more people to file claims under the Simplified Procedure rule, reducing the cost of resolving disputes to families, businesses and taxpayers.”

Other amendments include:
  • Jury trials will no longer be permitted under Simplified Procedure. This will decrease the length of the trial and save legal costs.
  • The time limit for discovery will be increased from 2 hours to 3 hours.
  • Parties cannot recover costs exceeding $50,000 or disbursements exceeding $25,000 exclusive of HST.
  • A pre-trial date will be set within 180 days of the action being set down for trial and parties must agree to and file a trial management plan 30 days before the pre-trial.
  • Trials will not exceed five days.

The Ministry of the Attorney General has also provided a helpful Fact Sheet regarding the amendments and has developed simple flowcharts illustrating the processes under the Rules of Civil Procedure.

2. Small Claims Court

The Small Claims Court limit has been raised to $35,000 from the previous $25,000. Also, the minimum amount of a claim that may be appealed to Divisional Court was increased from $2,500 to $3,500.

Have you already started a claim in Superior Court that now fits under the new Small Claims Court threshold? Don’t worry litigants can seek to transfer their case to Small Claims Court.

According to the Ministry of the Attorney General the increase in the limit is to make it “faster, easier and more affordable for people and businesses to resolve their disputes in front of a judge”.

As there will likely be an increase in claims at the Small Claims Court, hopefully there will be a corresponding increase in the number of deputy judges available to decide these disputes. Perhaps now is a good time to apply to become a deputy judge if you are interested. According to the Ontario Courts website to become a deputy judge:

Interested lawyers with a minimum of 10 years’ experience may write to the Regional Senior Judge of the region in which they wish to preside. To prevent court scheduling conflicts, applicants may apply to one region only. Please provide a letter of interest, curriculum vitae and references. Applicants must be members in good standing of the Law Society of Ontario, have no outstanding liability claims relating to the practice of law and no criminal record.

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Congratulations: Flex Founder Erin Cowling Wins Clawbies Award

1/8/2020

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Every year on December 31, the Canadian Law Blog Awards (the Clawbies) are announced. This year Flex's founder, Erin Cowling's law blog won an award for "Best Blog and Commentary"!

Congratulations to all of the 2019 winners.  
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Lawyers Looking for Leads: December 2019 & January 2020

12/9/2019

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Every few months we list upcoming opportunities for lawyers in Ontario to get out and stretch their "networking" legs.

We focus on events with a social component, where lawyers can make new contacts and potential referral sources for work.

Our curated list for December & January  is below: 

DECEMBER 11, 2019 - OTTAWA - Ontario Bar Association, Young Lawyers Division - OBA YLD Holiday Social East. Queen St. Fare, 170 Queen Street, Ottawa. 5:30pm - 7:30pm. Members: Free. Non-Members: $15.00 [SOLD OUT] 
 
DECEMBER 12, 2019 - LONDON - Middlesex Law Association - MLA Jazzy Christmas Social. Chaucer's, 122 Carling Street, London. 4:30PM-6:30PM.

DECEMBER 16, 2019 - TORONTO - Women's Law Association - Holiday Festive Meeting. 
1 Toronto Street, Suite 900. 6:30pm-8:00pm. No Charge. RSVP before December 12.

DECEMBER 19, 2019 - LONDON - Middlesex Law Association - Library Christmas Party. Library, 80 Dundas Street, Unit N, London. All day! Stop by for coffee and treats. 

JANUARY 15, 2020 - TORONTO - The Advocates' Society - Young Advocates' Social. Irish Embassy Pub & Grill, 49 Yonge Street. 6:00pm-8:30pm. Your business card is your ticket. 

JANUARY 22, 2020 - TORONTO - Ontario Bar Association, Canadian Corporate Counsel Association and Young Lawyers Division - 2020 New Year Social. Blake, Cassels & Graydon LLP, 199 Bay Street, Suite 4000. 5:30 Registration. Members: Free. Non-Members: $20.

JANUARY 23, 2020 - TORONTO - The Advocates' Society - An Evening with the Commercial List (Bench & Bar Reception). 250 Yonge Street, Suite 2700. 5:30-7:00pm. Members: Free. Non-Members: $30.00 (+HST). 

JANUARY 28, 2020 - TORONTO - The Advocates' Society - Labour & Employment Networking Reception. 250 Yonge Street, Suite 2700. 5:30-7:00pm. Members: Free. Non-Members: $20.00 (+HST).

JANUARY 29, 2020 - TORONTO - The Advocates' Society - Criminal Law Networking Reception. 250 Yonge Street, Suite 2700. 5:30-7:00pm. Members: Free. Non-Members: $20.00 (+HST). 

JANUARY 30, 2020 - OTTAWA - The Advocates' Society - The President's Reception. The Rideau Club, 99 Bank Street. 5:30-7:30. Complimentary for members and non-member lawyers, judges, and articling and law school students. 

Know of any other upcoming social or networking events for lawyers? Let us know!
​.......And we hope to see you at some of these events soon!
(Please double check dates/times/locations/prices directly on the associations’ websites as this information may change).
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​Mental Health Resources for Lawyers this Holiday Season

11/27/2019

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The holiday season is right around the corner, and while it may be a time of joy and laughter for some lawyers, for others it is a time of increased stress, anxiety and depression. Lawyers may be overwhelmed trying to balance family obligations and holiday preparations with all of the work they must finish before the year end. Others may find that the season reminds them that they are estranged from their families or are alone over the holidays. These feelings are often mixed with higher alcohol consumption due to the multiple festive parties hosted by law firms and legal associations.

It is important that lawyers put their mental health first during this time of the year. There are several resources available to lawyers who may be struggling over the next few weeks:

1. The Law Society of Ontario’s Member Assistance Program (MAP)
The MAP is a confidential service funded by (but fully independent of) the Law Society of Ontario (LSO) and LawPro. The MAP is provided by Homewood Health and provides secure telephone access to counselling, coaching, online resources and peer volunteers. Members can get professional help with issues related to addictions, mental or physical health, work-life balance, career, family and more. This program is open to lawyers, paralegals, law students or paralegal students. Similar lawyer assistance programs can be found in each province.

2. Your Employer’s Employee Assistance Program (EAP)
If you are employed by a law firm or you are in-house or work for the government, your employer likely has an EAP that you can access as well. An EAP is similar to the MAP discussed above but is provided by your firm/company.

3. The Canadian Bar Association’s Wellness Subcommittee
This committee exists to help legal professionals manage personal, emotional, health and wellness challenges. Their website provides several resources including a free online course: “Mental Health and Wellness in the Legal Profession”.

4. The LSO’s Coach and Advisor Network (CAN)
While the CAN does not provide counselling or therapy, it provides an opportunity to reach out to Coaches or Advisors who are practicing lawyers and paralegals. Sometimes stress can be alleviated by simply talking through a legal issue with another lawyer. An “Advisor” provides a one-off 30-minute phone call to deal with substantive law or procedure in the context of a particular client file. Being paired with a “Coach” is a longer commitment (approx. three months) that deals with assistance with practice management systems or skills development. This program is free. See our blog post on this service here.

5. PracticePro by LawPro
PracticePro is an online source that provides risk management, claims prevention and law practice management information to Ontario Lawyers. They have a section on Wellness and Balance that provides some helpful information.

6. The Ontario Bar Association’s Mindful Lawyer CPD Series
The OBA has archived videos that are complimentary for OBA members focusing on mental wellness. There are 19 different videos with helpful topics ranging from: “Re-Setting Your Priorities: How Can You Be a Happier Lawyer?” to “Support Networks for Lawyers Who Work Alone” and “Avoid Burnout: Train for Resilience”.

7. Lawyers with Depression – Blog
This is a blog by an American attorney, Dan Lukasik (and guest authors) to help law students, lawyers, and judges cope with and heal from depression.

8. Flex Legal Network
Yes, we can be a resource as well for lawyers struggling this season. If you are a lawyer who is overwhelmed with work, consider outsourcing some of your tasks to our qualified freelance lawyers. Most of our work is litigation based (although we do assist with some corporate work as well). In particular we can assist with drafting, legal research, court appearances, etc. For more information see our Services page and our FAQs.
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We also prepared a blog miniseries addressing mental wellness called “Balancing the Bar” that features three mini-mental-workouts: Mindful Breathing; Managing Stress by Expanding Your Vision; and Transform Tension. 

We hope this blog post helps and if you know of any other resources we should add, please reach out: info@flexlegalnetwork.com  
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Lawyers Looking for Leads: October & November 2019 Networking Events

10/15/2019

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Looking to: meet other lawyers? build your network? find some referral sources? Look no further. Below is our curated list of fall networking and social events for lawyers in Ontario:
 
October 16 2019 – OTTAWA – Ontario Bar Association – Craft Beer Tasting & Networking Event – OBA Young Lawyer Division Fall Social. 3 Brewers Sparks, 240 Sparks Street. 5:30pm Registration. Complementary Registration.

October 18, 2019 - LONDON- Middlesex Law Association - Fall Social - Palasad SocialBowl (North Location) 777 Adelaide St N, London. 5:30-9:00pm. Free Admission. 

October 22, 2019 - LONDON - The Advocates' Society - London Mentoring Dinner - Abruzzi, 119 King St. London. 5:00pm. Walk-Ins welcomed. 

October 23, 2019 - TORONTO - The Advocates' Society 10+ Standing Committee - Mid-Career Mingle, for lawyers 8-18 years of call. Walrus Pub and Beer Hall, Pong Bar 187 Bay Street. Free for Members. 

October 24 - BARRIE - The Advocates' Society - Barrie Pub Night - Hooligans, 66 Dunlop Street East, Barrie. 5:30-7:30pm. Your business card is your ticket. 

October 29 – TORONTO – Ontario Bar Association – Award of Excellence for Alternative Dispute Resolution. OBA Conference Centre, 20 Toronto Street. 5:30pm Registration. CBA Member $110. Non-Member $140. Student Member $60.
 
October 30 – TORONTO – Women’s Law Association of Ontario – 100th Anniversary Gala. The Carlu, 444 Yonge Street. Dress Code: Formal. 6:00pm. Member $185. Non-Member $225.

November 1 - OTTAWA - The Advocates' Society - The Ottawa Social - Norca Restaurant and Bar, Le Germain Hotel, 30 Daly Ave. 5:30pm-8:30pm. Your business card is your ticket. 

November 6 – TORONTO – Ontario Bar Association - Federal Court Bench and Bar Reception. The Wine Academy, 67 Richmond Street West. 5:00pm-7:00pm. CBA Member $30. Non-Member $35.
 
November 7 – KINGSTON – The Advocates’ Society – Kingston Pub Night. Red House, 369 King St E, Kingston ON. 5:30pm-7:30pm. Open to TAS Members, Non-Member Lawyers, and Law School and Articling Students.
 
November 11 – TORONTO – Ontario Bar Association – Dinner with Senior Estate Planners. OBA Conference Centre, 20 Toronto Street. 5:30pm Registration. CBA Member $97. Student Member $45. Non-Member $147.
 
November 13, 2019 – TORONTO – The Advocates’ Society – Young Advocates’ Social. Pravda Vodka House. 6:00pm. Your business card is your ticket.
 
November 14, 2019 – TORONTO – The Advocates’ Society – Class Actions Bench and Bar Reception. The Advocates’ Society 2700-250 Yonge Street. (Registration not open yet – Save the Date)
 
November 14 – TORONTO – Toronto Lawyers Association – Billiards with the Bar (fundraiser for Lawyers Feed the Hungry). The Rivoli, 334 Queen Street West. 6:00pm-10:00pm. $60.00
 
November 17, 2019 – TORONTO – The Advocates’ Society – Santa Claus Parade Party. Campbell House Museum, 160 Queen Street West. 12:30pm-3:00pm. Members Only Event. $25 per family + HST.
 
November 21 – TORONTO – Ontario Bar Association – Award of Excellence in Civil Litigation Dinner (Guy Pratte) The Ritz-Carlton Ballroom, 181 Wellington Street West. 6:00pm Registration. CBA Member $195. Non-Member $230.
 
November 27 – TORONTO – The Advocates’ Society – Estates Litigation Bench and Bar Reception. The Advocates’ Society Offices, 2700 – 250 Yonge Street. (Save the Date – Registration not open yet).

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

(Please double check dates/times/locations/prices directly on the associations’ websites as this information may change).

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Ethics of Freelance Lawyering: Is There Ever an Ethical Duty to Hire a Freelance Lawyer?

9/9/2019

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This is the fourth post in our series on the “Ethics of Freelancing” series. The previous posts in the series were on: "The Duty of Confidentiality"; "Avoiding Conflicts of Interest"; and "Marking-Up Freelance Lawyers' Fees". This post examines when a lawyer might have an ethical duty or obligation to engage the services of a freelance lawyer.
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“Competent Lawyer”

Rule 3.1-2 of Ontario’s Rule of Professional Conduct (and similarly the Rules of Professional Conduct in other provinces), requires that: “A lawyer shall perform any legal services undertaken on a client's behalf to the standard of a competent lawyer.”

Rule 3.1-1 sets out a list of skills and attributes of a “competent lawyer” including:
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  • “communicating at all relevant stages of a matter in a timely and effective manner”;
  • “performing all functions conscientiously, diligently, and in a timely and cost-effective manner”; and
  • “recognizing limitations in one’s ability to handle a matter or some aspect of it, and taking steps accordingly to ensure the client is appropriately served”.

A lawyer’s ability to competently handle files may diminish when overextended with excessive legal work – putting the lawyer at risk of breaching the Rules of Professional Conduct. Busy law firms or sole practitioners can mitigate against potential ethical pitfalls by outsourcing to a qualified freelance lawyer if they become overextended with legal work and become unable to meet their client demands in a timely, effective, and cost-effective manner.
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If proper procedures are followed, outsourcing work to a qualified freelance lawyer is one way to ensure that a hiring lawyer or hiring law firm is meeting its ethical obligations to its clients. By engaging the services of a freelance lawyer, the hiring lawyer increases efficiency and productivity while also reducing costs. This improves the overall quality of representation that the hiring lawyer provides to their clients!

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Lawyers Looking for Leads: September & October Networking Events

8/14/2019

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​We know you are all having a relaxing summer, but it is never to early to start thinking about attending some lawyer networking events in the fall!

We've compiled a list of upcoming social and networking events over the next couple of months to help you build your personal network and find potential referral sources: 

​September 10 - TORONTO - Law Society of Ontario - Opening of the Courts & Reception. 361 University Ave, Courtroom 6-1 at  3:30pm - followed by a reception at Convocation Hall, 130 Queen Street West. Open to members of the judiciary, lawyers and paralegals (articling/law students welcomed too). 

September 12 – TORONTO – The Advocates’ Society – Young Advocates’ Pub Night. Hothouse Restaurant and Bar, 35 Church Street. 6:00pm. Your business card is your ticket. Open to TAS Members and Non-Member lawyers, articling students, and law school students.

September 12 – OTTAWA – County Carleton Law Association – Opening of the Courts and CCLA Grand Reopening Reception. Ottawa Courthouse, 161 Elgin Street. 4:30pm
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September 12 – LONDON – Middlesex Law Association – Opening of the Courts & Reception. Museum London, Community Gallery. Procession leaves the Court at 5:00pm.  

September 12 - SUDBURY - The Advocates' Society (Young Advocates' Standing Committee) / Sudbury and District Law Association - Trivia Challenge. La Formagerie, 80 Elgin Street. 5:30 pm. $15 per lawyer, free for students.

September 16 - TORONTO - Ontario Bar Association - Women Lawyers Forum - Mix & Mingle. OBA Conference Centre, 20 Toronto Street. 5:30pm-8:30pm. $25.00

September 19 – TORONTO – Ontario Bar Association - Young Lawyers Division (Central) – Fall Social and Speed Networking. OBA Conference Centre 20 Toronto Street. 6:00pm-9:00pm. $20.00 Registration Fee.

September 20 – LONDON – Middlesex Law Association – The Women’s Innovation and Networking Event (WINE).  The London Club. 4:30pm-6:30pm. Members $55. Non-Members $75.

September 24 – OTTAWA – County Carleton Law Association – Annual Golf Tournament. GreyHawk Golf Club, Cumberland. 2:30pm. $141.25 (golf + BBQ Reception) $60.00 (just BBQ Reception).

September 25 – TORONTO – Young Women in Law – Speed Mentoring Event. McCarthy Tetrault 66 Wellington Street W, Suite 5300. 5:30pm. $40.00 for Members. $45 for Non-Members.

September 26 – BRANTFORD – Brant Law Association – Annual Golf Tournament. Northridge Municipal Golf Course, Brantford. 12:00. $80 (Golf, Lunch & Dinner) $30 (Dinner only).

October 3 – HAMILTON – Hamilton Law Association – Commercial Litigation Dinner. Lo Presti’s, 165 Jackson St. E. Hamilton. 5:30pm. $100.00.

October 3 - TORONTO - Ontario Bar Association - An Evening of Networking and Mentoring with Top Women Litigators. Dipchand LLP, 401 Bay Street, Suite 2100. 5:30pm registration. OBA/CBA Member: FREE. Non-Member:$15.00

October 10 – TORONTO – The Advocates’ Society / Ontario Bar Association – Retirement Dinner for The Honourable Heather J. Forster Smith. Arcadian Court 401 Bay Street. 5:30pm Registration. $200.00 (tax included). Black Tie Optional.

October 23, 2019 - TORONTO - The Advocates' Society 10+ Standing Committee - Mid-Career Mingle, for lawyers 8-18 years of call. Walrus Pub and Beer Hall, Pong Bar 187 Bay Street. Free for Members. 

October 29 – TORONTO – Ontario Bar Association – Award of Excellence for Alternative Dispute Resolution. OBA Conference Centre, 20 Toronto Street. 5:30pm Registration. CBA Member $110. Non-Member $140. Student Member $60.

October 30 – TORONTO – Women’s Law Association of Ontario – 100th Anniversary Gala. The Carlu, 444 Yonge Street. Dress Code: Formal. 6:00pm. Member $185. Non-Member $225.

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

(Please double check dates/times/locations/prices directly on the associations’ websites as this information may change).

Photo by Jens Johnsson on Unsplash
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Erin Cowling featured in Managing Partner Series

7/5/2019

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​Flex founder Erin Cowling was delighted to participate in the Young Women in Law Managing Partner Profile Series.

You can read Erin's profile here. 
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The Ethics of Freelance Lawyering: Marking-Up Fees

7/5/2019

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Lawyers and law firms who hire Flex freelance lawyers often ask us: How do I bill out the freelance lawyer’s time or cost to my client?

In response we have drafted our own “How To Guide: Billing Out & Marking-Up Flex Freelance Lawyers’ Fees to Clients” based on our research and analysis.  

While we recommend you review the full Guide, we know you are busy lawyers (!) so the short answer is that there are several options on how to bill out the cost of a freelance lawyer to a client:

1) pass the direct cost of the freelance lawyer to the client as a disbursement (although our courts discourage categorizing a freelance lawyer’s cost as a disbursement when seeking a costs award or on a costs assessment, noting that they should be characterized as legal fees (see cases in the Guide));

2) pass the cost of the freelance lawyer on to the client as legal fees at the same rate the hiring firm or hiring lawyer paid the freelance lawyer;

3) pass the cost of the freelance lawyer on to the client as legal fees and mark-up the rate paid by the hiring firm or hiring lawyer (note: you cannot mark up a disbursement); or

4) the hiring lawyer absorbs the cost themselves.

The most common question we receive is with respect to #3: Is it ethical for the hiring lawyer to mark-up the freelance lawyer’s legal fees before passing them on to the client?

After reviewing the analysis and research in our Guide, we’ve concluded that nothing in the Rules of Professional Conduct, legislation, or case law prohibits a mark-up of a freelance lawyer’s fees, as long as the mark-up is passed along as legal fees, and not a disbursement. The overarching principle and governing rule being that the ultimate fee charged to the client must be “fair and reasonable” in accordance with Rule 3.6-1 of the Rules.

This makes sense, as there is no denying that employee associates are a law firm’s main profit centre. It would be unfair to prohibit lawyers or law firms who do not have the resources to hire full-time employee associates from using independent contractor associates (i.e. freelance lawyers) as profit centres. Admittedly employees have corresponding overhead costs that independent contractors do not, however, law firms mark-up employee associates’ rates above and beyond those costs. Also, in both scenarios, the employee associate and the independent contractor associate (freelance lawyer) are working under the supervision of a lawyer or law firm that is taking responsibility for the work completed by the associate.

Bottom line: the employment relationship between the associate and the hiring lawyer or law firm should have no bearing on the ultimate fee that the client pays for that associate’s time.

It is less clear whether a hiring lawyer must obtain consent from the client before marking-up a freelance lawyer’s fees.

Once again, nothing in the Rules or in case law advises that clients must consent to any fee mark-up.  This is understandable as law firms with employee associates are not required to seek consent from their clients to bill out their associate’s time at $350/hr when that associate is taking home only $90/hr.

However, there is a 20-year-old comment in a letter (see p.6 of the Guide) from the Professional Conduct Committee of the Law Society of Upper Canada (now the Law Society of Ontario) advising that the mark-up must be revealed to the client and the client must consent.

Respectfully, we disagree with this position. The compensation paid by the hiring firm to their associates (either full-time or freelance) is “irrelevant”[1] and the overall concern should be whether the fee charged to the client is “fair and reasonable”. Requiring lawyers and firms who use independent contractor lawyers (often solo and small firm lawyers) to meet the additional burden of revealing the mark-up and seeking out their client’s consent (something large firms are not required to do) is unfair and discriminatory. Profit from providing legal services is both appropriate and expected of both large and small firms.

However, despite disagreeing with the position, in order to be in full compliance with the only commentary from the Law Society on this issue, we recommend obtaining the consent of the client before marking-up the fees. Hiring lawyers already need consent from the client to engage the freelance lawyer and to provide the client’s confidential information to the freelance lawyer. When obtaining this preliminary consent (most often in a clause in the initial retainer) the hiring lawyer can add a reference to the mark-up (a sample is provided in the Guide).

We hope this answers your questions on the ethics of marking-up a freelance lawyer’s fees, if not, please review the full Guide or contact us!
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This is the third post in our series on the “Ethics of Freelance Lawyering”. The first two posts were on the Duty of Confidentiality and Avoiding Conflicts of Interest.

Note: This article provides an overview only for informational purposes and does not constitute legal advice. 
 
[1] See Willowrun Investment Corp. v. Greenway Homes Ltd.  (1987), 21 CPC (2d) 129 (Ont HC), [1987] OJ No 803, appeal dismissed [1987] OJ No 1020 (CA) (discussed in detail in the Guide).

Photo by pina messina on Unsplash
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