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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.

Ontario Lawyers: Are You Aware of Your New "Equality & Inclusion" CPD Requirements?

2/23/2018

In September 2017 the Law Society of Ontario introduced changes to the continuing professional development requirements for lawyers (and paralegals), based on recommendations in the Final Report on the Challenges Faced by Racialized Licensees Working Group.

The LSO now requires the completion, between January 1, 2018 and December 31, 2020, of at least 3 Professionalism Hours that focus on advancing equality and inclusion in the legal profession. For each following year only 1 equality and inclusion hour must be completed. These hours also count toward the general CPD hours requirement.

This new requirement was implemented as part of the LSO’s ongoing “commitment to advance equality, diversity and inclusion in the legal profession and address barriers faced by racialized licensees”.

The LSO has adopted a “flexible and iterative approach” to the equality and inclusion professionalism hours and have outlined three objectives 1) inclusive legal workplaces in Ontario; 2) reduction of barriers created by racism, unconscious bias and discrimination; and 3) better representation of racialized licensees, in proportion to the representation in the Ontario population, in the professions, in all legal workplaces and at all levels of seniority. Programs that advance equality and inclusion or support these objectives will qualify for equality and inclusion professionalism hours.

How will lawyers know if a program is accredited for these new professionalism hours? You will see the new logo on the program marketing materials and agendas.

For more information on this new CPD requirement, please see Frequently Asked Questions about the CPD Equality and Inclusion Requirement.

3 hours over the next 3 years, does not seem like an onerous commitment at all and hopefully all lawyers and paralegals can quickly and happily fulfill this requirement. We look forward to some educational and interesting programs!

Erin Published in the American Bar Association's online Publication "Law Practice Today"

2/16/2018

Erin's article Ending the Gender Pay Gap in Law was recently published in the Women in Law Issue of the ABA's Law Practice Today digital publication.

The articles discusses the current disparity in remuneration between the genders and steps firms can take to end the gender pay gap.

The full article can be found here.

Law Society of Ontario Releases Results of Articling Survey

2/15/2018

The Professional Development and Competence Committee of the Law Society of Ontario commissioned a survey to research the experiences of articling students as part of its licensing process review. The survey was aimed at lawyers who had completed their articles between 2014 and 2017. A summary of the results was recently released.

The Law Society reported that while the survey was undertaken as part of the review of the licensing process, one section of the survey related to sexual harassment and racial and gender discrimination. The Law Society decided to make the report public to “add to the current conversations around harassment and discrimination, and to help facilitate a wider discussion and champion a necessary culture shift”.

One of the questions asked was: “At any time in your articling process, do you feel that you faced any comments or conduct related to your age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity, gender expression, sex and/or sexual orientation that was unwelcome?”

21% of the 1471 respondents of the survey answered “Yes”.

When asked: “At any time in your articling process, do you feel that you faced any unequal or differential treatment related to your age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity, gender expression, sex and/or sexual orientation?”

17% of the respondents answered “Yes”.

These numbers are not insignificant.

Other information in the survey revealed that while most of the respondents were paid above $40,000.00 (36% were paid between $40-60K and 32% were paid more than $60k) there are still articling students who are paid nothing (4%) or who are paid less than $20k (8%) for their articles. With 64% of the respondents indicating that they articled in costly Toronto or the GTA, it is hard to imagine how they can survive financially on no income or less than $20k.

A summary of the survey results can be found here.

Flex Lawyer Caitlin Beresford Authors Article on the Destruction of Indigenous Residential School Records

1/8/2018

On October 6, 2017, the Supreme Court of Canada ruled, unanimously, that the collection of documents for the independent compensation assessment process (IAP), a part of the Indian Residential School Settlement Agreement, should be destroyed unless survivors choose to have their records preserved. The Court found that the IAP process was meant to be a “confidential and private process” that claimants and alleged perpetrators could confidentially rely on.

Read Flex Lawyer Caitlin Beresford's thoughts and legal analysis of the case in her article "Indigenous residential school records can be destroyed, Supreme Court rules....but should they?"

Caitlin started her freelance lawyer practice in 2017 and she assists lawyers and law firms in the areas of Aboriginal law, environmental law and criminal law. Prior to freelancing, Caitlin articled at the Ministry of Aboriginal Affairs, conducting historical, archival, and legal research on various topics, such as land claims, the duty to consult, flooding, Métis, and Treaties, among others. She participated in land claim negotiations and community meetings, and provided litigation support. Once called to the Bar in Ontario, Caitlin moved to Yellowknife, Northwest Territories and worked as a senior legislative advisor, providing expert advice on federal, provincial, and territorial legislation and legal affairs relating to Aboriginal land claims and issues, parks and tourism, mining, access to information and privacy, and the arts. Since her return to Ontario, Caitlin has worked with a community legal clinic on Aboriginal family law and with the legal services branch of the Ministry of Education, providing legal advice to clients on Aboriginal law, the duty to consult, child care, education, administrative, and public law.

Contact us if you have questions about the paper or if you would like to hire Caitlin to assist your law firm or legal practice.

What's Happening at the Law Society?

12/8/2017

There have been some changes happening at the Law Society in the last few months. Below is a quick run-down of some of the new developments:

1.LSUC No More
On September 28, 2017 the Benchers voted 38 to 11 to stop using the name Law Society of Upper Canada. On November 2, 2017 the Benchers voted to change the name to Law Society of Ontario, effective January 1, 2018. While a survey was sent to licensees with options for the new name, some lawyers expressed displeasure for not being consulted on the name change in the first place. More on this update can be found here.

2.Statement of Principles
In December 2016, after a four year consultation process, Convocation adopted 13 recommendations contained in the “Challenges Faced by Racialized Licensees Working Group Final Report”. One of those recommendations was for a requirement that all licensees create and abide by an individual statement of principles that acknowledges their obligation to promote equality, diversity and inclusion generally and in their behaviour toward colleagues, employees, clients and the public.

Some lawyers opposed the implementation of this new requirement. Opponents argued that the requirement imposed beliefs on lawyers and is contrary to the Charter. On December 1, 2017, Bencher Joe Groia filed a motion before Convocation requesting conscientious objectors be exempt from the requirement. The motion failed by a vote of 16 to 38. More on the Statement of Principles can be found here.

3.Paralegal Update
Also on December 1, the Law Society approved, in principle, an action plan to help improve access to justice, which includes establishing a special licence for paralegals and others with appropriate training, to offer some family law legal services.

The action plan was developed in partnership with the Ministry of the Attorney General, in response to the 21 recommendations outlined in the Family Legal Services Review, which considered whether a broader range of service providers could deliver certain family law legal services. More on this initiative can be found here.

4.Contingency Fees
The Law Society also approved a report and recommendations developed by the Advertising and Fee Arrangements Issues Working Group dealing with the regulation of contingency fees “to facilitate legal representation at a fair and reasonable cost”. The recommendations include:

The introduction of a mandatory standard contingency fee agreement;
A 'Know Your Rights' guide for the public;
Disclosure requirements on completion of an agreement;
Requirement for legal professionals to publicly disclose the maximum contingency fee percentage they charge by practice area; and
New reporting information required on licensees' (lawyers and paralegals) annual reports to the Law Society.

More about the Report and Recommendations can be found here.

Erin Published in Precedent Magazine

12/5/2017

The latest edition of Precedent Magazine hit our desks and the internet today. Flex's founder and President, Erin Cowling, was happy to contribute an article on tips and traps in legal networking, and in particular, how to conduct an "informational" coffee with other lawyers. The article, "Networking Coffees From Hell", can be found here.

(Have you had some unfortunate coffee experiences? Do you have some advice for other lawyers?)

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