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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.

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!

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.

Erin Quoted in Law Times Article on Issues that Can Arise when Lawyers Represent Themselves

12/1/2017

Erin Cowling was quoted in a recent article "Judge strikes lawyer's claim against firm" by Alex Robinson of the Law Times. The article discusses the case of Sachedina v. De Rose where a lawyer sued his former law firm for wrongful dismissal and chose to represent himself in the proceedings. The law firm brought a motion to strike the Statement of Claim as it contravened the Rules of Civil Procedure and breached solicitor and client privilege.

Ultimately the Court struck the 87 paged, 259 paragraphed Statement of Claim in its entirety with leave for the plaintiff to deliver a new Amended Statement of Claim within 30 days. The Law Times article addresses some takeaways from the case, including why it is rarely a good idea for lawyers to represent themselves, and the importance of protecting solicitor/client privilege in wrongful dismissal claims brought by lawyers against their former firms.

Living in Transitional Times: R. v. Picard

10/2/2017

By Heather Cross

“May you live in transitional times” could be the modern criminal defence bar’s equivalent of the ancient Chinese curse, “May you live in interesting times.”

The Ontario Court of Appeal’s decision in R. v. Picard illustrates the level of uncertainty that exists and will continue to exist in the criminal justice system while the “transitional exceptional circumstances” set out in R. v. Jordan remain in play. Jordan was a Supreme Court of Canada decision released last summer that reworked the framework for determining Charter applications for stays of criminal charges based on unreasonable delay.

Under the transitional regime, courts dealing with cases that were in the system prior to the release of Jordan have to apply both Jordan and Morin, the leading case prior to Jordan. If the court determines that it was reasonable for the Crown to have relied upon the law as it existed under Morin in regard to the delay in question, the delay will not count against the Crown.

Picard was a case that got caught between Morin and Jordan. While the trial judge dismissed the first-degree murder charge against Mr. Picard on the basis of unreasonable delay, the Ontario Court of Appeal overturned the decision, finding that the trial judge erred in her application of Jordan’s “transitional exceptional circumstances.” While conceding that the charges would have been stayed under Jordan, the Court of Appeal found they would not have been stayed under Morin, and it was reasonable for the Crown to have relied on Morin.

Incarcerated for nearly four years, released for nearly nine months after the charges were stayed, re-incarcerated after the Court of Appeal decision and now facing a trial set for April 2018, it has been a long road for Mr. Picard.

However, the general public likely has little sympathy for this “accused killer”, as he is referred to in the media. It is amazing what a difference the type of crime involved makes to people’s attitudes. When I was working on the Supreme Court of Canada case of R. v. Cody, most people immediately wanted to know what charges Mr. Cody was facing. After they discovered that Mr. Cody had been charged with relatively low-level drug dealing, they were ready to at least entertain the argument that the charges against him should be dismissed due to delay. However, their attitude changed when discussing charges for violent crimes. While they could understand the import of speedy trials, they could not accept people “getting away with murder” on a “technicality” like delay.

I understand the sentiment; however, it is important to recognize that it is sentiment, not logic. Logically, the level of Charter protection applied to a case should not depend upon what the accused individual has been accused of doing. When people read “accused killer”, they too often skip over the “accused” part and focus solely on the “killer” part, forgetting that accused people, whether they have been accused of shoplifting or murder, are legally innocent.

While the Court of Appeal’s decision focused primarily on other factors, the seriousness of the offence was certainly one of the factors it considered:

First degree murder is the most serious offence in the Criminal Code. Given the serious nature of the alleged crime, there is a heightened societal interest in a trial on the merits. The trial judge appears to have interpreted the Supreme Court of Canada’s decision in Williamson as standing for the proposition that the seriousness of the offence was neutral. As a result, she failed to take this interest into account. In Cody, the court makes it clear that, when doing the Morin analysis in the context of the transitional exceptional circumstance, the seriousness of the offence remains a significant consideration: paras. 70-71.This passage highlights what I consider to be one of the most positive changes made by Jordan: whereas under Morin, the seriousness of the offence could be taken into consideration as part of the 11(b) analysis, under Jordan it cannot.

In my opinion, if anything, 11(b) of the Charter should be applied even more strictly in cases involving serious crimes than those involving lesser crimes:

Firstly, individuals accused of serious crimes are often not released on bail and thus remain incarcerated until trial, with the result that legally innocent are held in jail for years.
Secondly, the victims and family members of the victims of serious crime deserve to receive a degree of closure through receiving a verdict in a reasonable amount of time.
Thirdly, given the severity of the sentences and the high level of stigma faced by individuals charged with serious crimes, it is simply merciful to ensure that the charges be resolved as soon as possible, rather than being left to hang over the the individual’s head.

Unfortunately, Mr. Picard’s case has been caught in the transitional maelstrom.* However, the Court of Appeal’s statement that the charges would have been dismissed under Jordan provides a ray of light for defence counsel bringing 11(b) applications in murder and other serious cases under Jordan. Now that the seriousness of the offence can no longer be considered, hopefully 11(b) will be applied equally to all charges. Whether we are dealing with an “accused killer” or an “accused shoplifter,” the focus should remain on the “accused” part.

* Word on the street (and in CBC News) is that Mr. Picard will be applying for leave to appeal to the Supreme Court of Canada. It will be interesting to watch how this plays out.

Heather Cross is a Flex freelance lawyer who assists other lawyers and law firms in the area of criminal law (drafting facta, appeal books, legal research and drafting) and assists with Supreme Court of Canada agency work.

5 Tips to Leverage Your Law Blog for Business Development

9/11/2017

While many lawyers and law firms have added blogs to their websites, several still struggle with successfully using their blog to generate business. To help, Flex has written “A Blogging Guide for Lawyers: How to Leverage Your Blog for Business Development”. In this Guide we provide our “Top 5 Tips” for using your law blog to generate traffic to your website and eventually have new clients retain your firm. You’ve invested time working on your blog, you should make sure you are getting the most out of your investment! You can access our guide here.

(And for lawyers who do not have a law blog but are planning on starting one, check out “Are You Planning to Start a Law Blog?” and “Let’s Chat About Legal Blogging” by Eva Chan, a lawyer turned social media strategist.)

Do You Offer Contingency Fee Arrangements in your Law Practice? Be Aware: LSUC Considering Regulatory Changes

8/23/2017

Many lawyers, in particular personal injury lawyers, are paid through contingency fee arrangements (“CFAs”), where the lawyers charge their clients a fee based on a percentage of the damages recovered by their clients (the amount of money the client ‘wins’).

It wasn’t until 2004 that the Solicitors Act and the Rules of Professional Conduct were amended to authorize CFAs in Ontario with respect to claims being brought by individual litigants (CFAs have been allowed in class proceedings since 1994). The legislature and the Law Society of Upper Canada (“LSUC”) recognized that CFAs can provide access to justice to people of limited means.

However, the legislation governing CFAs has been far from clear. Recently, Justice Hoy in the case of Hodge v. Neinstein commented on the language of the legislation:

It can fairly be said that the language in the Act has created difficulties for lawyers and clients for many years . . . Courts have also struggled with the language, since much in the Act is not clear: see, for e.g. Gilbert’s LLP v. David Dixon Inc., 2017 ONSC 1345 (CanLII), [2017] O.J. No. 1037 (Div. Ct.). The case before this court represents another struggle to make sense of the Act.

In addition to the confusing language of the Act, the Advertising & Fee Arrangements Issues Working Group of the LSUC has noted that, while CFAs play an important role in access to justice as they allow people who may not be able to afford lawyer’s fees to pursue litigation, some lawyers are taking advantage of these clients in vulnerable positions. The Working Group wants to enhance consumer protection for CFAs noting that there has been “widespread noncompliance with the current regulatory requirements governing Ontario’s contingency fee regime”.

After asking for comments on the current state of CFAs and holding a series of meetings with plaintiff and defence side personal injury lawyers in the spring of 2016, in June 2017 the Working Group suggested several changes to the current governance of CFAs in its Report to Convocation, including:

1) Making a mandatory standard form to be used for all contingency fee agreements.

2) Making changes to the Solicitors Act to require that contingency fees be calculated as a percentage of the all-inclusive settlement amount or all-inclusive amount awarded at trial, less disbursements. This differs from the current calculation that the fee is based on the percentage of the total settlement amount less recovery on account of disbursement and legal costs, which is difficult to calculate. This can also create an inherent conflict between the lawyer’s interest and the client’s.

3) Putting in place safeguards to ensure fees are clear, fair and reasonable including putting a limit on fees by a percentage cap or other means; potentially requiring the client to obtain independent legal advice in certain situations before the fee is paid; recording the time spent on CFA matters, and advising the client in the final account of the client’s right to apply to have legal fees assessed.

The Working Group wants to hear from lawyers, paralegals and the public about these potential changes by September 29, 2017. If you use CFAs in your practice it is important for the LSUC to hear your opinion on this matter. You can make submissions online here.

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