 The Law Society’s Access to Justice (A2J) Committee has launched a Call for Comment on a proposed new type of licensee (in addition to the current lawyer and current paralegal licensees) called a Family Legal Services Provider or FLSP.
This new proposed category of licensee comes from the Family Law Action Plan implemented by the Law Society to “improve access to justice for Ontario families”. The Plan was the Law Society’s contribution to a joint action plan with the Province of Ontario, as a result of a 2016 report by Justice Bonkalo which reviewed whether the family justice system could be improved by expanding the delivery of legal services to providers other than lawyers. According to the Law Society, the most acute legal need for Ontarians is representation in family court, where approximately 60% of the parties are self-represented. The proposed FLSP would be a licensed paralegal trained specifically to obtain the FLSP license. No recommendation has been put forward for another legal service provider to take on this role, such as a law clerk. The training would include 6-8 months on a full-time basis or one year on a part time basis. The Law Society has also issued a Request for Information to gather information from accredited colleges and universities for the delivery of an educational training program to support the proposed FLSP licence. The details of the proposed new licensee can be found in the Access to Justice Committee: Family Legal Services Provider Licence Consultation Paper. In general, the proposed FLSP will be authorized to offer the following services:
The FLSP will be authorized to offer these services in the following areas of family law (with any exclusions or limitation to be set out in an applicable by-law):
The FLSP would NOT be able to engage in several out of scope activities, including:
The Call for Comment is “an opportunity to engage in productive dialogue with the legal community and the public on the most effective approach to improving access to family law services.” The Law Society has set out a list of consultation questions and is looking for comments and input to be submitted by November 30, 2020. The questions and information on how to submit your comments can be found here. Photo by Caleb Jones on Unsplash
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 We are replacing our usual curated list of networking events for lawyers blog posts, with a one-stop COVID-19 Information Page (updated regularly), with links to helpful resources and information for lawyers in Ontario:
1. GOVERNMENT OF ONTARIO Mandatory Closure of Non-Essential Businesses on March 24th 11:59pm: Lawyers are considered essential. See full list here. Ontario Limitation Periods and Procedural Time Periods Suspended: The Ministry of the Attorney General has advised that an Order in Council has been made under s. 7.1 of the Emergency Management and Civil Protection Act suspending limitation periods and procedural time periods. The suspension is retroactive to March 16, 2020. The Order in Council can be viewed here (PDF). Suspension of Residential Evictions: See Court Order here. Updates from Legal Aid Ontario can be found here. 2. GUIDANCE FROM THE COURTS and REGULATORS Each court has issued its own notice or direction regarding procedures to be implemented in the face of this pandemic, see below. Also an E-Hearings Task Force has been established with co-operation from the Law Society of Ontario, the Federation of Law Societies of Ontario, Ontario Bar Association and The Advocates' Society to expand virtual access to the courts. See more information in this notice from the Advocates' Society. The Ontario Court of Justice’s notice provides that unless you have an urgent criminal or urgent family court appearance between March 20 and May 29, 2020 do not attend court. Further information on scheduling matters and “COVID-19 Pandemic Planning” can be found on the OCJ’s website. The Ontario Superior Court of Justice has issued several important notices to the profession, litigants, and witnesses, which can be found on the OSCJ’s website. All civil, family and criminal matters scheduled to be heard on or after March 17, 2020 are adjourned. The court will currently remain open for urgent matters as described in its notice. UPDATE: However, as of April 6, 2020, the court will expand the matters that can be heard remotely beyond just urgent matters. Details were provided on April 2nd: Family and Civil and Criminal. There are also Notices for each region: here is the Notice for Toronto. For criminal matters, for any accused person who has a matter scheduled for any type of appearance in the Superior Court of Justice between March 17, 2020 and June 2, 2020, that matter is adjourned, unless directed otherwise by the Court. More information on criminal matters can be found here. Small Claims Court hearings have also been suspended until further notice. You may continue to file claims online. The Commercial List has also provided a notice of changes to its current services, provided by the Commercial List Users Committee. A similar notice has been provided regarding the Estates List as well. Good new for E-Filing: Here is the expanded list of documents you can now file on-line. The Court of Appeal for Ontario has suspended all non-urgent appeals from March 17 until April 3, 2020. Urgent appeals will be heard based on either written materials or will be heard remotely. Parties on non-urgent appeals can request that their appeal be heard in writing. For more information on what the Court considers “urgent” see its Notice to The Profession and the Public. Plus, all materials can now be e-mailed as the counter service is now closed. The Federal Court has produced a Practice Direction and an Updated Practice Direction and Order re COVID-19, with FAQs. All Federal Court hearings previously scheduled between March 17 and April 17 have been adjourned sine die. This includes hearings that were scheduled to proceed by way of telephone conference. For exceptions, see the detailed Practice Directions. The Supreme Court of Canada has closed the building to visitors but currently the Court remains open for case-related matters. To assist parties in filing their documents within the required deadline, documents may be filed by email. For more information see the SCC’s COVID-19 notice. Deadlines imposed by the Rules of the Supreme Court of Canada have also been suspended. More details here. The Canadian Securities Administrators is providing temporary blanket relief for market participants from certain regulatory filings, as a result of COVID-19, as announced by the Ontario Securities Commission. For information on the status of tribunals (Consent and Capacity Board, Landlord and Tenant Board etc.) see this handy list from the Ontario Bar Association. 3. GUIDANCE FROM THE LAW SOCIETY OF ONTARIO The LSO has provided regular updates on its website under: COVID-19 Response. Of note, until further notice, the LSO is allowing lawyers and paralegals to verify the identity of their client via video conference. This will be in compliance with By-Law 7.1. Further, commissioning of affidavits may also be completed via video conference. See the LSO website for more details. Also, for any lawyer or paralegal who has not paid their 2020 annual fee yet, the late payment fee will not be applied before April 6, 2020. The filing deadline for lawyers and paralegals to file their 2019 Annual Report is still March 31, 2020, however, you may file during the 60-day default period (ending May 30) without penalty. 4. GUIDANCE FROM LAW AND BAR ASSOCIATIONS Several associations and organizations have also prepared helpful guidance and tips to assist lawyers during this time: Ontario Bar Association: COVID-19 Action Plan and Tips for Lawyer Wellness. Canadian Bar Association: Statement on COVID-19 The Advocates Society: COVID-19 Update Toronto Lawyers Association: TLA Response to COVID-19 LawPro: Response to COVID-19 Federation of Law Societies of Ontario: Special Edition Real Estate Lawyers Update and Weekly Update (April 1, 2020). Criminal Lawyers Association: COVID-19 Blog Articles Ontario Family Lawyers: Public Facebook Group - To share ideas and concerns. Also, we remain open to assist lawyers and law firms with your overflow legal work. We are pros at remote working and there has been no interruption in our services. Please reach out to let us know how we can assist you. Stay healthy and safe everyone! Check back here often as we will be updating this post regularly. This is current as of March 30, 2020 at 8:00am.  It’s easy for lawyers to sit back and complain about the lack of progress in our profession, whether it be with advances in technology; access to justice; equality, diversity and inclusion, etc. However, now is your chance to get involved and (hopefully) make a difference: the next Law Society of Ontario (LSO) bencher election is taking place during the last two weeks of April 2019 and the nominations are now open!
What is a Bencher? Yes, the name is confusing, but basically a bencher is a member of the board of directors at the LSO. That “board of directors” is called Convocation. The “president” is called the Treasurer. (The LSO is considering changing the terminology.) Benchers play a critical role in the governance of the LSO and the regulation of lawyers and paralegals in Ontario. For example, they are holding a special convocation on December 10 to address the future of the lawyer licensing process in Ontario. There are 20 elected lawyer benchers from Toronto and 20 from outside of Toronto. There are also paralegal benchers, appointed benchers, and ex-officio benchers, however Convocation just approved changes to limit the rights of honorary benchers to contribute to debates. (Fun Fact: His Royal Highness Prince Charles, The Prince of Wales is an Honorary Bencher) Why Should You Run? We need a more diverse group of benchers who reflect the legal professionals in Ontario and the clients we serve. New lawyers? Racialized lawyers? Solicitors? Solo/Small firm lawyers? Women? We need you all. How Do You Apply? Go to the LSO’s webpage for the Bencher Election 2019. Download the Lawyer Nomination Form, fill it out (including the names and signatures of at least five lawyers that will nominate you) and submit it by 5:00pm on February 8, 2019. Are You Running for Bencher? Let us know! Photo by Parker Johnson on Unsplash  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 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!   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!  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. 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:
 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. Rules of Professional Conduct Amended to Provide Clarity on Obligations When Leaving a Law Firm7/13/2017  At the Law Society of Upper Canada's June 2017 Convocation the Rules of Professional Conduct were amended to add a new rule (Rule 3.7-7A) governing a lawyer’s professional obligations when leaving a law firm. This is a welcome amendment. Previously, there was a dearth of available guidance. While at one point there were guidelines on the LSUC website titled: Leaving a Law or Legal Services Firm (dated June 2009), they were removed some time ago. Lawyers have had to turn to case law and guidance from the Courts (see Robert Findlay Law Office Professional Corporation v Werner, 2015 ONSC 2955 (CanLII)) The amendments reflect recent changes to the Federation of Law Societies Model Code of Professional Conduct and are applicable to paralegals as well. What are a Lawyer’s Obligations? The new Rule states, in part: Rule 3.7-7A(2) When a lawyer leaves a firm to practice elsewhere, the lawyer and the remaining lawyers shall: a) ensure that affected clients are given reasonable notice that the lawyer is departing and are advised of their options for retaining counsel; and b) take reasonable steps to obtain the instructions of each affected client as to whom they will retain to act in relevant matters. The Commentary to the new Rule emphasizes that the client's interests are paramount. A client is free to decide whom to retain as counsel without undue influence or pressure by either the lawyer or the firm. The client must be provided with adequate information to make an informed decision about their legal representation. The leaving lawyer and the law firm must work cooperatively and professionally to ensure the client is not negatively affected. When notifying a client, the client must be aware that they have options: go with the departing lawyer, remain with the firm, or retain new counsel. The Commentary also notes that while it is preferable to prepare a joint notification setting out the required information, factors to consider in determining who should provide the notification to the client include: the extent of the lawyer’s work for the client, the client’s relationship with the other lawyers in the law firm, and access to client contact information. Where there is no agreement, both the departing lawyer and the remaining lawyers should provide notification. Furthermore, departing lawyers should notify their firms first (before their clients) that they are leaving the firm. This new Rule also applies to the dissolution of a law firm. Interestingly there is no specific commentary on non-solicitation. In the case of Robert Findlay the Court noted that “contacting a client for the purpose of solicitation of a retainer is not permitted”. No such express language can be found in the new Rule, although the commentary does say that clients should make their decision “without undue influence or pressure” and that clients must be notified of their options. For more information see the new Rule and the Report to Convocation regarding the amendments. Also, see Erin's blog post: What Are a Lawyer's Professional Obligations When Leaving a Law Firm, about the Robert Findlay case. |
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