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:
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.
If you are a lawyer or law student in Ontario, you’ve likely heard something about the debate over the future of the lawyer licensing process in this province. What is the best way to vet future lawyers? The Law Society of Upper Canada ("LSUC") wants to find out, and they want to know what you think too.
Articling vs. LPP vs. Neither
More students than articling positions resulted in the creation of the Law Practice Program (the “LPP”) in 2014, an alternative to articling based on four months of coursework and a four month placement. You may recall there was significant backlash in November 2016 when a committee recommended shutting down the LPP program after only two years. This backlash prompted the committee to issue a new report recommending that the LPP remain for at least two more years, and the benchers agreed.
Subsequently, the LSUC’s governing body approved embarking on a comprehensive review of the lawyer licensing process in Ontario. Lawyers have varying opinions on this topic. There are arguments that articling itself is racist. Some believe that the participants in the LPP program will carry a stigma throughout their careers. Many are adamant that articling is a waste of time, and should be abolished altogether, but that the difficulty of the bar exams should be increased. The LSUC wants to engage with the profession on this topic: they want a “Dialogue on Licensing”.
What is the Dialogue on Licensing? It will be a “series of facilitated in-person and webcast group discussions” and extensive consultations from April until June 2017. They want to formulate “long-term recommendations for an appropriate, sustainable lawyer licensing system in Ontario”.
So, you have an opinion, what can you do? You can subscribe to the mailing list and you can register for a discussion group near you. Each discussion group will focus on one of the four following topics:
Topic 1: The Need For Change
Topic 2: Market Dynamics and the Lawyer Profession
Topic 3: Licensing Examinations: Assessment of Entry-level Competence
Topic 4: Transitional Training
The dates, times, and places for each of these discussion groups can be found on the website as well as reference material to provide background information.
Don’t feel like participating in a discussion but have an opinion? You can make a written submission. The deadline for written submissions is August 1, 2017.
I encourage you to review the website for more information on this Dialogue. This is an important topic for all lawyers, not just those hoping to become a part of this profession.
In November you might have seen a Tweet, email, or LinkedIn share announcing the launch of the Coach and Advisor Network (CAN) at the Law Society of Upper Canada and you might have wondered, what is this? We certainly did. Our interest was piqued, so we did a little investigating.
According to the Final Report to Convocation from the Task Force dealing with this initiative the purpose of CAN “is to provide guidance and assistance in the development of competent legal professionals through coach and advisor supports that will be developed using a coherent, flexible, accessible and evolving approach.”
Basically, CAN provides lawyers and paralegals with access to “Coaches and Advisors” who are themselves lawyers and paralegals. The listed goals of CAN are to assist lawyers and paralegals in:
There really is no down-side to using this service. It is free (well, paid for by our LSUC fees) and you have access to experienced lawyers and paralegals to field your questions and provide you with some professional guidance. We can see this being most helpful for those just starting out, or who work in a sole practice, or who may not have a support network in place.
It is also a good way for more experienced lawyers and paralegals to give back to the profession. Lawyers and paralegals who want to volunteer as a Coach or Advisor must apply and are provided with several online resources and can participate in an “Introduction to the Coaching Model Workshop” (although it appears as though there is a wait list for this workshop). You can apply here to become a Coach and here to become an Advisor.
If you feel you would benefit from the services of a Coach or Advisor (i.e. if you want to develop a specific skill or have a question about a client file) you can request time with a Coach here and an Advisor here.
Do you rely on referral fees in your law practice? Are you a personal injury or real estate lawyer? Do you have concerns about how lawyers and paralegals are currently advertising their services?
The Law Society of Upper Canada (LSUC) is considering making amendments to the Rules of Professional Conduct and/or the by-laws that govern lawyer advertising and fee arrangements and would like to hear from you. You have until September 30, 2016 to provide your input.
What are the Issues?
As set out in the June Report to Convocation, the LSUC Professional Regulation Committee established a Working Group in February in order to “obtain a better understanding of current advertising, referral fee and contingency fee practices in a range of practice settings, including real estate, personal injury, criminal law and paralegal practices. . .” It appears from the report that the public, lawyers, or other interested groups have been urging the LSUC to limit referral and contingency fees and take action to ensure “truth and clarity” in advertising practices.
Your Input is Needed:
The LSUC is looking for input from licensees on a variety of issues, including those summarized below:
The Law Society of Upper Canada and the Canadian Hispanic Bar Association are hosting the first annual Hispanic Heritage Month celebration, tomorrow October 21, 2015 at Osgoode Hall in Toronto. One of the organizers of the event is Flex Lawyer, Laura Chaves Paz.
The Keynote Address will be by the Honourable Justice Joseph W. Bovard, Ontario Court of Justice, the first Hispanic lawyer to be appointed to the Bench in Canada, and remarks will also be made by Mr. Juan Carranza, recipient of the inaugural Canadian Hispanic Bar Association Achievement Award. It is great to see a lot of interest in this event, as according to the LSUC's website, the registration is now full.