Choosing an appropriate professional to assist you with a legal problem can be a difficult task. Many people focus on ensuring that the proposed professional is qualified to handle their matter. In this respect, too many stop at confirming the proposed lawyer has a legal degree and a license from the law society. Some go further and look at reputation, the firm they practice with, and/or whether the lawyer’s personality will fit with that of the prospective client(s).
However, if your bicycle needs fixing, you wouldn’t take it to an auto mechanic shop. It follows, then, that in most if not all cases, one should not choose an immigration lawyer for a landlord tenant problem; nor a criminal law specialist to complete a will and estate plan. In essence, legal practice has become so complex that there is great value in obtaining the services of a lawyer who specializes or has a practice focus in the area in which you need help.
Another aspect that many people neglect to consider is the processes that a lawyer uses to complete legal work, including what non-lawyer staff they will have working on the client’s matter. Specifically, the more complex your matter and the higher the risk involved, the greater care one should take to determine how much work the proposed lawyer will actually complete on your file versus the work their non-lawyer staff will do.
The Law Society of Upper Canada (the “LSUC”) is the governing body for lawyers in Ontario responsible for:
- The education, licensing, supervision and disciplining of Ontario’s lawyers
- Ensuring that lawyers are competent, professional and ethical
The LSUC, therefore, has by-laws (the “By-laws”) and rules of professional conduct (the “Rules”) outlining the circumstances in which a lawyer may assign certain tasks and functions to a non-lawyer (such as a legal assistant, law clerk or paralegal) within a law practice. For example, a non-lawyer may be assigned to complete certain work within their competence as long as they are directly supervised by the lawyer. Furthermore, the lawyer is required to supervise the non-lawyer’s work at frequent intervals to ensure its proper and timely completion. Other principles of proper delegation mandated by the By-laws and/or Rules include (non-exhaustively) that the lawyer must:
- maintain a direct relationship with the client;
- assume full professional responsibility for the work;
- ensure that legal advice or legal opinions are not given by unauthorized persons, including non-lawyers, whether in the lawyer’s name or otherwise;
- ensure that non-lawyers are identified as such when communicating orally or in writing with clients or other parties;
- ensure that non-lawyers do not accept cases on their behalf;
- ensure that non-lawyers do not conduct negotiations without lawyer approval and client consent; and
- ensure that non-lawyers do not take instructions from clients without the lawyer`s direction
All of this being said, consider for a moment that in the context of a real estate transaction, hundreds of thousands to millions of dollars are at stake. Furthermore, in the residential real estate context individuals’ and families’ homes hang in the balance. For wills and estates matters, there are very modest estates to very complex and high value estates, more and more of which entail some aspect of estate litigation often times because a competent lawyer was not involved in the estate planning process.
Unfortunately, we are living in a day and age when legal services are becoming commoditized, particularly in the real estate and wills and estates arenas. Prospective clients are more inclined to price shop because they minimize the value of legal services; and many lawyers compete with one another on the basis of price rather than service, thereby feeding the notion that these services can be completed by anyone, including non-lawyers.
It is not certain how many or what proportion of price-shopping clients actually include in their comparison calculations an assumption that a non-lawyer working on their file will be properly supervised and that a lawyer will adequately review the non-lawyer’s work, having final say and observation of the work before it is executed or goes “out the door”. However, I often point out to price-shoppers that if they are being quoted a very low price, they should be weary that they are getting sound legal advice and services for their money. Furthermore, I encourage them to question and confirm the process that will be used to complete the legal work for which they are seeking to retain a lawyer. Specifically, prospective clients should always bear in mind that most lawyers are running a business. Thus, they have not only purposed to further the cause of justice and rule of law, but they do indeed have a profit motive.
It follows, then, that where a small price is being quote charged for a critical legal service, one should seriously question how much time a lawyer whose billable rate is $250 to $400 per hour, sometimes more, is spending on one’s matter such that they have adequately supervised and confirmed the work of the non-lawyer to whom they have delegated your matter. It’s easy to see that it doesn’t make business-sense for a lawyer to consistently spend the time required to ensure that client matters are properly completed if they will keep losing money, particularly where higher paying files are available.
Here, one should note that legal assistants, law clerks or paralegals often have special knowledge, making them an indispensable part of the team. However, the Rules are clear that a non-lawyer’s special knowledge is no justification for a lawyer not exercising professional and legal judgement for every client matter. Unfortunately, the increase in lawyer negligence cases are a testimony to this fact.
If you wish to receive competent and knowledgeable legal advice or services about a wills, estates or real estate matter, please contact Andrea Kelly.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.