Eight Practical Precautions to Avoid Rule 48 Claims

This is taken from Know How Administrative Dismissal Claims Happen, and Take Eight Steps To Immunize Yourself Against Them which appears in the September 2013 issue of LAWPRO Magazine. The article also contains the Dimissal Motions: What is the Test? chart by Debra Rolph, LAWPRO’s director of resarch.

Rule 48 [of the Ontario Rules of Professional Conduct] claims arise when it is alleged that the dismissal of a claim was due to the lawyer’s negligence with respect to either a defended (Rule 48.14) or an undefended (48.15) action. Many of these claims have been very costly for LAWPRO. While certain Rule 48 claims can be repaired by speaking with opposing counsel or court staff, in larger centres (Toronto especially), repairs require a motion to set aside the dismissal and reinstate the action. Not only do these repair efforts consume significant defence costs, but success is not guaranteed. Both the courts and LAWPRO are losing patience with what is almost always an easily preventable error.

Administrative dismissal claims are almost universally preventable. Take these eight steps for your best chance at avoiding a claim. [Note that while Rule 48 is specific to Ontario lawyers, the tips below contain good advice for for all lawyers to keep files moving along in a timely manner]

1. Ensure that your tickler system is effective, is being populated properly, and that staff have been well-trained in the use of the system.
2. Consider using your tickler system or the “inactivity reports” or warnings that many law office accounting or practice management programs have to identify files in which nothing has happened for a specified period of time.
3. Don’t assume that you can wait to take prescribed procedural steps in an action while awaiting completion of medical reports, discoveries, or settlement negotiations. Instead of relying on an opponent’s informal or implied waiver, either meet litigation deadlines or obtain a written and signed “tolling” or “standstill” agreement confirming the parties’ mutual agreement to extend time.
4. Train staff to recognize status notices, and to bring them to the attention of counsel without delay. Supervise junior lawyers appropriately; ensure that they understand the operation of Rule 48, and pay attention to signs that suggest they are overwhelmed and at risk of missing deadlines.
5. Be prepared for unexpected work interruptions. Consider the possibility that an illness, injury or other contingency could cause your practice to be suddenly interrupted for a significant amount of time. Who would handle urgent client matters in those circumstances? Would that person be able, when reviewing your files, to identify matters requiring prompt action?
6. When time is passing and you can’t get instructions from the client or a replenished retainer, you can’t just let the file sit in abeyance. The court will be monitoring even if your client and the other side are content to let the matter slide. If you don’t consider the file from this angle and the matter is eventually administratively dismissed, all of a sudden the client may show great interest in his or her cause of action, and effectively pursue it through an action against you. Knowing when to get off the record is one key to practising safely.
7. As there is the potential for a malpractice claim, contact LAWPRO promptly for advice if you are required to attend at a show cause hearing.