We had flurries last night here in Ontario – but we’re not fooled: spring is around the corner. Time to roll up the slush mats and slide in the bug screens.

We challenge you, in the next month or two, to bring a little of the spirit of spring cleaning to your legal practice. What do we mean?

When work gets busy, many of us put certain non-mission-critical tasks on hold. But it’s important to remember that “on hold” should not be allowed to turn into “lost in the mists of time”. Lawyers must develop the discipline of regularly returning to and addressing the non-urgent details of their practice when opportunities present themselves.

You will know best what needs addressing in the course of your spring cleaning, but if you need some inspiration, here are our suggestions:

• Bill your files, and send reporting letters for matters that you’ve completed.
• Identify languishing files, and take the next step in each one. If you have no clear instructions for a particular file, call the client and find out how he or she wants to proceed.
• Make a list of good former clients for which you have no current work, and contact each of them to see if they have any legal needs (they may be doing their own spring cleaning!)
• Send thank-you notes. Handwritten ones, so rare these days, really make an impression.
• Book your vacation time, approve staff vacation requests, and identify the CPD events you will attend this year.
• File your taxes.
• Review your non-financial goals for the previous year. What did you achieve? Where did you miss the mark? What would you like to achieve THIS year?
• Address staffing issues: complete employee performance reviews, post job openings (and follow through with recruitment); make arrangements to cover staff leaves.
• Review your office lease, utilities, and your supplier contracts. Are you running your business efficiently?
• Consider your office technology and software. Does anything need updating? Are your antivirus subscriptions up-to-date?
• Tackle your reading pile, focusing on identifying news and legal developments in your particular area of law.
• Update your LinkedIn profile.
• Update your CV, bio, and your accomplishments file.
• Review your business card.
• Organize your email inbox, ensuring that client correspondence is properly filed.
• Shine your shoes, dry-clean your suits, and walk through your waiting area an office space as though you were seeing it for the first time. Does your office make an organized and professional impression?

When you feel like you’ve done a good job dusting out at least most of the cobwebs of your practice, shut the door behind you and take a walk in the spring sunshine. We think you’ll be surprised how energized and positive you feel about your work once the details are under control.

From a family law perspective, the greatest potential risk for a will-drafting lawyer lies in overlooking a limitation – arising under the family law – on the testator’s freedom to dispose of property. Those limitations tend to fall into these categories:

Matrimonial home

Under Ontario family law, a spouse is not entitled to dispose of a matrimonial home without the consent of the other, regardless of who has formal title to the property. As a result, a lawyer drafting a will who is asked to make a bequest of a property should take steps to determine whether the house is a matrimonial home.

Both spouses need not be living in the home for the property to be a matrimonial home, especially if the spouses have recently separated. For that reason, asking the testator about who lives in the home will not satisfy the lawyer’s duty.

A matrimonial home need not to be a house in the traditional sense of the word — it could easily be a condominium, a cottage, a ski lodge, or even a time share property. Be careful not to make arrangements for the disposition of a home where the testator does not have full rights of disposition!

Support obligations

The second potential limitation on a testamentary freedom comes in the form of support obligations. The testator may be required, by court order or under a domestic contract, to pay support to a dependent ex-spouse or child. Don’t automatically assume that an elderly testator is free of such obligations without asking appropriate questions. For example, a testator may have a permanent obligation to support a disabled adult child. Ensure that if the terms of the court order or contract require it, sufficient provision is made in the will for the making of support payments after the testator’s death.

Dependants’ relief claims

A testator’s duty to support dependants need not be expressed in a court order or a domestic contract to be operative. If, at the time of his or her death, the testator was providing financial support to a dependant, and that dependant is not adequately provided for in the testator’s will, the dependant may make a claim against the estate under a dependants’ relief provision (in Ontario, these are found in the Succession Law Reform Act). Crafting a will that is rendered invalid by these kinds of claims can lead to a claim against the will-drafting lawyer.

Most wills and estates lawyers are careful to ask testators if they have a spouse or children who have been left out of the will. However, a lawyer may not think to dig a little deeper and to ask the testator if there are individuals OTHER than biological children who may be dependants. For example, the testator may, at the time the will is drafted, be living with a partner who has a child still at home. While the testator may not consider that individual to be his or her child, the individual may well qualify as a dependant under the Succession Law Reform Act.

Beneficiaries under insurance policies and other investments

Though it’s not exactly a family law issue, it is important for will-drafting lawyers to confirm the identity of beneficiaries under insurance policies and similar investments, especially where the proceeds of these policies are expected to fund bequests made under the will.

In some cases, estates have run into trouble where the drafting lawyer wrongly assumed or was told that the estate was the beneficiary of a policy, later to discover that the beneficiary is actually a named individual. In an additional wrinkle, the testator may believe that his or her current spouse is the beneficiary, when actually, the policy was not amended after the testator’s marital status changed, and a former spouse is still the beneficiary.

Good wills practice requires that, where at all possible, the will-drafting lawyer review any insurance policies personally, keeping a copy on file.

Marriage revokes a prior will… but divorce doesn’t!

One point that is generally known to lawyers but not necessarily to their clients is that a testator’s marriage revokes any will created prior to the marriage, but divorce does not have the same effect, i.e., a will drafted after marriage remains in effect despite the testator’s divorce. This rule is likely more relevant to family lawyers (who should advise their divorcing clients of the advisability of preparing a new will) than it is to wills and estates lawyers. But where a wills and estates lawyer happens to be aware of a client’s divorce (for example, if a member of the same firm is representing the client in the family matter), it would be prudent (and good for business development!) to send the client a note advising of the operation of this rule.

Multiple spouses

Finally, there is the question of who, exactly, the testator means when he or she mentions a spouse. It is not uncommon for a person to refer to a long-term partner as “my husband” or “my wife” when in fact the parties are not legally married.

If a testator makes a bequest to “my wife, Serena Gonsalves” and it later turns out that Serena Gonsalves is the testator’s partner but not his wife, the error will often be easily overcome; however, consider the following scenario:

Testator was married in 1966 to Hannah Parker. The parties separated in 1988 after raising three children together. They were never legally divorced. Upon separation, testator and Hannah Parker sold their matrimonial home and each bought separate residences. However, the testator allowed Hannah Parker to continue using the cottage (which the testator inherited from his parents and to which he holds the title) for a holiday with the children every August.

In 1991, testator’s partner Serena Gonsalves moved in with him and they shared a condominium in the city. They spent most of every summer at the family cottage. They were never married.

In his will, testator leaves the condominium to “my wife, Serena Gonsalves”. He leaves the cottage to his children, with a gift over, should they predecease him, “to my wife”.

If the children predecease the testator, who gets the cottage, Hannah Parker or Serena Gonsalves?

 
As this example illustrates, it is essential, in wills drafting, to have a clear understanding of the testator’s family history, his or her relationships of dependence, and of the effect of any family law court orders or domestic contracts that may limit the testator’s freedom to dispose of assets under a will.

It is good practice, for wills and estates lawyers, not only to develop a questionnaire that addresses all of these issues, but also to document the testator’s answers to the questionnaire.

Finally, where there are court orders or domestic contracts that might affect the will, the will-drafting lawyer should ask to review these and should place a copy in the file. The lawyer should also ask to review any insurance policies on which the testator is relying in making bequests so that the lawyer can confirm his or her understanding of who the beneficiaries are under these policies.

This article by Nora Rock, corporate writer & policy anylist at LAWPRO, appeared in the August 2011 edition of the LAWPRO Webzine. All webzine and magazine articles can be found at www.lawpro.ca/magazinearchives

Throughout the course of the transaction, solicitors should always consider whether information received from any party, a title search, or other due diligence may be considered information material to the lender’s decision to advance funds under the mortgage. This includes information that may suggest that the property is being purchased at an inflated price. As well, information that suggests that the purchaser is misrepresenting the true circumstances of the purchase should be reported to the lender before the solicitor proceeds to close the transaction and advance funds under the mortgage.

In the case of the institutional lender client, the lawyer does not usually meet with the client prior to the closing but instead may have some exchange of written correspondence with the client. Typically, institutional lenders post their instructions on a website. It is up to the solicitor to check to see if there have been any changes to the standard instructions since the last time the solicitor acted for that lender.

The solicitor must comply with any specific written instructions from the lender to the extent possible and advise the lender of any limitations in the solicitor’s ability to do so. For example, some lenders will require a solicitor to ensure that a particular mortgage payee clause is included in the fire insurance policy for the property. However, given that the solicitor will only have access to an insurance binder prior to closing (which does not include the terms of the policy), it would be prudent for the solicitor to advise the lender client about the limitation on the solicitor’s ability to ensure that the requested mortgage clause is included in the policy prior to closing.

When institutional lenders sell a property under power of sale and suffer a shortfall on the mortgage, the real estate transaction is often reviewed by the lender to determine whether the solicitor that acted was somehow negligent. It is common for LAWPRO to see these types of claims. Therefore, it is especially important for solicitors to be diligent about ensuring that lenders are made aware of all material information prior to advancing funds under the mortgage.

In addition, in many cases, the mortgage lender is not necessarily an institutional lender such as a bank. In light of the commonly held view that real estate is a safe investment, many private individuals use mortgage investments as a means of saving for retirement. Private lenders often engage the assistance of mortgage brokers or trust companies in securing a mortgage investment. These intermediaries are often entrusted by the private lender to provide instructions to the solicitor. However, such retainers can be a minefield if the solicitor is not careful to confirm the identity of the client with the parties and the person from whom the solicitor is taking instructions. It is vital that the solicitor communicate with the “true” (i.e., beneficial) client with respect to all material information. In addition, of course, the Ontario solicitor must comply with the Law Society of Upper Canada obligations regarding the completion of documentation (typically a Form 9) which establishes that the scope of the solicitor’s retainer does not include providing advice regarding the value of the investment.

Furthermore, private mortgage investments tend to be higher risk than those entered into by institutional lenders such as banks. Therefore, it is important for solicitors to advise private lenders of information material to the decision to advance funds even if the private lender may be considered a sophisticated client. Such information may include arrears in a prior mortgage or tax arrears on the property. It is also important to ensure that the solicitor follows up with the client regarding all the necessary documentation required in the transaction such as investment authority forms. Once the solicitor’s duty to the client is discharged, the most prudent way to ensure protection from any eventual claim is to confirm all instructions in writing.

Always remember that solicitors owe a duty to protect the interests of lender clients in addition to the interests of purchaser clients.

This article by Nadia Dalimonte, claims counsel at LAWPRO, appeared in the November 20, 2012 edition of TitlePLUS Today.

Considering lawyers’ reputation for verbosity, this statistic seems counterintuitive, at least until you consider that some things are easier and more fun to talk about than others.

Fun to communicate with clients about: success (and our role in it); progress; winning; good news. NOT fun to communicate: failure (and our role in it); setbacks; losing; increase legal costs; bad news.

The risk: Failing to promptly and appropriately communicate bad news (and therefore, failing to take steps to mitigate setbacks) exposes lawyers to claims.

Uncomfortable delivering bad news? Here are some tips that can make it a little easier:

Do it immediately

When is immediately? The moment you understand the nature and implications of the unfortunate development. Do you know that a prospective client’s claim is unlikely to succeed the moment it’s been described to you at the intake appointment? Say so at that appointment. Have you just heard (or read) the words “motion dismissed”? It’s not going to be any less dismissed three months from now, and no, the client will not just forget you ever brought it… especially if you’ve also heard the words “with costs”.

There’s also a more personal reason to share bad news promptly: Carrying it around, undisclosed, in your own craw quickly accumulates an additional burden of anticipatory dread… it’s like a psychic burden with compound interest. Get it out and over with.

Explain thoroughly

If your client doesn’t understand the bad news, you haven’t communicated it well enough. Do not obfuscate. Do not use words like “obfuscate”. Provide a simple, thorough explanation of the development, the consequences (including economic consequences) and the client’s options for proceeding in the wake of the development.

Be honest about your role

There are two reasons lawyers often hesitate to deliver bad news:

The bad outcome is in no way the lawyer’s fault, but he or she just doesn’t like bringing people down.

While a positive outlook and empathy for the client are laudable, the client has the right to the information, and the lawyer has the responsibility to deliver it promptly. Delivering bad news is difficult. It’s important to remember that internalizing your client’s misfortune doesn’t help anyone. Inform the client immediately.

Much more often, a lawyer delays the delivery of bad news because:

The bad outcome is, at least in part, the lawyer’s fault.

Making a mistake is embarrassing. Covering up a mistake is unethical. When something goes wrong as a result of a decision or action on your part, communication is key.

When communicating about your role in a bad-news outcome, be honest but professional. On the one hand, an effusive apology, especially where you have made an honest error, is over-the-top and may come back to bite you in the event of a claim. On the other hand, a dishonest or incomplete response makes a claim more likely. Consider the following tips:

• Give a simple, factual explanation of what happened: “we lost the motion, and costs were awarded to the other side.”
• Do NOT deflect blame: “we would have won if we hadn’t gotten Judge XX. She’s a lunatic.” Or “if you had remembered to tell me about XX detail, I would have put it in the pleading and we would have won.”
• If asked why results were different from what you’d hoped for or predicted, give an honest explanation: “My interpretation of XX (point of law, precedent, statutory provision, contract term etc.) was incorrect” or “I believed that we had a reasonable chance of success, because of XX reason, and so I recommended XX course of action. Unfortunately, we were unsuccessful.”

If you describe your choices in clear and objective terms, and you explain why you made the recommendations and choices you did, your actions have a good chance of seeming reasonable to the client. This is especially true if you were careful, before taking action, to explain that success was not guaranteed and to describe all the potential outcomes, positive and negative, including costs consequences.

Provide options

While the client may be upset by the bad news, you should attempt to provide a basic summary of his or her choices and options in light of the development. This will help the client to begin thinking beyond the setback. Let the client know that you will await his or her instructions.

Some people have trouble remembering anything that is said to them immediately after bad news is delivered. Be prepared to explain the client’s options again in a later conversation, after he or she has calmed down and has had a chance to absorb the information.

Await instructions (or worse)

Will your client terminate the retainer? Maybe, maybe not – but you have little control over the client’s reaction. If you made a small or honest error and the client terminates the retainer over it, he or she may be the kind of client who is not worth keeping. If your error could form the basis of a claim, Ontario lawyers will also need to report the claim to LAWPRO.

If the client is a major or long-term client, and you have a track record of providing excellent service, appropriate communication of bad news is especially crucial. Long-term clients have a business relationship with you, expect honesty from you, and will often be able to put a mistake into proper perspective if their overall opinion of you is high. Handling setbacks appropriately, including by acknowledging your share of responsibility, may, in the long run, enhance your client’s trust in you instead of threatening it.

Regroup and de-stress

Lawyering is high-stakes, stressful work, especially when things go wrong. Once you have delivered the unpleasant but necessary message, reward yourself for doing the right thing by taking immediate steps to manage your own stress. Internalizing negative events helps no-one. Get out of the office and do something that makes you feel good.

A caveat: Two triple scotches and a pint of Ben and Jerry’s may make you feel good, but they won’t make you feel good about yourself. Lest you want to feel like a crummy lawyer AND a drunken sloth, find a non-destructive form of stress relief. Get some fresh air, play a game of tennis, talk the setback over with a close friend. Put it into perspective and move forward.

Learn from it

Dealing promptly with bad news doesn’t mean forgetting about it. Once the dust has settled, consider whether there are any lessons you might learn from the experience. Then file them away under “older and wiser.”

This article is by Nora Rock, corporate writer/policy analyst at LAWPRO.

• Limited scope representation does not mean less competent or lower quality legal services: For Ontario lawyers, the commentary to Rule 2.01 “Competence” specifies that a lawyer considering whether to provide legal services under a limited scope retainer must carefully assess in each case whether, under the circumstances, it is possible to render those services in a competent manner. and further, new Rule 2.02(6.1) provides that: “Before providing legal services under a limited scope retainer, a lawyer shall advise the client honestly and candidly about the nature, extent and scope of the services that the lawyer can provide, and, where appropriate, whether the services can be provided within the financial means of the client.”

  Thus, under the Rules, a lawyer and client can limit the scope of representation and agree on the means used to achieve the client’s goals or objectives. However, while the Rules afford the lawyer and client great latitude to limit the time spent or costs of the representation, the limitation must be reasonable under the circumstances. Limitations will not be considered reasonable if the time allotted is not sufficient to yield advice upon which the client can rely. Lawyers providing unbundled legal services owe the same duties of competence, diligence, loyalty and confidentiality to limited-scope clients that they owe to full-service clients. Don’t be tempted to fall below the required standard of care just because you are handling a matter on a limited scope basis.

• Identify the discrete collection of tasks that can be undertaken on a competent basis: Take the time to understand the specific tasks and/or legal issues on which the client is seeking assistance. Make sure there are discrete tasks that you can undertake on a competent basis, and consider how ethics and court rules apply to the tasks you choose to handle.
• Confirm the scope of the limited retainer in writing: as amended, new Rule 2.02(6.2) directs that “when providing legal services under a limited scope retainer, a lawyer shall cnfirm the services in writing and give the client a copy of the written document when racticable to do so.” Put in writing the discussions nd agreement with the client about he limited scope retainer; doing so will oth assist the client in understanding the imitations of the service to be provided nd document the extent of the retainer n case it is questioned at a later point in time. Rule 2.02(6.3) specifies some limited xceptions to the limited scope retainer riting requirement.
• Clearly document work and communications: at every step of the matter, take steps to ensure it is clear to the client what tasks you are or are not responsible for, and keep a record of all communications (information and instructions provided by the client, advice given by the lawyer). Lawyers can significantly reduce their exposure to a claim by controlling client expectations from the very start of the matter, actively communicating with the client at all stages of the matter, creating a paper trail that documents communications, and confirming what work was done on a matter at each step along the way.
• Be careful with communications when opposing counsel is acting on an unbundled basis: The commentary under Rule 2.02(6.2) provides that: “a lawyer who is providing legal services under a limited scope retainer should consider how communications from opposing counsel in a matter should be managed.” This recognizes that in the unbundled context a lawyer will deal with opposing counsel on the matters within the scope of a limited retainer and directly with a client on matters outside the scope of the retainer. The new Rule 6.03(7.1) provides some specific directions on how and when to communicate with opposing counsel and client in the unbundled context. Note that court rules and procedures have yet to be amended to specifically address some of the issues raised in the unbundling context (e.g., communicating with counsel who is only handling some issues on a matter; dealing with a client under a disability; going on or off the record; or the ghostwriting of pleadings).

Recognize that unbundled legal services are not appropriate for all lawyers, all clients, or all legal problems: Further to new commentary under Rule 2.02(6), limited scope representation will generally not be appropriate if a client’s ability to make adequately considered decisions in connection with the matter or representation is impaired due to minority, mental disability or for other reasons. That commentary states: “a lawyer who is asked to provide legal services under a limited scope retainer to a client under a disability should carefully consider and assess in each case how, under the circumstances, it is possible to render those services in a competent manner.” Lawyers should take care when they are providing unbundled services to clients who are or might be under a disability.

Be careful providing further assistance to a client after a limited scope retainer is terminated: In many cases, a matter handled on a limited scope retainer basis will have started before the lawyer became involved and/or will continue on after the work the lawyer agreed to do was completed. If the client comes back for further assistance, the lawyer should make sure a new full or limited scope retainer is in place.

There isn't a simple magic formula for mapping out a career in law. You will make some decisions on where you would like to go, but there are many things outside your control which will impact on where you will end up. Factors such as economic conditions, personal circumstances, where you articled and even a bit of luck will affect the career path you will follow.

This article outlines some of the 20 tips that will help you find your way to a satisfying and successful legal career.

1. Ask yourself what makes sense for you. This is a very personal question. Be honest – very honest. You will be happier and more successful if you can find the place where you best fit in. Do your best to figure out where that is.

2. Review the options. . . . A job at a large firm may mean a bigger salary, but also in some cases a bigger time commitment. Some lawyers enjoy and thrive in the big firm environment, others do not. One-third of the lawyers in private practice work in firms with just 2-10 lawyers. . . .

5. Are you ready for sole practice? Ask yourself whether you possess some or all of the skills listed below. Rate your skills by circling the appropriate number, using a scale of 1-5. . . .

11. Get networking. . . . Many law students initially think they do not have “contacts” in the legal profession. Don’t sell yourself short. If you are active in social media you already have a network that probably includes people from the legal world or people that are connected to people in the legal world. If you aren’t on social media, you can create a network with minimal effort. For example, see page 18 for an article about how to get started on LinkedIn. . . .

13. Getting delegated tasks done right. . . . As an articling student and new lawyer you can count on having many tasks delegated to you. Here are some tips to help you maximize the learning opportunities that delegated tasks present and to make sure the tasks delegated to you are successfully completed . . . .

16. Make time for marketing . . . . Some lawyers find rain- making very natural and easy, others struggle with it, and some are oblivious to the need to market their services. In today's competitive environment, marketing and client development are essential. Marketing legal services does not lead to instant results. Not everyone needs legal services at the moment. Good marketing does pay off, but generally only slowly and with a steady effort over the long haul. Therefore is it critical that you market yourself on an ongoing basis, even when business is good. . . .

19. Take care of yourself . . . . At times you will find the demands of articling stressful, as well as physically and emotionally exhausting. That likely won’t change once you become a lawyer. You can count on being exposed to high levels of stress on a daily basis. . . .

[Read the full LAWPRO article at http://www.practicepro.ca/lawpromag/20Steps-for-a-successful-transition.pdf

Do you have what it takes to be a sole practitioner? The 2012 Student Issue of LAWPRO Magazine included a self-assessment test to help identify your strengths and weaknesses and gives you a better idea of whether you’re cut out for solo or small firm practice. It asks you to rank your skills (in such areas as marketing and financial planning) on a scale of 1 to 5.

Click here to take the test and see if you're ready for sole practice.

Also available to Ontario lawyers is the new Member Assistance Program offered by Homewood Human Solutions. If offers counselling, health & wellness resources, child and elder care assistance and other confidential services.

But there are strategies for improving your chances of making the right decisions early on, and one of the best is to find a mentor — especially if you will be working in a setting where you don't have natural access to other lawyers' expertise.

Finding the right person and gathering up the courage to ask him or her to mentor you are often the hardest steps; you can make it a little easier, however, by taking advantage of an existing mentor referral service. Here are some examples:

• the Law Society of Upper Canada Mentorship Program
• the Ontario Bar Association's Mentorship Program
• the Advocates’ Society has two initiatives, a “roster mentorship” that provides practical advice and a “shadowing” mentorship program that provides an experienced lawyer that will attend court and provide a critique: click here for more information; and finally;
• several CPD providers offer “mentoring dinners” that usually consist of an opening presentation highlighting different scenarios or issues, followed by a small group discussion over dinner and then a summary discussion.

Once you've found your mentor, have a look at practicePRO's "Managing a Mentoring Relationship" booklet to help establish the terms of engagement for the mentorship, and to learn more about how, under certain conditions, LAWPRO will waive surcharges on claims made against lawyers acting as mentors in a mentoring relationship.

Click here to take the survey.

On occasion, lawyers have engaged in activities that have made them front-page news, subject to embarrassment and possibly lawsuits or discipline complaints. Not only can this kind of attention be bad for a lawyer’s reputation, it can also damage or even destroy client relationships.

That’s reason enough to be aware of and avoid activities that could lead to these types of outcomes. But there is another – equally if not more compelling – reason to avoid them: In some instances, it may be the law firm, not LAWPRO, that foots the bill when these activities lead to problems.

Remember that the LAWPRO policy provides coverage that is tailored to your role as a lawyer. The policy affords protection against claims for damages arising out of a claim, provided liability is the result of an error, omission or negligent act in the performance or failure to perform “professional services” for others.

What will or will not be covered can be very fact-specific; but generally you will be insured for the work you do with your lawyer hat on, and not insured for activities where no solicitor/client relationship exists and no legal advice or service is provided.

This article highlights some of the dangerous activities that can lead to problems that will likely not be covered under the LAWPRO policy.

1. Don’t infringe copyrights or trademarks: The very foundation of the web is the ability to easily and broadly share information with others. When lawyers or law firms are posting information online they will sometimes include trademarks or information upon which others hold the copyright. With “cut and paste” it is easy and tempting to use large amounts of information from another source in a newsletter or in content for the web. Remember there are few, if any, scenarios where it can be argued that the use of trademarks or copyrighted information without permission was in some way professional services for a client. So, be especially careful to avoid the use of trademarked or copyrighted information unless you have consent, as this may result in expensive claims that are not covered by professional liability insurance.
2. Be careful what you say about others: The web’s informality makes it easy for the unwary to fall into saying something inappropriate about someone. Aggressive or nasty comments made in an unguarded moment or in the heat of a contentious matter can well result in a defamation claim. Making a nasty comment to the media, online or elsewhere, in the course of providing professional services for a client isn’t worth it. The circumstances in which the comments were made can determine whether the LAWPRO policy coverage is triggered as well as whether the policy exclusion addressing defamation of character applies Often, no coverage is available for defamatory comments made about a non-client. If you want it, some protection for defamation type claims may be available through other forms of insurance offered by commercial markets. Consider speaking with your insurance broker about this.
3. Be wary of what others say in replies to your social media conversations and in comments on your blog: The defamatory comments of third-parties can also expose a lawyer to defamation law suits. Comments on blogs and social media tools allow total strangers to take part in very public conversations. Although a real benefit for sharing information, these conversations can have very negative consequences when someone posts something inaccurate or unpleasant – both of which can be judged in the biased eye of the beholder. Carefully monitor (and consider moderating) the comments posted to your personal or firm blog and the replies to any conversations you have using social media tools. You want to avoid being sued due to (allegedly) defamatory comments that appear in conjunction with you or your firm.
4. Avoid the unauthorized practice of law (UPL): Lawyers need to appreciate that any content they post on the Internet can easily be accessed from anywhere in the world. Ontario lawyers practising law in other jurisdictions by providing legal services on the Internet should respect and uphold the law of the other jurisdiction, and not engage in the unauthorized practice of law. Clearly indicating the jurisdiction(s) in which you are licensed to practise in your online content and posts will help potential clients understand where you can and cannot practise. You want to avoid a negligence suit in a jurisdiction outside of Canada involving non-Canadian law.
5. Avoid online dangers: Social media sites and other online tools offer lawyers all sorts of interesting new ways to interact with people in both personal and work spheres. There are, however, some risks associated with using them. Some of these risks are obvious, some are not, and many won’t be covered by the LAWPRO policy. The “Social Media Pitfalls to Avoid” article in the December 2009 issue of LAWPRO Magazine highlights the risks – and how to avoid them. You might want to review that article if you have not already done so.

Most new lawyers find that the most logical starting place for building an online persona is on LinkedIn. LinkedIn allows users to build a network of professional contacts, and to be introduced to new contacts via other users’ networks. Not on LinkedIn yet and want some guidance? See our article geared specifically at students: “Essential LinkedIn dos and don’ts for law students .”

If you’re already active on LinkedIn and want to take the next step, you may want to consider creating a professional Twitter handle. Even if you’re unsure about what to tweet about at first, you can learn a great deal by following other lawyers, law firms, corporations, journalists, and others in your chosen field. (How about following us? We tweet @LAWPRO and @practicePRO.) For tips on how to stay out of trouble on Twitter, see: “Essential dos and don’ts for Twitter users.”

Go on, get social! Just remember to use your judgment.

Law school can be a steep learning curve, and stepping into the world of practice can seem even more daunting. One of the most common complaints I hear from recent graduates is that they feel under-prepared to deal with the day-to-day realities of practice that they are confronting as articling students or recent calls.

While there may never be a substitute for hands-on learning, here are a few lessons my colleagues and I wish we had learned in law school to make the transition into the world of ‘lawyering’ easier.

Courses that teach practical skills really do make a difference
That legal writing class might just turn out to be the most important course you’ll take in law school. Writing academic articles on complex legal topics won’t necessarily prepare you forthe days when you’ll need to draft a factum in a succinct and straightforward manner. Drafting is an art. It’s worth taking the time to hone the skill before entering practice. The same goes for advanced research techniques.

Ask questions & seek a support system
Your time as a student is the perfect time to be asking as many questions as possible of professors, principals, peers, and others. After all, you are there to learn. Don’t pass up an opportunity to discover something new out of fear or embarrassment. . . .

Know where to go for help
. . . The Law Society of Upper Canada provides how-to guides for topics ranging from administrative law to wills and estates. Many professional organizations, such as the Advocates Society, also provide resources for members. The practicePRO website provides useful precedents, such as retainers and statements of account.

Pay attention to the process
Whether you are volunteering at a legal clinic or preparing for a moot, get in the habit of document ing your steps. Not only will this make you familiar with the processes, it will provide useful training in documenting files.

This does NOT mean that you need to contort yourself and your interests into a one-size-fits-all mold to have any hope of finding a job. In fact, when we asked law firm spokespeople from across Ontario to describe the perfect candidate, we were surprised with the variety in their responses (see our article “Finders & keepers: Recruiting and retaining the best talent”). As it turns out, law firm hiring strategies vary considerably, depending on factors like firm size and firm location. For example, one large firm recruiter noted that the firm grows mainly by hiring back articling students, and so experience is not as important to them as having basic qualities that can’t be “trained into” a candidate: sound judgment, strong interpersonal skills, and a capacity for teamwork. By contrast, the heads of a smaller firm in a smaller town emphasize the need to be able to trust a candidate with the carriage of a file when the partners are away – an approach that suggests a higher value on maturity and independence.

The message? Law firms are just as varied as the lawyers who apply to work for them. As you prepare for your job search, consider your own particular strengths. Somewhere out there are firms – or even non-traditional legal jobs – looking for the skills and qualities YOU have to offer. Taking the time to find them means your best chance at a career tailor-made for you.

Here's the article. Do Slaw readers agree with the choices? What books do you think are essential for Canadian law students?

What is professional liability insurance?
Professional liability insurance is designed to indemnify lawyers against the consequences of a lawyer’s liability for a client’s loss. For this reason, only lawyers in private practice are subject to the mandatory insurance requirement.

What is private practice?
Private practice, for the purpose of LAWPRO’s insurance program, is the delivery of professional services (including advice) to anybody who is not the lawyer’s employer. . . .

What kinds of lawyers are exempt from the mandatory insurance requirement?
In general, lawyers working as in-house counsel, who are employed by the government, who work in education, or who work for a clinic funded by Legal Aid Ontario are exempt from the requirement to pay insurance premiums. Lawyers who do pro bono work that meets certain criteria, or who are on temporary leave, may also be exempt.

If I'm not going into private practice, can I just forget about insurance?
No. The Law Society of Upper Canada requires that ALL members of the bar (not just those in private practice) confirm their practice status every year. This means that you must either pay for insurance, or file an application for exemption from the insurance requirement. . . .

How do I find out more?
For more information, please visit our website at lawpro.ca. Information specific to new calls can be found at lawpro.ca/newcalls.

In 2012 LAWPRO decided to extend the reach of the magazine beyond lawyers already in practice to the law schools on Ontario. At first it was a magazine stand featuring the LAWPRO brand and the latest regular issue of the magazine, but the idea quickly evolved to creating a student-focused issue of the magazine. We wanted to a) introduce students to LAWPRO and what we do b) get the risk management message instilled as early in these new lawyers careers as possible and c) provide content that would be of particular interest to students and new lawyers.

The result was the first issue of the Student Edition of LAWPRO Magazine. It featured such articles as 20 Tips for a Successful Transition from Student to Lawyer, LinkedIn Dos and Don'ts for Law Students and What I Wish I Knew in Law School, written by LAWPRO's articling students.

We plan for the student edition to be an annual issue, and students can look forward to the next copy this fall at all the Ontario law schools.

The page has two aims: 1) to help newly minted lawyers understand more about things like managing a practice, client relations, practice finances, marketing, and legal technology; and 2) its an introduction to the risk and practice management articles, precedents, checklists and other materials practicePRO offers to lawyers.

From a claims prevention perspective, we expect the information we have posted will help reduce the likelihood of claims over the course of a legal career and it is great to get the risk-management message out to lawyers that are just starting out in practice.

Our New Lawyer Resource page has been featured in ads in law school yearbooks, and can also now be reached through a QR code on the LAWPRO Magazine stands that have been placed in each if the Ontario law schools.

The CBA also has a page of resources for students and new lawyers called Starting Out, featuring articles on better public speaking, going solo, networking and keeping a firm afloat in tough economic times.

This critical task is not as easy as it might seem on first thought. The hiring firm must have sufficient information to complete an internal conflicts check, while at the same time making sure that no confidential client information is disclosed by either the transferring lawyer or the hiring firm.

Here are some steps you may want to take to identify potential conflicts of interest when dealing with a lateral hire:

• Ask for a current curriculum vitae so that you can review the background of the transferring lawyer. You will want to look back at least five years, or to the time of articling if this was less than five years ago.
• Check with the lawyers in your firm, or search within your conflicts system if it has the data to identify any matters on which the transferring lawyer’s previous firm was on the other side.
• Ask the transferring lawyer for a list of major clients and the matters he or she worked on (but not any confidential information, including the identity of clients if that is confidential) and have your firm’s conflicts person run these names through your firm’s conflicts database.
• In an interview (not in writing) ask the transferring lawyer if he or she is aware of any potential conflicts due to work done while at his or her previous firm.
• Ask the transferring lawyer if he or she sat on any boards, and if so, have your firm’s conflicts person run this information through your firm’s conflicts database, including, ideally, the name of the entity, the directors and officers.

It is critical that both the firm and the transferring lawyer take an honest and critical look at any potential conflicts situations. Unfortunately, the serious assessment of conflicts often does not occur until the very final stages of the transfer when the lawyer and firm are committed to making the transfer happen. a strong desire to hire a transferring lawyer should not lessen the need to identify and fully assess potential conflicts, and to take appropriate steps to deal with them if necessary. This may include erecting confidentiality screens or seeking client consents. In some cases, it may mean that the transferring lawyer cannot be hired or that the hiring firm may have to send existing clients to another firm.

Informing all lawyers and staff about the transfer once the transferring lawyer starts at the new firm will help identify potential conflicts that were not identified in the pre-transfer screening, and will ensure that appropriate confidentiality screens are put in place. The CBA Conflicts of Interest Task Force’s Toolkit (www.cba.org/conflicts) has an excellent model of a Lateral Hire Memorandum.

Resist any temptation to overlook or ignore any real or potential conflicts that arise when a lawyer transfers from one firm to another. A failure to deal appropriately with these conflicts only delays the
inevitable. In all likelihood the firm will have to refer any clients with a conflict to another firm, and it may even face a malpractice claim as a result of a conflict.

This article originally appeared in the January 2012 issue of LAWPRO Magazine.

However, sitting on a client’s board can be problematic for a number of reasons – from both the lawyer’s and the corporate client’s perspective. The following is a very brief introduction to a few of the problems that can flow from a lawyer’s decision to sit on a client board, and some suggestions for avoiding them.

Insurance coverage gaps

Problem: From an insurance perspective, a Ontario lawyers considering sitting on a client’s board need to be aware that LAWPRO’s mandatory insurance program extends coverage only to the provision of “professional services” as defined in the policy (lawyers outside Ontario should check with their own insurer). Acting as a corporate director does not fall within the definition of professional services.

Prevention: A lawyer who sits on a corporate board should ensure that he or she is
covered under a Directors’ and Officers’ liability coverage policy, and/ or an Outside Directors’ Liability policy.

Potential for conflicts of interest

A common source of claims against lawyer-directors is conflicts of interest. A lawyer who advises not only the corporation but also another party – for example, an individual corporate officer whose interests may diverge from those of the corporation – is in a conflict position. The following scenarios may help to highlight some of the
possible conflicts that arise in these situations:

• lawyer acts for individual founders of the corporation, then later the corporation;
• lawyer advises more than one shareholder in a closely-held corporation (for example, family members);
• lawyer sits on the board of a merged corporation after having acted for one half of the corporation so formed;
• lawyer advises both the corporation and individuals within the corporation, when these parties’ interests do not match; or
• lawyer sits on the board of a corporation while having a financial or other interest in a party with which the corporation does business.

Prevention: Conflicts problems tend to creep up on the unaware. A lawyer’s best
defence is to continually ask him or herself the question “who is my client?” If the answer is ambiguous – or there is more than one right answer – the lawyer cannot afford to ignore his or her instincts, and must terminate the working relationship with one (or both) clients. Unfortunately, it may then be too late to undo the damage. Conflict problems can arise at any point in a working relationship, making this issue fairly intractable (and thus dangerous) from a liability perspective.

Potential for loss of solicitor/client privilege

Problem: Sometimes a lawyer is invited to sit on a client’s board so that he or she will be available to provide legal advice about company matters. While this arrangement is convenient, it does not reflect the traditional context for the provision of professional legal services. The duties and role of a corporate director and the director’s responsibility to the shareholders do not overlap neatly with the duties of a lawyer to a client. A lawyer sitting on a corporate board will be expected to consider non-legal issues and to comment
on business (non-legal) directions and decisions.

Where an individual provides legal advice, business advice, and mixed legal-andbusiness advice to a board or to its members, the statements made may NOT meet the established legal tests for solicitor-client privilege. While a lawyer can attempt to set up the conditions for the client’s later assertion of privilege (for example by saying, on the record, something like “speaking, now, in my capacity as legal counsel”), that attempt may not always be determinative, and the client may lose the benefit of privilege for certain communications.

Prevention: A lawyer who chooses to act as a director can attempt to distinguish legal advice from business discussions by causing the record of meetings to reflect the distinction. The lawyer might also, if asked for legal advice during board proceedings, advise that he or she “will get back to” the asker, and then do so in a context more consistent with lawyer-client communications. Neither option is foolproof, and the lawyer would do well to formally advise the client of the risk of loss of solicitor-client privilege that board participation poses.

Potential for loss of ability to represent client

Problem: Related to the foregoing discussion of communications during board meetings is a separate risk: the risk that being a party to those discussions might trigger the eventual termination of the lawyer-client relationship. Consider the scenario in which board proceedings – observed by a lawyer – lead to eventual litigation. If the lawyerdirector is called as a witness in those proceedings, he or she could easily become a party adverse in interest to either the company as a whole or to other individual directors. As a
result, the lawyer would lose the right to represent the corporate client (and the corporation would lose its counsel).

Prevention: Though rare, this contingency is likely not preventable.

In conclusion: lawyers who choose to sit on clients’ boards may be motivated to do so for very generous and practical reasons; however, the risks may outweigh the benefits so provided to the client. These risks are not only risks to the lawyer, but in many cases, to the client as well. Our advice: think carefully, considering the interests of all parties, before agreeing to sit on a client’s board of directors.

This article by Nora Rock, corporate writer & policy analyst at LAWPRO, appeared in the January 2012 corporate-commercial issue of LAWPRO Webzine. All LAWPRO Magazie and Webzine articles can be found at www.lawpro.ca/magazinearchives

In his reasons appointing himself as the case manager, Chief Justice J.D. Rooke undertook a meticulous categorization and analysis of several iterations of what he labeled “organized pseudolegal commercial argument" (OPCA). Apparently, litigants who favour these litigation strategies have plagued Canadian courts (notably in Alberta and British Columbia – but Ontario has not been immune) for several years. Many of these litigants – who may call themselves “Detaxers”, “Freemen-on-the-land”, “Sentient-Men”, “Sovereign-Men”, or “Moors”- typically purchase legal advice or precedent documents from vendors Rooke J. calls “gurus”. Gurus rarely appear on behalf of their customers; rather, they purport to teach quasimagical advocacy techniques designed, primarily, to challenge the court’s jurisdiction over at least some portion of the litigant’s identity.

The decision makes for entertaining reading; but the frustration, expense, and delay that these litigants create for the bench, the bar, and opposing parties are real.

Justice Rooke’s rationale for devoting what must have been weeks of work to the drafting of these motion reasons is multifaceted:

1. A primer for judges and counsel: By creating a written catalogue of these strategies, he has created a primer for bench and bar, allowing future victims of these litigants to quickly understand (to the extent possible!) what they are up against.
2. Deterrence for litigants: Rooke J. has sought to demonstrate to would-be adopters of these tactics, through his review of the OPCA jurisprudence, that these approaches are unsuccessful.
3. Sanction suggestions: The decision provides support, at least in obiter, for fairly significant sanctions against these litigants: Not only does Rooke J. recommend that they bear enhanced costs penalties, but he suggests that, in appropriate cases, they be fined (by the Registrar) for noncompliant filings.
4. Procedural recommendations: Justice Rooke seems to have determined that making allowances for these litigants serves only to legitimize their methods. To avoid doing this, he makes certain procedural recommendations, including: that the court refuse to accept documents that litigants attempt to hand up to judges in open court; and that unorthodox filings be accepted (and marked) as relevant only to future costs determinations, and NOT as standard filings.

Readers who make it to the end of the Chief Justice’s opus are also rewarded with practical tips for counsel. First, lawyers can avoid being part of the problem by refusing to notarize (and thereby legitimize) OPCA documents. When faced with an OPCA litigant as an opponent, counsel can minimize everyone’s pain by:

1. performing “legal issue triage”: OPCA litigants, according to the court, bury legitimate legal issues requiring the court’s attention in a “…bog of cryptic documentation, spurious argument, irrelevant legal maxims, and stereotyped and caricatured court conduct.” Counsel have a duty to spare the court the work (and their own clients the cost) of wading through this bog, by identifying legitimate legal issues and making those the sole focus of their opposing arguments;
2. educating the court about the OPCA phenomenon, including by calling expert evidence about these tactics identifying appropriate decision precedents (including Meads), and recommending useful sanctions;
3. collecting evidence that can assist the court in identifying the “guru” peddling the particular formula adopted by the litigant; and
4. recommending an enhanced security presence in the courtroom in appropriate circumstances (because some of these litigants are potentially dangerous, may need to be escorted from courtrooms by force, or may attend court with a rowdy entourage).

Why is all this relevant from a risk management or LAWPRO (or other E&O insurer) perspective? First, having an OPCA litigant for an opponent almost always increases the cost and difficulty of litigation for a client, and this risk must be appropriately managed. Second, many OPCA litigants tend to include opposing counsel in the litigation net.

Still feel the need to read Meads v. Meads for yourself? I thought you might.

This article by Nora Rock, corporate writer/policy analyst originally appeared in the February 2013 edition of the LAWPRO Webzine.

But high-profile cases aside, when does a lawyer’s conduct cross the line into unprofessional conduct, and what are the costs and other implications?

These questions are answered in a paper by Daniel Naymark of Lax O'Sullivan Scott Lisus LLP and LAWPRO’s litigation unit director and counsel Jennifer Ip. It was presented at the Advocates’ Society’s 2012 Symposium on Civility and Professionalism.

This paper is a practical guide to lawyer behaviours that Canadian courts have deemed uncivil or unprofessional, and to the kinds of judicial sanction − of lawyers and their clients both – that those behaviours have attracted.

Follow this link to Naymark and Ip’s cautionary tale: “Judicial Sanction of Uncivil and Unprofessional Conduct.”

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The Evernote team

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Ontario lawyers should note that LAWPRO’s standard professional liability insurance policy provides coverage only for the “professional services” that a lawyer provides as a lawyer. It does not provide coverage for liability arising as a result of a lawyer’s actions as a director. Lawyers in other jurisdictions should check with their own insurers.

Accordingly, here are some questions you should ask yourself before serving as a director on the board of a charity or not-for-profit organization.

1. How well do I know this organization? Does it engage in activities that have an especially high risk of attracting legal liability?
2. What are my motivations for joining this board – business, personal, community service, etc.?
3. Will I be able to devote my time and energy to ensure that I fully meet my obligations in this role?
4. Do I understand the risks and responsibilities that come with directorship? Am I aware of the statutory and common law liabilities that I may be exposed to?
5. Does my firm have a policy regarding its lawyers serving on the boards of charities and not-for-profits?
6. Is the charity or not-for-profit organization a client of my firm? If so, does my firm have a policy regarding its lawyers serving on the boards of charities and not-for-profits that are clients of the firm?
7. Will the charity or not-for-profit organization agree to indemnify me for liability arising out of my role as director?
8. Does the charity or not-for-profit organization maintain directors and officers (D&O) insurance to protect me from personal liability arising out of my role as director?
9. If so, what are the details of this D&O insurance? What policy terms, conditions and exclusions are likely to apply? What are the limits of liability per claim and in the aggregate?
10. Is there an outside director liability (ODL) insurance policy in place that may respond to claims against me arising out of my directorship? If not, should I purchase such insurance, whether from the Canadian Bar Insurance Association (CBIA) or through my insurance broker?
11. Is there any other insurance in place or optional coverage that may be purchased that may cover my activities as director? Have I consulted my insurance broker? (Ontario lawyers note: LAWPRO’s optional excess insurance policy does not provide incidental D&O coverage, but some excess professional liability insurance policies may do so. If so, does that coverage “drop down” to afford primary protection?)

This checklist appeared as a supplement to the Summer 2007 "Making your Mark" issue of LAWPRO Magazine. All past LAWPRO Magazine articles can be found at www.lawpro.ca/magazinearchives

• I will complete a conflicts check before opening a file: Conflicts of interest can lead to ugly and expensive malpractice claims. The best time to catch and avoid a conflicts claim is during a thorough conflicts search before a file is opened. A thorough search looks for conflicts involving both the client(s) and others connected with a matter.
• I will open a file for every matter I handle: Doing “off-books” work not only bypasses firm administrative procedures and checks, it often leads to short-cuts and mistakes. Open a file for every matter you handle to make sure that the file is properly handled.
• I will use a tickler system for limitations periods and time sensitive tasks: Missed deadlines and procrastination are the second most common cause of malpractice claims. A formal tickler system that tracks critical deadlines and tasks is the best way to avoid missing deadlines.
• I will have signed retainer agreements or engagement letters in all my files: Start out on the right foot with a written retainer letter or agreement. It establishes your terms of engagement and should clearly identify who the client is and what you are retained to do.
• I will send a final reporting letter at the end of every retainer: A final reporting letter clearly signals the end of a retainer to a client. Along with a final account, it should summarize the work that was done for the client, including outlining the key terms of any documents or agreements, the outcome of the matter and any ongoing steps or obligations that the client has.
• I will not handle matters I am uncomfortable with: Dabblers are more likely to face a malpractice claim. If you are unsure or hesitant about handling the matter for any reason (e.g., unfamiliar with the area of law, a potential conflict exists, a matter for a relative or friend, or a demanding or difficult client), get appropriate help or refer it to another lawyer.

These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.

You can watch video of the submissions here.

You can review more information about the case, including the parties' factums, on the SCC site.

• I will carefully explain how the matter will proceed: While you may have handled a particular type of matter hundreds of times before, remember that your client is going through it for the first time. Make sure the client understands the process and steps that will occur as the matter proceeds.
• I will avoid legal jargon when explaining things to my clients: Don’t use legal jargon when explaining things to clients as it may confuse them.
• I will give the client a realistic indication of how long the matter will take: Clients will want their matter resolved as quickly as possible. Give them a true indication of how long the matter will take, and highlight any issues that might arise and delay a resolution of the matter.
• I will provide the client with a full picture of all costs and disbursements: Clients don’t want to spend money on legal fees and they will want to keep fees as low as possible. If you quote a range of fees they will remember the lower number. Give your clients a clear explanation of all fees and disbursements that they will or might incur. Be honest here – don’t quote a lower cost to please them. In the litigation context you should include a warning that they could be responsible for paying the fees of the opposing party.
• I will clearly explain to the client all possible outcomes or results: Clients always want a positive outcome to their matter. Unfortunately, not every client will get what they want. Make sure your clients have a clear appreciation of all possible outcomes, including negative or unpleasant ones.
• I will answer all my clients’ questions to their satisfaction: Carefully listen to and address any questions your clients ask. Do the questions indicate that they don’t understand something or that there could be another relevant issue you need to give advice on? Confirm the above information and advice in writing: In a personal meeting or phone call, unsophisticated and stressed clients who have worries and financial concerns may struggle to listen and understand what you are telling them. To avoid any possible confusion, confirm important discussions and advice in writing.
• I will immediately highlight for clients any unexpected changes that arise: Unexpected things can happen through the course of handling any matter. If something happens that will change the process, timing, costs or outcome of a matter, make sure the client is immediately made aware of the change and why it happened. Confirm this advice in writing.

These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.

]]> http://www.slaw.ca/2013/01/25/resolutions-to-better-set-and-control-client-expectations/feed/ 0 http://www.slaw.ca/2013/01/21/resolutions-to-avoid-real-estate-claims/ http://www.slaw.ca/2013/01/21/resolutions-to-avoid-real-estate-claims/#comments Mon, 21 Jan 2013 16:22:53 +0000 Dan Pinnington http://www.slaw.ca/?p=56086
• I will ensure I meet with my clients in person at least once: In most real estate practices the staff handle many aspects of the client’s matter. However, ultimate responsibility still lies with the supervising lawyer. Take the time to meet with the client in person to review the transaction and understand the client instructions, particularly with respect to the client’s intended uses of the property. Not every matter is straightforward, and you don’t want to have to be addressing a problem that was only noticed the day the deal is to be closed, or never noticed at all.
. . . [more]

• I will document the important conversations and communications on my files: It is just not practical to document everything on every matter, but you should document as much as you can in some contemporaneous manner (i.e. notes in a file, a formal confirmation letter or quick email to the client, detailed time dockets, a memo to file, etc.)
• I will make specific efforts to document and confirm major discussions and decisions on my matters: For the sake of reconstructing the work that was done on a matter, you want to make sure you record advice or instructions that involved significant issues or outcomes, and major client instructions or decisions (e.g., strategy discussions, settlement discussions, changes to previous decisions or advice), and send confirmation of key discussions and decisions to your client.
• I will be especially careful to document situations where my client wanted me to follow a course of action that I did not recommend or that could have possible negative outcomes: Every action you take and decision you make will be judged with harsh 20/20 hindsight. Clients have a tendency to not remember the advice they received as to negative outcomes, longer times for resolution or higher costs. Protect yourself in these situations by confirming these discussions with your client.
• I will also be extra careful to document my files with difficult or emotional clients: Take extra care to document your file if you are dealing with difficult or emotional clients as they may not hear or understand your advice (no matter how hard you try to communicate it) and are more likely to complain about it later.
• I will get signed directions for major decisions on a matter: On major decisions, a signed direction is your best option for confirming that a client did indeed give instructions to follow a particular course of action.
• I will use written offers to settle: Offers to settle have to address many details, and there are many opportunities for confusion or mistakes. A written offer to settle can help eliminate misunderstandings and miscommunications and make sure all details of a settlement are documented and confirmed.
• I will not document nasty or embarrassing things: In moments of frustration you might find yourself mad at your opposing counsel, the opposing party, the judge handling your matter or even your client. These thoughts should not be documented in your file as they could come back to haunt you in the event they are disclosed to your client in a malpractice proceeding.
• I will capture all manners of communication in my file: Some clients will use email as their primary communications channel. In this situation documenting email conversations is important to tracking what occurred on a matter. However, there is no need to print and store every email in the paper file, as long as you have the emails stored in an organized and regularly backed-up electronic form so you can retrieve them if necessary.
• I will keep draft versions of documents in the file: Draft or interim versions of a document can assist in showing how a file progressed, in particular if there are marginal notes reflecting discussions with clients.
• I will keep a copy of the final version in the file: For obvious reasons, having a copy of the final signed document in the file is essential. But, consider whether you really want or need to have the final signed original document in your file. Sending the original to the client means you can avoid the onerous and potentially costly obligations of taking care of the original as long as it is in your possession, including in your closed file storage.
• I will send interim and final reporting letters on my files: At significant milestones and especially at the end of the matter, reporting letters can confirm what work was done and the successes obtained for the client, and next or further steps to be undertaken on a matter, by you or the client. A final reporting letter should confirm that the retainer is terminated. (And in the final reporting letter don’t forget to ask a happy client for a referral to friends, family and business colleagues – some clients think you may be too busy to take on new matters, so politely disabuse them of that notion!)

These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.

These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.

• I will promptly return phone calls: Unacknowledged or unreturned phone calls are some of the most common complaints about lawyers. To avoid these problems, set and control client expectations at the very start of the relationship. Establish a reasonable policy on how quickly calls will be returned (e.g., within 24 hours, by the end of the next business day, or whatever is appropriate for your area of law or clients). Inform the client of the policy, and abide by it. Set up a mechanism for staff to return calls within the established timeframe if you are not available.
• I will promptly reply to e-mails: In like fashion, emails that go unanswered are also a common client complaint. Some clients expect virtually instant answers to e-mail messages. Control this expectation by setting a policy on email communications (e.g. how and whento communicate by email, how long replies will take, alternative contacts and alternatives to email).
• I won’t make clients wait in reception: Do you remember how you felt the last time you were made to wait for an appointment when you had arrived on time? Don’t make your clients feel the same way. Get off the phone or stop whatever else you are doing if a client is waiting for a scheduled appointment.
• I will deliver on promises of performance: When it comes to deadlines, you can guarantee a happy client if you under-promise and over-deliver. Be realistic and don’t make promises to deliver if you cannot keep those promises. Be realistic in your assessment of what you can accomplish and by when. In like vein, be careful not to promise an unlikely or impossible outcome or resolution on a matter. Extra caution is warranted here as clients will hear what they want to hear when it comes to a promised outcome. To protect yourself, clearly document your advice to clients on what the expected outcome will be.
• I will be prepared for client meetings: Don’t kid yourself – clients can instantly tell when you are not prepared. Shuffling through papers, using the wrong names or facts, and other similar clues make clients think to themselves that they may have the wrong lawyer. Make sure you are properly prepared for client meetings.
• I will keep my clients informed and will communicate with them during long periods of inactivity: Clients always want to feel their matter is moving toward a resolution. But in litigation and other areas of law there can be long periods of inactivity as a matter of course. Keep them informed of the status of a matter and when they can expect it to move forward. Send copies of all incoming and outgoing correspondence to the client.
• I will not send large bills without warning or explanation: This scenario calls for an in-person meeting to explain the charges to the client. Better yet, avoid it altogether with a strict retainer policy.
• I will apologize if I fall down on the level of service my clients deserve: If you fail to do any of the forgoing things or otherwise come below an acceptable level of client service, acknowledge it to them, sincerely apologize, and make sure it doesn’t happen again.

These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.

These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.

• I will get a sufficient retainer at the start of a matter: At the start of the matter ask for a retainer that is sufficient to do all of the initial work on the matter. Ask for a retainer that will cover all the work – asking for less gives the client unrealistic expectations about fees and means you are facing collection issues when you ask the client to replenish the retainer.
• I will ask clients to replenish the retainer before it runs out: Monitor your work-in-progress so that you don’t perform work for which you may be unable to collect payment, and request replenishment of the retainer before it is exhausted.
• I will bill my matters regularly: Keep the client informed of the ongoing costs of the work you are doing for them by sending a regular bill. Consider billing monthly, or send accounts at milestones to report how the matter is progressing.
• I will stop work if a retainer is not replenished or I am not paid: Monitor your work-in-progress and stop working if a retainer is not replenished. Don’t wait until just before a court date to try and get off the record on a matter.
• I will not sue for fees: Suing a client to collect an unpaid account almost guarantees you will face a counter-suit alleging negligence. In most cases that allegation of negligence will be completely unfounded, but it still will trigger a duty to report a claim to LAWPRO.
• I will use the reports in my accounting software to monitor retainer amounts, WIP hours and outstanding accounts: Most law office accounting packages have reports you can run that will tell you retainer amounts in trust, WIP hours and outstanding accounts. Use these reports to proactively manage your retainer and billing practices so you don’t find yourself in a position of needing to sue a client to collect an outstanding account.

These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.

• Hubbel and Steven LLP hubbelsteven.com
• Vaughan and Palmer www.vaughanandpalmer.com
• Farrell Mallon and Co Solicitors farrellmalonlaws.com
• William Mensah Chambers williammensahchambers.com

Some of the text on these sites appears to have come from a national Canadian firm and a well-known Atlantic Canada law firm. Some of the lawyer bio content appears to have come from the same Altantic Canada law firm. These sites look very professional. They include area of practice information, lawyer biographies, contact information (street addresses, email addresses, phone and fax numbers) and even RSS feeds. They are very convincing, other than the fact that the group photo of the partners is actually a cast photo from Law and Order UK.

We learned of the first fake firm when a Toronto lawyer informed us of a website being used to lend legitimacy to an inheritance collection scam targeting a person in Europe. The target of the scam dealt with a European lawyer who in turn contacted a Toronto lawyer he knew from prior dealings. Our investigations lead us to the other three sites. Contact information in domain name registrations lead us to another site that is no longer operating.

We assume all four of these sites are being used for similar scams, although at this time we are not aware of anyone in Ontario being targeted. However, it serves as a reminder of the international nature of fraud attempts and how easy it is to mimic real firms to lend a scam some legitimacy.

Cross posted on AvoidaClaim

These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.

• I will use electronic timesheets and enter my own time: Paper timesheets are error-prone and inefficient because they require double entry. The efficiency, extra speed, and greater accuracy of entering your own time on electronic timesheets make this resolution a no-brainer.
• I will enter time contemporaneously as I complete tasks throughout the day: Trying to create time entries for work done in the distant past is time-consuming, and not likely to be very accurate or complete. Studies have shown that lawyers gain up to 20 per cent in their billable time when they docket their time contemporaneously to doing their work.
• I will review my dockets and “to do” list at the end of the day: At the end of the day spend a few minutes reviewing your dockets, and make any necessary corrections or additions while things are still fresh in your mind.
• I will use standard billing codes and include details in my dockets: Many law office accounting programs have standard billing codes, for example, “conference with client,” or “review of correspondence.” While these codes are convenient (and you should use them for this reason), they don’t include enough detail. Having detailed time entries is a great record of the work you did on a file, and for communicating to the client the details of that work. A detailed entry should look something like this: “telephone conference with client re details of weekend access problems.” Or, “drafting of correspondence to client confirming instructions to skip zoning search.” Clients will have fewer fee complaints when your accounts have detailed time entries.
• I will record every minute I spend on a file: Don’t pre-judge and write off time spent on a file by not recording it on the day it was done. Wait until your final or interim bill is prepared on the file, at which time you can properly judge all the factors that determine what should be billed, including the time that was spent on it, the outcome, etc. You can easily make adjustments to an account by editing it at this stage. And, if you do elect to write-off certain billing entries, show them on the bill, as they are still part of the work done for the client, notwithstanding the write-off.
• I will docket all my administrative and other non-billable time: To properly evaluate where your time is being spent, your efficiency, and ultimately the profitability of your practice, it is important that you understand how much time you are spending on non-billable tasks, and what they are. You can’t do this without knowing how much time you spend on non-billable tasks and what those tasks are.
• I will review detailed time and billing reports for my practice: Practice management software and accounting products can give you detailed reports that breakdown your time by file, client, matter type, practice area, etc. Review these reports to better understand where your time is going, and where you can make changes in how you allocate your time.

These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.

These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.

These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.

• I will take a real lunch break:Make time at midday for exercise, or invite an old friend to lunch. Catch up on business, but don’t make that your primary focus. Laugh and enjoy the time. The time away from work will pay stress-reduction dividends.
• I will read a good book: Find and read a book, fiction or non-fiction, on a subject that really interests you and that – this is the important part – is not connected to the law. Reading helps renew the mind and spirit!
• I will get help if I need it: The fine line between “ordinary” stress and a mental health problem or addiction can be easy to miss, so it’s important to tune in to how you feel. Prolonged feelings of hopelessness or unusual anger; complaints by others about your mood or behaviour; and making mistakes because of stress or addiction symptoms are just a few clues that you may not be able to manage your stress on your own. There are many places you can turn for help, including to your family physician or a trusted confidante. Know when to reach out.
• I will make time for exercise: Exercise is one of the most effective ways to combat the effects of stress on the human body. Commit to making exercise a regular part of your schedule. You are most likely to succeed if you start with short exercise sessions three times per week, then build to longer more frequent sessions. (As lawyers, we have to add: “Consult your doctor before beginning a new exercise regime.”)
• I will go outside: Mounting evidence suggests that exposure to the natural world improves mental health and cognition for many people. Need to brainstorm ideas for an article or an argument? Try thinking on your feet as you walk around a local park; or park farther away so that you can walk a few blocks before and after work. Spend a few hours every weekend outdoors.

These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.

Some of the resolutions we have collected focus on specific areas of law. Others will help you with various law practice operation and management issues – and many will help you avoid or at least lessen the likelihood you will face a malpractice claim. A good number of the resolutions will have a positive impact on your personal life.

So watch this space over the coming days for resolutions:

• for better file and matter management
• to avoid litigation claims
• to better set and control client expectations
• to avoid real estate claims
• to better document your files
• to avoid corporate/commercial claims
• to avoid doing things that avoid clients the most
• to avoid family law claims
• to avoid fee disputes and make more money
• to avoid wills and estates claims
• to capture more time (and make more money)
• to avoid criminal law claims
• for stress relief, wellness and balance
• for a better practice

With small steps, over time, our resolutions can help you can make big changes. Good luck with your efforts!

Just this week LAWPRO has dealt with two firms that were the victims of major frauds on their trust accounts. The time just before the holidays should not be a time for bad thoughts and frauds targeting lawyers, but unfortunately the fraudsters aren’t cooperating. We frequently see an increase in fraud attempts around the holidays as the crooks behind these frauds will actually use the distractions of the holidays to help them dupe lawyers and law office staff.

In one case the lawyer was duped out of $90,000 on a bad-cheque collection scam – the same type of scam LAWPRO has warned Ontario lawyers about many times. And what is really frustrating for us, the name of the scammer client (Cheng Wu of Wu Co. Ltd.) was posted on this blog. The lawyer could have avoided being a fraud victim by taking 60 seconds to cross-check the name of his client against the names of confirmed fraudsters on AvoidAClaim. See our Fraud Fact Sheet for a list of the red flags of a bad cheque fraud.

The other fraud reported to us is a scary one. A southern Ontario firm has suffered a six-figure loss from its trust account after an apparent infection by the Trojan Banker Virus or a similar virus. As a result of the infection, access passwords were passed to the fraudsters when the bookkeeper logged into the firm’s trust account. The trust account was at a major Canadian bank. This is a summary of what LAWPRO currently understands happened. See the bottom of this post for advice on how to protect yourself from being a victim of this type of fraud.

What is the Trojan Banker Virus

The Trojan Banker Virus is designed to steal financial account login information. Trojans are spread by e-mail attachments, visits to a website or the installation of a software program (usually something that looks harmless like a screensaver or game). Opening an attachment, clicking on something on a website or running a program will install the virus and infect a computer. After installing itself on a computer, this virus works as a keystroke logger to capture passwords and other sensitive information (i.e., it tracks the keys that are pressed and sends that information to the hacker). It can also create a “back door” that lets the hacker access and control the computer from a remote location.

This type of virus can also monitor web browser activity and will wait for the computer user to visit one of dozens of predefined banking or financial websites. The Virus then creates a pop-up window to replace and mimic the actual login page. These pop-up windows are customized for each financial institution’s website and are designed to spoof the appearance of the legitimate login page. User ID and password(s) information entered into these pop-up windows are captured and sent to the hacker. With this information the hacker can access the target’s bank account.

Summary of this fraud

In this fraud, the bookkeeper’s computer was infected. We do not know how at this point. She then had difficulties accessing the website of the firm’s bank and got a “This site is down for maintenance” message. On one of the screens that appeared on her computer she was asked to enter her name and phone number. This appears to have given the fraudsters her contact information as later that day the bookkeeper received a telephone call from someone, allegedly from the firm’s bank. That caller said she was aware of the login attempts and stated that the site had been down for maintenance. The caller then asked the bookkeeper to try logging in again. The bookkeeper did so entering the primary and secondary login passwords for the account on screens that appeared on her computer – the passwords were not given to the person on the phone. The second password came from a key fob password generator. This appears to have given the hacker both passwords and access to the firm’s trust account.

On each of the following two days there were similar phone calls to the bookkeeper from the woman who allegedly worked for the bank to “follow-up on the website access problems.” On each occasion the bookkeeper tried to login again and entered the primary and secondary passwords on screens that appeared on her computer. The fraudsters went into the account during or immediately after these phone calls and wired funds overseas. An amount less than the balance in the account was wired out each time. This was an infrequently used trust account and the firm had never done wire transfers from the account. The bank did not detect these frauds or stop the wires. The people behind this fraud appear to have had intimate knowledge of how to send wires from a bank account. The virus seemed to be aware that the firm had done banking at another major Canadian bank in the past.

How to protect yourself

Be aware of and be on the lookout for this type of fraud. At this point we are not aware of any other firms being victimized, but we suspect there are firms actively being targeted. These steps can lessen the likelihood that you will be a victim of this kind of fraud:

• Closely monitor the activity in your trust and regular bank accounts.
• Immediately investigate and talk to your bank if there are any problems or suspicious activity with your bank accounts or online banking access. Talk to your bank in person or through verified telephone numbers if there are problems. Remember that emails, fake documents and spoofed websites will have contact information for the fraudsters – not the real bank.
• If you do online banking, remove features that you do not use (e.g., the ability to initiate wires)
• Educate your firm staff about fraud prevention, in particular bookkeeping staff and other staff that handle cheques or payments.
• Be extremely wary of any calls or emails from your bank that deal with account information or access. Banks and other financial institutions will not ask you to reveal or change banking information in an email or phone call.
• Train your staff and lawyers to never open any emails or download any attachments from unknown senders. They should simply delete these messages.
• Install anti-virus and anti-malware software on all computers in your office. Make sure this software is configured to update itself automatically on a regular basis and that real time scanning is enabled (this will scan incoming emails and downloads). While it didn’t work in this situation, using brand-name anti-virus software should protect you from or warn you of an infection in most cases.
• If you ever find a computer has been infected with a trojan or other malware, you should immediately disconnect it from the internet and your network. Make sure the malware is removed before it reconnected.
• Use a firewall to block all unnecessary incoming and outgoing connections to your network.
• Enforce a password policy that requires the use of complex passwords and a requirement that passwords are regularly changed. People should be strongly discouraged from using the same password for everything.
• Ensure that programs and users of a computer use the lowest level of privileges necessary to complete their tasks. In other words, regular users should not have administrator level privileges to their computers.

Here are some other basic security "best practices" you should consider following:

• Disable AutoPlay to prevent the automatic launching of executable files on network and removable drives, and disconnect the drives when not required.
• Turn off file sharing if it is not needed. If file sharing is required, use ACLs and password protection to limit access. Disable anonymous access to shared folders. Grant access only to user accounts with strong passwords to folders that must be shared.
• Turn off and remove unnecessary services. By default, many operating systems install auxiliary services that are not critical. These services are avenues of attack. If they are removed, threats have less avenues of attack. This is commonly referenced as “hardening” a computer.
• If a threat exploits one or more network services, disable, or block access to, those services until a patch is applied.
• Make sure all computers are running the most up-to-date software, especially on computers that host public services and are accessible through the firewall, such as HTTP, FTP, mail, and DNS services.
• Configure your email server to block or remove email that contains “executable” file attachments that are commonly used to spread threats, such as .vbs, .bat, .exe, .pif and .scr files.

Please seek help from a knowledgeable person if you do not have the technical expertise to implement the above protections yourself.

1. Kerr v. Baranow and Vanesse v. Seguin (2011, S.C.C.) – Joint family venture
2. Schreyer v. Schreyer (2011, S.C.C.) – Effect of discharge from bankruptcy on property claims
3. Thibodeau v. Thibodeau (2011, Ont. C.A.) – Impact of bankruptcy on equalization payment
4. Hansen Estate v. Hansen (2012, Ont. C.A.) – Severing joint tenancy by conduct
5. V. (B.) v. V. (P.) (2012, Ont. C.A.) – Access
6. Pollitt v. Pollitt, et al (2011 N.S.S.C. and 2011 Ont.S.C.J) – Costs and the deductibility of legal fees
7. Ruffedeen-Coutts v. Coutts (2012, Ont. C.A.) – Appeals from consent orders
8. Jones v. Tsige (2012, Ont. C.A.) – Tort of intrusion upon seclusion
9. Van Breda v. Village Resorts Ltd. (2012, S.C.C.) – Conflict of laws: Real and substantial connection
10. Harte-Eichmanis v. Fernandes (Ont. C.A.) – Jurisdiction of the divisional court

The full text of this article by Aaron Franks and Anna Rolbin of Epstein Cole LLP in Toronto can be found in the August 2012 edition of LAWPRO Magazine.

Claims against litigation lawyers often involve allegations of communication errors. In this article, we consider steps that lawyers can take to avoid such claims right out of the gate – at the outset of their retainers.

When we attribute a claim to a communication problem, what exactly do we mean? Here are some examples:

• failure to warn clients that they were likely to lose a motion, trial or appeal;
• failure to warn clients that they could face an adverse costs order if they lose;
• misunderstandings regarding the scope of the retainer (for example, misunderstandings about which claim(s) the lawyer was retained to bring, which parties to name as plaintiffs or defendants, etc.);
• failure to seek and/or follow client instructions; and
• failure to warn clients about the applicable limitation period (this becomes a problem if a client ceases to retain a lawyer and then misses a limitation period).

Clients who bring communication-based claims often seek reimbursement of their legal fees in addition to compensation for their other losses. Claims for reimbursement of legal fees are not covered by LAWPRO.

One of the first steps a lawyer can take towards avoiding communication-based claims is requiring clients to sign a written retainer agreement. Such agreements can help to clearly establish the identity of the client(s), the scope of the retainer, and the identities of the parties who are to be named in any lawsuit. The retainer agreement should specify any unusual or noteworthy limitations to the retainer. For example, if the clients only want to commence one of two possible lawsuits, the retainer agreement should confirm this. By requiring clients to sign detailed retainer agreements, lawyers reduce the potential for misunderstandings.

Another good risk management practice is to explain the litigation process to clients and to provide the information that clients may need to adequately assess litigation-related risks. For example, lawyers should consider advising clients who are thinking about commencing a lawsuit that:

• litigation is slow;
• litigation is expensive;
• they could lose, no matter how strong the case appears to be at the outset;
• costs may be awarded against them and these awards can require payment of tens or hundreds of thousands of dollars;
• once they commence a lawsuit or a motion, they may not be able to abandon it without paying costs to the other side, even if they change their mind quickly;
• even if they win at trial, the judgment may not be enforceable;
• any damages that are recovered may be taxable;
• they have the option at any time to try to settle the case; and
• if they are going to commence a claim, they must do so before the expiry of the applicable limitation period.

The delivery of this advice should be confirmed in writing. For even greater safety, lawyers should consider providing further warnings prior to taking significant steps, like bringing motions or proceeding to trial.

Although a failure to provide the above-mentioned information and warnings does not constitute negligence in all circumstances, the protection afforded by doing so is worth the time if a claim is avoided. By providing clients with the information that they need to assess litigation-related risks, lawyers not only ensure that they
are meeting the applicable standard of care, but they also reduce the likelihood that their clients will be surprised by an adverse outcome.

Clients whose expectations have been adequately managed are less likely to turn on their lawyers (rightly or wrongly) than those who are taken by surprise. Although this article focuses on steps that can be taken at an early stage, good communication practices should be maintained throughout the course of a retainer. Among other steps, lawyers should document significant communications and instructions (for example, settlement instructions received from the client) on an ongoing basis. While lawyers cannot prevent every malpractice claim, the steps outlined above can reduce the likelihood of a claim and put the lawyer into a better position if a claim is made.

In the new Wills & Estates issue of the LAWPRO Webzine, Nora Rock (corporate and policy writer at LAWPRO) interviewed Kimberly Whaley of Whaley Estate Litigation and asked for her practical recommendations for lawyers working with wills clients who have married late in life.

When accepting a will-drafting retainer from a client who has gotten married late in life, Whaley says a lawyer who would like to avoid will challenges (and malpractice claims!) should do the following:

• consider the testator’s capacity, and act on suspicions of incapacity;
• remember that a client with capacity can nevertheless be subject to undue influence if he or she is vulnerable for other reasons: Ask probing questions;
• make detailed notes of suspicions/observations, questions asked, client answers, requests made, client responses to requests, and of the details of your advice in the context of what you’ve learned;
• send a detailed reporting letter that includes not only details of the work you’ve done, but also details of your requests, the client’s responses to those requests, and details of your advice (even when the client hasn’t acted on it);
• preserve your will files; and don’t dabble in wills practice if you lack – or are unwilling to develop – a detailed knowledge of the area.

The full text of the article can be found here.

In the midst of an ongoing sexual abuse scandal revolving around senior figures in the media and accusations of coverups at the BBC, the news program Newsnight claimed a "senior Conservative politician" was involved in the abuse of children at an orphanage. Another program claimed to have a list of names. Soon those names leaked onto Twitter, and Lord McAlpine (a member of Margaret Thatcher's cabinet) found himself wrongfully identified as one of the abusers. The accusation was retweeted over and over.

Lord McAlpine didn't take this lying down. He has threatened to sue anyone who retweeted the rumour unless they make a public apology, and has extracted apologies and payment of damages from the BBC and others.

While libel laws in the UK may make going after Twitter users easier in that country, this is still a cautionary tale for users of social media. There can be serious consequences if you aren't careful what you say or repeat online. For more on the potential pitfalls of using social media, see LAWPRO's article on Social Media: Pitfalls to Avoid.

Will-drafting is an area of legal practice that demands extremely careful attention to detail. Decisions in this area make it clear that even where a will is well-drafted and is consistent with the testator’s known intentions, failure to have the will executed in accordance with the applicable legal formalities will render it invalid.

When that happens, the lawyer responsible for arranging and supervising the execution of the will may be liable in negligence to disappointed beneficiaries.

This consequence was recently confirmed by the Supreme Court of Newfoundland and Labrador in Rowsell v. MacKinnon, wherein Rowsell, a disappointed would-be beneficiary, was awarded damages against an accountant and his employer firm.

The testator in the case had made a series of wills, including in 1998, 2004 and 2005. In the 1998 will, he left his entire estate to his wife, with a gift over to his children. His wife passed away in 2003, and around the same time, the testator, who was in his eighties, became seriously ill. During his illness, he was cared for by a Mrs. Rowsell and her husband. The testator and Mrs. Rowsell had met fifty years previously when she, then three years old, fell off a dock into the sea and he rescued and revived her.

In 2004, in recognition of the care provided to him when he was sick, the testator requested that his accountant change his will to include a bequest of $100,000 to Mrs. Rowsell. The accountant made the change, and the same bequest was included in a third will made in 2005.

Unfortunately, when supervising the execution of both the 2004 and 2005 wills, the accountant arranged for the attendance of only one witness (a clerk from the accounting firm). Because the Wills Act of Newfoundland and Labrador in effect at the time required that two witnesses witness and sign the will at the time of execution, both the 2004 and the 2005 wills were invalid and could not be admitted for probate, making the 1998 will – with no bequest to Mrs. Rowsell − operative.

Mrs. Rowsell sued the accountant and his firm in negligence.

The defendants argued that the testator should never have relied on them to prepare the will nor to arrange or supervise its execution because the accountant defendant was not a lawyer and did not hold himself out to be an expert in legal matters.

In coming to his decision that the accountant and the firm were, in fact, liable in negligence, Handrigan J. applied the Anns test, taking into consideration the Canadian application of that test in cases such as Kamloops (City of) v. Nielsen, Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, and Odhavji Estate v. Woodhouse. In deciding that the plaintiff was both foreseeable and proximate to the defendants, Handrigan J. cited two other wills cases: Wilhelm v. Hickson and White v. Jones for the general principle that disappointed beneficiaries, even if unknown personally to a party who drafts a will, are sufficiently proximate to the will drafter to be able to succeed in negligence against the will drafter in certain circumstances (Wilhelm was a case about misidentification of the owner of property; White was about undue delay in execution).

While the defendant in Rowsell was an accountant, not a lawyer, the court found that he had the trust of his client, and had held himself out as competent to do the work of a lawyer with respect to the testator’s will. As a result, Handrigan J. held that the accountant “…owed the same duty of care to Ms. Rowsell, as a lawyer might have owed to her for Mr. Sacrey’s 2004 and 2005 wills because he was a professional person acting in the place of a lawyer doing that work.”

The duty of care was not defeated under the second branch of the Anns test, which deals with public policy considerations that would weigh against a duty of care, because it was in the public interest that professional accountants who undertake to create wills do so with care not only for the best interests of their clients but also for the intended beneficiaries under those wills.

Because the accountant could have (and likely should have) declined to do work he was not competent or qualified to do; because, as a professional, he should have understood the limits of his competence; and because he chose not to decline the work, the court held that the standard of care applicable was that of “…an ordinarily competent solicitor in these circumstances.” Handrigan J. then compared the accountant’s work with the work of typical lawyers, as provided in evidence − including the lawyer who had prepared earlier wills for the testator − and found that with respect to knowledge and compliance with the requirements of the Wills Act, the accountant’s work did not meet the requisite standard of care.

The court found the accountant and his employer firm jointly and severally liable to the plaintiff in the amount of the bequest − $100,000 – plus her costs.

This case is not the first, in Canada, in which improper execution of a will led to a finding of negligence against a will drafter. In the 1978 decision in Whittingham v. Crease, the court found a lawyer negligent for allowing the spouse of an intended beneficiary to witness a will, contrary to the British Columbia Wills Act. In 1980, the same error was committed by a lawyer in England, resulting in a finding of negligence against him in the decision in Ross v. Caunters.

Viewed narrowly, the lesson to be taken from these cases is that while traditional formalities are disappearing from many aspects of legal work, lawyers must respect the formalities that remain. A person who undertakes to prepare a will and to supervise its execution must familiarize him or herself with the requirements of the law in effect in the relevant jurisdiction, and must carefully comply with those, or else risk full liability to make good on failed bequests.

The court found the accountant and his employer firm jointly and severally liable to the plaintiff in the amount of the bequest − $100,000 – plus her costs.

This case is not the first, in Canada, in which improper execution of a will led to a finding of negligence against a will drafter. In the 1978 decision in Whittingham v. Crease, the court found a lawyer negligent for allowing the spouse of an intended beneficiary to witness a will, contrary to the British Columbia Wills Act. In 1980, the same error was committed by a lawyer in England, resulting in a finding of negligence against him in the decision in Ross v. Caunters.

Viewed narrowly, the lesson to be taken from these cases is that while traditional formalities are disappearing from many aspects of legal work, lawyers must respect the formalities that remain. A person who undertakes to prepare a will and to supervise its execution must familiarize him or herself with the requirements of the law in effect in the relevant jurisdiction, and must carefully comply with those, or else risk full liability to make good on failed bequests.

To understand how the bar is coping with the demands of modern family law practice, in the August 2012 issue of LAWPRO Magazine we invited a sampling of lawyers from across Ontario to answer the question “What keeps you up at night?”

Survey Findings

Corporate law departments report that they are re-negotiating outside counsel fees, shifting work to lower-priced law firms, increasing in-house capacity, opting for alternative service providers and using new technology — all to develop a more cost-effective legal services model. Over 200 General Counsel participated in this survey.

One of the key conclusions that comes from the survey: Chief Legal Officers are not waiting for law firms to change their business models. They are taking change into their own hands and are creating a new internal value proposition. Firms had better pay attention!

Cost Control and Efficiency

The survey asked Chief Legal Officers what they have done in the last 12 months to control costs – their highest management priority as reported in the 2011 Survey. The number one answer, from 71% of respondents, was to negotiate price reductions from outside counsel. In addition, 47% of law departments shifted work from law firms to in-house lawyer staff; 41% shifted law firm work to lower priced firms; and, 36% reduced the total amount of work sent to outside counsel. Ten percent of CLOs reported instituting a law firm convergence program. The winds of change are upon us.

In addition to outside counsel cost management, law departments addressed internal cost issues in 2012. Sixty-three percent of departments improved the efficiency of their own procedures to cut costs; 36% shifted in-house work from lawyers to paralegals or other paraprofessionals; 35% used contract lawyers; and 25% of law departments outsourced some work to non-law-firm vendors to save money.

The methods of cost control that proved most effective were negotiating price reductions and shifting work in-house, according to the survey.

When asked what actions they had taken to improve internal efficiency in the last twelve months, CLOs identified greater use of technology tools as the most often used method, as well as the most effective. Other efficiency enhancers were greater use of paralegals and other paraprofessionals, project staffing with contract or temporary lawyers, outsourcing to non-law-firm vendors and project management training.

Staffing and Budget

Survey results on law department staffing and spending reinforce findings on the shifting balance of work between law firms and in-house lawyers.

In 2012, 46% of law departments increased their internal budgets, compared to 28% reporting a decrease. Additionally 38% of law departments report that they plan to increase their in-house lawyer workforce in the next 12 months, compared to only 7% of departments that plan to decrease the number of in-house lawyers.

At the same time, 39% of law departments decreased their outside counsel budget in 2012, compared to 34% that increased it. This is the first time in three years that the survey has found more departments decreasing than increasing their law firm spend.
In the next 12 months, 29% of law departments expect to decrease their use of outside counsel, compared to 14% that plan to increase outside counsel use. These aren’t enormous changes, and many departments still plan to maintain the status quo. But there is clear, incremental movement in how CLOs are managing their law departments.

Inside – Outside Relationship

Asked how much pressure corporations are putting on law firms to change the value proposition in 2012, CLOs rated the pressure at a median 6 on a scale of 0 (no pressure) to 10 (intense pressure), up from 5 the previous year. CLOs continue to express deep skepticism about law firms’ willingness to change their service delivery model, rating firms’ seriousness about change at a median 3 on a 0 to 10 scale for the fourth year running.

Chief Legal Officers have clear preferences when it comes to choosing law firms. When asked to rate which factors influence their selection of outside counsel, Chief Legal Officers identified ‘demonstrated understanding of your business/industry’ as the top factor and rated it 9.6 on a scale of 0 (no effect) to 10 (extremely positive effect). Other highly rated influencers were referrals from colleagues, rated 8.6; personal contacts, rated 6.7; and written material demonstrating a lawyer’s expertise, rated 6.1. Ten additional factors, including law firm websites, directory listings and social media activity, all rated under 5 on the 0 to 10 scale.

The Survey

The Chief Legal Officer Survey has been conducted and published annually by Altman Weil, Inc. since 2000, most recently in September and October 2012. Two hundred and four responses were received for the 2012 survey, 15.7% of the 1,297 corporate law departments invited to participate. Demographic and budgetary data on responding law departments is included in the survey report which you can find online at www.altmanweil.com/CLO2012.