Manage Malpractice Risk by Recognizing Cultural Diversity

In the social realm, cultural differences can be awkward for those on both sides; but in the context of legal services, cross cultural
misunderstandings and other culture-related factors can occasionally lead to malpractice claims against lawyers. The good news: claims with a cultural component are easily preventable as they tend to reflect certain recurring themes.

One category of claims arises where a lawyer is unfamiliar with the culture of his or her client or is not comfortable asking questions about culture, and so makes false assumptions or ill-advised communication “adjustments” that lead to misunderstandings and mistakes.

In a subset of this first category of claims, lawyers acting in commercial transactions based on the traditions of particular communities may be criticized for not communicating the extent to which such transactions are enforceable under Ontario law. Where the transactions involve parties outside the particular community, the lawyer must be on guard for the interests of all clients. Likewise, regardless of cultural norms related to agency, a lawyer practising in Canada will be held to the prevailing standard of care about from whom to take instructions, and will not be able to rely, as a defence, on the traditional practice of a particular community.

The second category of problems that we have seen occurs when some newcomers to Canada and lawyers from diverse communities inadvertently suffer marginalization due to cultural background, age or foreign legal training. These lawyers may have difficulty obtaining quality articles and proper mentorship, might not participate in mainstream CPD programs, and may end up as sole practitioners without adequate support from colleagues in the profession. Based on our experience, they are vulnerable to being preyed upon by fraudsters who seek to take advantage of and trade upon a common ethnic and/or religious background.

Lawyers who were trained in another country may also, in some cases, be less familiar with Canadian property rights concepts such as mortgages. Alternatively, they may be members of hierarchical cultures that require heightened deference to elders, causing them to be overly trusting of other lawyers based on seniority alone.

Click here to read the full version of this article that details five “culturally-based” scenarios loosely based on real claims seen at LAWPRO.

This article is by Lorne Shelson, Litigation Director & Counsel in the Specialty Claims Department at LAWPRO. It appears in the September 2014 “The Changing Face of the Profession” issue of LAWPRO Magazine. All past LAWPRO Magazine articles can be found at
www.lawpro.ca/magazinearchives

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