Lawyers still need to pay their bills, and as far as I know the banks are not accepting homemade cookies as mortgage payments. Bartering only works if we can find someone who needs our services and who is offering goods or services for which we have a need. However, if we were open to alternative payment options, we may be able to provide legal services to clients who cannot afford legal representation. This is especially true for those practicing in areas with a high number of self-represented litigants such as family law.
Is Bartering Allowed by the LSUC? Nothing in the Rules of Professional Conduct, or the by-laws specifically addresses bartering arrangements. Nevertheless, a lawyer contemplating bartering her legal services should carefully review the Rules and by-Laws to make sure her barter arrangement is in compliance. For example, Rule 3.6-1 provides that a “lawyer shall not charge or accept any amount for a fee or disbursement unless it is fair and reasonable and has been disclosed in a timely fashion.” The goods or services you are receiving must be commensurate with the services you provide. Furthermore, all record-keeping responsibilities should be met and the work should be properly invoiced. The only clear guidance that I could find from the LSUC, was in a decision by the Law Society Tribunal which confirmed the obvious: “Legal services are not to be bartered for sexual favours.” Barter-Exchange Programs Bartering in general has become more sophisticated and moved past the chicken and egg days with numerous “barter-exchange programs” throughout Canada and the United States. A barter exchange acts as a clearinghouse for the exchange of goods and services and keeps track of the value of the barter transactions between members. Members often have to pay dues or fees to join. (For example see, eXmerce, Barter Network Limited and Swap Right). There is little guidance on lawyers using barter exchange networks in Canada. I found a Tax Court of Canada case[1] from 1985 where a lawyer bartered his legal services on a barter exchange network called Tradex. The lawyer would obtain ‘exchange credits’ from other members for his legal services and he would exchange these credits for other services (i.e. dental services for himself and his family). The issue for the Court was the value of those exchange credits for income tax purposes. (Yes, any service or good you receive in payment is considered income and must be reported. See the CRA bulletin on “Barter Transactions”). Not surprisingly, I found more resources for lawyers on bartering exchange programs south of the border. Recently, the Connecticut Bar Association’s Standing Committee on Professional Ethics released an informal opinion on a lawyer’s participation in such a program. The report noted that early ethics opinions from state bar associations and the American Bar Association in the late 1970s were “undeniably hostile” to barter exchanges and the fees charged to their members. However, recent opinions have been more amenable. The Connecticut Bar Association concluded that participation in such an exchange was not unethical, but lawyers must still comply with the relevant rules of professional conduct, including those dealing with confidentiality, client solicitation and advertising. Importantly, the “cardinal principle” still applies: “the fee must not be unreasonable, regardless of the form of payment”.[2] It did not see the fee paid to the barter exchange program to be fee sharing (which is prohibited with a non-lawyer) but confirmed that there should be a written engagement agreement, including that barter currency will be used as the compensation for legal services. To Barter or Not To Barter: If you are considering bartering your legal services (either as a one-off arrangement or through a barter exchange program), be prepared and:
[1] Linett and Karoly v The Minister of National Revenue, 85 DTC 416. [2] Connecticut Bar Association, Standing Committee on Professional Ethics, Informal Opinion 15-04 “Lawyer’s Participation in a Barter-Exchange Program” July 2015 at p. 2 Note: Content from this blog does not constitute legal advice and is for informational purposes only.
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Once again the LSUC is asking its members for input, this time about the possible implementation of “compliance-based entity regulation”. So, what is it? Why should you care? And how will it affect you? According to a consultation paper prepared by the related LSUC Task Force, “compliance-based entity regulation” refers to “the proactive regulation of the practice entity through which legal services are delivered”. From what I gather, in the most basic terms, this means that the LSUC wants to start regulating firms (in addition to individual lawyers) in order to help prevent lawyers from messing up, instead of just dealing with lawyers after they have messed up. Makes sense to me. But what will law firms (or “entities”) be required to do? Clearly, the LSUC will need to find the proper balance between regulating the individual lawyer and the legal entity. Practice Management System / Ethical Infrastructure Entities would be required to implement certain “practice management principles” through a “practice management system” or an “ethical infrastructure”. What does that mean? Basically, firms are going to have to put in place policies and procedures to help their lawyers behave. The Task Force is considering the following "principles":
Proof of Compliance? The law firms would have to demonstrate to the LSUC that they have implemented the above principles in their practice. However, they would have flexibility and autonomy in the implementation process. For example, a firm would have to show that it has a policy or procedure in place to deal with conflicts of interest, but the LSUC would not dictate what that policy would be. It does not appear that the burden on the entities (which will likely include solo and small firms) is too onerous. I would suspect that firms already have most of these policies in place. On February 8th the LSUC broadcast a webinar on this topic from 5-7pm, but I was only able to catch the first 30 mins (it wasn’t the most convenient time as it was right smack in the middle of kids’ homework, bath, and bedtime, etc., but I digress). The speakers that I managed to hear were quite clear that the approach was not going to be “one size fits all” and that a version of the compliance-based entity regulation that might apply to sole-practitioners and small firms would likely be different from the approach for medium to large firms. [Update: The webinar is now on youtube.] Other questions in the consultation paper include to which entities this new regulation should apply; whether entities should be registered with the LSUC; and whether there needs to be a designated practitioner at the entity that would have certain regulatory responsibilities.The paper also summarizes the positive impact of proactive regulation in other jurisdictions such as Australia and England and Wales. If you feel strongly about this topic, either for or against, or simply want to comment on it, I suggest you review the paper and questions and provide your input by the deadline of March 31, 2016. The full consultation paper can be found here. Now that I am responsible for my own expenses I’ve taken a hard look at that number: $2,108.58. And this does not include my insurance premiums to LawPRO (the base premium being $3,350.00 per lawyer, for a total of $5,458.58 in fees and premiums).
How is the LSUC spending the revenue from our annual fees? What are our fees used for? Why do we pay so much? Are we paying more or less than lawyers in other provinces in Canada? I decided to start digging. (You may be thinking that I must have lots of spare time on my hands. I don’t. I am just an extremely curious person and I like to know where my money is going). I sat down with a hot coffee and snacks, prepared for a lengthy investigation. This was short lived. One simple Google search produced the most recent LSUC Annual Report (2014), including 30 pages of financial statements . . . and down the rabbit hole I went. . . Here are a few highlights of what I learned:
How do our fees compare to fees in other provinces? According to a handy chart compiled by the Law Society of British Columbia, we pay the second highest combination of law society fees and insurance premiums in Canada. Only Alberta beats us at a whopping $7,011.00. Saskatchewan is the most affordable province for practicing lawyers where fees and premiums total $3,273.00. Perhaps I am one of only a few lawyers who wonder about this stuff, but after reading this, are you content with the amount we are paying and where our money is going? Do you read the Annual Report and financial statements? Or, are you at a firm that pays your fees and you really don’t care? Aside from the financial stuff, the Annual Report also includes an overview of the priorities set by the LSUC: addressing access to justice issues; competence and professional standards; equity, diversity and retention; professional regulation; business structures; and tribunal issues. The Report also has some interesting statistics on the make-up of the profession. (Ever wonder what percentage of lawyers in Ontario are women? It’s 41.9%.) If you are curious like me, the full Annual Report can be found here. It’s okay to be tactical in your litigation strategy. But when that strategy consists of “unacceptable litigation gamesmanship” litigants may be sanctioned with a costs award. In Candito v. Nmezi 2015 ONCA 793, Brown J.A. had strong words against counsel’s decision to strategically delay the settling of an order under appeal.
The Order In Ontario an appellant must “perfect” its appeal (in other words file all the relevant documents including an appeal book) within 30 days of filing his or her Notice of Appeal. The appeal book must contain a copy of the order being appealed from. While it is open to either party, usually counsel for the winning party prepares a draft order and sends it to all parties for approval as to form and content. Once that approval is obtained, the order may be signed and entered and can be included in the appeal book. In this case, the appellant sent a draft order to the respondent’s counsel for approval. There was no response. The deadline for perfection was missed and the respondent’s counsel opposed a request for extension of time to perfect the appeal. The appellant was forced to bring a motion to extend time. The Motion and Costs The parties ended up consenting to an order to extend the time to perfect the appeal and the respondent’s counsel eventually approved the draft order. Nevertheless, the appellant sought and was granted $5000.00 in partial indemnity costs for the motion it was forced to bring. Justice Brown, however, would have awarded full indemnity costs if he was not limited by the appellant’s request for partial. Justice Brown had this to say at paragraph 22: The unreasonableness in the events which transpired consisted solely in [the Respondent’s] failure to perform its obligation to settle an order subject to appeal in a timely fashion. For [the Respondent] to take the position that it would not settle the order under appeal until [the Appellant] had argued its motion to extend the time to perfect amounted to unacceptable litigation gamesmanship. It appears as though counsel was hoping to manoeuver the appellant into a position where it had to argue its merits of the appeal in order to get the extension of time. Justice Brown did not approve of this strategy: In my view, such unreasonable litigation tactics by [the Respondent] would have merited an award of full indemnity costs against it. However, [the Appellant] only requested partial indemnity costs, so I am limited by its request. (para.23) Refusing to settle the order ended up wasting both parties’ time and that of the Court’s. As Justice Brown noted “[c]ivil litigation in the public courts can only deliver timely and cost-effective justice if the parties perform certain basic procedural obligations.”(para.1) I have been to many conferences and seminars on both work/life balance and being a woman in the legal profession. A tip that often gets repeated: Keep your family time away from the office “under the radar”. Don’t tell your firm or your clients if you are leaving early to pick up your kids, or taking them to the doctor, or attending a school concert. Basically, don’t mention you are a mother at all. Allegedly, men don’t do this (and why don't they? They have these obligations too!), so women shouldn’t either. Supposedly this is one of the reasons why women are being held back in the legal profession. Once again it is our fault.
I used to buy into this thinking. When I was at a large firm and had to leave early because my son was sick or I wanted to go to the mother’s day tea at his preschool, my ‘out of office’ message said I was in court or in a meeting. No one would question that and I somehow felt less guilty about leaving the office. I was afraid that if I admitted the truth my colleagues and clients would think that I was a ‘slacker’ and not dedicated to my job. (I think I was afraid because there already is this false assumption that women do more at home and therefore may not be as dedicated to work.) Not anymore. Now that I have my own practice as a freelance lawyer I am completely honest with my clients. I will tell them that I can’t meet with them at 8am because I walk my kids to school. But I ask, can we meet at 9:00? Or I will tell them that I can’t meet on a certain day because I am volunteering in my son’s class, but I can meet the next day, or we can do a call that night. I always offer a close alternative time or day, or if the client’s matter is urgent I make myself available. I now feel confident enough to tell my clients the truth. I know I am a good lawyer. I produce quality work and I always meet their deadlines. Whether I work at 2pm or 2am does not matter to my clients as long as I get the work done and get it done on time. And if a client or potential client somehow thinks less of me because I actually have a life outside of work, then perhaps I need to revisit having them as my client. Would I feel this way if I was still at a large firm? I would like to think I have evolved enough as a person and a lawyer that I would, but maybe not. I hope the day will come when all lawyers (men and women) can embrace the fact that we are well rounded individuals with lives outside of the office and that this doesn’t make us any less dedicated to our jobs. The Law Society of Upper Canada is proposing certain amendments to the Rules of Professional Conduct and is seeking input from the profession by October 16, 2015. The amendments cover a variety of topics, including conflicts of interest, doing business with a client, incriminating physical evidence, advertising, and short term legal services (pro bono context mainly).
I found the most interesting proposed changes were to the rules on advertising. The Call for Input Document states that since the last amendments to these advertising rules "there appears to have been a significant increase in the incidence and scope of lawyer advertising and regulatory concerns have prompted a review of these Rules." Have we gone too far with our tv commercials and bus ads? The new Rules would set out certain marketing practices that would contravene the Rules (which in the current Rules are only in the Commentary as practices that may contravene), including: advertising that suggests or implies that the lawyer is aggressive; referring to awards or endorsements without providing relevant information (including the source of the award, the nomination process and if any fees were paid by the lawyer (directly or indirectly)); as well as using testimonials which contain emotional appeals (how would you define emotional appeal?). The new Commentary to the Rule would provide examples of marketing practices that may contravene the Rules including: failing to disclose that the legal work is routinely referred to other lawyers for a fee rather than being performed by the lawyer; advertising awards and endorsements from third parties without disclaimers or qualifications; and misleading the public on the size of the lawyer's practice (so, no more saying "our lawyers" or "we" when you are a sole practitioner?) The full Call for Input Document can be found here. Identity Revealed: Lawyers Who Ghostwrite for Self-Represented Litigants, No Longer Ghosts?7/22/2015 In a growing number of jurisdictions lawyers may choose or agree to take on part, but not all, of a client’s legal matter with the client’s consent. These agreements are often called ‘limited scope retainers’ or the provision of ‘unbundled legal services’. In Ontario, the Law Society of Upper Canada amended the Rules of Professional Conduct in 2011 to explicitly allow lawyers to enter into limited scope retainers and clarified the requirements when doing so, such as having the retainer in writing and signed by the client. Limited scope retainers can cover a wide variety of situations, including when lawyers ‘ghostwrite’ pleadings (or a factum or motion material, etc.) for a self-represented litigant, but do not appear in court on their behalf or become solicitor of record.[1]
There are many reasons why the LSUC would allow such retainers, including providing an affordable option for litigants who cannot pay for full legal representation and encouraging lawyers to take on manageable and limited pro bono assignments. However, some have questioned whether such unbundled services are ethical, especially in the context of ‘ghostwritten’ pleadings. These critics argue that the judges or opposing counsel may be misled by the material presented, or the clients may not understand what was written by the lawyer or their legal position. Also, some argue that these purportedly unrepresented litigants may take advantage of the courts’ tendency to overlook defects in unrepresented court filings. The main concern, however, seems to be that if a lawyer’s identity and involvement are not revealed they may not be held accountable for potential violations of the Rules of Professional Conduct or for solicitor negligence.[2] Last month, the top court in Rhode Island examined ghostwriting pleadings for “pro se” or self-represented litigants after three lawyers had been sanctioned by a lower court for this practice.[3] In FIA Card Services, N.A. v. Pichette, No. 2012-272-Appeal (R.I.2015) the Rhode Island Supreme Court concluded that a lawyer may not ‘ghostwrite’ or otherwise assist a self-represented litigant with the preparation of pleadings, motions, or other written submissions unless the lawyer signs the document and discloses his or her identity and the extent of his or her assistance. However, the lawyer may also indicate that they are not the attorney of record. After reading this case I wondered, are lawyers in Ontario who ghostwrite for self-represented litigants required to sign a factum they drafted and reveal their identity and extent of involvement? I’m not sure. No Ontario court seems to have commented on this specific unbundled legal service and the Rules of Professional Conduct are silent on the requirement of a ghostwriting lawyer to reveal his or her identity and involvement. The Rules of Civil Procedure do allow a lawyer to enter into a limited scope retainer and not become a solicitor of record.[4] Also the Rules of Civil Procedure state that a party represented by a lawyer under a limited scope retainer is considered to be acting in person (unless the limited scope retainer includes the lawyer acting as solicitor of record). However, the Rules also require the party’s “lawyer” to sign any factum that is filed. So, if you are a drafting lawyer but not the solicitor of record do you still have to sign the factum? Also, is a self-represented litigant required to reveal to the court and opposing party that they are being assisted by a lawyer in a limited way? Or, can they keep this information to themselves should they choose? In its decision the RI Supreme Court stated that until they are persuaded otherwise, full disclosure of a lawyer’s involvement is the better practice. A lawyer who prepares such documents must still be held to the same standards as a solicitor of record. However, the Court also asked for comments from members of the bench, bar, and public on the subject of limited scope representation in general and the practice of ghostwriting in particular. What was concerning in the Rhode Island case was that the self-represented litigants did not understand their legal positions or the material that had been drafted by the ghostwriting lawyers. They also thought that the drafting lawyers were their retained attorneys of record. This suggests that the lawyers did not do a good job of explaining their limited scope retainer or the legal work that they provided. Are you a lawyer who ‘ghostwrites’ pleadings for self-represented litigants? Do you sign any facta you draft and disclose your identity and extent of your involvement? If not, should you? [1]Please note that I do not ghostwrite pleadings for self-represented litigants. I only assist other lawyers. While some may see this as a distinction without a difference, I do believe they are separate types of services with separate considerations. [2] For more on “Unbundled Legal Services” or “Limited Scope Retainers” in general in Ontario, see the following: LSUC , CBA , and LawPro . [3] This topic has been examined extensively in the United States by various bar associations and courts. See the ABA website on Ethics and Opinions regarding Limited Scope Retainers, setting out opinions from each State. [4] See Rule 15.01(4). I think it is safe to say that lawyers are risk averse. We are a cautious bunch who, for the most part, tend to over-think and analyse everything we do. These personality traits may be why some of us are afraid of social media and have yet to embrace this key aspect of marketing our practices.
When I first joined Twitter I would often quickly draft my 140 character tweet, only to edit it and re-write it over and over again until finally I would talk myself out of even tweeting it and delete it all together. Why? The thought of having something go out into the "Twitter-verse" with my name on it, where it would exist forever, was daunting. Would this tweet come back to haunt me? Did I use the right tone? Is the tweet appropriate for my profession? Fortunately, with some practice, I am getting (a bit) better. If you are a lawyer and are a little hesitant to try Twitter, or LinkedIn, or to start your own law firm blog, there is help for you. I recently met Eva Chan, a former practicing lawyer turned social media strategist. While there are lots of social media coaches, Eva is unique because she focuses on helping lawyers. She understands our quirks, risk aversion, and our target market. Eva's services include devising a social media plan, one-on-one coaching and training. For more information on Eva and her services, visit her website: www.evachanweb.ca Tweeting, blogging, being on LinkedIn, etc. are all great tools to get your name out there and recognized. I have now met many of my Twitter followers at law events and some have referred work to me. I have also received work through LinkedIn contacts. My social media marketing is working. There is no time like the present to re-consider how you can use social medial to your advantage. Like most people, when I meet someone new, I am asked the question: “What do you do?” This is a fairly easy question to answer, right? I can just say, "I am a lawyer". But I usually get the follow-up question: “What type of law do you practice?” This is where it gets a little more confusing. I tell them I am a freelance lawyer. Often this is followed by blank stares. Then, when I try to explain what I do (assist other lawyers and law firms with legal writing and research and any overflow litigation work they may have) I get the response: “Oh, so you are a sole practitioner.” Yes…no…not quite. While I have a lot in common with sole practitioners my practice is also very different. So I have decided to explain five ways in which freelance lawyers (or sometimes referred to as contract or project lawyers) are different than sole practitioners:
Number 1 – The Clients I only work for other lawyers, law firms, or legal departments. Unlike sole practitioners, I do not provide legal advice directly to non-lawyers. This also means that I, and other freelance lawyers, have a much smaller client market than sole practitioners. Number 2 – Predictability In civil litigation, my area of practice, files can last for years. A sole practitioner's litigation files can be dormant for months and then catch on fire at a moment’s notice. Some people may thrive on this unpredictability. Me, not so much. Instead of juggling 100 files that could blow up at any moment, I prefer to focus on one or two assignments or projects at a time that have clear beginnings and ends. This means my client gets 100% (or close to it) of my attention on his or her file. However, this also means that I do not have the other 99 files to rely on once my current assignment is completed. A freelance lawyer must be okay with the potential peaks and lulls of freelance work. Number 3 – The Hours As the nature of the work is different, so are the hours. With my one-off, or discrete tasks, it is easier to plan my day or week. Of course I also take on rush assignments if needed and I am available. However, I don't have clients calling me at all hours like I did in private practice. My clients are all busy lawyers. Sure, there are definitely some weeks when I am working the same hours as I did in Big Law, but it is by choice. Number 4 – Caliber and Nature of the Work My lawyer clients always give me very interesting and challenging legal work. The instructions are also very clear and well thought out. Having a lawyer as a client means a lot less of the emotional support and psychological hand-holding that I used to provide my non-lawyer clients. When I was in private practice a lot of my day had nothing to do with the law itself. Now my job is mostly all about the law (which I love). Some of my lawyer clients have told me that they prefer providing that emotional support and hand-holding and aren't that keen about the actual law. This is how, as a freelance lawyer, I can complement a solo practice or law firm. My clients outsource the work they don't like so they can focus on the work that they do. Number 5 - Flexibility Most sole practitioners have an office, a legal assistant or law clerk, office equipment and furniture, etc. I have very little overhead. I can work from anywhere and I have a paperless 'office'. I have clients all over Ontario and I can meet with them over Skype, phone, email etc. Technology has given us this freedom. Also, if I am done my current assignment and want to take a vacation, or go into a firm and assist with a large litigation file or trial, I can go. Without ongoing files, I have nothing to leave behind for a fellow associate to “babysit”. While freelance lawyers and sole practitioners have a lot in common, we are different in a few ways. Depending on his or her personality, a lawyer may be better suited for one type of practice over the other. I prefer the freelance way of life and I am not the only one. Check out my fellow freelancers at Flex Legal Network. It is LSUC bencher election time and, to be perfectly honest, my first reaction was "Good grief...again? Already?" I am haunted by memories of emails and flyers and campaign materials cluttering up my in-box and my office from the last election. When I filed my Annual Report this year I chose not to check the box that allowed benchers to email me. Why? I get too many emails as it is. During the last election I got annoyed at the number of emails coming from potential benchers. I never read them. I knew I wouldn't read them this election either. My stomach churned when I read Lee Akazaki's informative article on the dollar footprint of a bencher campaign and the cost of those emails and brochures that contributed to my digital trashcan and real-world recycling bin.
I want to be clear though, this does not mean that I am not interested in the election or that I don't vote. Also, I don't want people thinking that I don't appreciate the effort involved in running in a bencher election. I respect the candidates' dedication and hard work. However, I prefer to do my own research on my own time. I will find you, bencher candidates. I don't want you finding me. For example, on Twitter, I am now following the candidates who are tweeting and "#LSbencher". I am also reviewing candidate profiles on the Law Times' Bencher Election website. And, closer to the voting deadline, I will review the Voting Guide that the LSUC publishes setting out information on each candidate. While I may express some frustration at the process involved, I do believe it is important for lawyers to get out (or rather sit at our computers) and vote. Unfortunately many of us don't. Perhaps because we are too busy or we think it won't make a difference. However, benchers play an important role in our self-governing profession. For non-lawyers, or those who are new to the profession, benchers are basically our board of directors. They meet most months at Convocation (a fancy word for a meeting). Benchers set policy and determine matters related to the governance of Ontario's lawyers. You know that new Lawyer Practice Program pilot project? The benchers were the ones who voted to have it implemented. Remember how the LSUC chose not to accredit Trinity Western University? It was the benchers who (narrowly) voted no. Benchers also sit on panels as adjudicators to hear discipline cases. So, they actually do wield some power. What am I looking for in a bencher? I am looking for benchers who are open to change. Let's not be afraid of exploring new ways to practice law (and I am not specifically talking about alternative business structures. I am still on the fence on that one, or more accurately, falling off the fence each week on different sides and then climbing back on). I am also looking for diversity, and not just age, gender and race diversity. I would like to see some diversity of legal experience. Having worked at a large law firm, a boutique, and now as a freelance lawyer, it is clear that each has its own challenges and issues. According to the LSUC Bencher Election website, the voting list will be finalized on April 7, 2015 and all eligible licensees (I hate that word, can we please go back to being members?) will get a personalized link to be able to vote online. All voters can cast up to 40 votes in total, with 20 votes for candidates in Toronto and 20 votes for candidates outside of Toronto. 40 benchers will be elected. Voting closes on April 30, 2015 at 5:00pm on the dot, so mark your calendars and vote! For more information on the bencher election check out: - LSUC Bencher Election website - The Law Times Bencher Election website - #LSBencher on Twitter. |
Erin C. Cowling is a former freelance lawyer, entrepreneur, business and career consultant, speaker, writer and CEO and Founder of Flex Legal Network Inc., a network of freelance lawyers.
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