Ethical issues and practice management

The following points set out some ethical concerns that the Contract Lawyer and Paralegal and contracting firm/lawyer/paralegal may wish to address as they complete the contract arrangements.

  1.  Whose "client" is it - the contracting firm/lawyer/paralegal's client or the Contract Lawyer or Paralegal's client?
    When the individual seeking legal services first retained the contracting firm/lawyer/paralegal, the individual became the contracting firm/lawyer/paralegal's client. However, during the time that the Contract Lawyer or Paralegal provides legal services to the same individual, that individual is now the Contract Lawyer or Paralegal's client also. Contract Lawyers should be familiar with Rule 3.01(2) (d) of the Rules of Professional Conduct, which states

 3.01(2) In offering legal services, a lawyer shall not use means

 (d) that are intended to influence a person who has retained another lawyer for a particular matter to change his or her lawyer for that matter, unless the change is initiated by the person or the other lawyer

Contract Paralegals should be familiar with Rule 8.02(2) of the Paralegal Rules of Conduct, which states

8.02(2) In offering legal services, a paralegal shall not use means

(d) that are intended to influence a person who has retained another paralegal or a lawyer for a particular matter to change his or her representative for that matter, unless the change is initiated by the person or the other representative

  1.  Conflicts
    The same rules apply to the Contract Lawyer or Paralegal and to the contracting firm/lawyer/paralegal. The Contract Lawyer or Paralegal must set up a system to check for conflicts prior to working on the contracting firm/lawyer/paralegal's files. A Contract Lawyer or Paralegal needs to keep a list of clients to whom he or she has provided legal services during all Contract Lawyer or Paralegal projects. The Contract Lawyer or Paralegal must ensure that no conflict exists between his or her present clients and those to whom the Contract Lawyer or Paralegal provided legal services during all past Contract Lawyer or Paralegal arrangements or in his or her separate practice, if one exists. All lawyer parties should be familiar with Rule 2.04 and Rule 2.05 of the Rules of Professional Conduct, which deal with conflicts of interest. All paralegal parties should be familiar with Rule 3.04 and Rule 3.05 of the Paralegal Rules of Conduct, which deal with conflicts of interest.
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  3.  What happens when a professional conduct issue arises?
    Treat this just the same as any other situation - read the Law Society Rules of Professional Conduct or Paralegal Rules of Conduct, as the case may be. Both the Contract Lawyer and contracting firm/lawyer should be familiar with Rule 6.01(3) of the Rules of Professional Conduct, which deals with the duty to report misconduct. In the alternative, both the Contract Paralegal and contracting firm/lawyer/paralegal should be familiar with Rule 9.01(2) of the Paralegal Rules of Conduct, which deals with the duty to report misconduct. Consider dealing with the requirement to report misconduct in the Contract Lawyer or Paralegal contract.

If the matter is unclear, contact the Law Society's Practice Management Helpline. The Helpline is a strictly confidential telephone service and provides assistance in interpreting the Rules of Professional Conduct and the Paralegal Rules of Conduct. Experienced counsel is available to give valuable insight on the Rules. Call 416-947-3315 or 1-800-668-7380, extension 3315.

  1.  Undertakings: is the Contract Lawyer or Paralegal responsible?
    An undertaking is always the responsibility of the lawyer or paralegal who gives it.

 Rule 4.01(7) of the Rules of Professional Conduct states that

 "A lawyer shall strictly and scrupulously carry out an undertaking given to the tribunal or to another licensee in the course of litigation."

The commentary to this Rule holds

 "Unless clearly qualified, the lawyer's undertaking is a personal promise and responsibility."

Rule 2.02(1) of the Paralegal Rules of Conduct states that

"A paralegal shall fulfil every undertaking given and shall not give an undertaking that cannot be fulfilled […] Unless clearly stated in the undertaking, a paralegal's undertaking is a personal promise and it is his or her personal responsibility".

Therefore, be cautious about entering into an undertaking that you, as a Contract Lawyer or Paralegal, cannot control. If the Contract Lawyer or Paralegal signs an undertaking letter or gives a verbal undertaking, it is the Contract Lawyer or Paralegal's undertaking (and liability), and not that of the contracting firm/lawyer/paralegal.

  1.  Client identification and verification
    Both the contracting firm/lawyer/paralegal and Contract Lawyer or Paralegal must comply with the Law Society's client identification and verification requirements and should be familiar with them.
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  3.  Client management
    1.  Informing new and existing clients
      Advise clients in advance if you know the Contract Lawyer or Paralegal will be working on their files. It is recommended that all clients be informed that the Contract Lawyer or Paralegal will be covering the contracting lawyer or paralegal's practice for the period in question and therefore may be working on their file. Reception staff can remind clients that their lawyer (the contracting lawyer) or paralegal (the contracting paralegal) is away, but that the Contract Lawyer or Paralegal is filling in. It is rare that a client will refuse to meet with or deal with the Contract Lawyer or Paralegal. Also, consider including a paragraph in your firm's standard retainer agreement that allows for the potential involvement of a Contract Lawyer or Paralegal on the client's file.
    2.  Dealing with difficult clients
      Contract Lawyers and Paralegals should treat difficult clients the same as he or she would in his/her own practice, but seek input from the senior support staff or contracting firm/lawyer/paralegal before making any decisive moves, such as terminating the relationship. Also, refer to Rule 2 of the Rules of Professional Conduct, which deals with the lawyer-client relationship or Rule 3 of the Paralegal Rules of Conduct, which deals with the paralegal's duty to clients.
    3.  Dealing with a crisis
      Almost anything can happen, so make sure that the Contract Lawyer, Contract Paralegal or senior staff has an emergency contact telephone number or e-mail address for the contracting lawyer or paralegal to contact him or her in an emergency situation.