Establishing a Lawyer-Client Relationship
Under the amended Rules of Professional Conduct (the Rules), a "client" is a person who
- consults a lawyer and on whose behalf the lawyer renders or agrees to render legal services; or
- having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on their behalf.
A client includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client's work [rule 1.1-1 of the Rules].
The commentary to rule 1.1-1 provides that a lawyer-client relationship may be established without formality. This means that no retainer agreement or monetary payment are required to establish a lawyer-client relationship.
If a lawyer is consulted by a person and the lawyer provides legal advice to that person, a lawyer-client relationship exists. This will be the case whether the lawyer met with the person at the lawyer's office or in a less formal, or non-business setting, like a social gathering. It is the provision of legal advice that constitutes rendering legal services.
In other cases, where no legal services were rendered and the lawyer did not agree to render any legal services, the lawyer will need to look at the facts of the situation in order to determine whether a lawyer-client relationship has been established. The key issue in such cases is whether it is reasonable for the person to conclude that the lawyer has agreed to render legal services on the client's behalf.
Lawyers should implement procedures in their firms aimed at minimizing situations in which they could find themselves in a lawyer-client relationship that they did not intend to establish. For example, a lawyer may wish to take minimal information from a prospective client upon initial contact with that person so that the lawyer can perform a conflicts search and determine if the lawyer can take on the retainer. In addition, for clarity the lawyer may want to confirm retainers in writing with clients or send out letters confirming that the lawyer has not been retained. Sending a non-engagement letter is a best practice in situations where a person might reasonably conclude that, having consulted the lawyer, the lawyer has agreed to render legal services on that person's behalf.
Even if the person who consulted with the lawyer is not a client as defined under the Rules, the lawyer may still owe duties of confidentiality to that person [rule 3.3-1 of the Rules]. As a result, a lawyer should be cautious in accepting confidential information on an informal or preliminary basis. Possession of the information may prevent the lawyer from acting subsequently for another party in the same or a related matter [section 3.4 of the Rules].
Non-Engagement Letter Checklist
Sample Non-Engagement Letter
The amended Rules of Professional Conduct came into effect on October 1, 2014. Most amendments are minor, however some changes are more substantive and introduce new standards. The following resources will assist lawyers with understanding and complying with the amended rules.
Alternative Business Structures (ABS) The Law Society released Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper (PDF) on September 24, 2014, to seek input from lawyers, paralegals, stakeholders and the public about ABS. The Law Society is interested in both general comments about the appropriateness of the ABS model for Ontario, as well as specific comments about particular considerations or issues, or about the four models presented in the discussion paper. Differing views, including challenging perspectives or approaches, are welcome. Comments should be sent to the Law Society by December 31, 2014. More information.
CPD Requirement Late Fee implemented for 2014 Lawyers who do not complete or who fail to report their 2014 CPD Hours by December 31, 2014, will be charged a $100 late fee, in addition to being subject to administrative suspension. The late fee helps offset the administrative costs of managing non-compliance with the CPD Requirement.
Remember to enter your CPD Hours in the LSUC Portal early to avoid slower response times in December. See Tips for entering CPD Hours.
Bencher Election 2015 The next bencher election will be held on April 30, 2015. The Law Society of Upper Canada is mandated to govern the legal profession in the public interest. Benchers sit as members of Convocation to fulfill that mandate. More information about the election and becoming a candidate.
Ryerson and Ottawa Universities seeking Law Practice Program (LPP) Work Placements The Law Society encourages lawyers to offer a paid work placement for 2014-15 LPP candidates and help train the next generation of lawyers. Offering a work placement is a four-month commitment from January to April 2015. LPP candidates have the same status as articling candidates.
October 30 - Convocation
October 31 - LAWPRO 2014 Third Quarter Real Estate and Civil Litigation Levy Surcharge filings and applicable payments due.
November 4 - LAWPRO E-file Deadline. LAWPRO renewal applications for 2015 professional liability insurance must be e-filed by this date to be eligible for the $25 per lawyer e-filing discount.
November 11 - LAWPRO Final deadline to submit LAWPRO renewal application for 2015 professional liability insurance.
November 28 - Convocation