Limited Scope Retainers
A limited scope retainer is a retainer in which a lawyer agrees to provide legal services for part, but not all, of a client’s legal matter by agreement with the client (rule 1.1-1 of the Rules of Professional Conduct (the “Rules”)).
When entering into limited scope retainers, lawyers should be aware that they have additional obligations under the Rules. To provide further guidance on issues arising in limited scope retainers, the commentary to rule 3.2-1A.1 was amended in June 2015. Lawyers’ obligations with respect to limited scope retainers, including the recent amendments to the Rules, are described below.
Assess Competence to Provide Limited Legal Services
Prior to accepting a limited scope retainer, the lawyer must carefully assess whether, under the circumstances, it is possible to render those services in a competent manner. As in any retainer, the lawyer should consider the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation (rule 3.1-2 [7A]). In addition to the requirements of rule 3.2-9, a lawyer who is asked to provide legal services under a limited scope retainer to a client who has diminished capacity to make decisions should carefully consider and assess in each case if, in that situation, it is possible to render those services in a competent manner (rule 3.2-1A.1 [5.2]).
It is important to note that an agreement to provide limited services does not exempt a lawyer from the duty to provide competent representation.
Ensure Client is Fully Informed about the Scope and Limitation of Legal Services
Prior to providing legal services under a limited scope retainer, rule 3.2-1A of the Rules requires that the lawyer advise the client honestly and candidly about the nature, extent, and scope of the services that the lawyer can provide. Where appropriate, the lawyer must also advise whether the services can be provided within the financial means of the client.
Confirm Legal Services in Writing and Provide Client with a Copy of the Documents
Reducing to writing the discussions and agreement with the client about the limited scope retainer assists the lawyer and client in understanding the limitations of the service to be provided and any risks of the retainer. When providing legal services under a limited scope retainer, the lawyer must confirm the services in writing and give the client a copy of the written document when it is practicable to do so (rule 3.2-1A.1).1 This is generally accomplished by way of a written retainer. In certain circumstances, such as when the client is in custody, it may not be possible to give him or her a copy of the document. In this type of situation, the lawyer should keep a record of the limited scope retainer in the client file and, when practicable, provide a copy of the document to the client. When the retainer is complete, a lawyer should ordinarily also confirm with the client in writing when the limited scope retainer is complete (rule 3.2-1A.1 [5.1]).
Consider Communication Issues
A lawyer who is providing legal services under a limited scope retainer should be careful to avoid acting such that it appears that the lawyer is providing services to the client under a full retainer.
Where the limited services being provided include an appearance before a tribunal, the lawyer should consider whether the existence of the limited scope retainer should be disclosed to the tribunal. Specifically, a lawyer must be careful not to mislead the tribunal as to the scope of the retainer and should consider whether disclosure of the limited nature of the retainer is required by the rules of practice or the circumstances. Where appropriate under the rules of the tribunal, the lawyer may consider providing notice to the tribunal that the retainer is complete.
A lawyer who is providing legal services under a limited scope retainer should also consider how communications from opposing counsel should be managed. The lawyer should consider whether to obtain instructions from the client to make such a disclosure (rule 3.2-1A.1 [5.1 and 5.3 to 5.4]). Unless the opposing lawyer receives written notice of the limited nature of the legal services being provided by the lawyer and the approach, communication, or dealing falls within the scope of the limited scope retainer, an opposing lawyer may, without the consent of the lawyer, approach, communicate, or deal directly with the person on the matter (rule 7.2-6A).
1 Lawyers should note that there are some exceptions to the requirements of rule 3.2-1A.1. These exceptions are set out in rule 3.2-1A.2.
Law Society webcasting Convocation
The Law Society will continue to provide live online viewing of Convocation as part of its ongoing commitment to transparency and accessibility. Archived versions of Convocation webcasts for January through June are available for viewing from their respective pages on the Law Society’s website. These webcasts provide an up-close look at Convocation and its consideration of policy issues. The next Convocation is scheduled for September 24, so check the September Convocation page a few days before Convocation for the link to the webcast.
Three months left to earn and log your CPD Requirement hours for 2015
The Law Society encourages lawyers to log hours as they are earned. Logging hours in advance of the yearly deadline is an opportunity to review your status and ensure that the requirement will be met with success. Choosing the appropriate program and logging hours is quick and simple with these helpful hints:
- Choose from a range of flexible CPD opportunities
- Earn your Professionalism Hours from a variety of programs
- Complete your requirement by logging your hours. Watch our how-to video Logging Your CPD Hours
Targeted Legal Services Symposia Concludes
The third symposium in the Targeted Legal Service series organized by the Law Society of Upper Canada, The Action Group on Access to Justice (TAG) and Social Justice Tribunals Ontario took place on September 16th. The program focused on practical strategies for using limited scope retainers to enhance access to legal services. Archived webcasts from the entire series and related materials such as LAWPRO’s limited scope retainer resources can be found on the TAG website.
Can you find what you need on Legal Aid Ontario’s website?
Legal Aid Ontario is evaluating the Information for Lawyers section of their website, and has some questions for you. Can you find everything you need? Do you think some items should be arranged or prioritized differently? LAO is asking for lawyers to visit their digital sorting exercise. There, you can assign and categorize the resources in Information for Lawyers according to where you think they should go. Or, if you prefer, you can just send them an e-mail with your feedback.
September 24 - Convocation
October 2015 - On or about October 1 LAWPRO online filing of Professional Liability Insurance applications for 2016 is expected to begin.
October 3 - Professional Corporation annual renewal application and fee due.
October 29 - Convocation
October 31 - LAWPRO 2015 Third Quarter Real Estate and Civil Litigation Levy Surcharge filings and applicable payments due.
November 3 - LAWPRO E-file Deadline. LAWPRO renewal applications for 2016 professional liability insurance must be e-filed on or before this date to be eligible for the $25 per lawyer e-filing discount (subject to Program approval by Convocation).
November 10 - LAWPRO Final deadline to submit LAWPRO renewal application for 2016 professional liability insurance.