Client Service and Communication Practice Management Guideline

The Guideline is not intended to replace a lawyer's professional judgment or to establish a one-size-fits-all approach to the practice of law. Subject to Guideline provisions that incorporate legal, By-Law or Rules of Professional Conduct requirements, a decision not to follow the Guideline will not, in and of itself, indicate that a member has failed to provide quality service. Conversely, use of the Guideline may not ensure that a lawyer has delivered quality service. Whether a lawyer has provided quality service will depend upon the circumstances of each case.


Table of Contents


2.1 Introduction

Successful lawyers are competent managers of client expectations - they manage and meet their clients' expectations. Clients have expectations about many aspects of their lawyers' services, ranging from the legal results to be achieved to the frequency of reporting by their lawyers. Managing client expectations is accomplished by reaching a consensus between lawyer and client.

The Client Service and Communication Guideline views client service as an agreement, explicit or implicit, between the lawyer and the client. The lawyer and client agree on what the client may expect from the lawyer and the lawyer promises to meet those expectations. The process of managing and then meeting client expectations will be subject to ongoing revision as the matter progresses or new developments arise.

The Guideline is a tool to assist lawyers in avoiding misunderstandings with their clients. Not every topic or issue raised in the Guideline will apply to all matters. For example, in limited-scope retainers, such as where the lawyer is only required to issue a demand letter, there may be no need to discuss the circumstances that will give rise to termination of the retainer. In more complex cases, lawyers will find it necessary to document in detail communications relating to termination of the retainer.

The Guideline provides a practical tool for lawyers to manage their client service and communications with success.

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2.2 Initial Contact Between Lawyer and Client

At the commencement of the lawyer-client relationship, the lawyer should

  • determine who is or who are the clients
  • identify and verify the identity of the client and third parties, where necessary, in compliance with Part III of By-law 7.1
  • ascertain the client's objectives, and
  • obtain relevant information about the matter.

The lawyer should only receive instructions from the client or clients.

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2.3 Clients

2.3.1 Institutional Clients

Lawyers acting for institutional clients should determine which officers, employees or agents of the organization may properly instruct the lawyer on behalf of the institutional client.

Lawyers should confirm with the agents of the institutional client that the lawyer acts and owes duties to the organization and not the individuals who act as its agents.

If the lawyer is retained to act for both the institution and any officer, employee or agent of the corporation in the same matter, then the lawyer shall comply with the joint retainer rule. [Rule 2.04(6) of the Rules of Professional Conduct]

2.3.2 Clients Under Disabilities and Their Lawful Representatives

Lawyers providing legal services for individuals who lack legal capacity to give instructions or enter into binding relationships should determine and confirm who is the individual's lawfully authorized representative.

The lawyer should confirm with the authorized representative whether the lawyer is retained to act for the individual lacking capacity, the representative, or both. If the lawyer is to act for both in the same matter, then the lawyer shall comply with the joint retainer rule. [Rule 2.04(6) of the Rules of Professional Conduct]

Whether or not a lawfully authorized representative has been appointed for a client under a disability, the lawyer shall comply with Rule 2.02(6) of the Rules of Professional Conduct.

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2.4 Joint Retainers

Lawyers acting for two or more clients in the same matter shall, before accepting the joint retainer, comply with Rule 2.04(6) of the Rules of Professional Conduct.

2.4.1 Acting for Borrower and Lender, Exceptions

Lawyers shall not act for both lender and borrower in a mortgage or loan transaction subject to the exceptions set out in the Rule 2.04(12) of the Rules of Professional Conduct.

2.4.2 Acting for Transferor and Transferee, Exceptions

An individual lawyer shall not act for both the transferor and the transferee in a transfer or title to real property, unless at least one of the exceptions in Rule 2.04.1 of the Rules of Professional Conduct applies and the lawyer is able to comply with Rule 2.04 regarding conflicts of interest.

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2.5 Client Identification and Verification

When retained to provide professional services to a client(s) lawyers shall comply with governing identification and verification requirements outlined in Part III of By-Law 7.1.

When retained to provide professional services, unless an exemption applies, lawyers shall identify the client and/or third parties and keep a record of the information obtained as set out in By-Law 7.1.

When lawyers are engaged in or give instructions regarding the receipt, payment or transfer of funds, unless an exemption applies, lawyers shall verify the identity of the client(s) and/or third parties and keep a record of the information obtained as set out in By-Law 7.1.

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2.6 Identifying the Essential Terms of Engagement

If a lawyer agrees to provide legal services to the client, the lawyer should discuss with the client the essential terms of the engagement.

The essential terms that should be discussed and agreed upon will vary depending on the circumstances of the matter. Relevant circumstances may include

  • type, urgency, complexity, or scope of the legal services to be provided
  • whether the client is a new, current or former client.

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2.7 Engagement Letters and Retainer Agreements

Lawyers should consider whether the terms of the engagement should be reduced to writing to avoid any misunderstanding between lawyer and client.

Essential terms of the engagement may be confirmed by way of

  • retainer agreement executed by the client, or
  • engagement letter.

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2.8 Non-Engagement Letter

If a lawyer determines that he or she will not provide legal services to a client either because the client does not retain the lawyer or the lawyer refuses the engagement, the lawyer should consider whether to confirm the non-engagement in writing immediately and advise of any limitation periods.

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2.9 Client's Expectations, Objectives and Options

Lawyers should discuss with their client

  • client objectives and expectations
    • specific legal services the client will receive from the lawyer
    • specific results the lawyer is likely to achieve for the client
    • costs associated with achieving those objectives
    • time required to complete the legal services and achieve the results
     
  • client's instructions
    • choice of options or strategies the client instructs the lawyer to pursue
    • impact of choosing particular options or strategies
    • estimated fees and disbursements relative to those instructions
     
  • advice given to the client
    • options recommended
    • explanation of the law
    • referral to other professionals
     
  • course of action
    • strategy to be undertaken by the lawyer
    • estimated length of time required to complete the strategy
     
  • limitation periods relevant to the matter
    • what the limitation period(s) is
    • legal effect of limitation periods on the client or matter
    • preliminary plan or outline of steps to meet the deadline
     
  • risk analyses
    • if the matter relates to litigation, the client's potential liability for court costs
    • risks or benefits associated with the matter
    • lawyer's and, if different from the lawyer's, the client's assessment of whether or not the likely outcome is justified by the expense or risk involved.
     

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2.10 Fees and Disbursements

The lawyer should provide the client with a timely estimate of the fees or disbursements involved so that the client is able to make an informed decision. The estimate should reasonably include

  • basis for charging legal fees
    • hourly rate
    • flat fee
    • other method
     
  • amount and payment date of any
    • initial monetary retainer
    • ongoing monetary retainers
    • accounts
     
  • billing frequency
  • consequences of the client's failure to pay accounts in accordance with the terms of the engagement
  • estimated fees and disbursements including
    • facts or circumstances which form the basis of the cost estimate
    • possible facts or circumstances that may result in an increase or decrease in the estimate
    • that interest on outstanding accounts shall be calculated in accordance with the Solicitors Act.
     

The lawyer should consider implementing a firm policy about fees or billings and/or set out the terms in a letter to the client.

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2.11 Lawyer Responsible for File

At the outset of the engagement, lawyers may provide to the client

  • name of the lawyer primarily responsible for the retainer
  • names of any other persons in the firm who may be involved with the case and the functions each will perform.

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2.12 File Supervision

If a lawyer anticipates changes, or any changes occur, such that the lawyer is unable to meet any of the terms of the engagement, the lawyer should promptly advise the client of

  • changes or anticipated changes
  • reasons for such changes so that the client has an opportunity to determine:
    • if the client wishes to continue with the engagement
    • if the client wishes to vary his or her instructions in light of the changed circumstances.
    Throughout the course of the engagement the lawyer
  • shall ensure that he or she carries out the terms of the engagement in accordance with the Rules of Professional Conduct
  • should ensure that he or she carries out the terms of the engagement in accordance with any agreement(s) between the lawyer and client.

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2.13 Timeliness

Lawyers should discuss with their clients

  • estimated length of time it will take to complete the engagement or matter, including
    • an account of the assumptions, facts, or circumstances on which the time estimate is based
    • an indication of the potential or foreseeable facts or circumstances which may alter the time estimate and how the time estimate will change in light of these facts or circumstances
    • if relevant, an indication of appropriate milestones
     
  • follow up requirements
    • actions or next steps to be taken by the lawyer
    • actions or next steps to be taken by the client, including any requirements for further
      • information or documentation from the client
      • funds from the client on account of fees or disbursements
       
     
  • actions or next steps to be taken by third parties such as investigators, experts or other agents of either the client or the lawyer
  • instructions to be provided to third parties
  • clear indication that if necessary action or next steps are not taken by the client or third parties, the lawyer will be unable to commence or continue with the retainer.

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2.14 Timely and Effective Lawyer-Client Communications

Lawyers should discuss with their clients what constitutes timely and effective communications and should address

  • manner of communication between lawyer and client if communications are to be primarily by
    • telephone, the telephone number or numbers and the person or persons with whom messages may be left
    • e-mail, e-mail address
    • mail, mailing addresses
    • courier, courier address if different from mailing address
    • priority post, mailing address
    • facsimile, facsimile numbers
     
  • how the lawyer will keep the client apprised of the matter on an ongoing basis. Methods of keeping the client informed on an ongoing basis may include sending the client copies of
    • correspondence, including e-mail communications sent or received
    • pleadings or other court documents
    • documents relating to the matter
    • memos to file confirming communications or attendance with the client or third parties
     
  • how the client will keep the lawyer apprised of the matter on an ongoing basis
  • frequency of reporting to the client
    • formally in writing
    • on an informal basis
     
  • estimated time it will normally take for the lawyer to respond to client calls, e-mails, letters or other communications.

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2.15 Keeping Client Informed

Lawyers should advise clients of the progress of a matter at appropriate intervals having regard to

  • requirements of the particular matter or proceeding
  • any agreement between the lawyer and client respecting the frequency of progress reports to be provided to the client

If little or no progress has been made the lawyer should

  • advise the client accordingly
  • indicate to the client the reason(s) for the delay
  • advise what, if any, steps may be taken to ensure progress on the matter continues
  • outline the costs, risks and benefits associated with taking those steps.

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2.16 Responding to Client Communications

When the client contacts the lawyer's office the lawyer should ensure that he or she responds in a timely fashion and in accordance with any time estimates agreed to with the client. In the event the lawyer is unable to respond to the client's contact in a timely fashion or within the time agreed then

  • if the lawyer has support staff, the lawyer should instruct support staff to respond to the client's communication and indicate to the client
    • that the lawyer is unable to respond personally to the client
    • reasons for the lawyer's inability to respond in a timely fashion, and
    • when the client may expect to communicate with the lawyer personally, or
     
  • if the lawyer does not have support staff, the lawyer should ensure that any firm notices or voice mail messages indicate to the caller when a response may be expected, and
  • the lawyer should contact the client in accordance with the amended time estimate given.

If the lawyer is unable to promptly respond to voice mail or e-mail messages because the lawyer is out of the office for an extended period of time, the lawyer should ensure that his or her voice mail or e-mail contains a notification advising of his absence and when the lawyer is expected to return or respond to messages. Lawyers should consider implementing a firm policy that requires

  • lawyer or support staff to respond to all client communications within twenty four (24) hours
  • all messages marked urgent are to be dealt with on a priority basis
  • all telephone attendances or conversations are to be documented or confirmed by way of written memo to the file.

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2.17 Confirmation of Changes to Essential Terms of the Engagement

Lawyers should consider confirming in writing any changes to the essential terms of the engagement. In particular, the following should be confirmed in writing

  • changes in the client's instructions
  • changes in the risk or benefits associated with the matter
  • acceptance or rejection by the client of any offers to settle
  • changes to the client's address or other contact information.

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2.18 Withdrawal of Services, or Otherwise Ending the Engagement

Lawyers should advise the client of the

  • facts or circumstances which may result in termination or withdrawal of services by the lawyer, including
    • client's failure to pay retainers or accounts in accordance with retainer agreement
    • existence of a conflict of interest which cannot be resolved
    • other facts or circumstances contemplated by Rule 2.09 of the Rules of Professional Conduct
      • optional withdrawal
      • mandatory withdrawal
       
     
  • ownership of file contents
    • file documents or contents that will be returned or provided to the client or other counsel at termination of the retainer, or
    • will be retained by the lawyer and will not be provided to the client or other counsel at termination of the retainer and the reasons why those documents will be retained by the lawyer
     
  • charges for file transfer in the event the file is transferred to the client or other counsel
    • whether or not the client will be charged for
      • time and effort in preparing the file for transfer
      • additional photocopies of file documents
      • if closed and in storage, retrieval of the file
       
    • restrictions on file transfer if accounts remain unpaid at the time of transfer.
     

When the engagement is completed or terminated the lawyer

  • shall give the client all information that may be required in connection with the case or matter[Rule 2.09(9)(b) of the Rules of Professional Conduct]
  • should provide in writing a report to the client on the outcome
  • should explain of any further action that the client is required to do or that the law firm will do
  • shall promptly render an account to the client [Rule 2.09(9)(d) of the Rules of Professional Conduct]
  • shall account to client for outstanding money [Rule 2.09(9)(c) of the Rules of Professional Conduct]
  • should advise client about arrangements for storage and retrieval of file contents
  • should advise client whether there is a need for the client to review the matter in the future
  • shall, subject to the lawyer's right to a lien, deliver to or to the order of the client, all documents and property to which the client is entitled [Rule 2.09(9)(a) of the Rules of Professional Conduct]
  • shall in the event the client matter is to be transferred to the client new lawyer, co-operate with the successor lawyer so as to minimize expense and prejudice to the client [Rule 2.09(9)(e) of the Rules of Professional Conduct].

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Resources

By-Law 11, Regulation of Conduct, Capacity and Professional Competence

Establishing the Retainer (PDF)

Guide to Retention and Destruction of Closed Client Files (PDF)

Great Expectations: A Lawyer-Client Handbook (PDF), Canadian Bar Association and Canadian Bar Insurance Association

Law Society Act, s. 41

Non-Engagement Letter - Checklist (PDF)

Non-Engagement Letter - Sample (PDF)

Real Estate, Joint Retainers, Conflicts of Interest, Prohibition Against Acting for Borrower and Lender (PDF)

Rules of Professional Conduct, Rule 2.01

Sample Client Memorandum: Billing Information (PDF)

Solicitor's Liens (PDF)

Withdrawal of Services (PDF)

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