Practice of Law
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From time to time, we receive questions about fee referral “pitches” and whether such fees can be paid and received without causing a lawyer to act in breach of the rules set out in the Code of Professional Conduct.
The Code has rules and commentaries that relate to the division of fees and referral fees. Rule 3.6-7 specifically prohibits a lawyer from directly or indirectly sharing, splitting, or dividing his or her fees with any person who is not a lawyer and from giving any financial or other reward for the referral of clients or client matters to any person who is not a lawyer.
From time to time lawyers receive telephone calls or emails from individuals who indicate that they want to help increase the number of new cases that the lawyer takes on. For example, a caller explains that his company will provide contact information to potential clients in whatever practice area or geographic area that the lawyer selects. It is not a directory service but some form of customized referral process that relies upon the company’s technology. When asked how the company makes money from the proposed referral process, the lawyer is told that he will be required to pay a flat fee each month to the company although they will not charge a fee for each referral. The caller is from another jurisdiction and is not a Manitoba lawyer. Under the circumstances, the proposed payment system would amount to a referral scheme that no Manitoba lawyer could participate in without breaching the referenced Code referral fee rules. If you have become involved in this kind of an arrangement, you should revisit it in light of the Code restrictions.
Certain types of referral fee payments are allowed. With the exception of referrals as a result of conflicts, Rule 3.6-6 allows a lawyer who refers a matter to another lawyer because of the expertise and ability of the other lawyer to handle the matter to receive a referral fee but there are a couple of conditions that must be met. First, the fee itself must be reasonable. Second, the client must be informed about it and must consent to its payment. You might wonder what a “reasonable” fee might look like. You might also wonder why the Law Society would even care about a referral fee arrangement where the client consents.
Consider the following situation. A lawyer who does not practise in the area of family law at all meets with one of his long-standing clients who now needs a divorce. The lawyer says he doesn’t practise in that area but can make a referral to a lawyer in another firm who does this work. The lawyer who accepts the domestic retainer agrees to pay 15% of all fees generated back to the lawyer who made the referral. The domestic case may take several years to complete and the client may end up paying in excess of $40,000 to the family law lawyer. Would it be reasonable for the referring lawyer to receive $6,000 in fees simply for making the initial referral? Even if the client purportedly “consents” to the referral fee, at the beginning of a retainer the client would have no idea how much the referring lawyer ultimately will be paid. How could consent, under those circumstances, be described as “informed?” What would the client say if he knew that in order for the domestic lawyer to keep up those anticipated long-term referral payments, she had to charge a higher hourly rate?
Where the Code allows payment of a referral fee from one counsel to another, it stands to reason that the fee must be fully known (i.e. quantifiable) in order for the client to provide informed consent. Before considering any kind of division of fees or fee referral payments, consult the Code and please call us if you have any questions about whether the contemplated arrangement is appropriate having regard to your ethical obligations.
From the Court of Queen’s Bench for Saskatchewan
The Court of Queen’s Bench has issued an Administrative Notice to endorse revised template orders for receivership and for orders pursuant to The Companies’ Creditors Arrangement Act. The Administrative Notice together with the endorsed templates and explanatory notes can be found on the Courts’ website.
From the Court of Queen’s Bench for Saskatchewan
The Court of Queen’s Bench has updated two of its practice directives:
Criminal Practice Directive #1: Amendments to Criminal Practice Directive #1 require the Crown to provide written summaries of evidence in the event of a direct or preferred indictment, and address changes to the scheduling of criminal pre-trial conferences.
General Practice Directive #5: Amendments to General Practice Directive #5 clarifies when counsel are required to gown.
The Court’s current practice directives can be found on the Courts’ website.
Innovating Regulation: An Update on the Prairie Law Societies’ Law Firm Practice Management Pilot Project
By Barbra Bailey, Policy Counsel, & Brenda Hildebrandt, QC, Bencher
Law Society of Saskatchewan
The Legal Profession Act, 1990 was amended in 2014 to include firms as members of the Law Society. Under the Act, one of the duties of the Law Society is to protect the public by assuring the integrity, knowledge, skill, proficiency and competence of members. As the Law Society works to design a framework for regulating law firms in addition to lawyers, it has been exploring a proactive approach. This would allow both law firms and the Law Society to be more responsive to a diverse and profoundly changing environment, to enhance the quality of legal services, to encourage ethical legal practice and to foster innovation in legal services.
Over the past couple of years, the Law Society has communicated with the membership in a variety of forums regarding the concept of proactive firm/entity regulation. However, in developing resources and a method of assessment, a more specific consultation was desired.
The Assessment Tool
To determine the most meaningful way to engage with law firms though proactive regulation, the Law Society of Saskatchewan has been participating in a pilot project to test a new resource that helps firms assess the robustness of their practice management systems and firm culture. Created by the Prairie Law Societies, the Law Firm Practice Management Assessment Tool (the “Assessment Tool”) helps a firm recognize its strengths and provides “things to consider” in areas where opportunities for improvement have been identified. These include examples of how a law firm might put practices, policies or procedures into place, along with links to further resources that law firms can use in addressing practice management concerns.
The Assessment Tool places the focus on the firm because we know that the systems, norms and culture of a firm greatly influence the conduct and overall practice of its lawyers. We also recognize that lawyers are busy people and collecting resources and assessing infrastructure can be time-consuming. By its design, the Assessment Tool is intended not only as an evaluation mechanism, but also as a convenient source of best practice resources for firms. The content of the Assessment Tool is designed to help firms think about ways to best serve their clients, their lawyers and their employees. This fosters both public protection in ethical, efficient practice as well as good business.
The Pilot Project
As the regulation of law firms is a relatively new idea in Canada, it was important to the Law Society to test the Assessment Tool through a pilot project and receive feedback from members before determining whether this new approach should be implemented and, if so, how. We collaborated with the Law Societies of Alberta and Manitoba to design the Prairie Law Societies’ Law Firm Practice Management Pilot Project (the “Pilot Project”). The goal was to test the functionality of the Assessment Tool and determine how it could be used in helping firms work with the Law Society to ensure sound practice management systems are in place.
Pilot Project participants were identified by randomly selecting firms of various sizes throughout the province, providing a representative sample of Saskatchewan firms. Those firms were then invited to voluntarily participate in the Pilot Project. Ultimately, 22 Saskatchewan firms participated. A similar process was followed in Alberta and Manitoba.
Participating firms were asked to designate a representative to be the point person for the Pilot Project. The designated representative’s task was to ensure the firm undertook the self-assessment, using the Assessment Tool, which references a number of principles relating to practice management and firm culture. The designated representative then reported to the Law Society about things that the firm has been doing well and also identified areas for improvement. The designated representatives were then asked to complete an evaluation of the Assessment Tool, and conduct an exit interview about their experience. This feedback has been extremely informative and will be crucial to the determinations the Benchers will make about the ultimate assessment process.
Where do we go from here?
The Pilot Project is in its final stages and the Law Society will now take some time to review the feedback received from the participants before determining the next steps for this initiative.
The ultimate goal is to foster a more collaborative relationship between the Law Society and its members, including firms, and to help lawyers and firms manage risk so that the likelihood of conduct leading to a complaint or negligence is minimized. As the Law Society moves toward implementing a proactive approach to regulating law firms, it will strive to create an approach that is practical, productive and meaningful for both the Law Society and our members.
Pilot Project Participants
The feedback we have received from the participating firms has been invaluable. Our thanks is extended to each of them for the time they have dedicated to the project and the input they have provided:
- Behiel Will & Biemans (Humboldt)
- Chow McLeod (Moose Jaw)
- Cindy M. Haynes Law Office (Regina)
- Cuelenaere Kendall Katzman & Watson (Saskatoon)
- Gerrand Rath Johnson LLP (Regina)
- Griffen Toews Maddigan (Regina)
- Hnatyshyn Gough (Saskatoon)
- Hodgson-Smith Law (Saskatoon)
- Kanuka Thuringer LLP (Regina & Swift Current)
- Kohaly Elash & Ludwig Law Firm LLP (Estevan)
- McKercher LLP (Saskatoon & Regina)
- Miller Thomson LLP (Saskatoon & Regina)
- MLT Aikins LLP (Saskatoon & Regina)
- Noble Johnston Law Office (Regina)
- Novus Law Group (Prince Albert)
- Olive Waller Zinkhan & Waller LLP (Regina)
- Perkins Law Office (Meadow Lake)
- Robertson Stromberg (Saskatoon)
- Scharfstein Gibbings Walen & Fisher LLP (Saskatoon)
- Uppal Pandher LLP (Regina)
- Wagner Law (Saskatoon)
- WMCZ Lawyers (Saskatoon)
[Originally published in Benchers’ Digest, Winter 2017 issue]
Valerie A. Payne, Complaints Counsel
Law Society of Saskatchewan
If you decide to “hang up your own shingle” and commence a legal practice (or business in which you provide legal advice and services), you are required to notify the LSS auditors by completing either a TA-1 Commencement form or TA-7 Exemption form.
This is true, regardless of whether you plan to have a trust account or not.
Both forms are contained in the same document, which can be found on the Law Society’s website. You would complete the TA-1 information if you intend to commence with a trust account, and the TA-7 portion if you intend to commence without a trust account. The auditors are happy to assist you with determining whether you should have a trust account, and with completion of the forms, if you have any questions.
This tip first appeared in Volume 30, Issue 4 of the Benchers’ Digest (Winter 2017). All issues of the Benchers’ Digest back to 1997 are available on the Law Society website. A searchable Professional Conduct Rulings Database is also available. Please check out both for more guidance.
Bencher, Law Society of Saskatchewan
The Law Society regularly receives enquiries from lawyers regarding the rules relating to the storage, composition, and destruction of client files. Increasingly, these enquiries include questions relating to the proper use of electronic, or “paperless” filing systems. Law Society Practice Advisors have indicated that they are seeing a significant increase in attempts by practitioners to run “paperless”, or fully electronic filing systems. The Rules of the Law Society of Saskatchewan do not dictate either that client files need to be in paper format, or that lawyers are entitled to maintain digital (electronic) client files. The Rules apply in the same fashion, regardless of the format of a client file. A lawyer must be in a position to produce a complete file to the Law Society or to a Practice Advisor of the Law Society, on demand.
For some, the concept of a digital client file is unnerving, but with the right digital file system, there are many advantages including advanced search capabilities and lack of the need for physical file storage space. Just as ‘brads’ are an important part of keeping correspondence on a paper client file in chronological order, digital file naming conventions are key for filing correspondence chronologically in a digital client file.
In order to assist members who are maintaining digital client files, or who are thinking about starting a digital practice, the Law Society’s Professional Standards Committee formed a small sub-committee consisting of lawyers Colin Clackson, Q.C., Andrew Mason and Riley Potter, together with Benchers, Ronni Nordal and David Rusnak, Q.C.
Colin, Andrew and Riley all maintain electronic client files, and each has their own way of managing files. It became clear quite quickly that, just as is the case with paper client files, there are a number of different ways a proper client file can be maintained, and each member will need to determine what works best for him/her. After sharing ideas and much discussion, the Committee has developed a document entitled “Practice Tips for Maintaining a Digital Practice”, for the assistance of the membership.
We hope these Practice Tips will assist members in setting up and maintaining a proper digital client file system. To further assist, a webinar will be presented in March 2018 featuring Law Society of Saskatchewan Practice Advisor, Jeffrey Scott, Q.C., and Sub-Committee member, Colin Clackson, Q.C. Jeff will review the expectations of the Practice Advisors when requesting to review a client file (whether paper or electronic) and some of the pitfalls members have fallen into when not properly maintaining client files. Colin will then show examples of a digital law practice and client files, that will make even those members who still only have a ‘flip phone’ realize that it truly is possible to have digital client files and a digital law practice. For more information about the upcoming webinar, please visit the Continuing Professional Development page.