Category Archives: Lawyer stuff

Posts about lawyers

Pick any two …

455px-Project-triangle.svgMany years ago, I first heard the following:

“You can pick any two of the following: fast, good or cheap.”

The idea is that customers buying goods or services would like to have it all: high quality, delivered quickly and at a low price.

“Pick any two” reflects the reality from the perspective of the manufacturer or service provider.   Providing any combination of two of these three characteristics can be done relatively easily, but only by sacrificing the third element.  In other words:

  • You can have it delivered fast and at a high quality, but it won’t be cheap.
  • You can have it delivered fast and cheap, but it won’t be high quality.
  • You can have it delivered at a high quality and cheaply, but it won’t be fast.

A more nuanced way of looking at it is that speed, quality and price must be balanced.  If you want more of one (or two) of these elements, then the result is a trade-off against the remaining one.

We see this balancing act at play in the delivery of legal services at our firm.  Here is how we approach the problem.

Firstly, high quality is always our top priority.  Among other things, this is a function of being professionals: we simply won’t agree to provide lower quality legal services.  Of course, clients want that as well.  We’ve never had a client ask for lower quality legal advice and representation.

Our main focus is to balance the other two issues: speed and price.  We work with our clients to help them choose whether speedy delivery of services or a lower price is more important.

Our experience most often is that clients want the high quality legal services as quickly as possible.  The challenge is to identify how fast is necessary.  If the matter has to be prioritized ahead of already existing commitments to our other clients, then this means that we have to “find” the time elsewhere by reallocating our resources.  In practical terms, this means working overtime to meet the client’s needs.  This is reflected in a higher price.

Sometimes the choice is already made.  When a client comes to us with an imminent court date or a real estate transaction closing on a tight timeline, the “any two” have already been allocated.  The client receives high quality legal services quickly, but this is reflected in the price.

There are several ways to control costs for clients.

First, we can sometimes bundle some legal services together so that they are priced lower that the components would be if purchased separately.  The best example of this is in our estate planning services.  We offer bundled pricing for the most common estate planning documents: a Will, Enduring Power of Attorney and Personal Directive.

Another approach is so-called “unbundling” of legal services.  Here the lawyer and client  agree to limit the scope of the legal services being provided.  Essentially, this means limiting the quantity of what the lawyer does.  In this model of delivering legal services, lawyer and client examine the range of tasks necessary to deal with a legal problem and decide which tasks the lawyer will deal with, and which the client will handle.  This allows the client to have better control over his or her budget for legal expenditures.

Overall, maintaining high quality and getting the best balance between speed and price is our day-to-day focus at Patriot Law.

The Roles and Responsibilities of Client and Lawyer

handshake3An effective lawyer-client relationship is based on mutual trust and respect. To have this trust and respect, both client and lawyer need to understand each other’s roles and responsibilities.  These roles are very different, but the are complementary to each other.  Here is how we see it at Patriot Law.

 

The client’s role and responsibilities

The client is the person who makes the important decision that he or she requires a lawyer for some reason.  The client hires the lawyer and gives the lawyer his or her instructions.  For example, the lawyer may be hired (or, as lawyers sometimes say, “retained”) to represent the client in a real estate transaction as buyer or seller, or a court case, or preparing a Will.

The client’s role is to make all of the important decisions in a legal matter.  For example, it is the client’s role to:

  • decide whether to enter into a contract (or to breach a contract, for that matter);
  • decide who to name as executor of the client’s Will;
  • decide whether to commence divorce proceedings;
  • decide whether to start a lawsuit, or defend against a lawsuit in which the client is named as a defendant; and
  • decide whether to settle a lawsuit, and on what terms.

In working with a lawyer, the client is responsible to do two major things:

  • make the key decisions (such as those noted above) when required; and
  • provide the lawyer with the information (and records) necessary to understand the facts applicable to the legal matter.

The lawyer’s role and responsibilities

The lawyer brings to the table legal knowledge and expertise that the client does not have have.

The lawyer’s role is to provide the client with two main things:

  • Advice as to what law applies to the factual situation that the client brings forward, how that law applies to the client’s facts and what client should do to address the legal issue or problem; and
  • If the client requests it, representing the client by taking certain actions on the client’s behalf.  This may be representing the client in a court case, where the lawyer literally speaks on behalf of the client to the Judge.  It can also mean taking a client’s wishes for how to deal with his or her estate and putting it on paper in a Will that will ensure that the client’s intent is achieved.

In working with a client, the lawyer is responsible for many things, including:

  • being knowledgeable about the law (in the areas in which the lawyer practices, of course);
  • being thorough and analytical in applying the law to the client’s factual situation;
  • being practical is making recommendations on courses of action and the consequences of those courses of action; and
  • being ethical and civil in dealing with the client as well as others such as an opposing party, the court and the public in general.

Synergy between lawyer and client

More than anything else, the key to having an effective relationship is for both lawyer and client to realize that their relationship is dynamic and requires open, effective and honest communication,  The lawyer cannot do his or her best job unless the client is forthcoming about the facts, even if they may be unpleasant or embarrassing.  On the other hand, the lawyer must help the client to understand what kinds of information or facts are important in a given case.

The best client-lawyer relationships are characterized by very effective communication. This creates the best conditions in which mutual trust and respect develop and are maintained.

There are limits on what a client can require a lawyer to do.  This will be the topic of a future blog post.

Legal services provided on a “limited scope”

When you are involvedHandshake in a legal dispute – be it a divorce, the breach of a contract or a wrongful termination from employment – the path to resolution can be lengthy. Many lawyers (and clients, for that matter)  think of legal services being delivered in this type of situation over a significant span of time, where the lawyer advises and represents the client throughout the process of resolving a dispute.  But not all clients want, or can afford, legal services provided in this way.

Some clients would prefer it if they could retain a lawyer to help with just one  aspect (or a few aspects) of their legal problem, while the client does the rest.  Alternatively, the client would prefer to actively control the conduct of the case, and determine if, when and in what circumstances legal advice or skills is necessary.   In order words, the client wants a more limited range of legal services to be provided by the lawyer.

This type of delivery of legal services is referred to by lawyers using various terms:  “limited scope” legal services, “brief legal services” and “unbundled legal services”.  The concept is that a client decides to retain the lawyer to perform only certain very specific legal services.  The client is responsible for everything else.  Another way to think of it is that a person is generally self-represented, but retains a lawyer to assist with those portions of the matter where the lawyer can most effectively assist the client, but within the client’s limited budget.

Here are just a few of the things that a lawyer can do on a limited scope basis:

  • Meet with a client to provide an initial assessment and explanation of the client’s general legal situation.  The client is obtaining an understanding of the law as it applies to his or her factual situation.
  • Write a “demand letter”.  The client uses the lawyer’s skills of knowledge, persuasion and determination to attempt to resolve a dispute at the earliest possible point.
  • Assist a client in drafting court documents.  The client is tapping into the knowledge and experience that a lawyer has in properly presenting evidence to be used in a court process.
  • Assist a client in a specific court appearance.  The client is leveraging the lawyer’s skill in advocating on behalf of the client in an environment (the court room) in which few non-lawyers are comfortable.
  • Research a point of law.  The client gets a thorough review of the law that applies to the client’s facts, summarized so that the client can thoroughly understand the law – or a part of the law – that applies to his or her individual circumstances.  This helps with effective decision-making.

It is important to note that the high degree of competence, diligence and ethical behavior required by lawyers are not reduced in any way when legal services are delivered on a limited scope basis.  All that is different is the scope – the range and duration – of the services to be delivered by the lawyer.

Not all lawyers are comfortable with providing limited scope legal services, just as not all clients are well suited to receiving limited scope legal services.  What is important to understand, however, is that it is an option that is appropriate for some clients in some circumstances.

If you think that limited scope legal services might be right for you, talk to your lawyer about it.  If your lawyer does not do limited scope work, then ask for a referral to a lawyer who does this type of work.  When enough clients start asking for limited scope legal services, lawyers will meet the demand.

At Patriot Law Group, we offer the option of limited scope legal services when they are appropriate to both the situation and the client.

 

What makes the legal profession a “profession”?

court roomLawyers take pride in being members of the legal profession.  But what does that mean?  What is a “profession”, and why are lawyers considered professionals?

There are plenty of definitions of professions out there, but most of them boil down to sharing these characteristics:

  • Use of a skill and knowledge acquired as a result of prolonged training which enables a person to render specialized services.
  • A sense of responsibility to the public (society) as result of the person’s possession of the specialized knowledge and skills.
  • A sense of group identity and a system of internal (self) administration based on a body of ethics and standards of performance.

Historically, the first recognized professions were physicians, lawyers and religious ministers. Looking at the characteristics noted above, it is easy to see why this was the case.  In the case of lawyers:

  • The knowledge of the law and the skill in its application to a wide variety of circumstances to avoid or resolve problems is gained through training extending for 3 years beyond the undergraduate level, with an additional period of supervised “articling” (akin to apprenticeship) to an experienced lawyer and a lifelong commitment to continuing education and development.
  • The sense of duty to serve those in need of legal advice and representation is deeply ingrained throughout the training and services of lawyers.  This is why most lawyers provide some of their legal services on a pro bono (no fee) or “low bono” (reduced fee) basis.  (For example, at Patriot Law Group we have a long history of providing basic legal services free of charge to World War 2 and Korean War veterans.  (That is part of why we use “Patriot” in our law firm name.)
  • The group identity is maintained through our system of regulation by a Law Society (in Alberta, the Law Society of Alberta) which includes strict standards of performance and a code of ethics (the Code of Conduct in Alberta).

As society has progressed and become more complex, additional professions have been recognized.  For example, all of our lawyers at Patriot Law Group have had earlier careers as commissioned officers in the Canadian Armed Forces, part of the military profession.

Other well-recognized professions today include (to name just a few):

  • Chiropractors
  • Dentists
  • Optometrists
  • Pharmacists
  • Veterinarians
  • Accountants
  • Architects
  • Engineers
  • Professors

So, professions have a long history.  At Patriot Law Group, we take our responsibility as professionals seriously.  We regularly apply our professional experience and knowledge gained as military officers to our work as legal professionals.  We think it makes us better professionals.  It helped us define our approach to everything we do as lawyers:  Do the right thing for the right reason.

Solicitor-Client Privilege – a Principle of Fundamental Justice

When you meet with a lawyer for the first time, the lawyer will likely tell you that everything you say to him or her is confidential.  Have you ever wondered why this is?  Or, perhaps you have wondered how confidential?

Communications between a lawyer and a client are governed by a long-established and special degree of confidentiality which has, in recent years, been elevated to an almost quasi-constitutional right.

The definition of solicitor-client privilege that continues to be used frequently, despite its age, was coined by John Henry Wigmore, an American jurist and expert in evidence.   The definition is as follows:

“Where legal advice of any kind is sought from a professional legal advisor, in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the privilege be waived.”

Much has been written about the importance of solicitor-client privilege and this short blog post cannot possibly provide a comprehensive analysis,  just a short snapshot.  In the simplest sense, however, solicitor-client privilege is absolutely necessary for the proper operation of our justice system and the rule of law.  This is  because it permits lawyers to provide committed client representation with undivided loyalty to the lawyer’s client.  A lawyer needs to have full and frank discussions with his or her client in order to provide that proper representation.

A recent Supreme Court of Canada decision (Canada A.G. v. Federation of Law Societies of Canada, [2015] S.C.J. No. 7) looked at the importance of solicitor-client privilege in the context of Canada’s federal anti-money laundering regime (which would have required disclosure of client names and certain other particulars in the context of certain financial transactions).   The Supreme Court ruled unanimously that the 2008 regulations requiring this disclosure were unconstitutional as they applied to Canadian lawyers and law firms.

There are only a few, very narrow, exceptions to solicitor-client privilege:  where there is an imminent threat to public safety, or where a party’s “innocence is  at stake.”

In the end, you can be confident that your conversations and communications with your lawyer are highly confidential, and that they need to be.

If you are interested in a comprehensive discussion of solicitor-client privilege in Canada, you may be interested in a paper prepared by Professor Adam Dodek of the University of Ottawa for the Canadian Bar Association.

Legal writing vs. Legalese

You don’t have to look too far to find “legalese” in your life. Look at your mobile phone bill or your iTunes terms of use or the so-called bumper-to-bumper warranty on your car. We really aren’t fans of it, either.

The thing is that not all legal writing is really legalese. Every profession and every industry has its own terminology, jargon and pet phrases. The legal profession is no different. For example, I had never heard or read the word “sedulously” until I went to law school (I  am yet to use it in speech or writing, but I bet it would kill in Scrabble).

Some of the terms we use have a very specific and clear meaning, even though the term may be completely unfamiliar to non-lawyers. For example, in a will, a “per stirpes distribution” has a clear and definite meaning that can save the lawyer from having to write a paragraph of explanation. The problem is that most people need that term explained and this is why we generally prefer the plain language version, even if it takes a little longer to say or write. (Incidentally, our support staff get the double-whammy of hearing both legal jargon and military slang – including the odd bit of jackspeak).

Aside from obscure terms, another complaint about legal writing is that it’s just too wordy. We learned in law school that lawyers are professionally descended from scribes, who were paid by the word. (I assure you that this is no longer the case.) This payment scheme explains how redundancies like “null and void” and “cease and desist” came about.

However, not every long-winded document is chock-full of filler words. We often see real estate deals or separation agreements written from scratch or filled in from a Mad Libs-like online form. The people that bring these in are often surprised to find out that their nice, short document does not do what they want it to do (or may be entirely unenforceable) because certain provisions are missing.  A comprehensively written document, while a bit of a long read, can go a long way to properly identify and protect your rights.

At Patriot Law Group, we are big on clarity. We want to do more for our clients than just deliver a fair result; we want our clients to understand what we’re doing and why we’re doing it, so they will understand what they’re signing and why. This is one of the reasons we prepare plans for our clients and it’s a big reason why we write in plain language as often as possible.

If I had to sum up my thinking on legal writing in two words, I would say, “eschew obfuscation.”

Lawyers and Continuing Professional Development

You might be interested to know that a lawyer’s education and professional development do not end after being called to the bar.  Lawyers, like other professionals, have an ongoing obligation to ensure that their knowledge and skills remain “current.” In Canada, lawyers are regulated provincially.  As a result, the technical requirements for professional development vary from province to province.

In Alberta, lawyers must prepare an individualized Continuing Professional Development Plan annually, and provide a declaration to the Law Society of Alberta confirming this.  The content and time requirements for the plan are not mandated; lawyers can choose the various activities to be included in their plan to meet their personal goals and objectives.  Common activities that might be included are:

  • Attendance at educational seminars;
  • Individualized research or reading;
  • Completion of courses;
  • Review of journals or other publications on a recurring basis; and
  • Participation as an instructor for seminars or courses.

Other provinces in Canada are more prescriptive with respect to professional development and require that lawyers track hours spent on approved activities.  For example, in Ontario, the Law Society of Upper Canada requires practicing lawyers to complete at least 12 hours in “eligible educational activities” consisting of a minimum of 3 hours on topics related to professional responsibility and ethics, and up to 9 hours on issues relating to substantive or procedural law topics or skills. In British Columbia, the requirements are similar (12 hours of time spent) but the breakdown of those hours is slightly different. In Saskatchewan, the focus is on 36 hours of “accredited CPD activities” over a 3 year period. In Manitoba, 1 hour must be spent on professional development each month.

In the end, however, regardless of the specific technical requirements, professional development is an extremely important issue. At Patriot Law Group, we take our professional development very seriously. All of our lawyers have detailed professional development plans in place so that we can ensure we are always in a position to provide the best advice and legal services to our clients.

The Law Society of Alberta – Resources for the public

The Law Society of Alberta is the organization that regulates practicing lawyers in Alberta, including all of the lawyers at Patriot Law Group.  The legal profession, like many other professions is “self-governing”.  This means that lawyers are primarily responsible for regulating members of the profession in the public interest.

For your convenience, here is a short list that we have compiled of some of the things that the Law Society can do for members of the public (all of which can be accessed from the Law Society of Alberta web site):

  1. It can help you to determine if you need a lawyer and provide information about what lawyers do and what education and training they have.
  2. It maintains a handy online Lawyer Directory with contact information for currently practicing and non-practicing lawyers who are members of the Law Society.
  3. It can help you find a lawyer through the Lawyer Referral service. At Patriot Law Group, if you come to us with a legal problem that we cannot handle for you, we will either recommend a specific lawyer that we know of with expertise in the area, or we will give you the contact information for the Lawyer Referral Service.
  4. It can put you in touch with Legal Aid Alberta, which subsidizes the cost of legal services for very low income Albertans.
  5. It can put you in touch with Dial-a-Law, a free service that provides basic legal information (but not advice) about common legal issues such as buying a house, what to do when you face a separation or divorce, and so on.
  6. It can give you basic background information on how to work effectively with a lawyer and how to understand legal fees in order to maximize the value that you derive from legal services.
  7. It can help you to determine if a lawyer that you are thinking of hiring has a disciplinary record.
  8. It provides a process to resolve complaints regarding a lawyer’s ethical conduct.
  9. It can provide you information on how to make a financial claim against a lawyer if you believe that you have suffered a financial loss for which the lawyer is responsible.

What’s the best part?  All of this (and much more) is financed and provided by Alberta lawyers at no cost to the public.

What is a “Commissioner for Oaths”, anyway?

People often come to us at Patriot Law Group asking that we “commission” documents for them. This usually means they need someone to administer an oath to properly execute the document (although sometimes they really need the services of a Notary Public). Certain documents require more than just a signature to verify that the contents of the document are true. The person who is signing the document must somehow indicate that what they have signed is true and accurate. For example, an affidavit to be filed in court must be given under oath or by affirmation.  A declaration of common law status to Canada Revenue Agency is made as a solemn declaration. A Commissioner for Oaths is a person who is authorized to administer oaths, affirmations, and solemn declarations.

In Alberta, the appointment of Commissioners for Oaths is governed by the provincial Commissioners for Oaths Act.

Members of certain professions are empowered to be Commissioners for Oaths by virtue of their status as a professional. Members of the Law Society of Alberta (lawyers, students-at-law) judges, police officers, Notaries, commissioned officers of the Canadian Armed Forces (who serve full-time), municipal councilors, school board trustees, provincial MLAs, Members of Parliament from Alberta and members of the Senate who live in Alberta are all empowered as Commissioners for Oaths in Alberta and can administer oaths. Their “commission” remains in effect as long as they remain an active member of their profession or in their positions.

People outside of these occupations can be appointed a Commissioner of Oaths by the government but their commissions expire after three years unless they are renewed.  Many support staff members at law offices, insurance brokers and municipal offices have this type of Commissioner.

It is important to remember that a Commissioner for Oaths in Alberta can only administer oaths for documents to be used within Alberta. If a document is going to be used outside of Alberta or sworn by a person who resides outside of Alberta, the person signing will generally need the services of a Notary Public.

It is also important to understand that a Commissioner for Oaths is only empowered to administer an oath, affirmation or solemn declaration. You need a Notary Public to get notarized copies of documents and you still need a lawyer for legal advice.

Acting as Commissioners for Oaths is just one small part of what we do at Patriot Law Group.

Canadian Bar Association – It’s an Important Organization

All of Patriot Law Group’s lawyers are members of the Canadian Bar Association (CBA).  Further, Ed Gallagher is a member of CBA’s “Council” for Alberta.

So, you may wonder, what is the CBA all about?

The CBA is a professional, voluntary, organization formed in 1896 and incorporated by a Special Act of Parliament on April 15, 1921.  The Alberta branch of the CBA was formed in 1915.

The CBA is an ally and advocate of all members of the legal profession and focuses on the interests of justice for all Canadians, more generally.

The mandate of the CBA is to:

  • improve the law;
  • improve the administration of justice;
  • improve and promote access to justice;
  • promote equality in the legal profession and in the justice system
  • improve and promote the knowledge, skills, ethical standards and well-being of members of the legal profession;
  • represent the legal profession nationally and internationally; and
  • promote the interests of the members of The Canadian Bar Association.

The CBA has a lot of political influence nationally and provincially.  The federal Minister of Justice normally attends the CBA annual conference.

At Patriot Law Group, we strongly support the work of the CBA.  If you want more information about the CBA, check out their website.