The Law Society of Upper Canada has updated its rules to give guidance to the growing number of lawyers and paralegals who offer unbundled legal services.
At Convocation on Sept. 22, benchers approved amendments to the rules of professional conduct that create a definition for limited-scope retainers allowing lawyers to break down legal matters into discrete tasks.
Lawyers then perform some, but not all, of those tasks, and clients represent themselves for the remainder of the matter.
“Limited-scope retainers can be a valuable tool in enhancing access to justice, particularly for clients who do not qualify for legal aid, cannot afford a lawyer for their entire legal matter or choose to represent themselves for part of their legal matter,” said law society Treasurer Laurie Pawlitza.
“Limited-scope retainers provide a middle-ground option between full legal representation and no legal representation.”
Bencher Paul Schabas, chairman of the law society’s professional regulation committee, told benchers the rule amendments aim to drive home the message that limited-scope retainers shouldn’t equate to low-quality representation.
“It’s intended to make clear that when you provide legal services under a limited-scope retainer, you are to provide them to the same standard of service and competence as a full retainer, and that the client must understand the limited scope of the retainer,” Schabas said.
“We are committed to improving access to justice and ensuring that all legal services, including unbundled legal services, are delivered to the public in an ethical and competent manner,” Pawlitza said.
Under the new rules, lawyers must advise clients of the nature of the retainer and its scope. Because of the potential for confusion and overlap, they must provide the client with confirmation of their services in writing when practicable to do so.
“It’s by agreement with the client, and you must be very clear with the client as to what the nature of that matter is,” Schabas said.
Lawyers whose clients are in custody or separated from them by large distances may not be able to provide written confirmation immediately, but commentary to the rules explains that lawyers should keep a copy on file and provide it to the client as soon as possible.
The only exceptions to the written confirmation are for lawyers acting as duty counsel and those offering summary advice through legal clinics or non-profit hotlines.
The amended rules allow lawyers working on the other side of matters where a limited-scope retainer is in place to communicate directly with the client unless they receive notice of the arrangement. In that case, any communication that falls within the scope of the limited retainer must go through the opposing lawyer.
Bencher Alan Silverstein said he was concerned that this will mean more work for lawyers on full retainers.
“That lawyer now has further responsibilities and probably greater costs to his or her client because we now have to review and analyze that limited-services retainer to know who we deal with,” Silverstein said, adding that there was uncertainty over the consequences for communicating with the wrong party.
While Schabas noted penalties aren’t usually a matter considered in the rules, he acknowledged that lawyers would have to think carefully about who they should be dealing with when opposing parties use counsel on limited retainers.
“The purpose of the rule is to facilitate access to justice, and while it could conceivably result in additional costs, it’s not clear as to how much of an additional cost that would be,” Schabas said.
“On the other hand, the client on the other side is benefiting from the ability to hire a lawyer that they otherwise might not have.”
Bencher Julian Falconer, who sits on the professional regulation committee, said amending the rules was the “lesser of two evils.”
“If you don’t have limited retainers, what you have in reality is unregulated limited-scope retainers plus more unrepresented parties,” he said.
According to Pawlitza, the new rules will in fact help lawyers by shedding light on issues they’ve so far had to attempt to deal with in the dark. “The circumstances already exist that give rise to these rules,” she said.
“The rules are providing guidance as to what the expectations are on the lawyers in that situation.”
The law society has been studying the unbundling of legal services for years.
The new rules are the product of a working group on the issue involving members of the LSUC’s professional regulation, access-to-justice, and paralegal standing committees.
In 2010, the working group developed draft amendments that went out for comments from stakeholders. The law society received 22 submissions from lawyers and legal organizations that helped to refine the proposed amendments.
The next step will see the law society approach the courts to discuss procedural issues raised by limited-scope retainers in the litigation setting and potential changes to court rules in response.
Some people have raised concerns that lawyers may have trouble withdrawing from representation once the services provided for in the limited-scope retainer are complete.
Falconer said it’s important that judges get on board if the law society’s rule amendments are to be effective. “Communication plans with lawyers and the public is great, but communication plans with the judiciary is essential,” he said.
For his part, Schabas said the matter was already before the civil rules committee of the courts. He added that judges would welcome the law society’s amendments.
“When you’re dealing with judges who are alive to these rules and conscious of the fact that there is such an increase in the number of people who are appearing self-represented, they will be receptive to anything that will reduce that and they are not going to want to do anything that’s going to deter lawyers from coming forward and offering limited retainers,” he said.