Practice Watch

by Felicia S. Folk, Practice Advisor

Mobility of non-lawyer staff

Lawyers must exercise due diligence to ensure compliance with Law Society conflicts rules, not only by all lawyers in a firm, but also every non-lawyer employee and any other person retained by the firm.

Legal assistants and other staff are, like lawyers, subject to the rules set out in Chapter 6, Rules 7.1 to 7.9 of the Professional Conduct Handbook concerning conflicts arising from a transfer between law firms. If a legal assistant takes employment in a law firm that has clients adverse in interest to those of the assistant's former firm, the screening devices described in Appendix 5 of the Handbook should be put in place.

The confidential information acquired by the legal assistant at the previous firm must be protected. It may be professional misconduct on the part of a lawyer to fail to take reasonable measures to protect such confidential information.

What might reasonable measures be when a legal assistant, having worked on a client file in one firm, moves to another firm that represents clients on the opposite side of the file?

The legal assistant should have no involvement in any aspect of that file. No relevant file materials should be permitted in the assistant's work area, and she or he should not provide staff support on any of the files. The legal assistant should be reminded of the obligation to keep confidential any information obtained at the previous firm and not to divulge it to any member of the new firm. Other staff should also be directed not to discuss any aspect of the relevant matters with the new employee.

Issues arising as a result of a transfer between law firms should be dealt with promptly. If the firm in which the legal assistant takes employment cannot protect confidential, relevant information obtained at the former firm, the new employer should cease to act in the matter. Reasonable measures to protect confidential information should be in place before an employee who has such information begins to work at the new firm.

Contingent fee model agreement

Please note several additions to the practice resource materials on the Law Society website. In particular, for those lawyers who have a previous version of the model Personal Injury Contingent Fee Agreement, that agreement has been updated by a major change in the section on costs.

The agreement has been redrafted to include the option for lawyers to take court-ordered costs instead of a percentage of the award or settlement. Rule 8-2(2) of the Law Society Rules says that a contingent fee agreement may allow a lawyer to elect to forego any remuneration based on a proportion of the amount recovered and receive instead an amount equal to any costs awarded to the client by order of a court.

Person using cellphoneKey guard your cellphone

If you carry a cellphone, please make use of the key guard function to ensure that you don't accidentally push a redial or send key. Otherwise, it is possible that you will unknowingly transmit a conversation with or about a client to someone on the other end of the telephone. Without being aware of it, you may be reconnected to the last person you called, or that person's voicemail. If you carry your phone in a handbag or in your pocket and bump the phone, you could unknowingly breach client confidentiality.

Fortunately, most cellphones have a key guard capability. You can program your phone so that certain keys must be pressed in sequence before you can dial out. Use of that function will allow you to keep your phone turned on without the risk of inadvertently dialing out.

Know your client, confirm your advice

A recent Ontario Superior Court decision emphasizes the need to know your client and confirm your advice. In Turi v. Swanick [2002] OJ No. 3595, 61 OR (3d) 368, the court awarded damages to a client who had incurred personal liability when he failed to use his corporation to contract with a supplier. The client sued the lawyer for the amount of the supplier's judgment against the client. The lawyer was held liable.

The lawyer had incorporated a company for the client's clothing store business. In this particular case, the client was unsophisticated and the lawyer knew the client could be sloppy in his record-keeping. The lawyer told the plaintiff to always use the corporate name. The lawyer did a memo to file confirming the advice but did not confirm the advice in writing to the client. The court found that the lawyer did not give advice about the possible consequences if the corporate name was not used. The lawyer testified that he had told the client that he could be personally liable if he did not use the company name. The judge's conclusion that the lawyer had not advised the client of the possibility of personal liability was based mostly on the fact that there was no confirming note in the file about that advice.

The judge ruled that, although it is not the usual practice to advise clients in writing of the possible consequences of not using a corporate name, on the specific facts of this case, the lawyer had a positive duty to warn his client in writing. The decision is under appeal.

Lawyers may not take affidavits in other provinces

Can a member of the Law Society of BC, while in Alberta on an Alberta matter, swear an affidavit for use in Alberta? The answer appears to be no.* Alberta's Commissioner for Oaths Act, s. 2(1), says that "a member of the Law Society of Alberta, other than an honorary member, is by virtue of the member's office a commissioner empowered to administer oaths and take and receive affidavits . in Alberta."

The Notaries Public Act of Alberta, s.3(1), says that "a member of The Law Society of Alberta, other than an honorary member, is by virtue of that membership a notary public for Alberta." Section 6(1) states that "a notary public may . administer oaths and take affidavits ."

Likewise, lawyers from other jurisdictions visiting BC may not take affidavits in BC for use in BC. The BC Evidence Act, s. 60, says "The following persons are, because of their office or employment, commissioners for taking affidavits for British Columbia .

(d) practising lawyers as defined in section 1(1) of the Legal Profession Act;

(e) notaries public."

Since s. 1(1) of the Legal Profession Act defines "practising lawyer" as "a member [of the Law Society of BC] in good standing who holds or is entitled to hold a practising certificate," and since only a "practising lawyer" may exercise the power of a notary public, it is apparent that visiting lawyers may not take oaths in BC.

*BC lawyers should contact the law society of another province or territory if they need to check whether they are entitled to swear an affidavit in that jurisdiction.