From the Ethics Committee
Chapter 14 of the Professional Conduct Handbook
(Ethics Committee: July, 2001)
Limited liability partnerships ("LLPs") are permitted under Ontario law, but not under the law of British Columbia. A number of inter-jurisdictional law firms operating in B.C. are now registered as LLPs in Ontario.
In the opinion of the Ethics Committee, use of the term LLP by law firms in marketing materials without further explanation has the potential to mislead consumers of legal services in British Columbia. A law firm that is a limited liability partnership in another jurisdiction should indicate in any marketing materials that the LLP is from that other jurisdiction.
In the Committee's view, the use of terms such as "LLP (Ontario)," or "A Limited Liability Partnership under the laws of Ontario" in marketing materials to indicate that LLP is not a British Columbia designation is adequate notice to the public of the significance of the use of LLP.
The Ethics Committee has considered questions arising out of situations where lawyers permit employees to work away from the office or where they engage independent contractors.
Are there any special guidelines that apply to employees working at home, particularly with respect to confidentiality? Should employees be allowed to take files out of the office?
The Committee notes that a lawyer's responsibility for employees is set out in Chapter 12 of the Professional Conduct Handbook and that Rule 1 requires the lawyer to assume complete responsibility for all matters entrusted to the lawyer.
It is the Committee's opinion that a lawyer may permit an employee to do work out of the office, provided the lawyer is satisfied that client confidences will not be compromised as a result. In determining whether a lawyer can fulfil obligations of confidentiality in these circumstances, the lawyer must have regard to, among other things, the trustworthiness of the employee, the nature and sensitivity of the information the employee will be taking away from the office, the environment in which the employee will be working and the security that can be accorded to the information when it is out of the office.
Does it make any difference if an employee has more than one employer for whom he or she works?
In the opinion of the Committee, a lawyer may employ a non-lawyer who also works at another law firm. However, in addition to the ordinary obligations of confidentiality, lawyers who share the services of such an employee with another firm must also exercise due diligence to ensure that the employee does not disclose the other firm's confidential information to them.
In giving this opinion, the Committee does not suggest that it would be proper for such an employee to work on matters for clients adverse in interest to each other who have retained different law firms.
Does the Committee have any guidelines for lawyers who subcontract certain jobs, such as large photocopying jobs, to off-site service providers?
The Committee approves of American Bar Association Opinion 95-398, which specifically recognizes that a law firm may use a computer maintenance company that has access to the firm's client files. The Committee notes that Opinion 95-398 recognizes that law firms now use outside agencies for numerous functions, such as accounting, data processing and storage, printing, photocopying, computer servicing and paper disposal, and that it is proper practice to do so.
It is the Committee's view that, although lawyers who use the services of outside contractors do not breach their obligations of confidentiality by doing so, they must use due diligence to ensure that the information remains confidential. The due diligence required must take account of all the circumstances, but would usually include, at a minimum, giving a contractor written notice of the requirement to preserve confidentiality.