Administrative law: 5 key causes of claims

 

Administrative law covers the extensive range of discrete practice areas that involve regulatory or government proceedings, from immigration to labour, human rights to health and safety. And because the decisions made by regulatory bodies and government agencies have the potential to profoundly impact people’s lives, mistakes made in this area can have deep and lasting adverse consequences. The greatest risk for administrative lawyers? Just "dropping the ball." These are the oversights in which the lawyer forgets, for instance, about an administrative tribunal’s deadline or document requirements. These simple, avoidable mistakes are also the leading cause of missed deadlines and limitations, the trigger for one-third of all reports from administrative lawyers.

Learn more about each cause, including examples from actual claim files, below.

Pie chart: 5 key causes of claims for administrative law

Date Range: 2003 - 2017

Find out more about each cause, including stories and videos of examples from our claim files, below.

These failures have nothing to do with your competence as a lawyer, but everything to do with how you manage the process of providing legal services. They break down as follows:

Not managing client expectations (65%)
You fail to appreciate the risk inherent in a client or their expectations of the legal process (67%), who is doing what (23%) or how much it’s going to cost (10%).

Claim file example
Lawyer represented a client in a human rights action against her previous employer. The client was handling an employment standards matter against that employer herself, but missed a filing deadline. She blames the lawyer for not alerting her to the deadline.

Not managing third party expectations (15%)
You don’t appreciate that someone for whom you are clearly not acting thinks that you are somehow protecting their interests.

Claim file example
Lawyer, representing the landlord in a residential tenancy dispute, wrote a letter to the tenant on her client’s behalf. The tenant claims that the letter was threatening and has harmed her position at the residential tenancy hearing. The tenant now sues the lawyer for negligence.

Not managing the retainer (setting up or concluding) or emerging conflict effectively (20%)
At the start of the retainer, you don't adequately think through how you are going to deliver the legal services or if you are able to represent all parties or, once the legal work is done, you 'move on' without ensuring that the final wrap details are properly attended to, or you fail to manage a conflict that emerges during the retainer.

Claim file example
Lawyer represented a client in settlement negotiations regarding a human rights complaint against a former employer. The client is disappointed with the offer received, and terminates the retainer. The lawyer does not advise the client of the limitation period to start a human rights action, and the client is now out of time.

These reports involve failing to sort out the legal issues or strategies required to achieve a client’s goal.  They break down into two categories: 

Ignorance of the law (37%)
You don’t appreciate that you don’t know an area of law as well as you need to in order to provide proper advice.

Claim file example 
Lawyer sought a judicial review in Federal Court of a decision by Immigration Canada with respect to a refugee claim. He failed to file the affidavits within the deadlines as he was not aware of the Federal Court rules. The application was dismissed.

Not thinking it through (63%)
You know the law, but don’t fully think through all of the legal issues, or what strategies to implement or steps to take to achieve your client’s goal.

Claim file example 
Lawyer acted for a client claiming personal injuries suffered from a slip and fall during her lunch break while working as a student at a daycare centre. The lawyer failed to turn her mind to the possibility that the claim was not covered by WorkSafe BC as the injury occurred during her lunch break off the worksite. By the time the lawyer realizes the claim is not covered by WorkSafe BC, the limitation for making a tort claim has passed.

These failures in listening, asking and explaining often involve lawyers making assumptions that later prove wrong.  They break down into two categories:

Communication issues with clients (73%)
You don’t devote enough time or attention to ensure that a client understands you or provides you with the information that you need, or you fail to ask for instructions or consent.

Claim file example
Lawyer represents a client in a WorkSafe BC matter. He does not seek instructions to appeal WorkSafe’s decision, as he assumes that his client will not want to take that step. In fact, the client does want to appeal, but the appeal is now likely time barred.

Communication issues with non-clients (27%)
You fail to communicate effectively with either other counsel on a matter or the other people on whom you rely to help you get the job done.

Claim file example
Lawyer represented a client in a human rights complaint. She instructed her assistant to file the complaint, but did not advise her of the urgency as it was the last day for filing. Unfortunately, the complaint was not filed until the next day, and the filing deadline was missed.

Simple, inadvertent, oversights break down into 3 categories:

Flawed systems (17%)
These mistakes would have been avoided through an effective, firm wide system such as a diary system to ensure limitations are not missed. 

Claim file example
Lawyer incorrectly entered the limitation period to file a human rights action in the firm’s diary system. The limitation period is missed and the client sues the lawyer.

Sloppy practices or oops's (78%)
These include the unintentional clerical errors that we make when drafting documents (10%), the mistakes that would have been avoided with a careful review of relevant file material (8%) and the mistakes that occur because we just ‘drop the ball’ and forget or overlook some step that needs to be taken (82%). 

Claim file example
Lawyer failed to properly complete and submit a client’s applications for permanent resident status and employment authorization to Immigration, Refugees and Citizenship Canada, resulting in the loss of an employment opportunity for the client.

Delegation without supervision (5%)
You delegate a task to an assistant or a student who makes a mistake, but only because you failed to provide proper supervision.

Claim file example
Lawyer retained to appeal a WorkSafe BC decision delegates preparation of the appeal forms to an articled student, but does not review the forms before they are submitted. In fact, they were completed improperly, and WorkSafe BC has deemed that the appeals are abandoned.

This relatively small risk has nothing to do with the quality of legal services you provide. These reports would have been avoided entirely if you simply had the necessary evidence to confirm advice that you gave or instructions that you received.

Claim file example
Client sues his former lawyer, alleging that his request to appeal to the review division of the WorkSafe BC was withdrawn without his consent. The lawyer has no record confirming the client’s instructions to withdraw the appeal.

Next Steps?

For the articles and publications that will help you avoid claims in your own practice, review:

Limitations and deadlines
Practice management - risks and tips
Areas of law - risks and tips

And remember, effective risk management also requires you to understand what’s covered under the compulsory Policy – and what’s not.  See Cover Pages and My Insurance Policy: Questions and Answers for more information.

 

Last updated: June 2018