Federation of Ontario Law Associations

PRACTICE RESOURCES

OPENING A PRACTICE

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Owning a law practice means both practising law and operating a business. It is exciting and challenging. But it's not short on its fair share of challenges.     


To help, the LSO created the "Guide to Opening Your Practice" to inform lawyers of the steps involved in opening a law practice and to assist them to prepare a business plan. 


Intended for lawyers interested in operating as either sole practitioners or in a small firm, the Guide will be helpful if you are considering or have decided to open your own practice. 

 

Membership Status and Fee Paying Category

Don't forget that you'll still be responsible for paying all fees.  Plus - you'll want to have the right insurance. 

 

 “Copyright in certain content on this webpage is held by the Law Society of Ontario and is reproduced with permission.” 

GUIDE TO OPENING A PRACTICE

OPERATING A PRACTICE

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The LSO has resources that can help you with determining which Business Structure might work best for you and what practice arrangements will best serve your needs.


VISIT THE LSO's "YOUR SOURCE"


LawPRO also has a wealth of resources!  Learn more!


Contingency Planning for Lawyers

Lawyers face the possibility of numerous unexpected interruptions in their law practices. Contingency planning in the event of disability, death or other unexpected periods of absence from practice should be considered as a means of providing peace of mind for loved ones, clients and employees.  The Contingency Planning Guide is a great resource!


Thinking about Hiring an Articling Student?  These resources from the National Association for Law Placement can help!


Looking to provide legal services to the public as an employees of a charity or non-profit?  Learn how here.

CLOSING A PRACTICE

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There are many circumstances in which you or those acting on your behalf may have to deal with the transfer or closing of your practice: the sale of a practice, a change in career, joining a firm, judicial or other appointment, formal retirement, or sudden illness or death. 


Where the practice involved is a sole proprietorship or a small firm the impact is greater than it would be on a larger firm, as there may be no one available to immediately continue, transfer, or close the practice in an orderly manner.


The Law Society of Ontario and LawPRO® have created a Guide to help you plan for and fulfill your professional conduct responsibilities when transferring or closing your law practice.


GUIDE TO CLOSING A PRACTICE

PREPARING FOR A PRACTICE REVIEW

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Each year, about 450 lawyers in Ontario who are in private practice are included in the pool of potential candidates that the Law Society of Ontario will undergo a Practice Management Review.

RESOURCES TO HELP YOU PREPARE

IF YOU ARE SUBJECT OF A COMPLAINT

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Even the best lawyers make honest mistakes or can face a baseless allegation from a client that is suddenly unhappy due to unexpected events or changed circumstances and most of these are resolved at an early stage. 

STRATEGIES TO GET YOU THROUGH

YOUR SOURCE - THE LSO's MEMBER RESOURCE SECTION

lawyers, member resources, help line, practice management, law society of ontario


As part of their Member-directed campaign, the Law Society wants to remind you about their Practice Management Helpline

 

LSO resources that you may find helpful include:

Practice Supports and Resources

Coach and Advisor Network

Member Assistance Program

Bookkeeping Guide for Lawyers


& the podcast:

Technology Practice Tips


VISIT YOUR SOURCE

RESOURCES, PRECEDENTS & CHECKLISTS

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LAWPRO’s practicePRO initiative provides risk management, claims prevention and law practice management information to Ontario lawyers. These resources, precedents and checklists will help you take proactive steps to avoid a legal malpractice claim. Below are a few examples of practicePRO materials; for more information, visit practicePRO.ca 


Resources
practicePRO offers a range of practice resources for lawyers. Its limited scope documents include sample retainers, checklists, and client information brochures.


Precedents
practicePRO makes sample retainer agreements and other precedent materials available. 

See practicepro.ca/precedents/


Checklists
Visit practicepro.ca/checklists/ to see a range of checklists, including checklists to assist in providing Independent Legal Advice, and for a client's Annual Legal Health Check-Up.


Fraud Prevention
Frauds of various types continue to target lawyers in many areas of practice and fraudsters occasionally successfully dupe lawyers and law office staff. Don't be complacent! See practicepro.ca/fraud to learn more about how to prevent fraud, and about current fraud warnings.

VISIT PRACTICEPRO

OVERDUE ACCOUNTS & COLLECTIONS

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Despite confirming information about fees, disbursements and interest in writing, like many business people, lawyers often have difficulties securing prompt payment of their accounts by their clients.


This section covers things like how and when to begin the reminder process, when you can charge interest, and when to outsource collection to a third party. 

LEARN MORE

IT'S TIME TO HIRE AN ARTICLING STUDENT. WHAT'S NEXT?

Tips for interviewing and hiring an articling student.

For any-sized law firm or office, hiring an articling student can be a significant investment. However, this is even more so when the employer is small and with limited resources. It takes time and money to identify, train, and onboard an articling student - let alone, train the student on the law and practice! Fortunately, the benefits of hiring an articling student are plentiful.


The  National Association for Law Placement (NALP) is another great resource!  You can access their resource guide for hiring articling students below and, if you're ready to advertise to student applicants,  visit the NALP Canadian Directory of Legal Employers (CDLE) and register.

DOWNLOAD THE NALP GUIDE

WANT TO PROVIDE LEGAL SERVICES AS AN EMPLOYEE OF A CHARITY OR NON-PROFIT?

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To make legal services more accessible, the LSO has approved a registration system that enables lawyers to provide their professional services to the public as employees of charities and not-for-profit corporations. 


Under this initiative, registered charities and not-for-profit corporations can register with the LSO to employ lawyers to deliver legal services through their organizations directly to their clients. 


Lawyers employed by charities and not-for-profit corporations may provide free lawyer services to clients of the organization. 

WHO CAN APPLY? CLICK HERE

CROSSING THE BORDER WITH ELECTRONIC DEVICES: WHAT LAWYERS NEED TO KNOW

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With travellers at Canadian airports and border crossings subject to increasing scrutiny, it's important for lawyers to have an understanding of how the privacy interests of their clients may be impacted by legislation and policies developed to address public safety issues. 


Legal counsel should also understand that their profession does not make them immune to policies and processes that could impact information otherwise subject to solicitor-client privilege. 

FEDERATION OF LAW SOCIETIES OF CANADA

PRACTICE REVIEWS

BACKGROUND ON PRACTICE REVIEWS

Each year, about 450 lawyers in Ontario who are in private practice are included in the pool of potential candidates that the Law Society of Ontario will undergo a Practice Management Review.


The LSO’s Practice Management Review is designed to identify any practice management issues, which, if neglected, could have an adverse effect on the quality of legal services offered to the public. While the Program may benefit lawyers in private practice by reducing client complaints and negligence claims, it could result the following: The closing of the file; Mandatory follow-up activities to remedy deficiencies; A follow-up review; Proposal Order; Referral to Spot Audit; or Referral to Professional Regulation.


If you have been contacted by the Reviewer, you are able to select a fill day (usually within six weeks) that accommodates both parties where you will be visited by the Reviewer. You will be given information about what to prepare at that time but will likely be asked, at the least, to have your most recent trust reconciliation (trust bank statement(s), detailed trust reconciliation(s), and client trust listing) ready. There is also a lot of information on the LSO site and you can always call them at 416-947-3315 or 1-800-668-7380 ext. 3315.


In short, the Reviewer will be assessing basic practice management systems in your office, focusing on such areas as: Client Service & Communication; File & Financial Management, Technology; and Professional, Personal, & Time Management.

LSO INFORMATION

RESOURCES

If You Are the Subject of a Complaint

The LSO has a comprehensive section on what to do if you are the subject of a complaint which you can link to here. However, the most important thing to remember is: Don’t freak out! 


Even the best lawyers make honest mistakes or can face a baseless allegation from a client that is suddenly unhappy due to unexpected events or changed circumstances and most of these are resolved at an early stage.  In fact, according to the LSO, only about 5% of complaints are ever even referred to the Proceedings Authorization Committee (which then may result in a disciplinary proceeding and hearing).


Regardless of the situation, you will be given the opportunity to respond to the complaint and you will be provided with the substance of the complaint before you are asked to respond.  Also remember that most complaints and investigations are confidential – with the exception being if the LSO is required to issue a regulatory notice, in which case, you will be notified in advance your case will require a regulatory proceeding.


You may want to consider retaining a lawyer.  But even if you do, it is critical that you do respond to LSO communications as failure to do so may subject you to discipline proceedings under the Law Society’s Summary Hearing Process, in addition to any proceedings relating to the original complaint.  You will want to know that discipline proceedings are of public record. 


A few suggestions that may make this process easier on you:


1. Consider discussing the complaint (and your response to the complaint) with a partner, colleague or other trusted advisor;

2. Consider seeking the advice of a lawyer (remember, this is the same advice you would likely offer a friend).   If you use LawPro, contact them immediately.  They are there to help you.  Their website also has some very helpful information.  Also worth noting is that both the Criminal Lawyers’ Association and the Advocates’ Society provide pro bono duty counsel for unrepresented lawyers at sittings of the Proceeding Management Conference.

3. Remember: The LSO’s Member Assistance Program (MAP) is there to help you in times of professional or personal crisis – and even though you may not, in retrospect, think of this as a crisis, it might feel like one at the time. Your MAP affords you access to a full range of 24/7/365 professional, confidential services. 


Trying to figure out when to provide a notice of claim?  

As soon as possible!  If you report a claim and nothing develops, your deductible won’t be triggered and there won’t be any surcharged increase in your premium.  In addition to helpful information, LawPro has an easy link on their site.


Again, all this information and more can be found here


RESOURCES

LSO'S webpage for dealing with a complaint.


LawPro's webpage for dealing with a complaint and filing a claim.

ARE YOU FACING SUSPENSION OR UNDER SUSPENSION?

Five Things You Can Do While Under Suspension by Darryl Singer

The Law Society of Ontario has published something called Guideline for Lawyers Who Have Been Suspended or Given an Undertaking Not to Practice. This document is a near-exhaustive list of all the things you cannot do while under suspension.


Sadly, the LSO does not publish anything which tells suspended lawyers the things they could, should, or might want to do while serving their suspension. This is too bad, particularly for those lawyers who have addiction or mental health issues which led them to the behaviors which the LSO deemed worthy of suspension. Furthermore, most lawyers I have assisted as they go through the LSO discipline process end up suffering some form of depression or anxiety when they are suspended. Whether the suspension is short or long, one cannot blame the suspended lawyer for feeling anxious about his or her reputation; continuation of the practice and service of the clients while suspended; how they will be viewed by the Bench and Bar when they return to practice; how they will address future client inquiries about their suspension, since the information lives forever on the LSO public database. Since there is nothing formal, I have compiled some brief examples of the things I recommend to my clients.


Here are 5 things you can do while under suspension if you should find yourself in that situation:


1. Internalize. Don’t blame the LSO, the complainant, or other circumstances. Take a hard look at what you and only you could have done to avoid the complaint that led to your suspension. Make a pact with yourself to put some sort of system in place to ensure the same thing doesn’t happen again. For example, if client complaints led to discipline, start using your enforced free time to develop better communication protocols to be introduced upon your return to the office.


2. Continuing education. Use your time wisely. You do not have to take formal CPD programs, but your weeks or months off could be used to catch up on the latest case law developments, read new texts or articles on your area of law, or even start learning a new area of law. Consider also taking some non-law lessons in things like time management, technology, marketing and other things that are adjunct to but at the same time integral to good practice.


3. Take some “me time”. Many lawyers run into practice trouble simply as a result of being burned out, or struggling with substance abuse, mental health issues, financial pressures, marital issues etc. Use the down time productively to go for therapy, exercise, catch up on your Netflix queue, or just spending time with loved ones and reconnecting with friends.


4. Plan for your return. To many lawyers spend all their suspension time moping around (understandable). But better to spend your time thinking about where you want your practice to go upon your return. Consider the time off as sort of a forced reset. You now have time to draft and think about implementing a new marketing plan, business plan, office manual etc. We all talk about these things, and in the context of either a practice that is too busy, or one without enough cash flow, but somehow these things never get done. You can’t practice law during your suspension, so might as well use the quiet time to attack these things that there likely won’t be time to deal with once you return.


5. Commit to doing things better. You typically ended suspended for one or more of these issues: addiction, mental health, poor client management, poor financial management, dabbling in an area where you had no expertise, failing to reply to lawyers or the Law Society. Whatever the reason, the corollary of that got you there is the way to avoid it. Addiction- stick to treatment. Mental Health- commit to counselling and follow through. Client or financial management problems- implement and maintain better systems.


When facing suspension, the goal should be to come back to your practice refreshed, relaxed, and with a plan that will allow you to hit the ground running and never look back. When I faced a suspension stemming from an addiction resulting in an abject failure on my part to reply to client and Law Society communications, it forced me to take the entire month of August off. It was the first time in my career that I took more than a week away from the office. Ever since, I take the entire month of July off, two weeks at Christmas, a week at March Break, another week or so in August, and occasional long weekends throughout the year. The experience of suspension was life changing. I now practice with more breaks, spend more time with my kids, and am able to keep up the hectic pace of a busy litigation practice with mental clarity because I know that my clients will not disappear. It goes without saying that the Law Society proceeding was instrumental in my seeking the help I need to overcome addiction and depression and I have worked without failure over the last ten years to maintain by health.


A parting note, there is an important step to take before the suspension is imposed. If you are showing up for a hearing, and suspension is a possibility, regardless of how you feel your case will go, you need to take steps prior to that day to have a system in place for your files to be handled. This is easy if you are part of a firm with other lawyers, but if you are a sole practitioner then you will need to have a lawyer ready to step in. If you do this in advance of the suspension, even to the point of talking to clients with pending matters likely to be reached during your suspension, the suspension will get off to an easy start, as opposed to the added stress of transition adding to whatever issues already led you to the discipline panel in the first place.


Darryl Singer is Head of Commercial and Civil Litigation at Diamond & Diamond Lawyers LLP. He regularly represents lawyers and other professionals at disciplinary tribunals.


** This article  was originally published by The Lawyers Daily

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lawyer facing suspension

Five Reasons You Should Not Represent Yourself by Darryl Singer

I regularly represent lawyers at law society matters — at the LSO investigation stage and also defending them at the LSO Tribunal. I have noticed in the days I spend at the tribunal something which appears to be borne out in my review of tribunal decisions over the last two years. It seems about half of all lawyers appearing before the tribunal do so without counsel. And untold numbers of those who do retain counsel to represent them at the tribunal do so only after self-representing throughout the entire investigation process, a process which usually includes a form of “interview” akin to an examination for discovery.


These interviews are conducted by investigators skilled in the art of questioning, such as ex-detectives and forensic fraud examiners. They cannot be outsmarted, and your rights of refusal at these interviews are limited. Yet, many, if not most lawyers, put themselves under the microscope without the advice of experienced counsel.


Lawyers being lawyers think they know how to defend cases, so why get someone else to do for you what you can do yourself. I disagree and have compiled five reasons I do suggest you do no represent yourself.


1. You do not know the process.

While you may be an excellent lawyer in your particular area of law, unless you practice regularly before the LSO Tribunal, you will not be familiar with its practices and procedures. Even if you do administrative law at other tribunals, the LSO has its own “rules of thumb” and there is an understood way of doing things.


Moreover, like most areas of law, relationships matter. If you represent yourself, you will go in not knowing the LSO investigators, prosecutors (who, remember, are against you) and are not known by the adjudicators. Familiarity with the opposing side or the trier of fact does not have any bearing on the eventual outcome, which is always based on the merits, but good relationships and knowledge of the procedures help ensure the process will move more expeditiously, cost-effectively and as amicably as possible.


2. The LSO, in these instances, is not your friend.

The deck is stacked against you from the minute you receive the LSO’s letter indicating you are under investigation. Even in cases where the violation of the Rules of Professional Conduct is minor, or there are significant mitigating circumstances, at the end of the day you may very well be pleading guilty to professional misconduct and facing a penalty and a costs order. You need an objective voice to advise you as to whether a deal is appropriate or whether you should fight and how to proceed.


3. You are not up to date on the relevant case law and rules for hearings.

The evidentiary rules that you would be used to in court do not always apply in the tribunal process. Moreover, the case law evolves over time. You are not likely well versed in the most recent. And as you are in the crosshairs of the discipline process, you may not be utilizing your best research and analytical skills to find and assess relevant supporting cases.


4. Focusing on defending yourself will detract from your ability to run the rest of your practice.

You will inevitably get caught up in the importance of defending yourself and your other files will suffer, to the point that it could create additional complaints. Or even worse, you are so certain of your innocence that you do not take the defence seriously.


5. You lack the objectivity.

This is the most important item on this list. Generally speaking you have ended up on this predicament because of one of two reasons: (i) you have knowingly done something really bad hoping you wouldn’t get caught; or (ii) you have a mental health issue, addiction, or some other outside stressor impinging on your ability to properly manage your practice. 


Given that, it goes without saying that you simply do not possess the mental clarity, the lawyerly objectivity, or the time to mount an adequate defence. Almost every lawyer going through the discipline process suffers from some situational anxiety and depression. And that only makes sense, when your reputation and career may hang in the balance. If you had a mental health issue which led to the LSO troubles, this will inevitably get worse. If you did not have such issues before, get ready for it.


I have had more than one client in the last year who had failed suicide attempts as they thought it was the only way out. Trying to represent yourself will have a twofold effect: (a) for the five reasons noted above, you may not come out of the process with the best result possible; and (b) it will take an additional toll on your already fragile mental health. 


Take the advice you would give to anyone else — hire a lawyer who knows what he or she is doing in this area of law, and do not self-rep.


Darryl Singer is a lawyer at Diamond & Diamond Lawyers LLP and regularly represents lawyers and other professionals at disciplinary tribunals.


 ** This article  was originally published by The Lawyers Daily 

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MALPRACTICE: Observations on Lawyer Discipline in Ontario

Part I: Introduction to Lawyer Discipline in Ontario

The term, “malpractice” is not commonly used in Ontario, it being a more popular term stateside, but it is an excellent descriptor of the wide array of activities that the Law Society governs and enforces as a matter of discipline. The term, “malpractice” is imprecise, even in those jurisdictions that actively use the term, and probably includes both negligence as well as professional misconduct (and, as we shall see, the line between the two can often blur), but this article will focus entirely on professional misconduct rather than professional negligence per se


As a bencher of the Law Society of Ontario, I have had the privilege of sitting on the Proceedings Authorization Committee (“PAC”) for my entire time at the Law Society. It is a unique and ideal vantage point from which to observe professional misconduct since all matters that proceed to discipline must first be presented to, and ultimately authorized by, PAC. 


I have been asked to provide this article on lawyer discipline for the Federation of Ontario Law Association’s Practice Resource website. It is based on a similar, slightly narrower (in context) paper to be delivered at the 16th Annual Real Estate Law Summit hosted by the Law Society. Given the genesis of the article, there is a slight real estate flavor to the text, but the article is intended for all Ontario lawyers, regardless of practice area and regardless of sector (yes, in-house and public sector lawyers can also be disciplined for malpractice!). In terms of style, I have left it relatively “breezy” and somewhat deliberately bereft of detailed examples or rule citations (details of discipline examples makes the paper unnecessarily “personal”, and rule citations are easy enough to find if one really needs to know the exact wording of a given prohibited conduct). 


This article has three substantive sections. Firstly, there is a discussion of some miscellaneous comments on discipline, including a discussion on the likely nature of complainants, some observations about the role of PAC, the requirement for good character, and “conduct unbecoming”, a form of malpractice that occurs outside of the practice of law. 


Secondly, there is a discussion of some of the discrete types of conduct that Ontario lawyers are being disciplined for (although, curiously, files rarely manifest as discrete malpractice occurrences – more often, a lawyer subject to discipline has breached several rules at once). These are not the “top” malpractice events in terms of severity – those are more obvious and do not require much in the way of observation (e.g. criminal conduct, misappropriation of money, sexual offences, conflicts of interest, etc.). Likewise, the matters discussed in this section of the paper are not the “top” malpractice events in terms of frequency -- those too are relatively obvious and do not require much in the way of observation (e.g. failure to report, failure to pay fees, failure to meet CPD requirements, etc.). Given the fluid nature of website publication, I am hoping to grow this section of the paper over time, as more discipline matters of interest cross my plate.


Finally, this paper concludes with a discussion of what I call the “hierarchy of discipline” – in effect, a summary of, and observations on, the progressive discipline remedies available to the Law Society in responding to malpractice. This is a useful read for all lawyers. 


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Jeffrey W. Lem
Jeffrey W. Lem