Law Times

March 3, 2014

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Law TiMes • March 3, 2014 Page 3 www.lawtimesnews.com Is document review legal work? s document review legal work? It's a question that has impli- cations for lawyers' insurance requirements and one that has taken on increasing relevance given recent changes in the legal marketplace. In one case, the is- sue has created a ri between De- loitte and a lawyer who recently transferred to the firm as a result of its acquisition of ATD Legal Services PC in January. Lawyer Shireen Sondhi, who worked as a document review consultant for ATD when Deloitte acquired it, says she had to part ways with the firm over disagree- ments on whether document re- view qualifies as legal work. At ATD, Sondhi says the com- pany considered her job to be legal work and notes she had to pur- chase LawPRO errors-and-omis- sions insurance. But Deloitte clas- sifies the job as non-legal work. Once Deloitte acquired ATD, Sondhi says a contract presented to her stated she would earn $47 an hour for her work as opposed to the $50 an hour ATD paid its document review staff. "When I was working at ATD, we were told that [the job] is legal work and they market us as lawyers and so we were required to maintain our LawPRO insur- ance," she says. During the transition to De- loitte, according to Sondhi, she received an e-mail from manage- ment saying: "e good news is Deloitte does not require you to have LawPRO insurance, the bad news is that because you're sav- ing money on that, we're going to bring your rate down to $47." A few days later, she started working on a project. "e work was the same, so a client hires the law firm — and in this case there was an upcoming litigation — and the law firm outsourced the document review work to De- loitte," says Sondhi. "We were still reviewing docu- ments for this upcoming litiga- tion and we were reviewing them for relevancy, for privilege, to sort of determine what category it fit into if it's relevant and what type of privilege was applied to that document," she adds. During a conference call with Procom, a third-party employ- ment placement agency that man- ages contracts for Deloitte, Sondhi says representatives noted they didn't require LawPRO insurance for lawyers performing document -review tasks because they didn't consider it to be legal work. According to Sondhi, Shelby Austin, the founder of ATD Legal Services who's now a partner with Deloitte, also told consultants the job isn't legal work and that she had simply marketed it that way. "Some of us were concerned about it, so we contacted LawPRO and the [law society]," says Sondhi. In a few days, there was a post on LawPRO's web site. If a lawyer is simply summarizing volumes of information into "a legally digestible format," it's not legal work, the post says. "As a lawyer conducting docu- ment review services in support of litigation, however, you would be expected to exercise your knowledge, skills, and experience in the law and apply legal prin- ciples, so you could expect to be seen as engaging in the practice of law (even though a non-lawyer might do similar work and not be held to the same standard)." Duncan Gosnell, executive vice president and secretary of LawPRO, says he can't comment about a specific case but notes it's "very unlikely" that a lawyer doing document review is only summarizing and condensing documents. Whether a lawyer will be us- ing their "legal knowledge, skill, and judgment" is what sets legal work apart from non-legal tasks, he adds. For its part, Deloitte main- tains its document-review busi- ness isn't legal work. "ATD Legal Services is now part of Deloitte and is no longer in operation. e document re- view business operated by De- loitte is not a legal practice and the services provided are not legal services," the firm said in a statement to Law Times. "Our practice uses leading technology and a multi-disciplin- ary team of professionals that in- clude accountants, former police officers, technology specialists, and lawyers to preserve, collect, identify, review, analyze, and pro- duce documents," the firm added. "Deloitte's clients for docu- ment review and discovery are law firms and in-house counsel, and they practise law and make legal judgments. Deloitte supports them with document reviewers who work under their direction and supervision. e process is carefully managed so that neither Deloitte, nor its employees or con- tractors, are practising law." Sondhi says an amended Deloitte contract later took out a clause that deemed the document review work to be non-legal but described it as a "data processing and computer services" function that still doesn't require LawPRO insurance. At that point, Sondhi says she sent an e-mail to the man- agement team expressing the con- cerns she still had. "I got this e-mail back from an employee at Procom saying, 'De- loitte is not prepared to change the contract any further. Either you sign the contract or you con- sider your relationship termi- nated. Don't come into the office tomorrow morning,'" she says. "So I wrote back and said, 'I'm not comfortable with this. You haven't answered my question, and I will not be signing the contract.'" When Deloitte acquired ATD Legal Services earlier this year, industry analysts described the move as accounting firms "mak- ing serious noise" about tapping into the legal industry. In fact, Jordan Furlong, prin- cipal at Ottawa-based consult- ing firm Edge International, told Law Times accounting firms' growing range of services to the same client base law firms are targeting should be a wake-up call to the legal industry. LT NEWS hile the debate continues over the new mandatory victim surcharge, over- shadowed in the contro- versy is the fact that monetary sanctions against convicted criminals have tradi- tionally made up only a tiny fraction of surcharge revenue in Ontario and the new system may cost more to administer than it will raise for victims. About 98 per cent of revenue generated for the Victims' Justice Fund in Ontario comes from surcharges imposed on pro- vincial offences such as Highway Traffic Act violations. In fact, the number is more than 40 times what the government col- lects each year from criminal offenders. e surcharges in the Increasing Offend- ers' Accountability for Victims Act may al- ter that ratio slightly, but given that half of all guilty pleas in Ontario provincial courts in 2013 involved administration of justice or property offences, collection from many of these offenders may be difficult. "Practically speaking, I don't see the province netting any new money," says Ot- tawa defence lawyer Paul Lewandowski. "ere might be a lot on the books," adds Lewandowski, who will be in court March 5 to set a date for a constitutional challenge to the mandatory surcharges he has filed on behalf of a client convicted of illegally possessing two painkillers out- side a Salvation Army hostel in Ottawa. e $100 surcharge Lewandowski's drug-addicted client faces would, if ulti- mately imposed and collected, go to the Victims' Justice Fund administered by the Ontario government. In each of the past two years, the revenue from surcharges imposed on provincial offences was more than $44 million while Criminal Code offender levies generated just over $1 million annually. e surcharge ratio is similar in other provinces, such as British Columbia, where driving and other pro- vincial offences constituted about 96 per cent of the total victim fine revenue. e Criminal Code amendments, which took effect last fall, require a sur- charge of 30 per cent on top of any fine imposed by a court or, if there's no fine, a mandatory levy of $100 per summary conviction count and $200 per offence punishable by indictment. e changes to s. 737 of the Criminal Code no longer permit a judge to waive the levy and the surcharge is "in addition to any other pun- ishment imposed on the offender." e stated public purpose of the amendments was to generate more mon- ey for victims of crime and make offend- ers more accountable. Sue O'Sullivan, the federal ombudsman for victims of crime, publicly urged the federal government in 2011 to make the surcharges mandatory and referred to a 2006 Justice Department study of provincial courts in New Bruns- wick as evidence that judges routinely waived these levies without reasons. Federal Justice Minister Peter MacKay pledged that "judges will see the wisdom in putting victims in a better place and respecting their right to be compensated" in a December 2013 interview with e Canadian Press. Any additional funds raised from the surcharges, though, don't go towards di- rectly compensating crime victims in Ontario. e revenue goes to the Victims' Justice Fund as dedicated money used to administer various programs. e fund provides grants to community agencies to assist victims of crime. In the nearly four months since the new provisions took effect, Lewandowski says that from his observations, they've had a cold reception from the courts in Ottawa. "Judges don't seem to like it. Clerks hate it. ere is more paperwork," says Le- wandowski. e defence lawyer also ques- tions whether the removal of the right of a judge to waive the surcharge will merely cause more administrative problems in the provincial courts. "ere are offenders who have defaulted already. You can go back to court to ask for an extension of time, but legal aid does not cover this," says Lewandowski, who suggests there will be more unrepresented offend- ers back in court explaining why they don't have the money to pay the surcharges. Almost 30 per cent of all guilty pleas in Ontario in 2013 involved administration of justice offences, such as failure to com- ply or breach of probation, according to statistics issued from the Ontario Court of Justice. Low-level chronic offenders could run up hundreds of dollars in surcharges while an individual convicted of a single count of first-degree murder may pay just $200. "I am not sure this makes the mur- derer feel accountable," says Lewandowski. His client's case is believed to be the first formal constitutional challenge in Ontario to the provisions, although a number of provincial court judges have already been critical of the surcharges. Earlier this year, Justice Eleanor Schnall refused to impose the financial penalties against five accused in R. v. Flaro, a case that included a 50-year-old man facing $200 in surcharges for breaching his re- cognizance while out early in the morn- ing on his bicycle collecting empty beer cans for some change to supplement his monthly assistance payments. LT Logic of victim surcharge questioned BY SHANNON KARI For Law Times W A lOOK At vIctIm SuRcHARgeS BY tHe NumBeRS $44,452,640 Funds collected in Ontario in 2012-13 from victim fine surcharges on provincial offences such as Highway Traffic Act violations. $1,172,498 Funds collected in Ontario in 2012-13 from surcharges imposed on Criminal Code offenders. 28 Percentage of all convictions in the Ontario Court of Justice in 2013 of people found guilty of administration of justice offences. 6 Percentage of all convictions in the Ontario Court of Justice in 2013 for serious crimes against the person (homicide, attempted murder, robbery, sexual assault, major assault). Sources: Ontario Court of Justice and the Ontario Ministry of the Attorney General BY YAmRI tADDeSe Law Times I 'Practically speaking, I don't see the province netting any new money,' says Paul Lewandowski. Photo: Studio G.R. Martin Photography

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