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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator . . Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . .Kristi O'Connell Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. 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In fact, a survey of 300 firms with 50 T or more workers reveals that 40 per cent have had at least one legal dispute launched against them in the past year. And, on aver- age, those who were sued actually dealt with an average of 8.3 actions per annum. Plus, the number of companies that have initiated a dispute is 29 per cent — launching an average of four. The "2008 Litigation Trends in Canada Study" was published by Fasken Martineau Du- Moulin LLP and is touted as the first one of this type conducted here. Pollara Strategic Insights was commis- sioned by the firm to "conduct a bench- marking survey of in-house legal counsel and senior executives responsible for liti- gation issues in Canada." According to the study, labour and employment issues "rank the high- est in the type of dispute that most Editorial Obiter Who says we're not litigious here's this old chestnut that Canada is not a litigious nation. Well, ac- cording to a new study, nearly half concerns Canadian companies." That's followed by contracts, personal injury, and product liability. And geographic location has an impact: companies in Ontario filed the largest num- ber of suits, Quebec the fewest. Meanwhile companies in the western provinces and Ontario have seen the largest number of lawsuits launched against them as opposed to Quebec and the Atlantic provinces, the study says. Further, the "clear majority of the re- spondents" say the level of litigation "has been steady" in terms of the number of dis- putes launched against them and the num- ber that they have initiated. "Seventy-three per cent of the companies surveyed believe that approximately the same number of disputes have been filed against them and a slightly higher number of companies, 78 per cent, stated that they have initiated a similar level of disputes," it says. Here's an interesting tidbit: 70 per cent employed at least one outside firm for a legal dispute in the last year. The study indicates that of those who hired outside law firms for litigation, 50 per cent are "very satisfied" and 44 per cent are "somewhat satisfied." "While companies tend to be loyal to the firms they have chosen, there are factors that would cause companies to switch legal providers," says the study, noting "poor responsiveness and service are the most noteworthy." The odds of switching law firms "is higher when their current firm fails to deliver on results and expertise, more so than if a new firm is more capable in meeting these criteria," says the report. "Significantly, cost is the least important factor for companies when it comes to switching outside law firms." The study notes that companies have seen "stable levels of litigation in the past year, but the current global eco- nomic downturn may have an impact on the litigation landscape." And, it also finds that companies are satisfied with their litigation legal providers, particularly with that from a sole practitioner. Now he is a senior member of the bar and was appearing before a discipline hear- ing panel on which I sat. He was my classmate over 40 years ago, and as I beheld his visage I could see the wear and tear the years had wrought. It is easier to see the toll time takes on others than to see it in yourself. I am still surprised when clients ask me if the black- haired fellow sans wrinkles in the graduation picture on my office wall is that of my son. I have a gregarious nature O and would be overly fastidious if I automatically disqualified my- self whenever a colleague I know appears before me in discipline. I therefore told the senior sole practitioner that we had been classmates at law school, and while we would say hello to one another back then, we never chummed around or spoke to one another on the phone. I asked him if he wanted me to nce upon a time he worked for a large firm, but eventually he became remove myself from his case, but he said there was no reason to do that and the matter could proceed with me on the panel. There are many cases that A day of discipline Bencher's end up in discipline and cost all Law Society of Upper Can- ada members a huge amount of money for investigation and prosecution, but that with proper practice management would not have ended up in discipline at all. My former classmate's case was one of them. He had failed to maintain his books and records; had untruth- fully certified in his member's an- nual reports that they had been maintained in accordance with the applicable bylaw; had with- drawn from his trust account with respect to a certain client more money than was held in trust on that client's behalf; and had failed to supervise staff to whom he had delegated respon- sibility for maintaining his books and records and for preparing his member's annual reports. Professional misconduct was Diary By Gary Lloyd Gottlieb found and he was ordered to pay a fine of $2,000, to deliver to the law society for a period of two years his monthly trust compari- sons, to participate in practice reviews, and to pay the law soci- ety $1,500 in costs. After the chairman delivered our decision and oral reasons, I took the opportunity to make some additional comments of my own. I said I did not intend to be a counsel of perfection. I have always been a sole practitioner and know how hard it can be. It is difficult to diligently attend to both the needs of clients and the administrative side of your practice. It is hard to refuse new work and easy to let ad- ministrative tasks slide. There's a tendency to leave administration www.lawtimesnews.com outside law firms. While most agreed their law firms provide "strategic insight and regular updates on legal costs, the satisfaction with these factors ranks lower than expertise and outcomes. This sug- gests that strategic direction and updates on costs are areas where law firms can do more to add value to their clients." The report concludes that the findings stress "the importance of results and expe- rience, since companies are most likely to consider dropping their outside law firms should they fail to deliver on these factors. "The impact of costs can be significant for any business. While this is true, the re- sults of this study indicate that companies are less concerned with cost versus other factors such as service and expertise when it comes to switching legal providers." Bottom line: This is good for lawyers. And, it's terrific that information like this is in the public milieu. But now, what about the other 60 per cent? — Gretchen Drummie for a less busy time. When you have staff it is easier to assume all is well than to spend time ad- equately supervising them and reviewing what they do. Sole practice is cyclical. It is often feast or famine, but diffi- cult though it may be to refuse revenue-producing work, you must sometimes do so. You can- not put more work on your plate at the expense of neglecting ad- ministrative tasks. Neglecting office adminis- tration and not properly super- vising staff is a recipe for disaster and an invitation to investiga- tion and discipline. I am the last person to advocate more rules and regulations. Indeed I am a staunch believer in less, but I recognize that principles of good practice and the multitude of rules and regulations we have governing lawyers are as much for our own good as that of our clients. Do not do work for which you lack knowledge and exper- tise. Not only will you tend to procrastinate and invite discipline for lack of diligence; there's also a high risk you will gum things up and invite a negligence claim. Keep detailed dockets of work done and time spent, even if you are charging on a block fee or value-billing basis; keep detailed memoranda to file; get into writing clients' instruc- tions and acknowledgments of advice given; and send out plenty of confirming letters. Money for work to be done must be put in trust. All kinds of contingencies can arise, in- cluding your client switching lawyers. The money is not yours until the work has been done and the client billed. What I have seen from my experience as a bencher is that more discipline cases arise from poor practice habits and stan- dards than from dishonesty. LT Gary Lloyd Gottlieb, a Toronto lawyer, is a Law Society of Upper Canada bencher and a Toronto sole practitioner. His e-mail address is glgqc@interlog.com.