Law Times

Law Times • May 13, 2013 Page 9 FOCUS Lawyers warned about situations that can land them in trouble BY CHARLOTTE SANTRY Law Times F rom client complaints to employment disputes, lawyers face a number of legal and regulatory pitfalls that can damage a career. "These are the kinds of cases that keep lawyers up at night," said Kim Newman of Cohen Highley LLP during a recent Ontario Bar Association seminar dealing with common legal and regulatory infractions by members of the profession. The event on workplace policies and procedures for law firms took place April 29. Speakers from Ontario law firms and the Law Society of Upper Canada set out the scenarios that are frequently leading to complaints from clients and employees. Marco Mendicino, LSUC investigations department team manager, warned attendees that his team is seeing many complaints stemming from the absence of a clear initial retainer. He detailed recent cases in which lawyers have faced significant censure after failing to communicate clearly with clients, charging unreasonable fees or refusing to comply with panel orders. In one of them, Law Society of Upper Canada v. Roderick John Byrnes, a family lawyer faced an allegation of failing to provide his client with a written estimate of the fees at the outset of the retainer. Byrnes advised his client, Raouf Rasheed, that if he resolved his matrimonial dispute swiftly and amicably, the cost would be about $8,000. He took a $2,000 retainer. But he later sent Rasheed several invoices totalling $32,866. He received $26,523 of that amount. Rasheed discharged Byrnes and had his account assessed by another lawyer who found Byrnes hadn't kept dockets. A regional hearings officer directed Byrnes to reimburse Rasheed the full amount and pay $48,586 in costs. In the end, Byrnes filed for bankruptcy. The law society hearing panel found Byrnes had flouted the Rules of Professional Conduct by failing to keep his client informed, failing to provide a written estimate of his fees, and charging unreasonable amounts. The panel decision dated Feb. 8, 2013, stated: "There are a number of handwritten notes to file that provide shards of information about the content of discussions held during periodic meetings. We cannot accept that the client was kept abreast of developments." It continued: "Mr. Byrnes admits that he kept no dockets, which might have provided contemporaneous information about what matters had been discussed with the client, nor are there progress reports, memoranda or letters to Mr. Rasheed advising what steps had been taken, their cost, and so on." "It all centred around the absence of an initial retainer," said Mendicino. The case provides a "flavour" of how the LSUC treats one of the most "common types of complaints," he noted. He also advised caution around joint retainers in situations where they could create a conflict of interest further down the line. "Some people fall into the trap where they do an initial assessment of conflicts at the outset of the retainer," he said. For example, in a criminal case where one of two culprits on a joint retainer emerges as more culpable than the other, lawyers risk the perception of having lost their independent voice. Lawyers should be "constantly looking at the road map of the retainer and the potential conflicts," Mendicino added. Those attending the OBA event also got a reminder during a separate session from business lawyer Aaron Grinhaus about their obligations to employees, particularly in regards to workplace harassment and violence. Most law firms will have policies dealing with these issues when they occur in the office. But what about when they originate outside of the workplace in cases involving sexual harassment, for example, at a post-work drinks function? it a difficult rule to interpret. The law could consider a social An Ontario Ministry of Labour function a workplace, said Gringuide describes domestic violence haus, who advises clients on busias a "pattern of behaviour used ness risks and liabilities. by one person to gain power and Lawyers are certainly not imcontrol over another person with mune to these issues even though whom he/she has or has had an inthey rarely make it into the public timate relationship." domain. In fact, police recently It continues: "This pattern of contacted Grinhaus when a lawyer behaviour may include physical he knew from another firm faced violence, sexual, emotional, and an accusation by a junior co-workpsychological intimidation, verbal er of sexual harassment during an abuse, stalking, and using electronafter-hours party. ic devices to harass and control." Law firms must also be aware Speaking to Law Times after of their "amorphous and ominous the event, Grinhaus recommends obligations" to prevent domestic firms take "proactive measures" violence in the workplace, he told OBA members, explaining that The law could consider a social function a by, for example, setting up anonymous reporting channels and takemployers have an ill-defined duty workplace, says Aaron Grinhaus. ing the time to look into any conto ensure that domestic violence cerns raised. "It's important to do your due diligence does "not carry over into the workplace." The Occupational Health and Safety Amendment and in good faith," he says. "That's what will back you LT Act offers no definition of domestic violence, making up in the result of a claim." 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