Law Times

Law Times • November 18, 2013 Page 7 COMMENT Preliminary reports an easy way to prevent claims T here are many ways to really depress yourself: Recall the Toronto Maple Leafs' playoff implosion earlier this year; discuss the Blue Jays' dismal season; or listen to anyone from LawPPO talk about the claims experience in the profession. At any given time, there are almost 4,000 open claim files sitting at LawPRO with 2,300 new ones filed every year. Four out of every five practising lawyers will report a claim during their careers and 30 per cent of them will deal with real estate matters. If we delve into the statistics further, we see that of the real estate-related claims, more than 40 per cent of them relate simply to a lack of communication and another 26 per cent arise from something called inadequate investigation. The failure to communicate effectively is relatively straightforward, but in the context of a real estate transaction, it usually means the lawyers failed to keep the client apprised of what they were actually doing on the file. Sadly, in a typical real estate file, there are only two principal opportunities for effective communication: initially, at the intake stage when the agreement of purchase and sale is just coming into the office and again just before closing when the client comes in to sign the documents. The so-called inadequate investigation can, of course, cover a multitude of sins, but in a typical transaction, it's usually not, as the name might otherwise imply, a failure on the part of the solicitor to conduct direction, together with a charge/ appropriate searches. Rather, inadequate investigation is often The Dirt mortgage of land in favour of your financial institution." an intake issue related to how the While the form varies, we alsolicitor failed to ascertain what most always close a file by issuing the client really needed in the first a final report of some sort after place and never quite had a hanclosing and often with an invoice dle on the instructions. showing the retainer and copies Although I'm playing fast and of the closing documents for the loose with statistical extrapolation clients' records. now, by my calculation, fully twoJeffrey Lem Now imagine taking that thirds of the claims experience same final report and reversing for the real estate bar relates to a the tense of the verbs so they're single point in time: the failure to ask questions and give explanations to the all prospective. Instead of a final report, we clients at the intake stage. This Achilles heel would have a preliminary one that would is certainly consistent with my anecdotal ex- say the same things in a prospective manner. So, for instance, our preliminary report perience. Lawyers can avoid claims through might say things like: "On or before such a timely two-way communication. Of course, identifying a problem and date, we will search title to Blackacre at the proposing a solution are altogether differ- land registry office and confirm that the ent exercises. What if we could tackle the vendor does in fact have good and marketcomplaints about inadequate communi- able title to the property"; "we will search for cation or insufficient investigations just by writs of execution against the vendor"; "we reversing the order of the documentation will then register a transfer/deed of land in your name (or to whom you may direct in that we otherwise already do? Think about it. In a typical real estate writing), together with a charge/mortgage of purchase transaction, it's common to issue land in favour of your financial institution a final report or opinion after closing. These in accordance with instructions that we will final reports all vary, but a typical one would receive from that financial institution." If the file is otherwise unremarkable, you say something along the lines of: "On such a date, we searched title to Blackacre at the can reduce the final report to a one-page letland registry office and confirmed that the ter confirming that, on the closing date, you vendor had good and marketable title to completed the transaction as contemplated the property"; "we searched for writs of ex- and described in the preliminary report and ecution against the vendor"; "we registered a provide the documents. By simply converting the tense of these transfer/deed of land engrossed as per your verbs, you can change the final report into a preliminary one issued right at the client intake stage, perhaps in combination with the retainer letter you were about to send out to the client in any event. Instead of explaining to clients what you did for them well after closing when it will have no prophylactic value, you're now advising them well in advance what you will and won't be doing for them. It's not really difficult to do and, once you've established the template, the document is easy to replicate. Furthermore, the process doesn't add materially to the overall reporting requirement because you would have already done the final report more or less in the same format at some point in the process. Admittedly, I had originally intended the conversion of my final report into a preliminary one as a purely defensive move to reduce the likelihood and severity of claims. Ironically, clients haven't reacted adversely to the new paradigm. Instead, clients have perceived the approach as being very proactive and communicative while ultimately prompting better instructions as to what they expected from me as their solicitor. Go figure. I make a blatant attempt at covering my bases and now I'm a hero. Life has its ironies. LT Jeffrey W. Lem is a partner in the real estate group at Miller Thomson LLP. His e-mail address is jlem@millerthomson. com. A call for mentorship T Junior lawyers, senior practitioners, profession benefit inspiration from one particular element of his past October, I had the honour for the second time in as many years The Lawyer professionalism that was on full display. At the end of a two-day conference, young lawto receive an invitation to speak at Therapist yers and law students sat at roundtables across the Sudbury colloquium, a top-shelf from two or three experienced counsel or gathering of learned speakers as well as eager judges and peppered them with questions. and impressive attendees. There were many The responses they received were thoughtrich conversations on both substantive law and ful, kind, and practical. The inquisitors were legal culture. Of particular note were two spesincerely thankful. The responders, interestcific events. First, Justice Stephen Goudge of the ingly enough, seemed energized and fulfilled, Ontario Court of Appeal delivered a keynote as though they knew they were doing a good address on the state of professionalism in the thing and felt good about themselves for it. Ontario bar. The second event that caught my Doron Gold Unfortunately, this type of generational attention was a mentoring session for young interplay has become increasingly rare. To be lawyers. Both events aroused a long-standing concern I've had related to certain types of clients and is- sure, some firms build systematic mentorship into their processes in order to bring along the next generation of sues I see in my therapy practice. I'm not embarrassed to admit that Goudge's pres- lawyers. And yet, one young person after another I see ence rendered me a tad awestruck. Sure, Court of in my therapy practice feels unsupported and alone. I've Appeal judges are impressive, but this particular one seen young people who've had work heaped upon them presided over my one and only appearance before that that was alarmingly beyond their level of experience and august panel, an appearance at which I'm proud to say when they struggle to master these virtually impossible I prevailed. Goudge's presence quickly evolved into a tasks absent support or tutelage, they feel like failures. reminder of why learned and thoughtful leadership is Further, they're too afraid to speak up or ask for help. The impact can be devastating with many succumbing to exinvaluable in any undertaking. Goudge spoke passionately about the legal profession treme anxiety, depression or even addictions stemming as a business and the burden an outsized business focus from the urgency to find some way to cope with their places on the professionalism of lawyers. He quoted legal seemingly irresolvable dilemma. These young people need mentors and the legal proscholar Roscoe Pound who described a profession as "a group . . . pursuing a learned art as a common calling in fession has a duty to ensure they get them. The duty exthe spirit of public service — no less a public service be- ists because legal practice is more than just a business. It's a proud professional tradition in which one generation cause it may incidentally be a means of livelihood." So ideally, the livelihood is incidental, not the profes- helps bring along the next. This is for the good of the insionalism. Ultimately, Goudge reminded participants not dividuals, the firm, and society. If that's woefully idealistic, to stray too far afield from the anchoring power of their so be it. The reputational, emotional, and financial cost of not embracing mentorship is simply too high. membership in a respected and essential endeavour. In an article on mentoring, law professor Adelle BlackIs that too idealistic for you? Should we view these notions as quaint remnants of a bygone era in which ett defines mentorship as "a reciprocal relationship bethe culture was less harsh and the cost of living was tween a senior lawyer (the mentor) and a junior lawyer (the protegé), fostered to advance the protegé's profesconsiderably less prohibitive? While that may be the case, during the second event sional development, but also benefiting the mentor and on mentoring, I couldn't help but be hopeful and draw the legal profession more broadly." It involves some level www.lawtimesnews.com of altruism in that a busy lawyer must give up valuable time in order to further the professional development of a junior colleague. Beyond imparting the senior lawyers' skills, mentorship enhances the cohesion of the legal fraternity. The mentored lawyers are much more likely to support someone else when their turn comes. Perhaps the inverse effect is why so much less mentorship is occurring now: With fewer people mentored, the less lawyers feel it's part of their obligation as professionals to pass on the tradition. Today, the primary formalized mentoring construct is the articling experience and yet the profession is even changing or diminishing that process. On the other hand, the Law Society of Upper Canada conducts mentorship programs related to articling, equity, diversity, and substantive law assistance. Law schools attempt to help their students with connections to experienced lawyers. Many young lawyers take it upon themselves to seek out mentors. But for every new lawyer who takes the initiative to secure a mentor, infinitely more are too afraid to reach out or simply don't know where to start. It's in this vein that I reach out to my experienced colleagues and appeal to their sense of professionalism, the topic Goudge addressed so well. Your time is precious and your knowledge well earned. Harken back to what it was like when you were starting out. Remember how scary every little task seemed and how alone and self-conscious you may have felt in those moments. You have the power to both alleviate the distress of a younger colleague as well as contribute to the integrity and effectiveness of the profession as a whole. Small gestures can be powerful, both for the recipient and, just as often, for the giver. And who knows? You may be mentoring a future judge of the Court of Appeal. LT Doron Gold is a registered social worker who's also a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member Assistance Program as well as with members of the general public in his private psychotherapy practice. He's available at dorongold.com.

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