Law Times

Law Times • December 15, 2008 Selection criteria adjusted by LSUC BY ROBERT TODD Law Times "It's much harder to have the time and also perhaps to develop the ability to develop practice management controls without some infra- structure and additional help," Bencher Laurie Pawlitza, chairwoman of the Law Society of Upper Canada's professional development and competence committee, told Convocation. T he law society has altered its selection criteria for practice management reviews after finding a higher share of lawyers in firms of five or fewer fail to meet standards. The committee decided it was time for the law society to adjust its selection criteria, which prioritizes lawyers with eight or fewer years of experience, but was previously doled out in proportion to the number of lawyers in a specialty. The report showed that of the 98 reviews conducted on lawyers in firms of five or fewer between January 2007 and June 2008, 20 failed to meet standards. Of the 164 other reviews conducted during that period on lawyers in firms of six or more, just three fell below the minimum standard, according to the report. "So in terms of five and fewer, 20 per cent of the lawyers we re- viewed fell below the minimum standard, and in firms six and above it works out to about 1.8 per cent fell below the minimum standard," said Pawlitza. She suggested the law society could better direct its resources. "The committee felt very strongly that both sets of statistics were strong indicators of risk and we also need, felt the committee, to spend our money on these proactive practice management reviews where it's most needed." Under the new system, unanimously passed by benchers, lawyers NEWS PAGE 5 New advertising rules accepted BY ROBERT TODD Law Times keting rules into the 21st centu- ry, giving lawyers more leeway to brand their services, so long as their claims meet standards. "We think it's time to get out of the business of looking at let- terhead and thinking that we have, by virtue of those kinds of formalistic provisions, done a whole lot to protect the pub- lic," law T he Law Society of Up- per Canada has brought its advertising and mar- regulation committee chair- woman Linda Rothstein told October Convocation. While benchers adopted the new rules in principle during that ses- sion, a finalized version of the new rules was accepted at their November meeting after being touched up by the LSUC's rules drafter. Similar rules for parale- gals also were adopted. According to the commit- society professional in private practice with one to eight years of experience will continue to be targeted, but now the law society will base the reviews "in ap- proximate proportion to the percentage of law firms represented in law society conduct matters and LawPRO negligence claims for the entire profession determined annually." The report noted that by June 30, 2008, $681,000 had been spent on the program, and that 63 per cent — or $429,000 — was spent reviewing practices in large firms with "almost no deficiencies." Lawyers within the first eight years of their call to the bar have been targeted based on data showing an increase in LawPRO neg- ligence claims for lawyers after their eighth year, according to the report. tee's October report, the new rules of professional conduct "significantly reduce the length — but not the substantive in- struction — of the current rules on advertising and mar- keting legal services." The re- port refers to the new approach as "more purposive." reasons for reconsidering rule three of the rules of profes- sional conduct was the fact that the law society deals with few complaints regarding advertis- ing and a recent Competition Bureau report suggesting law societies lift unnecessary adver- tising restrictions. The report suggests that many of the existing rules shield lawyers from competition, rather than guarding the public. It cites as examples prohibitions against using a judge's name in a firm name, comparing services with other lawyers, and use of the words "from . . . minimum . . . and up" in fee advertisements. The report suggests the law society should base its approach in this area on making sure ad- vertising and marketing claims are not false, that they're not misleading or deceptive, and that they are in the public in- terest and in line with lawyers' professional responsibilities. "The current rule includes all of these concepts," the re- port states. "Much of the de- tail in the rule, however, ap- pears to only elaborate on these concepts, which has the effect of 'cluttering' the rule, and in Among the committee's some respects, making it appear arcane." Some benchers took excep- tion to the rules' approach to lawyers' claims of being an "ex- pert" in a certain area of law. The law society needs to change the rule to bar lawyers from say- ing they are an expert unless they have been designated a certified specialist, said Bencher Bob Aar- on, a member of the professional regulation committee. "Law society staff have taken the view, and so did the com- mittee over my objections, that it's okay for a lawyer to say he or she is an expert without over- sight by the society," Aaron told Convocation. "I have a great deal of difficulty with the so- ciety's position because I don't think the public understands the differences between C.S. af- ter a lawyer's name, indicating certified specialist, and expert." Rothstein said the com- mittee decided against Aaron's suggestion "for a variety of complicated reasons." "We weren't persuaded that we should include a per se pro- hibition on the use of the word 'expert,'" she said. Convocation is expected to revisit Aaron's recommendation next month. LT The law society has set the number of reviews it would conduct at 250 for 2007, 400 in 2008, and 500 for 2009 and onward, the report states. Included in those numbers are focused reviews that are based on complaints history, absence from private practice for five years, or other risk factors. The report pointed to a lack of resources as a possible explanation for the poor results of lawyers in firms of five or fewer. "Lawyers in large firms have practice management controls," states the report. "The larger the firm the more likely individual lawyers are to be relieved of day-to-day management responsibilities." The report also indicated lawyers are overwhelmingly on board with the practice management reviews. Of the 58 per cent of lawyers reviewed from January 2007 and June 2008, 98 per cent found the report useful for improvement; 94 per cent said the program was "very constructive;" and 100 per cent found the reviewer and their assistant to be "helpful and professional," stated the report. LT This is the last print issue of Law Times for this year as your favourite weekly legal newspaper is on annual hiatus. We will return on Jan. 12. Meanwhile, enjoy fresh content weekly on our web site at www.lawtimesnews.com HappyHolidays Trust [ David Payne | Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. Wendy Moore Johns | David Tenszen For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom Untitled-1 1www.lawtimesnews.com 11/25/08 8:46:47 AM

• Cover
• Remembering Irwin
• Benchers Diary
• Focus On Criminal Law