Law Times

Law Times • June 19, 2017 Page 9 www.lawtimesnews.com FOCUS Issues around duty of care front and centre Chill effect on unbundling unnecessary BY MARG. BRUINEMAN For Law Times A chill that swept through the legal pro- fession over the pro- vision of unbundled legal services after the decision in Meehan v. Good earlier this year def lects the main issue in the case, say some lawyers. In February, the Ontario Court of Appeal overturned a motion judge's decision that had dismissed a negligence claim against a lawyer, and ruled that the lawyer had failed to give ad- equate advice to a client. The case revolved around the duty of care the lawyer owed the client to examine all the cir- cumstances and provide advice about the limitation period. Unbundling or limited- scope retainers allow lawyers to provide legal services for part of a file. It's considered an espe- cially helpful tool in family law where most venture to court unrepresented largely because they cannot afford the services of a lawyer. A limited-scope retainer al- lows them to access legal help for just part of the file and incur fewer expenses. "[T]here's no evidence to sug- gest that providing unbundled services or legal coaching is in- creasing your risk of liability for either a civil malpractice claim or a complaint to your regula- tor," says Nikki Gershbain, na- tional director of Pro Bono Stu- dents Canada. "And yet this fear continues to be one of the main reasons why lawyers are reluctant to offer unbundled services. The lawyers I've seen who are basi- cally trying to develop this prac- tice model into a business model are telling me they are extremely careful about this. They also say that their clients are happier." Gershbain is on a fellowship with the Canadian Forum on Civil Justice, where she is ex- ploring legal coaching as a form of unbundling for use in family law and she's developing train- ing for lawyers to create effective legal coaches in a new special- ized area. Gershbain describes unbun- dling as a safe and viable prac- tice area and a wonderful ac- cess-to-justice model that could result in faster, better and less stressful outcomes. And there is clearly a need, with an estimated 57 per cent of family law litigants unrepre- sented in Ontario in 2015. In her work, Gershbain has found that Meehan did cause many in the profession to pause and take notice. She has been surveying and interviewing lawyers across the country and found that a main concern for lawyers when it comes to providing unbundled legal services is liability. She points out that there are years of research, case law and policy changes that facilitate the use of limited-scope retainers. And they offered no indication of an increased rate of either a negligence claim or a complaint to the law society. She's also found that lawyers who have successfully offered unbundled services screened out candidates who were not appropriate for unbundled or coaching services and revisited the retainer as they did the work and adjusted it if necessary. The process also included documenting all the informa- tion and advice given and pro- viding a written notice indicat- ing the end of the relationship. John-Paul Boyd, executive dir- ector of the Canadian Research Institute for Law and the Family at the University of Calgary, says the decision only emphasizes the duty of care required by lawyers in all the work they do. Unbundling does not mean less effective or lower-quality legal services and advice. "This case is considered to have had a chilling effect on those who are prepared to con- sider unbundling their servic- es," observes Boyd. "The duty the lawyer owed to an unbundled client is exactly the same duty as the lawyers owe to the traditionally retained client; neither of them are any different. The reason why [Mee- han has] had some prominence is I think that this is one of the very few appellate decisions from anywhere in Canada to consider the duty of care owed by a lawyer in the context of a limited-scope file." That duty of care, he adds, re- quires advising the client on all matters related to the file. That includes doing the con- f licts check, advising about rel- evant issues such as limitation periods and due dates as well as issues that have a "do-or-die im- pact" on a client's claim or right to defend a claim. The decision in Meehan came at a time when there has been a great amount of atten- tion paid on the limited-scope approach. The Alberta Limited Services Project was recently launched, aimed at encouraging lawyers to provide unbundled services. Research is also under- way to determine if unbundling provides increased access to justice and the organization is gauging the satisfaction level of clients and lawyers. There is also a pilot project underway in British Columbia to create a roster of lawyers pro- viding unbundled services. "The overall context is that there has been a national in- crease in interest in limited- scope work arising from all the reports that were published in 2013 by the CBA by the Nation- al Action Committee on Access to Justice by Julie McFarlane's group, all of which included mention of limited-scope ser- vices or unbundling as a way of addressing lawyers' incurably high rates that push traditional retainers outside the affordabil- ity of even middle-income Ca- nadians," says Boyd. The Law Society of Upper Canada supports the approach and acknowledges the need for alternative approaches in fam- ily law. "The Law Society recognizes the importance of limited-scope retainers. They enhance access to justice by giving clients f lexibili- ty in choosing when they want or feel they need, a lawyer or parale- gal," says Treasurer Paul Schabas. "Our rules provide guidance to licensees on how to provide limited services effectively, and we support and encourage their use where appropriate." LawPro advises lawyers to take precautions to limit their exposure when offering limit- ed-scope retainers. The legal insurer is con- cerned that unbundling could lead to more claims, because the biggest cause of claims against lawyers involves communica- tion and inadequate investiga- tion or discovery of facts. It provides a list of sugges- tions to reduce exposure when offering unbundled services. They include identifying the specific work to be done, con- firming the scope of the limited retainer in writing and clearly documenting work and com- munications, being careful with communications when oppos- ing counsel is acting on an un- bundled basis, and recognizing that unbundled legal services are not appropriate for all law- yers, all clients or all legal prob- lems. LT Nikki Gershbain says unbundled legal ser- vices and legal coaching can be effective as an access-to-justice initiative. This case is considered to have had a chilling effect on those who are prepared to consider unbundling their services. John-Paul Boyd Patrick D.Schmidt Partner Melanie Larock Partner Jessica Luscombe Associate George Karahotzitis Partner Matrimonial Litigation can be highly complex and contentious. When being reasonable is not enough: YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com Thomson, Rogers Lawyers FAMILY LAW GROUP Untitled-7 1 2017-06-14 4:41 PM

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