Ethical Issues and Practice Management

The following points set out some ethical concerns that the locum lawyer and contracting firm/lawyer may wish to address as they complete the contract arrangements.

Whose “client” is it – the contracting firm/lawyer’s client or the locum lawyer’s client?

When the individual seeking legal services first retained the contracting firm/lawyer, the individual became the contracting firm/lawyer’s client. However, during the time that the locum lawyer provides legal services to the same individual, that individual is now the locum lawyer’s client also.

Conflicts of Interest

The same rules apply to the locum lawyer and to the contracting firm/lawyer. The locum lawyer must set up a system to check for conflicts of interest prior to working on the contracting firm/lawyer’s files. A locum lawyer needs to keep a list of clients to whom he or she has provided legal services during all locum lawyer projects. The locum lawyer must ensure that no conflict exists between his or her present clients and those to whom the locum lawyer provided legal services during all past locum lawyer arrangements or in his or her separate practice, if one exists. All lawyer parties should be familiar with Rule 3.4-1 of the Code of Professional Conduct, which deals with conflicts of interest.

What happens when a professional conduct issue arises?

Treat this just the same as any other situation: read the Law Society Code of Professional Conduct. Both the locum lawyer and contracting firm/lawyer should be familiar with Rule 7.1-3 of the Code of Professional Conduct, which deals with the duty to report misconduct. Consider dealing with the requirement to report misconduct in the locum lawyer contract.

If the matter is unclear, contact the Law Society’s Complaints Counsel for informal ethics assistance. The informal ethics process is a strictly confidential service and provides assistance in interpreting the Code of Professional Conduct. Experienced counsel are available to give valuable insight on the Code. Call 306-569-8242.

Undertakings: is the locum lawyer responsible?

An undertaking is always the responsibility of the lawyer who gives it.

Rule 5.1-6 and Rule 7.2-11 of the Code of Professional Conduct state that:

“A lawyer must strictly and scrupulously fulfill any undertakings given and honour any trust conditions accepted in the course of litigation.”
and
“A lawyer must not give an undertaking that cannot be fulfilled and must fulfill every undertaking given and honour every trust condition once accepted.”

The commentary to Rule 7.2-11[1] holds

“If a lawyer giving an undertaking does not intend to accept personal responsibility, this should be stated clearly in the undertaking itself. In the absence of such a statement, the person to whom the undertaking is given is entitled to expect that the lawyer giving it will honour it personally.”

Therefore, be cautious about entering into an undertaking that you, as a locum lawyer, cannot control. If the locum lawyer signs an undertaking letter or gives a verbal undertaking, it is the locum lawyer’s undertaking (and liability), and not that of the contracting firm/lawyer.

Client identification and verification

Both the contracting firm/lawyer and locum lawyer must comply with the Law Society’s client identification and verification requirements and should be familiar with them. See Rules 1541-1550.

Client management

Informing new and existing clients: Advise clients in advance if you know the locum lawyer will be working on their files. It is recommended that all clients be informed that the locum lawyer will be covering the contracting firm/lawyer’s practice for the period in question and therefore may be working on their file. Reception staff can remind clients that their lawyer (the Contracting Lawyer) is away, but that the locum lawyer is filling in. It is rare that a client will refuse to meet with or deal with the locum lawyer. Also, consider including a paragraph in your firm’s standard retainer agreement that allows for the potential involvement of a locum lawyer on the client’s file.
Dealing with difficult clients: a locum lawyer should treat difficult clients the same as he or she would in his/her own practice, but seek input from the senior support staff or contracting firm/lawyer before making any decisive moves, such as terminating the relationship. Also, refer to Chapter 2 of the Code of Professional Conduct, which deals with the lawyer-client relationship.
Dealing with a crisis: Almost anything can happen, so make sure that the locum lawyer or senior staff has an emergency contact telephone number or e-mail address for the Contracting Lawyer to contact him or her in an emergency situation.