8.5 – Ability to Respond
Responding to Negligence Claims
A negligence claim can be brought against you long after the alleged negligence occurred. The Limitations Act, RSS 2004 L-16.1 simplifies the time limits for filing civil lawsuits. The Act provides a standard two-year period for civil litigation actions. The discoverability principle determines the date from which the limitation period begins to run. The Act also includes an ultimate limitation period that bars all actions after 15 years, with some exceptions.
The initial retainer letter, notes of instructions and conversations, telephone records, copies of correspondence, drafts of documents, and final documents can be particularly important in defending a negligence claim against you. If you turn over a file to a subsequent lawyer or your client, it is in your best interests to:
- note and retain the file materials that belong to you and do not need to be provided to your client; and
- keep a copy at your own expense of the file contents that belong to the client.
Want more information about transferring a client file? Review File Transfers on the Law Society website.
Responding to Special Fund Claims
You should also consider how you would respond to allegations that you misappropriated trust funds, which result in a special fund claim. Ensure that you keep your trust books and other accounts, as well as the file contents that explain trust transactions (including documents evidencing client instructions) for the ten years as is required by subrule 1529(2), but consider whether you should keep particular records for a longer period as a result of discoverability and other exceptions to limitations.
Defending Against Complaints
Another reason to retain your files is to enable you to defend against complaints that might arise. A complaint to the Law Society may be made against you not only during your active work on the file, or when your client decides to change lawyers, but also long after you have closed your file. Although limitation periods may intervene, consider keeping information that would allow you to respond to a complaint for a longer time where you have concerns that a dissatisfied client or opposing counsel may not let go of the issue.
As with defending a negligence claim, the initial retainer letter, notes of instructions and conversations, telephone records, copies of correspondence, drafts of documents, and final documents can be particularly important in defending yourself against a complaint.