by Dan Pinnington

surveillace camera

When it comes to supervision, lawyers should think beyond just the people who are physically in their offices. In many law offices, there are various people working externally who do different types of work as employees or in other capacities. Examples include title searchers, private investigators, bookkeepers and technology support people. These people could be around the block, or on the other side of the world, and lawyers are obliged to properly supervise the work that they do as well.

What can’t be delegated?
Section 6 of Bylaw 7.1 directs that a lawyer shall not permit a non-lawyer:

  • to give the licensee’s client legal advice;
  • to act on behalf of a person in a proceeding before an adjudicative body, other than on behalf of the lawyer in accordance with subsection 5(1) of the Rules, unless the non lawyer is authorized under the Law Society Act to do so;
  • to conduct negotiations with third parties, other than in accordance with subsection 5(2) of the Rules;
  • to sign correspondence, other than correspondence of a routine administrative nature (see the paragraph below for details on what staff can sign);
  • to forward to the lawyer’s client any document, other than a routine document, that has not been previously reviewed by the lawyer.

As well, non-lawyers cannot:

  • use the lawyer’s Teranet PSP or be given the lawyer’s password (Rule 5.01(3)); or
  • provide advice, information or opinions to a client concerning any insurance, including title insurance, without supervision (Rule 5.01(5).

What can a lawyer delegate?
After noting the requirement of direct supervision in subsection 4(1), subsection 4(2) of Part 1 of By-law 7.1 gives some direction on what a lawyer can delegate and the extent to which work by a non-lawyer should be supervised. It provides that:

  • a lawyer shall not permit a non-lawyer to accept a client on the lawyer’s behalf;
  • the lawyer shall maintain a direct relationship with each client throughout the lawyer’s retainer;
  • the lawyer shall assign only tasks and functions that the non lawyer is competent to perform;
  • the lawyer shall ensure that a non-lawyer does not act without the lawyer’s instruction;
  • the lawyer shall review a non-lawyer’s performance of the tasks and functions assigned to her or him at frequent intervals;
  • the lawyer shall ensure that the tasks and functions assigned to a non-lawyer are performed properly and in a timely manner;
  • the lawyer shall assume responsibility for all tasks and functions performed by a non-lawyer, including all documents prepared by the non-lawyer; and
  • the lawyer shall ensure that a non-lawyer does not, at any time, act finally in respect of the affairs of the lawyer’s client.

Express instruction & authorization required
Section 5(1) of Part 1 of By-law 7.1 directs that a lawyer shall give a non-lawyer express instruction and authorization prior to permitting the non-lawyer to do the following things:

  • give or accept an undertaking on behalf of the lawyer;
  • act on behalf of the lawyer in respect of a scheduling or other related routine administrative matter before an adjudicative body; or
  • take instructions from the lawyer’s client.

Further, Section 5(5) directs that a lawyer shall obtain a client’s consent to permit a non-lawyer to conduct routine negotiations with third parties in relation to the affairs of the lawyer’s client and shall approve the results of the negotiations before any action is taken following from the negotiations.

Signing correspondence
Do you have to sign every piece of correspondence that leaves your office? No, but certain limits apply. Section 6(1)(d) of By-Law 7.1 provides that correspondence of a routine or administrative nature may be signed by non-lawyer employees. However, the lawyer should specifically direct the employee to sign and should ensure that the correspondence discloses that the person signing is not a lawyer and in what capacity the employee is signing the document. Only lawyers, within their permitted scope of practice, are permitted to sign correspondence containing legal opinions.

Collection letters
Section 7 of By-Law 7.1 has specific direction on collections letters. It provides that lawyers shall not permit a collection letter to be sent to any person unless:

  • the letter is in relation to the affairs of the lawyer’s client;
  • the letter is prepared by the lawyer or by a non-lawyer under the direct supervision of the lawyer;
  • if the letter is prepared by a non-lawyer under the direct supervision of the lawyer, the letter is reviewed and approved by the lawyer prior to it being sent;
  • the letter is on the lawyer’s business letterhead; and
  • the letter is signed by the lawyer.

Supervision of articling and law students
See subsection 34 (1) of By-Law 4 for information on the requirements for supervising articling students and law students.

More delegation
Delegation involves getting the job done through others. A governing tenet in every firm should be to push work down to the lowest capable level. You are wasting your time and the client’s money if you or others at your firm are consistently doing tasks that lawyers with a lower hourly rate or staff can complete.

Lawyers typically fail to delegate for any number of reasons, none of which stand up to scrutiny.

  • They don’t want to give up control of the matter or client: This is a bad behaviour often driven by a compensation system that rewards bad behaviours.
  • They think they can complete it better themselves: With proper training, someone else can likely do the job just as well.
  • They think they can complete it faster themselves: With proper training, someone else can likely do the job just as fast.
  • There is not enough time to properly train someone else to do the task: This excuse is often cited in conjunction with the previous point – and it may make sense in the rush to get an individual matter done. However, this ignores the longer-term benefits that once that person is trained, the task can be done much more quickly every time it is required in the future.
  • The work was not done properly the last time it was delegated: This was likely because there was insufficient training or instructions.

Better delegation
Carefully review your common tasks and make an effort to identify which ones could be delegated. Then apply the following tenets of effective delegation:

  • Pick the right person for the task: Often the right person can do the work without training. However, don’t overlook an opportunity to challenge and engage someone who is willing and interested, and could do the task with training.
  • Don’t talk down to the delegatee: Treat staff members with respect and as equal members of the team.
  • Give clear instructions and all required information: Highlight specific issues of concern, but also paint the bigger picture so that staff members understand the reasons behind the work that they are doing.
  • Explain any special parameters: Are there resources to use or not to use, a sensitivity to high fees by the client, etc.?
  • Make deadlines realistic: An unrealistic deadline is unfair and frustrating to the person being assigned the task.
  • Establish the reporting mechanism: Do you expect the delegatee to simply return the completed work, or is the staff member to check in or provide updates as he or she works through the task?
  • Confirm instructions were understood: Ask the delegate to reiterate the task requested.
  • Always provide feedback when the work is done: Don’t just complain when there are mistakes or problems. Say thank you every time, compliment and reward good work, and make sure any criticism is constructive criticism.

The commentary to subrule 5.01(2) of the Rules further provides that the “lawyer is required to review the non-lawyer’s work at frequent intervals to ensure its proper and timely completion.” Extra care may be warranted if there is something different or unusual in the matter at hand. Consider if special training or courses could help increase the skills of staff, allowing them to take on more complex tasks.

Hiring reliable staff
As you are ultimately responsible for their work, it is important to hire reliable and trustworthy employees for your firm. When interviewing potential employees, ask hard questions. Inquire about the candidate’s past performance. Confirm details on a candidate’s resumé, consult references and verify previous employment experience. Look for any red flags and be very cautious if someone appears to be withholding information or has false or misleading information on a resumé. If the position involves handling money, ask for the applicant’s consent to check his or her criminal record and credit reports. Ensure that you comply with privacy legislation and refer to subrule 5.04(3) of the lawyers’ Rules for questions that can and cannot be asked of an applicant.

Internal controls
Ideally, your office should have clearly established internal controls for handling and documenting all types of financial transactions. These internal controls are really just policies and procedures that direct what steps should be taken when various financial transactions occur – indirectly they act to “supervise” these transactions. Although a lack of internal controls does not necessarily constitute a breach of the Rules of Professional Conduct or By-laws, you may consider implementing internal controls to assist your efforts to comply.

The Managing the Finances of Your Practice booklet (www.practicepro.ca/financesbooklet) has sample law office internal controls for several things including:

  • cheque requisitions
  • cheque signing policies
  • trust records
  • handling clients’ valuable property
  • staffing policies and procedures
  • segregation of staff duties, and
  • use and operation of trust accounts.

Internal fraud
The cost of fraud claims, including claims due to the frauds of law office staff, are a significant cost of the LAWPRO insurance program. Proper supervision and internal controls can help to prevent fraud by staff members. For more information on how to recognize and respond to internal fraud, review the article What to do when partners, associates or staff commit fraud by David Debenham which appeared in the Surviving the Slide, Winter 2008/2009 (Vol. 7 no. 4) issue of LAWPRO Magazine.

Conclusion
It is a big responsibility to assume complete professional responsibility for all business entrusted to you, including any tasks done by your staff or third parties. Take steps to meet these obligations by properly supervising all tasks and functions that are delegated in your office. For additional information regarding education and training for non-lawyers and the supervision of staff and assistants, see the Law Society’s Professional Management Guideline, and the Commentaries on the Rules.