When an emergency room has too many patients and not enough doctors to address the demands, some hospitals declare a “Code Census”. Similarly, in law offices, client demands may outstrip the resources needed to address them. This article outlines steps lawyers can take to avoid, as well as what to do during, a Code Census while meeting one’s professional obligations.
The Law Society of Upper Canada (LSUC) sets out specific requirements of lawyers in running their practices and meeting client demands. Below are some relevant excerpts from the Rules of Professional Conduct and certain LSUC Practice Management Guidelines to keep in mind:
- Rule 3.1-1(d) - Competence
A “competent lawyer” must communicate “at all relevant stages of a matter, timely and effectively”.
- Rule 7.1-1 & 7.2-5 – Communications to the LSUC & Others
Lawyers must reply “promptly” to any communication from the LSUC in which a response is requested. They must also answer with “reasonable promptness” all communications from other legal practitioners that require an answer and be “punctual” in fulfilling all commitments.
- Practice Management Guideline: Client Service and Communication
This guideline suggests that a lawyer must respond to clients in a “timely manner”. It also suggests implementing a firm policy that a lawyer, or a support staff, responds to “all client communication within 24 hours” and to prioritize urgent messages.
Recognizing that it may not always be possible to respond this quickly, especially when you are overwhelmed with work, we have outlined some steps lawyers can take, as well as suggested resources both within and outside of your law firm, to assist you in meeting your professional obligations to the client, opposing counsel and the LSUC.
You may already have the resources available within your firm to prevent reaching Code Cen; it is just a matter of putting them to good use:
Communication is Key
Robert Shawyer, the principal of Shawyer Family Law and Mediation recommends making time to communicate with clients, which he says “may sound elemental”, however “if you effectively and consistently communicate with clients it will prevent them from continuously calling and taking time out of your schedule”.
To streamline your practice put in place systems or processes. For example, develop a set process for client intake, file openings, docketing and billing, and file closings to avoid re-inventing the wheel each time. Make sure everyone in your office, both staff and lawyers, follow the process.
Another time saver is to create precedents, suggests sole practitioner Kathleen Robichaud, and to “keep them updated and organized”. If you do not have a precedent, find one. Make sure you have a very detailed retainer agreement that is clear on your obligations to your clients and their obligations to you. If your practice often takes you outside the office, consider explaining why you are not in the office all the time. Up front clarification of these issues will eliminate longer conversations down the road. Remember, both the LSUC and LawPro have several precedent retainer letters.
Touch Everything Only Once
Kathleen also suggests making good use of your reminder system and to do what you can right away. This is part of the “touch a paper once” philosophy, she explains. Don’t put it off to tomorrow what you can do it today and take the time to do things right the first time.
What do you do when you don’t have the resources within your own law firm or practice? Consider outsourcing:
Kathleen suggests keeping at least one senior lawyer and at least one lawyer who shares similar experience with you, to call when you are unsure about how to proceed. Often a short phone call or email can avoid a mountain of problems.
Both Kathleen and Robert emphasized the need to “Delegate! Delegate! Delegate!” There are several qualified and experienced lawyers embracing the “gig economy” who make themselves available to assist with overflow legal work, including research, drafting, court appearances, due diligence, etc. These freelance lawyers are available to assist if a trial or a large transaction comes in that could threaten to put your practice into Code Census. The advantage of outsourcing to freelance lawyers is that they are there when you need them, and they do not carry the same overhead costs as a full-time associate.
Refer the Client Elsewhere
It’s sometimes necessary just to say “No”. This means turning away files that do not fit into your area of specialization. If you have a choice of who to take on as a client (an associate in a firm might not) and you find that person difficult to deal with, refer them to someone else. Learn to discern which clients pay and which you will likely have to chase. If you fear you will have to chase a particular client for payment, keep them on a short leash (financially speaking) and use limited retainers. Do not hesitate to cut a client loose if, after a specific task is completed, they stall in paying.
Look after your own well-being
Don’t forget to look after yourself. You don’t want to end up in an actual emergency room. If you are feeling overwhelmed consider using the Member Assistance Program provided by the LSUC. “Make time for your family and make sure your associates and staff get and take time off for themselves or their families”, Robert emphasizes.
Kathleen also recommends practicing the type of law that you like as much as you can. It will give you energy and your clients will appreciate your energy. You will likely do a better job and be paid in full and promptly.
The LSUC also has a Personal Management Guideline that provides information on steps lawyers can take to manage personal, physical and mental well-being recognizing that without healthy lawyers you cannot have a healthy business or firm.
To borrow an old adage, the best defence is a good offence. Take steps now to avoid being overwhelmed by client demands, insource or outsource, and ask for help when you need it. And importantly, look after the most valuable asset of your practice: you!
About the Authors
Samantha Biglou is a civil litigator at the law firm of Mason Caplan Dizgun and Roti LLP. Since 2014, Samantha has been served as an executive on the Ontario Bar Association’s Sole Small Firm and General Practice Section. In 2017, Samantha Biglou co-chaired the first annual Product Liability Conference on behalf of the Canadian Defence Lawyers Association. Samantha is also actively involved in the community and frequently volunteers to judge and mentor students in the elementary, undergraduate and graduate moot and mock trial programs.
Erin Cowling is a former large firm corporate litigator turned freelance lawyer and lawpreneur. She founded Flex Legal, a network of experienced freelance lawyers assisting sole practitioners, law firms, and in-house legal departments on a contract or project basis. Erin speaks regularly at events on alternative legal practices and the advancement of women in the legal profession and often addresses these topics in her award winning blog. She is also on the executive of the Ontario Bar Association’s Sole Small Firm and General Practice Section and Women Lawyers Forum.