If there’s a heaven for sole practitioners, I’m sure he’s there.
He died much too young, but before he passed away, my colleague expressed the following lament: “My clients want to talk to me and need my advice, whether they are purchasing or selling a home, need a will or powers of attorney, are starting a new business or purchasing an existing one.
I am hard-pressed, however, to do the necessary legal work for the fees they are willing to pay, let alone spend time talking to them and giving them the advice they should have.”
Like many of us in the trenches who endeavour to provide quality legal service, my colleague found it difficult to compete with the mass production artists and price-cutters. Indeed, the only sensible solution is not even to try.
Take a look at the definition of a competent lawyer set out in the Rules of Professional Conduct, 2.01 (1), and which I have abbreviated below:
A “competent lawyer” means a lawyer who has and applies relevant skills, attributes, and values in a manner appropriate to each matter undertaken on behalf of a client.
Included in the indicia of competence are:
• knowing general legal principles and procedures and the substantive law and procedure for the areas of law in which the lawyer practises;
• investigating facts, identifying issues, ascertaining client objectives, considering possible options, and developing and advising the client on appropriate courses of action;
• knowing general legal principles and procedures and the substantive law and procedure for the areas of law in which the lawyer practises;
• investigating facts, identifying issues, ascertaining client objectives, considering possible options, and developing and advising the client on appropriate courses of action;
• implementing, as each matter requires, the chosen course of action through the application of appropriate skills, including legal research, analysis, application of the law to the relevant facts, writing and drafting, negotiation, alternative dispute resolution advocacy, and problem-solving ability;
• communicating at all stages of a matter in a timely and effective manner that is appropriate to the age and abilities of the client;
• performing all functions conscientiously, diligently, and in a timely and cost-effective manner;
• applying intellectual capacity, judgment, and deliberation to all functions;
And of course, a competent lawyer must find the time and money to pursue appropriate professional development to maintain and enhance his or her legal knowledge and skills.
The commentary to the definition of the competent lawyer recognizes that a lawyer may be asked for or may be expected to give advice on non-legal matters, such as the business, policy, or social implications involved in the question or course the client should choose, and that in many instances the lawyer’s experience will be such that the lawyer’s views on non-legal matters will be of real benefit to the client.
I do not quarrel with these admirable indicia of competence, but the Law Society of Upper Canada is dreaming if it expects these standards to be met by the mass production artists and price cutters in the trenches.
Competence has a price. Competent legal services cannot be provided by a computer program or by a lawyer running a mass-production practice. Competent legal services must be tailored to the individual recipients of such services. It is deceptive to hold otherwise. Assembly-line legal service is no more desirable than assembly-line medicine.
The Working Group on Lawyers and Real Estate was on the right track with its suggested fee schedule, for it permits the work to be done competently.
It is about time the law society recognized that price-cutting and mass production practice is incompatible with quality service. This applies not only to real estate law, but to all legal services, whether solicitors work or barristers work, that are provided to the ordinary public. Inadequate fees, whether paid privately or funded by legal aid, are incompatible with quality service.
The results of improperly done work are not always manifested in negligence suits or complaints. Often, a client, by the grace of God, does not suffer harm from work improperly done; other times, when a problem arises and the harm is not major, it is more economical and expeditious for the client to simply have another lawyer correct what was initially not done right. In the meantime, the price cutters and mass-production artists keep chugging along, to the financial detriment of diligent colleagues.
Getting legislative authority to set mandatory minimum fee schedules is the only way to ensure competent legal services for the ordinary public.
Gary Lloyd Gottlieb, is a Law Society of Upper Canada bencher and a Toronto sole practitioner. His e-mail address is [email protected]
