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Client Service and Communication

COVID-19 UPDATE: Lawyers seeking guidance on their client service and communication obligations in the context of COVID-19 should consult the Law Society’s Frequently Asked Practice Management Questions regarding COVID-19.

The Guideline is not intended to replace a lawyer's professional judgment or to establish a one-size-fits-all approach to the practice of law. Subject to Guideline provisions that incorporate legal, By-Law or Rules of Professional Conduct (“Rules”) requirements, a decision not to follow the Guideline will not, in and of itself, indicate that a lawyer has failed to provide quality service. Conversely, use of the Guideline may not ensure that a lawyer has delivered quality service. Whether a lawyer has provided quality service will depend upon the circumstances of each case.

Table of Contents

  • 2.1 Introduction
    Successful lawyers are competent managers of client expectations - they manage and meet their clients’ expectations. Clients have expectations about many aspects of their lawyers’ services, ranging from the legal results to be achieved to the frequency of reporting by their lawyers. Managing client expectations is accomplished by reaching a consensus between lawyer and client.

    The Client Service and Communication Guideline (“Guideline”) views client service as an agreement, explicit or implicit, between the lawyer and the client. The lawyer and client agree on what the client may expect from the lawyer and the lawyer promises to meet those expectations. The process of managing and then meeting client expectations will be subject to ongoing revision as the matter progresses or new developments arise.

    The Guideline is a tool to assist lawyers in avoiding misunderstandings with their clients. Not every topic or issue raised in the Guideline will apply to all matters. For example, in limited scope retainers, such as where the lawyer is only required to issue a demand letter, there may be no need to discuss the circumstances that will give rise to termination of the retainer. In more complex cases, lawyers will find it necessary to document in detail communications relating to termination of the lawyer-client relationship.

    The Guideline provides a practical tool for lawyers to manage their client service and communications with success.
     
  • 2.2 Initial Contact between Lawyer and Client
    At the commencement of the lawyer-client relationship, the lawyer should
     
    • determine who is or are the client(s)
    • conduct a conflicts search
    • identify and verify the identity of the client(s) and third parties, where necessary, in compliance with Part III of By-Law 7.1
    • ascertain the client’s objectives, and
    • obtain relevant information about the client and the client’s matter.

    The lawyer should only receive instructions from the client or the client's authorized representative. 
  • 2.3 Clients
    • 2.3.1 Institutional Clients
      Lawyers acting for institutional clients should determine which officers, employees or agents of the organization may properly instruct the lawyer on behalf of the institutional client.

      Lawyers should confirm with the agents of the institutional client that the lawyer acts and owes duties to the organization and not the individuals who act as its agents. If the lawyer is retained to act for both the institution and any officer, employee or agent of the corporation in the same matter, then the lawyer shall comply with the joint retainer rules [rr. 3.4-5 to 3.4-9 of the Rules].
    • 2.3.2 Clients Who Lack Legal Capacity and Their Lawful Representatives
    • 2.3.3 Clients of Civil Society Organizations
      Lawyers who comply with the requirements of Part VI of By-Law 7 are permitted to practice law or provide legal services to members of the public through a civil society organization (CSO). CSO is defined in Rule 1.1-1 of the Rules.

      Lawyers providing legal services to clients of a CSO shall have and maintain direct control of the lawyer-client relationship and the delivery of legal services provided. It is the lawyer’s responsibility to ensure the client(s) understands the scope of the legal services the lawyer can provide through the CSO, and the nature of the relationship between the lawyer and the CSO [ss. 47 and 48 of By-Law 7].

      To help manage expectations in this arrangement, lawyers should inform the CSO and CSO employees about the lawyer’s professional obligations to the client, including the duty to protect confidential client information and avoid conflicts of interest between the client and the CSO [Commentaries [11.1 -11.2] to r. 3.1-2 and r. 3.4-16.1.1 of the Rules; s. 50 of By-Law 7].
  • 2.4 Joint Retainers
    Lawyers acting for two or more clients in the same matter must, before accepting the joint retainer, comply with Rules 3.4-5 to 3.4-9 of the Rules.
     
  • 2.5 Client Identification and Verification
    When retained to provide professional services to a client(s), lawyers must comply with the governing identification and verification requirements outlined in Part III of By-Law 7.1.

    When retained to provide professional services, unless an exemption applies, lawyers must identify the client and/or any third party that the client is acting for or who has the authority to direct or instruct the client. Lawyers are required to keep a record of the information obtained as set out in By-Law 7.1.

    When lawyers are engaged in or give instructions regarding the receipt, payment or transfer of funds, unless an exemption applies, lawyers must verify the identity of the client(s) and/or third parties and keep a record of the information obtained as set out in By-Law 7.1.
     
  • 2.6 Identifying the Essential Terms of Engagement
    If a lawyer agrees to provide legal services to a client, the lawyer should discuss with the client the essential terms of the engagement. The essential terms that should be discussed and agreed upon will vary depending on the circumstances of the matter. Relevant circumstances may include:
     
    • the type, urgency, complexity, or scope of the legal services to be provided
    • whether the client is a new, current or former client.
  • 2.7 Engagement Letters and Retainer Agreements
    Legal services provided under limited scope retainers must be confirmed in writing [Rule 3.2-1A.1 of the Rules]. In all other cases, lawyers should consider whether the terms of the engagement should be reduced to writing to avoid any misunderstanding between lawyer and client.

    Essential terms of the engagement may be confirmed by way of
     
    • retainer agreement executed by the client, or
    • engagement letter.
  • 2.8 Non-Engagement Letter
    If a lawyer determines that he or she will not provide legal services to a client either because the client does not retain the lawyer or the lawyer declines the engagement, the lawyer should consider confirming the non-engagement in writing as soon as possible and advising the client of any limitation periods. For additional guidance, lawyers should consult the Law Society’s Non-Engagement Letter Checklist.
  • 2.9 Client’s Expectations, Objectives and Options
    Lawyers should discuss with their client
     
    • client objectives and expectations
      • specific legal services the client will receive from the lawyer and any limits to those services
      • specific results the lawyer is likely to achieve for the client
      • costs associated with achieving those objectives
      • time required to complete the legal services and achieve the results
    • client's instructions
      • choice of options or strategies the client instructs the lawyer to pursue
      • impact of choosing particular options or strategies
      • estimated fees and disbursements relative to those instructions
    • advice given to the client
      • options or strategies recommended
      • explanation of the law
      • facts, circumstances, and assumptions on which an opinion is based
      • referral to other professionals
    • course of action
      • strategy to be undertaken by the lawyer
      • estimated length of time required to complete the strategy
    • limitation periods relevant to the matter
      • what the limitation period(s) is
      • legal effect of limitation periods on the client or client’s matter
      • preliminary plan or outline of steps to meet the deadline
    • risk analyses
      • if the matter relates to litigation, the client’s potential liability for court costs
      • risks or benefits associated with the client’s matter
      • the lawyer’s and, if different from the lawyer’s, the client’s assessment of whether or not the likely outcome is justified by the expense or risk involved.
  • 2.10 Fees and Disbursements
    A lawyer should provide to the client in writing, before or within a reasonable time after beginning to represent the client, as much information regarding fees and disbursements as is reasonable and practical in the circumstances, including the basis on which fees will be determined. This information may include
     
    • basis for charging legal fees
      • hourly rate
      • flat fee
      • contingency fee
      • other method
    • amount and payment date of any
      • initial monetary retainer
      • ongoing monetary retainers
      • accounts
    • billing frequency 
    • consequences of the client’s failure to pay accounts in accordance with the terms of the engagement letter or retainer agreement
    • estimated fees and disbursements including
      • facts or circumstances which form the basis of the cost estimate
      • possible facts or circumstances that may result in an increase or decrease in the estimate
      • that interest on outstanding accounts must be calculated in accordance with the Solicitors Act.

    A lawyer should confirm with the client in writing the substance of all fee discussions that occur and, as a matter progresses, a lawyer may revise an initial estimate of fees and disbursements. The lawyer should consider implementing a firm policy about fees or billings and/or set out the terms in a letter to the client. For more information on the required and recommended practices relating to the financial management of a law practice, lawyers should consult the Law Society’s Financial Management Practice Management Guideline.  
     
  • 2.11 Lawyers Responsible for File
    At the outset of the engagement, lawyers may provide to the client
     
    • the name of the lawyer primarily responsible for the retainer
    • the names of any other persons in the firm who may be involved with the case and the functions each will perform.
  • 2.12 File Supervision
    If a lawyer anticipates changes, or any changes occur, such that the lawyer is unable to meet any of the terms of the engagement, the lawyer should promptly advise the client of
     
    • changes or anticipated changes
    • reasons for such changes so that the client has an opportunity to determine:
      • if the client wishes to continue with the engagement
      • if the client wishes to vary his or her instructions in light of the changed circumstances.

    Throughout the course of the engagement the lawyer
     
    • must ensure that he or she carries out the terms of the engagement in accordance with the Rules
    • should ensure that he or she carries out the terms of the engagement in accordance with any agreement(s) between the lawyer and client.
  • 2.13 Timelines
    Lawyers should discuss with their clients
     
    • the estimated length of time it will take to complete the engagement or matter, including:
      • an account of the assumptions, facts, or circumstances on which the time estimate is based
      • an indication of the potential or foreseeable facts or circumstances which may alter the time estimate and how the time estimate will change in light of these facts or circumstances
      • if relevant, an indication of appropriate milestones
    • follow up requirements
      • actions or next steps to be taken by the lawyer
      • actions or next steps to be taken by the client, including any requirements for further
        • information or documentation from the client
        • funds from the client on account of fees or disbursements
    • actions or next steps to be taken by third parties such as investigators, experts or other agents of either the client or the lawyer
    • instructions to be provided to third parties
    • clear indication that if necessary action or next steps are not taken by the client or third parties within a specific period of time, the lawyer will be unable to commence or continue with the retainer.
  • 2.14 Timely and Effective Lawyer-Client Communications
    Lawyers should discuss with their clients what constitutes timely and effective communications and should address:
     
    • the manner of communication between lawyer and client if communications are to be primarily by
      • telephone, the telephone number or numbers and the person or persons with whom messages may be left
      • email, email address
      • mail, mailing addresses
      • courier, courier address if different from mailing address
      • priority post, mailing address
      • facsimile, facsimile numbers
    • how the lawyer will keep the client apprised of the matter on an ongoing basis. Methods of keeping the client informed on an ongoing basis may include sending the client copies of
      • correspondence, including e-mail communications sent or received
      • pleadings or other court documents
      • documents relating to the matter
      • memos to file confirming communications or attendance with the client or third parties
    • how the client will keep the lawyer apprised of the matter on an ongoing basis
    • frequency of reporting to the client
      • formally in writing
      • on an informal basis
    • estimated time it will normally take for the lawyer to respond to client calls, e-mails, letters or other communications.

    What is effective communication with the client will vary depending on the nature of the retainer and the needs and sophistication of the client. 
     
  • 2.15 Keeping Clients Informed
    Lawyers should advise clients of the progress of their matters at appropriate intervals having regard to
     
    • requirements of the particular matter or proceeding
    • any agreement between the lawyer and client respecting the frequency of progress reports to be provided to the client.

    If little or no progress has been made the lawyer should
     
    • advise the client accordingly
    • indicate to the client the reason(s) for the lack of progress
    • advise what, if any, steps may be taken to ensure progress on the matter continues
    • outline the costs, risks and benefits associated with taking those steps.
  • 2.16 Responding to Client Communications
    When the client contacts the lawyer’s office, the lawyer must ensure that he or she responds in a timely fashion and in accordance with any time estimates agreed to with the client. In the event the lawyer is unable to respond to the client’s contact in a timely fashion or within the time agreed then
     
    • if the lawyer has support staff, the lawyer should instruct support staff to respond to the client’s communication, if appropriate, and indicate to the client
      • that the lawyer is unable to respond personally to the client
      • reasons for the lawyer’s inability to respond in a timely fashion and
      • when the client may expect to communicate with the lawyer personally or
    • if the lawyer does not have support staff, the lawyer should ensure that any firm notices or voice mail messages indicate to the caller when a response may be expected, and 
    • the lawyer should contact the client in accordance with the amended time estimate given.

    If the lawyer is unable to promptly respond to voice mail or email messages because the lawyer is out of the office for an extended period of time, the lawyer should notify clients of the absence and ensure that his or her voice mail or email contains a notification advising of his absence and when the lawyer is expected to return or respond to messages. Lawyers should consider implementing a firm policy that requires
     
    • the lawyer or support staff to respond to all client communications within 24 hours
    • all messages marked urgent are to be dealt with on a priority basis
    • all telephone attendances or conversations are to be documented or confirmed by way of written memo to the file.
  • 2.17 Confirmation of Changes to Essential Terms of the Engagement
    Lawyers should consider confirming in writing any changes to the essential terms of the engagement. In particular, the following should be confirmed in writing:
     
    • changes in the client’s instructions
    • changes in the risk or benefits associated with the matter or a step in the matter
    • acceptance or rejection by the client of any offers to settle
    • changes to the client’s address or other contact information.
  • 2.18 Withdrawal of Services, or Otherwise Ending the Engagement
    Although clients may terminate the lawyer-client relationship at any time and for any reason, lawyers are only permitted to withdraw from representing a client in accordance with Rule 3.7 of the Rules.  

    At the beginning of the lawyer-client relationship, lawyers should advise the client of the
     
    • facts or circumstances which may result in termination or withdrawal of services by the lawyer, including:
      • the client’s failure to pay retainers or legal fees in accordance with the engagement letter or retainer agreement
      • the existence of a conflict of interest which cannot be resolved
      • other facts or circumstances contemplated by Rule 3.7 of the Rules
    • ownership of file contents
      • file documents or contents that will be returned or provided to the client or other counsel when the retainer is terminated, or
      • will be retained by the lawyer and will not be provided to the client or other counsel upon termination of the retainer and the reason(s) why those documents will be retained by the lawyer
    • charges for file transfer in the event the file is transferred to the client or other counsel
      • whether or not the client will be charged for
        • time and effort in preparing the file for transfer
        • additional photocopies of file documents
        • retrieval of the file, if closed and in storage
      • restrictions on file transfer if accounts remain unpaid at the time of transfer.

    To avoid any misunderstandings, the above information should be provided to the client in writing or confirmed in writing.

    When the engagement is completed or terminated, in accordance with Rule 3.7-9 of the Rules, the lawyer must
     
    • notify the client in writing stating the fact that the lawyer has been discharged or has withdrawn, the reasons, if any, for the discharge or withdrawal, and, in the case of litigation, that the client should expect that the hearing or trial will proceed on the date scheduled and that the client should promptly retain a new legal practitioner
    • subject to the lawyer’s right to a lien, deliver to or to the order of the client, all documents and property to which the client is entitled
    • subject to any applicable trust conditions, give the client all information that may be required in connection with the case or matter
    • promptly render an account to the client for outstanding fees and disbursements
    • return to the client any outstanding money not earned during the engagement
    • in the event the client matter is to be transferred to the client’s new legal representative, co-operate with the successor legal representative so as to minimize expense and prejudice to the client
    • comply with the applicable rules of court.

    In addition to the above, the lawyer should also consider taking the following steps
     
    • provide, in writing, a report to the client on the outcome of the matter
    • explain any further action that the client is required to do or that the law firm will do
    • advise client about arrangements for storage and retrieval of file contents
    • advise client whether there is a need for the client to review the matter in the future.
Terms or Concepts Explained