Scenarios for Targeted Legal Services: We Are All Pieces of the Puzzle September 16, 2015

Transcription

1 Scenarios for Targeted Legal Services: We Are All Pieces of the Puzzle September 16, 2015 PANEL 1 9:15 10:15 Themes: i) Meeting the needs of the client ii) Availability of legal information iii) Resources available outside of the court and tribunal system iv) Assistance from a trusted intermediary v) The role of mediation vi) The role of the adjudicator Panel members/commentators: Ron Franklin, Franklin Law Julie Matthews, Executive Director, CLEO David G. McKillop, Vice-President, Policy & Research, Legal Aid Ontario Beverley Moore, Associate Chair, Social Benefits Tribunal Ryan Peck, HALCO Sheri Price, Vice-Chair, Human Rights Tribunal of Ontario Melodie Mayson, Neighbourhood Legal Services Elaine Page, Page Paralegal Moderators: Michael Gottheil, Grant Wedge 1. POLL THE AUDIENCE A client retains a lawyer on a limited scope retainer to draft motion materials. The client intends to argue the motion himself. The lawyer prepares a written retainer, which is agreed to by the client. After the motion, the client retains the lawyer to attend a settlement conference, which the lawyer does. The lawyer and client agree on a fee for this attendance. After the settlement conference, the parties enter into a series of negotiations and the lawyer assists the client with brief coaching when he calls for advice, including suggesting that the client retain an expert and providing some names. The client retains the expert directly, continues to negotiate and the case settles. Shortly after the settlement is reached, the client contacts the lawyer to say that he is unhappy with the settlement. He feels that the expert didn t have all the important facts and this affected the opinion which was the basis for the settlement. The lawyer is surprised.

2 Polling questions: Could the lawyer have avoided this situation? Would you have taken on this client? 2. POLL THE AUDIENCE You agree to draft motion materials for a client and that the client will attend to argue the motion himself. During the motion, the judge asks the client questions about the materials and the client becomes anxious and appears evasive. The judge asks the client whether he prepared the materials himself. The client replies that someone helped him with the materials and the judge demands that the lawyer attend. At a recess, the client calls you in a panic and asks you to attend immediately. Polling questions: What do you do? a) Don t answer the phone! b) Answer, and when the client asks you, agree to attend as the judge has requested. c) Take the call, remind the client about the scope of your service and coach him on how to respond to the judge. d) In your view, is the judge s request that the lawyer attend reasonable? 3. PLENARY DISCUSSION QUESTION Part 1 A suffers from depression and was collecting Ontario Disability Support Program benefits until she found a job a few months ago in a hairdressing salon. She tells a work colleague that she has just been diagnosed with HIV and is fired a week later. She has fallen behind on her rent and her landlord has issued a notice of termination. Where would you expect A to go for help with her situation? What might help look like? How can the required assistance be unbundled? 2

3 Part 2: A s application for ODSP benefits is denied and she appeals to the Social Benefits Tribunal. A makes an Application to the Human Rights Tribunal of Ontario. The HIV AIDS Legal Clinic of Ontario/the Human Rights Legal Support Centre helps her with her application but is not on record. A s case is scheduled for mediation. A attends the mediation with a friend and an offer is presented. A calls HALCO/HRLC in tears asking what she should do. What does help look like as A takes steps to address her legal problems? How can the justice system assist her? What might A be looking for from a mediator? From an adjudicator? 4. PLENARY DISCUSSION QUESTION Part 1: Following a motor vehicle accident several years ago, in which he suffered a broken arm, severe whiplash and cuts and bruises, B has suffered from back pain and depression. Recently his wife has moved out of their apartment with their two young children. B is no longer able to work at his job as a security guard, and has applied for social assistance. Where would you expect B go for help with his issues? What might help look like? How would B know where to look? Part 2: B has found a new apartment, and with treatment and medication, his depression is controlled. B is working a few days a week. B s wife will not return his phone calls and he hasn t seen his children since his they left. He knows they are still living nearby with his wife s mother because he has gone to the children s school and seen them leaving the playground with grandmother, who quickly hurried them into her car and drove away when she saw him. With help from a friend in filling out the court forms, B makes an application for access. What are the options available to B? Where would you expect B to go for help? How can the justice system assist him? 5. PLENARY DISCUSSION QUESTION C was involved in a fight after a drug deal in the stairwell of the apartment where he lives with his grandmother, his aunt and two cousins. He was arrested and has been charged with assault and possession for the purpose of trafficking. C is a minor, recently arrived in Canada, and neither English nor French is his first language. What does C need to understand about advice and assistance that is available to him? What is important from the perspective of the judge who hears his case? 3

4 PANEL 2 10:30 11:30 Themes: (i) (ii) (iii) The business of providing legal services under a limited scope retainer, including solicitors work Professional responsibilities of the lawyer or paralegal Best practices and resources for practitioners Panel Members/Commentators: Renatta Austin, Lawyer, Notary Public & Government Relations Advisor Joseph W.L. Griffiths, Barrister & Solicitor Dan Pinnington, Vice-President, Claims Prevention & Stakeholder Relations, LawPRO Joe Milstone, Cognition Michael Hassell, Hassell Trial Counsel Lai-King Hum, Hum Law Firm Elaine Page, Page Paralegal Moderator: Professor Lorne Sossin, Dean, Osgoode Hall Law School 1. POLL THE AUDIENCE A woman contacts a lawyer and asks the lawyer to assist with finalizing a loan to her nephew. The two have already negotiated and informally documented terms for an unsecured loan, evidenced by a promissory note. Since the parties have already worked out the details, they are not looking for legal advice from the lawyer. Both parties instruct the lawyer to prepare a simple promissory note, attend on execution and receive the loan into trust from the lender aunt and pay it to the borrower nephew. The lawyer is busy, but agrees because the woman is a friend of a friend. The lawyer doesn t prepare a written retainer agreement but he and the lender agree on payment of $750 to carry out these instructions. Polling questions: Have you given advice without a retainer letter? Would you provide limited scope services without a written retainer letter? 4

5 Assuming the lawyer prepares a retainer letter, should the letter include a) the scope of services to be provided; b) a reference to services that are not being provided; c) what happens if there is a request for additional services; d) the lawyer s fee; e) who pays the fee; f) how the fee is paid. Discussion i) What are the risks for the lawyer in this situation? ii) iii) iv) How can these risks be managed? What are some possible approaches for designing the retainer? What factors should you keep in mind when you are allocating your time? 2. POLL THE AUDIENCE A lawyer was retained to prepare articles of incorporation for a small business. Counsel for one of the shareholders contacts the lawyer to discuss an issue that has arisen. The lawyer is not retained for this. The client has asked the lawyer not to reveal the fact that the lawyer is not retained on this matter because she thinks to do so would weaken her bargaining position. Questions: Who is the client? a) X b) X c) X d) X Should the lawyer agree to keep this information confidential? Should the lawyer advise the client in this situation? 5

6 Discussion with participants: a. What is the lawyer s responsibility to the client in this situation? b. What should the lawyer do? c. In the context of the limited scope of the retainer, are there ways that the lawyer can assist the client to achieve a good result? [Joe, Renatta, Lai-King and Joseph to be invited to comment] 6

7 3. PLENARY DISCUSSION QUESTION (15 minutes) A property manager of a large company retains a paralegal to attend a hearing before the Landlord and Tenant Board to respond to a tenant s allegation that the landlord has not made required repairs to the property. The client signs a written retainer agreement and the paralegal attends at the hearing and successfully defends against the tenant s claim. A few months later, the paralegal receives a phone call from another employee of the landlord client advising that the tenant had brought another application before the Board which was heard that day, and the paralegal did not attend. An order was made against the landlord, with costs and the client is angry. The paralegal knows that she was only retained for the first matter and knew nothing about the second matter. i) What should the paralegal do? (Elaine) ii) Could this situation have been avoided? (Elaine) iii) The paralegal is aware that the tenant suffers from bipolar disorder, and is receiving addiction counselling. What other advice might they provide the client? (Renatta/Lai/Michael/Elaine) Assume a scenario where you are concerned that your client may have a mental health issue that will have an impact on how you deliver advice, and on the outcome for the client. Do you have an obligation raise the issue? To suggest that the client get support for their issue? Do you know where you might refer them? (Panel) 4. PLENARY DISCUSSION QUESTION: (15 minutes) After recovering from depression and finalizing divorce proceedings, B returns to work as a security guard. However, he finds the medication increasingly hard to tolerate and stops taking it. His employer lets him go on the basis of absenteeism. Although he held his position for 14 years his employer gives him only 4 weeks of severance. B comes to see you about this, and also because his former spouse is now attempting to bring an end to his access to the children, alleging that he is not well enough to look after their needs when they are with him. i) Questions: ii) Do you have enough information to advise B? iii) iv) If B is interested in a limited scope retainer, what strategies would you use in helping to prepare B to continue representing himself going forward? What are the risks for the lawyer and what are some strategies for addressing these risks? 7