May 24, 2001 Supplementary Material to the Multi-Disciplinary Practice Task Force Report Implementation Phase (April 26, 2001) Prepared by the Multi-Disciplinary Practice Task Force
INTRODUCTION 1. The April 26, 2001 implementation phase report of the Multi-Disciplinary Practice Task Force ( the report and the Task Force respectively), in addition to distribution to benchers, staff and the press, was provided to interested members and other parties. 1 2. The Task Force received correspondence from Mr. Jolliffe of Gowlings with comments on the proposed regulatory scheme described in the report. The letter is attached as Appendix 1. The Advocates Society also responded, to say that it does not think our Society brings any special expertise to the difficult task of drafting the scheme of regulation and reporting described in the report. We will therefore not be adding any submission or comment as the Task force proceeds to complete its work. 2 3. The Task Force considered Mr. Jolliffe s comments and determined that a response was required for the purpose of Convocation s consideration of the implementation report. 4. The Task Force also received correspondence on May 15, 2001 from Peter Griffin on behalf of Donahue & Partners (which uses the name Donahue Ernst & Young ) in response to the report. The letter is attached at Appendix 2 with other material relevant to the letter (including portions of the Supplementary Material the Task Force prepared for Convocation on November 29, 2000). The first part of the letter discusses issues that Convocation considered and dealt with on November 29, 2000. The Task Force responds below to the balance of the letter. 1 The Advocates Society, Ian Tod of Deloitte & Touche, Peter Griffin on behalf on Donahue & Partners, R. Scott Jolliffe of Gowlings and Paul Paton of PricewaterhouseCoopers. 2 April 26, 2001 letter of Douglas C. McTavish, Chair, MDP Committee to the Task Force. 1
RESPONSE TO MR. JOLLIFFE S ISSUES Definition of Affiliation 5. Mr. Jolliffe expresses concern about the definition of affiliation in the proposed by-law as being unnecessarily broad and vague. He calls for a clear definition of what is meant by regular basis when the affiliated firms join together to deliver services. 6. The Task Force relies on paragraph 24 of the April 26 report, which, in keeping with Convocation s approval of the definition of affiliated law firm, states: The Task Force acknowledges that the definition of affiliation captures more than law firms and non-law firms who by design operate under comprehensive arrangements for the joint delivery of legal and non-legal services. Convocation, however, agreed that the definition proposed by the Task Force was appropriate. While the conflicts search requirement may appear to be an onerous obligation for the less formal affiliations that fall within the definition, the Task Force determined that the focus should be on the underlying professional conduct issues and that the regulatory scheme must apply to all types of affiliations as defined to be consistent with the principles in the policy report. 7. The ultimate question is whether the Society must regulate the type of activity, such as a regular arrangement for the marketing and provision of legal and non-legal services, that falls short of a more formal integration of such services to be consistent with the principles in the policy report. The Task Force believes the answer must be yes, because the risk to solicitor and client privilege exists in both types of affiliations described in the paragraph above, and conflicts may or may not be an issue, depending on the venture. 8. The Task Force also relies on paragraph 39 of the April 26 report, where it is noted that the intricacies of compliance with the [regulatory] scheme will vary from firm to firm, depending on the nature of the affiliation and the degree of integration between the law firm and the non-law firm. 2
The expectation is that for the more informal arrangements that still fall within the definition, compliance will be a less intrusive matter than for more integrated structures. Conflicts Searches 9. Mr. Jolliffe raised two questions about searches for conflicts of interest across the firms in an affiliation. The Task Force answers these questions as follows: C C The search of databases for conflicts of the non-law firm would not be required where the firms are affiliated but there is no joint retainer or joint work on the part of both firms for a client. A conflicts search may extend to offices of the affiliated entity outside of Canada if, in the words of new proposed commentary following subrule 2.04(10.3), those offices are treated economically as part of a single affiliated entity. 10. Mr. Jolliffe suggests that the Task Force consider the need to amend the commentary following subrule 2.04(10.3) to clearly indicate that the conflicts rules only apply where the affiliated entities are acting jointly on the same matter. While the Task Force believes that the initial paragraph of subrule 2.04(10.1) makes it clear that the conflicts rules only apply where there exists a retainer to provide legal services and non-legal services jointly to a client through an affiliated entity, it offers the following revision to the commentary as an option for Convocation: Commentary Lawyers practicing in an affiliation are required to control the practice through which they deliver legal services to the public. They are also required to address conflicts of interest as if the lawyer s practice and the practice of the affiliated entity were one where the lawyers accept a retainer to provide legal services to a client jointly with non-legal services of the affiliated entity. The affiliation is subject to the same conflict of interest rules as apply to lawyers and law firms. This obligation may extend to inquiries of offices of affiliated entities outside of Ontario where those offices are treated economically as part of a single affiliated entity. 3
In reference to clause (a) of subrule (10.1), see also subrule 5.01(6) on supervision and delegation. 11. It may also be appropriate to amend the commentary following clause 2.04(1)(b) as follows: Commentary Conflicting interests include, but are not limited to, the financial interest of a lawyer or an associate of a lawyer, including that which may exist where lawyers have a financial interest in a firm of non-lawyers in an affiliation, and the duties and loyalties of a lawyer to any other client, including the obligation to communicate information. For example, there would be a conflict of interest if a lawyer, or a family member, or a law partner had a personal financial interest in the client s affairs or in the matter in which the lawyer is requested to act for the client, such as a partnership interest in some joint business venture with the client. RESPONSE TO MR. GRIFFIN S ISSUES Premises 12. The Task Force addressed this issue in paragraphs 44 through 47 of the Supplementary Material (please see Appendix 2). Convocation agreed that requiring separate premises for the law practice in an affiliation would provide the best assurance that client confidentiality is protected. The need for lawyers to take all necessary steps to ensure maintenance of confidentiality as a general rule is ensconced in the Rules of Professional Conduct and obviously applies to lawyers in an affiliation. 4
Report to Society 13. If a law firm is affiliated with a non-law firm - the example given by Mr. Griffin is a law firm and a financial institution - the financial arrangements, including loans from the financial institution to the law firm, must be disclosed, as a matter related to control and ultimately the independence of the lawyers in the affiliation. Joint and Several Liability 14. Affiliations are the only structure to date where a group of members is dealt with as a matter of regulation by the Society, through the new by-law. The Task Force believes it is necessary to structure subsection 4(4) of the by-law on a joint and several liability basis to ensure the integrity of this compliance requirement, given that the Society s authority to enforce its regulations is with respect to individual members (including members in a group, as described). 5
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APPENDIX 1 LETTER OF R. SCOTT JOLLIFFE OF GOWLINGS TO THE TASK FORCE MAY 10, 2001 7
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APPENDIX 2 LETTER OF PETER H. GRIFFIN TO THE TASK FORCE MAY 15, 2001 (AND ADDITIONAL RELATED MATERIAL) 17