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The Law Society of Alberta regulates the legal profession in the public interest by promoting and enforcing a high standard of professional and ethical conduct by Alberta lawyers. We take proactive steps to educate and assist lawyers in achieving the goals of competent and ethical practice and the vast majority of lawyers comply with these standards. In instances where lawyers fall short, the Law Society has mechanisms in place to respond to complaints and administer disciplinary processes to deal with misconduct.
Every year, the Law Society of Alberta encounters similar conduct issues in its regulatory processes. These issues are also reflected in calls to our Practice Advisors, Practice Management department and Early Intervention team. Lawyers can avoid complaints by understanding the nature of the most common issues that we encounter in our conduct processes, and by engaging in preventative risk management strategies.
This article addresses the common issues that face practicing lawyers, and concludes with a list of tips and resources found on our website.
Complaints against lawyers typically involve client service issues, failure to respond, breach of trust accounting rules, unethical advocacy, incivility, conflicts of interest, breaches of undertakings and trust conditions, and breaches of confidentiality. In 2019, for example, our regulatory team dealt with the following conduct issues:
Common Disciplinary Issues
- Failing to comply with accounting rules, such as failing to file annual reports on time;
- Misappropriation of trust funds;
- Failing to maintain proper trust records, including the failure to identify the appropriate source of trust funds or the purpose for which they are held
Receiving trust funds when not approved to operate a trust account;
- Inappropriate fee billing;
- Failing to obtain instructions from a client when distributing trust funds; and
- Failing to ensure that fee agreements are clear, including those related to bartering for legal services.
- Failing to fulfil undertakings or trust conditions, in a timely way or at all; and
- Accepting trust conditions that are not capable of performance.
- Failing to respond promptly and completely to the Law Society, particularly when responding to complaints or during investigations; and
- Failing to be candid with the Law Society when filing documents or applications related to membership.
- Failing to be candid with the court, especially with regard to ex parte communications;
- Failing to be courteous in court and to courthouse staff;
- Failing to finalize court orders;
- Signing a consent order without client instructions;
- Failing to comply with court orders;
- Including inappropriate information and exhibits in affidavits filed in court;
- Failing to be courteous to other counsel, including failing to respond to communications and communicating in an uncivil and unprofessional manner; and
- Incivility when dealing with self-represented litigants.
- Failing to provide competent and conscientious service to a client, by failing to advise of important developments on a file or failing to advance an action in a timely way;
- Failing to be candid with clients regarding the lawyer’s past legal experience or the work completed on the client’s file;
- Failing to confirm client instructions during a retainer;
- Failing to assess a client’s capacity to instruct counsel;
- Improper withdrawal from a retainer;
- Engaging in an inappropriate relationship with a client, including sexual harassment of a client; and
- Failing to ensure clients obtained independent legal advice when entering secured arrangements for the payment of fees or other loan arrangements with lawyers.
- Threatening to report opposing counsel to gain an advantage, or trying to seek a release from a client to prevent them from making a complaint to the Law Society;
- Surreptitiously recording telephone calls;
- Failing to protect client confidentiality;
- Failing to supervise staff or contractors;
- Acting in a conflict of interest, in both corporate and personal service retainers; and
- Notarizing documents that have no proper legal purpose.
In many cases, the lawyers involved in regulatory processes were experiencing health or personal issues, highlighting the importance of lawyer wellness included in our Strategic Plan.
Complaints and claims are often caused by a lack of attention to solid practice management strategies. Many of the conduct issues listed above could have been avoided if the lawyers had adopted client communication and time management strategies. Compliance with trust accounting rules is essential, as is understanding the rules around fees, conflicts, advocacy and trust conditions. The following is a list of tips and resources to help you avoid complaints and claims:
Practice Tips and Resources
- To avoid missing important deadlines, create a calendar of all annual Law Society filing deadlines
- Implement effective diary systems and engage in effective time management
- Refer to the Small Firm Practice Course in the learning centre on the Law Society’s website for tips and advice on client and file management
- Fee bartering arrangements are permitted but must be approached with care to prevent a breakdown in the lawyer-client relationship. See the Law Society’s article “Bartering Legal Services” for guidance on how to establish a clear and effective fee agreement with clients.
- For more information on effective client communication and management, consult the Client Communication Toolkit on the Law Society’s website.
- For more information on the obligation to enter court orders, see the article, Signing Court Orders, on the Law Society website.
- Lawyers must understand how to recognize conflicts of interest and what might happen if they do occur. The Law Society has created a Conflicts Essentials Webinar dealing with these issues.
- For further guidance on conflicts of interests, see Chapter 11 of the Law Society’s Small Firm Practice Course.
- Pay attention to your personal wellness – if necessary, access help from Assist.
- If you suspect a mental health issue is affecting another lawyer’s practice, refer to the article Mental Health in the Legal Profession: Your Obligations & How to Help.
- Be aware of your obligation to inform a client or report to ALIA when you have committed an error.
- Understand your obligations when communicating with the court – refer to this helpful guide from the Practice Advisors for managing such communications.
- Lawyers’ obligation to honour undertakings and trust conditions is essential to practice. For further guidance on trust conditions, see this article from the Practice Advisors.
- Employee theft exposes lawyers and law firms to personal financial risk, review your responsibilities in the article: Employee Theft on the Rise: Are You at Risk?
- Do not notarize documents that give a false appearance of authenticity or authority. These documents have no legal effect, and are misleading. For further guidance, review Obligations of Notaries and Commissioners.
- For more information, you may also refer to an article on our website, entitled Top 10 Ways to Avoid Law Society Complaints
More resources are also available on our website, organized by topic, under Key Resources.