Chapter 1: Managing Your Legal Affairs Flashcards
Sophisticated client (blue)
a person who understands and appreciates the importance of the law and the role of a lawyer in making good decisions
She knows when to represent herself, when to hire a lawyer, and how to hire a lawyer.
She understands the costs associated with hiring a lawyer
knows what can be done if she is dissatisfied with the conduct of her lawyer
Solicitor–client privilege
the duty of the lawyer to keep the information provided by the client confidential
Client must provide all relevant information needed by a lawyer in order to get the best result
This is fundamental to the legal system
When to Hire a Lawyer
Small business owner
The decision as to the form of business organization is significant and has many implications (including liability, income taxes, and estate planning).
The lawyer can provide information and advice that will help the owner make decisions appropriate for achieving his objectives.
The lawyer can, of course, determine which municipal, provincial, and federal laws are relevant to the business and provide advice as to what is required to ensure compliance with them
Many legal decisions should be clarified with a lawyer for ultimate protection. Never sign a contract without fully understanding everything you are signing for
Consider things such as the physical location (do i need a lease), bank and loan documents, Contracts (employment, supply, customer), Intellectual property (Patents, trademarks, copyrights), and selling the business (assets, shares, tax implications)
From Lecture:
1) Form of business organization (i.e. partnerships, franchises, income tax, liability, estate planning)
2) New business, buying existing business (Minimize risks and liabilities)
3) Compliance issues (ignorance of the law is no excuse)
When to Represent Yourself
aka “When should you hire a lawyer?”
If you need to make a business decision and you do not retain a lawyer, then you will either not be considering relevant legal information when you are making your decision or you will be obtaining the legal information yourself. For small, insignificant decisions it may be appropriate to proceed without taking the time to find the relevant legal information. But in most cases, it would be prudent to proceed only after completing some research of the relevant law.
A sophisticated client will do his own legal research whenever he requires legal information to make a business decision and it is not appropriate to
hire a lawyer to find the necessary information.
This is an important attribute of a prudent client—knowing when it is necessary to consult a lawyer.
From lecture: Consider the time, cost, and type of issue at stake: -Criminal charged necessitate a lawyer -Civil litigation -Non-complex small claims court action -Account collections
If you break the law and harm
someone else, there will likely be two different legal proceedings.
1) First, there will be a criminal prosecution in which you will be charged by the government with committing a crime. If you are convicted, you will be punished and you will have a criminal record. Given this, it is wise to always retain legal counsel when you are facing criminal charges
2) If the person you harmed sues you, you may be liable for damages whether you were convicted of a crime or not.
How to Find an Appropriate Lawyer
The first step in finding an appropriate lawyer is to make a list of lawyers.
Another important source of lawyers’ names involves getting referrals from friends or relatives (ensure you trust their judgement, and that the referral
be provided by someone who had the same type of legal problem that you are now facing)
Where to not look for a lawyer
In the yellow pages!
Law society (blue)
If dissatisfied with lawyer (complain about lawyer)
a self-governing body whose mandate involves regulating the legal profession in the public interest; law societies set and enforce ethical and professional standards for lawyers
provide the names and phone numbers of lawyers who
practise in the relevant area of law
The lawyers who are referred will provide up to
30 minutes of free consultation.
In British Columbia, the Lawyer Referral Service is operated by the BC Branch of the _________________
Canadian Bar Association (CBA)
Canadian Bar Association (CBA)
a professional organization that represents judges and lawyers. One of its purposes is to enhance the profession and the commercial interests of its
members.
How Lawyers Bill Their Clients
the client understand from the beginning exactly how the lawyer will bill him for providing assistance with his particular problem. It is prudent to confirm this understanding in a fee agreement with the lawyer.
In this regard, the issue of fees should be discussed during the _____________ with the lawyer.
initial consultation
Three main ways that lawyers calculate their fees:
aka how to hire a lawyer
1) Fixed fee
2) Hourly rate
3) Contingency fee
1) Fixed fee
a predetermined fee paid to a lawyer for completing a specific task
Examples: used for specific tasks, such as preparing a will, purchasing a house, or incorporating a business.
2) Hourly rate
bill the client for all of the time she spends
working on his file using her hourly rate.
Hourly rates vary with the number of years that the lawyer has been practicing law
Increments of 6 minutes (.1 or .2 on file)
3) Contingency fee
a fee paid to a lawyer that is based on a percentage of the sum recovered by the client
If the client does not collect anything, then the lawyer does not receive anything.
Example: personal injury claims or product liability cases when the client does not have any funds to pay the lawyer at the beginning of the case
Example: could be 25%
The Law Society of British Columbia, for example, does not permit ___________ agreements for family cases involving child custody or access
contingency fee
The maximum contingency fee allowed in claims for personal injury or wrongful death resulting from a motor vehicle accident is _________ of the amount recovered
one-third
For all other personal injury or wrongful death cases
the limit is ____ percent of the amount recovered
40
Disbursements
Out-of-pocket costs incurred by the lawyer on the client’s behalf
Usually include costs such as the court fees for filing documents, long-distance telephone charges, courier charges, the fee charged by an expert for testifying or preparing a report, and photocopying costs.
Retainer
a deposit paid by a client to a lawyer before the lawyer commences work on behalf of the client
Note: The lawyer may require the client to “top up” the
retainer as funds are withdrawn from the trust account.
“Putting gas in the tank”
Legal Aid
the provision of legal services to persons in financial need
The provision of legal aid varies from province to
province.
In British Columbia, the ____________, an independent, non-profit organization, provides legal aid for people with low incomes
Legal Services Society (LSS)
_______ may pay for a lawyer if the client has a legal problem involving serious family, child protection, or criminal law issues, or for some immigration, mental health, and prison law issues
LSS
How to receive legal aid
A client must meet certain financial guidelines involving household income and assets
Not everyone qualifies for legal aid, and even
some who do qualify may have to pay some of the legal costs incurred.
If you collect money as a result of a settlement or judgment, you will probably have to repay some or all of the benefits you received from legal aid.
Are all cased covered by legal aid?
Not all types of cases are covered by legal aid
No
In general, the law societies do not assist clients with complaints about the fees being charged by their lawyers.
In such cases, the client is usually
advised to first discuss her concern about the fee with her lawyer
Complaint resolution process
1) usually begins with an attempt at mediating the dispute between the client and the lawyer
2) If mediation fails and the law society decides that
the complaint is valid, then there will usually be a more formal investigation. This could result in a hearing before a panel
3) This hearing will involve the testimony of witnesses, the entering of other evidence, and submissions by the legal counsel for the lawyer and for the law society
Complaint resolution process
1) usually begins with an attempt at mediating the dispute between the client and the lawyer
2) If mediation fails and the law society decides that
the complaint is valid, then there will usually be a more formal investigation. This could result in a hearing before a panel
3) This hearing will involve the testimony of witnesses, the entering of other evidence, and submissions by the legal counsel for the lawyer and for the law society
4) If the panel finds the lawyer guilty of misconduct, the penalty could include a reprimand, fine, suspension, disbarment (termination of membership in the law society), and costs of the hearing
Ethics of Lawyers
Ethics of Lawyers
Lawyers are expected, for example, to:
- be honest and courteous;
- keep clients informed, respond promptly to phone calls or letters and
- work in a timely fashion;
- respect client confidences;
- safeguard client funds and property and account for money entrusted to them;
- maintain adequate skills to represent clients effectively; and
- not act in a conflict of interest.
Ethics
a system of moral principles governing the appropriate conduct for an individual or a group
Laws vs ethics
Law provides a set of rules for behaviour. If these rules are not complied with, the person breaking the rules will be punished. Law therefore tells us what we must do.
Ethics, on the other hand, tells us what we should
do. When a person breaks the law, he has also acted unethically.
However, if a person acts unethically, he may not have broken the law. Ethical behaviour therefore implies integrity, honesty, and professionalism
However, if a person acts unethically, he may not have broken the law.
Ethical behaviour therefore implies integrity, honesty, and professionalism regarding bad lawyers
First, lawyers operate under strict rules governing their professional and ethical
obligations. You can therefore place your confidence and trust in your lawyer.
Second, there are some lawyers who unfortunately do not meet the standards of the profession. It is necessary therefore to understand the types of behaviour that are unacceptable and the steps
that can be taken if your lawyer violates your trust and confidence by breaching the professional standards.
Third, as is the case with all professionals, it is necessary to be vigilant with respect to your lawyer,
and, if he breaks the rules he should be following, to take whatever action is appropriate on a timely basis.
Ethics of Clients
That is, there is not a “Code of Professional Conduct” for businesspeople in Canada, or even in any of the provinces
code of business conduct
a formal statement that sets out the values and standards of business practices of an organization
From Lecture:
- conflict of interest
- protection and proper use of corporate assets
- confidentiality
- fair dealing
- compliance with laws
- Reporting of unethical behaviour
ISO 26000 addresses seven core subjects of social
responsibility:
1) organizational governance,
2) human rights,
3) labour practices,
4) the environment,
5) fair operating practices,
6) consumer issues, and
7) community involvement and development
corporate social responsibility
a corporation’s environmental, social, and economic performance and the
impact of the corporation on its internal and external stakeholders
The client is the _______, not the lawyer
decision-maker
decision maker
Therefore, the lawyer is bound to the client’s instructions as long as it is legal!
Role of a lawyer
Layer is an expert who provides relevant logical advise
-advises and recommends
Client is the decision maker, not the lawyer
Lawyer bound to follow client’s instructions (but it must be lawful)
Information provided to a lawyer must be kept confidential (solicitor-client privilege)
