Solo in Ontario: Criminal Practice has moved!

We have moved! Visit the new blog at www.soloinontario.ca.

Six tips for going paperless

I'm a big fan of the paperless office. Unclutterer, "the blog about getting and staying organized", has a list of six tips for going paperless. I agree with everything they suggest, particularly their recommendation of the Fujitsu ScanSnap, which I consider the best peripheral purchase I've ever made. You may want to read my own review of the ScanSnap.

Final Report of the Sole Practitioner and Small Firm Task Force

You may have missed the Final Report of the Sole Practitioner and Small Firm Task Force [PDF], which landed in the inboxes of lawyers across the province at the end of February.

The Task Force's mandate was to study the current state of sole and small firm practices in Ontario, including the unique challenges they face.

The data is clear. Sole and small firm practices are the central foundation of legal services in Ontario. Sole practitioners and practitioners in firms of fewer than five lawyers make up approximately 52% of the lawyers in private practice in this province and an amazing 94% of all firms in the province.

According to the report,

When individual citizens in Ontario require the services of a lawyer to handle a wide range of legal matters ... overwhelmingly they retain sole and small firm practitioners.

What's more, these practices provide virutally all lawyer services available in languages other than English, French or Italian.

The report reveals that sole and small firm practitioners face great challenges.

Difficulty in financing practices is a challenge unique to target group lawyers and is linked to the nature of their client base. Individual clients generally have less ability to pay than do corporate, government or institutional clients. This affects not only the amount of money clients have available for or are willing to commit to lawyer services, but the timing of their payment. The result is that target group lawyers are often left to finance a client’s litigation, delay receipt of payment until a matter is completed, or reduce or forgive fees to satisfy client demand. To exacerbate this reality, target group lawyers also report greater difficulty in securing financing and lines of credit from financial institutions. Rising overheads and general market pressures to reduce fees that affect all lawyers have a greater impact on many target group lawyers because of the narrower margins of financial viability they face.

Those who have chosen to go solo may have an especially difficult go of things.

Sole practitioners alone report the highest degree of dissatisfaction and the presence of the highest number of factors that can lead to financial instability. Isolation from other lawyers distinguishes the experience of many of these lawyers frm the rest of the target group and, for some, threatens the viability of their practices.

You should read the full report if you have the time, particularly if you're still a student or you're practicing at a larger firm and contemplating a change of scenery. As much as I try to offer my readers a glimpse into the life of a sole practitioner, mine is but a single story and, if the report is to be believed, my story may have played out somewhat more smoothly than is regular.

Apple Computers and Law Practices

In first and second year law school, I used a Dell laptop for almost everything, including taking notes. In third year, I stopped using a computer altogether and my grades improved. No computer meant I took fewer notes, paid more attention and understood everything better.

At one of the first classes of International Humanitarian Law, our professor, a retired Major General, observed the number of students using laptops and remarked on how our laptops would be one of the first things rendered useless in war.

By third year, when I looked around the classroom, more and more people were using Apple laptops - especially MacBooks. I am now using an Apple laptop for my practice. I don't recommend it. Here are some reasons why not:

Apple computers are overpriced.

Apples are often described as "intuitive". I have not noticed anything intuitive about my Apple. It is just as stupid as my Dell was.

Important legal applications are usually only designed to run on PCs, not Apples. For example, PCLaw. This is one of the most popular billing and accounting softwares. When I called Lexis Nexis to ask whether it would work on an Apple, they told me no, it only runs on Windows. Further, that Apple computer users make up approximately 5% of the population, but in the legal profession, only about 2%. I am told by Bo that you can get an application that will run Windows that will run PCLaw on a Mac. So you need to buy 2 applications to run the 3rd application - not exactly "intuitive".

Apples have major compatibility issues. I use Office Word for Mac 2008. I can't send any clients Word documents for them to edit and "track changes". The .docx format used by Apple simply won't open on many PCs. I prefer the pdf format, which is compatible (and more secure).

Lastly, my Apple has crashed more than my former Dell. I recently had a hard-drive meltdown. Of course, I back everything up securely, so nothing was lost, but it was a pain. When I went to use my Apple Care ($299.00 when I bought the Apple), I was told that my dysfunctional hard drive would be mailed to California. That's no good for client confidentiality, so I opted to keep it. Doing so rendered my Apple Care useless and I had to pay $140.00 to buy and new hard drive and $90 to get it installed.

I realise this post is a bunch of whining. That is mostly because computers are frustrating in general. I just wanted to give you a heads up if you're thinking about committing to Apple and practicing law. The two don't necessarily mix.

Debate Series: Is the Lawyer Referral Service a Worthwhile Investment?

If a person is having difficulty finding a lawyer, or would just like a bit of free legal advice, he or she can call the Law Society of Upper Canada's Lawyer Referral Service ("LRS") at (900) 565-4577. The LRS will provide the name and telephone number of a participating lawyer, who is obliged to provide a free 30 minute consultation. This is a toll service, which means a $6 charge will appear on the caller's nex telephone bill. For more information, visit the Lawyer Referral Service FAQ.

Lawyers pay the Law Society an annual fee to participate in the LRS, and for the opportunity to acquire new clients while providing a public service. The fee for 2009 is $262.50. Shortly after the LRS refers a client to you, it will follow up by faxing you a Notice for you to complete and return. They want to know the outcome of the referral.

Up For Debate

1. Is the LRS a good way for new lawyers to connect with clients?
2. Is the operation of the LRS contrary to the spirit of the Rules of Professional Conduct?

Michael's Take

Issue 1

I was a member of the LRS for my first 3 months of practice. I received on average 3 referrals per month. I enjoyed meeting with every potential client.

On the positive side, the legal problems potential clients called about were diverse and interesting and this forced me to learn a great deal. On the downside, each meeting took preparation time and the meetings usually lasted 60 minutes, not 30. It is difficult to get a clear understanding of a case in 30 minutes and give useful advice.

In the end, as my practice became busier, I found that I did not have the time to continue my LRS membership. The referrals I received were generally from clients unable to afford to pay a lawyer for the services they needed. I took on a few LRS referrals on a pro bono basis and hope to rejoin the LRS again in the future, as I strongly feel it is a very usefully organisation that increases access to justice. I just need to be in a more stable financial position before I am able to accept more pro bono retainers.

Issue 2

The Rules of Professional Conduct ("Rules") were created by the Law Society. So was the Lawyer Referral Service. Therefore, I take the position that the LRS should follow the spirit of the Rules.

Rule 2.03 relates to confidentiality. In my opinion, questions 4 and 5 (relating to retainers) on the Notice that lawyers must return to the LRS appears to violate the spirit of confidentiality. I can see why this information may be interesting to the LRS for statistical purposes, however, in my opinion, a lawyer must ask their client whether they are comfortable with this disclosure before providing LRS with it. It seems inappropriate that the LRS would ask for retainer information without including wording such as: "if your client consents to disclosing retainer information..."

Rule 2.08(8) bars lawyers from dividing fees between lawyers and non-lawyers and also bars paying non-lawyers referral fees. Yet lawyers have to pay a fee to join the LRS. This appears to be contrary to the Rules as lawyer members of the LRS are in effect buying clients, even if they do work on a pro bono basis. The solution may be an amendment to Rule 2.08(8) to allow for a fee to be paid to the LRS or the LRS could abolish membership fees and ask for voluntary contributions from lawyers or increase lawyer annual dues.

It is my intention to raise these issues with the Law Society of Upper Canada. But I am interested in reader feedback on them. Please share your thoughts in the comments section. I am also looking forward to hearing Bo's take.

Bo's Take

Issue 1

Michael, I appreciate that the Law Society has its heart in the right place. But it's my experience that joining the LRS is more trouble than its worth. More often than not, people who call the LRS are looking only for a freebie. Free advice, free assistance, free representation. They are generally not looking to hire a lawyer. I was a member for about six months and during that time the LRS sent me about 5 referrals. None of them turned into retainers. One callers was an obvious paranoid schizophrenic who felt he was under constant supervision by both the police and his neighbours. Another caller, who clearly intended to represent herself, kept me on the phone for close to an hour despite my repeated and obvious attempts to pry myself away. Even though I was clear that her time had expired, she called me back during my dinner with more questions.

I've heard it argued that all it takes is a single retainer for membership to pay for itself. But that argument fails to take into account the lost time and opportunity cost of verbally wrestling with people who have no intention of paying you a dime.

Don't get me wrong. I very much believe that everything possible needs to be done to see that all members of the public have equal access to quality legal services, regardless of socioeconomic standing. However, the LRS is not an effective means of delivering legal services. Though most lawyers will take on matters pro bono, particularly those that present unique legal issues or involve particularly sympathetic parties, in general "lawyers work best when they're paid". The Law Society should abandon the LRS and redirect its energy toward lobbying for greater funding for legal aid, encouraging pro bono work, and supporting direct public education initiatives.

Don't necessarily let my experience stop you from trying out the LRS for yourself. The sentiment behind it is certainly noble. But if you're experience is anything like mine, you'll find yourself frustrated and $262.50 poorer.

Issue 2

Michael, I'm impressed. I had never given thought to a potential conflict between the LRS and the Rules of Professional Conduct. You raise some interesting points. With respect to confidentiality, I think you're right on. The LRS benefits from collecting such statistics, but out of respect for both the solicitor-client relationship and the spirit of their own rules, the form should be amended as you suggest.

As for the question of paying non-lawyers for referrals -- this is the regulating body we're talking about. It's an organization run by lawyers and composed of lawyers (we won't count the paralegals). So, the conflict you describe may be a technical breach, but it's certainly not a breach in spirit.

I'd also love to hear from our readers. Feel free to sound off in the comments.

Office Space: Mission Accomplished!

After scouring the classifieds and visitng more than a dozen potentials, I finally have an office. It's in a medium-sized law chambers that includes several criminal lawyers, a real estate lawyer, an immigration lawyer, an entertainment lawyer, and two other new calls. The building is a gorgeous brick-and-beam heritage structure on Bond Street, in the heart of downtown Toronto. It's just north of St. Michael's Cathedral, just south of Dundas Square, and just east of the Eaton Centre. There's a full-time receptionist, so potential client's will no longer be greeted by a recording. The landlord only charges cost for expenses, which means the phone line is dirt cheap and photocopies are 2 cents per page. And most importantly, I now have a place to meet client's that's professional, comfortable, and private.

I originally planned on sharing this space with a colleague. We were searching for space together. Unfortunately, it seems that our priorities were different in the end and we couldn't settle on a place that satisfied both of our needs.

So, if you're a new call or junior lawyer practicing in Toronto and you're looking for your own office space, contact me. I'm still looking for someone to share my space with. The office itself is quite large and can easily fit two desks and other furniture. It's much too big for just me. This is an opportunity to score a nice office while keeping overhead low.

"You want how much?!" - Appropriate Fees For New Lawyers

It's a question for the ages for young lawyers. 'How much should I bill my clients?' You see, there are no substantive guidelines when it comes to setting fees. The law society in this province is silent on the matter. Nevertheless, there are benchmarks which can be used to determine appropriate fees. For example, you can pin down the low end by considering what legal aid pays per hour. And to get an idea of the high end, ask lawyers with just one or two years of experience what they charge. Then narrow down this range by considering your particular circumstances, such as your area of practice and the city you work in.

At the low end, legal aid in this province pays new lawyers $77.56 per hour. After a few months in practice, you'll quickly learn that the Ontario Bar considers this rate to be grossly inadequate. Many lawyers stop accepting legal aid certificates altogether as soon as they become busy enough to pick and choose retainers. So, your rate should be significantly higher than what legal aid pays. For another data point, consider the articling student. Medium- and large-sized firms routinely bill out their articling students at rates of $125-$175 per hour, and more. Surely a lawyer who has completed his articles and been called to the Bar can justifiably demand a premium.

What about the top end? What are lawyers with one or two years of experience charging per hour? A colleague of mine bills his corporate/commercial clients a minimum of $275 per hour and refers to this as "a healthy rate". Another, a civil litigator with even less experience, bills at $250 per hour. A January 14, 2009 article in Maclean's titled 'When lawyers are only for the rich' pegs the average hourly rate for lawyers called to the bar in 2008 at $220. Granted, the author's chastised the profession for the 69% increase over 2005 rates and lamented the effect it has had on access to justice, but we'll leave the socioeconomic analysis to another post. The point is that these are the rates that other lawyers charge and it's what clients have come to expect.

An acquaintance of mine has commented that all of these numbers seem too high. He tells me that in Windsor, where he attends law school, new calls earn $100 to $150 per hour. He knows of two lawyers who charge $250 and $300 per hour each, and they have been practicing for decades. What to make of the sharp contrast between his numbers and mine? First, Windsor is not Toronto. Neither is London, or Ottawa, or Montreal, or Vancouver. Toronto is the largest legal market in the country, in the same way that New York City dominates the scene south of the border. Whether true or not, a Toronto address suggests a quality and competency not available elsewhere. And the cost of doing business in Toronto is extremely high. The rates in this city reflect that.

With all of the above considerations in mind, I feel a new call should set his rate at between $150 at the extreme low end and $250 at the extreme high end. $180 to $200 is a healthy rate in Toronto.

What about criminal lawyers, who tend to bill in blocks and not by the hour? These numbers are harder to pin down. However, my limited and completely unscientific survey of younger members of the criminal Bar suggests $1000 to $1500 for a one day bail hearing and $1500 to $4000 for a one day trial.

New lawyers can find it challenging to balance their desire for a fair fee with their need to secure clients. When business is slow and your calendar is bare, it may seem like a good idea to offer a lower rate to lasso a particular client. This can be a successful strategy, but be careful. As your name spreads and your calendar fills, you may find that a simple matter for which you agreed to a tiny retainer has unexpectedly gone off the rails. You may come to resent time spent on files like these, which is time taken from other, more lucrative matters.

What do you think new lawyers should bill? What other factors should be taken into consideration in determining an appropriate fee? Share your ideas in the comments.