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#3 - Lawyers' Competence

Standard

A lawyer must be competent to perform all legal services undertaken on behalf of a client.

In the family law context, competence also includes an ability to recognize issues including client competence or impairment, the need to seek out expert advice for the lawyer or client, the ability to recognize if a matter is too complex for the lawyer and ensuring the lawyer has adequate resources available to properly represent the client.


Reference Materials

Notes

  1. Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers' Society, 2012, Chapter 3: “Relationships to Client”; and section 3.1: “Competence.”
  1. Central Trust Company v. Rafuse and Cordon (1986), 75 N.S.R. 2d 109 (SCC) – solicitor negligence – standards required of a specialist and non-specialist lawyers; Sobey v. Sobey, [2000] N.S.J. 276: Parties can’t be asked to negotiate a final settlement absent financial information and it “would be negligent on counsel’s part to do so” (para. 19). Mardling v. Malvern, [1983] O.J. No. 212 (QL) (Ont. S.C. (H.C.): lawyer found competent despite lack of experience.
  1. Family Law Professional Standard 2 Client Competence; Miglin v. Miglin, 2003 SCC 24 (CanLII),[2003] 1 S.C.R. 303: Referring a client for advice or counselling before negotiating a final settlement of agreement to overcome systemic power imbalance between parties; Rick v. Brandsema, 2009 SCC 10 (CanLII), [2009] 1 S.C.R. 295: Unconscionable agreement due to lack of full and honest disclosure of relevant financial information and wife mentally unstable at time agreement negotiated and signed.

Legislation

Regulation 9.1.3(b) Regulations made under the Legal Profession Act, S.N.S. 2004, c. 28:

When considering complaints or charges, the Complaints Investigation Committee and a hearing panel may determine that conduct constitutes:

(b) professional incompetence, if the lawyer fails to apply relevant knowledge, skills and attributes in a manner appropriate to matters undertaken on behalf of a client, and within the reasonable parameters of the lawyer’s experience and the nature and terms of the lawyer’s engagement.

Civil Procedure Rule 55: Expert Evidence

Additional Commentary Lawyer Competence
MacLean v. Van Duinen, 1994 CanLII 4333 (NS SC), 131 N.S.R. (2d) 60 (NSSC): No lawyer undertakes perfection, no client is entitled to that expectation.

Rowe v. Lee, 2007 NSSC 31: Costs awarded against counsel for filing late memorandum with consequent adjournments.

Morash v. Morash, 2004 NSSF 58: Costs award against counsel for filing late adjournment request.

Additional Commentary Expert Evidence
Conrad v. Thompson-Sheppard, 1998 CanLII 1402, 167 N.S.R. (2d) 282 (S.C.). A lawyer who failed to recognize a complex problem and who did not do careful research or refer to an expert found negligent.

McInnis v. McGuire, 2014 NSSC 437 - Appeal of taxation of legal accounts from Small Claims Court decision. Principle of reasonableness applies when reviewing the decision of a lawyer to retain an expert to assess her client's capacity. Lawyers may differ in their approach to various legal problems. Sometimes, many different approaches are reasonable. All persons are presumed to be competent but the circumstances of the client created some doubt. Lawyer's decision to seek an expert's report was reasonable. The lawyer had determined that the client was capable of giving instructions; she was therefore entitled to act on those instructions to retain an expert. Onus was on the Appellant law firm to establish on a balance of probabilities that the account was reasonable. Adjudicator did not provide sufficient reasons for discounting the remaining legal bill.

Areas which may require expert assistance
Tax
Pension
Medical & Psychological assessments
Accounting (including electronic forensics accounting)
Corporate & Commercial matters
Property valuations
Foreign Law

NSBS Discipline Cases

Nova Scotia Barristers’ Society v. Tan, 2008 NSBS 3 – Communication – failure to communicate, including failing to make interim reports where reasonable to expect and completing work belatedly so value to client was lost.

Nova Scotia Barristers’ Society v. Richey, 2002 NSBS 8; DD5/109 – Competence and quality of service

Nova Scotia Barristers’ Society v. McNeil, 2006 NSBS 3; HP1/14 – Competence and quality of service

Nova Scotia Barristers’ Society v. Corkum, 1996 NSBS 4 (May 29, 1996) DD3/76 - Communication - failure to communicate.

Maintaining a Solicitor-Client Relationship

  • Assist the client to develop realistic expectations. This may include discussing various options, as well as what the legal process can and cannot achieve, and when necessary, what legal ethics will or will not permit.
  • Do not delay in completing agreed upon work, answering client phone calls or other communications.
  • Keep clients informed of file progress - preferably in writing.

DOWNLOADS

Forms

The Family Division of the Supreme Court in the HRM and CBRM.

Outside the HRM and CBRM family law matters (except for Divorce and Property) are dealt with in the Family Court.

For Family Court Forms outside the HRM & CBRM if you are dealing with divorce or division of property, you will go to the Supreme Court.

Practice Memoranda

Supreme Court Family Division (Jan 29, 2010) Re: CPR Practice Memoranda

Related Ethics

Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers' Society, 2012:
section 3.1 "Competence"
section 3.2 “Quality of Service”
section 3.3 “Confidentiality”
section 3.4 “Conflicts”
section 3.5 “Preservation of Client’s Property”
section 3.6 “Fees and Disbursements”
section 3.7 “Withdrawal from Representation

Resources

Nova Scotia Lawyers Assistance Program provides its members access to a full range of confidential health and wellness services. 1 866 299 1299

CLIA - (Canadian Lawyers' Insurance Association) – provides helpful links and Bulletins related to Family Law issues.

NSBS - (The Nova Scotia Barristers’ Society) – Professional Development; helpful links; etc.

LIANS – (Lawyers' Insurance Association of Nova Scotia) – Report potential issues.

Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia (as amended) with supporting additional resources.

CBA Practice Link; and see especially Great Expectations: A Lawyer-Client Handbook

Halifax Regional Police: Victim Services Unit

Vicarious Trauma (2008, Headington Institute)

Resources by Dr. Lori Haskell, Ph.D., Clinical Psychologist with the Centre for Research & Education on Violence Against Women & Children, Western University

Articles & Books

Daylen, Judith; Dennis O’Toole and Wendy van Tongeren Harvey / "Trauma, Trials, and Transformation: Guiding sexual assault victims through the legal system and beyond" (October 2006)

Gillis, Deborah E. / Communication is Key (January 2007), in Society Record, vol. 25 No. 1

Gillis, Deborah E. / Effective Intake Procedures (Part 1)  (August 2006) in Society Record, vol. 24 No. 4

Gillis, Deborah E. / Effective Intake Procedures (Part 2) (October 2006) in Society Record, vol. 24 No. 5

Gillis, Deborah E / Managing client expectations, fulfilling professional obligations and achieving balance in your life (March 2009), in Calling all sole practitioners : risk and practice management seminar. [KB 267 N935C 2009]

Haskell, Dr. Lori / "Women, Abuse and Trauma Therapy" (March 2006)

Kruzick, Emile / Negligence in family law (October 1988), in Family Law 1988. [KB 135 C760 1988]

Approved by Council on March 25, 2011