A message from Ola Malik, the CBA Alberta Access to Justice Committee
On behalf of the Access to Justice to Committee, Canadian Bar Association, Alberta Branch, I am delighted to introduce you to this special electronic supplement which is devoted in its entirety to the issue of the Limited Scope Retainer (“LSR”).
The purpose of this publication is to provide a discussion regarding the opportunities and challenges which are presented by the LSR. Our contributors approach the LSR issue from different perspectives, offer a broad representation of views, and explore many of the practical issues which you need to carefully consider before deciding whether to adopt the LSR as part of the menu of services which you’re prepared to offer. Ultimately, we leave it to you to decide whether the LSR model is right for your practice. We’re confident that the authors who have contributed to this publication will have provided you with some of the guidance you’re looking for.
While the LSR model is usually spoken of in the context of unbundling legal services to better address the access to justice deficit, the LSR has significant benefits to the legal profession. Most people cannot afford the cost of a general service retainer and will therefore never ask a lawyer for help. But some legal help at an affordable cost is better than none. In appropriate circumstances, the LSR may enable those who cannot afford to pay for the cost of a general service retainer to get help with those legal tasks they feel they cannot perform themselves. This allows the client to exercise control over those parts of the file they feel comfortable handling but recognizes that a client will need help from a lawyer along the way. The LSR provides lawyers who are prepared to offer limited scope representation with legal work they would previously not have had and with significant business opportunities for providing services to a much larger market.
As many of our contributors note, the full cost of a general retainer is out of the grasp of most Canadians. Robert Harvie, QC explains why the LSR may open up new market opportunities for enterprising lawyers and Ed Gallagher outlines how his law firm has gained a unique competitive advantage by adopting the LSR model and flat-fee billing. Dr. Julie Macfarlane provides the public’s perspective on how the legal profession’s reticence in providing the LSR service is confusing to a public which is increasingly looking for legal services to be provided in this fashion. Marie Gordon, QC’s article articulates a powerful case for incorporating the LSR into a family law practice and Gillian Marriott, QC and Joshua Lam argue that the LSR model expands the opportunities for providing pro bono work. Mr. Justice Jerke’s perspective from the bench is encouragingly optimistic.
However, despite how badly you might feel for a client who cannot afford the cost of a general retainer, the LSR may not always be an appropriate answer. You need to assess whether your client and their legal issues are good candidates for the LSR model, whether you properly understand the implications of adopting the LSR and whether you can effectively manage the risk which may arise.
In her article, Nancy Carruthers discusses the new rules and their accompanying commentaries which address LSRs in the Code of Conduct, including the new commentary to rule 2.01(2), new rules 2.01(1.1), 6.02(8.1), and existing rule 2.27 of the Alberta Rules of Court. I’m going to guess that most of you don’t like getting sued for professional malpractice and would therefore strongly suggest that you read Anne Kirker, QC and Jennifer Blanchard’s article which addresses some risk management strategies. The piece written by Jeannette Fedorak, QC provides some excellent practical tips to keep in mind as well. Michael Bates and Jennifer Ruttan provide a thoughtful explanation as to how and why most criminal practitioners should already be familiar with the LSR approach and provide a word of caution before embarking into the LSR in the criminal law context. Finally, Andrea Doyle and Jocelyn Hill discuss Legal Aid Alberta’s deliberative strategy in adopting the LSR and helpfully provide some links to precedents, including various court firms, FAQ sheets for clients and lawyers, and a sample LSR agreement.
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Each of our contributors made this project possible. I am very grateful to each of them. I want to thank Gillian Marriott, QC and Rob Harvie, QC who served with me on the CBA’s Access to Justice Committee in respect of this project. Lee-Anne Wright is the Communications and Marketing strategist for the CBA and did an absolutely outstanding job putting this publication together.