Are you a magnet for risky business? Back-to-basics:

The good, the bad and the uglyPhilip J. Star, Q.C., Jeanne Desveaux and Catherine S. Walker QC

Non-Risky Business: LIANS’ Risk and Practice Management Solo/Small Firm Conference November 29th, 2010

Property Practice: See? I have the downpayment ...

Fact Situation #1: Looks May be Deceiving

Middle-aged and well-dressed woman

as client ... beware?

Some safety tips:

• Get your client identification early. Any misspellings or inconsistencies ?

• Using a newly incorporated company?• Dealing with a traditional lender or

secondary? Are there written assurances that financing is

secured?

Remember ...

• Not all fraudsters come in ‘con-artist’ like packages – and they LOVE sole practitioners ...

• Cover off whatever due diligence is required - notwithstanding your client’s insistence otherwise. Document advice your client insists on waiving

• Don’t allow your good reputation to be used to your client’s advantage and your detriment

Work/life balance … or not

Question #1: can you say “no”?

Ask yourself:• Is this matter outside of my area of

comfort/competence? If so, say no.• Is the client’s expected timeline

reasonable for the work done? If not, say no.

Urgent?? What isn’t?

Question #2: Do you have a crystal ball?How good will your memory be?

• Your memory, and that of your

client will fade over time• Document your instructions;

what you are not doing; and advice that your client has not taken

• Understand your client’s expectations - no way to know what they may deem important in the future

Question #3: Do you Answer the call?

• The use of DND - Is this your way of finding the time to get to those files that need your undivided attention?

• How do you manage the telephone and email messages from clients and other lawyers?

• Do they get answered in a timely manner?

Ensure your messages and emails are answered. You will sleep better for it.

Time management

Elder law: Legal IssuesRed flags & best practices

• Understanding information relevant to the decision

• Appreciating the information (applying the information to one’s own situation)• Using the information in reasoning• Expressing a consistent choice

(Dunn et al.)

Decisional capacity includes at least four components:

Elder law: red flag

Inquiry or appointment with lawyer made by an adult child, other relative, or friend who insists that:• He/she accompany the client

to the appointment• Be present for the entire

assessment and/or appointment

Elder law: red flag

The person accompanying the client/patient

attempts to answer questions before the

individual has an opportunity to respond

Elder law: red flag

The individual looks toward the person accompanying him or her before responding

Elder law: red flag

The individual accompanying the client attempts to instruct you on what you should do or tries to provide instructions over the telephone

“My mother wants to make a Power of Attorney appointing me

as her attorney”

Elder law: red flag

You are requested to draft a document for someone to pick up because it is not

convenient to attend your office

A power of attorney can:

• Provide a client some level of comfort that their wishes will be carried out regarding their property and person

• Make things easier for loved ones in the event that a person becomes incapacitated

A power of attorney cannot:

• Guarantee that the client’s wishes will be carried out regarding their property and their person

• Guarantee that things will be easier for their loved ones in the event he/she becomes incapacitated

Some suggestions for best practices

• Always meet with your client alone• Confirm who you are representing• Arrange for ILA • Large font /appropriate lighting• Do not assume literacy • Accounting provisions in powers of attorney

Criminal Law Practice

Criminal practice: Scenario #1

An accused person phones you from the police station attempting to exercise his right to retain and instruct counsel pursuant to Section 10(b) of the Charter.

This person has been arrested by the police, who are investigating a criminal offence and want a statement from the accused.

“Even fish wouldn’t get in trouble if they

kept their mouths shut”

Criminal practice: Scenario #2

Be aware of the source of your client’s funds

Are there times you may not want to accept cash? Or a cheque?

Trial pressure…

Criminal practice: Scenario #3

• Document..document..document• Written instructions from the

client are crucial - accused persons may develop

amnesia as to the nature of the advice given

Confirm the nature of your retainer and/or advice that you had given to a client

Managing the Paper … or not

Criminal practice: Scenario #4

• Counsel is the client’s advocate, not the trier of fact.

• Be aware of the pitfalls and the potholes as they can be very quick to gobble you up.

Be careful not to be drawn into a tangled web that your client may weave.

Questions for the panel?

Yes Virginia, there is a Santa Claus …