Crossing the Border with Electronic Devices

[Reprinted with permission from the February 2019 issue of Communiqué by Darcia Senft.]

What You Should Know

It used to be the case that when a lawyer took a vacation, work was left at the office. While all of us may try to take a real break from work when we are trying to recharge our batteries, the reality is that clients have become accustomed to being able to email their lawyers at all hours of the day and on weekends. For a variety of reasons, lawyers often respond to client matters while they are on vacation or when out of the country for one reason or another. Lawyers often travel with a laptop or a tablet and almost always with a cell phone in order to access emails, client information and other work-related materials. Do you know what risks you face when travelling with your electronic device and what you can do to minimize those risks?

The Federation of Law Societies of Canada has published a reference document for the legal profession dealing with the risks of travelling internationally with an electronic device. You can find the document here.

The document, developed by the Policy Counsel Counterpart Group of the Federation with the assistance of law society practice advisors, describes the risks of travelling with an electronic device when returning to Canada, going through preclearance with U.S. border officials on Canadian soil, and when travelling to the U.S. and beyond.

Upcoming CPD – Get Your EPPM Now!

The Law Society of Manitoba
Professional Education and Competence

Looking to get your EPPM hours?
Two February Programs – eligible for up to 5 Hours

Cultural Diversity & Practising Law 
February 12, 2019     |     12:00 pm to 4:00 pm

Available in-person only

Following rave reviews from the Western Bar and the Law Society’s own volunteer training sessions, we are delighted to extend this unique learning opportunity to you.

Dr. Rehman Abdulrehman’s expertise, life experience, and practical engaging style provides a powerful exercise in self-analysis and thought providing discussion.

Includes 4 hours of CPD activity, of which 4 hours are EPPM 

Register Now 


Procrastination and Professional Liability Insurance Claims:
Causes and Consequences of Procrastination in Legal Practice
February 13, 2019     |     12:00 pm to 1:00 pm

Webinar Only

Procrastination. While we often think of it in relation to our personal goals (remember that shelving project in the garage that keeps getting put off?), the pitfalls of procrastination have an impact in our professional lives as well.

In this one-hour webinar, the Law Society of Manitoba’s Director of Insurance, Tana Christianson, and Professional Liability Insurance Fund Counsel, James Cox, will review why lawyers procrastinate, real life claims caused by procrastination, and the ethical and practical reasons lawyers should not procrastinate when they become aware of circumstances that may give rise to a claim.

Includes 1 hour of CPD activity, including 1 hour of EPPM.

Register Now

Early Bird Deadline Approaching

2019 Annual Joint Family Law Program – The Times They are a Changin’ 

March 15, 2019     |     9:00 pm to 4:30 pm

Early Bird Deadline – February 15, 2019

The landscape of Family Law Practice is quickly shifting and yet the old challenges faced by Family Law Lawyers haven’t gone away. 

The Times They Are a Changin’, is designed to give you practical answers to common challenges including issues related to client and  practice management, updates on new screening tools for domestic violence, changes in the legislation and the new administrative model of family law promised by the Manitoba government in the Throne Speech. 
 
Take away some practical tips, new knowledge about the law and confidence about decisions to be made when dealing with all the change around you.  Join us in the eye of the storm – where you will find a place to think, learn, ask questions and get answers.

Register

Includes 6.5 hours of eligible CPD activity, including 2 hours of EPPM.

Referral Fees – What you should know

[Reprinted with permission from the October 2018 edition of Communiquéby Darcia Senft, General Counsel , Director of Policy and Ethics at the Law Society of Manitoba.]

From time to time, we receive questions about fee referral “pitches” and whether such fees can be paid and received without causing a lawyer to act in breach of the rules set out in the Code of Professional Conduct.

The Code has rules and commentaries that relate to the division of fees and referral fees. Rule 3.6-7 specifically prohibits a lawyer from directly or indirectly sharing, splitting, or dividing his or her fees with any person who is not a lawyer and from giving any financial or other reward for the referral of clients or client matters to any person who is not a lawyer.

From time to time lawyers receive telephone calls or emails from individuals who indicate that they want to help increase the number of new cases that the lawyer takes on. For example, a caller explains that his company will provide contact information to potential clients in whatever practice area or geographic area that the lawyer selects. It is not a directory service but some form of customized referral process that relies upon the company’s technology. When asked how the company makes money from the proposed referral process, the lawyer is told that he will be required to pay a flat fee each month to the company although they will not charge a fee for each referral. The caller is from another jurisdiction and is not a Manitoba lawyer. Under the circumstances, the proposed payment system would amount to a referral scheme that no Manitoba lawyer could participate in without breaching the referenced Code referral fee rules. If you have become involved in this kind of an arrangement, you should revisit it in light of the Code restrictions.

Certain types of referral fee payments are allowed. With the exception of referrals as a result of conflicts, Rule 3.6-6 allows a lawyer who refers a matter to another lawyer because of the expertise and ability of the other lawyer to handle the matter to receive a referral fee but there are a couple of conditions that must be met. First, the fee itself must be reasonable. Second, the client must be informed about it and must consent to its payment. You might wonder what a “reasonable” fee might look like. You might also wonder why the Law Society would even care about a referral fee arrangement where the client consents.

Consider the following situation. A lawyer who does not practise in the area of family law at all meets with one of his long-standing clients who now needs a divorce. The lawyer says he doesn’t practise in that area but can make a referral to a lawyer in another firm who does this work. The lawyer who accepts the domestic retainer agrees to pay 15% of all fees generated back to the lawyer who made the referral. The domestic case may take several years to complete and the client may end up paying in excess of $40,000 to the family law lawyer. Would it be reasonable for the referring lawyer to receive $6,000 in fees simply for making the initial referral? Even if the client purportedly “consents” to the referral fee, at the beginning of a retainer the client would have no idea how much the referring lawyer ultimately will be paid. How could consent, under those circumstances, be described as “informed?” What would the client say if he knew that in order for the domestic lawyer to keep up those anticipated long-term referral payments, she had to charge a higher hourly rate?

Where the Code allows payment of a referral fee from one counsel to another, it stands to reason that the fee must be fully known (i.e. quantifiable) in order for the client to provide informed consent. Before considering any kind of division of fees or fee referral payments, consult the Code and please call us if you have any questions about whether the contemplated arrangement is appropriate having regard to your ethical obligations.