by Erin Cowling (Founder & CEO, Flex Legal)
Over 10 years ago, I started my own non-traditional practice assisting other lawyers and law firms with their overflow legal work. I wasn’t sure what to call myself: research lawyer? contract lawyer? associate for hire? I eventually settled on “freelance lawyer”, a term used in the UK and the US for lawyers who “freelanced” for different law firms rather than working for just one. While not widely used in Canada, I felt the term “freelance lawyer” was a good fit as I was doing more than just legal research or document review, I was helping on every aspect of the litigation files, from beginning to end, using my 7 years of litigation and courtroom experience to help my lawyer clients win their cases.
In the beginning, I felt very much alone as I did not know anyone else practicing in this way. I also spent much of my time educating other lawyers on how I could help their practice. Fortunately, some lawyers understood right away. Many, though, were skeptical. The pushback was always the same: Was this allowed? Is it ethical for lawyers to contract out legal work? What did the Law Society have to say about this? Were the Courts on board?
Fast forward to today, and I am happy to say that in 2023 not only has the use of freelance lawyers been widely accepted across the legal profession in Canada, it is being actively encouraged by the judiciary.
Two cases in the last year have highlighted not only the benefits of using freelance lawyers for your practice but also warn of the potentially serious consequences if you don’t.
“No Help” No Longer a Valid Excuse for Adjournment Requests
In the case of Aganeh et al v Falconer LLP et al.,, the day before a summary judgment motion, a sole practitioner requested an adjournment arguing that he lacked the time and work capacity to prepare for the court appearance. Justice Koehnen of the Ontario Superior Court of Justice denied the adjournment request noting the serious delays in Ontario’s court system and that freelance lawyers were readily available to assist his practice and help him prepare:
“Although I am not unsympathetic to the challenges of sole practitioners, I note that there are now a wide variety of contracting services available that are designed specifically to provide lawyers for short term assignments to assist sole practitioners or small firms with these challenges…
There are serious delays in the civil litigation system. Those delays are only exacerbated if parties do not adhere to court ordered timetables or do not make timely requests to amend those timetables.
Case timetables are court orders like any other and are meant to be adhered to. [The lawyer] had ample time [seven months], to either seek short term help, agree to a new timetable or seek a case conference to amend the timetable.”
Fail to Delegate? Be Prepared for Reduction of Legal Costs Award
A few months later in the case of North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited, Justice Brown of the Ontario Court of Appeal highlighted the importance of delegating, even for sole practitioners, to keep legal costs reasonable:
“I accept McDonald’s submission that the partial indemnity costs sought by NEC are unreasonable for several reasons…NEC’s counsel failed to delegate a significant part of the work to timekeepers who could have billed less than his hourly rate, which was based on 30 years of experience. While NEC’s counsel may be a sole practitioner, there now exists in Ontario a vibrant market for contract legal services to which an experienced sole practitioner and his client can turn for lower-cost assistance in a case. If a sole practitioner and his client do not avail themselves of that market, then they should reduce claimed party-party fees to reflect that business choice.“
This case confirms that as legal costs must be reasonable, it makes little sense for senior practitioners (even if they are solo lawyers) to be completing and billing for all of the work on the file, especially work that can be delegated either to another lawyer in their firm or to a freelance lawyer. There are freelance lawyers with diverse levels of experience available to assist, including junior and mid-level lawyers for junior and mid-level work.
Rules of Professional Conduct
In addition to these cases, I would add a reminder of our duties as lawyers under the Rules of Professional Conduct to provide our legal services in a competent manner. In particular Rule 3.1-1 sets out a list of skills and attributes of a “competent lawyer” including: “communicating at all relevant stages of a matter in a timely and effective manner”; “performing all functions conscientiously, diligently, and in a timely and cost-effective manner”; and “recognizing limitations in one’s ability to handle a matter or some aspect of it, and taking steps accordingly to ensure the client is appropriately served”.
A lawyer’s ability to competently handle files may diminish when overextended with excessive legal work – putting the lawyer at risk of breaching the Rules of Professional Conduct. Busy law firms or sole practitioners can mitigate against potential ethical pitfalls by outsourcing to a qualified freelance lawyer if they become overextended and are unable to meet their client demands in a timely, effective, and cost-effective manner.
As lawyers, we must represent our clients competently, which means being prepared for court appearances, delegating work that is unreasonable for us to be completing, and seeking assistance when needed to ensure work is completed in a timely manner. As noted by both the Ontario Superior Court of Justice and the Ontario Court of Appeal, experienced, qualified freelance lawyers are ready to assist and make sure you meet your duties as a lawyer. Delegating also frees up more time and can take some of those stressful or boring tasks off your plate so you can focus on more important tasks.
From being the only freelance lawyer I knew in 2013 to being part of a “vibrant market” of freelance lawyers in 2023, it brings me joy to see this non-traditional way of practicing law growing and thriving in Canada.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
