When exhausted small-firm lawyers, pregnant professionals, and overworked departments in cash-strapped firms are looking for a hero, calling on a legal locum can be the answer to their prayers.
Although the use of locums has never been part of the Canadian legal culture, in countries like Britain, the United States, and Australia it is a long-established and completely unremarkable practice. With the creation of locum registries in two provinces, the time has come for a change of attitude towards the legal equivalent of guns for hire.
Christopher Sweeney, president of ZSA Legal Recruitment, is aware that legal locums are a large and thriving segment of the legal profession in many foreign jurisdictions but has seen very little interest in the concept at home. “It’s the chicken and the egg,” he says. “Law firms traditionally haven’t used them so there is a limited demand. As a result, lawyers are not drawn to doing that sort of work.” He believes there is a stigma attached to locum work in Canada. “There has been a perception that lawyers who are doing short-term contracts are not good enough to get a permanent job. As a result, lawyers are desperate to get a permanent position. They think they will not be taken seriously as lawyers otherwise.”
Sweeney points out that if you don’t have top talent going into the positions, then people’s experience of hiring locums is not as good. “They would rather muddle through and make do. It is a vicious circle and that is why it has been a very low-key and low-profile practice in Canada.” Sweeney believes that attitude is short-sighted. “If there are exciting jobs we can fill them with high-quality lawyers. At the moment, we have a few dozen at any one time but there is not a groundswell of demand.”
In other countries, there is a large demand and good quantity and quality of supply. Kelly Wadkins, managing consultant at Sacco Mann, a British legal recruitment firm, says it is usual to hire a locum when there is sickness, maternity leave, or other reasons for being absent, as well as when there is an influx of work into the firm. “It is a solution that is used across the profession,” she says.
The law societies in British Columbia and Ontario are trying to improve the perception of the practice with locum registries. They are primarily intended to relieve the pressures on small firm lawyers who currently have no way of taking time off and keeping their practices going. The Law Society of British Columbia presented its small firm task force report two years ago and launched its registry a year later, while the Law Society of Upper Canada launched its registry in April 2009 in response to the report on the retention of women in private practice delivered in May 2008.
So far, the response has been modest because only a handful of people have volunteered. “Everyone wants locum relief but no one wants to volunteer,” says Michael Bernard, manager of communications and public affairs at LSBC. “Lawyers are really concerned about establishing a proper work/life balance. Finding a way to get away is a continual challenge.”
The LSBC is now working on promoting awareness that lawyers can use locums as a resource. This may be bolstered by the society’s “business case for the retention of women” which was presented in July. In Ontario, the Justicia Project has been canvassing medium and larger firms across the province as part of a three-year pilot project to advance and retain women in the profession. Tom Conway, who is co-chairman of the retention of women working group, has been hearing a lot of interest expressed in the locum idea, but so far there are no volunteers listed on the web site. “There are some obstacles to overcome in the professional culture,” he confirms.
In Britain there is a professional market of people who choose to become locums. “Often they are quite senior,” explains Wadkins. “They may have reached retirement level but don’t want to give up work or they may have been involved in the management side of a larger firm and now want to work without the politics. Some lawyers choose locum work for the mobility and flexibility. They may work through the school term and take summer holidays off to be with their children. Others use it as an interim measure between jobs or to stave off boredom. There is always a new challenge.” The volunteers on the LSBC registry include a female lawyer with an administrative tribunal background and a male lawyer currently doing doctoral work.
As well as encouraging lawyers to consider time spent as a locum as a valid career choice, potential employers need to overcome their reluctance. Bernard says the concept of a locum works well in the medical profession but acknowledges that the nature of law is not so cut and dried. “We are also finding that the problem concerning small practitioners is not so much getting two to three weeks clear, but containing day-to-day work so they get home at a decent hour during the week and on weekends. We’re yet to see how this concept can help with that.”
Sweeney believes the law societies’ initiatives will probably be of most assistance to the smaller firms, particularly allowing women to take some time off when there is no other readily available fallback. “I’m not sure how much it will be used by larger firms, but there are a lot of small firms in the province. We are hopeful and supportive.” He is surprised demand hasn’t been strong already in light of the recent economic downturn. “Firms are more reluctant to take on permanent staff and more open to a temporary solution,” he observes. “They are more aggressively cost-cutting and so are very cautious when hiring.”
A definite spoke in the wheel is the attitude of some lawyers that no one can properly serve their clients or keep their practices running trouble-free but themselves. John Miller, a managing consultant at Frances Armstrong Associates LLP, another U.K. legal recruiter, says there is always a risk when someone who is not familiar with the workings of the firm steps in. “It is not always the locum’s fault when there is poor feedback. It may be that the systems and procedures of the law firm are at fault. They may not be uniform with other firms’ best practices.”
Duncan Gosnell, executive vice president and secretary of LawPRO, sees the matter in a different light. “It is not a particularly large risk area at all. It is a good thing to have another person involved in a file or taking on leg of a file. Ideally the person is experienced and skilled in that area of expertise. There is a recognition that it takes time for someone to acquaint themselves with a file and get up to speed, but a second set of eyes can see something that is being overlooked. I think lawyers are very diligent in how they approach things on behalf of the client and themselves. I’m very optimistic. I don’t see exposure.”
The locum registry web sites make a point that hiring law firms must do their own due diligence. “If they want to take a break, they need confidence in the lawyer replacing them,” says Conway. “We will do the usual checks on disciplinary history but there needs to be a discussion between the locum and the person who wants a locum.” There can be an advantage to finding locums through an agency. “The best locums have a good reputation and references from their employment for the last two or three years that allow a hiring firm to do its research,” says Miller.
In the event something does go wrong, hiring firms and locums should always make sure their insurance coverage is appropriate for the situation. “People should realize that as the locum is standing in for another person, they are really working in a replacement capacity and are considered to be a member of the firm,” says Gosnell. “That’s how they are viewed by the clients and others. Lawyers must consider coverage and options in that light. Innocent party coverage should reflect that the locum is working as a member of a firm.”
If the locum is maintaining insurance coverage for his or her own practice and does some locum work, the insurance will still be valid but it is important that locums turn their minds to whether their coverage is consistent with the work they will be doing. “If the locum work changes the size of the practice, or if it had previously been restricted to criminal and/or immigration law where there is a discount, there has to be an adjustment to the policy,” advises Gosnell. “Similarly, if the locum will now be doing real estate practice, it is important that the policy coverage reflects that.”
Gosnell notes that there may also be a problem with excess insurance. “LawPRO automatically extends coverage to a locum under the practice of a hiring firm, but there is no standard excess policy coverage wording out there in the insurance industry. It is important that the locum and the law firm obtain confirmation from the excess insurer that the firm is covered. They should also find out whether the locum is covered individually.”
And after all that checking, it may be time to throw caution to the wind and welcome a new wave of lawyers riding to the short-term rescue.