This unbundling of legal services means a lawyer can represent a client for only a part of a legal proceeding, such as providing assistance with writing affidavits or cross examining witnesses.
Updates to the Nova Scotia Barristers’ Society’s Code of Professional Conduct provide more specific rules for providing limited representation. The new rules are aimed to improve ethics and competence of lawyers providing these services.
The provisions are aimed to “expand access to legal services and broaden availability,” says NSBS executive director Darrel Pink. He adds that limited retainers provide a “middle ground” between full representation and self-representation, as well as an alternative to duty counsel.
The Federation of Law Societies of Canada found a lack of guidance for limited scope legal services and procedures last year. Nova Scotia’s new rules aim to address the federation’s concerns.
The rule changes emphasize communicating effectively with clients in order to avoid confusion about the extent of limited scope services. Lawyers are asked to clearly lay out the limitations in writing and confirm what the lawyer agreed to do and what the client is responsible for doing themselves.
One of the new provisions states, “Before undertaking a limited scope retainer, the lawyer must advise the client about the nature, extent, and scope of the services that the lawyer can provide and must confirm in writing to the client as soon as practicable what services will be provided.”
A new rule has also been added to clarify how opposing counsel can deal with a limited scope client.
“Lawyers under limited scope retainer can talk to clients on the other side,” says Pink. Opposing counsel can communicate with the client without the lawyer’s consent, unless communications and dealings fall within the scope of the retainer.
Similar rules are already in place in British Columbia, Alberta, Manitoba, and Ontario.
Pink says, “I can’t imagine any area of the law that doesn’t benefit from this.”
The areas of practice most affected, he says, are criminal and family law. In criminal court, limited scope retainers can help solve some of the discrepancies caused by legal aid.
“This allows legal aid to potentially do intake work beyond duty counsel,” says Pink.
In family court, lawyers can be retained to file documents without appearing in court, “because the intake process in family court is highly paperwork focused.” Similarly, “in small claims court, lawyers can offer a fixed fee for providing specific documentation.”
In corporate and commercial law, limited scope retainers can be used for “assistance in one precise part of a transaction,” leaving the parties to negotiate among themselves in other areas.
Lawyers can also provide “limited services in traffic court,” says Pink.
The courts don’t necessarily need to be told when a client has a limited retainer.
“You don’t always need to advise the court when it could cause a disadvantage,” says Pink. That may be in situations such as settlement negotiations when offers are only available for a certain period of time.
But Pink emphasizes although lawyers aren’t obligated to disclose limited retainers to the court, the retainer must be “always clarified with the client.”
Pink’s main concern is the financial and legal benefit that people of Nova Scotia will now receive thanks to the new provisions. But lawyers can potentially benefit as well.
“It will be up to lawyers to determine how to take advantage of this,” but “lawyers could do some very niche things in high volumes and make a profit,” he says.
For complete details, visit the Regulation page of the NSBS’s web site for the Code of Professional Conduct, and see the newly amended Rules 1.1-1, 3.1-2 and 7.2-6, and the additions of rules 3.2-1A and 7.2-6A.