My previous blogs this week have reviewed amendments under Law Society of Ontario By-law 7.1, under which it will be mandatory for lawyers in private practice to have a contingency plan in place, and considerations when creating or updating a contingency plan for your practice. During last week’s program, it was emphasized that the new requirements are not intended to be onerous, with the goal of enhancing public protection in the least restrictive way possible. However, complying with the new rules may not be without its challenges for some Ontario lawyers.
In some regions, it may be challenging to find a lawyer willing to act in your absence who is familiar with the relevant practice area. Though there are Ontario lawyers experienced in our practice areas who are prepared to act as replacement lawyers, in smaller communities, these services may be sparse and conflicts of interest are more likely to arise. That being said, with increasing remote meeting opportunities and the continuation of virtual court attendances in many jurisdictions, physical proximity between the planning lawyer and replacement lawyer may be less essential than it was in the past.
The planning lawyer should also ensure that adequate resources will be available to the replacement lawyer for the continued management of the practice if that is the planning lawyer’s intention. A planning lawyer may wish to obtain extended coverage from LawPRO and/or a life insurance policy to ensure that sufficient assets are available to maintain the practice, and that the replacement lawyer and/or employees are not required to work without compensation. Employment law advice may also be needed with respect to the obligations of the planning lawyer to their staff.
Canada’s population, including its lawyers, is aging. Notwithstanding its challenges, the task of contingency planning appears to be worth the effort, especially in this context. The amendment of By-law 7.1 is expected to reduce the numbers of lawyers who begin to consider contingency planning only after a terminal diagnosis is received and/or when their mental capacity is diminishing, which has been reported to have left some planning lawyers spending their last days planning the wind up of their practices. With such high numbers of sole proprietorships or small firms in Ontario, the introduction of mandatory contingency planning has the potential to protect the clients and families of lawyers, as well as the planning lawyers themselves.
As January 2025 approaches, we will continue to share new resources and tips that might assist in addressing any challenges in creating or updating contingency plans. Please feel free to reach out to us.
Thank you for reading and have a nice weekend,
Nick Esterbauer