Tag: professional conduct
Lawyers lead busy lives, that much is undoubtedly true. In having to juggle multiple files and professional responsibilities (not to mention commitments to both friends and family) one of the first things that a lawyer must learn to do is prioritize tasks, getting to the most urgent matters immediately, and leaving less urgent tasks to be completed at a later date.
Under most circumstances this arrangement works fine. Clients with urgent matters will get their matters dealt with right away, while client’s whose matters are not as urgent will get their matters dealt with within a reasonable amount of time (although perhaps not as quickly as they may like). But what happens when a task that was placed on the back burner is left there too long? What happens, for example, when a client who retained a lawyer to draft their will dies before the will is executed? Was the lawyer negligent in placing the will on the back burner for too long?
Whether a lawyer will be found to have been negligent in not preparing the client’s will before they died will depend on the circumstances of the case. The first place to look in determining if a lawyer met their expected level of competence is the Law Society’s Rules of Professional Conduct. Rule 2 sets out some of the basic parameters regarding the expectation of diligence and timely advice in the estate planning, and includes the provision that a lawyer will perform all functions "conscientiously, diligently, and in a timely and cost-effective manner."
Rosenberg Estate v. Black,  O.T.C. 939 (ONSC), provides a list of factors that the court is to take into consideration when determining if a lawyer was negligent in not preparing the client’s will before they died. These factors include:
i. The terms of the lawyer’s retainer – whether a precise timetable was agreed upon;
ii. Whether there was any delay caused by the client;
iii. The importance of the will to the testator;
iv. The complexity of the job;
v. The circumstances indicating the risk of death or onset of incapacity in the testator; and
vi. Whether there has been a reasonable ordering of the lawyer’s priorities. That is, whether the client has the right to expect that the job will be done within a reasonable ordering of the priorities in a lawyer’s life and practice.
Not all lawyers who fail to prepare the client’s will before they die will be found to be negligent. Each case will be fact specific, and look to the circumstances of the case with reference to the factors listed in Rosenberg Estate. Prioritizing work is simply a fact of life for most lawyers. In prioritizing their work however, a lawyer needs to ensure that they are not negligent to their client’s needs.
Ian Hull – Click here for more information on Ian Hull.
Listen to Passing of Accounts and a Joint Retainer
This week on Hull on Estates, Craig Vander Zee and David Smith discuss conflicts of interest during Passing of Accounts trials and rules of professional conduct.