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Are you a magnet for risky business? Back-to-basics: The good, the bad and the ugly

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Title: Are you a magnet for risky business? Back-to-basics: The good, the bad and the ugly


1
Are you a magnet for risky business?
Back-to-basics The good, the bad and the ugly
Non-Risky Business LIANS Risk and Practice
Management Solo/Small Firm Conference November
29th, 2010
  • Philip J. Star, Q.C., Jeanne Desveaux and
    Catherine S. Walker QC

2
Property Practice See? I have the downpayment
...
3
Fact Situation 1 Looks May be Deceiving
  • Middle-aged and
  • well-dressed woman as client
  • ... beware?

4
Some safety tips
  • Get your client identification early. Any
    misspellings or inconsistencies ?
  • Using a newly incorporated company?
  • Dealing with a traditional lender or secondary?
    Are there written assurances that financing is
  • secured?

5
Remember ...
  • Not all fraudsters come in con-artist like
    packages and they LOVE sole practitioners ...
  • Cover off whatever due diligence is required -
    notwithstanding your clients insistence
    otherwise. Document advice your client insists on
    waiving
  • Dont allow your good reputation to be used to
    your clients advantage and your detriment

6
Work/life balance or not
7
Question 1 can you say no?
  • Ask yourself
  • Is this matter outside of my area of
    comfort/competence? If so, say no.
  • Is the clients expected timeline reasonable for
    the work done?
  • If not, say no.

8
Urgent?? What isnt?
9
Question 2 Do you have a crystal ball? How good
will your memory be?
  • Your memory, and that of your
  • client will fade over time
  • Document your instructions what you are not
    doing and advice that your client has not taken
  • Understand your clients expectations - no way to
    know what they may deem important in the future

10
Question 3 Do you Answer the call?
  • The use of DND - Is this your way of finding the
    time to get to those files that need your
    undivided attention?
  • How do you manage the telephone and email
    messages from clients and other lawyers?
  • Do they get answered in a timely manner?

Ensure your messages and emails are answered. You
will sleep better for it.
11
Time management
12
Elder law Legal Issues Red flags best practices
Decisional capacity includes at least four
components
  • Understanding information relevant to the
    decision
  • Appreciating the information
  • (applying the information to ones own
    situation)
  • Using the information in reasoning
  • Expressing a consistent choice
  • (Dunn et al.)

13
Elder law red flag
  • Inquiry or appointment with lawyer made by an
    adult child, other relative, or friend who
    insists that
  • He/she accompany the client to the appointment
  • Be present for the entire assessment and/or
    appointment

14
Elder law red flag
  • The person accompanying the client/patient
    attempts to answer questions before the
    individual has an opportunity to respond

15
Elder law red flag
  • The individual looks toward the person
    accompanying him or her before responding

16
Elder law red flag
  • The individual accompanying the client
    attempts to instruct you on what you should do or
    tries to provide instructions over the telephone

My mother wants to make a Power of Attorney
appointing me as her attorney
17
Elder law red flag
  • You are requested to draft a document for
    someone to pick up because it is not convenient
    to attend your office

18
A power of attorney can
  • Provide a client some level of comfort that their
    wishes will be carried out regarding their
    property and person
  • Make things easier for loved ones in the event
    that a person becomes incapacitated

19
A power of attorney cannot
  • Guarantee that the clients wishes will be
    carried out regarding their property and their
    person
  • Guarantee that things will be easier for their
    loved ones in the event he/she becomes
    incapacitated

20
Some suggestions for best practices
  • Always meet with your client alone
  • Confirm who you are representing
  • Arrange for ILA
  • Large font /appropriate lighting
  • Do not assume literacy
  • Accounting provisions in
  • powers of attorney

21
Criminal Law Practice
22
Criminal practice Scenario 1
  • An accused person phones you from the police
    station attempting to exercise his right to
    retain and instruct counsel pursuant to Section
    10(b) of the Charter.
  • This person has been arrested by the police,
    who are investigating a criminal offence and want
    a statement from the accused.

Even fish wouldnt get in trouble if they kept
their mouths shut
23
Criminal practice Scenario 2
  • Be aware of the source of your clients funds
  • Are there times you may not want to accept cash?
  • Or a cheque?

24
Trial pressure
25
Criminal practice Scenario 3
Confirm the nature of your retainer and/or advice
that you had given to a client
  • Document..document..document
  • Written instructions from the client are crucial
    - accused persons may develop
  • amnesia as to the nature
  • of the advice given

26
Managing the Paper or not
27
Criminal practice Scenario 4
Be careful not to be drawn into a tangled web
that your client may weave.
  • Counsel is the clients advocate, not the trier
    of fact.
  • Be aware of the pitfalls and the potholes as they
    can be very quick to gobble you up.

28
Questions for the panel?
  • Yes Virginia, there is a Santa Claus
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