February 1, 2012

Quality of service requirements are the same for pro bono or legal aid work

February 1, 2012

The Professional Conduct Handbook requires that a lawyer provide a quality of service to clients that is at least equal to what would be expected of a competent lawyer in a similar situation (Chapter 3, Rule 3). Standards are not relaxed when a lawyer is acting pro bono or if the file is funded by the Legal Services Society (LSS).

Chapter 3, Rule 3 also sets out a non-exhaustive list of ways quality of service can be measured, which includes:

• keeping the client informed and answering reasonable requests for information;
• doing the work in a prompt manner so that the value to the client is not diminished or lost;
• performing legal tasks accurately;
• disclosing all relevant information to the client; and
• maintaining office staff and facilities adequate to the lawyer’s practice.

A retainer agreement for pro bono services or an arrangement with the LSS may limit the services being offered and, if so, it is important that the lawyer’s responsibilities and the client’s responsibilities are clearly set out. 

However, a retainer agreement may not include any agreement that a lesser quality of service will be provided. Such a term may be unconscionable and would be unenforceable given the provisions of Chapter 3, Rule 3 of the Handbook.

The LSS can refuse pay a lawyer’s fees if the services provided are not reasonable and necessary to advance the client’s best interests or if the services are performed “inadequately” (LSS Tariff, General Terms and Conditions, section 6).

In Law Society of BC v. Cunningham, 2007 LSBC 17, a member was disciplined for failing to respond to the Law Society and to LSS regarding a complaint made to both organizations from a legal aid client. In its decision, the panel noted that the services were funded by LSS and recognized the importance for lawyer to respond to both the Law Society and LSS:

It is hardly necessary for us to repeat what many panels before us have said, which is that the [Law Society] cannot satisfactorily discharge its function of over-seeing the conduct  of its members unless the members respond as required to [Law Society]  investigations.  The same must be said about inquiries concerning member conduct initiated by the LSS.

It is important for lawyers to remember that just because they are not asking for, or receiving their usual fees for services, does not mean they are exempted from providing services that meet the expected standard.

If a lawyer does not have the capacity to give a client matter the proper attention necessary to ensure that the services meet the expected standard, then the lawyer should decline to act for the client, regardless of whether the services will be paid for by the client, by LSS, or provided pro bono.

Lawyers are reminded of the need for strict compliance with the Legal Profession Act, the Law Society Rules and the Professional Conduct Handbook.  Read them carefully, and if you have any doubts, contact a Practice Advisor.