Criteria for the Use of Outside Counsel

Criteria for the Use of Outside Counsel and Process for Obtaining Expressions of Interest from Qualified Practitioners  

 JANUARY 2011 

1. Why outside counsel are retained
2. General principles for selection of outside counsel
3. Choice of counsel
4. Expressions of Interest

 

1.  Why outside counsel are retained

Outside Counsel are retained by Professional Regulation from time to time to support the Law Society’s regulatory response activities including investigations, expert evidence and opinions, prosecutions, and acting for the Society before the Courts in unique matters requiring special expertise. 

Counsel may be retained:

  • When a conflict or potential conflict prevents Law Society staff from working on the case.
  • When specific expertise is needed that does not exist in-house, for instance when a case in Discipline is complex or unique.
  • When the Society requires an expert legal opinion and/or testimony, for instance to help in determining the acceptable practice standard in a given area of law.
  • To assist lawyers who are incapacitated.
  • To prosecute or seek injunctions in unauthorized practice cases (UAP).

Outside Counsel are retained by Legal Affairs to assist it in fulfilling its role as the Law Society’s general counsel.

Counsel may be retained:

  • To provide legal opinions and/or advice on any number of matters, including corporate law matters, employment law matters and administrative law matters.
  • To respond to or initiate legal proceedings on behalf of the Law Society (e.g., applications to the Human Rights Tribunal of Ontario; applications for judicial review, applications to respond to subpoenas and summonses, both criminal and civil, other applications, actions).
  • To draft or review and advise on the contents of a contract (e.g., construction contracts, IT contracts).

2.  General principles for selection of outside counsel

These considerations will drive the selection of outside counsel by Professional Regulation:

  • Counsel must be skilled, experienced, trustworthy, reputable, fair and objective individuals who are capable of appropriately representing the Law Society’s interests.
  • In most cases, counsel will have specific experience with the kinds of matters in respect of which counsel is being retained, and counsel will also have past familiarity with the Law Society and its role and structure as a regulatory body. In most cases, counsel will be knowledgeable with regard to general administrative law principles.
  • Counsel will reflect the various geographic regions of the province, the diversity of the province and of the profession and differing practice types and sizes.
  • Counsel will be selected from firms that operate in a manner consistent with the Society’s commitment to equity, equality and anti-discrimination.
  • Counsel selected to represent the Society must not have a material complaint history with the Society.
  •  Counsel must demonstrate an ability to complete legal work in as efficient, cost-effective and competent a manner as possible, and must agree to regular formal and informal performance monitoring by the Society to ensure compliance.
  •  Counsel must be a member of the Society in good standing, fully familiar with the Law Society Act, Rules of Professional Conduct, Regulations, By-Laws, etc. 

 

3.  Choice of counsel

In addition to the General Principles, the choice of particular counsel will be determined by:

  • Urgency – is the matter of an urgent nature, requiring counsel who is able to respond on short notice?
  • Experience – does the matter require counsel with demonstrated experience in the particular type of matter; e.g., expert opinion, administrative or quasi-judicial proceedings?
  • Geography – does the matter necessarily lend itself to someone in a particular area of the province?
  • Reputation – does the nature or seriousness of the matter, both in terms of public and member interest, require counsel with a strong and well-recognized professional reputation?
  • Systems – is the matter complex, or may it otherwise require counsel with firm staff and other support systems, including associates or partners with knowledge of other areas of law, to ensure competency and cost-effectiveness in carrying out the retainer; e.g. large investigations?
  • Length of commitment – is the matter likely to be resolved or completed within a shorter time frame, or might it require a significant time commitment; e.g. a contested hearing, or significant investigation?

 

4.  Expressions of Interest

Requests for Expressions of Interest:  From time to time the Law Society will publish a notice asking for expressions of interest in Law Society retainers from lawyers who satisfy the criteria set out in this guideline. 

An interested lawyer is required to provide a curriculum vitae (including contact information) as well as a covering letter explaining how his or her qualifications meet the criteria set out in this document.   Those filing an expression of interest must provide the Society with the names and contact information of no fewer than one (1) and no more than three (3) professional references who are able to attest to their ability to perform the type(s) of work required by the Society.  

The Law Society will maintain a list of all lawyers who have expressed an interest in acting for the Society however their qualifications will not be reviewed for compliance with the requirements in this guideline unless the Society requires their services.  The lawyers on the list will be notified that their information will be kept on the list for three years after which they must re-apply. They will also be notified that the Society will not contact them further unless a retainer is contemplated.

The Law Society makes no promise or commitment to retain anyone who has filed an Expression of Interest, whether or not that person satisfies the listed requirements, nor is the Society restricted to the list of those who have Expressions of Interest on file, in determining whom to retain for specific matters.