If I am working as an independent contractor doing document review work only, what are my insurance obligations under the Law Society insurance program?
Document review work can encompass many different types of activities and circumstances. In conducting this type of work, it may be that you are not providing any legal service, advice or opinion or using your skills as a lawyer, but rather, for example, are summarizing and condensing volumes of information into a legally digestible format, similar to what you might do if you worked for a legal publisher.
On the other hand, your work may require that you exercise your knowledge, skills and judgement in the law and apply legal principles, as would normally be expected in conducting document review in support of litigation. So, for example, you might be examining a variety of documents, such as memos, letters, e-mails, spreadsheets, etc., for purposes of preparation of an affidavit of documents, or to determine whether the documentation should be turned over to an opposing party in response to a discovery request, or to determine if a particular document is on point with respect to a specific issue/file/case with which the company or other entity that has engaged you is involved.
While both of these document review scenarios may attract liability and should invite consideration of insurance, it is important to consider whether the particular activities and circumstances that you engage in constitute the practice of law, and what the implications of such may be under The Law Society of Upper Canada's insurance program.
In this regard, the Law Society program allows for Exemption from payment of the insurance premium levies of:
"(a) Any LAWYER who during the course of the year(s) will not engage in the practice of law* in Ontario" * "Practice of law" means the giving of legal advice respecting the laws of Ontario or Canada or providing any professional services of a barrister or solicitor for others."
So, for example, if your services are limited to summarizing information into a legally digestible format as one would for a publisher, without a view to litigation, you can expect that this would not be considered as engaging in the practice of law, so you would be entitled to claim Exemption in accordance with Exemption (a) on the basis that you are not engaged in the practice of law in Ontario.
As a lawyer conducting document review services in support of litigation, however, you would generally be expected to exercise your knowledge, skills and judgment in the law and apply legal principles, so you could expect to be seen as engaging in the practice of law (even though a non-lawyer might do some similar work or tasks, like identification, recording and correlation of documents, and not be held to the same standard). In the event that this work requires you to exercise your legal knowledge, skills and judgment, you would not be eligible for Exemption in accordance with Exemption (a).
Some examples of lawyers conducting document review services in support of litigation that involve the exercise of legal knowledge, skills and judgement include:
If a lawyer uses their legal knowledge, judgment and/or skill when working on a matter, it can be expected that the lawyer has engaged in the practice of law.
In determining whether document review services constitute the practice of law, it may be helpful to keep in mind that the following are not considered to be particularly relevant or determinative:
So, for example, you can expect the following statements NOT to be particularly instructive:
Although generally not the case, it is possible that a lawyer may conduct document review services in support of litigation within very narrow defined tasks that may not involve the exercise of legal knowledge, skills or judgment.
For example, if the lawyer reviews documents only for specific keywords, or only sorts documents to and from specific people, or just organises documents within certain defined time periods, and the lawyer is not involved in the determination of the criteria for this work or have other involvement, then the lawyer may in fact not be engaged in the practice of law.
Ultimately, each lawyer must accurately determine if, even in part, the lawyer relies on legal knowledge, judgment and/or skill to perform their work.
Of course, if beyond any document review services that you may provide you are otherwise actively engaged in the practice of law (e.g., as a sole practice), it would be necessary that you continue to purchase the practice coverage under the program from LAWPRO.
If I am working as an independent contractor doing document review work only, and a company that retains me carries its own insurance, does this affect my insurance obligations under the Law Society insurance program and should I be concerned about insurance?
Sometimes a company retaining a lawyer to do document review work will have its own insurance coverage in place that may protect it against claims arising out of that work, and the company may not insist that the lawyer retained to do this work carry their own insurance.
The fact that the company retaining the lawyer has its own insurance, does not mean that the lawyer will qualify for Exemption under the Law Society insurance program, nor can it be expected that the company's insurance will protect the lawyer against claims arising out of their document review work.
Although the company may satisfy its policy obligations and find protection under its policy for claims arising out of the lawyer's document review work, as an independent contractor (i.e., third-party service provider), it is unlikely that the lawyer would be included as an insured under that policy.
As such, no coverage would be provided to the lawyer under the company's policy and the lawyer can expect to be sued by the company and its insurer in the event a claim involving the document review work arises.
So, for example, if a suit arises as a result of a document overlooked by you that might have affected the outcome of a case, as a lawyer providing the document review service, you can expect to be a party to that suit without benefit of defence or indemnity protection from the company's insurer. Indeed, you can expect that insurer to actively ensure that the claim is brought against you and that you are made a party to any litigation.
Your eligibility for Exemption under the Law Society program is not affected by any insurance that a company retaining you may or may not carry. To the extent that your particular document review work is considered to be engaging in the practice of law, you would not qualify for Exemption pursuant to Exemption a) and could expect LAWPRO to defend you against this type of claim as a matter of course and protect you against damages and costs that might ultimately be awarded.
We invite you to consider your possible exposure to claims arising out of your document review work, since this work may attract liability regardless of what may be required of you under the Law Society program or by anyone who retains you.
So when applying for Law Society program coverage, we encourage you to consider your potential liability for your work and whether you might also apply to LAWPRO for additional limit protection under the Optional Excess protection. If you are eligible for and intend to claim Exemption under the Law Society program, we encourage you to consult with your insurance broker for other insurance protection that may be available to you for your work-related exposures.
Whom should I contact regarding possible changes in my insurance status under the Law Society program?
If you are currently providing document review services for a third party and have recently filed or are currently claiming Exemption under the Law Society's insurance program, but now realize that you are not eligible for Exemption, you should contact LAWPRO Customer Service promptly to discuss how coverage can be put into place. You will need to complete an Application Form for program insurance as well as an Innocent Party application, for appropriate practice coverage. We can be reached at 416-598-5899 or 1-800-410-1013; by fax at 416-599-8341 or 1-800-286-7639; or by e-mail at [email protected].
September 15, 2017