Civility in Action Q&A Series, Part 1

Introducing the Civility in Action column, jointly presented by CBA Alberta and the Law Society of Alberta. Members of the legal community are invited to submit questions anonymously on anything and everything related to civility. If your question is chosen, Law Society Practice Advisors will respond in a future article in this series.

Thank you to everyone who responded to our invitation to submit your questions about civility late last spring. We received several submissions and are looking forward to starting thoughtful conversations through this column, with the help of some engaged members.

This first article will address responsiveness. The submissions revealed a wide range of understandings of our obligations to respond to other counsel. One lawyer expressed concern about opposing lawyers “abusing the requirement to reply by phone the same day to a phone call from opposing counsel” in an effort to “bully me into submission.” Another lawyer raised concerns about counsel ignoring correspondence from other lawyers leading to delays and frustration of the legal process. A third lawyer noted a concern about a lack of substantive response leading to significant delays in concluding a settlement.

Rule 7.2-7 requires that a lawyer “answer with reasonable promptness all professional letters and communications from other lawyers that require an answer,” and that a lawyer must be “punctual in fulfilling all commitments”.

Reasonable promptness and punctuality are context dependent. The critical question is what timeframe supports the appropriate provision of legal services. In some cases that timeframe will be quite short. Reasonable promptness may require a response within 1-2 days as real estate closings and court dates approach. Most of the time, reasonable promptness is measured in weeks.

The published decisions evidence quite a range of delays in response times leading to professional discipline. Canadian law societies have disciplined lawyers for delays in responding to messages requiring a response ranging from 6 weeks to more than 2 years. These cases, of course, turn on their facts and surrounding context.

Responsiveness is a Code requirement, and a core obligation to ensure smooth delivery of legal services. Timely response to communications supports confidence in the profession (Law Society of Alberta v Andresen, 2016 ABLS 43 at para 14). If you stay focused on what the file requires and communicate promptly and professionally you will likely be meeting your obligations. Sometimes part of that communication may be about setting a boundary or identifying a competing need. There are limited situations in which a response within 24 hours is required to appropriately provide legal services. If another lawyer is demanding a response sooner than you think required, it is okay to politely tell them and briefly explain why. As long as you are still responding to communications in a reasonable time considering the activity on the file, and punctually fulfilling commitments, you will be meeting your obligations under Rule 7.2-7.

What if you are concerned about a lack of response from another lawyer? While the lack of response may be a breach of the Code, it does not trigger the duty to report, per Rule 7.1-3. Consider what needs to happen next on the file. You might seek instructions to take the next step or make a court application. You might also consider additional efforts to secure a response from the other lawyer before proceeding. You could report a lawyer for breach of Rule 7.2-7. You could also exercise your professional judgment to try and effect compliance. This has the advantage of affording the other lawyer an opportunity to gain insight outside the disciplinary process, which may preserve a positive professional relationship, and help ensure appropriate use of regulatory resources.

In most cases, the Practice Advisors recommend making some efforts to investigate a lack of response before reporting another lawyer. First, make sure you’ve tried all forms of contact in case there may be an issue with your usual method of connecting with counsel. Be polite, professional, and clear. Sometimes, frustration leads counsel to say more than is necessary, which can be counterproductive. It is usually enough to note that you are concerned because you have not seen a response to your prior communication and ask the other lawyer to respond within a specified time. Make sure that the specified time is reasonable in context. If you communicate with the lawyer via phone, it may be helpful to send a message requesting response in written form (email or letter) to ensure you can retain a record.

If the unresponsive lawyer works with staff or other lawyers, consider contacting them to confirm if the lawyer can respond to messages, and if not, if someone is covering their practice. If that is not an option, consider whether there may be anyone else you could contact to check-in on the other lawyer’s circumstances. It is also prudent to check the Lawyer Directory to confirm the Lawyer’s practicing status, and review Law Society notices to see if there has been a custodian appointed for the lawyer’s practice.

When, after making every effort to contact another lawyer you are still not receiving a response or a reasonable explanation for the time taken, you may need to report the lawyer to the Law Society.

If you have a question or scenario you’d like us to consider for inclusion in an upcoming column, you may submit it anonymously via the Law Society of Alberta website.