Delegation Claims

This article was originally published by LIANS (Lawyers’ Insurance Association of Nova Scotia). The original article can be found here.

Lawyers are busy, a colloquialism if ever there was one.

And it is because you are busy that you refer a lot of work to your staff – assistants, paralegals, law clerks and yes, articling students.

A lot of our claims arise from lawyers not properly overseeing delegated work. Often lost is that lawyers are ultimately responsible for their delegated work, these responsibilities including:

• supervising staff, which includes the lawyer personally reviewing delegated files at regular intervals and checking the work;

• training staff, which can be, probably is, more than just providing a checklist. This can include explaining the need for certain steps and why things are done a certain way;

• encouraging staff to ask questions if they see something odd; and

• having a backup plan if a person leaves, takes a vacation or is fired.

In a 2023 decision from B.C., there is this:

[14]      The plaintiff says that the doctrine of laches applies, and that the defendant is now barred from insisting on strict compliance due to the unreasonable delay in complaining about the mode of service of the notice of trial.  The defendant’s [lawyer’s] various explanations for the delay are: 

a)   She did not read the June 8th, 2022 email from the plaintiff’s counsel’s articled student or noticed that it had an attachment as she received many emails and her name was misspelled in the salutation;

b)   She did not expect a trial to be booked on a date that she had not provided as an available date;

c)   The trial date was not noticed by her staff and not put into her calendar, and she relies on her staff regarding her availability;

d)   When reading the September 9th, 2022 email from the plaintiff’s counsel, she “did not mentally register at that time that this trial date had been booked unilaterally and that no notice of trial had been sent to defendants by the plaintiff.  This was three months after the last communication from plaintiff’s counsel’s articled student.  The same day, counsel for the defendant signed the consent order and returned it to counsel for the plaintiff as requested”, and

e)   The legal assistant who sent the October 3, 2022 email was incompetent and subsequently fired.

[15]       The court has little, if any, sympathy for counsel in blaming their staff for their oversights.  The emails in question were sent directly to the defendant’s counsel, not to her legal assistant.  It is counsel’s responsibility to supervise and oversee their staff and management of their cases.

In this case, the defendant’s request to adjourn the trial was denied.

For professional liability insurers like LIANS, these arguments will not prevent liability from attaching to the lawyer. In fact, arguing that it is the staff’s fault often makes things worse.