Insurance for Lawyers Providing Pro Bono Services - Information Sheet
For most lawyers, paying the annual insurance and maintaining the Law Society of British Columbia’s professional liability insurance is mandatory. Some lawyers however, such as retired and non-practising lawyers, or in-house counsel, are exempt from this obligation and accordingly do not maintain insurance. To encourage these otherwise uninsured lawyers to provide pro bono legal services, the Law Society has arranged for the provision, without cost to these lawyers, of insurance for certain pro bono legal services. Note, however, that this insurance will also benefit lawyers in practice who do pay the insurance fee, provided the other requirements for this particular insurance are met. The benefit to lawyers who carry insurance are that the normal financial consequences that arise if a claim is paid by the insurer (which, by way of reminder, we set out below) are waived.
How does one get coverage?
The insurance provided is not comprehensive coverage. Coverage is provided for “sanctioned services,” which is a defined term in the insurance policy. Services are sanctioned, and you will be eligible for coverage, if the services:
(a) are provided without financial gain;
(b) by a lawyer who is a member in good standing with the Law Society;
(Persons who have not maintained their membership in good standing with the Law Society are not entitled to the benefit of the coverage.)
(c) to an individual;
(Pro bono legal advice provided to an organization, firm, company or partnership is not covered by this insurance.)
(d) who was not previously known to the lawyer;
(Pro Bono advice to friends, relatives and acquaintances, for example, is not covered.)
(e) who is of limited financial means;
(The approved program will have a policy that defines this requirement.)
(f) only through a program approved for insurance purposes; and
(A list of those programs is available at www.accessprobono.ca.)
(g) the services provided fall within the approved category of services.
A list of the category of services approved since July 31, 2004 is attached. The list is also available through Access Pro Bono Society of British Columbia or on its website at www.accessprobono.ca.
Points to Note
The list of programs and services approved for insurance purposes may be changed at any time. Current lists of approved programs and services may be found on Access Pro Bono Society of British Columbia’s website at www.accessprobono.ca, and lawyers are encouraged to review the website from time to time to see if any changes have been made. There is no obligation to notify any person of a change in status of a program, or of a change in the services for which insurance is available. The obligation rests with the lawyer to ensure that, at the time pro bono services are provided, the program and services are still approved for insurance purposes. Any change to a list will take effect 14 days after the change is posted to the website.
A reminder that, as with any policy of insurance, there are other terms and conditions in the insurance policy that may limit coverage. All lawyers will want to familiarize themselves with the terms of the insurance policy, and are reminded of their obligation under the insurance policy to report claims or potential claims immediately. A copy of the current insurance policy is available in the Member’s Manual for Law Society members, as well as posted on the Law Society’s website (www.lawsociety.bc.ca) – go to Lawyers and Insurance.
What are the benefits of the insurance?
Apart from the obvious benefit of having insurance for the advice provided, the normal consequences that flow from the insurer paying a settlement or judgment on your behalf are waived.
• the lawyer’s deductible of $5,000 (first paid claim) or $10,000 (subsequent paid claims within three years of the report date of the first paid claim) is waived;
• the lawyer’s surcharge of $1,000 per annum for five years (not exceeding the amount paid by insurer), is waived; and
• the lawyer loses eligibility for the part-time discount (lawyers who work only a certain number of hours per week on average receive a 50% discount in their insurance premium).
In addition, lawyers who pay the annual insurance fee and are claiming the part-time discount need not include any of the hours spent engaged in sanctioned services in their calculation of hours thus your part-time discount is not jeopardized by providing sanctioned services.
What is the responsibility of the lawyer?
When providing pro bono legal services, lawyers are expected to meet the same quality and standard of service as would be provided to any client. In that regard, lawyers providing pro bono services are reminded of the following practices. Obviously, some of these apply more to circumstances where you assume conduct of a file or matter than to the provision of advice provided at a clinic.
• ensure that the services provided are within your area of legal competence;
• ensure that you are not acting in a conflict of interest;
• clearly communicate to the client the scope of your retainer, including any limitations;
• establish and maintain a basic system of record keeping that includes, as a minimum, client name and contact information, dated descriptions of the services provided and advice given and, if the retainer requires, copies of relevant documents such as correspondence, pleadings, contracts;
• establish and maintain, as appropriate, a bring-forward system and limitations system, and other such documentation and processes as may be necessary to support a client file;
• maintain the records, including any electronically stored records, in confidence, free from any inadvertent unauthorized disclosure;
• establish and maintain a records retention policy;
• if there is any possibility that you may be properly served with documents on behalf of a pro bono client, ensure that the client and any other relevant persons, such as opposing counsel, are advised if you move location or are for any reason unavailable;
• consider having a written plan in place for dealing with files and clients in the event of your death or incapacity; and
• maintain your membership with the Law Society in good standing.
What is the responsibility of the Approved Program?
Insurance coverage is not provided for the organization that offers the program, or its officers, directors or employees.
The Law Society does however expect a program to play a role in risk management or risk reduction in relation to possible claims. To be approved for insurance purposes, a program has agreed with the Law Society that it will:
(a) maintain a policy regarding a client’s financial or other eligibility for pro bono assistance which is consistent with providing services to individuals of limited means, and establish written guidelines to determine an applicant’s eligibility for service based on that policy;
(b) create and maintain a record of:
• the lawyer’s name and Law Society member number;
• the client’s name;
• the date(s) the services were provided; and
• a brief description of the services, sufficient to determine if it is, prima facie, a service falling within the list of approved services;
(c) ensure that lawyers providing pro bono services through the program are provided with a copy of this Information Sheet, and obtain written confirmation from each new volunteer lawyer that the volunteer has read and understood the Information Sheet; and
(d) refuse to accept as a program volunteer any lawyer who is not, or who ceases to be, a member in good standing of the Law Society.
In addition, if the program also uses volunteer law students, advocates or paralegals (collectively “advocates”) to provide its services, it has agreed that it only uses its volunteer lawyers to provide pro bono legal services to an individual either directly or indirectly by giving legal advice to an advocate on behalf of an individual. It has also agreed that any separate services provided by an advocate are the responsibility of the advocate alone, and to require a client seeking pro bono assistance to acknowledge in writing the volunteer lawyer’s limited role.
Pursuant to this agreement, the insurance can be cancelled or revoked. The insurance might be revoked if the Lawyers Indemnity Fund, (the department of the Law Society that manages lawyers’ insurance), becomes aware that the required records are not being maintained by a program, if the program appears to be providing legal services that are not sanctioned services or if there appears to be an inordinate number of claims against lawyers providing pro bono legal services through a particular program.
APPROVED SERVICES SINCE JULY 31, 2004
Pro bono legal services approved for the purposes of the B.C. Lawyers’ Compulsory Professional Liability Insurance Policy by the Law Society of British Columbia (“approved services”) effective September 1, 2002.
If services* are provided in any of the following areas:
1. Contract (includes consumer law)
2. Constitutional Law
3. Criminal (includes criminal defence, Young Offenders Act, criminal injury and victim assistance)
5. Debts and Collections (includes foreclosures, builders liens)
6. Employment Law (includes employment insurance, harassment)
7. Family and Child Law (includes divorce, child welfare, adoptions)
8. Health, Disability and Social Assistance (includes mental health and adult guardianship, workers compensation, income maintenance)
9. Human Rights (includes police complaints, prisoners’ rights)
11. Taxation and GST
15. Pension and Benefits (includes CPP/OAP/BC Benefits)
17. Wills and Estates
a) Professional Services Complaints
b) Name Changes
c) Notarizing or Taking Affidavits**
they are approved services, unless they relate in any fashion to:
1. Estate (tax) planning or trusts set up for tax purposes***
2. Environmental Law
3. Native land or other Native property claims
4. Defence or prosecution of class or representative actions.
If services are provided in an area of law that is either not listed or is specifically excluded, they are not approved services.
*The services may relate to or consist of substantive or procedural law, summary advice, solicitors’ or litigators’ work, transactional services or administrative law.
**Only if the lawyer providing the services is a practising lawyer, as only practising lawyers are entitled to exercise the power of a Notary or take affidavits.
***Includes services relating to tax driven wealth management plans, but not tax advice incidental to advising on simple wills and estates.
****If you are a lawyer wishing to provide pro bono support to refugee sponsor groups navigating the sponsorship process, please note that the Syrian and Iraqi Refugee Program is approved by the Law Society for insurance purposes. As a result, coverage is provided for 'sanctioned services'. The requirements for sanctioned services are set out above, under the heading "How does one get coverage?" As services given to a refugee sponsor (individual or group) are for the benefit of a refugee (family or individual), the services are considered to be provided 'to an individual'. Further, the approved program's responsibility to create and maintain a record of the client's name is met by listing the name of the refugee sponsor and, if known, the refugee.