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AuriandFoxen

What are the signs that you shouldn't accept a hireback, and what is the etiquette?

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After clerking for 10 months, I have been at my firm for 4 months. I am feeling pretty negative about the experience, and I don't chalk it up to the difficult transition to private law or working virtually. I am concerned by the way the lawyers run files (missing filing dates, not communicating with clients, acting without instructions), as well as the lack of support or education I'm getting. If I'm just being a spoiled articling student and I just need to suck it up, I am absolutely willing to do that. But I think i need some outside perspective.

What are the good reasons for not accepting a hireback (if even offered)? When do you know that you are just being challenged by the transition to private law? What is the etiquette behind leaving or sticking around (I know they have invested in me as an articling student and I feel bad leaving them high and dry once I'm done articling)?

Thank you and please be gentle. If I'm just being a spoiled articling student I totally understand.

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27 minutes ago, AuriandFoxen said:

After clerking for 10 months, I have been at my firm for 4 months. I am feeling pretty negative about the experience, and I don't chalk it up to the difficult transition to private law or working virtually. I am concerned by the way the lawyers run files (missing filing dates, not communicating with clients, acting without instructions), as well as the lack of support or education I'm getting. If I'm just being a spoiled articling student and I just need to suck it up, I am absolutely willing to do that. But I think i need some outside perspective.

What are the good reasons for not accepting a hireback (if even offered)? When do you know that you are just being challenged by the transition to private law? What is the etiquette behind leaving or sticking around (I know they have invested in me as an articling student and I feel bad leaving them high and dry once I'm done articling)?

Thank you and please be gentle. If I'm just being a spoiled articling student I totally understand.

Get out of there. That environment ain’t gon do you no good.

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Ethical considerations are major. You are seeing some big red flags that go beyond “firm culture” into “law society concerns”.

Do not work there if they offer you a job. And depending on what you are seeing you may wish to consult with a bencher - there may be an obligation to report but I do not know your province or how articled students are treated and you definitely shouldn’t post any details here. 
 

Keep your own ethical standards high and get your instructions in writing as much as you can. Take care of your own reputation and tread carefully. 
 

Good luck. 

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1 hour ago, Hegdis said:

Ethical considerations are major. You are seeing some big red flags that go beyond “firm culture” into “law society concerns”.

Do not work there if they offer you a job. And depending on what you are seeing you may wish to consult with a bencher - there may be an obligation to report but I do not know your province or how articled students are treated and you definitely shouldn’t post any details here. 
 

Keep your own ethical standards high and get your instructions in writing as much as you can. Take care of your own reputation and tread carefully. 
 

Good luck. 

Thank you for this. I was thinking of talking to someone at the law society so this is affirming.

Edited by AuriandFoxen
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I'll echo what @Hegdis said, and add a bit more. Diarize everything religiously going forward if you haven't. Meetings, emails, instructions, ethical questions/concerns. Contemporaneous notes could very well save you going forward. Be detailed, date everything. Hard copy, not something you can be locked out of electronically. (Note: be sure you uphold your confidentiality obligations here too. This isn't something you leave on your nightstand). 

This doesn't sound normal at all, and I'm really sorry this is your situation. Please, please do everything that is required of you to CYA, up to and including contacting the law society, if it rises to that level.

Edited by whoknows
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Okay, I'm going to break from everyone else who has posted so far, and I feel I need to start by explaining why. I am not confident I know what's really going on here, yet. I am not confident enough in the OP's perspective to take some of what they are saying at face value. I'll explain why. I believe the OP is sincere in their concern and they are not being intentionally misleading. But there are a few things here that are subtly off - again, suggesting some oddities in perspective, not in sincerity - and it's enough to give me pause.

First, let's get the obvious out of the way. You don't need a reason at all - much less a good one - to not take a job you don't want. If you don't want to stay where you are, don't stay. This is such a no-brainer that no one has really commented on it yet but to me the fact that you're unsure of something this basic is part of what makes me question what follows. You've mixed this concern with other things so much that the most obvious point has been obscured, but it's really this simple. If you don't want to accept a hireback offer, should you get one, just don't. There's no etiquette more complex than that. It's just a job. If you don't want it, don't take it.

Second, you've cited a lack of support and education. Again, this hasn't really been commented on because it's dwarfed by the elephant you've raised afterwards. Feeling that your articles aren't what you hoped for and that you aren't learning properly or being taught properly is a very common sort of concern. There may be substance to this concern or less substance - hard to say right now. But this is the sort of thing you raise maturely with your Principal and which only turns into a complaint to the relevant Law Society in the most extreme of situations.

Third, you've cited concerned about the nature of how your firm is functioning that goes straight to the most basic ethical obligations of the lawyers who are there. And that's why everyone has responded the way they have. That's huge. It's nuclear. And it may end up with you reporting them to the Law Society or doing something else similarly extreme. But this concern has literally nothing to do with the previous two points, and the fact that you've raised all three together is (due respect) really, really weird. And it makes me question everything.

Let me put it this way. It's like if you heard from someone working at a nursing home, and they said "I'm not sure how I feel about this place - my benefits aren't being calculated properly, and I felt mildly uncomfortable when my boss commented on my outfit and I feel like he was implying something, and also one of the nurses is probably euthanizing patients by intentionally overdosing them. Do you think all of this suggests a problem of some kind?" When someone says that, I don't know what to believe. I mean, I really don't know what to believe. The last concern is so fucking crazy I can't ignore it. But I'm also thrown by the context in which it occurs.

My most central advice is this. Don't rely on anything you hear here, where you need to be vague and careful about saying too much. Reach out to a senior practitioner in your field that you can trust. Network until you find one. Then have a real conversation with details and specifics. Let the senior lawyer guide you around confidentiality issues. Very likely, if you retain them yourself (for a dollar, or whatever) you can navigate that easily. You need more than the advice you'll get here. Because right now, I really don't know if you're working for a nightmare firm or if your sense of what's normal is just completely out of whack.

Now I know there are lawyers here who are going to jump all over me for suggesting that any amount of what you've described could be normal or tolerable. And you know what? Unless and until you've been in the trenches of a small practice, just seriously stuff it on this one. I've acted without client instructions. Sometimes I've had absolutely no choice. I've missed things, failed to diarize, and occasionally had clients get pissy for my perceived lack of timely responsiveness. And let me be clear, I am easily on the more organized side of the spectrum, relative to many of my peers. That's just what the practice is, in what I do. And without any clear sense of what the OP is even doing, much less the specifics of the concerns they have, I really can't tell how bad this is. I know some will say any amount of this is radioactive. But there's simply a gap between the ideal and the practical on some of this. And lawyers with well-resourced practices who serve wealthy and well-organized clients may simply not realize what the reality is like down in the trenches.

All that said, I am not saying there is not a serious problem here. There may well be. The problem I'm having is that once I've called the OP's sense of proportion into question (and I really do believe it's questionable) I don't know what to really believe or what I can go on. Which is where I come back to this. Talk with someone senior, outside your firm. Talk candidly and confidentially. And be guided by them. This is one of those times. You don't want to ignore serious ethical concerns. That could screw your career even as a student. You also don't want to be the one who pulls the fire alarm for no good reason. If you call in the Law Society for something stupid, there's no walking that back. There's simply no way to err safely on either side of this, just to be sure. You need to know what the right thing to do is. And that means getting someone far more experienced than you are involved in this.

In all events, good luck.

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I'd echo that.  Everyone is right.  These are serious ethical concerns but we don't have the details to know whether you're talking about endemic, chronic lapses of professional conduct or if your experience clerking for the best and brightest the profession has to offer -- now removed from the grind of daily practice -- has set your standards unreasonably high.

If you once saw one of your partners miss a filing deadline because she failed to diarize the e-mailed timetable dates between counsel, and that's what you mean when you say "missing filing deadlines", that's one thing.  People make mistakes, especially in the midst of the absolute chaos that is COVID-19.  I've had opposing counsel on one file blow the same deadline twice and I'd still say he seems like a good lawyer and his small firm is one I might recommend.

On the other hand, there have been documented cases where lawyers routinely miss filing deadlines and use opposing counsel's notices of motion and/or court status notices in lieu of a tickler system.  That, I think, is what most people imagined from the words you used -- and yes, if that's the case, those are not lawyers that take their jobs seriously and you are only doing yourself harm and putting yourself at significant risk continuing to work there.

Not communicating with clients and acting without instructions -- again, that's along a spectrum.  My clients couldn't do their jobs, and neither could I, if I sought their instructions on every communication I sent or page of material I filed.  In many cases, you get the client's position in as detailed a way as you possibly can, get their broad instructions (bring this motion, settle for no more than this, etc.) and then you're free to do your best work following those instructions. 

On the other hand, if people are taking meaningful legal positions, committing their clients to waivers or withdrawing motions, etc. without direct instructions, then yeah, again we're talking about the end of the spectrum where it makes no sense to stay there.  You won't learn anything helpful if the basic principles aren't being observed.  Someone who doesn't care what her client thinks certainly won't care what opposing counsel or the court thinks, and they're not going to be able to show you what it actually means to be a barrister.

Dips' advice is good.  Reach out to someone a little more senior, not necessarily a Bencher (especially if you're in Ontario), so that you can spill specific details as to what's going on.  If you are in Ontario practicing civil litigation and you don't have anyone to ask, I can be that person. But even better would be someone with a couple of decades under their belt.

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7 hours ago, Diplock said:

And it may end up with you reporting them to the Law Society or doing something else similarly extreme.

OP, I would think long and hard, and maybe consult experienced colleagues you trust, before doing this. 

Having said that, you should trust your gut and not take the job. 

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2 hours ago, conge said:

OP, I would think long and hard, and maybe consult experienced colleagues you trust, before doing this. 

Having said that, you should trust your gut and not take the job. 

Yeah. I absolutely agree, and that was largely the point I was making. Just let me be clear, even though you're quoting me, I'm not the first one that raised this suggestion. In fact it was raised before me and the OP even commented on the possibility of contacting the Law Society. So my point wasn't to go straight to that as a solution. My point was to emphasize that it remains one possible outcome, but absolutely not something you do until you're sure it's appropriate. Which comes back to contacting senior counsel.

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Re: contacting the law society. It depends on your province, but I know in Alberta the law society has practice advisors who you can contact. Speaking with them is confidential, so that can be an option if you don't have a senior lawyer you can talk to. 

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1 hour ago, Diplock said:

I absolutely agree, and that was largely the point I was making. Just let me be clear, even though you're quoting me, I'm not the first one that raised this suggestion. In fact it was raised before me and the OP even commented on the possibility of contacting the Law Society. So my point wasn't to go straight to that as a solution. My point was to emphasize that it remains one possible outcome, but absolutely not something you do until you're sure it's appropriate. Which comes back to contacting senior counsel.

That's fair. It was a comment purely for OP's benefit because I remember being a baby lawyer and thinking I had to report everything and I only noticed your comment about it. Largely because there are many posts I will merely skim or ignore, but a Diplock post usually gets a full read. 

Edited by conge

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5 minutes ago, iheartbooks said:

Re: contacting the law society. It depends on your province, but I know in Alberta the law society has practice advisors who you can contact. Speaking with them is confidential, so that can be an option if you don't have a senior lawyer you can talk to. 

Great idea. I had to do this once before with my local law society and it was very helpful. It ended up with neither me nor the society taking any further action. 

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17 minutes ago, conge said:

That's fair. It was a comment purely for OP's benefit because I remember being a baby lawyer and thinking I had to report everything and I only noticed your comment about it. Largely because there are many posts I will merely skim or ignore, but a Diplock post usually gets a full read. 

Well, thanks for that!

This goes back a long way in my life, and isn't really directly relevant to this conversation, but I remember once as a young teenager I actually called the police because I saw (or believed I saw) some older kids with marijuana. I actually thought that's what you're supposed to do. My mind always goes back to that any time I'm confronted with over-the-top ethical training in law (or otherwise) that basically implies that as soon as anyone has a concern regarding any conduct by a fellow member of the profession, they are supposed to report everything to the law police and trust the authorities to take it from there. Real life is simply more nuanced than that.

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Problem occurs when you have law profs who haven't practiced or haven't practiced in years give advice that touches on the challenges of practice where the phone is ringing off the hook and you are in the middle of trial prep while trying to manage your practice. Also keep in mind that law society rules also recommend cutting other counsel some slack where things don't go perfectly. There are rules about returning communications promptly but honestly when I'm in the middle of trial/trial prep/mediation it's often impossible to immediately return calls or emails.  

The big one where you have a mandatory duty to report and should have an antenna out is misuse of trust funds or undertakings.  I would also add unfair treatment/abuse of employees/clients and serious lack of courtesy to other counsel would qualify.  I have to say that if you are at a firm that treats people poorly, you need to get out of there.

Edited by ronlawyer1420

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