What is a Professional Service?

Courtesy of some AI engine of unknown origin, professional services are:

“… specialized, knowledge-based services provided by experts to help businesses or individuals manage, improve, or operate specific functions, focusing on expertise, advice, and solutions rather than physical products, and often involving fields like accounting, legal, IT, consulting, and marketing. These services are crucial for specialized needs, allowing clients to focus on core activities, and are often delivered by licensed professionals or experts with advanced training.“

This accords with our insurance policy definition of professional services, in relevant part:

” …the practice…of the laws of Canada, its Provinces and Territories, where conducted by or on behalf of an Individual Insured in such Individual Insured’s capacity as a member in good standing of the Law Society…, and shall include:

a. services normally provided or supervised by a lawyer within the scope of a usual lawyer- client relationship;“

One service a lawyer provides their clients is to, on their behalf, commence actions against others, three important parts of this service being:

• commencing the action against the proper defendants;
• commencing the action against those defendants within the permitted time frame; and
• serving the action within the permitted time frame.

Unlike much of the work lawyers do (e.g., review titles, litigate, draft contracts, wills and pleadings), parts of these three things often involve something other than specialized legal training. Before specialized legal training comes to bear, there is often investigation, then using legal skills to determine how and by when a person or entity must be sued and then proper diarizing.

From our own files, we know that a fair amount of this the investigation and diarizing is done by assistants, paralegals and clerks. Because when there is a limitation claim, that is what you tell us. But that does not change your overall responsibility.

What we often see missing is the middle piece – using legal skills to determine how and by when a person or entity must be sued, the how including whether a type of notice is required, common when a defendant is a municipality or the Crown.

For example, you do not need to be a lawyer to obtain a police report of an accident. But you do need to be to determine if one of the at fault parties is subject to a different limitation period, for example because it is a crown corporation, a corporate entity actually owned by the Crown or a municipality, if there is a fatality or if the incident occurred on a waterway. If the matter is in a different jurisdiction, you must consider limitations and law of that other jurisdiction because, very often it is different from Nova Scotia. If the client is a minor or under disability, it is for the lawyer to determine when their limitation clock starts to run as ages of majority can vary by province and the trigger is usually when they reach the age of majority.

We are seeing far too many claims that result from missed limitations, wrong parties being sued, actions being commenced in the wrong jurisdiction, required notice not being provided and actions being issued but not served at all. Most times the cause is an act of omission, not commission. By this we mean the lawyer not doing the middle step – using legal skills to determine who the proper defendants are, how they can be sued and the proper limitation period in which they can be sued.

Going back to the general definition of professional services, it is the application of one’s specialized training. Our policy definition goes beyond this as we cover services normally provided by a lawyer that, in our case, also includes acts of omission – things the lawyer should have done but did not do.

We are starting to see courts here push back on applications to extend time, renew writs and amend claims to add proper parties. Your insurance policy (which we highly recommend you review at least annually) considers these applications to be a repair. Our having to make these applications and courts pushing back on them have real implications for LIANS. And possibly you.

All we ask is that you do what you can to avoid these situations – which is to take the time to:

• determine proper parties at the outset of your retainer;
• determine how, and by when, each person or entity must be sued, the how including whether a type of notice is required before the action is issued or served;
• make sure any deadlines are properly diarized and give yourself ample time before expiry to draft, issue and serve the document, which is to say, the date you diarize the matter to should not be the day before the limitation expires; and
• if you issue an action do not let it expire.

Not only will we thank you but your future levy will as well.