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==> welfare (ontario works) guide homepage

Family member
cut off
welfare and
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Simon Shields, LLB
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Facing a big
overpayment
assessment?

After over 900
SBT hearings I
should be able
to help.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

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Have medical
problems and
want to
move up to
better ODSP rates?

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together the
best application
we can.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

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Family member
cut off
welfare and
needs your help?

I know welfare law.
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can do - all
conveniently
online.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

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(simonshields@isp.com)

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Background


Facing a big
overpayment
assessment?

After over 900
SBT hearings I
should be able
to help.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Have medical
problems and
want to
move up to
better ODSP rates?

Let's put
together the
best application
we can.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Family member
cut off
welfare and
needs your help?

I know welfare law.
Let's see what we
can do - all
conveniently
online.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Facing a big
overpayment
assessment?

After over 900
SBT hearings I
should be able
to help.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Have medical
problems and
want to
move up to
better ODSP rates?

Let's put
together the
best application
we can.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Family member
cut off
welfare and
needs your help?

I know welfare law.
Let's see what we
can do - all
conveniently
online.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Facing a big
overpayment
assessment?

After over 900
SBT hearings I
should be able
to help.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Have medical
problems and
want to
move up to
better ODSP rates?

Let's put
together the
best application
we can.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Family member
cut off
welfare and
needs your help?

I know welfare law.
Let's see what we
can do - all
conveniently
online.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Facing a big
overpayment
assessment?

After over 900
SBT hearings I
should be able
to help.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Have medical
problems and
want to
move up to
better ODSP rates?

Let's put
together the
best application
we can.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Family member
cut off
welfare and
needs your help?

I know welfare law.
Let's see what we
can do - all
conveniently
online.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Facing a big
overpayment
assessment?

After over 900
SBT hearings I
should be able
to help.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Have medical
problems and
want to
move up to
better ODSP rates?

Let's put
together the
best application
we can.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Family member
cut off
welfare and
needs your help?

I know welfare law.
Let's see what we
can do - all
conveniently
online.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Facing a big
overpayment
assessment?

After over 900
SBT hearings I
should be able
to help.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Have medical
problems and
want to
move up to
better ODSP rates?

Let's put
together the
best application
we can.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Family member
cut off
welfare and
needs your help?

I know welfare law.
Let's see what we
can do - all
conveniently
online.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Facing a big
overpayment
assessment?

After over 900
SBT hearings I
should be able
to help.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Have medical
problems and
want to
move up to
better ODSP rates?

Let's put
together the
best application
we can.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Family member
cut off
welfare and
needs your help?

I know welfare law.
Let's see what we
can do - all
conveniently
online.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Facing a big
overpayment
assessment?

After over 900
SBT hearings I
should be able
to help.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Have medical
problems and
want to
move up to
better ODSP rates?

Let's put
together the
best application
we can.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background



Welfare (Ontario Works) Law
(15 August 2012)

Chapter 13 - Advocacy


  1. About Clients
    (a) Generally
    (b) Communications: Language, Literacy, Cognition and .... not having a Telephone!
    (c) Psychiatrically-Impaired Clients
    (d) Aggressive Clients
    (e) Unscrupulous Clients
    (f) Excessively-Dependent Clients
    (g) Summary
  2. Advocacy and Ethics
    (a) General
    (b) Competence
    (c) Conflicts of Interest
    (d) Doing Business with a Client
    (e) Confidentiality and Solicitor-Client "Privilege"
    (f) Duty to Report Child in Need of Protection
    (g) Medical Reports
    (h) Withdrawing from Representation
    (i) Duty to the Court or Tribunal
  3. File and Information Management
    (a) Getting Documentation
    (b) Recording Information
    (c) File Organization
  4. Strategy and Argument
  5. Legal Fees and Disbursements
    (a) Lawyers
    (b) Non-Lawyers
    (c) Borrowing to Pay Legal Fees and Chargeable Income
    (d) Recovery of Fees from Welfare Payments
    (e) Disbursments
  6. Wrap-Up

________________________________________


1. About Clients

(a) Generally

Welfare advocacy of course is largely about human interaction and communication. Your style of advocacy should be compatible and comfortable with your personality and how you naturally deal with people.

Welfare recipients are a wonderfully varied and often challenging group of people. While they are not all saints - by no means are most of them sinners. They are humans at or close to the edge of our society - financially and often socially and medically. They are - literally - the "dispossessed", for if they had significant "possessions" they would not be eligible for welfare.

Being in this state of deprivation is of course stressful in it's own right and this stress must be accomodated and understood. Often the combination of you - and their own resources and imagination - are the only thing between them and the street ... if they are not already there.

(b) Communications: Language, Literacy, Cognition and .... not having a Telephone!

An advocate cannot presume the client's verbal fluency in English, nor literacy - nor sometimes even the ability to cognitively process spoken or written language.

As to literacy you can and should simply inquire as to the client's level of literacy - and do simple writing and reading tests if you have concerns. Embarrassment is only compounded by avoiding the necessary, and in any event do not assume that literacy problems are due to lack of education. Other causes can be at work, such as dyslexia, learning disabilities and cognitive disorders.

As so much of law involves paperwork, with illiterate clients I often try to locate a member of their support system who is literate and can assist. In such cases I find that written instructions to a client are particularly useful as they can be taken to a helper and kept for reference. This is also necessary when dealing with clients with disorders which restrict memory retention, such as anxiety, substance abuse or brain injury.

Recent immigrants and other persons who are not fluent or literate in the dominant cultural language of English should be accomodated by using translators from their family or community agencies. This can be a challenge as no consistent funding is available for such translators.

Many welfare recipients cannot afford regular telephones. They may however have a friend's or shelter's phone where messages can be left, or an often-disconnected cell phone. Do not assume smooth and consistent access to your client like you would with a middle-class client. Use common sense and practical communication tactics such as finding out where they tend to hang-out in the day and get an acquaintance's address where a letter can be sent if other methods fail. Be practical and flexible, and if all else fails you may have to get off your ass and go and find them.

At the Social Benefits Tribunal all appellants are entitled to a translator in the language of their choice if they do not speak English or French, and all are entitled to an English or French-conducted hearing if they want it.

(c) Psychiatrically-Impaired Clients

Psychiatrically-impaired clients, in which I include alcohol and substance addicts and abusers, particularly add to the challenges that distinguish this area of law and advocacy from most others. Communication skills and memory-retention - otherwise assumed in most client relationships - cannot be assumed here. You can do little productive with a client if they are under the active influence of drugs or alcohol so try to determine any patterns of use and 'catch' them at their best (early in the morning is usually good). If they show up intoxicated at a hearing try to use this to your advantage if you can as a demonstration of their handicaps - do not be shocked and embarrassed on their behalf. If an adjournment is required - seek it.

Your job is to obtain assistance for your client by presenting the available evidence and treating your client with respect and dignity. In most cases, with frankness, full explanation and sometimes humour - this can be done. When I think I need to turn my client into an 'exhibit' I explain that to them directly and ask for their consent. I find it is rarely refused - even with schizophrenics where my approach contradicts their delusions.

With the Tranchemontagne line of cases now establishing firmly that addictions are 'just another' medical impairment (for ODSP purposes), welfare administrators and Tribunal members alike (along with recipient advocates) should all be well aware of their duty to accomodate and tolerate substance abuse (they were before Tranchemontagne but it was little recognized by welfare administrative culture).

(d) Aggressive Clients

Aggression, either due to lack of impulse control or alternatively as a learned defence mechanism, may also manifest itself in your relationship with some clients. Sometimes it is a result of frustration, sometimes a form of testing for rejection, sometimes it is biochemically driven. Aggression must however be managed in your relationship, for if you succumb to it's manipulative effect your effectiveness as an advocate is gone.

In such cases you must assert control enough to present appropriate and ethical choices to the client. Draw the lines and draw them clearly. If the client won't accept, end the relationship - it wasn't likely to be productive for them anyway, and you risk being placed in a conflict of interest between your duties to the client and to the integrity of the legal system.

I have periodically fired clients for excessive aggression (and I have come close to physical struggles on perhaps 2-3 occasions). You should expect to have to do this sometimes as well. Always however keep in mind however that you must have their best legal interests in mind through such difficult times. Be sure that when you terminate representation you are not leaving the client 'in the lurch' late in proceedings when their rights might be prejudiced. If necessary, attend a hearing to seek an adjournment and do what you can to set them up with adequate alternative representation.

(e) Unscrupulous Clients

Unscrupulous clients rarely come along but, if you are not careful, may try to co-opt you into unethical and illegal activities. You must know your ethical limits and stick to them firmly. Do not assume that because you are a lawyer or otherwise legally-trained and experienced that you are somehow immune to or 'too smart' for such manipulation.

While your role is not to personally judge your client, it is essential to avoid becoming an active participant in future illegal activity - which could result in your being professionally-disciplined, excluded from representing a client (which can happen to non-lawyer advocates and paralegals) [SPPA s.23(3)], or even prosecuted for counselling or conspiracy to commit fraud. That said, honestly dealing with and resolving concerns over past and present illegalities and irregularities are your natural area of activity.

A special note. Cases involving concerns of welfare fraud invoke risks of both criminal and regulatory (ie. conviction under provincial statutes) conviction (see Ch.12 "Fraud and Prosecutions"). These cases, especially for someone still on welfare, create exceptionally difficult situations for recipients because welfare will almost always suspend benefits until their investigatory demands are satisfied. These cases demand expert involvement - usually in the form of experienced welfare or criminal defence lawyers, or both. The stakes in such cases are very high and must be dealt with accordingly.

(f) Excessively-Dependent Clients

Usually an imbalance of advocacy experience between you and your client will naturally result in the client's informed, though critical, acceptance of your advice. Sometimes however the client may be chronically dependent, perhaps suffering from an anxiety disorder or various forms of personality disorders. The problem here is typically the active avoidance by the client of participating in the analysis and ultimately of making decisions as to how the case should be run.

Such clients may subtly fight to avoid 'owning' the decisions that must be made in a case. They would prefer to 'leave it all to you'. This is unwise. Many choices that must be made are calculated risks. You do not want to be in a position of being blamed when a necessary and reasonable calculated choice turns out to be for the worse, as by the law of averages they periodically will. This is sometimes the hidden agenda of dependency: avoidance of their responsibility means you bear it all as the client reserves the right to blame 'the bad lawyer' for failures.

This is neither fair to you nor helpful in conducting the case, and such tension will distort your collective ability to make further decisions.

To address this situation lawyers commonly confirm instructions and the content of key meetings and conversations to their clients in letters. This is done to ensure mutual understanding, and - frankly - to protect themselves in case of later disagreement about what was said.

If your client is unable or unwilling to be an active participant in their case, you should consider whether you will continue to represent them. It is necessary that a client have both the legal capacity, and the willingness, to take advice and instruct counsel. Where the inability is due to mental capacity a trustee may have to be sought to manage their affairs (see Ch.8: "Applications and Procedures: How Welfare is Paid: Welfare Trustees").

(g) Summary

The vast majority of my experience with clients has been pleasant and enlightening. Difficulties, when they occur, are typically dealt with through good communication and respect.

Treat your client and their existing support structure (ie. family, friends, partners, social workers, physicians - and sometimes even welfare workers and supervisors) as partners in the task at hand. The client's existing support structure can help as client historians, fellow brainstormers, translators, secretaries, appointment-prompters, chauffeurs, net-workers and emotional supporters.

Ultimately your job is to represent your client to the best of your ability and within the bounds of professional ethics (covered below). There is no shame in admitting your limits - in fact more people should do it more often. Give yourself the same consideration you give your clients - allow yourself bad days and don't get bent out of shape if you make mistakes. Do the best you can, learn from experience and mistakes - and carry on.


2. Advocacy and Ethics

(a) General

Lawyers and paralegals should know what their professional ethics require (in Ontario, these are set out in the Law Society's "Rules of Professional Conduct" and "Paralegal Rules of Conduct", respectively).

As for unregulated advocates (and I was a 'un-regulated' paralegal doing social assistance law for five years before I became a lawyer) I recommend the ethical standards required of lawyers as good and necessary for them as well. It is largely these that are discussed here.

While these ethical standards help the justice system work properly, a reputation amongst adjudicators and other advocates that you operate in an ethical fashion will also reflect to the benefit of your clients. The people in the community you operate in will know that you do not advance unethical or unreasonable positions, so that they will rightly assume that what is before the Tribunal are the true merits of a matter. This will invariably help your client.

(b) Competence

No one knows everything (and if they do it just changed yesterday and they haven't realized it yet ;-). We all have to learn the things that we know and which eventually ground our claim to be an 'expert' in something. If you are at a point in your experience where you are not competent to represent a client in a particular matter, admit it, and either get help or pass the case to someone who knows more than you. There is no shame in this, but there is shame in pretending that you know something that you don't.

There is more than shame in not admitting your limits. The importance of welfare to a client is huge. It is the government program of last resort for food and shelter in our society. Despite the low number of dollars involved, welfare entitlements are in fact far more important than defending the property rights of a millionaire, because millionaires invariably have lots more money tucked away somewhere. Welfare claimants - by definition - have nothing to else fall back on.

(c) Conflicts of Interest

A conflict of interest is an interest or duty, held by the lawyer or advocate, that would tempt them to prefer those interests or duty over the interests of their client. Such interests can be personal, financial or otherwise. A plain example would be an advocate acting for a plaintiff where the defendant is the advocate's brother - but conflicts arise in many different forms.

Conflict of interest can also arise through the breakdown of the advocate/client relationship. If the relationship has deteriorated to threats of lawsuits or violence then the situation is so poisoned that the advocate should withdraw.

An advocate should be sensitive to the possibility of conflicts of interest both at the beginning of a case, and throughout it's course. A common situation of arising conflict of interest is where an advocate starts to act for two persons (say a spousal couple), who at the beginning have no conflict between themselves, but as a case develops turn out to have adverse interests (ie. they may start accusing each other, or the facts may reveal disparate versions of 'blame'). In such a case the advocate should really turn the parties over to two other advocates, as it would be wrong to continue to represent one person only when they have been privy to the confidential information of both persons.

In any event, acting for two clients in a related matter should only be done after both have been advised on the implications of a joint retainer of the advocate (ie. mutual disclosure of confidences).

Beware also of conflicts of interest arising with mentally handicapped clients where a relatives or 'friends', controlling or seeking to control the client's funds, have or will use the monies for their own personal benefit. I have seen these situations arise too often, particularly in setting up trusts for the disabled where the instructions are to make their adult child both trustee (in charge of disbursements) and 'gift-over' beneficiary of the trust when the disabled person dies.

(d) Doing Business with a Client

Though not likely to arise in the welfare context, where the advocate does business with a client, this has the risk of evolving into a form of conflict of interest. Non-fee financial interactions (other than fees) between the advocate can lead to tensions and unforeseen rifts which can erode the independence that an advocate should have in order to ethically represent the client. For instance, where an advocate borrows or lends with a client and the debt defaults, the judgment of the advocate as to the conduct of the legal matters may be distorted.

(e) Confidentiality and Solicitor-Client "Privilege"

Solicitor-client "privilege" is a principle of the law of evidence. Unless a court specifically orders privilege to be broken or overridden, or a client 'waives privilege' (gives it up after informed consent), a lawyer cannot be compelled to testify regarding communications which have been given to them by a client for the purpose of providing legal advice and services. Solicitor-client privilege belongs to the client, not the lawyer.

Privilege extends as well to communications and information generated by the lawyer in preparing the case for the client, such as expert witness communications and reports - and the lawyer's own notes.

Confidentiality, while an integral and necessary element of solicitor-client privilege, is a separate and distinct duty from privilege. It is not a principle of evidence but rather of fiduciary law. An advocate has a professional duty - unless released from it by the client after informed consent - to keep confidential all private information that they have learned in the course of the case. However if information is only confidential (and not privileged) and the advocate can be compelled to testify about it as a normal witness.

Privilege and confidentiality are closely related however. Where privileged information is given to a third party who is not bound by privilege (eg. a friend sitting in on a lawyer-client meeting) then confidentiality is lost and the privilege can be broken if that friend is called to testify. In such a case the lawyer could become a compellable witness as well. In practice welfare authorities rarely devote the resources and degree of attention to a case to use such potential evidence, but great care should be taken by an advocate nonetheless.

A lawyer may also be excused for breaking confidentiality where they learn of an imminent risk of serious harm to others - in such cases disclosure is justified but only to the extent necessary in the circumstances to prevent the harm.

I recommend that non-lawyer advocates respect privilege and confidentiality as lawyers do. While the common law does not expressly set out an analogous privilege for clients of paralegals and lay advocates, the law is flexible enough so that an argument for privilege can be advanced on a case-by-case basis: R v Gruenke [1991] 2 SCR 263. The relationship of a non-lawyer advocate to a client is so similar to that of a solicitor-client relationship that in my opinion it is very likely that privilege would be extended to such relationships.

(f) Duty to Report Child in Need of Protection

Any person, including a professional, who has reasonable grounds to suspect that a child is in need of protection - as this is defined in the Child and Family Services Act (CFSA) - has a legal duty to report this to the local Children's Aid Society. The suspicions which give rise to the duty to report are very broad. You should review the CFSA carefully (especially s.72) to ensure that you are familiar with the range of this duty. Failure to report by most professionals can be prosecuted.

Child and Family Services Act, s.72

The duty to report is broad because the level of belief in the problem is very low: "reasonable grounds to suspect". Some provisions are even vaguer, requiring only "reasonable grounds to suspect" a "risk" (not even the actuality of injury) - and being triggered by a concern over "emotional harm" only.

An exception to the duty to report exists only for lawyer-client privileged communications (other forms of privilege are overridden by the duty to report). But remember that it is only communications given by the client or obtained by the solicitor for the purpose of providing legal advice or representing the client that are covered by this privilege. The exception would not apply for example if the lawyer directly observed a parent or guardian's abusive treatment of a child, or unusual bruises on a child, or gleaned the information from comments spoken other than for the purpose of obtaining legal assistance.

(g) Medical Reports

Usually, receiving medical reports for a client is not a problem (other than the need to pester doctors to get you the material in a reasonable time, which is too common). You just send a written request with the right release [see the Isthatlegal.ca ODSP Legal Guide at Ch.9, s.4(d)] and pay the doctor's or hospital's copying charge (which will be covered if the case is being conducted under a legal aid certificate).

Rarely, but sometimes with some clients with psychiatric issues, you may receive reports which the doctor has advised should not be shown to the client out of concern that the information may be harmful to the client. Lawyers in such situations are ethically required to return such reports to the doctors immediately [LSUC Rules of Professional Conduct (RCP), R2.02(7-9)], unless they have specific instructions from the client to accept them. Even then, the lawyer is required to attempt to dissuade the client from reviewing the report, and to suggest that they seek to review it in the presence of their doctor.

Similarly, when medical report disclosure is refused by a physician or psychiatric institution either on a lawyer's request or when you try to use a summons to compel production at a hearing, there are specific and elaborate provisions in the Mental Health Act, s.35 which must be followed to get the report for use as evidence.

These provisions involve applications to the court or Tribunal before which the records are sought to be adduced to resolve the issue of risk of harm and release, and should be carefully reviewed if you get into this situation. In 15 years of practice in this field however I have never had to go through this process.

(h) Withdrawing from Representation

If a client demands that the advocate act in an unethical or illegal fashion, or if either party feels that the relationship of trust and confidence between them is fundamentally eroded or compromised, then the lawyer or advocate should withdraw from the case.

Care must be taken however when doing so abruptly would jeopardize the rights of the client, such as during or on the eve of a hearing. In such case the advocate should seek to locate replacement counsel, and if necessary, attend at the Tribunal to seek adjournment until new counsel are prepared to proceed. Withdrawing counsel have no express duty to arrange new counsel (though this is often a good idea), just to ensure that the client has enough oppourtunity to arrange it themselves.

Subject to the above comments about replacement counsel, non-payment of fees is grounds to withdraw from a case, though most welfare cases with lawyers are legally-aided. As well and as noted above, if counsel does not feel competent to handle the matter before them, they should also withdraw.

The reasons for removal - usually privileged or confidential - should not be disclosed to the Tribunal, the other side, or anyone for that matter. If 'reasons' must be provided to anyone they should be described in general terms that do not prejudice the client. A general comment that you feel 'ethically bound' to withdraw is usually enough, and no one on the other side can read anything certain into it to prejudice your former client down the road.

(i) Duty to the Court or Tribunal

A particular problem arises for advocates when a client wishes to advance a proceeding, argument or fact that the advocate knows is false or malicious in intent. An advocate cannot ethically or legally participate in the presentation of such falsehoods or vexatious proceedings to the Tribunal. If the client persists in wanting to do this the advocate should remove themselves from the record as advocate.

This situation can arise unexpectedly. If the client in direct examination in a hearing starts to state things which contradict what was said in preparation and what the advocate believes to be true, an advocate can be put on the spot and must make a judgment call between their duty to represent the client and not to further mislead justice. These can be hard calls requiring instant decisions. They must be made in favour of not misrepresenting the facts, even if it means avoiding a key area of witness examination. Seeking adjournments in these situations to discuss the issue with the client is also improper as it creates the impression of witness coaching during testimony (pre-testimony preparation of a client or witness is acceptable).

Of course, neither can an advocate otherwise actively participate in committing a fraud or misrepresentation on anyone, be it the Tribunal, welfare authorities or anyone. You cannot knowingly convey false information or documentation in the course of your representation. Of course, if a client has committed past wrongs - even if they are criminal, and even if they are ongoing - you normally have no duty to report them to the police. Your duty is to advise them to stop, but even if they don't you must protect their legal rights as much as you can within the bounds of ethics. An exception exists to this rule where the advocate learns of an imminent risk of serious physical or psychological harm to others: in such cases disclosure is justified but only as and where necessary to prevent the harm.


3. File and Information Management

(a) Getting Documentation

Clients come to you with all types of information management skills and habits - or lack thereof. You would be negligent is you only relied on their documentation and their understandings of what other evidence is available or relevant, as at any time in your career you should know more about that than most clients.

Always get information releases from your clients and almost always request file copies from third parties, particularly welfare administrators (see Appendix 1: "Getting a Copy of Your Welfare File").

(b) Recording Information

When the phone rings, most lawyers automatically reach for a pen and piece of paper to record the conversation. The note will be dated and identified by file and who called, the contents of the conversation will be set out clearly (though not verbatim, which is nearly impossible to do), and any required follow-up high-lighted or transferred in writing elsewhere for action.

The same holds true to an even greater extent for client or witness meetings. Many lawyers confirm the contents of conversations in writing to the client, both for clarity and "ass-covering" purposes. My practice is only to do this when I have been given instructions against my advice and when I think the choices are self-defeating.

(c) File Organization

I have my own information and file management practices, largely taught to me by others and common to most lawyers. Your own practices will depend on your habits and personalities.

My files are organized as follows, in separate, different coloured file folders:
  • Main Communications File: this includes copies of all sent and received correspondence, meeting notes and phone notes and 'notes to self' - organized chronologically from oldest (bottom) to latest (top). This is commonly called a "brad".

  • Pleadings File: tribunal and court documentation such as Notices, submissions, etc - organized chronologically from oldest (bottom) to latest (top).

  • Evidence File: documentary evidence should be listed in a separate sheet which numbers them document by document, and includes date of document authorship, author, where you got it from, when you got it, who else you have sent it to (ie. other side or filed with the Tribunal), and when you did this.

  • Accounts File: legal aid documents, disbursements receipts, bill copies, etc.

  • Law File: For cases with legal issues requiring research I keep memos, case law, and idea notes in such a file.
I also have a single sheet client information form which has key contact information, key dates when things happened (like when Notices served, appeal filed, hearing scheduled, etc) and check boxes for the normal stages of a proceeding, whether legal aid is granted, etc. This is perhaps the most used document in any file I have and always the first document I see when I open a file. It is always at hand when I work on the file, speak on the phone, or argue a case.

While all of the above sounds like a lot of work, it actually saves time (lots of time), as the key information about the case will always be there, summarized at your fingertips. Otherwise each time you look at the file you will have to spend a lot of time just refreshing your memory by wading through disorganized paperwork.


4. Strategy and Argument

For me, good argument and strategy before a court or Tribunal is an outgrowth of good record-keeping. If the facts of the file are carefully summarized and quickly available to you, your ability to conceptualize and strategize more deeply into the case is greatly enhanced. Otherwise you are bogged down in just figuring out what the facts are and never come up with a consistent approach to the case which can be honed and improved.

Argument should always be concise and have no more than two or three main thrusts. Tribunal members may hear up to five cases a day, twelve or more a week. Usually they take little away from the hearing except documents and their notes. Whatever you can do to emphatically place in their minds the strengths of the case, either through written submissions, documentary evidence, drama or compelling witness presentation - all aid the case.

As well, don't waste time with the obvious. Unless you anticipate the presentation of a novel interpretation of law, Tribunal members do not need to have basic and well-known issues of law presented to them each time.

Also, if evidence is weak in one area, admit it (don't bypass it) and move to the case's strengths (although if the weaknesses are in essential areas - maybe you shouldn't be there in the first place!). Openly admitting weaknesses in the facts and dropping those issues will not only prevent annoying the Tribunal member by wasting time, but it will show them that you are not pushing every button available just because you can. If you admit weaknesses, then the Tribunal is much more likely to pay favourable attention to the strengths (to the shame of the legal profession, this is a drastically under-used tactic).

In direct examination, I often ask questions of my clients that I know (because I asked the client in preparation) will 'hurt' the case. I do this because I know that the answers will probably come out anyway, and at least we have demonstrated our honesty. Revealing injurious facts in your own evidence - before the other side or the Tribunal finds it - allows you to humanize and soften it's impact, and to locate the negative facts next to evidence that puts it in a favourable context.

For example, if I have an ODSP eligibility client who is non-compliant with his heart medication (and thus raising the concern that he is contributing to his continued disability) - I will put that evidence directly next to psychiatric evidence that his major depression causes him to despair for himself and his future. The non-compliance now is humanized and made more understandable. It will be a hard-hearted Tribunal member that will deny such an appellant sympathy.

Further, if you don't reveal a bad fact and then the other side (or worse, the Tribunal) does, you have the double negative impact of the bad fact and the added perception that you tried to conceal it. The natural suspicion is: if you tried to hide that, what else are you trying to conceal? This suspicion will taint the Tribunal's attitude to all your evidence.


5. Legal Fees and Disbursements

(a) Lawyers

Clients of lawyers who do welfare work are eligible for legal aid coverage once they have an active matter before the Social Benefits Tribunal (SBT) and meet the financial eligibility standards (which is almost always).

Advice or representation by advocates outside of an SBT hearing can be charged for separately, although as a practical matter persons seeking such services are often without funds. The most common exception to this is someone seeking advice about anticipated inheritances or trust funds and their impact on welfare eligibility, or where a friend or family member is paying the bill.

(b) Para-legals

Paralegals who charge fees are essentially small business-persons and should be aware of their duties to charge HST, file income tax, and otherwise comply with applicable business law.

(c) Borrowing to Pay Legal Fees and Chargeable Income

Where a recipient borrows money to pay legal fees, welfare may want to treat the amount borrowed as chargeable income and thus deduct it from assistance. There are exceptions to this rule and it is not always strictly-applied, but the issue should always be censidered [see Ch.6, s.9: "Income Rules: Loans as Income"].

Strictly-speaking, even where legal fees are paid 'on behalf' of the claimant, income chargeability concerns may arise, though the proposition of deducting that from a recipient's meagre allowance is usually too offensive for welfare workers to engage in.

(d) Recovery of Fees from Welfare Payments

With poor clients such as welfare recipients, it is a common lawyer's instinct to seek payment out of potential recovery if the case is successful. In normal legal practice, this is usually secured by a written document called a "assignment and direction" which is filed with the person making the payment, directing them to pay the money to the lawyer to the amount of the lawyer's bill. This is particularly tempting in ODSP cases where successful clients usually receive lump sum retroactive payments if their eligibility appeal is successful.

The problem is that the law only allows such payments of assistance to third parties "for costs relating to basic needs and shelter" [Act s.18]. These would clearly include direct rent payments, and food allowances, but - short of Charter arguments - would have great difficulty in stretching to include legal fees. An identical provision exists in the ODSP Act s.13.

(d) Disbursments

When the case is not covered by legal aid, the advocate should discuss with the client how disbursements are to be handled. Typical disbursements are fees for copying files from welfare (through the freedom of information process, see Appendix 1), fees for medical reports, and courier costs. There are no fees payable to the Social Benefits Tribunal.

There is some limited funding available from the Tribunal for travel expenses (see Ch.10 "Appeals and Other Remedies: Appeal Process: Parties: Financial Aid").

Failure to raise and allocate responsibility for these fees as the beginning can strain the relationship and sometimes place the advocate in the position of having to 'lend' the client money by paying expenses for them. Do this if you want, but at least be prepared for it.


6. Wrap-Up

An advocate's role should not end with the issuance of an SBT ruling, good or bad.

If the case is won then the recipient still needs information about what happens next and how to maintain and advance their rights in their on-going participation in the welfare system. This process can often take months or more to finalize wrap-up and require active shepherding by the advocate - often uncompensated as legal aid coverage ends when you are out of the hearing room.

If the case is lost then the appellant needs information about what - if anything - they can do in the future to advance their rights through an reconsideration, an appeal, a new application with better evidence, or by legally restructuring their circumstances.

For example, I have a standard letter that I use in successful ODSP grant cases that advises the recipient about such things as date of grant (retroactive entitlement), preparing for their medical review, and when and how they can expect to start receiving their ODSP entitlement. It explains who they will interact with in future at the ODSP administration and how to get in touch with them.
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