Adapting to Changes in the Employment Bar

The practice of Employment law has undergone significant changes in just the last 10 years. More change is on the way.

What has changed so dramatically in Employment law and how should we respond? The list is too long to cover in this column so I am giving you my top three changes which have impacted all of us.

Competition  The Employment law and Human Rights Bar has increased in numbers substantially over this time period and lawyers are hungry for work and are aggressively marketing their services. Some lawyers have a very significant online presence and others are using the more traditional forum of TV or radio. Many of these lawyers are running high volume shops and often the cases they take on are marginal cases at best. Very often you see demand letters and claims where the plaintiff is claiming human rights damages, aggravated damages and punitive damages without any basis in fact or any likelihood of success. The main purpose of this approach is to get tax free dollars into the hands of the client and justify higher fees. As cynical as that sounds that is what in fact is happening. Many more cases are being filed yet fewer cases are going to trial.

This practice is not going to change. The best approach is to push back on counsel and get particulars of the claims. You need to advise clients carefully on these claims and you cannot always assume that they will get easily resolved. Clients need to understand the consequences of paying too much too quickly to avoid litigation. The same lawyers and the same outrageous settlement demands will be made against the same employer if they become an easy mark. It is important not to over respond too quickly but rather take the time to meet with your client and witnesses as soon as possible to allow for a full assessment of the case and then define your strategy whether it be an early resolution or litigation.

Clients will never be happy when these frivolous and excessive claims land at their doorstep and will often overreact  but helping your client to stay calm and be more strategic is a critical part of getting the best outcome. These claims are going to increase so clients and lawyers need to adjust their approach accordingly. Lawyers need to manage this aspect of the practice carefully or they will get poor results and clients will find new counsel. In this context,  mediation has gained increased importance and many times agreeing to early mediation is the best option for your client although this has not been the typical approach in litigation. It may delay early settlement prior to a claim to avoid setting a benchmark too early but the mediation process usually works to resolve cases.

Client Service \ Fees – the days of long opinion letters, lengthy client meetings and 30 client calls a day are over. Client contact is primarily via text or email. I would never have imagined 10 years ago that clients would expect and demand legal advice 24-7 and would prefer that the advice be provided by text or email. Clients do not really need to sit in the same room with you anymore and prefer that things move along at a quicker pace.  If you do not adapt to this level of service your client will find someone who will. Being an effective employment counsel, whether management side or employee side, requires a great deal of responsiveness to your client’s demands. Clients shop around for the best price and the best service and then quality. In many cases quality is assumed if a lawyer from a reputable firm is being retained. So when pricing and service are the key considerations  to being retained by a client or more importantly maintaining an existing relationship, lawyers need to respond and not waste time talking about quality of work because it is assumed that you will deliver top quality advice.

The risk that we as lawyers face is that we will bid for work so aggressively that it becomes a race to the bottom in terms of fees and quality of the advice. This is a slippery slope and you need to realize that you really need to walk away. Banks and Insurance companies are notorious for how they demand steep discounts on the legal work whether by using an alternative fee arrangement (AFA) fixed fees or significant rate discounts. Although law firms cannot simply continue raising rates every year, they should not accept retainer agreements where there is no significant financial advantage to the firm. Some clients even try to use these fee arrangements without any guarantee on the volume of work which should be a non-starter from the get go in my view.

Be flexible in adjusting your rates and seek out creative ways to bill for your services provided that at the end of the day it is fair to both the client and your firm.

Malcolm MacKillop is a partner in Shields O'Donnell MacKillop LLP in Toronto. He represents employers and senior executives in all areas of employment law, including wrongful dismissal, human rights, and employee obligations.