Introduction

Each year, the Law Society of Alberta receives questions about whether lawyers can provide legal research services under their current membership status.

This article provides guidance to inactive lawyers, who are members of the Law Society, wanting to provide legal research services to active lawyers. To be clear, inactive lawyers must not provide legal research services directly to a client or member of the public. For further clarity, “inactive lawyer” does not include a suspended lawyer.

A suspended lawyer may not provide any legal services or legal advice while under suspension and may not provide legal research services to anyone without the authorization of the Benchers pursuant to section 108 of the Legal Profession Act.

Practice of Law

The Legal Profession Act (Act) defines an “active lawyer” as “a member other than an inactive member or a member whose membership is under suspension”. It goes on to state, in paragraph 106(1)(a), that
No person shall, unless the person is an active member of the Society,
(a) practise as a barrister or as a solicitor
Inactive lawyers cannot hold themselves out as active lawyers or provide legal services or legal advice to a client or member of the public.

Obligations

Inactive lawyers, as members of the Law Society, must comply with all obligations contained in the Legal Profession Act, the Rules of the Law Society of Alberta and the Code of Conduct. The provisions related to conflicts, confidentiality and privilege will apply when an inactive lawyer is offering legal research services.

Legal Research Services Provided to Non-Lawyers

All legal services provided to non-lawyers, including clients or other members of the public, may only be provided by active members.

As stated above, inactive lawyers must not provide legal research services to members of the public, including organizations or businesses, or to lawyers who are not active members of the Law Society of Alberta or another Canadian law society.

Inactive lawyers are not indemnified through the Alberta Lawyers Indemnity Association (ALIA).

Legal Research Services Provided to Active Lawyers

Inactive lawyers are permitted to provide legal research services to active lawyers. As an inactive lawyer providing legal research services, it is your responsibility to ensure the following:

• Legal research may only be provided to active lawyers who are members of the Law Society of Alberta or another Canadian law society. The active lawyer must also be indemnified or insured.
• Inactive lawyers must have no contact with any of the active lawyer’s clients, including during the billing process
• Notice must be provided in writing to active lawyers with whom you engage that you are not an active member of the Law Society, do not carry professional liability insurance and are not a subscriber to ALIA’s indemnity program
• Inactive lawyers must advise active lawyers of their obligations under the Code of Conduct, Rules 6.1-1 and 6.1-3, and that the active lawyer will be assuming responsibility for the final work product
• Any legal advice resulting from research may only be provided to the active lawyer for review and the active lawyer must understand that they may not provide legal advice to a client based on your research without review
• If you have provided an undertaking not to practice law as a result of a conduct complaint or through a practice management direction or condition or similar proceeding, you must have the prior approval of the Law Society to provide legal research services. You must notify the active lawyer of Code of Conduct Rule 6.1-4 prior to providing any legal research [1].

Inactive lawyers must ensure that they are not forming a lawyer-client relationship. While you may receive confidential information as part of the research request and may be conducting legal analysis in response to that, you must only engage with the active lawyer that has engaged you and not with their client. It must be clear that the active lawyer is responsible for the supervision of your work and any legal advice they provide to their clients of that incorporates your work.

Be aware that this does not provide immunity from legal action resulting from your work. You may be exposed to claims from the active lawyer that engaged you (including their indemnifiers and insurers) or even from the clients of the active lawyer. However, as an inactive member you will not have coverage under ALIA’s indemnity program [2].

Providing Legal Advice

Only active lawyers can provide advice to their client or member of the public. Providing legal advice means applying the law, including legislation, case law and legal principles, to a particular situation. It includes analysis and recommendations, usually for the purpose of assessing the legal interests, rights or responsibilities of a client or another person.

Legal advice includes any of the following services provided to a client or member of the public:

• Research of legislation and case law, including court and administrative rules and decisions, as they relate to a specific set of facts
• Legal analysis of legislation and case law, as it applies to the facts, including opinions regarding the outcome of a case or course of action
• Recommendations in litigation or administrative matters regarding:
  • Preparing pleadings for use in a proceeding, including names of parties, causes of action and damages
  • Engaging specialists or professionals, such as an accountant, tax specialist or expert witness
  • Choosing appropriate procedures, including the type of application and level of court, as well as alternatives to court
  • Appearing as an advocate to represent a party and making submissions in a court or in front of an administrative hearing or tribunal
  • Providing opinions regarding the outcome of a case or course of action
• Negotiating the settlement of any claim or dispute, or participating in a dispute resolution process
• Drafting estate planning documents or probate documents
• Preparing documents related to real estate matters and corporations, as these documents affect the legal rights of an entity or person

Note: This is a non-exhaustive list and other activities may be considered legal advice.

Legal research may provide only legal information or, as noted above, it may be legal advice where the research includes analysis or applies the law to specific facts. Legal research must be reviewed by the active lawyer and that lawyer is responsible for providing legal advice directly to the client.

For further information, contact the Law Society’s Practice Advisors.

[1] If you have provided an undertaking not to practice for a reason other than a conduct or similar proceeding, the requirement for approval does not apply. Contact the LSA if in doubt about your situation.

[2] You may wish to consult with a professional about your options and consider incorporation, such as in the form of a limited liability corporation, and/or seek out private insurance from an insurance specialist who can explain any available coverage options.