Introducing No Delay May 

A Master File List should complement your diarization system and offer positive redundancy to ensure your files are progressing and are in order. As you create or refresh your Master File List, be sure to also check that every file is appropriately diarized. 

If you are concerned you do not have the time to create a Master File List, consider the return on investment you could realize from the time spent. Setting up a Master File List can yield significant benefits, including enhanced control over your practice, reduced time spent transitioning between files, improved client service, and a lowered risk of communication or delay-related claims.

Resources

For more guidance on Master File Lists, please refer to section 9.5 of Law Practice Essentials (File Management), and Mastering Client Files, which includes links to sample Master File Lists for civil litigation, criminal law, family law, and real estate law. Section 9.3 of Law Practice Essentials also provides an overview on Limitation Dates, Other Deadlines and Diary Systems. 

As an Alberta lawyer, you also have access to a wide range of personal and professional services, including practice support from Practice Management, legal and ethical guidance from Practice Advisors, and personal well-being support from Assist, Alberta Lawyers Assistance Society. 

Say Nay to Delay in May!

This May, commit time to refreshing your best practices and toolkit. A current Master File List gives you a clear, at-a-glance picture of every matter so you can keep work moving, catch issues early, and prevent delay. Watch for the next No Delay May ALIAdvisory providing practical information around standstill and suspension period agreements. 

Likewise, Subscribers are obligated to report any updates to their assigned Claims Counsel in a timely way. The varying circumstances will dictate how long each potential claim ought to be monitored, before Claims Counsel proceeds with closing the file. Importantly, if a potential claim file is closed and a claim develops thereafter, the file can be re-opened and there is no compromise to your coverage as a result. If no claim ultimately arises, then (generally speaking) no costs or repairs/damages arise, so there is no deductible or surcharge incurred on the file.

On the opposite end of the spectrum, where a covered claim results in litigation, your Claims Counsel will retain defence counsel under a joint retainer. From there, if a waiver of defence can be obtained from plaintiff’s counsel, great, but otherwise defence counsel will ensure your statement of defence is filed straight away and then proceed with a more fulsome assessment of ALIA’s risk and your liability as well as any viable defences. Often, a call between the Subscriber, defence counsel and Claims Counsel will be scheduled at the outset to discuss file strategy including possible early resolution. Strategy calls are typically utilized throughout the litigation’s progression.

Pursuant to the Policy, ALIA has exclusive control of the defence. While a Subscriber’s cooperation is required (document production, questioning, etc.), a Subscriber can request to have as much, or as little, involvement as is possible. Some Subscribers prefer to be closely involved in the litigation strategy, whereas others request high-level updates only. If defence counsel is retained, the $5,000 individual deductible is payable, meaning the Subscriber is responsible for the first $5,000 paid out on the claim. If damages are ultimately paid out on a claim, the surcharge is then payable, which is a professional liability assessment in addition to the annual base levy. The surcharge is payable for five consecutive practice years.

In between those two extremes, you might be faced with a scenario where your former client has made a claim to ALIA, shy of filing/serving a statement of claim. In that case, Claims Counsel will work with you to determine whether the claim has any merit and whether to retain defence counsel or attempt to resolve the claim directly with the former client.

Another unique scenario is where there remains a distinct opportunity for particular steps to be taken to mitigate the claim or avoid it entirely (e.g. an application to strike a client’s action for long delay pursuant to rule 4.31 and/or 4.33). These scenarios are called “repairs” because successfully defending against this type of application means the underlying action can proceed and avoids the claim against the lawyer altogether. The decision to undertake a repair is within ALIA’s discretion, but it also requires the client’s consent and operates on a tripartite retainer. Occasionally, ALIA will initially hire defence counsel to assess the viability of a repair attempt. If counsel’s recommendation is to pursue a repair, and the client consents, counsel’s role can be switched over to repair. If the repair is not successful, and a claim develops against the lawyer, different counsel will be retained to defend the claim against the lawyer. Repairs trigger both the deductible and the surcharge. Your Claims Counsel is available to you to answer any questions you might have regarding these financial implications.

Being sued is an unnerving experience for anyone, but particularly so for lawyers who are accustomed to being involved in litigation, only in an entirely different way. Rest assured, ALIA will have your back. The role of Claims Counsel is to guide you through the process and assist in ensuring the best resolution of whatever scenario you are faced with. Do not hesitate to reach out to your assigned Claims Counsel with questions or concerns at any time throughout the process.

This is the third and final installment of a 3-part “Demystifying ALIA” series, the goal having been to clarify the ALIA process and the corresponding obligations of ALIA Subscribers. Take a look at the prior installments for more information.

📖 Demystifying ALIA Part 1: What to report

📖 Demystifying ALIA Part 2: When to report

Reports to ALIA that are not timely can result in denial of coverage. There is no coverage, regardless of whether there has been any prejudice to ALIA, for claims where a Subscriber was aware of a claim or potential claim on or before June 30, 2020, and did not report it by June 30, 2020 (i.e. “true late reports”). The 2020-2021 Group Policy, which came into effect July 1, 2020, saw amendments that included a late notice provision (condition 4.2(b)) for claims and potential claims. It remains a requirement that all claims and potential claims must be reported to ALIA, in writing, during the policy period in which they are first made against a Subscriber or a Subscriber first becomes aware of the claim or potential claim.

A claim is “first made” when a Subscriber becomes aware of a circumstance which could reasonably be expected to give rise to a claim, however unmeritorious. For claims “first made” after July 1, 2020, the late notice provision applies. In such cases, coverage can be denied for late reporting if ALIA has been prejudiced by the late notice. The assessment of prejudice is highly contextual, and the onus is on Subscribers to prove that late notice has not prejudiced ALIA.

Send a high-level overview ASAP

Given that the question of prejudice is so context-dependent, it is imperative that you report to ALIA as soon as you become aware of a professional negligence claim or potential claim against you. This practice should be followed even if you are, for whatever reason, not able to provide all the details and relevant supporting documentation concurrent with your initial report. While the task of reporting can feel overwhelming amidst your file load, it is better to spend five minutes providing a very high-level overview of the situation, than delay reporting in order to provide a more comprehensive initial report.

Condition 4.2(b)(c) provides that after (initial) notification of a claim or potential claim, Subscribers shall submit “as soon as practicable” all information reasonably required by ALIA that the Subscriber is reasonably capable of providing. Make the initial report as soon as you become aware of it and your assigned Claims Counsel will work with you to pinpoint the additional information that is needed from there.

ALIA does require a completed Indemnity Claim Report form for every file eventually, which you will be prompted to attach if making a claim on ALIA’s website. However, if time is an issue, you can report a claim via the Contact Us section of ALIA’s website without the form or any attachments to accompany it and simply provide the form later. Alternatively, you can also report a claim by sending an email to ALIA admin. If you notify our admin team of a claim or potential claim via email, you will have a Claims Counsel assigned to your file, who will reach out to you to discuss further and obtain the information needed to properly assess the file and come up with a plan.

ALIA’s Policy runs from July 1 to June 30 and is renewed on an annual basis. It is a good idea to make it part of your practice to review files for potential issues and report by June 30, annually. If you have an assistant or associate who is able to help, you may be able to delegate the more tedious aspects of getting your reports signed, scanned and emailed over to ALIA. Use your diary system to give yourself enough time for a comprehensive file review well in advance of the June 30 policy year-end date.

The ALIA team is here to help, guide, and (hopefully) ease stress accordingly. The sooner you report, the more likely and better able we are to help. Add that yearly June 30 ALIA reporting date to your diary system and, again, do not hesitate to report out of an abundance of caution and submit high-level initial reports to ALIA with more fulsome information to follow. Your designated ALIA Claims Counsel will guide you through the process.

At first brush, the “as soon as practicable” reporting obligation that applies to all ALIA Subscribers may feel heavy and overwhelming, and cause many to procrastinate making the necessary report. In reality, that reporting obligation can be satisfied by taking five minutes to send an initial email with a high-level summary. Overall, familiarizing yourself with the ALIA policy, process, and the ALIA team will make the task of reporting much less daunting.

📖 Demystifying ALIA Part 1: What to report

📖 Demystifying ALIA Part 3: What happens after a report to ALIA?

Mistakes happen. Clients accuse their lawyers of mistakes, whether or not mistakes have been made. Lawyers are sued. The good news is that ALIA, the mandatory professional liability indemnity program for those Alberta lawyers required to participate in it, exists to help lawyers through these stressful situations. ALIA is a wholly-owned subsidiary corporation of the Law Society of Alberta. There are certain rights and obligations that come with being an ALIA Subscriber. The best thing you can possibly do to protect yourself when a potential problem arises is report to ALIA.

No downside to reporting potential claims

ALIA Subscribers have an obligation to report claims and potential claims to ALIA “as soon as practicable” and to cooperate with ALIA throughout the process. It is a condition of ALIA’s policy that Subscribers report any circumstance which could reasonably be expected to give rise to a claim, however unmeritorious. ALIA coverage can be denied as a result of failure to report or late reporting causing prejudice.

Although not a comprehensive list, every one of the scenarios detailed above requires a report to ALIA, which can be done online. ALIA’s website FAQs provide more examples of situations that ought to be reported to ALIA. ALIA regularly receives reports of potential claims. There is no downside to reporting “abundance of caution” scenarios to ALIA. Doing so creates a record of that report, within a designated file, and protects you from running afoul of the policy in the event that a potential claim evolves into an actual one.    

ALIA might be able to help you to repair the mistake. Pay close attention to situations where there may be an opportunity for particular steps to be taken to mitigate the claim or avoid it entirely. These scenarios are called “repairs”. One example of a potential repair is when an application to strike a claim for delay pursuant to Rule 4.31 and/or 4.33 (the “drop dead” rule) of the Rules of Court has been threatened or filed. ALIA may, with the client’s consent, decide to retain counsel to defend against the application. If successful, the underlying claim can proceed and the claim against the Subscriber is avoided altogether. Successful repairs are more likely if there has been a timely report to ALIA.

Other times, there will not be an easy fix. You will need a defence and a team in your corner. In those situations, ALIA will facilitate that and do everything we can to help relieve the stress of the situation for Subscribers. It is not uncommon for Subscribers to express that they feel much better once they have reported to ALIA. We are here to help however we can.

Err on the side of caution

Subscribers would be well-served to develop a practice of keeping ALIA’s Indemnity Claim Report Form. Whatever you do, do not bury your head in the sand! The one thing that will never help is ignoring the potential problem or putting off dealing with it. If the task of reporting feels overwhelming amidst your file load, it is better to spend five minutes providing a very high-level overview of the situation, than delay reporting in order to provide a comprehensive report from the outset. 

Sure, knowing what and when to report can feel daunting. But the answer is actually a lot simpler than you may think. When in doubt, report. That applies to both potential claims and actual filed claims. From ALIA’s perspective it is always better to err on the side of caution and report.

If you are ever unsure as to whether or not you ought to report, you can reach out to ALIA. Give ALIA a call and run a scenario by the ALIA team if you are having difficulty deciding whether an ALIA report is warranted.

📖 Demystifying ALIA Part 2: When to report

📖 Demystifying ALIA Part 3: What happens after a report to ALIA?