In Bergen & Associates Incorporated v. Sherman, 2014 ONSC 7213, Justice Myers defines legal work in the context of a disputed bill.
Bergen & Associates contested their bill from David Sherman under the Solicitors Act. David Sherman claimed that his bill could not be reviewed because the invoices related to his work as a tax consultant and not as a tax lawyer.
In analyzing whether Sherman’s work constituted legal work, Justice Myers referred to Re Aitkin (1820), 4 B & Ald. 47, in which Abbott C.J. held that when a client employs a lawyer based on his professional character there is a presumption “that his character formed the ground of his employment by the client”. Therefore, the test is: whether the person would have been employed if he was not a lawyer.
Justice Myers also looked at the Solicitors Act in analyzing Sherman’s work. According to the Solicitors Act, “a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.”
[20] The provision of legal services includes the application of legal principles and legal judgment with regard to the circumstances or objectives of a client, negotiating the legal interests, rights or responsibilities of a client, giving advice concerning such legal interests, rights or responsibilities, and drafting documents affecting such legal interests, rights, or responsibilities.
The definition of legal work is significant as we move into an Internet-based information society. At the core, law is information-based, and lawyers are in the middle of an information revolution. Consequently, the work performed by lawyers is changing while new players enter the legal world, like LegalZoom.
In order to assess the character of work in this new era, we must adopt Justice Myers’ principled approach and move beyond labels.
