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What is Legal Advice, and is an Elephant a Tree, a Snake or a Spear?
Employment Law

What is Legal Advice, and is an Elephant a Tree, a Snake or a Spear?

By April 15, 2021 August 25th, 2021 No Comments

When people call our firm, they will have something particular on their minds. Usually, it is a recent termination or other workplace issues. Why else call a law firm in Hamilton, Ontario? We are not known for our 5-star meals or wide array of garden furniture. 

Many people will look at their situation and narrow what they want to know down to a single question. Often that question is, “Is my termination package fair?” It will then be understandably frustrating when a lawyer will not answer that simple question, which the caller feels has a one-word answer. Why can’t a lawyer simply answer if they will spend the next fifteen minutes asking all sorts of questions anyway? Wouldn’t it be easier to spend five seconds answering then move on with the day?

There are two reasons this is a critical misconception. 

The first is due to the Rules of Professional Conduct. Lawyers have extensive duties to the profession, the Justice system, to their clients and to the public at large. Lawyers have laws about being a lawyer, and violating those can mean being sued for negligence and losing the ability to practice law. 

Rule 1.1-1 defines the ‘Client’ as anyone who has retained the lawyer, but also anyone who “reasonably concludes that the lawyer has agreed to render legal services on their behalf.” If you call a lawyer and ask a legal question, and they answer, that is a legal service rendered on behalf of you. 

At this point in a phone call, the lawyer will only know the information the caller has given them and will have no way of verifying any of it. This is a problem as the Law Society of Ontario has strict by-laws about identifying clients and verifying their identity. 

Many rules rely on this identity verification step, such as those about conflict of interest and duties of fair representation. The Rules are so important that the Law Society puts them on both Bar Exams.

The Lawyer is not just answering a simple question; they are entering in a lawyer-client relationship that exists from that moment until they die. 

Second, a legal matter is like trying to understand an elephant without seeing it and with no context. 

The Ancient Parable of the Blind Men and the Elephant, dating back to 1500 and 1200 BCE, concerns a group of blind men who encounter an elephant for the first time. Each touches a different part of the animal. The one who touches the legs describes it as like a tree, the one the trunk a snake, and the one the tusks a spear. While this parable is utterly unrealistic as to how visually impaired and blind people function, it’s underlying purpose about having to see the whole picture and the mistakes you make when only looking at a part are key. 

Clients will be understandably personally involved in the parts of their own case. A person who has been terminated due to possible discrimination may call and ask, “Do I have a Human Rights Complaint?” A lawyer could quickly go over the facts and give a yes or no answer, but that accomplished nothing except creating a problem for the lawyer with the Law Society. 

If there is a Human Rights Complaint, what now? The single simple question has turned into many other questions such as: 

  • “What are the grounds for my complaint?” 
  • “How do I make that complaint?” 
  • “What happens if I win?” 
  • “What are the risks to my career if I do this?”
  • “Do I need a lawyer now?”

The caller is now back at the start. They have to book the consultation with the lawyer anyway and has likely delayed starting their case. 

If there is not a case, and the call ends, there may be most of an elephant of legal options and important information that the caller has no idea about. 

Let’s say the caller was having issues with their manager, but it does not meet the threshold for discrimination. If the manager has been reducing their hours of work, that could be a constructive dismissal regardless of the intent. The caller could be entitled to termination pay and severance of up to twenty-four months of salary, benefits, and bonuses. 

The lawyer has also not seen the contract of employment or any other important documents. With terminations, the answer to “Is It Fair?” is usually “It Depends.” We need to see the whole elephant to understand what the possibilities and outcomes are, and that takes a consultation appointment.  

If you need to turn four trees, a snake, and two spears into an elephant, or are have been terminated or are having an issue at work, we encourage you to contact De Bousquet PC.

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