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Lawyer and Clerk

Lawyer and Clerk

By:

Avaleah Plant,

Posted October 23, 2023

Notwithstanding that in Ontario they will have articled for 10 months, new calls to the bar have many things to think about in the first days and weeks after they start a related but much different job as a new associate. As much as articles may have offered to the development of comfort and confidence, it is not very long after starting as an associate that the realization of being fully responsible, exposed in a particular sense, for everything they may do or say hits, and hard.  Even greater is the weight of the knowledge that subject to the 3C’s of collegiality, collaboration, and consultation, this will be the case for the rest of their careers.  It is an exciting but challenging time.

Many questions that law schools cannot hope and do not even try to resolve fall to more experienced and senior members of the firm to answer.  The best of these questions asks what is the path to development of place and practice in the firm?  How does one identify, solidify and advance a career? Where does development lie?

As a lawyer and human resources professional respectively, with experience in listening to and working to address the concerns of new and newer calls to the bar, we know that there are many important points to raise and instructions to be given by way of response.  Most of these have at base the importance of building sound relationships early on with everyone in the office. In this effort, while no-one should be left out, and there can be no gaps, every successful law office appreciates the existence of important and diverse roles which to function well must be integrated and formed on common objectives and a common culture.

When we have the opportunity to bring influence to bear, we try never to let our newer colleagues omit or forget the importance of building and sustaining a sound and unifying relationship with support staff, by which we mean, to the greatest extent possible, with all of them.

A Worthy Analogy

A worthy analogy lies between the roles and relationships in the medical profession and roles and relationships in law firms, and specifically, the relationship between senior nurses and interns/ residents, and senior clerks and junior lawyers.

Healthcare studies, practitioners, educators and commentators, especially in the last decade or so have come (been forced) to recognize, and hopefully not too late, that the nature of the relationship between doctors and nurses (and we should possibly reverse them because that is the point), plays a critical role in delivering healthcare having a powerful influence on the quality of patient care.

Can we not say the same thing about the workings of a law office?  The working relationship between clerks and lawyers arguably trumps or is at least at par with all other office efforts to serve the best interests of the client, which of course is what clerks, and the lawyers strive to do.   There can be no argument that the role of the clerk in that regard is not casual but critical.

In 2013, not too far back really, Linnea A. Benike of the Minnesota School of Nursing and Jeannie E. Clark of the Mayo Clinic called for the bridging of a perceived gap between nurses and medical professionals, noting that while the work of physicians and nurses is largely interdependent, establishing true collaboration has long been a challenge.

Visit any hospital and you will find a multitude of trusted professionals hard at work — among them, physicians and nurses. The partnership between these two professions is perhaps the most visible in health care. Nurses and physicians interact uniquely with patients and their families and are vital to ensuring the safety and quality of care delivery.

The challenge was that the lack of true collaboration amongst physicians and nurses often lead to frustration and communication breakdowns that threatened to negatively impact patient care.

The role of nurses is now said to have evolved to incorporate some aspects of medical work with a positive impact on the relationship with medical professionals and patient outcomes. The collaboration called for in the medical profession has evolved.

A similar challenge among lawyers and clerks exists; the consequences of failure of meaningful collaboration and communication, and the effect on the client are the same.

However, the role of the modern clerk has similarly evolved, with improvements in education and certification, with favourable impact on the client. The Institute of Law Clerks of Ontario has been serving students, law clerks and law firms since 1968, offering the Associate Program, Fellowship Courses and Continuing Legal Education, linking law clerks in a network that establishes and supports the highest professional standards by providing its membership with education, networking and advancement. The Associate Program is a two-year program offered by community colleges. Fellowship courses offer additional education for intermediate to senior clerks.

An opinion in The Globe and Mail recently trumpeted that nurses “are the backbone of hospital care, and that It’s time we acknowledged that”.  We could make the same point about clerks in a law office (Robert Cushman, Special to the Globe and Mail, July 21(24), 2023).

Because we think that we will make it:

Nurses of course work directly with the patient, think of the patient as a client and part of that work is to help them process their feelings.  Nurses explain treatments.  They assist in maintaining the link between the doctor and the patient.  A nurse often serves as a patient advocate in protecting a patient’s medical, legal, and human rights. Since many sick patients may be unable to comprehend medical situations and act accordingly, it is often the nurse’s role to support the patient.

The law clerk, and moreover, support staff generally, often plays a fundamental part in client intake and moreover is often the first contact a prospective client has with the lawyers in the firm. The relationship formed at that time often remains until the file work is complete and sometimes beyond. Certainly, the law clerk is an integral part of the file, not only in responding to inquiries from the clients to ensure that they receive the information required, but also in acting as collaborators, mentors, researchers, drafters, and Rules experts.  Both nurses and law clerks are client centric.

In Ontario a lawyer has a duty to carry on the practice of law and in so doing to discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity (Rules of Professional Conduct, c.2).  This is sacrosanct.  The lawyer has these special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice, including a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario. Meeting these obligations and earning this privilege is a big job.

The job, as big as it is, never gets any smaller, or any less important, and it simply cannot be efficiently or responsibly done without a law clerk working to the same clarion call.

Back to Where We Started

First year associates, like interns and residents, do well to recognize in the early days that the law clerk knows more than they do and may have strongly formed connections with others in the legal field that may be exceedingly beneficial to a lawyer throughout their career.  The best friend of an aspiring lawyer has many faces but be sure that one of them is a senior (or any) clerk. Our message: Begin forging this relationship early on in your career by fostering open and honest communication opportunities, collaborating, asking for help/guidance, and setting realistic expectations, goals, and timelines. Finally, make sure the Law Clerk you work with is thanked often, knows they are appreciated, and is treated like an integral member of the team. Because they are.

This blog post was written by Avaleah Plant, Human Resources and IT Manager, and  K. Scott McLean, General Counsel and Director of Practice Development.

 

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K. Scott Mclean

K. Scott Mclean

After 43 years of commercial and related litigation experience, I joined Mann Lawyers in 2020 as General Counsel and Director of Practice Management.  While I continue to be involved in complex commercial disputes, providing advocacy support and strategic advice, I am predominantly involved in supporting the development of our lawyers and their practices, including the recruitment and retention of associates, mentorship in enabling our associates to reach their professional goals, and the provision of structured training programs.  In these roles I enjoy the opportunity to reflect and write, under the heading Practice Management, on the importance of supporting junior lawyers. After completing an honours degree at Carleton University in 1973, I completed my law degree at Windsor Law School in 1975 and an M.A. in political studies in 1976.  I was admitted to the Ontario Bar in 1977.  Since 1977, I have appeared at all trial, judicial review and appellate... Read More

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