Description

In episode 2 of All Worked Up, Jill and Dana demystify the process of hiring a lawyer. They break down conflict searches, retainers, and confidentiality. Dana confirms the etymology of ‘Cone of Silence’, Jill and Dana may or may not need a refresher on stocks.

Full episode transcript below:

Male 1: This podcast is produced by Nelligan Law.

DuPerron: Welcome to All Worked Up, the Podcast where two Employment Lawyers break down real life workplace issues that affect real people. I’m Dana DuPerron.

Jill Lewis: I’m Jill Lewis, and we’re Senior Associates at Nelligan Law. And we’re super excited to bring you this Podcast aimed at making employment issues interesting, accessible, for employees and employers.

Welcome to All Worked Up. This episode we’re going to go through retaining a lawyer, speaking with a lawyer, reaching out to us, and everything that you need to do ahead of time. 

DuPerron: And just sort of hopefully demystifying that process a little bit, because I think it can be intimidating. 

Jill Lewis: It can be super scary and I know you’ve gone on Google. You’ve looked it up. You’ve looked up all the sites, but now we’re going to break down what it’s like to actually reach out to us.

DuPerron: Yes. So from an employment perspective, at least with our team –

Jill Lewis: Yes.

DuPerron: – you call. You will get Wafaa. Oh, she’s lovely.

Jill Lewis: She’s wonderful. Wafaa’s the best. [Laughs]

DuPerron: If Wafaa’s not there, someone else.

Jill Lewis: Yes.

DuPerron: Who’s also equally as delightful.

Jill Lewis: Yes. [Laughs]

DuPerron: First thing they’ll do is run a conflicts check. People get scared about conflicts.

Jill Lewis: What’s a conflict check?

DuPerron: Exactly. People get scared about that. Like you think, “Oh my God, if I tell you my employer’s name, are they going to know that I called?” And like no. Nobody knows that you called. All that information is confidential, but we need to make sure that we don’t represent your employer or someone who you’re having a problem with – in the workplace or something – we just have to make sure – and it might not even be in the Employment Law group. 

Jill Lewis: Exactly.

DuPerron: It could be a different group has that client. And you can’t work against your client.

Jill Lewis: Yes.

DuPerron: If we have any confidential information about someone, we can’t then help you unfortunately. So we just have to run through all that and make sure that it’s all clear.

Jill Lewis: Yes.

DuPerron: But if we get either – if you’re an employer calling on behalf of an issue with an employee and you give us their name – even if they are a client – we can’t – that information we can’t share.

Jill Lewis: Yes.

DuPerron: And same thing if you’re an employee calling on behalf – or because you’re having an issue with your employer – then you tell us your employer’s name and if they’re a client, we’re not turning around and saying, “So-and-so called us.” We can’t do that.

Jill Lewis: Yes, yes. Exactly.

DuPerron: So you’re safe. That piece is confidential. 

Jill Lewis: Yes, because you never know, right. We have Family Law – 

DuPerron: Yes.

Jill Lewis: – at Nelligan. We’ve got Real Estate. So you know –

DuPerron: IP, Business.

Jill Lewis: We might be representing somebody in a divorce. 

DuPerron: Yes, maybe. 

Jill Lewis: Yes, so it’s – you’re going to be asked those questions. It’s not anonymous. You have to give us that info. So, yes, that’s going to be one of your first questions with Wafaa. And then she’s going to ask for a little summary of the issue. You’re not giving the whole novel. You’re just – what am I here for. I have harassment in the workplace. Or I’ve been fired and I just want to have my severance package reviewed. And so she’ll jot all that down and then she’ll give you some options on lawyers. 

DuPerron: And so we have a pretty big Employment Law team. Some people do only employer side work. Some do only employee. A big chunk of us do both. I do both. 

Jill Lewis: Yes.

DuPerron: You do both. I like doing both. I think it’s good. Keeps things interesting. So she’ll give you the different options. Here is this person, who’s a first year Associate and this is their rate, which is going to be lower than a more Senior Associate or a Partner. And here’s Janice Payne, the most Senior person in our group, and here’s her rate. But there’s all kinds of people who follow in between.

Jill Lewis: And everybody in between.

DuPerron: Yes. [laughter] And what their rates are. And then you get to choose what you think is best for your issue. And she can provide guidance on whether or not people have expertise in that area. And that’s actually one of the great things about having a big team.

Jill Lewis: Yes.

DuPerron: Just in general.

Jill Lewis: Exactly.

DuPerron: Is we get to talk to each other about issues, which is actually part of the reason that we actually wanted to start doing this.

Jill Lewis: Yes. [Laughs]

DuPerron: Because we talked about these issues so much.

Jill Lewis: We can’t stop talking about Employment Law, we love it.

DuPerron: Yes. So that’s how it will work. You’ll pick your lawyers. 

Jill Lewis: And you can go on the website. You can look at – maybe you just like the feel of someone, how they speak, or there’s videos.

DuPerron: Yes.

Jill Lewis: I think there’s videos of everybody.

DuPerron: Yes.

Jill Lewis: Introducing themselves.

DuPerron: Yes.

Jill Lewis: And stuff like that, yes. 

DuPerron: Because you want to be comfortable with whoever you pick.

Jill Lewis: Yes. So you get to pick and then there’s also French lawyers too.

DuPerron: Right.

Jill Lewis: Or maybe, you know what, you want to talk to somebody at 2:00 o’clock that afternoon.

DuPerron: Yes.

Jill Lewis: And there’s only one person available, so.

DuPerron: Yes.

Jill Lewis: So you’re going to run through that with Wafaa. You’re going to pick your lawyer. What other information does she take right away? I’m trying to – 

DuPerron: She’ll take some of that background information.

Jill Lewis: Yes.

DuPerron: Like your position.

Jill Lewis: Yes.

DuPerron: How long you’ve been somewhere. Your compensation. Like what you’re getting paid. If you have any special aspects of your pay.

Jill Lewis: Yes.

DuPerron: Like stocks, or bonuses, or –

Jill Lewis: Yes, that stuff.

DuPerron: – whatever. Some of that sort of big background information.

Jill Lewis: Yes.

DuPerron: If you’ve got an employment contract, she’ll ask all that. And then she sends a lovely little summary that sets out, “Here’s what we talked about. Here’s the lawyer you’re meeting with. Here’s the cost. And please send on ahead any documents in advance that you want us to review.”

Jill Lewis: Yes. So you’re also going to have to provide a copy of your license – a driver’s license.

DuPerron: Government issued ID.

Jill Lewis: Are we still doing that ahead of time?

DuPerron: Yes.

Jill Lewis: So it used to –

DuPerron: And so that’s a must, is ID, yes.

Jill Lewis: Yes, it used to be you’d come in – to the office – and somebody would take a copy. But now are there anybody coming into the office anymore right now?

DuPerron: You can.

Jill Lewis: Yes.

DuPerron: You can – if you prefer to have an in-person consult, we can manage that.

Jill Lewis: Yes. You ask that.

DuPerron: A lot of people are fine with telephone or prefer telephone, so that is also not an issue. And if you want to see someone’s face, we can accommodate video conference, however that is.

Jill Lewis: Yes, it’s been great. 

DuPerron: Yes.

Jill Lewis: People don’t have to worry about finding parking downtown.

DuPerron: Yes. [Laughter] Exactly.

Jill Lewis: Yes.

DuPerron: No, totally. So she summarizes it. Asks you to send on any documents. And then –

Jill Lewis: Yes. That’s right. So then it all gets sent to the lawyer and we – like you said, we take a look at all those documents. I mean we don’t read every single word of every single document, because sometimes –

DuPerron: Yes.

Jill Lewis: – people send us everything.

DuPerron: And that’s fine. It’s better to have more than not.

Jill Lewis: Exactly.

Du Perron: You’re skimming for the essential points that you need.

Jill Lewis: Exactly.

DuPerron: Yes.

Jill Lewis: Exactly. Yes. What are you usually looking at for [crosstalk 00:05:38]?

DuPerron: I’m usually looking at – so it depends on what Wafaa’s summary is and what I think the – what it seems like the issue is. If it’s a severance package, I’m usually looking at – you’re looking at the contract. You’re looking at the termination clause, which we’ll get into, at another episode.

Jill Lewis: Yes.

DuPerron: Yes. In more detail.

Jill Lewis: Stay tuned.

DuPerron: Why that’s important. And any post-employment obligations, non-compete, non-solicit, things like that. You know, if they’re in a – in certain circumstances – usually if I’ve got someone with a techy background or something, I’m also looking at the IP clause and confident to just flag those issues with someone.

Jill Lewis: Yes.

DuPerron: Those are the big ones in contracts and then what they’re getting offered?

Jill Lewis: Whether they have stocks?

DuPerron: Yes. [Laughs] Whether they have stocks. And then I do a quick Google. [Laughs]

Jill Lewis: On what a stock is?

DuPerron: No. Jill. [Laughs]

Jill Lewis: Just kidding.

DuPerron: But yes. Like all those elements of their compensation, that kind of thing. If they’re – if they’re harassed or they’re thinking that there’s harassment in the workplace, that’s where it’s helpful to get a summary.

Jill Lewis: Yes.

DuPerron: But we can talk about it too if you don’t want – if it’s too much to write it down. 

Jill Lewis: Yes, yes. I like getting a timeline – a quick timeline. I love when people do the characters – the top people. 

DuPerron: Yes.

Jill Lewis: Because people come in and they’ll chat and they’ll start talking to you about it. “And then he said this but then she emailed me that.” And I have to stop people. “I don’t know who he and she are. 

DuPerron: Yes.

Jill Lewis: I’ve just learned your story. You’ve lived your story.

DuPerron: Yes. Yes.

Jill Lewis: For the last umpteen years.”

DuPerron: Yes.

Jill Lewis: So it is actually helpful up top, if you want to write like main [laughs] characters.

DuPerron: Yes.

Jill Lewis: You know, here’s my boss, this is HR’s name, this is the co-worker I’m having problems with – right up top.

DuPerron: Yes. Totally.

Jill Lewis: That’s always super, super helpful before a meeting. And then we get into the meeting. Should we talk about cost?

DuPerron: Absolutely, we should talk about cost.

Jill Lewis: We got to talk about cost.

DuPerron: And you know what I tell people – Wafaa will go over costs with you.

Jill Lewis: Yes.

DuPerron: Or whoever is doing intake will go over costs with you and how that works, but that’s the most important thing.

Jill Lewis: Yes.

DuPerron: Really. Because people want to know, “What is this going to cost me?” 

Jill Lewis: Yes.

DuPerron: We charge for our time – so that’s reviewing those documents ahead of time; meeting with you. When you’re sending on a quick contract – when those documents are brief – it’s not a huge amount of time before, you know exactly how long we’re meeting with you so you’ll know whatever that time – amount of time is. But yes, I think people need to know that, because it shouldn’t be a secret.

Jill Lewis: Yes.

DuPerron: Right?

Jill Lewis: No.

DuPerron: It shouldn’t be – it should be transparent.

Jill Lewis: Exactly. Exactly. We do charge for our time. It is – and like it’s very specific [laughs] – our time – it’s – I spent 15 minutes reviewing this.

DuPerron: Yes.

Jill Lewis: You’re getting charged by – pretty much by the minute –

DuPerron: Yes.

Jill Lewis: – for that kind of thing. And it’s not free consults. We don’t do the free consultation. But you get to meet with the lawyer right away and you get all your information up front. That’s what I think is important to know, you know differentiate us from –

DuPerron: Yes.

Jill Lewis: – some people that do some free consults. So yes, you’re – and you may be asked to put a credit card down at first. And I’m asking these questions of you, Dana, because I’m currently on mat leave.

DuPerron: Yes.

Jill Lewis: So I don’t know our current –

DuPerron: Right now it is – there is a credit card hold.

Jill Lewis: Yes, a hold.

DuPerron: If you don’t want to take further steps after the consultation, they will charge whatever was actually incurred and release the rest of the hold. And that’s a big part of that initial first meeting too, is also letting you know if it’s a financial gain that you’re hoping to get out of it.

Jill Lewis: Yes.

DuPerron: If it is an ending of the employment relationship you want a package, whatever, how much it’s going to cost you to try to get at more and what your chances are of recovering more, because not every case is about money. There are a lot that you know are for people who are about principle or about a horrible experience that they’ve had in the workplace, but money is important.

Jill Lewis: Of course it is.

DuPerron: And we want that to be – the focus is getting a good result.

Jill Lewis: Yes. Yes.

DuPerron: So we have to have those discussions.

Jill Lewis: Yes, so the retainer. So then we get into the conversation. And you know we’re either – when we meet with the clients – we’re reviewing their packages with them. We’re giving them their employment breakdown of the big three which we went over in Episode 1. And then we obviously – 

DuPerron: Just a refresher.

Jill Lewis: Just a refresher.

DuPerron: Employment Standards Act, or any other legislation that applies. The Common-Law, which is judge-made decisions.

Jill Lewis: Judge-made law.

DuPerron: And the contract.

Jill Lewis: And the contract. And then we’re going to get into their specifics. What we think they’re entitled to, or what we think their options are. And we’ll usually break down a few different options. Maybe we think you can negotiate on your own. Maybe – you know like maybe we’re a little bit of a ghostwriter in the back. And we’ll help you draft that email or something. Or maybe you want something to come from a lawyer – 

DuPerron: Yes.

Jill Lewis: – with our stamp on it. So we’re going to go through all those options. We’re going to provide different avenues for you to take. And at the end of the consults, you don’t have to make a decision on the spot. If you’re happy to go along with one of the options and we’ve kind of made a plan of attack –

DuPerron: Yes.

Jill Lewis: – then we’ll take the retainer. The retainer is – retains our services for future work – so we usually put about 1500.

DuPerron: Fifteen hundred to –

Jill Lewis: Fifteen hundred, 2000.

DuPerron: Yes.

Jill Lewis: You put it down, but that goes into a Trust Account. It’s not just going straight into our pockets. 

DuPerron: Right.

Jill Lewis: So it’s in a Trust Account. We perform the services. And then we use that Trust Account to pay for those services. If you put money in that Trust Account and maybe you decide you want to stop the process or maybe we’ve been able to complete the task within that amount, you are – you know you’re returned.

DuPerron: Yes.

Jill Lewis: You receive that money back. And yes, so you start with a retainer. We don’t do work without the retainer. So that’s just something to be aware of. You know have your credit card handy. Have room on the credit card. Sometimes, I’ve gotten that too. “Oh shoot. I just don’t have the space right now.”

DuPerron: Yes.

Jill Lewis: So that’s just something to be aware of. 

DuPerron: And then after that we bill monthly so you’ll see our bills as –

Jill Lewis: Yes.

DuPerron: – frequently as monthly. And I think that’s good, because that keeps people – that let’s them know where you’re at in the process.

Jill Lewis: Yes.

DuPerron: Instead of it being like a surprise when all of a sudden it’s – you get this bill six months later that is difficult to pay. You’re better to –

Jill Lewis: Exactly.

DuPerron: – see it as you go and you know what’s incurring. Two things that I also always tell people now at the start of a consultation is, if it’s a phone consultation and you can’t see my face –

Jill Lewis: Yes.

DuPerron: – I type notes. 

Jill Lewis: Right.

DuPerron: So I want people to know that if you hear me like, ta-ta-ta-ta-ta-ta, typing away –

Jill Lewis: Yes.

DuPerron: – you have my full attention.

Jill Lewis: Right.

DuPerron: And I’m just getting these notes down as quickly as I can.

Jill Lewis: Yes.

DuPerron: Because I don’t want someone to think that I’m doing something else while I’m talking to them. And then circling back to what we talked about at the beginning, everything that you discuss with your lawyer, is confidential.

Jill Lewis: Yes. Good point.

DuPerron: You can’t be compelled to testify about it because it’s covered by something called Solicitor Client Privilege but the lawyer can share it more broadly.

Jill Lewis: Yes.

DuPerron: And that applies to everyone within the Law Firm. So if I’m talking to you about a file because I want to get your ideas – 

Jill Lewis: Yes.

DuPerron: – you’re covered by that. If my assistant is filing things away and sees things –

Jill Lewis: Yes.

DuPerron: – she’s covered by that. So hopefully that gives people the confidence to speak freely and openly.

Jill Lewis: Yes.

DuPerron: Because we need all the information to be able to fairly advise you and accurately advise you, so.

Jill Lewis: We need all the information.

DuPerron: Yes, that’s right.

Jill Lewis: Because we will find all the information.

DuPerron: Or it usually comes out – trickles out piece by piece –

Jill Lewis: You know what I mean?

DuPerron: – if something is with – like you’re better off just being honest right off the bat.

Jill Lewis: Oh my God. Like I have sent demand letters where you get the return letter from the opposite side and the version is a little bit different, or there’s certain things that were left out.

DuPerron: [Once or twice? 00:12:40].

Jill Lewis: And it’s like, “Oh OK.”

DuPerron: Yes.

Jill Lewis: You have to tell your lawyer everything.

DuPerron: Yes.

Jill Lewis: And even if you’re not retaining us, same thing applies right.

DuPerron: Yes. Absolutely.

Jill Lewis: All of your information is –

DuPerron: Confidential.

Jill Lewis: – confidential yes. Cone of Silence.

DuPerron: Yes.

Jill Lewis: Yes. Those are important things to know.

DuPerron: Except did you know that the Cone of Silence comes from – what’s it called – Maxwell Smart and apparently things weren’t actually silenced.

Jill Lewis: Silenced.

DuPerron: And they were in the Cone of Silence. So anyway, [laughter] if that is the case – if that’s our –

Jill Lewis: Our Cone is silent.

DuPerron: Is a true Cone. It is silent. Yes.

Jill Lewis: It has to be.

DuPerron: Yes. Absolutely.

Jill Lewis: We’ll lose our license.

DuPerron: Yes. [Laughter] So I think that’s it. I think that is the first visit. I hope that goes a long way towards demystifying what the process is like.

Jill Lewis: Yes, it’s not scary, so you call. You speak with Wafaa. You give some basic information.

DuPerron: She’s great. You’ll love her.

Jill Lewis: Oh my God. She’s wonderful. And then you’re going to send us some of your documents. You’re usually speaking to a lawyer within 24 to 48 hours.

DuPerron: Yes, within a few days. And then also some people want to delay a bit like, “I want to talk to you next week.”

Jill Lewis: Yes, yes, yes.

DuPerron: OK. Fine. 

Jill Lewis: Yes. Some people get fired and call –

DuPerron: Yes.

Jill Lewis: – Employment Lawyer that day. 

DuPerron: Yes.

Jill Lewis: And they’re really riled up.

DuPerron: Yes.

Jill Lewis: So yes, it is good to have a few days. And then you’re going to sit down with us and we’re just going to, yes, we’re going to talk about everything.

DuPerron: Yes.

Jill Lewis: Everything that you could be entitled to. And then you make that next decision whether you want to go forward or not. And then we go from there.

DuPerron: Yes. You’re driving the bus.

Jill Lewis: Yes.

DuPerron: Yes. 

Jill Lewis: OK.

DuPerron: OK. Well we’ll see you next time.

Jill Lewis: See you next week. Do we need to sign off? [Laughter]

 

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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