If you are working as an independent contractor doing document review work only, what are your insurance obligations?
Exemption from payment of the insurance premium is allowed for:
“(a) Any LAWYER who during the course of the year(s) will not engage in the practice of law* in Ontario”
* “Practice of law” means the giving of legal advice respecting the laws of Ontario or Canada or providing any professional services of a barrister or solicitor for others.”
So, for example, if your services are limited to summarizing information into a legally digestible format as one would for a publisher, without a view to litigation, you can expect that this would not be considered as engaging in the practice of law, so you would be entitled to claim exemption.
As a lawyer conducting document review services in support of litigation, however, you would generally be expected to exercise your knowledge, skills and judgment in the law and apply legal principles, so you could expect to be seen as engaging in the practice of law (even though a non-lawyer might do some similar work or tasks, like identification, recording and correlation of documents, and not be held to the same standard). In the event that this work requires you to exercise your legal knowledge, skills and judgment, you would not be eligible for exemption.
Some examples of lawyers conducting document review services in support of litigation that involve the exercise of legal knowledge, skills and judgement include:
- Assessing different kinds of privilege that may arise when reviewing documents, as part of the process of determining documents that may become the subject of privilege;
- Considering and organising documents based upon relevance to legal arguments put forward by the parties;
- Identifying key documents considered to be particularly beneficial or prejudicial to the client’s or other parties’ legal position.
If a lawyer uses their legal knowledge, judgment and/or skill when working on a matter, the lawyer is engaging in the practice of law.
In determining whether document review services constitute the practice of law, it may be helpful to keep in mind that the following are not considered relevant or determinative:
- Labels used to describe job functions, job titles or the particular work;
- Ultimate supervision of the work; and
- Other insurance that may be in place and maintained by others.
So, for example, the following statements are not instructive:
- “My job title says I am a ‘document processor'”
- “The work I do is described as ‘data compilation'”
- “My employer’s client is responsible for reviewing the work produced on behalf of my employer and has ultimate oversight of the project”
- “I only do primary review, secondary review or quality control review and another team member directs my work”
- “My employer is not a law firm or law corporation”
- “My employer has insurance that should respond to claims brought by its client in the event the document review lawyers make a mistake”
Although generally not the case, it is possible that a lawyer may conduct document review services in support of litigation within very narrow defined tasks that may not involve the exercise of legal knowledge, skills or judgment.
For example, if the lawyer reviews documents only for specific keywords, or only sorts documents to and from specific people, or just organises documents within certain defined time periods, and the lawyer is not involved in the determination of the criteria for this work or have other involvement, then the lawyer may not be engaged in the practice of law.
Ultimately, each lawyer must accurately determine if, even in part, the lawyer relies on legal knowledge, judgment and/or skill to perform their work.
Of course, if beyond any document review services that you may provide you are otherwise actively engaged in the practice of law (e.g., as a sole practice), it would be necessary that you continue to purchase the practice coverage from LAWPRO.
If I am working as an independent contractor doing document review work only, and a company that retains me carries its own insurance, does this affect my insurance obligations and should I be concerned about insurance?
Sometimes a company retaining a lawyer to do document review work will have its own insurance coverage in place that may protect it against claims arising out of that work, and the company may not insist that the lawyer retained to do this work carry their own insurance.
The fact that the company retaining the lawyer has its own insurance, does not mean that the lawyer will qualify for exemption, nor can it be expected that the company’s insurance will protect the lawyer against claims arising out of their document review work.
Although the company may satisfy its policy obligations and find protection under its policy for claims arising out of the lawyer’s document review work, as an independent contractor (i.e., third-party service provider), it is unlikely that the lawyer would be included as an insured under that policy.
As such, no coverage would be provided to the lawyer under the company’s policy and the lawyer can expect to be sued by the company and its insurer in the event a claim involving the document review work arises.
So, for example, if a suit arises as a result of a document overlooked by you that might have affected the outcome of a case, as a lawyer providing the document review service, you can expect to be a party to that suit without benefit of defence or indemnity protection from the company’s insurer. Indeed, you can expect that insurer to actively ensure that the claim is brought against you and that you are made a party to any litigation.
Your eligibility for exemption is not affected by any insurance that a company retaining you may or may not carry. To the extent that your particular document review work is considered to be engaging in the practice of law, you would not qualify for exemption and could not expect LAWPRO to defend you against this type of claim as a matter of course and protect you against damages and costs that might ultimately be awarded.
We invite you to consider your possible exposure to claims arising out of your document review work, since this work may attract liability.
When applying for coverage consider your potential liability for your work and whether you might also apply to LAWPRO for additional limit protection under the optional Excess protection. If you are eligible for and intend to claim exemption, consult with your insurance broker for other insurance protection that may be available to you for your work-related exposures.
Whom should I contact regarding possible changes in my insurance?
If you are currently providing document review services for a third party and have recently filed or are currently claiming exemption, but now realize that you are not eligible for exemption, you should contact LAWPRO promptly to discuss how coverage can be put into place.