This article discusses the right way to end a lawyer-client relationship and avoid harming a case in the process. Nothing in this article is intended to encourage disagreements between lawyers and clients. To the contrary, the article seeks to help with a smooth transition at the end of a lawyer-client relationship. The article serves as a checklist of potential issues that may arise at the end of the relationship and some general thoughts on those issues that may not be immediately apparent.
The Beginning
The start of a lawyer-client relationship often involves an initial call or initial email, a conflict check, consultation (typically for a fee), a fee quote for services and a written retainer agreement.
The End
The legal work gets underway, the litigation proceeds and while most lawyer-client relationships work well, there may become a time where the lawyer-client relationship is no longer working out for one reason or another: not a good fit, difference of opinion, fee issues, communication breakdown, etc. The first thing to know is that it is okay for the lawyer-client relationship not to work out; the end of a lawyer-client relationship is not necessarily either party’s fault. Good communication may overcome the usual bumps in any relationship.
Ending the Relationship
A client can end the lawyer-client relationship for any reason or even no reason. A lawyer can end the lawyer-client relationship, but must have reason to do so. Reasons a lawyer can end the relationship include a loss of confidence, failure to accept advice, unreasonableness, communication breakdown, no instructions and non-payment of fees, among other reasons.
When the lawyer-client relationship ends, there is a right way and a wrong way to go about winding up the relationship. The goal of this article is to help lawyers and clients think about these issues in order to make sure they are all covered and to go about winding up the relationship the right way.
Legal Fees and Disbursements
One issue at the end of a lawyer-client relationship is legal fees, disbursements and HST. Are they paid up? Are the fees fair and reasonable? Is there a contingency fee agreement?
If the legal fees are paid up and they are fair and reasonable, then there is no issue. If there is a question of fairness and reasonableness, that may be something worth discussing in a respectful manner. There may be a misunderstanding or some explanation required. If the client wishes, they have a right to assess the lawyer’s invoices pursuant to the Solicitors Act, R.S.O. 1990, c. S.15. The client has up to 30 days to start an assessment by requisition (s. 3(b)) and up to 1 year to make an application to the Court for an assessment unless there are special circumstances (s. 4(1)). A lawyer must wait at least 1 month before starting an assessment. Information on the 9 factors considered on assessment is is here.
Some retainer agreements have arbitration clauses and arbitration can actually be a better solution than an assessment because arbitration maintains the client’s confidentiality, whereas assessment is a public proceeding. More information on arbitrating legal fee disagreements is here.
Some legal fee disagreements wind up in the Courts (outside of the assessment process) for one reason or another, which may include a disagreement over the terms of the retainer agreement, special circumstances and/or related issues such as allegations of negligence.
Contingency Fees
Where there is a contingency fee retainer agreement, it is very important to take a look at the termination provisions in the retainer agreement. Some will say that upon termination of the lawyer-client relationship, fees are converted from a contingency fee to hourly rates. This can mean that there is a large invoice sent prior to the end of the case. The hourly rate invoice could be larger than the likely contingency fee agreement. For example, assume a contingency fee matter is valued at or anticipated to settle for $120,000 and the contingency fee is 1/3rd or $40,000 plus HST. Depending on the stage of the claim and amount of work done, it is possible that hourly rates total $60,000 plus HST. Termination by the client may mean a larger invoice, due immediately and the need to find a new lawyer, pay to get them up to speed and pay them to complete the case. Assume this will cost $25,000 plus HST. Now the client is looking at $60,000 + $25,000 = $85,000 plus HST in legal fees, whereas if they had stayed the course the contingency legal fees would have been $40,000. These numbers are simply for illustrative purposes, but they confirm a complexity with contingency fees.
Personal injury litigation may result in a change of lawyers from time to time and it may be best that the new lawyer “protect” the former lawyer’s fees and disbursements. A well-considered agreement between the client and the two lawyers can mean there is a continuation of a contingency fee agreement without much increase in fees and with no fees due immediately. Such an agreement will also typically deal with disbursements.
The bottom line on legal fees is to get them worked out so that there is no looming and public legal fee dispute that other parties to litigation can observe.
Solicitor’s Liens
A solicitor’s lien enable the lawyer to hold back from releasing a client file where there is unpaid work and no prejudice will result. This may be problematic in terms of carrying on the case and/or retaining a new lawyer. If the claim has value, then it may be worthwhile to pay off the outstanding legal fees, obtain the file and move on. If there is an anticipate legal fee disagreement, the legal fees can be “paid under protest” where the right to assess the fees is preserved, all the while the lien is removed and file obtained.
The bottom line on solicitor’s liens is to get rid of the lien so you can get the file and move forwards.
Removal from the Record
When a lawyer-client relationship ends, the lawyer must be removed from the record. Unless there is a near-deadline or Court date on an important issue, it almost always makes sense to deal with removal from the record without a fuss. This generally means hiring a new lawyer and having the new lawyer serve and file a notice of change of lawyer. An alternative is that individuals may choose to become self-represented and can have the lawyer serve and file a notice of intention to act in person. An alternative for corporations is to bring a motion for leave (permission) to have someone other than a lawyer represent the company. More information on removal from the record is here.
If a lawyer is left with no alternative but to bring a motion for removal from the record, this is a bad thing as the other parties to the litigation get notified. The general interpretation is that the client can’t afford their lawyer (or proceeding with the case) or can’t get along with their lawyer or simply do not have a good case. It is best to avoid any public spectacle of the lawyer-client breakdown.
The bottom line on removal from the record is to make this as smooth as possible by hiring a new lawyer (Plan A) or becoming self-represented (Plan B). Parties with lawyers tend to have more successful outcomes in litigation, but self-representation is sometimes a financial reality.
Law Society of Ontario Complaints
If a lawyer has violated the Rules of Professional Conduct, then there may be reason to file a complaint. Information on how to make a complaint is here. Law Society complaints are a regulatory issue and the Law Society does not have the ability to order what fees are payable or make findings of professional negligence. Before making a Law Society complaint, a client should appreciate that their complaint generates a statement upon which they could be cross-examined in another proceeding (such as an assessment or negligence claim). It obviously only makes sense to file a Law Society complaint if there is good reason to do so.
Some people mistakenly believe that if they file a complaint there may be an investigation and if the Law Society finds a breach of the Rules of Professional Conduct, then they will have grounds to sue their lawyer or any existing lawsuit will be proven or strengthened. This tends to be a misconception, because the Law Society’s regulatory function is unrelated to a Court’s assessment of liability in a civil action. As the Supreme Court of Canada puts it in Galambos v. Perez at paragraph 29:
The first is that there is an important distinction between the rules of professional conduct and the law of negligence. Breach of one does not necessarily involve breach of the other. Conduct may be negligent but not breach rules of professional conduct, and breaching the rules of professional conduct is not necessarily negligence. Codes of professional conduct, while they are important statements of public policy with respect to the conduct of lawyers, are designed to serve as a guide to lawyers and are typically enforced in disciplinary proceedings. They are of importance in determining the nature and extent of duties flowing from a professional relationship: [citations omitted]. They are not, however, binding on the courts and do not necessarily describe the applicable duty or standard of care in negligence: [citations omitted].
Galambos v. Perez, 2009 SCC 48 (CanLII), [2009] 3 SCR 247, https://canlii.ca/t/266b1
The bottom line on Law Society complaints is that they should only be filed when there is good reason, it might be a good idea to have the complaint reviewed by a lawyer where there is related litigation and complaints can serve a positive public purposes of protecting the public from unprofessional lawyers.
Lawyer Negligence Claims
Everyone makes mistakes, lawyers included. Lawyers are required to carry insurance with the Lawyers’ Professional Indemnity Company aka LawPro. When a lawyer is sued for professional negligence, LawPro assigns a lawyer to defend them. LawPro is very experienced in defending lawyers and will expend significant resources to do so.
In order to succeed in a lawyer negligence claim, the client must prove the following:
- Standard of Care – the client must prove the lawyer’s services fell below the standard of care. To achieve this, it is often (but not always) necessary to retain a rule 53 expert for an opinion. The expert will typically be a senior member of the Bar with extensive work experience related to the issues. They will have to spend time to review the case, write an expert report and potentially prepare to testify and testify at trial. This can be expensive.
- Causation – the client must prove that the lawyer’s actions caused them a loss. There may be other causes of the loss, including the client’s own actions or inaction or factors beyond both the lawyer and the client’s control, such as things done by other parties to litigation that cause a loss regardless of what the lawyer did or did not do.
- Damages – the client must prove they incurred a loss. This must be quantified.
Clients have a duty to mitigate. In instances of alleged negligence by a litigation lawyer, for example, it will generally be necessary to continue the case the litigation lawyer was representing them on as Plan A, with suing the lawyer as Plan B. The lawyer negligence claim may be put on hold pending the litigation in the underlying case. Arbitration can have the benefit of keeping any such lawsuit private and away from view of the opposing party in the ongoing litigation.
The bottom line on lawyer negligence claims is that these are hard-fought battles and should only be undertaken where there is a strong case the lawyer was negligent and sufficient damages to make the claim worthwhile. It is advisable to get legal advice prior to starting any lawyer negligence claim.
Conclusion
Most lawyer-client relationships work out well. When most lawyer-client relationships end there usually aren’t any contentious issues. In some circumstances, there may be contentious issues that may relate to any of the following:
- Legal fees
- Solicitor’s liens
- Removal from the record
- Law Society complaints
- Lawyer negligence claims
Especially where there is on-going litigation with another party, it is wise to sort these issues out through communication, negotiation, mediation and perhaps arbitration (due to confidentiality). Pursuing these issues in a public forum may have a negative overall impact on existing litigation and may create further litigation or a “case within a case” by adding a new lawsuit or legal proceeding on top of an existing one. Ideally, a good working relationship from the outset and good communication throughout a retainer can avoid these various pitfalls.
If you are a lawyer or client and need to consult a lawyer on any of these issues, please feel free to get in touch with us, for we have assisted many lawyers and clients sort out end of lawyer-client relationship issues over the years.
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