When One Lawyer Makes Us All Look Bad

Embarrassing.

Shameful.

Greedy.

Pull out your Roget’s Thesaurus and take your pick of a panoply of adjectives to describe this story by the CBC’s Kathy Tomlinson:  B.C. woman may lose home over huge lawyer bill:

A B.C. woman stands to lose her home to her lawyer, who is moving to foreclose on her to pay his six-figure bill.

“My friends and family say this can’t be happening. There’s got to be a mistake,” Dale Fotsch said.

Fotsch got into the predicament after being sued by her former common-law husband, even though she won the case and the court ordered him to pay her costs.

“I won, but I lost,” Fotsch said. “I defended myself and now I’m losing my place.”

Fotsch, 54, lives near Pemberton with her disabled son and earns a modest income. Her only asset is her home and the 12 hectares of land it sits on.

“I’ve worked two jobs, and I have for the last 25 years,” Fotsch said. “When I was hit with this, it was just like a bomb went off in my life.”

The divorce proceedings were brought by Ms. Fotsch’s common law ex-husband Leigh Wilson who claimed a share of her home (presumably as a matrimonial home) following their break-up. Nine years later, the case resolved, but not in any way she expected.

Admittedly, Vancouver divorce lawyer Jonas Dubas charged $300 an hour, but that”s hardly extravagant compared to what divorce lawyers charge in Vancouver, Toronto or Montreal.

The fact that Dubas’ “invoices to Fotsch include charges like $148.40 to simply call another lawyer and leave a voicemail message” suggest he enjoys the sound of his own mellifluous voice. I mean, nearly 30 minutes for a voicemail message? Really? Was he reciting the Rime of the Ancient Mariner or Gilgamesh to opposing counsel?

Reading between the lines—and nearly 1000 irate comments on the CBC article— this story makes all lawyers, not just family law lawyers, look really, really, really bad. Why? Because the public has a preconceived notion that all lawyers care about is lining their pockets at the expense of their clients.

I cringe when I read media reports about lawyers who care only about getting paid, at all costs. Of course, we lawyers deserve to get paid for our work, when it is competent, reasonable and proportional to the value of the dispute.

What grinds my gears is that according to Ms. Fotsch the case took “years longer than her lawyer had predicted”.  This happens on occasion. Dilatory tactics, lack of court resources and scheduling problems. The B.C. Court of Appeal judgment granting Fotsch’s appeal of the trial judge’s decision on unjust enrichment and awarding her 90% of her court costs only resulted in Wilson declaring bankruptcy. Aye, there’s the rub.

As my good friend, Scott Greenfield adeptly replied on Twitter:

Twitter   ScottGreenfield   APribetic That Fotsch Dubas ...

Matrimonial law is indeed a horrible practice all around. If it reflects the worst in all of us, then the mirror cracks when one sees that “her lawyer said he wouldn’t continue unless she allowed him to secure a $100,000 mortgage against her property, at 18 per cent interest per year.”

Access to Justice (or A2J) is a perennial topic. Everyone jumps on the bandwagon to point the finger at the legal system and the legal profession in denying lower and middle-class litigants their “day in court”. Even the Chief Justice of the Supreme Court of Canada, Madam Justice Beverly McLachlin weighed in a few years ago:

Middle-class Canadians are increasingly frozen out by the cost and complexity of Canada’s judicial processes, says the chief justice of the Supreme Court.

A Canadian of average means may have to consider remortgaging their home, gambling their retirement savings or forsaking their child’s college fund to pursue justice, Beverley McLachlin told a crowd of about 150 in Toronto Thursday.

“Access to justice is quite simply critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them become their own lawyers, or try to,” she said. “Hard hit are average middle-class Canadians.”

Those with some income and a few assets may be ineligible for legal aid and therefore without choices, said McLachlin. “Their options are grim: use up the family assets in litigation; become their own lawyers or give up. The result may be injustice.”

Access problems, long trials, delays and deeply rooted social problems challenge a court system that, she said, is nonetheless the envy of other nations.

Injustice is, at times, compounded when people choosing to represent themselves are without the proper legal knowledge to do so. In some courts, more than 44 per cent of cases involve a self-represented litigant, she said.

Earlier this year, Jamie McLaren over at slaw.ca suggested a “Pay or Play for A2J” model:

As part of his or her annual professional membership fees, a lawyer pays a $300 “A2J Contribution” (an amount roughly equivalent to the average hourly rate among Canadian lawyers) that is earmarked for direct funding of the province’s legal aid and public interest legal organizations. If a lawyer provided and recorded one or more hours of legal aid, pro bono or public legal education service in the previous year— as administered and verified by specific organizations— then his or her A2J Contribution is waived. Thus lawyers “pay or play” to promote access to justice.

The problem is systemic and market-driven. Procedural justice and substantive justice are two-sides of a very shiny, rare coin.

I don’t have a panacea for the A2J crisis, but I do have a few questions about this sordid tale

1.  Consider the following Minute from the Ethics Committee of Law Society of British Columbia on the ethics of a lawyer taking a mortgage to secure fees in the subject-matter of the litigation:

www.lawsociety.bc.ca docs publications handbook ec 98 02 14 .pdf

So, according to the Law Society of British Columbia, a lawyer is not in a conflict of interest when funding the litigation, but must withdraw when joined as a party to the litigation involving foreclosure of the property. This is plain wrong. A lawyer is in a conflict of interest the moment he or she takes collateral from the client as security for future payment of fees.  The client may waive the conflict of interest if the client obtains independent legal advice. Whether this happened in Ms. Fotsch’s case is unclear, but what is evident is that technical compliance with the rules of professional conduct is the bare minimum: Just because you can do something, doesn’t mean you should.

2. When Dubas realized that the cost award would never get paid by Wilson, did he advise his client to file an opposition to Wilson’s petition in bankruptcy?

3. Did Dubas obtain any security for costs before Wilson’s bankruptcy?

4. Did Dubas suggest alternatives to funding the litigation, including her first mortgagee or a secondary lender willing to offer a more reasonable interest rate?

5. Did Dubas consider waiving the interest payments accrued that have nearly doubled the amount of the original mortgage?

6. Does Dubas realize how bad this looks? Does he even care?

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4 Responses to “When One Lawyer Makes Us All Look Bad”

  1. David Sugerman Says:

    The details vary with our common problems. But it’s more akin to variations on a theme. How likely is a disciplinary prosecution for excessive billing or exorbitant interest rates? I suppose it’s unlikely, but maybe a true professional with skills could pick this up pro bono and counterclaim?

  2. Antonin I. Pribetic Says:

    The Law Society of British Columbia has no jurisdiction over excessive billing and 18%, while exorbitant, is well below the 60% criminal interest rate under the Criminal Code of Canada. That said, I remain optimistic that a B.C. lawyer will consider taking up this case pro bono to negotiate a reasonable settlement, or failing that, seek to an assessment of accounts or counterclaim, if circumstances warrant.

  3. Pabani Says:

    The Trial Warrior uses very aggressive language to describe Mr. Dubas’ conduct. But do we know the amount of the claim, the number of days in examinations for discovery, the number of days in chambers seeking interlocutory relief, the number of days in trial, the number of days spent on the appeal, or the amount of time he spent preparing for the foreging? Do we know how much he spent on disbursements, including the transcript of the trial and examinations for discovery? Do we know the recommendations he gave his client or the instructions she gave him? Do we know if he or she tried to make alternate arrangements to fund the law suit? Do we know if he tried to negotiate a settlement with her on his fees and, if so, therir respective offers? All we know is that he obtained a mortgage at very high 18 percent to secure his fees and that he needed to appeal the decision of a trial judge to obtain a favourable result for his client. We don’t even know if that result (including fees) was better than the outcome sought by the other litigant? Is it right to attack Mr. Dubas based on the foregoing? BC Courts allow clients to go to a registrar to have their lawyer’s bills reviewed for fairness. If the fairness of the bill was the real issue, why not go to a registrar to review the bill?

  4. Antonin I. Pribetic Says:

    You missed the point. Read the post again. The issue is not the reasonableness of Dubas’ legal fees. The issue is about conflict of interest and ethics: Foreclosing on a mortgage which secured a lawyer’s loan to a client which was the subject-matter of the matrimonial litigation. Get it?

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