Posts Tagged ‘Lawyer’

Written Retainer Agreement Ousts Small Claim Court’s Jurisdiction

December 8, 2014

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If you’re an Ontario litigator and thought suing your client for fees in Small Claims Court based upon a written retainer agreement was an option, then take a read of Justice Nordheimer’s decision in Jane Conte Professional Corporation v. Josephine Smith, 2014 ONSC 6009 (CanLII), (Div.Ct.).

The case dealt with an appeal by the defendant client from the decision of Deputy Judge Prattas, dated April 29, 2014, dismissing her motion to dismiss her former counsel’s action for unpaid accounts.  The plaintiff lawyer commenced an action against the client defendant in the Small Claims Court seeking to recover payment of the sum of $26,051.59 pursuant to a contingency fee agreement relating to a personal injury action.  Nordheimer J. allowed the appeal, set aside the order of the Deputy Judge and dismissed the claim for want of jurisdiction and held, in part:

[16]      It will be seen from these sections that the Legislature has established a process by which the validity and enforceability of written fee agreements between lawyers and clients are to be handled.  There is nothing in any of these sections that gives any authority to the Small Claims Court to consider issues arising under a written fee agreement including a contingency fee agreement.  Indeed, as I have already mentioned, the Small Claims Court is expressly excluded from considering such matters.

[20] In my view, once a lawyer chooses to enter into a written agreement with his or her client “respecting the amount and manner of payment for the whole or a part of any past or future services in respect of business done or to be done by the solicitor” then the lawyer is bound by the procedures set out in ss. 20 to 32 of the Solicitors Act. In particular, if the lawyer wishes to enforce the agreement then he or she must, as set out in s. 23, bring an application for that purpose in the court “in which the business or any part of it was done or a judge thereof, or, if the business was not done in any court, by the Superior Court of Justice”. I repeat that s. 23 expressly excludes the Small Claims Court from this authority.

Nordheimer J. expressly rejected the former lawyer’s argument that the contingency fee agreement was a “hybrid” agreement, ousting it from judicial scrutiny under ss.20-32 of the Solicitors Act, R.S.O. 1990, c. S.15, stating:

[23]      Further, even if the respondent is correct that the Agreement in this case was both a contingency fee agreement and a regular fee agreement, depending on how events unfolded, that result would not take the Agreement outside the application of ss. 20 to 32 including the enforcement procedure set out in s. 23 since those provisions apply to all written fee agreements.

[24]      Consequently, I concluded that the Small Claims Court had no jurisdiction to consider a claim made by a lawyer based on a written fee agreement including a contingency fee agreement.  I would note, in passing, that this conclusion appears to be consistent with the general rule that questions involving the nature, validity or effect of a contingency fee agreement should be resolved by judges:  Cookish v. Paul Lee Associates Professional Corp.,[2013] O.J. No. 1947 (C.A.) at para. 39.

This decision may come as a big surprise to most who sue their clients for unpaid legal accounts in Small Claims Court.

It is puzzling that the Small Claims Court retains jurisdiction in actions between a lawyer and client for unpaid accounts where there is no written retainer agreement, but loses jurisdiction where there is a written retainer agreement. Of course, all contingency fee agreements must be in writing pursuant s. 28.1(4) of the Solicitors Act.

Incidentally, the Court of Appeal for Ontario previously held that where a written retainer agreement includes an  arbitration clause for fee disputes, it is enforceable, as long as the arbitrator applies the protections under the Solicitors Act: : see, Jean Estate v. Wires Jolley LLP, 2009 ONCA 339 (CanLII) (Ont. C.A.).

(Access to) Justice Delayed, (Access to) Justice Denied

September 17, 2013

Access To Justice Problem Solved

Yamri Taddese at Law Times reports on some welcome, albeit late, efforts to resolve the interminable motion delays in Toronto:

Acknowledging there are “real delays” with scheduling long motions in Toronto, Smith said she and regional senior Justice Edward Then “have already begun to review scheduling efficiencies and how the court’s judicial resources can be maximized.”

Then has asked Superior Court Justice Geoffrey Morawetz to lead a motions effort to identify ways of maximizing both facilities and judicial resources for a more efficient system, Smith said, noting the review will also consider the issue of better case management.

The Law Times article adds,

Superior Court Justice Mary Vallee called the delays “shameful” and decided against moving the case to Toronto.

A case, of course, would need some connection to Toronto for counsel to bring up the idea of moving it there, says Oatley. But his firm has decided that even when there’s some connection to Toronto, it will challenge such motions on access to justice grounds.

“The government is simply going to have to accept the fact that if we’re going to have a viable justice system in Ontario, they need to provide the administration of justice the resources to do the job,” he says.

Whenever he can, lawyer John McLeish says he’ll book cases outside of Toronto. “It’s a shame because the judges here are great,” he says.

In my opinion, the causes of the systemic delay are easily identifiable:

1. The revision of the Rule 77 case management rule has hoisted onto plaintiff’s counsel’s shoulders the sole burden to move a case along to trial. Defence counsel are prone to bringing superfluous motions to tie up the litigation, armed with the knowledge of institutional delay of 6-7 months to secure a motion date in Master’s court;

2. The concept of a Litigation Timetable and Discovery Plan is great in theory; however, the failure to abide or comply with a consent or court-ordered timetable rarely results in any tangible consequences for non-compliance, such as substantial indemnity costs or striking of a defence. Having to wait half a year to bring a motion to force an opposing party to comply is quixotic;

 

3.  The Rules of Civil Procedure are skewed towards procedural inefficiency. For example, while any Superior Court judge has jurisdiction to hear all motions, many motions are implicitly designated to be brought “to the court” (i.e. Masters), leaving an access to justice vacuum.

4.  There are simply not enough Masters appointed to hear motions based upon the sheer volume of court files in Toronto. This is a function of chronic underfunding of the civil justice system in Ontario.  What is the Ministry of Attorney General’s response?

Brendan Crawley, spokesman for the Attorney General of Ontario, said the ministry isn’t planning on appointing new masters.

The ministry, he said, has worked with the legal community “to improve and modernize Ontario’s civil justice system, making it more accessible and affordable for the public.”

I am cautiously optimistic that Mr. Justice Morawetz —who is among the leading jurists in Ontario and fully conversant with judicial efficiency on the Commercial List Court — will find a practical and practicable solution to this motion court boondoggle.  The following are my unsolicited solutions:

1.  Restore the procedural balance under the Rules of Civil Procedure by imposing an equal obligaiton between plaintiffs and defendants and counsel of record to ensure that a case moves efficiently and speedily towards trial;

2.  Consider revising Rule 77 case management screening when an action is commenced by allowing the plaintiff or defendant to request case management as an option, rather than an exception to litigation management;

3. The Ministry of the Attorney General  must appoint at least 3 additional full-time Masters and loosen the requirement of Regional Senior Justice judicial oversight for case management transfers;

4. When all else fails, amend the mechanism of administrative dismissal by the Registrar, by allowing Status Hearing judges or Masters to transfer matters to case management sua sponte, or upon request of one or more of the parties; rather than slavish reliance on consent litigation timetables;

5. Allow Masters or Judges to schedule case conferences via telephone or email ,rather than requiring in person attendances, where available.

Access to Justice is inchoate unless it is equal, timely, effective and efficient:  Justice delayed is justice denied.

Yaniv Roznai, “Revolutionary Lawyering? On Lawyers’ Social Responsibilities and Roles during a Democratic Revolution”

August 14, 2013

Yaniv Roznai (Ph.D. Candidate, London School of Economics – Law Department) has posted “Revolutionary Lawyering? On Lawyers’ Social Responsibilities and Roles during a Democratic Revolution”, Southern California Interdisciplinary Law Journal, Vol. 22, No. 2, 2013. Here’s the abstract:

Do lawyers have any social responsibilities during a revolution? If so, what are they? Does the lawyer hold any special roles in revolutionary times? This article discusses these questions, which raise thorny theoretical and practical dilemmas. According to the article, revolutions in the Western world and the legal profession are linked. Therefore, the article describes the historical role lawyers have played in the great revolutions which have created stable liberal traditions based on the idea of “rights”: The Glorious English Revolution of 1688-1689 and the American and French Revolutions of the end of the 18th century. Moreover, the article deliberates on the characteristics of lawyers which support conservatism and oppose revolutions and vice versa. It then presents the conflicting duties which are imposed upon lawyers during revolutions. On the one hand, the lawyer has an obligation to preserve the legal order and the rule of law. This obligation may entail a duty to act in a counter-revolutionary manner. On the other hand, the lawyer has obligations to improve the legal system and to promote the rule of law. These may entail actions which support the revolutionary values or goals, especially in a democratic revolution. Lastly, the article considers the practical role of lawyers during a revolution, inter alia, in public speaking and assisting in drafting the basic documents of the new legal order. Even in times of revolutions that seek to collapse the existing legal order, the legal milieu is of great importance. The revolutionary lawyer plays a significant role in preserving and creating the temporary, transitional and new legal orders. According to the article, the participation of lawyers in a revolution strongly influences the legitimacy of the existing legal order and necessarily the legitimacy of the revolution itself.

A copy of the paper is available for download via SSRN here.

I Think This Guy Just LIBEL SLANDERED Me (UPDATED)

June 18, 2013

Comments ‹ THE TRIAL WARRIOR BLOG — WordPress

UPDATE:

I would be remiss if I failed to mention that J. Kirby Inwood sent me this email back on April 4th, 2013, even though he doesn’t like me very much:

CanLaw1

CanLaw2

 

Related Posts:

CanLaw Lawyer Directory: Some People Never Learn (trialwarrior.com)

A Few Modest Proposals to the LSUC on Lawyer Directories (trialwarrior.com)

LSUC Issues Warning Concerning Lawyer Referral Service (trialwarrior.com)

Kelly Lynn Anders, “Ethical Exits: When Lawyers and Judges Must Sever Ties on Social Media”

March 13, 2013

Kelly Lynn Anders has published “Ethical Exits: When Lawyers and Judges Must Sever Ties on Social Media”, Charleston Law Review, Vol. 7, No. 2, Winter 2012-2013.  The abstract reads:

This article addresses the very recent trend of requiring lawyers and judges to sever ties on social media, the professional implications of doing so, relevant rules governing judicial and attorney conduct, and a discussion of “best practices” for lawyers and judges to follow when social media connections must be broken. Recent opinions from states that have issued social media directives in this area will also be discussed, along with a brief overview of three of the most commonly used social media sites at the time of the publication of this article – Facebook, LinkedIn, and Twitter.

Through this discussion and analysis, one theme will continue to resurface – the increasingly pressing need for guidance and clarity in the MRPC and MRJC so that expectations involving social media connections will be clear, uniform, and much easier to manage for lawyers, judges, and anyone with whom they may communicate, either professionally or personally. Such clear-cut guidance would also decrease the need for severing ties that should not have been formed in the first place, thereby also serving to contribute to the preservation of solid and favorable reputations of all jurists and counselors in an increasingly virtual world.

Download a pdf copy of the article via SSRN here.


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