Archive for the ‘client’ Category

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.).

UPDATED: Put Me In Coach, I’m Ready to Play (Lawyer)

December 16, 2013

Did I make the team?

Over at, Professor Julie MacFarlane proposes a solution to the vexing problem of “self-represented litigants (SRL’s”) in a post entitled: “Lawyers Coaching SRLs in “Self-Advocacy”? Why This Paradoxical Proposition Deserves Your Serious Consideration“.  Essentially, Professor MacFarlane, drawing upon her recent 2011-12 study and responses to the National Self-Represented Litigants Project , proposes a “Lawyer-Coach” model to stem the rising tide of “self-advocacy” within the Canadian legal system. MacFarlane writes,

How SRLs want help

SRLs want help – that is loud and clear. On-line resources get them part of the way – sometimes. But they want face-to-face help too.

Almost all of them say that they want lawyers. But they cannot afford to use a lawyer for every step of their case.

They want help to be effective self-advocates.

Crazy – or Adapting to Reality?

OK, so there is something paradoxical about lawyers assisting people to do the work that they would ordinarily charge them to do for them. The irony is that the profession now needs to consider this possibility in order to retain public legitimacy, as well as to enable the justice system to be more functional (more of this below).

Some lawyers will take the view that encouraging individuals to self-advocate is irresponsible and that our energy should be directed at bringing these SRLs “back into the fold” of full-on legal representation. While this sentiment may be coming from a good place, here is the reality – unless those same lawyers are willing to cut the cost of their services at least in half, or support a tax system that hugely expands legal aid, that it not going to happen.

And even then – if we can imagine either eventuality – there will be an appetite for saving costs. Whether this is self-advocacy, outsourcing, or access to para-legals, it’s all going in the same direction. The age of passive deference to professional advice is over. And a lawyer-coach model opens up the possibility of a lawyer/client partnership of the sort that so many personal and commercial clients now expect.

I am not entirely clear on what the “age of passive deference to professional advice” means. If I retain an accountant to give me professional tax advice, I do not offer up my opinions on how best to avoid or, heaven forfend, evade paying my taxes. The same holds true if I consult with my doctor about performing surgery under general anesthetic. It’s a given that I will defer to the person with the medical degrees hanging on their office wall. (more…)

The Lawyer-Client (Sexual) Relationship

August 2, 2013

Image via ATL Blog

Q: What’s the difference between a lawyer and a prostitute?
A: A prostitute will stop screwing you when you’re dead.

Zach Needles at the Daily Report writes about a Pennsylvania lawyer who decided on an unconventional compensation arrangement:

The Pennsylvania Supreme Court has issued a one-year suspension to a Bucks County attorney who agreed to represent a female client in a DUI case in exchange for oral sex.

In a one-page July 17 order, the justices, adopting the recommendation of a three-member panel of the Disciplinary Board of the Supreme Court, granted a joint petition in support of discipline on consent in which attorney David H. Knight admitted to trading legal work for sexual favors and asked for a one-year suspension.

According to the petition, Doe was arrested for driving under the influence in November 2010.

In February 2011, Doe met with Knight, an attorney with Doylestown, Pa.-based criminal defense firm Fioravanti & Knight, at his offices in Levittown, Pa., the petition said. They had never met before.

During the meeting, Doe told Knight that she had received an Accelerated Rehabilitative Disposition for a previous DUI and Knight quoted her a fee of $1,000 to assist her in entering a plea agreement, according to the petition.

Doe told Knight she did not have much money and eventually agreed to perform oral sex on him, which she did after Knight locked his office door, the petition said.

A few weeks later, according to the petition, Knight entered his appearance as Doe’s attorney in the DUI case and remained her lawyer through the remainder of the case, according to the petition.

The petition said Doe performed oral sex on Knight on at least two more occasions following their first meeting but before the conclusion of the DUI case.

Well, at least Knight wasn’t greedy, as “[a]ccording to the petition, Knight never billed Doe nor collected any payment for his legal services.”

The Pennsylvania Disciplinary Board and the Pennsylvania Supreme Court appear to think that a one-year suspension is an appropriate deterrent.  Apparently, Pennsylvania has never heard of the concept of a lawyer as a fiduciary. Black’s Law Dictionary defines a fiduciary as:

The term is derived from the Roman law, and means (as a noun) a person holding the character of a trustee, or a character analogous to that of a trustee,in respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires. Thus, a person Is a fiduciary who is invested with rights and powers to be exercised for the benefit of another person. Svanoe v. Jurgens, 144 111.507, 33 N. E. 955; Stoll v. King, 8 How. Prac. (N. Y.) 299.As an adjective it means of the nature of a trust; having the characteristics of a trust; analogous to a trust; relating to or founded upon a trust or confidence.

The operative word is “trust”. When a lawyer engages in sex with a client, or even arguably a former client, the lawyer not only breaches, but shatters the inherent trust  between lawyer and client and demeans the entire legal profession. To argue that the sexual relationship between the lawyer and client is “consensual” is a non-sequitur of epic proportions. Yet, if we believe the Pennsylvanian approach to legal ethics and professional discipline, this is an isolated incident:

According to the petition, there are no other documented cases in Pennsylvania involving a violation of Pennsylvania Rule of Professional Conduct 1.8(j), which became effective January 1, 2005, and prohibits sexual relations between a lawyer and a client regardless of whether it’s consensual and whether it prejudices the client.

“It’s a relatively new rule,” Philadelphia ethics attorney Stuart Haimowitz, who is not involved in Knight’s case, said Thursday.

Haimowitz explained that, prior to Rule 1.8(j), sexual relationships between attorneys and clients were covered, albeit not as well, under Rule 1.7, which states that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.”

Are you kidding me? Um, yeah, asking your client for oral sex in exchange for legal representation is a conflict of interest, writ large. If one takes the report at face value, the reason there are no other reported cases of sexual misconduct involving lawyers is that consenting adults do not report their consensual sex conducted under consensual lawyers’ office desks. Gimme a break. Wait, there’s more:

Michael B. Hayes, an attorney ethics lawyer at Montgomery McCracken Walker & Rhoads in Philadelphia, agreed, adding that, when a relationship between a lawyer and a client is consensual, it’s rare for either party to even make a complaint to the Disciplinary Board in the first place.

I wonder if Hayes’ partner, McCracken’s first name is “Phil”. A similar banal quote from the ABA Journal story:

These are very, very difficult cases to prove in that they involve a consensual sexual relationship involving two people,” said attorney Stuart Haimowitz, who is not involved in the Knight case. “The Disciplinary Board would need to prove a case like this by clear and convincing evidence.”

Doing so is difficult or impossible, Haimowitz explained, in such a he-said, she-said situation.

 Newsflash. Ethics is not about informed consent or the hackneyed “he-said, she-said” false dichotomy The reason a client may not report having sex with their lawyer is not because they consented to the sexual acts. They may be in legal or financial jeopardy and feel pressured to engage in sex due to the apprehension that, if they don’t comply or acquiesce, the lawyer will abandon them and they will end up in jail, lose custody of their children, or go bankrupt.

Is a one-year suspension an appropriate punishment for a lawyer having sex with a client? It depends. Knight’s professional reputation, which took 27 years to build, is ruined. Will this deter other like-minded lawyers from seeking “glory hole retainers”? Doubtful. For every Anthony Weiner regaling young women with sexts and Twitter pics festooned with his male genitalia, or Eliot Spitzer doing the hotel rounds with hookers, there is a lawyer who thinks that clients are fair game.

I recall one former Ontario lawyer who was disbarred for sexual harassment of a client.  I always knew he would end up in trouble. He was a what 70’s feminists used to call a “male, chauvinist pig”. The only reason he was disbarred is because the client had the courage to complain about the sexual harassment. Not every vulnerable client has the wherewithal to speak out. Consider the historical sexual abuse covered up by the Catholic Church and Vatican officials, or doctors  sexually assaulting patients. Breaches of trust where the word “consent” does not rear its apologetic head.

If legal ethics are to mean anything, then it”s high time to replace the use of the word “consent” with “trust” when discussing legal ethics.

Stercus accidit redux

April 10, 2013

Image via The Richmond Court Reporter

Uh-oh. Looks like someone forgot to check their calendar or set the alarm.

In CIARCIA, et al. v. JORGE ANEZ  DAGER, et al. (Fla. 3rd DCA) (12-2565), (per  Suarez and Logue, JJ., and Schwartz, Senior Judge), the Florida Third District Court of Appeal affirmed and offered a wry reminder of the consequences:

Affirmed. See Wells Fargo Bank, N.A. v. Aristo Mortg., LLC, 38 Fla. L. Weekly D663, D663-64 (Fla. 3d DCA Mar. 20, 2013) (“At the risk of viewing professional courtesy through rose-colored glasses, we can also recall a day when counsel appearing without opposition for a hearing on an obviously-contested matter . . . would first place a telephone call to opposing counsel to confirm that some personal emergency or postal glitch had not occurred.”).

In a comment to Mark Bennett’s recent post “Mea Maxima Culpa” about  Mark forgetting to show up for a law school guest lecture”, Scott Greenfield offers some sound advice to us all:

While it’s true that ster­cus accidit, this isn’t the sort of thing one for­gets. Like your wife’s birth­day or your clients’ names, there are things that can’t be for­got­ten. Show­ing up to speak to a law school class is one of those things.

It’s good that you make no excuses and take respon­si­bil­ity for your mis­take, because you are a respon­si­ble guy and this just doesn’t happen.

Alan Dershowitz aims for a Reversal of Fortune for Lawyers with Viewabill

March 12, 2013

David Zax at Fast Company reports on “How Alan Dershowitz And Two Entrepreneurs Will Disrupt Billable Hours: Viewabill brings radical transparency to the attorney-client relationship”: (more…)

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