Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m O C T O B E R 2 0 1 8 49 It is important lawyers and clients agree on the details about their policy because there is no uniformity in how the plans, which are sold by many different entities, are worded, says Mandel. While some policies cover the plaintiff from costs and others cover the plaintiff 's lawyer from disbursements, some policies are a blend of both. Mandel says these can raise a potential conflict of interest. With $100,000 in coverage, client and lawyer may have competing ideas about what portion goes to covering the defence's costs and what goes to covering the lawyer's disbursements, he says. "A plaintiff 's lawyer might want to construe or interpret the policy one way and the client may want to interpret the policies a different way and therein lies a potential conflict," he says. Preszler Law Firm has blanket coverage and Preszler says the plans typically offer $50,000 in coverage for disbursements and $50,000 for adverse cost protection. He says they always try to increase that coverage as much as possible and have seen policies with as much as $150,000 of coverage with $100,000 for adverse costs and $50,000 for disbursements. "But the split really all depends on what lawyer and client decide to negotiate and it also depends on how much the disburse- ments are for the lawyer. That's the big risk beyond the lawyers' time — losing those after-tax dollars that they've invested in the file," Preszler says. "We all assume that all the lawyers are paying the disbursements. That may not be the case. Often, clients pay disbursements." Howie says his firm has not purchased the blanket coverage because, for many clients, it is a waste of money. The adverse cost insurer will be paid a premium for the coverage on every case in which the plaintiff is successful. "If the plaintiff has a slam-dunk case," Howie says, "why would you go pay some money to a company for insuring an adverse cost risk when really there isn't an adverse cost risk?" Preszler says his firm will give clients the option to be exempt from cost insurance. Even in an easy win, there are costs on interlocutory issues or summary judgment motions, he says. "I've never seen a client say, 'Oh, no, don't buy that insur- ance for us,' especially when it's so cheap," he says. Howie says insurance defence lawyers will not typically pur- sue a costs award from a plaintiff who has little money or no assets. If that impecunious client buys adverse cost insurance, it may encourage the other side to pursue litigation. "That might actually create an incentive on the part of the defence lawyer to go to trial as opposed to settling because they have the chance of actually getting money back as opposed to paying," he says. Mandel says it is important lawyers are extensive and spe- cific in their communications with clients on the policies. "Some in our industry have concerns that perhaps people aren't reading the product with the type of scrutiny that's required before offering it to every single client in a plaintiff 's practice," Mandel says. L E G A L R E P O R T Well-known condominium authority Audrey Loeb brings you up to date on all the opportunities and challenges of the Condominium Act, 1998, as well as other complex issues arising in condominium law. New to ProView The eBook will now be available on the Thomson Reuters ProView® platform, a professional eBook experience. As the legislation is updated, we'll keep you current with ongoing updates. Access your online subscription on ProView through your computer, smartphone, or tablet. PUBLISHING SOON The Condominium Act: A User's Manual, 5th Edition (Ontario 2018) Audrey Loeb, LSM, B.A., LL.B., LL.M. © 2018 Thomson Reuters Canada Limited 00249JI-93174-NK CALL TO PRE-ORDER To order or to receive the subscription discount, please call toll-free 1-800-387-5164 (Toronto and international 416-609-3800) or visit store.thomsonreuters.ca/condo-book For more information about ProView, visit store.thomsonreuters.ca/proview *Online version on ProView will be updated periodically and kept current with the legislation at a nominal charge. You can cancel your order at any time. Subscription coverage: you'll continue to receive ongoing updates until the next edition. Print softcover + Online subscription * with ongoing updates $180 Online subscription * with ongoing updates $129 Print only $129 Order # L7798-8633-65203 Softcover approx. 900 pages October 2018 978-0-7798-8633-3 SAVE 30%

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