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 M A R C H 2 0 1 6 13 \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP would be liable for out-of-pocket expens- es and taxes until 30 days after a trial, settlement, discontinuance, or dismissal. Barker testified that in addition to the trial preparation work, he handled a mat- rimonial matter and a civil action in an investment-related matter without being paid. "Given the client's financial circum- stances, the lawyer had no expectation of being paid in the foreseeable future," Nielsen said in his reasons, although there was an expectation of being paid. Following nine days of trial, Brule's case was dismissed and an appeal dis- cussed. "The lawyer recommended an appeal and testified that he advised the client the cost would be approximately $30,000," the judgement stated. Barker advised that the appeal cost was not cov- ered by the contingency agreement. The lawyer drafted the notice of appeal and filed on behalf of his client and paid the $200 filing fee. Barker was successful at the appeal process and got a new trial. Brule congratulated his lawyer. Barker sent a bill for the appeal, but his client balked at paying it. While he acknowledged the contingency agree- ments exempted an appeal and Barker had told him the appeal would not be done for free, Brule said he was led to believe he only had to pay the cost of the transcript and filing fees. The disagree- ment terminated the lawyer-client rela- tionship. Brule then notified Barker he was in settlement discussions and if he had a bill he should submit to the courts for review. Barker filed for the $30,073.85. Nielsen said in his reason for judg- ment that he believed the client had become so used to the lawyer doing the work and paying the costs that he simply expected the work to be done for free. "The contingency fee agreement provided that the client was to cover the cost of the expert fees; however, when the client could not pay, the lawyer financed this cost. On the appeal, the lawyer financed the filing fees and transcripts, despite the client's evidence and stated belief that these costs were his to bear," said Nielsen, adding this was a classic case of contingency agreements giving the impecunious plaintiff the key to the courthouse. Nielsen said the lawyer's extensive work on the file brought the client "right back where he started" with the prospect of a new trial. The lawyer suf- fered the greater setback. "He was not only right back where he started, he was out nine days of trial time, for which he would never recover fees. He was also carrying the fees and disbursement for two separate hearings before the B.C. Court of Appeal," said Nielsen. In addition, Barker assisted the cli- ent in two additional legal matters for which he did not receive any payment but to which he was entitled. Nielsen also pointed out that after the unsuc- cessful trial, the lawyer found himself "in the crosshairs of a special costs application" by the successful defen- dants and had to hire his own lawyer and report the matter to the Lawyers Insurance Fund. "Despite these consid- erable setbacks and expense, the lawyer did not abandon the client. The lawyer testified that he was prepared to con- tinue with the case in accordance with the contingency fee agreement, despite his belief that the case may have been worth far less than he had originally believed," Nielsen pointed out. Despite the pattern of Barker doing work for free, Nielsen still found the cli- ent's belief that the appeal would be done for little cost to him was not reasonable. The lawyer, Nielsen ruled, was entitled to his fees and disbursements as billed except for a filing fee, which was slightly reduced. Since the lawyer's bill was not reduced by more than one-sixth, he was entitled to his court costs of $1,500. — JEAN SORENSEN jean_sorensen@telus.net it's back 2016 CANADIAN LAWYER LEGAL FEES SURVEY Complete the survey online at canadianlawyermag.com/surveys then check out the results in the June issue to see how your fees compare across multiple practice areas. Survey closes March 28 Watch for the results in the June issue! Untitled-5 1 2016-02-18 1:24 PM

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