You & Your Lawyer

From Clicklaw Wikibooks

Lawyers are people with special legal training (and a law degree) who are licensed to practise law by their province's law society. The jobs of the Law Society of British Columbia are to regulate who can be a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." and to protect the public by setting and enforcing standards of professional conduct. Since many people involved in a family law dispute haven't had to deal with lawyers before, this section is about your relationship with your lawyer.

This section provides an overview of the lawyer-client relationship. It discusses how to find and hire a lawyer, how your lawyer bills for his or her services, what you can do if you're not happy with your lawyer, and how you or your lawyer can end the lawyer-client relationship.

Introduction

All lawyers in British Columbia are members of the Law Society of British Columbia. Many are also members of the Canadian Bar Association and local barIn law, the physical railing separating the public gallery in a courtroom from the portion where the judge and lawyers sit; lawyers as a group; where lawyers go after work. associations like the Vancouver Bar Association, the Victoria Bar Association or the Trial Lawyers Association of British Columbia. The Law Society's primary purpose is to govern and regulate lawyers to protect the public interest. As officers of the court and as members of the Law Society, lawyers are held to a high standard of conduct.

Your lawyer's primary job is to protect and advance your legal interests. At the same time, your lawyer must follow this high standard of conduct and act at all times in an ethical manner. Lawyers' duties to their clients, to each other and to the courts are governed by:

Boiling all this down a bit, your lawyer performs two key roles. First, your lawyer is like a plumber: if you tell your plumber to install your sink, he or she installs your sink. On the other hand, if you tell your plumber to hook the hot water pipe up to the ice-making machine intake, you'd expect your plumber to give you some common sense advice about why that might be a bad idea. Second, your lawyer is like a champion: your lawyer is your sword and shield, protecting you from some of the more unpleasant and adversarial aspects of litigation while boldly pursuing your claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding..

Both of these analogies are totally cheesy but apt. You should expect your lawyer to take the heat for you and fearlessly advance your claim. While you should expect your lawyer to do just what you tell him or her to do, you should also expect your lawyer to give you good advice if your instructionsIn law, the directions given by a client to his or her lawyer about the conduct of his or her affairs or a court proceeding. are not in your best interests, and perhaps even refuse to accept your instructions. You should especially expect your lawyer to tell you if what you want to do will be harmful to your caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.".

Some lawyers are also mediators, arbitrators, and parenting coordinators. Lawyers who act in these roles are not serving as advocates in a traditional lawyer-client relationship; their jobs are much different.

Lawyers who are family law mediators have special, additional training in mediationA dispute resolution process in which a mediator facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator.". Family law mediators do not represent you or your spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship."; they are providing mediation services to the both of you, rather than advocacy services for just one of you. Lawyers who act as mediators are neither partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."'s advocateA lawyer or a person other than a lawyer who helps clients with legal issues; to advocate a position on behalf of a client..

Lawyers who are family law arbitrators have special, additional training in arbitrationA dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award which resolves the dispute and which is binding on the parties. See "alternative dispute resolution" and "family law arbitrator." and have to meet other requirements imposed by the Law Society and the Family Law Act Regulation. Family law arbitrators are like private judges; their job is to hear the evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." and arguments necessary to decide a problem and then decide the problem by making a decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact.". Lawyers who act as arbitrators are neither party's advocate; they are neutral decision makers.

Lawyers who are parenting coordinators are trained as mediators and arbitrators, and have a great deal of training on top of that. The sort of services parenting coordinators provide are a blend of mediation and arbitration, with a bit of counselling thrown in. Parenting coordinators help parents deal with parenting disputes when they arise and, if an agreement cannot be reached through a process that's a lot like mediation, then the parenting coordinatorA lawyer or mental health professional with special training in the mediation and arbitration of family law disputes, family dynamics and child developmental psychology who meets the training and experience requirements set out in the provincial Family Law Act Regulation. will make a decision resolving the issue through a process that's a lot like arbitration. Lawyers who act as parenting coordinators are neither party's advocate. If they're anyone's advocate, they're the children's advocate.

The website of the Law Society of British Columbia is an extremely helpful resource for people who have hired a lawyer or people who are thinking of retaining a lawyer. It provides a lot of information about the lawyer-client relationship and about lawyers' ethical duties to their clients.

Finding and hiring a lawyer

Sometimes the best way to find a lawyer is the same way you find a family doctor or a school for your children: by word of mouth. Ask your friends, family and co-workers if they've ever used a family law lawyer, and, if so, how they liked that person. Did the lawyer return telephone calls promptly? Did the lawyer keep them up to speed on the progress of their file? Was the lawyer's bill reasonable? Did they feel comfortable with their lawyer? You can also ask your doctor, your accountant or your dentist if they can refer you to someone. Some of the other things you might want to think about when hiring a lawyer are described in the section on Separating Emotionally.

The Canadian Bar Association's Lawyer Referral Service is another way to find a lawyer. This service keeps a roster of subscribing lawyers in your area, a list of the areas of law they practise and a list of the languages they speak. Call 604-687-3221 in Vancouver and the Lower Mainland or, elsewhere in British Columbia, call 1-800-663-1919.

Yet another way to find a lawyer is by contacting the Legal Services Society (LSS) for Legal Aid Intake Services. LSS provides legal aid in British Columbia, and, if you meet their criteria, they will refer you to a lawyer and pay for the lawyer's services to boot. Be warned however, that since the provincial government's catastrophic reduction of funding to LSS in 2002, legal aid will generally only be available for people dealing with situations of family violence or where the abductionThe taking of a person by force or fraud. In family law, also the taking of a child contrary to a court order or without the permission of a guardian. In certain circumstances, this may be a criminal offence. of children is a possibility. Go to LSS's website on how to apply for legal aid for more information about their eligibility criteria.

If none of this works out, you can try finding a lawyer through the Yellow Pages or the internet, but only as a last resort. Typing "vancouver family lawyer" or "best divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." lawyer" into a search engine is a terrible way to find a lawyer; while you'll get a ton of results, you won't know anything about those lawyers except for the things they say about themselves on their websites. The same thing applies to picking a lawyer through a Yellow Pages ad.

Remember that not all lawyers practise family law, of course, and this is something you may want to take into consideration. Some lawyers focus exclusively on family law, so that family law is the whole of their practice; others practise family law along with other areas of the law. If a lawyer advertises in the Yellow Pages or online, the lawyer's ad or website will usually say exactly what area or areas of law he or she practises. You may wish to pay special attention to lawyers who tend to spend all or most of their time on family law matters.

The first interview

Once you've gathered the names of a few lawyers who sound promising, make an appointment to meet with each of them. A few lawyers will offer you some of their time for free or at a reduced rate for an initial interview. The lawyers you meet through the Lawyer Referral Service will charge a special reduced fee for a half-hour initial interview. Most lawyers however will bill for initial interviews at their usual hourly rate.

Do not assume that the lawyer will not charge for his or her time unless the lawyer specifically advertises that he or she offers free initial consultations. Expect a bill for the lawyer's time!

Use this first meeting as an opportunity to assess how you feel about each lawyer and how you relate to them; you needn't hire the first lawyer you meet. You are entitled to shop around before you choose the lawyer who is right for you. You can also use your first interview with each lawyer to get that lawyer's take on your problem. Tell him or her about your problem concisely, and let the lawyer ask questions which pull out the details of your problem.

Don't be shy about asking lawyers about their hourly rates, how they will bill you, and what sort of disbursements (a lawyer's out-of-pocket expenses for things like photocopying and filing fees) the lawyer will expect that you pay for. Ask what sort of retainerThe act of hiring of lawyer. The money paid by a lawyer to secure his or her services. The terms and extent of a lawyer's services on behalf of a client. they will require, what their interest rate is on overdue accounts, and whether they will be charging you any additional fees based on their success or the complexity of your problem. Ask whether anyone else in his or her firm will be working on your file, whether you will be billed for their work, and maybe ask to meet them too.

(If you're meeting with a lawyer who also works as a family law mediatorA lawyer or another person with special training in the mediation of family law disputes who meets the training and experience requirements set out in the provincial Family Law Act Regulation. See "mediation." or family law arbitratorA lawyer or another person with special training in the arbitration of family law disputes who meets the training and experience requirements set out in the provincial Family Law Act Regulation. See "arbitration.", and you're thinking of hiring him or her to act in that capacity, you don't want to give the lawyer too many details about your situation. Family law mediators and family law arbitrators must be neutral and impartial. Too much information from just one of you may make the lawyer unable to help resolve your dispute.)

For a summary guide to your first interview with a lawyer, see How Do I Prepare for My First Meeting with a Lawyer? It's located in the How Do I? part of this resource in the Miscellaneous section.

Hiring your lawyer

Once you've picked a lawyer you like and have decided to hire him or her, your lawyer will require you to sign a retainer agreement and give him or her a deposit towards your first of couple of bills. Hiring a lawyer is called retaining a lawyer. A retainer agreement is a contract between your lawyer and yourself that you each must sign, and which sets out the legal and financial aspects of your relationship to each other. Read the agreement carefully! If there are any terms you don't understand, be sure to ask your lawyer, and, likewise, if you object to any of the terms of the agreement, express your objection and ask how your concern might be addressed. A retainer is a sum of money you will likely be asked to give as a deposit against your lawyer's future services and fees.

Never hesitate to tell your lawyer about any concerns you have about his or her bills or services.

(A family law mediator will ask you to sign an Agreement to Mediate rather than the usual retainer agreement. The Agreement to Mediate will set out the details of the mediator's rate and expectations about payment, and how each mediation session will be paid for. The same thing applies to family law arbitrators. Parenting coordinators will want you to sign a Parenting Coordination Agreement, and will usually ask for both a retainer and a fee deposit.)

How your lawyer charges you

You should discuss with your lawyer, at the very first meeting, exactly how the lawyer will bill you for his or her time and for the expenses the lawyer incurs in working on your file. Most lawyers will bring this up on their own, but if your lawyer happens to forget to talk about it, you should bring it up. Don't be shy. You will, at a minimum, want to know what the lawyer's hourly rate is and what the lawyer's expectations are regarding payment of each accountIn law, a lawyer's bill to his or her client or a statement; one person's recollection of events..

Your retainer

In British Columbia, family law lawyers cannot work on a contingency basis — for a percentage of the client's award or settlementA resolution of one or more matters at issue in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the trial. See "action," "consent order," "family law agreements" and "offer." — which is how some other lawyers, like personal injury lawyers, often get paid. Family law lawyers bill for their services by the hour, although some may bill on fixed, flat-rate for smaller tasks where the scope of the lawyer's services is clearly limited.

Family law lawyers will usually expect to be paid some money up front, called a retainer. While some family law lawyers will agree to be paid from the proceeds of the saleAn agreement to transfer the ownership of property from one person to another in exchange for the reciprocal transfer of something else, usually money. See "agreement." of an asset following trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction.", most often they'll expect to be paid by an initial retainer followed by additional retainer payments or a monthly billing process.

The amount you pay as your retainer is held by your lawyer in trustA phrase describing how property is held by one person for the benefit of another person who is ultimately entitled to the use or proceeds of sale of that property. Money held ''in trust'' is held in a lawyer's bank account on the lawyer’s promise not to use that money except as may be agreed.. Your lawyer will withdraw money from the retainer each time he or she bills you. After a couple of bills or more have been paid from the retainer, the retainer may be exhausted. At that point your lawyer will usually ask you for another retainer, or your lawyer may simply bill you directly each month. On the other hand, if your problem is resolved more quickly than was expected or if you fire your lawyer, you will be entitled to a refund of however much of the retainer is left over.

The terms of how your lawyer will bill you will be set out in your retainer agreement. This is one of the reasons why it is essential that you read the agreement carefully before you sign it. Note that lawyers' fees are subject to PST and GST. Mediators' fees and parenting coordinators' fees are subject to just GST.

Reviewing your lawyer's billIn law, a piece of draft legislation presented to the legislature for its approval; a lawyer's statement of account for services rendered to his or her client. See "account," "act," and "lawyer's fees."

Both you and your lawyer have the right to have the lawyer's bills reviewed for fairness under the Legal Profession Act to fix a final amount owing. The fee reviewIn law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support." is performed by a registrarAn officer of the court with the power to make certain decisions, including the settlement of a lawyer’s bill, a party's costs of a court proceeding and settling the form of an order. An officer of the court charged with the responsibility of reviewing and approving certain documents submitted to the court, such as pleadings. See "jurisdiction" and "pleadings." or masterA provincially-appointed judicial official with limited jurisdiction usually charged with making decisions before and after final judgment in a court proceeding, including the hearing of interim applications, the assessment of lawyers' bills and the settling of bills of cost. See "interim application," "judge," and "jurisdiction." of the Supreme Court at a formal hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." in court.

At this hearing, the registrar will be presented with the lawyer's bills to you, and any other supporting documents, such as a time diary, a statement of the lawyer's charges to your bill by the amount of time spent on each task on a day-by-day basis, and the documents and correspondence that were generated over the course of the lawyer's services to you. Your lawyer will attempt to satisfy the registrar that his or her fees were reasonable and that the amounts billed for disbursements were reasonable. The registrar will look at the bills and apply a number of considerations in arriving at his or her decision, including:

  • the value and importance of the results obtained,
  • the complexity or novelty of the issues,
  • whether the time spent was reasonable, and
  • whether your lawyer's hourly rate was reasonable.

You will, of course, have the opportunity to present your side of the case and dispute your lawyer's bill as you see fit.

After hearing all the evidence, the registrar will issue a Certificate of Fees which sets out the amount of fees and disbursements that the registrar has approved as reasonable. That becomes the amount you owe to your lawyer for his or her services, and, in some cases, the amount of the refund your lawyer owes you. Most importantly, the Certificate of Fees has the same standing as a court judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final judgment." and can be used as such to enforce the amount owing to the lawyer or the amount owed by the lawyer to you.

As an alternative to a review under the Legal Profession Act, the Law Society operates a Fee Mediation Program. This is an informal process for dealing with fee disputes without having to go to court.

Tax deductions for legal fees

The portion of a lawyer's bill attributable to obtaining or enforcing an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." for child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses. or spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship. is tax deductible. The cost of defending a claim for spousal support or child support is not deductible.

To claim this deduction, the lawyer must write a letter to the Canada Revenue Agency setting out what portion of his or her fees were attributable to advancing a spousal or child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case. Lawyers do not keep track of things like this automatically, mostly because it involves extra work and cost to the client that may outweigh the tax benefit.

If you don't ask your lawyer about this at the beginning of his or her retainer, it may be impossible to winnow out the parts of the lawyer's bills that were dedicated to support issues, and the cost of the time your lawyer spent reviewing your file. His or her bills to figure this out may cost more than the deduction you will get.

If you are dissatisfied

If you are concerned about how your file is being handled or have a complaint about your lawyer, you should first of all discuss the matter with your lawyer. This may not always be appropriate. You may wish to contact the Law Society before you speak with your lawyer. Most lawyers, however, are deeply concerned about the satisfaction of their clients, and will go out of their way to fix, or at least explain, any problem you might be experiencing.

The Law Society exists to govern the legal profession for the benefit of the public. It is not the lawyer's friend or ally. You have the right to bring a complaint to the Law Society about a lawyer's actions or lack of actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.. You can contact the Law Society at:

The Law Society of British Columbia

845 Cambie Street
Vancouver, British Columbia
V6B 4Z9
 
Telephone 604-669-2533 or 1-800-903-5300

Facsimile 604-669-5232

There is no charge to speak to one of the Law Society's complaints officers and you do not need to hire a lawyer to make a complaint or begin the complaints process.

Ending the lawyer-client relationship

You or your lawyer can end your working relationship; you can fire your lawyer and your lawyer can fire you. From a lawyer's point of view, neither event occurs particularly often, but it does happen.

Firing your lawyer

Clients usually want to fire their lawyers when they're unhappy with the service they're receiving. You can fire your lawyer simply by sending him or her a letter to that effect or giving your lawyer a call, though you will no doubt want to phrase a bit more nicely than "I'm firing you." The lawyer-client relationship is a business relationship, and you can terminate this relationship any time you wish.

Of course, there will be some things left to deal with after you've given your lawyer the news.

First, you'll have to pay your outstanding account, if there is one. If you disagree with the amount charged, you can apply to the court to have your lawyer's bill reviewed, which is described in more detail above. On the other hand, if there's still money in your retainer, that's your money and you can ask to have it sent back to you.

Then there's the matter of your file. If your case is still on-going, you'll need to get your file. If you've hired another lawyer, your lawyer will normally just send it to your new counselA lawyer; the advice given by a lawyer to his or her client.; if you haven't, you're entitled to ask that your lawyer send it straight to you. Of course, there may be a slight problem if you still owe money to your lawyer. If you still owe money, your lawyer is entitled to keep your file until his or her account is paid in full. In the right circumstances, your lawyer may agree to transfer your file to your new lawyer on the new lawyer's promise to make sure that the bill gets paid when the file concludes.

When your lawyer fires you

This really doesn't happen all that frequently. Most often, a lawyer will fire his or her client for one of the following reasons:

  • an account is unpaid and there is a low likelihood that the account will get paid,
  • the client refuses to give reasonable instructions or follow the lawyer's advice, or
  • the trustIn law, a form of possession of property in which a "trustee" keeps and manages property for the benefit of another person, the "beneficiary." The trustee holds the property ''in trust'' for the beneficiary. See "constructive trust," "ownership," "possession" and "resulting trust." aspect of the lawyer-client relationship has broken down.

If your lawyer fires you, he or she will normally do so in a letter detailing the reason why he or she can no longer act for you and highlighting any important dates that are upcoming in your case. Most lawyers will also recommend other lawyers you may wish to consider retaining in his or her place.

After you've been fired, the same concerns arise as if you'd fired your lawyer. The lawyer will be concerned about an outstanding account and you will want your file back, or at least transferred to a new lawyer. As far as your outstanding account is concerned, it's important to know that your lawyer can have his or her own bill reviewed under the Legal Profession Act to get a judgment about the amount owing; that's something both of you can do.

Resources and links

Legislation

Links


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