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| {{OKCOPY}}
| | #REDIRECT [[You & Your Lawyer]] |
| {{JP Boyd on Family Law TOC|expanded = intro}}
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| {{LSSbadge
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| |resourcetype = <br/>a fact sheet on
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| |link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/expect_from_lawyer.php what to expect <br/>from your lawyer]
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| 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 [http://www.lawsociety.bc.ca/ Law Society of British Columbia] are to regulate who can be a lawyer 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.
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| 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.
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| ==Introduction==
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| All lawyers in British Columbia are members of the [http://www.lawsociety.bc.ca/ Law Society of British Columbia]. Many are also members of the [http://www.cba.org/ Canadian Bar Association] and local bar associations like the [http://www.vancouverbar.ca/ Vancouver Bar Association], the [http://www.vicbar.com/ Victoria Bar Association] or the [http://www.tlabc.org/ 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.
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| Your lawyer's primary job is to protect and <span class="noglossary">advance</span> your legal interests. At the same time, your lawyer must follow this high standard of conduct and <span class="noglossary">act</span> at all times in an ethical manner. Lawyers' duties to their clients, to each other and to the courts are governed by:
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| *''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]'',
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| *[http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Law Society of BC Rules], and
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| *the [http://www.lawsociety.bc.ca/page.cfm?cid=2578&t=BC-Code-Table-of-Contents Law Society of BC's Code of Professional Conduct].
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| 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 claim.
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| Both of these analogies are totally cheesy but apt. You should expect your lawyer to take the heat for you and fearlessly <span class="noglossary">advance</span> 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 instructions 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 <span class="noglossary">will</span> be harmful to your case.
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| Some lawyers are also mediators, arbitrators, and parenting coordinators. Lawyers who <span class="noglossary">act</span> in these roles are not serving as advocates in a traditional lawyer-client relationship; their jobs are much different.
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| Lawyers who are family law mediators have special, additional training in mediation. Family law mediators do not represent you or your spouse; they are providing mediation services to the both of you, rather than advocacy services for just one of you. Lawyers who <span class="noglossary">act</span> as mediators are neither party's advocate.
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| Lawyers who are family law arbitrators have special, additional training in arbitration and have to meet other requirements imposed by the Law Society and the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Family law arbitrators are like private judges; their job is to hear the evidence and arguments necessary to decide a problem and then decide the problem by making a decision. Lawyers who <span class="noglossary">act</span> as arbitrators are neither party's advocate; they are neutral decision makers.
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| 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 coordinator <span class="noglossary">will</span> make a decision resolving the issue through a process that's a lot like arbitration. Lawyers who <span class="noglossary">act</span> as parenting coordinators are neither party's advocate. If they're anyone's advocate, they're the children's advocate.
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| The website of the [http://www.lawsociety.bc.ca 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.
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| ==Finding and hiring a lawyer==
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| 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.
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| The Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 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.
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| Yet another way to find a lawyer is by contacting the Legal Services Society (LSS) for [http://www.clicklaw.bc.ca/helpmap/service/1053 Legal Aid Intake Services]. LSS provides legal aid in British Columbia, and, if you meet their criteria, they <span class="noglossary">will</span> 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 <span class="noglossary">will</span> generally only be available for people dealing with situations of family violence or where the abduction of children is a possibility. Go to LSS's website on [http://www.lss.bc.ca/legal_aid/howToApply.php how to apply for legal aid] for more information about their eligibility criteria.
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| 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 <tt>vancouver family lawyer</tt> or <tt>best divorce lawyer</tt> into a search engine is a terrible way to find a lawyer: while you <span class="noglossary">will</span> 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.
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| 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 <span class="noglossary">will</span> 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.
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| ===The first interview===
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| Once you've gathered the names of a few lawyers who sound promising, make an appointment to meet with each of them. Some lawyers <span class="noglossary">will</span> 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 <span class="noglossary">will</span> charge a special reduced fee for a half-hour initial interview. Most lawyers however <span class="noglossary">will</span> bill for initial interviews at their usual hourly rate.
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| Do not assume that the lawyer <span class="noglossary">will</span> 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!
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| 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.
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| Don't be shy about asking lawyers about their hourly rates, how they <span class="noglossary">will</span> bill you, and what sort of disbursements (a lawyer's out-of-pocket expenses for things like photocopying and filing fees) the lawyer <span class="noglossary">will</span> expect that you pay for. Ask what sort of retainer they <span class="noglossary">will</span> require, what their interest rate is on overdue accounts, and whether they <span class="noglossary">will</span> 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 <span class="noglossary">will</span> be working on your file, whether you <span class="noglossary">will</span> be billed for their work, and maybe ask to meet them too.
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| (If you're meeting with a lawyer who also works as a family law mediator or family law arbitrator, and you're thinking of hiring him or her to <span class="noglossary">act</span> 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.)
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| ===Hiring your lawyer===
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| Once you've picked a lawyer you like and have decided to hire him or her, your lawyer <span class="noglossary">will</span> 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 <span class="noglossary">will</span> likely be asked to give as a deposit against your lawyer's future services and fees.
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| Never hesitate to tell your lawyer about any concerns you have about his or her bills or services.
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| (A family law mediator <span class="noglossary">will</span> ask you to sign an Agreement to Mediate rather than the usual retainer agreement. The Agreement to Mediate <span class="noglossary">will</span> set out the details of the mediator's rate and expectations about payment, and how each mediation session <span class="noglossary">will</span> be paid for. The same thing applies to family law arbitrators. Parenting coordinators <span class="noglossary">will</span> want you to sign a Parenting Coordination Agreement, and <span class="noglossary">will</span> usually ask for both a retainer and a fee deposit.)
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| ==How your lawyer charges you==
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| You should discuss with your lawyer, at the very first meeting, exactly how the lawyer <span class="noglossary">will</span> bill you for his or her time and for the expenses the lawyer incurs in working on your file. Most lawyers <span class="noglossary">will</span> 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 <span class="noglossary">will</span>, at a minimum, want to know what the lawyer's hourly rate is and what the lawyer's expectations are regarding payment of each account.
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| ===Your retainer===
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| In British Columbia, family law lawyers cannot work on a "contingency" basis, 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 flat-rate basis for smaller tasks where the scope of the lawyer's services is clearly limited.
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| Family law lawyers <span class="noglossary">will</span> usually expect to be paid some money up front, called a retainer. While some family law lawyers <span class="noglossary">will</span> agree to be paid from the proceeds of the sale of an asset following trial, most often they'll expect to be paid by an initial retainer followed by additional retainer payments or a monthly billing process.
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| The amount you pay as your retainer is held by your lawyer in trust. Your lawyer <span class="noglossary">will</span> 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 <span class="noglossary">will</span> 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 <span class="noglossary">will</span> be entitled to a refund of however much of the retainer is left over.
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| The terms of how your lawyer <span class="noglossary">will</span> bill you <span class="noglossary">will</span> 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.
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| ===Reviewing your lawyer's bill===
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| Both you and your lawyer have the right to have the lawyer's bills reviewed for fairness under the ''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]'' to fix a final amount owing. The fee review is performed by a Registrar or Master of the Supreme Court at a formal hearing in court.
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| At this hearing, the Registrar <span class="noglossary">will</span> 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 <span class="noglossary">will</span> attempt to satisfy the Registrar that his or her fees were reasonable and that the amounts billed for disbursements were reasonable. The Registrar <span class="noglossary">will</span> look at the bills and apply a number of considerations in arriving at his or her decision, including:
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| *the value and importance of the results obtained,
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| *the complexity or novelty of the issues,
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| *whether the time spent was reasonable, and
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| *whether your lawyer's hourly rate was reasonable.
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| You <span class="noglossary">will</span>, of course, have the opportunity to present your side of the case and dispute your lawyer's bill as you see fit.
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| After hearing all the evidence, the Registrar <span class="noglossary">will</span> 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 judgment and can be used as such to enforce the amount owing to the lawyer or the amount owed by the lawyer to you.
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| As an alternative to a review under the ''Legal Profession Act'', the Law Society operates a [http://www.lawsociety.bc.ca/page.cfm?cid=144&t=Law-Society-Fee-Mediation-Program Fee Mediation Program]. This is an informal process for dealing with fee disputes without having to go to court.
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| ===Tax deductions for legal fees===
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| The portion of a lawyer's bill attributable to obtaining or enforcing an order for child support or spousal support is tax deductible. The cost of defending a claim for spousal support or child support is not deductible.
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| 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.
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| 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 <span class="noglossary">will</span> get.
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| ==If you are dissatisfied==
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| 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 <span class="noglossary">contact</span> the Law Society before you speak with your lawyer. Most lawyers, however, are deeply concerned about the satisfaction of their clients, and <span class="noglossary">will</span> go out of their way to fix, or at least explain, any problem you might be experiencing.
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| 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 action. You can <span class="noglossary">contact</span> the Law Society at:
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| <blockquote>The Law Society of British Columbia<br>
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| 845 Cambie Street<br>
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| Vancouver, British Columbia<br>
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| V6B 4Z9<br>
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| <br>
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| Telephone 604-669-2533 or 1-800-903-5300<br>
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| Facsimile 604-669-5232</blockquote>
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| 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.
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| ==Ending the lawyer-client relationship==
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| 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.
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| ===Firing your lawyer===
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| 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 <span class="noglossary">will</span> 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.
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| Of course, there <span class="noglossary">will</span> be some things left to deal with after you've given your lawyer the news.
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| 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.
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| 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 <span class="noglossary">will</span> normally just send it to your new counsel; 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 <span class="noglossary">transfer</span> your file to your new lawyer on the new lawyer's promise to make sure that the bill gets paid when the file concludes.
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| ===When your lawyer fires you===
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| This really doesn't happen all that frequently. Most often, a lawyer <span class="noglossary">will</span> fire his or her client for one of the following reasons:
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| *an account is unpaid and there is a low likelihood that the account <span class="noglossary">will</span> get paid,
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| *the client refuses to give reasonable instructions or follow the lawyer's advice, or
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| *the trust aspect of the lawyer-client relationship has broken down.
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| If your lawyer fires you, he or she <span class="noglossary">will</span> normally do so in a letter detailing the reason why he or she can no longer <span class="noglossary">act</span> for you and highlighting any important dates that are upcoming in your case. Most lawyers <span class="noglossary">will</span> also recommend other lawyers you may wish to consider retaining in his or her place.
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| After you've been fired, the same concerns arise as if you'd fired your lawyer. The lawyer <span class="noglossary">will</span> be concerned about an outstanding account and you <span class="noglossary">will</span> 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.
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| ==Resources and links==
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| ===Legislation===
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| * ''[[Family Law Act]]''
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| * ''[http://canlii.ca/t/8rdx Family Law Act Regulation]''
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| * ''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]''
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| ===Links===
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| * [http://www.lawsociety.bc.ca/ Law Society of British Columbia]
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| * [http://www.cba.org/ Canadian Bar Association]
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| * [http://www.vancouverbar.ca/ Vancouver Bar Association]
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| * [http://www.vicbar.com/ Victoria Bar Association]
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| * [http://www.tlabc.org/ Trial Lawyers Association of British Columbia]
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| * [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Law Society of BC Rules]
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| * [http://www.lawsociety.bc.ca/page.cfm?cid=2578&t=BC-Code-Table-of-Contents Law Society's Code of Professional Conduct]
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| * [http://www.ag.gov.bc.ca/legislation/family-law/regs-explained.htm Family Law Act Regulations Explained – Ministry of Justice website]
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| * [http://www.clicklaw.bc.ca/helpmap/service/1044 CBABC Lawyer Referral Service]
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| * [http://www.clicklaw.bc.ca/helpmap/service/1053 LSS Legal Aid Intake Services]
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| * [http://www.lss.bc.ca/legal_aid/howToApply.php LSS's website on how to apply for legal aid]
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| * [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
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| * [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
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| * [http://www.lawsociety.bc.ca/page.cfm?cid=144&t=Law-Society-Fee-Mediation-Program Law Society Fee Mediation Program]
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| {{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}
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| {{JP Boyd on Family Law Navbox|type=chapters}}
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