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 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.

This section provides an overview of the lawyer-client relationship. It discusses how to find and hire a lawyer, how your lawyer bills for their 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 bar 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, they install 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.

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 them 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 will be harmful to your case. Your lawyer is not your "friend". They are a professional who should tell you what you need to hear about your case, and offer objective and reasoned, not emotionally motivated guidance. This can be a bit disconcerting to a person experiencing a high level of emotional distress.

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 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 act as mediators are neither party's advocate.

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 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 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 coordinator 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 abduction 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 divorce 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 they practise. 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 their time unless the lawyer specifically advertises that they offer 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 them 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 retainer 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 their 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 mediator or family law arbitrator, and you're thinking of hiring them 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 them, your lawyer will require you to sign a retainer agreement and give them 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 their 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.)

Unbundled family law services

Traditionally, retaining a lawyer meant handing all the legal work over to the lawyer and their staff to handle. More recently, however, a different kind of retainer agreement called a limited scope retainer has become more popular. Another term that's used for this arrangement is unbundling or unbundled legal services. With unbundled legal services, a lawyer or paralegal is only doing some of the work. It could be helping to prepare the first documents required to start a case, or helping to negotiate with the other party, or any other task that the limited scope retainer agreement specifies. The arrangement usually costs less than full-scope legal representation because the lawyer providing unbundled legal services works on, and charges you for, only those tasks that you agree to in advance.

Not all family lawyers offer this arrangement, however there is a BC Family Unbundling Roster online listing of ones that do. Visit www.unbundling.ca to learn more.

How your lawyer charges you

You should discuss with your lawyer, at the very first meeting, exactly how the lawyer will bill you for their 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 account.

Your retainer

In British Columbia, family law lawyers cannot work on a contingency basis — for a percentage of the client's award or settlement — 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 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.

The amount you pay as your retainer is held by your lawyer in trust. Your lawyer will withdraw money from the retainer each time they bill 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 bill

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 review is performed by a registrar or master of the Supreme Court at a formal hearing 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 their 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 their 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 their 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.

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 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.

To claim this deduction, the lawyer must write a letter to the Canada Revenue Agency setting out what portion of their 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 their 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. Their 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 action. 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 them 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 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 their 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 their 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 trust aspect of the lawyer-client relationship has broken down.

If your lawyer fires you, they will normally do so in a letter detailing the reason why they 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 their 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 their 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

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Bob Mostar and Mark Norton, June 8, 2017.


Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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