Class 6&7 - Topic 5: Commitment to Client's Cause

Question 1

Duty of Commitment to the Client’s Cause

Answer 1

1. Withdrawal from Representation
2. Taking Client Instructions
3. Duty of Commitment as Restraint on State Action
4. Fair and Reasonable Fees
5. The Bounds of the Client’s Cause

Question 2

Withdrawal from Representation: CN vs McKercher

Answer 2

Duty of Commitment to the Client’s Cause:

Closely related to the duty to avoid conflicting interests so as to remain committed to the client

Don’t just unexpectedly drop a client to avoid a conflict of interest

McKercher breached its duty of commitment to CN’s causes when it terminated

Duty of commitment stops the lawyer from undermining the solicitor-CL relationship

Question 3

Withdrawal from Representation: Slager vs Aylor

Answer 3

He dropped the client when the video came out, he can’t do this. A criminal lawyer can’t fire a client because they believe that they are guilty.

A client can fire a lawyer at any point for any reason. Although the lawyer can’t fire the client.

Question 4

Withdrawal from Representation - LSO RPC 3.7-1

Answer 4

“A lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client.”

Question 5

Good Cause to withdraw - LSO RPC 3.7-2, 3.7-3, 3.7-7

Answer 5

1. Serious Loss of Confidence: Lawyer may Withdraw
   - “lawyer is deceived by their client” on significant point
   - “client refuses to accept and act upon the lawyer’s advice on a significant point”
   - “client is persistently unreasonable or uncooperative in a material respect”
   - “material breakdown in communications / difficulty in obtaining adequate instructions”
2. Non-Payment of Fees: Lawyer may Withdraw
   - “after reasonable notice… a lawyer may withdraw unless serious prejudice to the client would result.”
3. Mandatory Withdrawal: Lawyer must Withdraw
   - if discharged by client
   - If client persists in instructions to break law or RPCs
   - If lawyer not competent to continue

Question 6

Reasonable Notice on withdrawal - LSO RPC 3.7-4, 3.7-8, 3.7-9

Answer 6

“minimize expense and avoid prejudice to the client”

“facilitate the orderly transfer of the matter to the successor legal practitioner” or self-represented client

“notify the client in writing” of withdrawal, reasons, next steps

“subject to lawyer’s right of lien,” deliver client property & papers

Account for fees and client funds

Notify other side and court (if applicable)

Question 7

Bryan Cave LLP

Answer 7

The memo she sent out was to drop clients that didn’t make the firm enough money, but under the LSO you can’t drop clients for the revenue of the firm/for profitability.

Question 8

R v Cunningham

Answer 8

Solicitor - client privilege

Exclusive law society oversight

conlfict of interest

remedy of last resort

On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice. If the answer is yes, withdrawal may be refused.

Question 9

Taking Client Instructions

Answer 9

Can’t take instructions that are illegal.

To be able to take the clients instructions, you need to know who the client is. Such as a corporation, the corporation is the client, so who do you listen to? Or if the client is a child, who do you listen to?

Question 10

When Client an Organization - LSO RPC 3.2-3

Answer 10

“Notwithstanding that the instructions may be received from an officer, employee, agent or representative, when a lawyer is employed or retained by an organization, including a corporation, in exercising the lawyer’s duties and in providing professional services, the lawyer shall act for the organization.”

Question 11

Client with Diminished Capacity - LSO RPC 3.2-9

Answer 11

“When a client’s ability to make decisions is impaired because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal lawyer and client relationship.”

Question 12

R v Delisle

Answer 12

Assault case. The lawyer violated a duty to commit to the client’s cause because he didn’t believe his client was innocent and the lawyer kept pushing that the client should plead guilty.

Question 13

Raichura vs Jones

Answer 13

“At the mediation Ms. Raichura perceived that the Defendant was arguing with her, rather than advocating for her, relative to this matter.”

Question 14

Duty of Commitment as Restraint on State Action - Canada (AG) v Federation of Law Societies

Answer 14

Canadian Charter of Rights and Freedoms section 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Question 15

Reasonable Fees and Disbursements - LSO RPC 3.6-1

Answer 15

“A lawyer shall not charge or accept any amount for a fee or disbursement unless it is fair and reasonable and has been disclosed in a timely fashion.”

Question 16

Types of fees/billing lawyers have with clients

Answer 16

Time-based billing

Flat fees
o Clients like flat fees, but possible to cause conflict as the client can take advantage of the situation and a lawyer might also not put in as much work because they aren’t charging by the hour. (can have a personal interest conflict)
o What areas mostly do flat fees: individual transactions, corporate transactions, does the type of stuff because it doesn’t usually require more extra time than expected.

Contingency billing
o depends on the success of the case. Usually used in personal injury. The lawyers who charge contingency are the ones who make the most money, but risk of making nothing. (usually 30% of winnings go to lawyer so you don’t know how much you’ll make and client doesn’t know how much they’ll pay the lawyer).

Question 17

Business v Profession

Answer 17

• Business is caveat emptor
• Profession is credat emptor

Question 18

Law Society of Ontario vs Max Rapoport

Answer 18

Problems with the retainer:

Cannot contract out of Solicitor’s Act important rights given to CLs

Question 19

Newell v Sax, 2018 ONSC

Answer 19

Fee must be proportional to the work done on the transaction, degree of skill, legal complexity, a realistic assessment of time spend, importance of the matter to the CL.

Can’t bill your CL for things that your assistant is doing on a salaried basis.

Question 20

Raufi v Jeyaratnarajah

Answer 20

Case about disbursements (disbursements are something that sometimes lawyers abuse, that’s what happened in this case). The client was a minor so that was the reason why things were even looked into, so a chance that they usually get away with this stuff with other cases. The firm is Diamond and Diamond, and what they did that was wrong was that there were problematic disbarments, such as a $500 file closing fee (too expensive for a file closing fee, and probably shouldn’t be charged at all), cost insurance (unnecessary since there wouldn’t really be any litigation).

Question 21

The Bounds of the Client’s Cause

Fierreira v St Mary’s General Hospital

Answer 21

She was retained by Ferreira, and then unrelated to the case the client ends up in the hospital and she heard through her husband who works at the hospital, the clients family was going to terminate life support which was legally allowed. Georgiana (the lawyer) wants it stopped or postponed so she can continue working on his case. What was wrong with the steps that the lawyer took? this is about duty of commitment to the clients cause, and you can see that she is extremely committed as she wont get money or anything BUT she was technically committed to her own cause and not the clients because she operated without instructions. Her client never instructed her about the life support, so she came up with the cause herself making her committed to her own cause. The damage that was suffered was the organs, because he was an organ donor but being on life support for so long damages the organs. Also emotional damage to his family. Takeaway here is that duty to the clients cause does not mean that you can make decisions on your own, you need to operate with the clients instructions.

Question 22

Salomon v Matte-Thompson

How were the 5 C’s breached?

Answer 22

Salomon is committed to Papadopoulos and not the Client.

There was a conflict of interest. Personal interest conflict, as he was getting money from Papadopoulos by sending clients to him.

Breach of candid communication because he did not proactively disclose to his client as in 2007 Salomon read an article that mentioned that it was probably a pyramid scheme and he didn’t tell his client about it.

Confidentiality breach because he communicated about his client to Papadopoulos when trying to decide how to keep her on.

Duty of competence, as he was negligent to make the referral in the first place, even though the advice was a non legal matter, in this case it still counts because he didn’t disclose that there was a conflict of interest and he needs to make it clear that he is not an expert on it and needs to tell her it’s not his legal advice.

Question 23

Law Society of Ontario Rules of Professional Content, Rule 3.1-2, Commentary 10

Answer 23

• In addition to opinions on legal questions, the lawyer may be asked for or may be expected to give advice on non legal matters such as the business, economic, policy, or social complications involved in the question or the course the client should choose.
• In many instances the lawyer’s experience will be such that the lawyer’s views on non legal matters will be of real benefit to the client.
• The lawyer who expresses views on such matters should, if necessary and to the extent necessary, point out any lack of experience or other qualification in the particular field and should clearly distinguish legal advice from other advice.