Fairness Over Form In Billing For Legal Services

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The Alberta Court of Queen’s Bench recently emphasized the public importance of judicial oversight in billing for legal services – in essence, a form of consumer protection regulation—in Stubbard v Hajduk Gibbs LLP, 2014 ABQB 632.

In Alberta, billing for legal services is subject to the Alberta Law Society’s Code of Conduct and the Alberta Rules of Court. Section 206(1) of the Code provides that a lawyer’s charges must be fair and reasonable. Rule 10.2(1) states that, except to the extent a retainer agreement otherwise provides, a lawyer is entitled to be paid a reasonable amount. Rule 10.5 allows a lawyer and client to agree to billing at a different rate than would be determined under Rule 10.2, again subject to reasonableness. Rule 10.7 outlines requirements specific to a contingency agreement, which include that it must be in writing, be signed by the client (in the presence of a witness) and lawyer, contain certain particulars, and be served on the client.

In other words, notwithstanding parties’ right to contract, the court has inherent jurisdiction to review agreements and billing for legal services for reasonableness The regulation of contingency agreements is particularly pointed.

Stubbard involved the review of lawyers’ charges in a divorce action. In 2005 the client and her counsel entered into a retainer agreement for billing on a flat fee or hourly basis. In 2010, the firm discovered that it did not have a signed copy of the agreement and took steps to formalize and change it – by lowering the hourly fee and adding a contingency component by which the firm would be entitled to 35% of the matrimonial property and spousal support awards if the matter required a trial or settled within 12 days of trial (the firm had estimated the client’s matrimonial property claim as between $900K to $2.4M).

The parties then executed the 2005 agreement, adding a footnote stating that the document replaced the 2005 agreement and was effective retroactive to 2005, and attaching a second document by which the client agreed to enter into the revised terms of retainer. The formalized 2010 agreement, however, was never executed.

The client applied to a review officer for a taxation of accounts. She had been billed $71,000 cumulatively, was still married, and the issue of matrimonial property had yet to be resolved. The review officer sought a reference from the Court of Queen’s Bench.

Counsel for the law firm argued that contracts for legal services are enforceable in accordance with their terms regardless of criteria for assessment under the Rules, relying on Steinke v Hajduk Gibbs LLP, 2014 ABQB 34 and Samson Cree Nation v O’ Reilly & Associés, 2014 ABCA 268.

The Court distinguished the Steinke and Samson decisions and discussed legal fees, legal fee contracts, and public policy at some length (paras. 19‑26). The Court noted that the basis for taxation rules is the uneven bargaining position between lawyer and client, and insisted on this basis that — even where there is an agreement to contract out of the Rules, and even if the Rules permit such an agreement — there must still be oversight, and it is the overarching duty of the Court to view work performed through the filter of reasonableness.

While the Court concluded that it could and would distinguish Steinke and Samson, it was not necessary to do so because neither the 2005 nor the 2010 agreement took effect – the 2005 agreement having been replaced in its entirety, while the 2010 agreement failed to meet the Rules’ requirements for contingent fee agreements. On this basis, the Court directed the review officer to ignore both the 2005 and 2010 agreements and to tax the client`s account based on the criteria in Rule 613 of the former Rules of Court (in force at the time of the lawyer’s appointment).

Ultimately, the Court rejected any notion that contractual terms in a retainer agreement oust the Court’s inherent jurisdiction to review accounts for fairness in the context of assessment Rules, or what it considered is “clearly consumer protection regulation” (paras. 21‑24).