Let’s face it – litigation is expensive and tricky. Beside the basic fact that you’ve found yourself in a contentious dispute with somebody, you also have to consider the nature of the working relationship with any counsel you might choose to handle your file. How can you know which lawyer is best for your case? Will they be too adversarial, and needlessly run up your costs? Will they be all too ready to settle for an amount far below what you feel is appropriate? Will you communicate properly? Or do you fear you might lose control of the whole lawyer-client interaction?
In an age of spiraling legal costs, an increasing number of disputants are going off the “grid”, opting to go it alone, without the assistance of counsel, as self-represented litigants. In the area of family law, for instance, by some estimates, up to 60% of litigants in the Province of Ontario are self-represented. Though many of these individuals may feel priced out of the market for counsel, the problem goes deeper than simple affordability issues.
A not-insignificant proportion of currently self-represented litigants have retained counsel in the past, but for one reason or another, there was a breakdown or dissatisfaction with the previous lawyer-client interaction – and, for such reasons, these individuals have decided to forego any legal assistance at all. Others direly need professional advice, but they fear that the lawyer-client relationship may be too rigidly structured, in ways that may cause them to lose control over the limited budget they’ve set aside to handle their matter.
The decision to forego professional legal advice is often based on a fundamental public misunderstanding as to how legal retainers work. Whether you currently feel that you just can’t afford a lawyer, or that you’ve been soured on past experiences with counsel, the chances are better than even that your current avoidance was born from past misperceptions of your own (lack of) power in managing the course of your legal retainer, or born from prospective fears as to how you could possibly manage such retainers in ways that might give you control over your limited budget.
At root, a legal retainer is little more than a contract of services, but unlike other kinds of contracts in the business world, the lawyer’s duties and responsibilities under the contract are governed by a comprehensive body of provisions known as Rules of Professional Conduct.
Though the Rules are in place to protect the integrity of the legal profession – and, by extension, the interests of the public – many members of the public are under the mistaken impression that these rules might provide a certain rigidity as to the kinds of lawyer-client working relationships that might be created – as if “one size fits all” when it comes to “formally” retaining counsel.
But it’s not the case. The simple fact is, you have a great deal of latitude in forming, managing, and in limiting the scope of the retainer that works best for you, your budget, and your particular litigation dispute. Though you may feel you have to go it alone, you do have options of which you may be unaware – because the basic fact is, once you’ve found yourself in the midst of a complex legal dispute, you probably need some form of professional legal advice and assistance to keep your case from going off the rails and costing you dearly in the end.
Below is a list of common public myths about legal retainers – and suggestions as to how you might go about finding the kind of professional legal assistance that works best for you and your budget.
MYTH #1 – IT’S ALL OR NOTHING
You’re looking ahead at a hugely complex court battle, and you’ve decided to go it alone the whole way because you simply can’t afford the spiralling legal costs that will come from retaining a lawyer to handle it. You might even consider yourself a fairly sophisticated litigant. You’ve spent some time at a legal library, or even surfed the Internet, educating yourself on the law you need to know. There is the publicly available Canlii web site, for instance, which gives you free access to a huge – though not necessarily exhaustive – body of case law. You might even have struck up a friendship with the local court clerk, who has assisted you on getting the proper forms you need in filing your claims and submissions.
But what if the stakes of success and failure are fairly high? What if, at some point in the proceedings, you suspect your legal judgment isn’t competent enough to get you over the hurdle you need to clear?
Well, you might consider retaining counsel whose work is limited only to the very specific task for which you require professional assistance – to review a submission; to help draft arguments; to research the case law you might need; or to even come in as an agent on the date of the hearing and argue your case.
This is what is known as unbundled legal services, or a limited retainer of service. Many lawyers are reluctant to take on complex litigation matters in a limited capacity, since they may feel that they can’t competently advise on any portion of the file without having full carriage of that file. Lawyers quite reasonably prefer to have control over the course of a legal proceeding, but if they cede the bulk of that control to an amateur – specifically, you – with little or no litigation experience, the fear is that you might blame them in the event that you lose your court case, in effect, holding them responsible for errors of incompetence that were likely due to your own handling of the matter.
Additionally, there is the consideration of a potential misunderstanding between client and lawyer as to what the lawyer’s duties were limited to. A lawyer might offer a quote for one kind of task, yet the client might have misunderstood the quote to cover a series of tasks. As a result, a lawyer might feel on the hook to perform additional work for which they may not be compensated.
These are just some of the reasons why many lawyers are reluctant to perform any services on a limited retainer, particularly on complex litigation files. A governing consideration, however, is that a limited retainer of services requires the lawyer to draft and customize a retainer agreement that protects the interests of both lawyer and client. In short, it requires a non-standardized retainer letter, which many lawyers may not feel comfortable with, particularly in view of the comparatively limited compensation that comes from opening a file limited to one or few specific tasks.
Moreover, recent updates in the Law Society’s Rules of Professional Conduct have alerted lawyers to added responsibilities in ensuring that a client understands the degree to which a retainer of services is limited.
As noted before, a retainer is a contract. And like all contracts, its terms must be specifically spelled out. And because limited retainers tend to be non-standard, they require non-standardized agreements that specifically address the limited, task-by-task basis of this kind of retainer. With a limited retainer, the lawyer-client relationship is designed to come to an end at the completion of the quoted task(s), not at the end of legal proceedings, which is often the case in a full retainer of services.
With all that said, you should know that there are lawyers – this author included – who do take on clients on a limited, task-by-task retainer. With respect to complex litigation matters, the key is for the lawyer to manage overall client expectations in light of the performance of a very limited task.
To cover the complexities of a limited lawyer-client relationship, the retainer letter should spell out exactly the tasks that are to be covered by the quote; the agreement should spell out that the completion of the quoted task signals the end of the lawyer-client relationship; and, most crucially, it should include what is termed as a “whole agreement clause”, so that the client understands that all duties and responsibilities under the contract are limited only to what has been explicitly set out within the retainer agreement, and that no other verbal representations or promises may be imported into it without the written approval of both parties.
In my own practice, I ensure – always in writing – that the client understands that the lawyer/client relationship under the limited retainer comes to an end upon delivery of my invoice attendant on the completion of the specific task(s) for which I have been retained. If the client requests additional tasks, those new tasks form the basis of a new retainer, which likewise will come to an end with the delivery of an invoice upon completion of such tasks. And so it goes…
In short, a properly drafted limited retainer agreement is one that informs the client as to what they can reasonably expect from the scope of services to be performed under the contract. In this respect, the governing professional conduct concerns inherent in this type of lawyer-client relationship are little different from the professional conduct issues that might arise in the more “standard” full retainer scenario – they both require the proper management of client expectations from the outset of the relationship, which, in turn, requires a careful drafting of the retainer agreement.
For those lawyers who prepare retainer agreements appropriate to the specific tasks for which they are being retained, the results can be quite fruitful for a self-represented litigant on a comparatively limited budget. Legal opinions might be furnished as to how such a litigant might fill the evidentiary gaps in their case; case law research may be provided; factums may be drafted; or, as stated above, the lawyer may be retained specifically to attend court as an agent – and not as the lawyer “on file” – to argue a litigant’s motion on the date of the hearing.
All of which brings us to the next issue – legal costs – and the following myth:
MYTH #2 – LAWYERS ARE RETAINED BY THE HOUR ( or, “GOING ON THE CLOCK”)
When retaining a lawyer, you will inevitably be quoted an hourly fee. Your expectation might very well be, then, that the total cost of the lawyer’s services will be relatively open-ended and speculative: only at the completion of the task(s) will you receive a bill that tells you how much you’re in for.
That is often the case when a lawyer is retained to take full carriage of a complex litigation file. Under such a retainer, the lawyer is responsible for the handling of all communications and actions between counsel. And since a lawyer quite reasonably can’t be expected to predict the actions of opposing counsel in the course of legal proceedings, the work to be done under this kind of retainer must accommodate unforeseen circumstances: flurries of emails and phone calls between the parties; receiving and responding to all notices and submissions; and any other billable matter that requires the lawyer to change course in reaction to a continually fluctuating set of circumstances as the proceedings unfold.
According to the Rules of Professional Conduct and the Practice Management Guidelines, lawyers should endeavour to manage client expectations from the outset by providing a quote or estimate of the time foreseeably required to perform certain tasks. But here’s the problem – in practice, particularly in regard to complex litigation, intervening unforeseeable events tend to be the norm. Ideally, the lawyer should continue to keep the client informed on a timely basis when and if such unforeseeable events transpire, so that the client may adjust their expectations accordingly, and presumably factor such changes into their budgetary considerations.
And here is where a great many lawyer-client relationships break down – or, if they don’t quite “break”, they can often leave the client with bitter feelings upon conclusion of the relationship. Though the client may feel justified in blaming the lawyer for “unforeseeable” costs that extended well beyond the initial quote, what the client failed to appreciate is the extent to which he/she – the client – might have stepped in at any stage to initiate their own change in course, in response to the unforeseeable circumstances that had arisen.
Rather than passively standing aside and enabling the lawyer to proceed to litigate on the unforeseen matter, such clients would better serve their budget by doing a cost-benefit analysis over proceeding with their intended course of action. Perhaps, in light of the unforeseen up-tick in legal costs, the benefits of offering a more attractive settlement to the other side might outweigh the risks of proceeding on one’s originally intended course of action. Ideally, your lawyer might advise you on just such a move, but in practice, you are the one who is ultimately expected to be most vigilant as to the state of your budget; your lawyer instead will likely be more focused on the competent handling of your file, and will assume that you have no budgetary concerns so long as they keep you informed of ongoing costs on a timely basis, and during which you raise no concerns about the spiraling of costs.
In regard to ongoing budgetary concerns, then, all litigants should regard themselves as “self-represented” – meaning, you should expect to be proactive with your lawyer in raising your budgetary concerns with them before you acquiesce in allowing them to run up your budget.
If the consequent unforeseeable spiraling of hours is an ongoing concern with you, then you must realize your existing power to design and/or change the compensation basis of your retainer agreement as you go forward. Though your lawyer might propose from the outset that they be compensated by the hour, you are not bound to agree to it. You are free to suggest that the lawyer provide a fixed fee for certain enumerated tasks, with the lawyer, in such instances, taking on the risk of additional work arising from unforeseen circumstances.
In sum, you will be self-representing your ongoing budgetary interests by taking control of the compensation terms of your retainer agreement. If the spiraling of legal costs is an issue with you, then you are free to put a ceiling to those costs by way of requesting a fixed fee from the outset. The lawyer, for their part, is free to take the retainer on that basis, or to decline the retainer and move on; but if they agree to it, they are bound to it.
If you are retaining counsel on a limited, task-by-task basis, you are likewise free to request a fixed fee for each task to be completed under the limited retainer. Where the lawyer quotes an hourly rate, you should realize that the rate is the benchmark by which you and the lawyer may determine the amount of hours that may be fixed to work on a task, with the consequent fixed quote arrived at by reason of the lawyer’s hourly rate (for example, a fixed fee of $3,000, fixed at ten hours worth of work from a lawyer whose hourly rate is $300/hour). In sum, the point of the fixed fee arrangement is that you know, from the outset, how much you will be in for – at least as to your lawyer’s fees – before any work on the retainer is done.
When negotiating the limited retainer arrangement, the lawyer might advise that they require a set number of hours to complete the task you are requesting. Given the lawyer’s hourly rate, your limited budget might not be able to accommodate such hours. In other words, you might not be able to afford that particular task within the hours the lawyer might require to complete it. But on the other hand, can that particular task be broken down into constituent components that require less hours, and as a result, is more in keeping with your budget?
For instance, in my law practice, I might provide a self-represented litigant a fixed quote for the drafting of a factum. If, however, the quote is beyond the budget that the prospective client is able to set aside, I could offer a lower quote to provide a summary of legal arguments that the client might import into their own factum. In other words, the litigant might really be more interested in obtaining helpful and novel legal arguments that strengthen their factum, rather than a fuller complement of services to be provided by the lawyer in drafting the actual factum itself.
Overall, the consideration should be that the self-represented litigant obtains some degree of access to professional legal advice that is tailored to their limited budget. The challenge for the lawyer is to ensure that they can perform their limited task competently. No matter how limited the constituent task to be performed, it must be performed in a manner that has objective value for the client receiving such services. In all cases, a lawyer should not agree to provide services under a task that cannot reasonably be performed to a standard of reasonable competence within the strictly limited hours allotted to that task.
MYTH #3 – ONCE WORK ON A TASK COMMENCES, YOU CAN”T STOP THE CLOCK
Some clients have the mistaken notion that once they agree that a lawyer should proceed with a task, they can’t later step in and say, “Enough.” In other words, they mistakenly believe that they can’t stop the clock.
In truth, you can always stop the clock. What you can’t do is go back in time and erase the costs owing for the work that the lawyer has already done. That’s why the client – whether self-represented or not – should always stay on top of the file, in particular, clarifying what is billable and what is not.
As work on the file proceeds, you may become dissatisfied with the quality of the lawyer’s work, or perhaps you may disagree with the strategy that the lawyer has taken. In such circumstances, you are not bound to sit back and simply wait for the lawyer to complete the task. You can indeed step in at any point and request that the lawyer stop all work on the file.
If dissatisfied for any reason, you can unilaterally end the retainer and seek out alternative counsel, with your only obligation being to compensate the lawyer for the time expended on the file up to that point. In all cases, you are not obligated to stick with the lawyer that you have formally retained. Your lawyer is not like a real estate agent. Once retained, they do not have exclusive “dibs” to the work on your file. In the end, whether or not they continue to work on your file at any point really depends on you.
Moreover, a legal retainer of services on a file need not be exclusive to the lawyer you retain. In the course of work on a file, you might very well stick with the lawyer you retained, but may decide that certain matters require a second legal opinion from additional counsel that you might retain for such purposes. This can work fine so long as you don’t have both lawyers working separately on the file at the same time, without knowledge of one another’s involvement – since coordination under such circumstances would be necessary in order to ensure that both lawyers can perform their respective tasks on your behalf competently.
In my own practice, for instance, I have often been contacted by members of the public who are interested in my legal research services, even though they are already represented by counsel. On my end, it would be inappropriate under such circumstances to suggest that they end the retainer with their counsel in order to retain me. Often, that’s just not necessary. If they are already represented by counsel, and otherwise satisfied with their counsel’s services, I usually request that the lawyer contact me on behalf of their client, and then provide instructions to me instead of the client, so that the lawyer retains overall control and coordination of the file and we are not operating at cross-purposes.
If, however, a client no longer wants to continue with their counsel, the more appropriate course of action is to notify the lawyer beforehand that the retainer is at an end before contacting alternative counsel. That way, the alternative counsel is not put in a possibly inappropriate situation whereby they might be perceived as having suasion over your decision to end the retainer with the current lawyer.
MYTH #4 – IT’S FOR THE LAWYER TO DETERMINE WHAT IS BILLABLE AND WHAT IS NOT
If you do not want the lawyer to bill you for emails and phone discussions, make sure you don’t agree to be billed for such items in the retainer agreement.
If the lawyer suggests that it is not possible for them to competently perform their services without setting aside billable time for such communications, you are free to negotiate a ceiling for how much time can be billed in respect of such communications during a given time period.
If disbursements are an issue of concern, you can require in the retainer agreement that the lawyer obtain your prior approval for any disbursement above a set amount.
The bottom line is that you can again maintain control over your budget by ensuring your budgetary concerns are addressed, from the outset of the lawyer-client relationship, in the retainer agreement.
If the lawyer is billing out their time in drafting email responses to you, you might want to consider curtailing your email queries. If you speak with the lawyer regularly by phone, you should ask whether the call is billable, and if so, specify that calls should only be limited to matters necessary to the task or file – and feel free to unilaterally end, or limit, a phone discussion once you feel the objective of the discussion has been achieved. And don’t feel held back by considerations of politeness or etiquette. Remember, the lawyer has put you on the clock, so time is indeed money. So long as you are not outright rude, it is entirely appropriate to cut off your lawyer in mid-monologue and to suggest that you wrap up once you feel that the objective of the communication has been achieved.
MYTH # 5 – YOU MUST SIGN THE LAWYER’S “STANDARD FORM” RETAINER AGREEMENT (or, You Have No Right to Negotiate its Terms)
Many firms provide standard form retainer agreements for convenience. Particularly with respect to larger firms, clients may feel obligated to sign such standard form agreements, assuming they have no right to request any changes, additions, or deletions in their terms.
But if you have concerns about certain contract terms from the outset, you must be proactive in stating those concerns before you allow the lawyer to proceed with work on your file. Otherwise, you will be bound to pay for all work completed in accordance with those terms. In the end, it’s your budget and the conduct of your case that is at stake. Do not be cowed and intimidated by a sophisticated law firm set-up. You should always consider whether you feel comfortable with the terms of the retainer that the law firm is presenting you, and if not, feel free to suggest changes, additions, and deletions to those terms in accordance with your reasonable needs.
At worst, the lawyer or firm may simply refuse to take on a retainer that incorporates your suggested changes. At that point, it is for you to decide whether or not you might be better served by retaining an alternative firm or lawyer who is more willing to accommodate your suggested terms of retainer.
MYTH # 6 – THE RETAINER AGREEMENT MUST BE IN A FORMAL AND PRESCRIBED FORMAT
So long as the terms of the retainer are clearly set out in writing, and the client has confirmed in writing that they accept the terms of the lawyer-client arrangement, the agreement will be binding, whether it is written out formally in the style of a contract or communicated as part of an email exchange.
According to recent changes in the Law Society’s Rules, a retainer may even be deemed to have been created when a lawyer offers informal advice on the phone or at a social gathering. The client, however, need not worry about receiving a bill from a lawyer they never intended to retain. The Rules are there to protect members of the public against relying on advice that has been improvidently given by lawyers in informal settings. The governing concern is that the lawyer, in such contexts, should ensure that the individual understand that they should not rely on advice given outside a formal written retainer (including, especially, any and all information provided in this article herein).
MYTH #7 – THE LAWYER “OWNS” THE COMMUNICATIONS IN YOUR FILE
Solicitor-client confidentiality and privilege applies as between you and your lawyer; it does not apply against you as between email communications between your counsel and opposing counsel.
In litigation cases, your lawyer often has to communicate with opposing counsel on a regular basis. Particularly in settlement situations, some clients fear that their lawyer may be unduly identifying with the positions of the opposing counsel, perhaps even showing a bias against their client’s position.
If you do have such concerns, it is your right to request that you be cc’ed on every email communication that your lawyer sends to opposing counsel. You may also request that your lawyer include you in a conference call on every phone discussion they might have with the opposing side.
Such requests have the dual advantage of not only keeping you in the loop as to how the negotiations are proceeding, but also provides a means for you to verify the hours that have been billed in respect of such communications.
Even where you have not been cc’ed on contemporary emails, it is your right to request that the lawyer furnish you with copies of such communications for your own records.
If you unilaterally end your retainer with your lawyer for any reason, it is also your right to request that the lawyer furnish you with all copies of such communications, as your new counsel may very well need to view such communications in order to evaluate what has or has not been conceded in negotiations up to that point.
In sum, your lawyer cannot, on the basis of any claim of confidentiality, withhold from you the contents of any negotiations with the other side that have been made on your behalf.
MYTH #8 – THE LAWYER IS THE “BOSS” OF THE SOLICITOR-CLIENT RELATIONSHIP
Clients who retain the services of larger firm often feel intimidated and reluctant to critique the conduct of work on a file once the firm has been formally retained. If they have nagging concerns about a lawyer’s handling of the file, they may feel cowed by the lawyer’s air of expertise, acquiescing in the lawyer’s opinion as to how such matters should be conducted.
Moreover, it is often the case that clients do not understand the advice given to them by their lawyer, and hence, sign off on a course of action because they are too embarrassed to seek the clarifications that might provide them with better insight as to what action the lawyer proposes to take on their behalf.
Often, it’s a matter of personal chemistry. If you feel that your lawyer is acting too high-handed with you, and is simply not offering you advice that you can make sense of, it’s your right to insist that the lawyer take care to simplify matters in a way that clears up your confusion.
If the lawyer strikes you as too busy to take the time out to do so, or simply lacks the ability to explain their actions in a way that makes sense to you, you may need to consider the possibility of seeking out alternative counsel.
Moreover, you should never feel bullied by the lawyer’s expertise to take a course of action that you do not feel comfortable with – whether the proposed course of action is to proceed with a lawsuit, to drop it, or to settle.
It’s a difficult line to straddle because the lawyer, for their part, is under an obligation to give you what they feel is the most provident legal advice, in accordance with their own experience and expertise. From the lawyer’s perspective – as well as from the perspective of the Law Society and LawPro (the legal insurance provider) – a lawyer should resist the pressure to act as a pawn of their client, taking actions on behalf of their client that the lawyer would otherwise not deem to be legally provident or reasonable.
In my own practice, if my client disagrees with the proposed course of action that I suggest, all I can do on my part is to ensure that my client understands the legal basis of my opinion. In short, I need to be attentive to clues as to whether my client is simply not absorbing the gist of my opinion, and to evaluate whether the impasse is more due to my failure to simplify my explanations, as opposed to a genuine difference in strategy.
In the end, the client should be made to feel comfortable with asking questions of their lawyer, even requesting repeated clarifications if they remain confused by the advice. Since a great deal of the breakdown in solicitor-client relationships is often due to a breakdown in communication between client and counsel, the key consideration is that the client should find a lawyer with whom they can establish a mutually productive working relationship, taking into account personal chemistry and the lawyer’s ability to make themselves understood to their client.
The preceding should not be relied on as legal advice. It is offered as general information only, on an as is basis.
James Cooper, a Toronto lawyer, provides flexible retainer arrangements for self-represented litigants (in both civil litigation and family law cases) and for sophisticated clients concerned with managing their legal fees.
Mr. Cooper also provides quality professional legal research assistance and civil litigation support services to lawyers, law firms, and members of the public throughout the Greater Toronto Area (including Mississauga, Oshawa, Barrie, Peterborough, Markham, Thornhill, Etobicoke, and Richmond Hill) and throughout the Province of Ontario.
Over the years, Mr. Cooper has provided effective case law research and legal drafting services for virtually every civil litigation context – covering a diverse number of legal cases involving family law, contracts, personal injury litigation, wrongful dismissal, landlord/tenant, estate law, corporate/commercial law, and more.
Mr. Cooper has helped to devise winning legal strategies and legal arguments for a number of Toronto law firms and sole practitioners, using his unique talent for legal research as an effective tool to troubleshoot complex cases, to ensure that his legal clients take their arguments before court with a solid grounding in supportive case law.
Academically trained as a writer, Mr. Cooper also provides clear, concise, and persuasively argued legal factums for submission to court.
He may be reached at (905) 737-9994 or may be emailed at jcooper at SelfRepLawyer.ca