Family Law
#11 - Scope of Representation
STANDARD
A lawyer must establish the scope of the representation, including any limits. Once the scope of the representation is established, it should be confirmed in writing.1
A lawyer must obtain sufficient information to properly identify the client.2
Reference Materials
Notes:
1. Strother v. 3464920 Canada Inc. v. Strother, 2007 SCC 24 (CanLII), [2007] 2 S.C.R. 177. - the scope of the retainer is governed by contract - Retainer Agreements are important in defining the scope of the work and the relationship - Where a retainer has not been reduced to writing, the court should not in such a case strain to resolve the ambiguities in favour of the lawyer over the client; Hants County Business Development Centre Ltd. v. Poole, 1998 CanLII 5604, 165 N.S.R. (2d) 365 (S.C.); Lindsay v. Stewart, MacKeen & Covert (1988), 82 N.S.R. (2d) 203, 1988 CarswellNS 231 (WC), [1988] N.S.J. No. 9 (QL) (S.C. (A.D.)); Arab v. HRP Management Services Ltd., 1991 CanLII 2598, 109 N.S.R. (2d) 286 (S.C. (A.D.)); McClenahan v. Clarke, 2004 CanLII 25843 (Ont. Sup. Ct.). - Clear boundaries must be established when others are involved with instructing and paying the lawyer fees.
2. Reg. 4.5.2(b)(ii) made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28. - Client Identification and Verification Regulation
Related Legislation:
Legal Profession Act, S.N.S. 2004, c. 28. – s.66 – reasonable and lawful accounts
Reg. 4.5.2(b)(ii) made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28. - Client Identification and Verification Regulation
Additional Commentary:
ABN Amro Bank Canada v. Gowling, Strathy & Henderson, 1994 CanLII 7334, 20 O.R. (3d) 779 (Ct. J. (Gen. Div.)) – use of “simple, concise and precise language” when drafting.
Bruhm v. Feindel and Conrad, 1999 CanLII 2312, 175 N.S.R. (2d) 173 (S.C.). - Solicitor did not explain basis for fees - Solicitor-client relationship cannot be created by presumption as it is founded in contract.
Reierson Schurman v. MacKay, 2009 NSSM 13 – Fees- Taxation – Interest – Legal Profession Act (s.66).
O’Connell v. Romney, 1992 CanLII 2567, 111 N.S.R. (2d) 268 (S.C. (A.D.)). - A retainer agreement should be in writing – Subsequent changes should be discussed and the retainer agreement amended to avoid misunderstanding.
Lindsay v. Stewart, MacKeen & Covert (1988), 82 N.S.R. (2d) 203, 1988 CarswellNS 231 (WC), [1988] N.S.J. No. 9 (QL) (S.C. (A.D.)). - Taxation of an account - Issue of reasonableness; Chandler Moore v. Jacques (1997), 161 N.S.R. (2d) 381, S413/20 (S.C.). – Retainer Agreement should be in writing.
Mardling v Malvern [1983] O.J. No. 212 (S.C.) - proof of limited retainer.
David L. Parsons & Associates v. Reid (1998) 167 NSR (2d) 145 – no written contract or retainer – third party not responsible to pay account.
MacLean v. Van Duinen (1994) 131 NSR (2d) 60 (NSSC) – Written retainer – Taxation – Reasonableness.
NSBS Discipline Cases:
Nova Scotia Barristers' Society v. MacIsaac, 2001 NSBS 6 – Fees – Account Rendered for services not yet provided.
Practice Tips:
Considerations when drafting a retainer agreement:
- Identify the client; describe the services you have been retained to perform;
- Describe any services which you have recommended but the client has declined;
- Describe what, if anything, the client is to provide or do;
- Identify key personnel in your firm who will be working on the file;
- Outline timetable, deadlines, limitation periods where appropriate;
- Indicate how communication with the client will be carried out, including (after canvassing the appropriateness of each with the client, email, phone/phone messages, correspondence, etc.);
- Address client expectations as required;
- Describe what will cause the lawyer to terminate the retainer;
- Outline what will happen upon the transfer or termination of the retainer;
- Outline the agreement as to fees, disbursements and payment, including the amount of retainer to be paid prior to the commencement of work (if applicable);
- Describe how long a client has to pay a bill and what will happen if they are late with payment;
- Payment of disbursements, including the cost of expert reports, assessments, and professional services, are the responsibility of the client.
DOWNLOADS
Related Ethics:
Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia, 2nd ed. (Halifax: Nova Scotia Barristers’ Society, 1998), as amended.
Chapter 2 (see Commentary 2.7 - Once retained, if the matter becomes more complex than the lawyer is capable of handling, the lawyer should refer the client to capable counsel.)
Chapter 3 (see Commentary 3.1 – limited retainers)
Chapter 11 – Withdrawal
Chapter 12 – Fees
Chapter 19 (see Commentary 19.4 - A lawyer is to approve the amount of any fee to be charged to a client for legal work.)
Definition:
Scope of Representation can also be referred to as Scope of the Retainer.
The word Retainer has several meanings. It can mean the payment of monies into a lawyers trust account for service to be rendered; It can mean hiring a lawyer; or the agreement made between the client and a lawyer outlining the services a lawyer is to complete for the client and the terms of the agreement.
Additional Information:
Nova Scotia Barristers' Society - Lawyers' Fees
Retainer Agreements:
PracticePRO – Finances booklet precedents
PracticePRO – Curtis Billing Precedent
Forms:
O’Brien’s Encyclopedia of Forms - Useful Client Information forms specifically for family law
ARTICLES
Pinnington, Dan / The Most Common Malpractice Error: a Failure to Follow Client’s Instructions (October 2002), in LAWPRO Magazine (online)
Canadian Bar Association / "The Future of the Legal Profession: The Challenge of Change", (August 2000)
Balbi, Lonny / "Flat-fee billing: replacing time with value" (July 3, 2009) in The Lawyers' Weekly
The Responsibilities Within A Retainer (August 1995), in LAWPRO Magazine (online)
Managing The Retainer (August 1995), in LAWPRO Magazine (online)
Law Society of Upper Canada, “Establishing the Retainer” contains helpful hints on client screening, initial consultation and the content of retainer agreements.
Dawn Melville, Barrister & Solicitor, “Retainer Agreements: Establishing the Ground Rules for Clients and Lawyers” Drafting hints and suggested terms for retainer agreements.
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Approved by Council on March 25, 2011