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#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 who accepts a limited scope retainer2 with a client must be clear in setting out the nature, extent, and scope of the retainer and must confirm in writing with the client what services will be provided, including how communication with opposing counsel will be managed, prior to completing the work.3 The lawyer should caution the client on the risks associated with entering into a limited scope retainer. A lawyer should consider whether disclosure to the Court of the limited nature of the retainer is required.4

A lawyer must obtain sufficient information to properly identify the client.2

Exception: Legal aid lawyers and volunteer lawyers in community-based legal clinics who provide summary advice, which is basic information about legal rights, duties and positions, are exempt from the requirement to document a consultation.


Reference Materials

Notes

1. Strother v. 3464920 Canada Inc. v. Strother2007 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.

Ross, Barrett & Scott v. Simanic, 1994 CanLII 3983 (NS CA) (appealed on other grounds): Where there is no written retainer agreement between the lawyer and the client, the lawyer bears a "special onus" to prove the contractual terms;

Hants County Business Development Centre Ltd. v. Poole1998 CanLII 5604, 165 N.S.R. (2d) 365 (S.C.); 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;

McClenahan v. Clarke2004 CanLII 25843 (Ont. Sup. Ct.). - Clear boundaries must be established when others are involved with instructing and paying the lawyer fees.

2. Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers' Society, 2012, rule 1.1-1(g): “limited scope retainer” means the provision of legal services for part, but not all, of a client’s legal matter by agreement with the client.

3. Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers' Society, 2012, rule 3.2-1A: “Limited Scope Retainers”; rule 7.2-6A: “Communications.”

4. Nova Scotia Civil Procedure Rule 33.09 – Counsel for a Limited Purpose: A judge may permit a lawyer to act as counsel for a limited purpose on behalf of a party who otherwise acts on their own. The lawyer should advise the Court of the scope of the limited retainer, so Court staff know whether communication should be directed to counsel or to the party.

Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers' Society, 2012, rule 3.2-1A (Commentary): Where the limited services being provided include an appearance before a tribunal a lawyer must be careful not to mislead the tribunal as to the scope of the retainer and should consider whether disclosure of the limited nature of the retainer is required by the rules of practice or the circumstances.

5. 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. 4.5.3 and 4.5.4 made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28 (amended July 19, 2013) - Client Identification and Verification Regulation

Additional Commentary

Retainer Agreements (Generally)     

Nova Scotia Barristers' Society v. Solicitor "Y", 2004 NSCA 75: If changes are made to the terms of a written retainer agreement, those changes should be made in writing.

David L. Parsons & Associates v. Reid, 1998 CanLII 1483 (NS CA) – no written contract or retainer – third party not responsible to pay account.

O’Connell v. Romney, 1992 CanLII 2567, (NS CA), 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.

McClenahan v. Clarke, 2004 CanLII 25843 (Ont. Sup. Ct. of Justice): Lawyer found negligent for several reasons. Decision includes finding retainer was general, not limited and extensive commentary on the need for clarity as to who is giving instructions (emotionally vulnerable wife in family litigation with domineering father extensively involved in decisions leading to settlement).

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.

MacLean v. Van Duinen, 1994 CanLII 4333 (NS SC) – Written retainer – Taxation – Reasonableness.

ABN Amro Bank Canada v. Gowling, Strathy & Henderson, 1994 CanLII 7334, (ON SC), 20 O.R. (3d) 779 (Ct. J. (Gen. Div.)) – use of “simple, concise and precise language” when drafting.

Limited Scope Retainers  

Broesky v. Lüst, 2011 ONSC 167 (CanLII) aff’d 2012 ONCA 701 (CanLII): A limited retainer is one which limits the retainer to a scope less than that required of a reasonable competent and diligent solicitor such as providing advice on a separation agreement without obtaining financial disclosure. The lawyer owes a duty within the retainer not to simply accept instructions blindly but rather to advise as to the wisdom of them, the legality of them and so forth, all still within the scope of the retainer.

Trillium Motor World Ltd. v General Motors of Canada Limited, 2015 ONSC 3824 (CanLII): Lawyers and law firms who use limited scope retainers must clearly define the scope of the legal services to be provided and candidly explain these limitations to their clients.  The ambiguity in the retainer was resolved against the law firm.

Poulain v. Iannetti, 2015 NSSC 181 (CanLII): A solicitor in a personal injury case was held liable for negligence advice pertaining to a section B settlement. Although the Court found that the defendant lawyer was not retained to handle the section B claim, he was nevertheless liable in negligence once he had undertaken to give advice pertaining to the section B claim.

Law Society of Upper Canada v. Eversley, 2015 ONLSTH 136 (CanLII): The evidence makes it clear that the Lawyer was providing pro bono legal services to congregants under a limited scope retainer. There is no need for a lawyer to be “on the record” in litigation or accept payment for there to be a lawyer-client relationship.

Levina v. Levine, 2014 ONSC 2774 (CanLII) Counsel for the Wife made it known to the court the scope of his limited retainer.

Jordan v. Stewart, 2013 ONSC 5037 (CanLII): Lawyers and the Law Society of Upper Canada now recognize limited scope retainers or unbundled legal fees as one way to attempt to address access to justice and legal representation. Consistent with this need, courts addressing costs should consider Bills of Costs certified by lawyers who have provided assistance, even if not on the record throughout the case.

HSBC Securities (Canada) Inc v. Davies, Ward & Beck, 2004 CanLII 30077 (ONSC): Even in cases where there is a limited retainer in place, solicitors still have a duty to advise their clients of any material information that comes to the solicitor’s attention and about which the client should be informed.

Rye and Partners v. 1041977 Ontario Inc., 2004 CanLII 8988 (ON CA): The scope of a lawyer’s retainer is a factual issue.  Where an issue arises as to the scope of the retainer and the retainer has not been reduced to writing, there is an onus on the lawyer to satisfy the court that his or her version of those terms is the correct one.

Discipline Cases

Avis (Re), 2011 CanLII 21681 (NL LS): The lawyer failed to identify his perceived limits on his retainer and was therefore liable for failing to disclose information to his client that he mistakenly assumed was not covered by his retainer.

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.
  • Bankruptcy: In appropriate cases lawyers should exercise judgment as to clarifying their retainer agreement to show how much of funds received relate to different kinds of work, in case the client may go bankrupt during work on the file. Without a breakdown, a bankruptcy trustee may be successful in asserting a claim to some or all of any unused retainers depending on if the funds were paid to deal with a “personal” matter (such as divorce, custody, access or support - probably exempt from seizure) or with property issues on separation/divorce (perhaps not exempt). For reference to recent cases see Bankruptcy, Insolvency and Family Law, by Klotz, 2nd Edition (Carswell) especially section 14.7.

Additional Considerations when drafting a limited scope retainer agreement:

In considering whether, and how, to render services under a limited scope retainer, the lawyer should consider the factors relevant to the retainer, which may include such things as:

  • The nature and urgency of the legal work sought by the client;
  • The nature of the decision maker (such as a Court, Tribunal, Arbitrator or Mediator)
  • The status and particulars of any adverse or related party, including whether there is other Counsel involved
  • The nature and importance of the problem at issue;
  • The availability of alternate resources to the client;
  • The scope of what a normal full-service retainer would involve, and the extent to which the client seeks to “de-bundle” the engagement from that full-service retainer;
  • Whether, and to what extent, other counsel or professionals are involved in rendering other services to the client;
  • The lawyer’s ability to engage in the limited scope retainer without negatively affecting the client’s legal rights or overall position in the matter or transaction; 
  • The expectations, sophistication and means of the client, and any disability of the client;
  • Any pertinent orders or directions by competent authorities, such as Courts and tribunals;
  • The stage of development of the matter under consideration;
  • Real or potential conflicts of interest;
  • The competence of the lawyer to handle the scope of the matter under consideration;
  • Relevant substantive law, including the Code of Professional Conduct, applicable professional standards, duties to the Court and other counsel, and whether there are matters out of which the lawyer and client cannot contract.
  • Beware of potential “retainer creep.” The lawyer who is asked to “answer a quick question” about a matter outside the scope of the agreed-upon retainer not only risks expanding the business scope of the representation (either with or without compensation) but runs the substantial risk of actionable negligence in the event of an incomplete or inaccurate answer.

In “Unbundled Legal Services: Pitfalls to Avoid” (2012:  LawPro Magazine, 11:1, pp 7-8, Dan Pinnington lists the following as items to keep in mind in reducing exposure to claims in an LSR:

  • Limited scope representation does not mean less competent or lower quality legal services
  • Identify the discrete collection of tasks that can be undertaken on a competent basis
  • Confirm the scope of the limited retainer in writing
  • Clearly document work and communications
  • Be careful with communications when opposing counsel is acting on an unbundled basis
  • Recognize that unbundled legal services are not appropriate for all lawyers, all clients, or all legal problems
  • Be careful providing further assistance to a client after a limited scope retainer is terminated

Practice Tools

LIANS: For sample checklists and forms, see Limited Scope Retainer Resources

PracticePRO – Finances booklet precedents

PracticePRO – Limited Scope Retainer Agreement

DOWNLOADS

Related Ethics

Generally

Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers' Society, 2012:

  • section 3.1: "Competence" (especially rule 3.1-2)
  • rule 3.2-9: "Clients with Diminished Capacity"
  • rule 4.2-1: "Marketing of Professional Services"
  • rule 7.2-6: "Responsibility to Lawyers and Others" (Lawyers require the consent of any represented party’s lawyer before communicating directly with the party. The “unbundled lawyer” should clarify to all involved how the limited retainer affects communications with his/her client).

Limited Scope Retainers

Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers' Society, 2012:

  • rule 1.1-1(i) as ” the provision of legal services for part, but not all, of a client’s legal matter by agreement with the client”.
  • rule 3.1-2A: Limited Scope Retainers
  • rule 7.2-6A: "Responsibility to Lawyers and Others" - The “unbundled lawyer” should clarify to all involved how the limited retainer affects communications with his/her client.

Additional Information

Nova Scotia Barristers' Society  - Lawyers' Fees

Forms

O’Brien’s Encyclopedia of Forms - Useful Client Information forms specifically for family law

ARTICLES

Canadian Bar Association, Alberta: Limited Scope Retainers

Pinnington, Dan / Limited Scope Representation Resources (March 21, 2016), in SLAW

Pinnington, Dan / Unbundled Legal Services: Pitfalls to Avoid (January 2012), in LAWPRO Magazine (online)

Pinnington, Dan / The Most Common Malpractice Error: a Failure to Follow Client’s Instructions (October 2002), in LAWPRO Magazine (online)

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)

Texts

Kimbro, Stephanie L.:  Limited Scope Legal Services: Unbundling and the Self-Help Client, ABA 2013; hereinafter “Limited Scope Legal Services” (available at the NSBS Library call # KB 252 K49 2012)

Amended by Council on May 27, 2016