Note: New Standard #3 (Lawyers’ Fees) was approved by Council on January 26, 2024 to replace/merge old Standards #3: Timekeeping; #5: Retention and Billing; and #7: Limited Scope Retainers.

Standard

A lawyer’s fee must be reasonable having regards to the client’s needs, the lawyer’s1 expertise and skill2, special circumstances of the retainer3, the effort and time required4 as well as the outcome achieved.5

The lawyer’s scope of services and method of fee calculation should be clearly defined and where practical, the final price should be outlined at the outset of the retainer. A final price6 agreed to at the outset is one indicator that fees are fair and reasonable.7

A lawyer has a responsibility to discuss the nature and scope of any retainer with the client. While most retainers and fee agreements should be reduced to writing, limited scope retainers and fee agreements must be made in writing.8

Notes

1 Nova Scotia Civil Procedure Rules 77.13(2)(b) and Nova Scotia Barristers’ Society Code of Professional Conduct 3.6-1 Commentary (1)(b)

2 NS CPR 77.13(2)(e) and NSBS Code of Professional Conduct 3.6-1 Commentary 1(c) and (i)

3 NS CPR 77.13(2)(f) and NSBS Code of Professional Conduct 3.6-1 Commentary (1)(f)

4 NS CPR 77.13(2)(a) and NSBS Code of Professional Conduct 3.6-1 Commentary (1)(a)

5 NSBS Code of Professional Conduct 3.6-1 Commentary (1)(d)

6 A final price is a fee that is expressed as a firm dollar figure and not dependent on hours worked or outcome.

7 NS CPR 77.13(2)(f) and NSBS Code of Professional Conduct 3.6-1 Commentary (1)(h) and (k)

8 NSBS Code of Professional Conduct 3.2-1A

Additional Commentary

Fair and Reasonable. Clearly Communicated. For the Public Interest.

Fair and Reasonable

Lawyers are in a privileged position of have the exclusive right to provide legal services in exchange for fees as regulated by the NSBS Legal Profession Act. The Act along with the NSBS Code of Professional Conduct mandate that lawyers’ fees must be reasonable9 as defined in part by the Civil Procedure Rules.10

Beyond specific requirements for certain types of agreements such as Contingency Fee Agreements11 or Limited Scope Retainers12, lawyers are free to craft and deliver services with fee structures of their choosing so long as they are “fair and reasonable”, a principle confirmed by the Court of Appeal.13

Clear Communication

The method of calculating fees is in the lawyer’s professional discretion subject to clear communication14 of the chosen and agreed fee arrangement with each client – see also LOMC Standard #2: Client Service and Communication on the importance of clear, candid, timely, and culturally competent communication with the client.

Limited Scope Retainer

Clear communication is particularly important where a lawyer undertakes a Limited Scope Retainer (“LSR”) to ensure all parties including courts and opposing parties understand the precise task that the lawyer has been retained to do.

The Code defines an LSR as “the provision of legal services for part, but not all, of a client’s legal matter by agreement with the client”.15 There are many variations, but can broadly be broken down into consultation, document preparation, and limited representation.

It is important in any engagement to define the scope of the retainer, including events of termination or deemed termination, in writing. This “best practice” becomes critical, and in fact mandatory, in an LSR.

While the exact nature of the engagement will depend on the specific topic and the particular solicitor-client relationship, an LSR retainer agreement, signed by all parties, should at a minimum include:

  1. A statement that it is an LSR and that the lawyer is not engaging in nor advising upon matters beyond the scope of the LSR;
  2. A detailed description of exactly what the lawyer is retained to do;
  3. The fact that there are other issues upon which the client can, and should, obtain independent legal advice or representation, as the case may be;
  4. Who is in charge of filing documents, if applicable, and how disbursements are treated;
  5. Any applicable limitation period, or that advice is not being given on them;
  6. The circumstances in which the engagement is completed, or terminated, or in which the lawyer is entitled to withdraw or is deemed to have been discharged.16 This may, for example include situations in which the lawyer is engaged for what is expected to be a default or uncontested proceeding though it is in fact opposed.17
  7. How fees are to be calculated, and when they are to be paid;
  8. Any disclosure required given the fiduciary nature of the solicitor-client relationship;
  9. Subject to any rules or practice of Court, when the lawyer is to appear on the Record, a direction to disclose to the Court the scope and limit of that engagement;
  10. Provisions for expansion, if such is to be the case, of the LSR.

Lawyers, both from a business and liability perspective, should beware of potential “retainer creep”.19 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. Preserving the “four corners” of the LSR also engenders respect for the solicitor-client relationship and the value of the legal services engaged and agreed to be paid for.20

The lawyer who does not take care in the retainer clearly to specify what is and is not within the scope of the engagement will likely have any ambiguity construed against the lawyer.21

The lawyer should also be especially careful to document what information and documents are provided by the client, particularly if the subject of the LSR is either “midstream” or conclusive to the matter at hand. For example, the lawyer who is called upon to give a recommendation on a proposed settlement and who is provided with only part of the file is not in a position to provide a competent evaluation on the merits.

The LIANS website, as well as resource materials referred to in the bibliography, contain several useful checklists; in particular, the “who does what” treatment of steps in a transaction or proceeding is useful in removing ambiguity or later disagreement.22

Fair Compensation

Like any service provider, lawyers are entitled to fair compensation for their efforts. However, unlike other fee for service arrangements, lawyers are also mandated to take into account their clients interests, value of the service provided and the overall context of their professional responsibility as a member of the bar to uphold the public interest.23

Even where a fee is calculated based solely on time spent, the lawyer still has a professional obligation to ensure fees billed are fair and reasonable. Presumed accuracy of the chosen method does not create a presumption that the fee is itself fair and reasonable. Lawyers have an obligation to ensure it is.

Public Interest

This professional obligation is a reflection of a lawyer’s privilege and resulting responsibility of being entrusted to uphold principles of justice in a civil society. As noted by one playwright and later interpreted as an intended action to effect civil disorder:

“The first thing we do, let’s kill all the lawyers”24

Lawyers play a central role in ensuring a just and civil society, therefore have an inherent responsibility to ensure that fees are calculated beyond just the considerations of time and effort and includes the lawyer’s obligation to serve the public interest, one that goes to the heart of maintaining a civil society.

Notes

9 NSBS Legal Profession Act at s.66; NSBS Code of Professional Conduct at 3.6-1,

10 Nova Scotia Civil Procedure rule 77.13(2)

11 Code at 3.6-2

12 Limited Scope Retainers must be in writing (see the Code at 3.2-1A)

13 Mor-Town Developments Ltd. v. MacDonald, 2012 NSCA 35 (at para 49)

14 Code 3.6-1

15 Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012, rule 1.1-1(i)

16 In certain circumstances, it may be appropriate to include this as a separate document, so as to enable its filing with a Court or applicable third parties without disclosing more information than necessary.

17 In particular, see Family Law Standard #11: Scope of Representation.

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

19 Although there is no concrete evidence that LSRs have given rise to increased claims or insurance payouts (see Macfarlane, “Listening to the Public”, and indeed some evidence to the contrary (see ABA report, p. 75 et seq.), the very nature of the LSR calls for increased vigilance in ensuring that the lawyer and client are, at all times, on the same page in what the client believes the lawyer is responsible for, and what the lawyer in fact is undertaking to do. See also ABA Report, p. 56.

20 Gallagher, Edward: “Limited Scope Retainers in a Small Practice”, [CBA paper, hereinafter “CBA Report”], p. 29 at 31.

21 Trillium Motor World v. General Motors of Canada, 2015 ONSC 3824, involved a multi-million dollar claim relating to advice giving to dealers whose GM franchises were being terminated.

While currently (2015) on appeal, the decision focuses at para. 462 et seq. on the importance for the scope of the retainer to be defined clearly. At Para. 469-70, the Court stated:

[469] Where a retainer clearly limits the scope of legal services to be provided, a client generally cannot, at a later stage, criticize the lawyer for failing to perform services that fall outside the scope of the retainer.

[470] On the other hand, where a retainer has not been reduced to writing, a heavy onus is on the lawyer to show that its version of the scope of the retainer is correct: Griffiths v. Evans, [1953] 2 All E.R. 1364, [1953] 1 W.L.R. 1424 (C.A.); Rye and Partners v. 1041977 Ontario Inc., [2002] O.J.

No. 4518 (S.C.). This is especially true in cases involving ambiguity as to the scope of the retainer. As Justice Hoilett stated in Coughlin v. Comery, [1996] O.J. No. 822 at para. 34 (Gen. Div.), aff’d [1998] O.J. No. 4066 (C.A.), leave to appeal to S.C.C. refused [1998] S.C.C.A. No. 597:

…the onus is on the solicitor who seeks to limit the scope of his/her retainer and where there is ambiguity or doubt it will, generally, be resolved in favour of the client.

22 See footnote 17

23 See s.4 of NSBS Legal Profession Act for Nova Scotia Barristers’ Society’s role to “uphold and protect the public interest in the practice of law” as well as the NSBS Code of Professional Conduct at 2.1 upholding values of integrity to the public

24 “Henry VI (Part 2) the play by William Shakespeare”

Approved by Council on January 26, 2024.