Comments Off on Assessing Lawyers’ Accounts: Good Points to Remember
Posted in:

Assessing Lawyers’ Accounts: Good Points to Remember

by
More posts by Heather »

In Monkhouse Law v Belyavsky, 2024 ONSC 4970, Justice Centa of the Superior Court of Ontario provided a thorough summary for the factors that courts should consider when assessing lawyers’ accounts. In this case, the client retained Monkhouse Law to handle an employment matter on a contingency basis. However, the retainer was terminated prior to the resolution of the matter, and the client owed fees for the work performed to date. The former client disputed the fees owed.

Key takeaway points:

  • The court always retains a supervisory jurisdiction over legal fees (para 35).
  • Clients are entitled to have an independent review of a lawyer’s account pursuant to the Solicitors Act. The bill is to be assessed on a quantum meruit basis, which considers the reasonable value of the lawyer’s account. For that reason, it is an error in principle for an assessment to focus on the mechanical application of an hourly rate to a given number of hours rather than considering all relevant factors (para 36).
  • The lawyer bears the onus of proving on a balance of probabilities that the account is fair and reasonable (para 37).
  • While it is not necessary to call all the timekeepers who worked on a file as witnesses, evidence given by other members of the firm is to be treated as hearsay and may be given less weight (para 38).
  • When relying on records, like dockets, a notice under s. 35 of the Evidence Act should be provided (para 38).
  • When a solicitor does not testify at an assessment hearing, the solicitor fails to meet the burden of proof and risks having the accounts not paid (para 38).
  • Factors to consider when assessing the accounts usually include the criteria from Cohen v. Kealey & Blaney:
  1. the time expended by the lawyer;
  2. the legal complexity of the matter dealt with;
  3. the degree of responsibility assumed by the lawyer;
  4. the monetary value of the matters in issue;
  5. the importance of the matter to the client;
  6. the degree of skill and competence demonstrated by the lawyer;
  7. the results achieved;
  8. the ability of the client to pay; and
  9. the reasonable expectation of the client as to the amount of fees.[21]
(para 46)
  • Office overhead will not be compensable (paras 62, 65).
  • The reasonable expectations of the client matter. “When Mr. Belyavsky terminated the retainer, he did not knowingly assume the risk that the costs he had incurred would be so disproportionate to the size of his claim or his likely recovery. There is no evidence that Monkhouse Law ever provided Mr. Belyavsky with an estimate of how much the proceeding might cost if he terminated the retainer and triggered billing on an hourly basis.” (para 127)

Comments are closed.