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BARRISTERS AND SOLICITORS - Retention of counsel - Retainer

Tuesday, July 02, 2019 @ 11:48 AM  


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Application by the client Chahal to set aside a consent certificate of fees. The matter arose out of a long-running family trial. The client first engaged the respondent solicitor to act as his litigation counsel in 2011. In December 2011, the client signed a retainer agreement. Beginning in January 2012, and periodically thereafter, the solicitor issued interim accounts to the client. The trial started in August 2014 and ended up taking 70 days to complete over 25 months. In December 2014, a disagreement arose between the client and the solicitor. The solicitor filed a notice of application to withdraw, but the parties soon reconciled their relationship and agreed that the solicitor would act for the remainder of the trial. The solicitor forwarded a new fee agreement, but that agreement was never signed by the client. In April 2016, the solicitor asked the client to sign a consent certificate of fees for the first retainer amount. The client signed the consent certificate before the Registrar. The consent certificate effectively insulated the first six accounts totalling $150,000 of the solicitor’s $610,000 total bill from review by the District Registrar. The client had applied to review the bill and a hearing was to take place in the fall of 2019. The outcome of this application would decide whether the entire bill was reviewed or merely the portion post-dating the consent certificate. The client took the position that the consent certificate should be set aside because it was procured in an environment of undue influence. The solicitor opposed the application and suggested that there was a severance of the solicitor-client relationship in 2014. The solicitor agreed that he had the onus to rebut a presumption of undue influence. However, he submitted that the presumption was rebutted here because he urged the client to get independent legal advice and the client freely waived his right and voluntarily signed the consent certificate.

HELD: Application allowed. Although there was a breakdown in relations in December 2014, the parties worked things out within two weeks and the relationship carried on. The client never agreed to terminate the relationship and the notice of intention to withdraw was never heard in court. The relationship continued for the same file, under substantially the same terms, and with the same parties. As a result, there was only one retainer and the accounts which accrued until December 9, 2014 did not end up becoming the final bill and were reviewable subject to a determination of the consent certificate issue. Although the client had the opportunity to obtain independent legal advice, it was not at all apparent that the client was fully informed of the consequences of his actions when he signed the consent certificate. The client was not sophisticated in legal matters. The solicitor failed to rebut the presumption of undue influence and the consent certificate was set aside on that basis. The solicitor’s entire bill was to be referred for review by a registrar.

Parmjit S. Virk Law Corp. v. Chahal, [2019] B.C.J. No. 870, British Columbia Supreme Court, M.J. Brundrett J., May 13, 2019. Digest No. TLD-July12019003