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BARRISTERS AND SOLICITORS - Compensation - Accounting and refunding

Wednesday, July 10, 2019 @ 8:03 AM  

Lexis Advance® Quicklaw®
Review of a lawyer’s bill totalling $41,851. Kursar, the client, was embroiled in a dispute with his ex-wife involving custody and access to his young son. Serious conduct issues were raised against the client in response to his claim for parenting time. The client was in the middle of a three-week trial when he fired his former lawyer and contacted the lawyer Mansfield, who took on the retainer. The lawyer advised the client that his hourly rate was $350 and that he charged a per diem of $5000 for trial days. The lawyer and client did not sign a formal retainer agreement. The client was substantially successful at trial. When the lawyer received the payment of costs in the amount of $41,554, he prepared the bill and paid himself from trust. The bill was never delivered to the client. At that time, the lawyer’s practice was in turmoil due to a gambling addiction which eventually led to conduct resulting in his disbarment. The review was somewhat unusual as the client agreed that the amounts billed were fair and reasonable. However, he believed he advanced more money to the lawyer than was accounted for by the lawyer. The client also alleged that the lawyer’s fees and disbursements ought not to be recoverable or allowable as the lawyer misconducted himself when he misappropriated $10,000 belonging to the client and because he withdrew $41,554 from his trust account without delivering a bill to the client.

HELD: The bill in the amount of $41,851 resulted in a fair fee and there was no basis upon which to reduce the bill. The lawyer assumed conduct of the trial on the client’s behalf at a particularly difficult time. The issues were complex, and the lawyer devoted in excess of 100 hours of time for the trial alone. At the lawyer’s hourly rate of $350, that would have exceeded the amount which was eventually backward billed. The client achieved a good result at trial because of the lawyer’s work. The client did not produce any evidence to support the allegation that he paid more money than had been accounted for by the lawyer. The lawyer admitted to misappropriating $10,000 from the client and was remorseful. The client was made whole by the Lawyer's Insurance Fund, which reimbursed him the full $10,000. The misappropriation of the $10,000 did not impact on the reasonableness or propriety of the bill. The failure to deliver the bill was a mere oversight and an honest mistake. That circumstance was not sufficiently egregious to impact on the reasonableness or propriety of the bill.

Bayshore Law Group v. Kursar, [2019] B.C.J. No. 1085, British Columbia Supreme Court, Registrar S. Nielsen, June 13, 2019. Digest No. TLD-July82019008