Focus On

Law society physics | Marcel Strigberger

Friday, June 04, 2021 @ 2:34 PM | By Marcel Strigberger


Marcel Strigberger %>
Marcel Strigberger
Albert Einstein said, “If you can't explain it to a 6-year-old, you don't understand it yourself.”

The Law Society of Ontario (LSO) has demonstrated its wisdom once again by coming up with the new mandatory Standard Form Contingency Fee Agreement (SFCFA). This 12-page agreement also requires the lawyers to provide the client with an additional simple 13-page “what you need to know” guide. This guide presumably explains the aforementioned 12-page agreement the lawyer must explain. No doubt any 6-year-old client will find these documents a welcome paragon of simplicity.

Why the SFCFA? I suppose the LSO figured lawyers have not been stressed enough during this pandemic and the mandarins decided, like Einstein, to get creative.

The document is ominous from the get-go as the first page direction notes, “The body type is 13-point Calibri with 6 points of space between paragraphs.” I’d say this direction is crucial for the protection of clients. I can just see an accident victim saying, “I just retained Bill Henderson. Never mind his track record. He’s my man. He uses 13-point Calibri.”

And many of the form’s terms are either trite or leave alarmist inferences about lawyers. One cautions the client not to sign until “you have answers to all your questions and have decided to proceed.” The LSO may very well have added, “Think twice before signing if you see a picture on the wall of your lawyer huffing and puffing on a straw house.”  

And just when you thought that the lawyers can come up with a simple contingency arrangement on their own, for a percentage of the recovery, the LSO came up with something called, “graduated contingency fees.” It reads something like, “If we settle before examinations for discovery, the fee will be X per cent” “If we settle before a settlement hearing, the fee will be Y per cent ...” “If we settle just before Halloween, the fee will be Z per cent and your lawyer has to throw in a case of Smarties.” OK, maybe I exaggerate on the last one. I think it’s a case of Kit Kats.

The powers that be also came up with a “services we will provide under this agreement,” clause. One would have thought if someone retains a lawyer after taking a hit slipping on ice, the services expected are to do what lawyers do to get the client compensation. Now given this mandatory clause, I think it would be pure negligence on any lawyer not to add something like, “We’ll do all motions, examinations and trials. NOTE: This does not include oil changes”.

Of course there is a term about ending the agreement. This part is straightforward, for the client at least. It reads, “You are free to end our agreement at any time.” Full stop. I guess most 6-year-olds will understand this one. 

As for the lawyer ending it, the guideline notes that the lawyer can only end it “in certain circumstances.” This is a bit vague but if I were still in practice, I would think I could end the agreement were a disgruntled client to punch the air out of the tires of my 2011 Lexus. Just a guess.

I ask why does the LSO need to fix something that ain’t broke? My contingency agreement was one page. It was specific; “You the client get 70 per cent of my hard-earned money.” Well, the math was right. No client ever misunderstood my 30 per cent. 

Disbursements and HST took a short sentence each, followed by a brief example. The agreement was consummated with a signature and a handshake (pre COVID-19 of course). The clients now had access to justice. And it all worked great. 

Not all. Given the inequities of the motor vehicle insurance laws, such as thresholds and deductibles, or the general scorched earth hard lines taken by the defence in medical malpractice cases, I had my share of enjoying mega hours of work resulting in a fee recovery of zero per cent. In different cases I achieved this same recovery percentage at different stages of the case; you might say we got our asses kicked on a “graduated” basis. But both I and the clients sucked it up. The agreement did not have a provision saying, “in the event of getting shut out, we shall share one another’s pain.” Maybe it should have.

The inference from this latest LSO serving is that clients are sitting ducks who need to be protected by the big brass from the predator lawyers.

Einstein also said, “Intellectuals solve problems; geniuses prevent them.” With the SFCFA the LSO has created them.

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. Visit www.marcelshumour.com. Follow him @MarcelsHumour.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.