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BARRISTERS AND SOLICITORS - Compensation - Agreement for fees - Measure of compensation - Quantum meruit

Thursday, June 22, 2017 @ 8:32 AM  


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Appeal by the law firm from a decision finding that the retainer agreement between it and the respondent First Nation was neither fair nor reasonable. The judge who assessed the retainer agreement under The Legal Profession Act determined the appropriate remuneration on a quantum meruit basis, which amount did not include a bonus. The respondent had entered into a retainer agreement with the appellant in 2003 in connection with a treaty land entitlement claim. The 2003 agreement provided for remuneration on an hourly fee-for-service basis. The services that were to be provided by the appellant related to outstanding Treaty Land Entitlement under Treaty 9 and any other matter that the respondent might instruct the law firm to act on. In 2006, the respondent retained the appellant to represent it in negotiations regarding a flood claim. The appellant then tried to negotiate a new retainer agreement with the respondent that included a three per cent bonus. While the respondent resisted initially, the appellant indicated incorrectly that counsel from another firm representing First Nations with respect to flood claims was receiving a 10 per cent bonus and that bonusing counsel was a regular practice. Unaware that the 2003 agreement also governed the flood claim, the respondent then agreed to a new retainer agreement in 2009 that included a bonus. The appellant then increased the hourly rate for lawyers within the firm without notice, contrary to the retainer agreement.

HELD: Appeal dismissed. The trial judge’s conclusion that the 2009 retainer arrangement was unfair was unassailable. The trial judge did not err in finding that the 2003 retainer agreement, which did not provide for a bonus, also applied to work done on the flood claim. While the 2003 agreement did not take away the appellant’s right to negotiate a new fee arrangement with the respondent, it did not give the appellant a right to unilaterally impose a bonus. The 2009 retainer represented a significant change to the existing financial arrangements between the parties. While the appellant was clearly entitled to seek such a change, in doing so it needed to ensure the respondent fully understood the terms and effect of the 2009 retainer agreement, including the fact that, unless that agreement was accepted by the respondent, the 2003 agreement would govern the respondent’s financial obligations to the appellant, including its obligation for services rendered on the flood claim. There was evidence to support the trial judge’s findings that the respondent was influenced to approve the 2009 retainer agreement by the appellant’s incorrect assertion that counsel at another firm was receiving a 10 per cent bonus for his work on the flood claim. The trial judge correctly identified the law with respect to a quantum meruit analysis and was cognizant of all the relevant factors. Her findings of fact, including that the appellant overstated its role in the flood claim settlement, were supported by the evidence. In the circumstances, there was no basis to interfere with her assessment of the appellant’s fee on a quantum meruit basis.

Maurice Law, Barristers & Solicitors v. Sakimay First Nation, [2017] S.J. No. 185, Saskatchewan Court of Appeal, R.G. Richards C.J.S., M.J. Herauf and J.A. Ryan-Froslie JJ.A., May 11, 2017. Digest No. TLD-June192017008