Review officers dealing with any kind of a retainer or fee agreement between client and lawyer sometimes face some detours. The officers are not supposed to interpret the agreement, and have to leave that to a judge, which can be very slow. It is almost like a suit bouncing back and forth between Chancery and Queen’s Bench before the Judicature Acts of 1875. A very recent Court of Appeal decision ameliorates that problem two ways.
First, an important issue is whether a contingency agreement contains all the provisions required by the Rules, especially R. 10.7. The Court of Appeal holds that that is a simple question of fact, open to the review officer, indeed on which he or she is owed strong deference on appeal. It is not a question of interpretation.
Second, if the Rules make the agreement “unenforceable” (e.g. because it lacks some mandatory contents), it is unenforceable in both directions. Neither party can enforce it. Old case law suggesting a one-sided effect is overruled. The client cannot insist, for example, that he need pay nothing because the law firm achieved no success. Or pay a mere pittance because there was small success.
However, the unenforceable agreement is not irrelevant. Even if one party terminated it. Rule 10.8 says that the law firm is entitled to fair compensation, and many things are relevant to that. One is the client’s reasonable expectations. And the agreement, though unenforceable, has some relevance to expectations.
See Betser-Zilevitch v. Prowse Chowne 2021 ABCA 129, Edm 2003 0226 AC (Apr 12).
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: firstname.lastname@example.org or phone 780-424-5345.