Set out below are some basic rules that govern all of our retainer agreements with clients, unless otherwise specifically agreed to in writing.
1. If the client has any objections concerning our accounts for fees and disbursements, then such objections must be communicated in writing within 30 days of the date of the account, failing which the client may make no objection thereafter.
2. Hodder Barristers is not retained unless we have obtained a written retainer agreement or a letter from us confirming the retainer.
3. Where there is a written retainer agreement which conflicts with this firm policy, then the written retainer agreement governs.
4. All retainer agreements, unless expressly agreed otherwise in writing, are governed by the laws of Ontario. Any and all disputes, claims, disagreements, including fees disputes, arising out of or in connection with the retainer agreement shall be submitted to a single arbitrator under Ontario Law in accordance with the Arbitration Act, 1991, and the arbitration shall be conducted by an arbitrator with ADR Chambers Inc. using the ADR Chambers rules. The arbitration shall be seated in Toronto and conducted in English. In the event the parties cannot agree which arbitrator to use, then either party may write to ADR Chambers Inc. and ask that it appoint one of its arbitrators, and such appointment shall be final and binding. [Revised June 1, 2009]
5. The shareholders of privately held corporations are jointly and severally liable to pay all accounts rendered for legal services to such corporations. [Revised June 1, 2009].
6. If an account remains unpaid for a period of 30 days from its date, then we are permitted to seek a court order removing the firm as lawyers of record, and upon doing so we are relieved of all responsibility for that proceeding. In that event the client assumes full responsibility for either continuing to act in person or obtaining new representation. [Revised January 14, 2014]
7. If for whatever reason it is necessary to seek a court order removing Hodder Barristers as solicitors of record in a matter, we are authorized to charge for all of our fees and disbursements incurred in so doing.
8. The client acknowledges that our firm spam filters sometimes eliminate legitimate email from clients. The client agrees that if any email contains important instructions, then the client will insure that we acknowledge receipt of those instructions. [Revised August 16, 2017]
9. The client is responsible for taking possession of their file at the conclusion of the matter, both in physical and electronic form. If a client has not picked up their file within six months of the conclusion of any matter, then we are at liberty to destroy it. [Revised March 31, 2014]
10. If the client’s file should lead to written reasons for decision being issued by the court, then we reserve the right to publish those reasons on our firm web site. If the client should wish for any names to be deleted from our publication of the court’s decision, then we must be notified in writing.
11. We will use email addresses supplied by the client to communicate with the client, unless we are told not to. We assume no responsibility for emails to the client which have been improperly accessed by unauthorized persons.
12. We are entitled to be paid any and all amounts owing on our accounts from either the proceeds of any litigation or from any amounts held in trust for the client, or both.
13. Our hourly rates may increase at the beginning of even-numbered calendar years.
14. Our hourly rates are as posted.
15. Except for such clients as may be exempt, all accounts for fees and disbursements are subject to HST.
16. We shall be entitled to charge interest on unpaid accounts in accordance with the Solicitors Act. We also may charge notional interest on accounts where the charging of fees has been deferred.
17. The client is responsible for notifying us in writing as to current address, telephone number and email address.
18. We require that all funds deposited into our trust account remain there for a minimum of 10 business days before being paid out.
19. Hodder Barristers is the business style name for J. Gardner Hodder, a Professional Corporation, which is a partner of Hodder, Wang LLP.
20. The provisions of this Firm Policy may be changed from time to time without notice.
We disclaim all liability in respect to the use of this website. It should be understood that this website does not purport to provide legal advice, and nothing in it should be interpreted as providing any kind of legal advice. Use of the website does not trigger a lawyer/client relationship. It must also be understood that the use of the website may compromise confidentiality, and that our office assumes no responsibility in respect of same.
What the Policy Covers
This policy covers treatment of the personal information we collect from you.
Why We Collect Personal Information
We collect personal information that is necessary to administer our business, to advise you about our services, and to provide you with customer service. For further information see the Law Society of Upper Canada’s requirements for client identification and verification.
How Your Information Is Used
We do not sell, barter, trade or give away the personal information you have provided to us. We will only share your information with third parties if we are required to by law to do so or you have either expressly authorized us to, or it if is required for the provision to you of a service or product supplied by another business or organization as part of our services to you. We will take all reasonable precautions to ensure that your personal information is kept safe from loss, unauthorized access, modification or disclosure. All personal information collected but no longer required will be disposed of by shredding or electronic deletion.
Access to Your personal Information
You may ask for access to any personal information we hold about you and may ask that the information be corrected or updated. However, we reserve the right to confirm the identity of the person seeking access to personal information before complying with any access request. If we are unable to provide you with access to all the personal information we have about you, then the reason for the denial will be provided to you.
If you wish to ask a question about our collection, use, storage or disposal of your personal information, or access to your personal information, or to make a complaint, please contact us.
After-The-Event (ATE) Insurance
ATE insurance is a relatively new type of insurance in Canada that protects litigants from substantial costs that they would otherwise be liable for, should their legal action be unsuccessful. ATE insurance covers your potential liability to pay your opponent’s costs and it reimburses you for your disbursements if your claim is unsuccessful.
There is no upfront fee for applying for ATE insurance. The client agrees to pay a premium, but only upon the successful conclusion of the matter. There is no interest charged on the premium.
Note that the premium ultimately payable can sometimes be quite substantial. Also, there is no guarantee that such coverage would be available.
In certain circumstances we may accept a contingency fee arrangement. In order for us to consider whether we will take a case on a contingency fee basis, all requests must be submitted in writing, and include a detailed description of your potential claim.
A contingency fee is an agreement whereby the client pays no fees unless and until there is recovery in the lawsuit. Such fees are usually based on a percentage–often 25% to 45% of the proceeds. Such agreements may also be dependent upon various factors including the nature and complexity of the matter, the risk involved, the cost in pursuing the matter, and the likelihood of success.
Your proposed defendant will likely be able to pay a court judgment against it.
Your proposed defendant has no counterclaim which has the potential of succeeding.
You, as the client, can participate in funding the out of pocket disbursements for the file. Sometimes these disbursements are not particularly large, but in our experience a client who is participating and funding the lawsuit, at least to this extent, is a more reliable participant in other ways.
The claim will not founder because of your inability to post security for costs. That is, if you propose to sue in the name of a company that has no assets in Ontario, or if you are resident outside of Ontario, then the court may order that you post security with the court that would be answerable to pay the proposed defendant’s legal costs in the event that you are unsuccessful in your lawsuit.
The justice of your claim is readily obvious. Please see, also, our comments about ATE insurance.
Your claim is large enough to merit a contingency fee arrangement. With the exception of employment law cases (wrongful dismissal), it is unusual for a commercial claim under $500,000.00 to be taken on by our office on a contingency fee arrangement.
You have realistic expectations. That is, your sense of the monetary worth of your claim is not clouded by extraneous considerations such as seeking revenge, protecting the public good, making a point or taking a big gamble just to see if it will work.
You can articulate the facts of your case. This does not mean you need to be your own lawyer. However, clients who are able to explain their case in an orderly, detailed, and chronological way, with supporting documentation, are far more likely to have their case taken on.
There are not too many variables to permit any realistic assessment of probable outcomes of the litigation. Sometimes a fact situation can be so complicated, potentially involving multiple parties, that your prospects of success might not become evident until vast amounts of time and effort have been expended on the case, including the conduct of examination for discovery (depositions), etc.
The real reason that you want the matter to be taken on a contingency basis is that you cannot afford a lawyer, rather than that you simply wish to minimize risk and exposure to legal fees.
At Hodder Barristers, we receive many queries about whether or not a case is suitable for a contingency fee arrangement. If you have a claim, and you wish to enter into a contingency agreement to prosecute that claim in Ontario, you should contact us by email with a detailed description of your potential claim. We will then let you know, by e-mail, whether or not we are interested in proceeding to having a live discussion, either in person or by telephone, to learn more about your potential claim. You may wish to see a list of Top Ten Reasons Why a Case Is Unsuited for a Contingency Arrangement.
At Hodder Barristers, we sometimes act on the basis of contingency fees, deferred fees, or conditional fees, depending on our clients’ needs and preferences. The most important consideration at the beginning of a lawsuit is whether it will be possible to see it to a conclusion.
Some matters can only be dealt with on a contingency fee basis. Particularly, wrongful dismissal claims and serious injury claims typically involve plaintiffs who are not working and have little income. Lawyers are expensive, and many people cannot afford to fund claims in the courts. Also, there is comfort in knowing that your lawyer has enough faith in your case to put his fee on the line. However, there are certain disadvantages to contingency fees. You should be careful about the terms of your contingency fee agreement. While all contingency fee agreements are subject, ultimately, to a review by the courts, the fact that you signed an agreement will be taken as evidence of your intentions about fees. What you sign in your lawyer’s office makes a big difference.
The obvious advantage is not having to pay a large monthly bill from your lawyer while your claim makes its way through the courts. The key disadvantage is less obvious. Generally speaking, a contingency fee will in the long run cost you more than if you were paying monthly as the matter progressed. Lawyers who act on a contingency fee basis must from time to time lose cases, and so their winning cases must cover the cost of the cases they lose. Also, lawyers have to finance the costs of litigation that can go on for years, and this cost of doing business is built into what they ultimately charge their contingency fee clients.
1. Be wary of the “straight percentage.” Your claim may settle early on. This sometimes happens, even in circumstances where you and your lawyer anticipated a long, hard battle. Your lawyer will still expect his percentage. He (or she) may be thinking of those instances when his percentage fee after a long trial seemed like very poor compensation. You may resent the fact that your lawyer expects a large fee without having done much work. It is better to agree that an early settlement will command a lower percentage, which increases as the matter progresses.
You should try to arrange, therefore, what some lawyers call a “graduated” fee arrangement, whereby the percentage fee increases as the matter progresses.
2. Be wary of the “assignment of costs.” Be wary also of what the percentage applies to. Some lawyers quote a percentage for contingency fees but also include a provision in their fee agreements with clients that whatever legal costs are awarded in the lawsuit get paid to the lawyer over and above the percentage contingency fee. Moreover, some lawyers charge a contingency fee which is applied to all recovery, including costs. This can make a 20% contingency fee arrangement much more expensive to you than a 33% arrangement. For example, assume a total recovery at trial of $500,000.00, where the court orders the defendant to pay an additional $165,000.00 as a contribution to legal costs. A simple 33% arrangement yields a fee to the lawyer of 1/3 of the $500,000.00, which is $165,000.00, which is exactly equal to the $165,000.00 cost award. In that case, the costs award fully pays the lawyer, and the client’s net recovery is $500,000.00. By contrast, imagine a 20% arrangement that applies the percentage to the total recovery (including costs) and also “assigns” the cost recovery to the lawyer. In that case, the lawyer’s fee is $298,000.00 (20% x $665,000.00 plus $165,000.00), and the client’s net recovery is $367,000.00.
You should insist that whatever legal costs are awarded reduces your legal bill otherwise calculated. The percentage should apply to recovery net of costs awards.
3. Ask if your lawyer has experience charging contingency fees. In other words, you need to know that your lawyer has experience waiting for his or her fees and has built up a track record of success. It is a good sign if he or she earns his living by succeeding in court.
Make sure your lawyer has experience picking winning cases.
4. Ask your lawyer if he or she is paying a referral fee to anyone for having referred you. You are entitled to know everything about your economic relationship with your lawyer, and there should be no hidden costs. There should be a referral fee only if you agree to it, and you should be sure that it is the lawyer, and not you, who is paying it.
You may wish to avoid retaining a lawyer who has agreed to pay someone a referral fee. In our view, it is far better that you should be referred to a lawyer purely because of that lawyer’s competence rather than a willingness to “buy” your file from someone who has steered you in his or her direction.
5. Consider alternatives to contingency agreements. Depending on the nature of your case, other types of arrangements may save you a lot of money, especially if you are prepared to share in at least some risk as to the outcome. For instance a simple deferral of the lawyer’s expectation for payment until the conclusion of the matter can ensure that your lawyer gets paid on your file only for work actually done–and without creating artificial incentives. There is also a hybrid arrangement, popular in England, called a “conditional fee.” This fee arrangement anticipates that your lawyer will receive a portion of his or her fee strictly conditional on success. This is really only a formalization of the rule that a lawyer’s fee should bear some relation to the outcome of the matter.
You may want to be wary of signing a standard form contingency agreement which does not answer your individual concerns and needs.
6. Negotiate with your lawyer. It may well be advisable to pay a separate, independent lawyer to negotiate the contingency agreement with the lawyer who is taking your case. Don’t laugh. If a small up front fee saves you $100,000.00 in fees down the road, it is money well spent.
It is crucial to the success of your claim that you and your lawyer function as an effective team. A contingency fee agreement creates a community of economic interest between you and your lawyer, and you should avoid all possible sources of friction in that relationship. Also, your lawyer should be willing to commit to writing anything he or she says at the time you hire him or her.