Fees and Disbursements
| Author | Michel Proulx/David Layton |
| Pages | 531-588 |
FEES
AND
DISBURSEMENTS
A.
INTRODUCTION
At
one
time, Roman barristers were
not
permitted
to
charge
for
their
services. This restriction
was
eventually abandoned,
yet in
England
barristers maintained
the
fiction
that legal services were
not
provided
to
clients
in
exchange
for
compensation. According
to
this conceit,
the
barrister
was a man of
exceptionally high integrity,
unsullied
by
base
and
quotidian concerns regarding money,
and
payment
for
services
was
anathema
to the
barrister's duties
to the
client
and
public. Granted,
the
client
may
have seen
fit to
reward
the
barrister with
an
honorarium
in
appreciation
for a job
well done.
But the
barrister
was
definitely
not
a
tradesman,
and he
operated
on a
higher
plane than
individuals
of
other professions.
As
recently
as
1969,
the
House
of
Lords relied
on
this view
of the
profession
in
observing that barristers could
not sue
clients
for
unpaid
fees,
given that
the
client-lawyer relationship
was
not
contractual.1
While
the
notion that
a
barrister's services
are not
exchanged
for
money
is no
longer
maintained,
the
General Council
of
the Bar for
England
and
Wales continues
to
embrace
a
rule
of
profes-
1 See
Rondel
v.
Worsley,
1004
(H.L.)
(Lord Morris),
1019-21
(Lord Pearce),
1033-35
(Lord
Upjohn),
&
1037
(Lord Pearson)
[Rondel].
531
C H A P T E R 10
532
ETHICS
AND
CANADIAN
CRIMINAL
LAW
sional conduct that prohibits barristers
from
entering
into
contracts
with
clients.2
One of the
main benefits that barristers receive
from
foregoing
the
legal
right
to
enforce
payment
from
clients
is the
ability
to
deflect
con-
flict-of-interest
allegations.3
A
barrister
is not
tempted
to
prefer
self-
interest
in
receiving payment over
the
client's best interests,
so the
argument goes,
if he or she
holds
no
legal right
to
receive payment.
However,
the
view that barristers
are not
receiving
a
fee,
and are
pre-
vented
from
recovering unpaid
fees
by "a
rule
of
etiquette which
has
now
hardened into
a
rule
of
law,"4
is
terribly antiquated. Certainly,
the
fiction
has not
been embraced
in
Canada
and
does
not
reflect
the
real-
ity
of
criminal
law
practice
in
this
country.5
B.
AN
INHERENT
CONFLICT
OF
INTEREST
It
is
often
said that lawyers
are
engaged
in
both
a
profession
and a
busi-
ness,
in
recognition that
a
steady
flow
of
revenue
is
required
for a
lawyer
to
conduct
a
practice.
The
reality
is
that lawyers receive
fees
for
their services
in
most cases,
and the
prospect
of
financial
gain
is an
important
facet
of a
lawyer's work.
Yet
this element
of
self-interest
has
the
potential
to
clash with
the
lawyer's
duties
to the
client
and the
administration
of
justice.
It is to the
advantage
of the
lawyer
to
receive
the
largest possible payment, while
the
client will
often
prefer
exactly
the
opposite result (without,
of
course, detracting
from
the
quality
of
services
provided).
The
dangers
are
accentuated
by the
fact
that clients
are
often
in a
poor position
to
evaluate
the
quality
and
cost-effective-
ness
of a
lawyer's services. Moreover, clients
may be in a
vulnerable
state,
often
desperate
to
avoid
the
serious consequences
of a
criminal
conviction. Lawyers, skilled
in a
complex
field
and
holding
a
monop-
oly
over
the
provision
of
most legal services,
are in a
position
of
power
over
the
client.
2 See
General
Council,
Code
of
Conduct
of
the Bar
of
England
and
Wales
(London:
The
Council,
1990)
Annex
"D"
(Written
Standards
for the
Conduct
of
Professional
Work)
at
paras.
25 & 26. In
practice,
barristers
employ
clerks
who
negotiate
the fee
with
a
solicitor:
see A.
Boon
& J.
Levin,
The
Ethics
and
Conduct
of
Lawyers
in
England
and
Wales
(Oxford:
Hart,
1999)
at
298.
3
Boon
&
Levin,
above
note
2 at
289.
4
Rondel
above
note
1 at
1004
(Lord
Morris).
5
See R. v.
C.(D.D.)
(1996),
110
C.C.C.
(3d)
323 at 326
(Aha.
C.A.),
leave
to
appeal
to
S.C.C.
refused
[1996]
S.C.C.A.
No. 453
(QL)
[C.(D.D.)].
Fees
and
Disbursements
533
The
potentially divergent interests
of the
lawyer
and
client
on the
matter
of
payment,
and the
vulnerability
of
many clients, taken
together with
the
fiduciary duties owed
a
client
by the
lawyer,
justify
ethical
standards that regulate
the
lawyer's actions
in
setting
and
col-
lecting
fees.
Most rules
of
professional conduct that
address
the
subject
of
legal expenses thus seek
to
accommodate
the
lawyer's legitimate
need
to
receive
a
reasonable
fee for
services competently performed
without unduly compromising
duties
to the
client
and
administration
of
justice. Perhaps
the
most important component
of the
Canadian
rules
is the
stipulation that
fees
be
fair
and
reasonable.
We
therefore
begin
by
looking
at
this
primary ethical dictate.
C.
FEES
MUST
BE
FAIRAND
REASONABLE
Every
governing body
in
Canada
has
adopted rules
of
professional con-
duct that pertain
to
legal expenses,
and
these rules invariably mandate
that
fees
be
"fair
and
reasonable."6
This restriction
on
lawyers'
fees
implicitly recognizes that market
forces
cannot
be
relied upon
as the
sole
determinant
of the
fees
charged
and
collected. Most Canadian gov-
erning bodies also provide member lawyers with
a
number
of
factors
that help
to
determine whether
the
"fair
and
reasonable" standard
has
been
met.7
These factors include
but are not
restricted
to
1.
time
and
effort
required
and
spent;
2.
difficulty
and
importance
of the
matter;
3.
whether special skill
or
service
has
been required
or
provided;
See,
for
example,
CBA
Code
ch. XI,
Rule
(a);
Sask.
ch.
XI,
Rule
(a); Man.
ch. 11
Rule
(a);
Nfld.
ch. XI,
Rule
(a);
Alta.
ch. 13,
Statement
of
Principle; N.S.
ch. 12,
Rule(a);
Ont.
r.
2.08(1); Que.
s.
3.08.01;
N.B.
Part
E , r. 1
(adding
the
comment
that
the fee
"must
be
based
on the
nature
and
value
of the
services
rendered");
and
Yukon
Part
1, r. 10.
See
CBA
Code
ch. XI,
comm.
1;
Sask.
ch. XI,
comm.
1;
Man.
ch.
11,
comm.
1;
Nfld.
ch. XI,
comm.
1;
Alta.
ch. 13, r. 1;
N.S.
ch. 12,
Guiding Principles; Ont.
r.
2.08(2);
Que.
s.
3.08.02;
and
N.B.
Part
E, r. 1. The
exact
wording
of
these
fac-
tors
may
vary
depending
on the
jurisdiction. There
is no
analogous list
of
fac-
tors
in
British
Columbia
or the
Yukon
Territory.
For
cases where
the
courts
review
the
criteria
bearing
on the
reasonableness
of a
fee,
see
Desmoulin
(Committee
of)
v.
Blair
(1994),
120
D.L.R.
(4th)
700 at
704-06
(Ont. C.A.)
[Desmoulin};
Cohen
v.
Kealey
&
Blaney
(1985),
26
C.P.C.
(2d)
211 at 215
(Ont.
C.A.)
[Cohen];
and
Cooper
v.
England,
[1994]
7
W.W.R.
345
(N.W.T.S.C.)
[Cooper].
6
7
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