Contingency Fees in Estate Litigation – Part I

November 13, 2006 Hull & Hull LLP Litigation Tags: , , , , , 0 Comments

For the coming week my blog will deal with the topic of contingency fees in estate litigation. This is a relatively new topic in the Province of Ontario. Contingency fees were only recently allowed, raising interesting issues in terms of the lawyer-client relationship and access to justice.

In the context of tort law (private injury), contingency fees are fairly well understood by the public in most North American jurisdictions. Although these fees were not allowed in the Province of Ontario until recently, certainly the public perception is that in private injury cases very often contingency fee arrangements, even in Ontario, have been formally or informally in practice for some time.

In any case, the Law Society of Upper Canada and the Provincial Legislature have now decided that contingency fees are acceptable in Ontario making it the last Canadian Province, and one of if not the last jurisdictions in North America to allow the practice.

The fundamental conceptual disagreement over whether contingency fees are acceptable is as follows: on the negative side, lawyers become to an extent business partners with their clients in a risky venture (litigation), possibly leading to a deleterious impact on the lawyer’s key role, namely the ability to give dispassionate advice to a client; on the positive side, contingency fees allow clients without means but having valid cases to obtain legal representation even where they cannot pay on an ongoing basis, providing for greater access to justice for those of lesser economic means.

Contingency fees are well suited to certain aspects of Estate litigation, such as will challenges or even some dependants’ relief claims (although many dependants’ relief cases are not well suited to contingencies). Often a valid claim to some entitlement to an Estate is fairly clear, or at least worth pursuing, but the client cannot afford the expensive litigation fees needed to proceed.

It would be unfair for a lawyer to have to complete substantial litigation without knowing whether she would be paid, but a contingency arrangement allows for that lawyer to make practical business decisions based on risk and likelihood of success to make such cases profitable. Absent this arrangement, many clients simply would never enforce their claim against estates.

In the coming week I will be discussing the rules applicable to contingency fee arrangements set out in the regulations to Ontario’s Solicitors’ Act, and also making some comments as to initial experiences of how these new arrangements are affecting the estate litigation field.

Thanks for reading.

Sean Graham.

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