Tag: Risk

20 Apr

On Blogging and Lawyers (Part 2 of 2)

Hull & Hull LLP General Interest Tags: , , , , , 0 Comments

Yesterday I blogged about the usefulness of blogs for lawyers. Today I will provide some specifics and recommend a few blogs to you. 

The advantage of blogs as a publishing vehicle is the access to information in real time. The latest news and topics are always available and you can get your own information out to the legal community and to potential clients without having to wait for the printing press. The pressure is a bit less as well because on some level blogs are meant to entertain, and no one expects them to be perfect – blogging is, after all, immediate media

One well-respected Canadian law blog that has been around since 2005 and has many regular contributors is Slaw.ca. Slaw provides a variety of high-quality information relevant to the legal profession and editors make sure that content is appropriate for its intended audience, comprised mostly of lawyers, law librarians, legal academics and students – i.e. a general level of legal information is assumed. Note that you will still see this caveat, which illustrates exactly why lawyers are often hesitant to blog: “But please note: we do not offer legal advice, even in the most vague terms.” 

Another great blog you should check out is practicePRO’s avoid a claim blog with a tagline of “Where claims happen, Why claims happen, And what you can do to avoid a claim happening to you”. Now that is a blog we should all be reading on a regular basis! 

Enough about information and risk – what about good old fashioned business? Sometimes lawyers can use a little advice in this area also. Check out this Canadian legal marketing blog  to pick up a few hints and tips so you can not only be smart, connected and well-informed, but be able to pay to pay the bills while doing so.

Now you are ready to go out there and blog!

Sharon Davis – Click here for more information on Sharon Davis.

23 Apr

Risk Management: Lenders Beware

Hull & Hull LLP Litigation Tags: , , , , , , , , , 0 Comments

On Tuesday I blogged about mortgage fraud and suggested that financial institutions may be at greater risk because of the B.C. Court of Appeal decision: Re Oehlerking Estate, 2009 BCCA 138.

Why would they be at increased risk?

In the B.C. case, the Judge ordered that the fraudster’s title be set aside and that a new title be issued in the name of the plaintiff executrix. However, the Judge was satisfied that the financial institution had not “participated in the fraud” therefore the mortgage remained as a valid charge on title to the land. 

The B.C. Court of Appeal overturned that latter point when it declared that the mortgage is null and void as against the plaintiff and her title. 

The reasons were the same as those presented in a B.C. Court of Appeal decision released on the same day in Gill v. Bucholtz  (2009 BCCA 137). There is a thorough review of the Torrens land registry system and the development of B.C.’s Land Title Act.  Land title systems differ per province but the B.C. decision is likely persuasive.

In Gill v Bucholtz, the Court held that the B.C. Legislature adopted the policy that the cost of frauds perpetrated against mortgagees and other chargeholders should be borne not by the public (as the funders of the Assurance Fund but by lenders and other chargeholders themselves.”

Parties to real estate transactions rely on title searches. The case law shows that title searches have limitations, especially if a fraudster has used someone else’s identification to change the title document. It is up to lenders to now perform due diligence that may require that they delve deeper than the documents alone. Sometimes good old fashioned shoe leather might be put to work to check out the property in question; even a knock on the door to ensure that the owner is actually refinancing by way of a new mortgage. This extra work may come with a fee though. 

Thank you for reading. 

Jonathan

17 Nov

CONTINGENCY FEES IN ESTATE LITIGATION

Hull & Hull LLP Archived BLOG POSTS - Hull on Estates Tags: , , , , 0 Comments

Contingency fees are new in the Province of Ontario and particularly new in the field of Estate Litigation. The extent of the regulation of these fee arrangements reflects the unease with which the Province’s legal community regards them.

Regardless of this apparent unease, on issues of the validity of a Will or a person’s interest in or claim against an Estate, some clients are increasingly tending to favour contingency arrangements. 

Where the legal issue at stake is the validity or otherwise of a Will, then a litigation result will often be an all-or-nothing proposition. Such an issue is well-suited to contingency fees. 

Some of the practical issues raised by the arrival of contingency fees at this early stage are:

1. These cases are not immediately profitable, so any law firm wanting to explore contingency opportunities ought to be prepared to wait a few years to see substantial return;

2.  Lawyers must allow the client to make all major decisions, knowing that some of those decisions may be unreasonable or risky, thereby lessening the possibility or value after costs of recovery, thereby lessening what the lawyer will be paid in case of success, and this business frustration cannot be allowed to interfere in the lawyer’s function as advocate and legal service provider. The lawyer is still restricted to giving advice, taking instructions and fulfilling them even if those instructions impact on the chances of getting paid;

3.  Lawyers ought to be very clear with clients at the outset that they may obtain a windfall in case of early settlement, even to the extent of putting those very words to the client in writing.

Early indications are that contingency fees in litigation offer a further avenue for lawyers to take on otherwise marginal cases from a business perspective, and an avenue for access to justice for clients of lesser means, albeit lawyers must take care not to allow the fee arrangement to interfere with their fundamental role as advocating, advising and fulfilling the client’s legitimate instructions, however that may impact on the chances of getting paid.

Thanks for reading.

Sean

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