Law Times

Page 4 March 11, 2013 Law Times • NEWS Ruling a 'warning' against attacking lawyers Continued from page 1 total bill was almost $130,000, Du Vernet was seeking about $68,000 after collecting the $10,000 awarded to Jones by the appeal court. Jones denied the allegations and filed a counterclaim against Du Vernet seeking to have him return the fees she had already paid him because he lacked "professional conduct, such as failure to give proper advice, failure to represent her interests, and breach of fiduciary duty," noted Superior Court Justice Beth Allen in the February decision. But after considering the issues, Allen threw out Jones' counterclaim and ordered her to pay the legal fees following a determination of the amounts by an assessment officer. "I am satisfied that throughout his retainer, Mr. Du Vernet represented Ms. Jones in an exemplarily professional fashion," wrote Allen. She added that Du Vernet "more than ably" advised Jones about her chances of success, possible courses of action, the potential cost consequences, and ways of mitigating her loss. "Very importantly, against considerable legal odds, Mr. Du Vernet succeeded in winning on appeal and through his efforts paved the way for the development of a new tort in Canada," Allen noted. "This is no minor accomplishment. It would be a pleasure to the court, and most certainly to clients, if every lawyer served their clients with such attentiveness, dedication, and perseverance." Allen noted Jones' claim was inconsistent with written records that show Du Vernet had fully advised her on the terms of her litigation. The judge awarded an additional $16,000 in costs against Jones for the most recent lawsuit. Du Vernet says the case has broader implications for both lawyers and the public. "The ruling is a warning to anyone who is going to attack the integrity of their counsel in an effort to avoid paying a cost," he says, adding that the court in this case has "made a declaration expressly affirming counsel's professionalism and competence." It's also a lesson that lawyers should keep written evidence of all correspondence detailing their advice to clients, he notes. For his part, Jones' counsel Paul Koven says, "At no point in time was Ms. Jones provided with a litigation estimate of anticipated expenses." Koven says he can't speak about the evidence Allen considered against his client as there's a possibility of an appeal. He did say, however, that the case highlights the inaccessibility of the justice system due to the exorbitant cost of civil litigation. "This is an issue that's going to be before the courts on a more frequent basis given that litigation costs are only escalating," he says. "Perhaps as a profession, we have fallen short somehow in doing our part to ensure that justice is accessible to everyone regardless of the size of their pocketbook." For Du Vernet, an appeal in the case would be "foolish." "I think it's foolish enough to take it this far," he says. "What had happened here is the court felt the need to refute very serious allegations of misbehaviour the client had made in effort to avoid our bill," he adds. In addition, Jones was "expressly warned about" the risk she might not receive her costs from Tsige, says Du Vernet. In his factum, Du Vernet quoted from correspondence he had with Jones in which she said, "At the end of the day, I will need to pay my legal costs regardless of how much the court awards me and therefore would like to carefully monitor the costs." That remark, he claimed, is proof that Jones was aware of the cost situation she was in. "The defendant clearly understood that her obligation to pay was independent from the outcome of the case, contrary to what she now alleges," he wrote. In her decision, Allen pointed out that if clients are going to bring claims of incompetence by their counsel, they had better have the grounds to prove it. "Certainly, clients are entitled to have an assessment of their lawyers' fees," she wrote. "They cannot, however, be permitted to enjoy a deferred fees arrangement, benefit from able legal representation, and then turn around and refuse to pay the bill, raising groundless and dishonest challenges to their lawyers' competence." LT Barriers no longer justified Continued from page 1 globalization." Under the current system, a Quebec lawyer who wants to become a full member of a law society in another province must write several exams. Lawyers from the rest of Canada seeking to become members of the barreau must also write two law exams. "These barriers, I am told, were introduced several years ago based on what was thought to be gaps between civil and common law. I am not saying that these gaps do not still exist but I believe that they no longer justify these barriers," said Plourde. He added: "The benefits resulting from the Barreau du Québec's willingness to recognize the legal credentials of lawyers admitted to practice in common law provinces and territories, even without any specific civil law training, outweigh the risks." Conway tells Law Times Plourde approached him last year about what Ontario's position would be if Quebec decided to opt fully into the mobility agreement. "I said, 'Well, I think that would be a very positive move and it would be the last big piece of the national mobility regime,'" says Conway. "That's how we started the ball rolling." Plourde said the new agreement means lawyers can follow their clients wherever they go in Canada. He also said the influx of francophone lawyers to Ontario and English-speaking lawyers to Quebec will ensure clients who speak only one of Canada's official languages receive better service in both provinces. More and more law schools in Quebec are also training students on the civil as well as the common law systems, said Plourde. Bencher Vern Krishna recalled the uncertainty and fear that followed the first consideration of a mobility agreement a decade ago. "The alarm signals and the bells that went off — the legal profession was about to collapse," he said in recalling the talk at the time. "We were going to do something so radical that it was going to . . . alter the nature of the profession and expose the public to grave danger. "It just tells us that sometimes you have to bite the bullet and make radical solutions and only time will teach you very quickly how what was radical a decade ago is now considered completely passé." LT Get fast and easy access to l t yo ble to y u s and itt's availa s a day. 24 hour Canada's legal professionals! Canada's most comprehensive online directory of legal professionals gives you a direct route to the information you need. departments location and area of practice Visit www.CanadianLawList.com and find out how we're serving you better than ever. compiled by top Canadian legal researchers Untitled-1 1 www.lawtimesnews.com 13-01-03 9:02 AM

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