Law Times

Page 4 August 24, 2015 • Law Times www.lawtimesnews.com NEWS Legal history Georgetown firm with storied past readies for 130th anniversary By tali FolKinS Law Times o one expected that when Allan Kogon began re- searching the roots of his law firm, he'd discover they went back 130 years. And so it was with some excitement that while sifting through archived newspapers for clues, he came across an advertisement placed in the Oct. 15, 1885, edi- tion of the Acton Free Press that drew the reader's attention to the law firm Shilton Allan & Baird. The firm was one of two roots from which his own Georgetown, Ont., firm Helson Kogon Ashbee Schaljo & Associates LLP had sprung. The discovery was one of the high- lights of a quest Kogon first embarked on more than a decade ago with the retire- ment of partner Fred Helson. Helson's retirement, after working at the firm for about 50 years, prompted Kogon to want to find out more about its origins. "Fred, in particular, was a very significant con- tributor to the Georgetown community, and I wanted to sort of document that as he was retiring and make a record of it, and so I started to research," says Kogon. Helson himself was a significant source of information about the firm's history, he says. But Kogon's own investi- gations, which involved newspaper archives, the Internet, and personal interviews with local people, helped him deepen and expand the history considerably. The project grew as he worked on it, he says, and be- came particularly absorbing over the past two years. "I did it after hours and at home on evenings and weekends, and it did take a huge amount of time," he says. "It grew beyond what I had originally anticipated because there was so much interesting stuff." No small part of the labour was tracing the firm's com- plex genealogy. It arose from two main root firms that merged in 1969, but both had evolved considerably over the years as partners moved in and out and the names changed frequently. So the project involved a "mess" of names and relationships to disentangle, he says. But as he continued his research, Kogon often found himself surprised at the roles the firm's lawyers had played in the history not just of Georgetown but of the wider community. "We had all these people who really contributed to the commu- nity and the country. And all of this out of what was a very small town," he says. Sybil Bennett, a pioneer of female participation both in law and Canadian politics, joined one of the two origi- nal firms in 1934. Bennett was one of only four women elected to the House of Commons in 1953 and represented Halton from 1953 until her death in 1956. She was the Peel County Law Association's first female lawyer and served as chairwoman of the Ontario Progressive Conservative Party. Ben- nett became a king's counsel in 1945, making her only the fourth woman in the Commonwealth to receive the hon- our, says Kogon. "And she came out of our firm in George- town. . . . Whoever heard of Georgetown?" Bennett's partner in the firm was LeRoy (Andy) Dale, who, half a year after winning the Canadian lawn bowling championships, became reeve of the village of Georgetown. When the town incorporated in 1922, he became its first mayor despite the fact that he also served as town solicitor. "Today, the law society would probably be nuts thinking about conf licts of interest, but he was the mayor of the town and the solicitor for the town," says Kogon. The firm or its two root firms, he says, have "incubated" one vice chairman of the Ontario Municipal Board and sev- eral judges, including justice Kenneth Langdon. Langdon's judgments, says Kogon, would be the subject of a number of stories in the newspapers at the time. In one of them, he says, Langdon presided over the case of a man charged with theft for not paying for his meal in a Georgetown restaurant. "He showed up in Ken Langdon's court. So Ken Lang- don said, 'How much was it?' and I think it was a few dollars, the meal was four or five bucks. So Ken Langdon gave him four or five bucks to pay for the meal and then told him to get out of town and dismissed the charges," says Kogon with a guffaw. "Can you imagine that happening with a judge on the bench today?" Langdon's son also served at the firm and became a judge. The work of compiling the firm's history is now essen- tially complete, according to Kogon. The firm is planning a 130th anniversary celebration on Oct. 15. Legal historian Christopher Moore says it's hard to name the oldest law firm in Ontario partly because the earlier ones tended to be quite informal. Permanent, iden- tifiable firms tended to start appearing in the middle of the 19th century with the emergence of relatively stable clients such as the railways and major banks, he says. "They need legal advice on a permanent basis, so the law firms get more permanent," he says. One possible candidate for Ontario's oldest, continuous law firm is Blake Cassels & Graydon LLP. Another long-lasting firm dates back to William Bowlby in Kitchener, Ont. in 1858. After a series of mergers, the firm would eventually become the Kitchener- Waterloo office of Miller Thomson LLP. Fasken Martineau DuMoulin LLP originated with a firm established in 1863, albeit not under the Fasken name, says Moore. LT N Allan Kogon has traced the complex his- tory of his law firm, Helson Kogon Ashbee Schaljo & Associates LLP. Lawyer out $44K in dispute over pro bono retainer By tali FolKinS Law Times o anyone who may have had doubts, a Superior Court judge has issued a clear statement on the difference between pro bono and contingency-fee arrangements in a case that underlines the need for written retainer agreements. In a decision earlier this month, Jus- tice Mario Faieta ruled in favour of a man who took his former lawyer to court after he presented him with numerous invoices for what the client said he thought was pro bono work. The lawyer, Andrew MacDon- ald of the Barristers Group, will have to pay $43,991.19 to the man plus costs of $1,684.57. The decision refers to the man only as John Doe in order to keep secret the terms of the settlement he won while represented by MacDonald. According to the decision, Doe first met MacDonald in 2006 through mutual friends. Doe's dog, Ben, had died in the care of a veterinarian, and he believed the death was traceable to an excessive amount of sedative negligently given to him. He wanted to sue the veterinarian for mal- practice but couldn't afford a lawyer. According to Doe, MacDonald agreed to take the case on a pro bono basis. Mac- Donald, the ruling noted, said he told Doe: "I would get paid for my time if we received money from the other side and that my hourly rate was $350.00 plus GST. I told him I would be paid out of the proceeds of any settlement or judgment based on my time and hourly rate plus disbursements." Doe launched an action against his veterinarian in 2008. Soon thereafter, ac- cording to the Aug. 10 decision in John v. MacDonald, the lawyer told Doe he was running up a number of expenses and the client "agreed that he would try to reim- burse Andrew [MacDonald] for his out of pocket fees because John [Doe] was grateful that Andrew was providing his services on a pro bono basis and felt that Andrew should not have to pay for the expenses associated with the lawsuit." Over the next few years, MacDonald began to invoice the client for his disburse- ments, and Doe made numerous payments after receiving money donated by his fam- ily and friends as well as funds raised from a benefit concert. In February 2014, the par- ties settled the suit for a sum not disclosed in Faieta's decision. Doe then received a "pre- bill" from MacDonald totalling $65,978.98 "for fees and disbursements," the ruling noted. In April, MacDonald presented Doe with a reduced figure of $34,000, saying he had given him a discount "based on actual time spent on the file." In May of last year, Doe got an order of assessment of all of the bills MacDonald had sent him, but the assessment process was adjourned when the client decided to file an application against the lawyer. In his appli- cation, Doe sought declarations that Mac- Donald had done the work on a pro bono basis; that he wasn't liable to pay his account to MacDonald other than unpaid disburse- ments; that he was entitled to repayment of $9,991.19 he had paid to MacDonald; and that he also should also get $34,000 from the settlement money that MacDonald had held in his trust account. In considering the issue, Faieta con- cluded that in cases where there's no written retainer agreement and a dispute about the terms arises between a lawyer and a client, there's a "heavy onus" on the lawyer to prove his or her version. But MacDonald, Fa- ieta concluded, wasn't able to prove that the agreement he had with Doe was a contin- gency-fee agreement rather than a pro bono arrangement. MacDonald admitted at one point, according to Faieta, that he was tak- ing on the case pro bono but stated that he meant, among other things, that "he would not get paid if no damages were awarded." "Implicit in his statement is the propo- sition that Andrew would get paid if dam- ages were awarded to John," wrote Faieta. "Andrew's suggested meaning of 'pro bono' bears no resemblance to its normal mean- ing — namely, to provide services gratu- itously to a client regardless of the outcome. "Misunderstandings about the terms of a retainer not only have consequences for the solicitor and his client, but also ref lect poor- ly on the legal profession," Faieta continued. "Such a misunderstanding in this case was entirely avoidable had Andrew followed the Law Society's guidance and reduced the terms of the retainer to writing." MacDonald says he's "very disappoint- ed" with the ruling, especially after the set- tlement he won for Doe. "This is a case where the client was very, very pleased with the services, had no complaint with the representation, and had no complaint with the result that was achieved," says MacDonald. "The client here got a windfall on the back of 8-1/2 years of litigation services that I supplied to him." He also says the decision doesn't ref lect the way the relationship between him and Doe changed as the client was able to secure more funds, especially after he reached a settlement with his veterinarian. "The issue on pro bono, it seems to me, is that if an individual comes to you without means to pay, if the means to pay changes at some point, does that change the nature of the relationship?" he asks. "In this case, he was successful in getting some financing, and the financing it seems to me changes the game plan to a certain ex- tent. But certainly, once there's been a settle- ment, that changes the game plan as well, especially if that settlement was built upon the legal costs incurred to date." Asked why he never committed the terms of the arrangement to writing, Mac- Donald says trust was a key factor. "It's just sort of the nature of the client and the cir- cumstances of the case. There's an element of trust in the client-lawyer relationship, and this is one of those cases that evolved over 8-1/2 years. . . . There was an understanding, as I saw it, that we had sort of a trusting re- lationship, that I was helping him out, and that there would be something for both of us at the end of the day if the other side paid." Lucas Lung, a partner at Lerners LLP, says unwritten retainer agreements aren't uncommon in files where the work is rela- tively simple and very narrowly defined. But he suggests written retainers should be an essential part of any case that involves ongoing work. "When you're dealing with a pro bono file, it's nice to have the scope of the matter fairly nicely defined," says Lung, who at one point received permission from his firm to devote 40 per cent of his practice to pro bono cases. "I think that's the case for any file. It's good to define what you're being retained to do because you could have a client with all kinds of different problems. . . . You're not being hired to act as their general counsel and deal with everything in their life." LT T

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