Communicate and communicate
The Law Society receives approximately 1,100 to 1,200 complaints each year. Many of those complaints come from clients concerned about the value they received for legal services. Although the Law Society closes the majority of fee-based complaints with no further action, responding to a complaint can be stressful and time consuming.
The Code of Professional Conduct for British Columbia came into force in January 2013 and includes Rule 3.6-1, which states that a lawyer must not charge or accept a fee or disbursement, including interest, unless it is fair and reasonable and has been disclosed in a timely manner. (emphasis added)
Lawyers may avoid fee-based complaints with clear communication at the outset. Often these complaints are brought together with quality of service concerns. Quality of service can include a lack of communication and or a failure to respond to the client. The quality of service the Law Society expects of lawyers is set out in Chapter 3 of the BC Code and communication is a key component in providing clients with service that is competent, timely, conscientious, diligent, efficient and civil.
Lawyers can avoid the suggestion they failed to communicate about their fees by having a retainer agreement or, at the least, some type of written communication setting out their rate and/or expected fees and the scope of the retainer. The Law Society website has sample retainer letters at lawsociety.bc.ca/page.cfm?cid=950&t=Retainer-agreements,-limited-scope-retainers-and-joint-retainer-letters. Clients may be distracted during initial discussions especially if they come to you in a time of stress, so confirm everything in writing regarding fees. It is always good practice to take notes of all substantive discussions with clients and confirm them in writing with clients.
If you provide an estimate or ballpark for fees, be sure to communicate with the client if that estimate changes and be candid about your fees so that your client is not surprised when he/she receives your bill.
Do not ignore client complaints about quality of service and concerns over billing. If a client views you as unresponsive, it will provide them with additional grounds to complain, even if you have not done anything wrong. Instruct your staff to ensure they bring complaints about fees to your attention. The Commentary to Rule 3.6 of the BC Code states that a
lawyer should be ready to explain the basis of the fees and disbursements charged to the client. Failing to respond to a billing inquiry opens a lawyer up to a potential complaint. The client may not agree with the response but you will not open yourself up to criticism regarding your obligation to respond.
Take care to never settle a fee dispute in exchange for the client’s promise not to file a complaint with the Law Society. Lawyers have been disciplined for such conduct.
If a client questions your bill, go over the details and explain why you made a particular charge. Of course, there are fee disputes that will not be resolved with a simple answer, but lawyers can be proactive in addressing a client’s concern about fees.
If your dispute with the client over fees cannot be resolved, the Law Society offers a Fee Mediation Program at no charge to assist in informally resolving fee disputes of less than $25,000. The Law Society will appoint a mediator to attempt to resolve the dispute.
Information about the Law Society’s Fee Mediation Program is available on the Law Society’s website at lawsociety.bc.ca/page.cfm?cid=143&t=Disputes-involving-fees.
Carolyn Anderson is a staff lawyer in the Professional Conduct Department at the Law Society. She is part of a team responsible for investigating and, where appropriate, resolving complaints against lawyers.