Friday, 18 May 2012

LPA Review of a Solicitor's Bill Trumps a Solicitor's Lien

Lawyers protect clients, but, sometimes, the two need to be protected from each other. 

Imagine a client unhappy about a lawyer's bill: the client decides to not pay and takes out an appointment under s. 70 of the Legal Profession Act to have the bill reviewed by a Registrar.  Until the review is completed or withdrawn, s. 70(12) prevents a lawyer from proceeding with a suit for the money owed.  Undoubtedly, this is inconvenient for the lawyer, but there is a solid rationale for this procedure: for example, addressing the inherent imbalance of power between clients and lawyers, and confirming to the public that, as officers of the court, we are held to a higher standard and also subject to the court's supervisory jurisdiction.

Imagine a slightly different situation: a client does not pay the bill but demands that his file be transferred to a new lawyer.  The former lawyer asserts a solicitor's lien and refuses to transfer the file until fees are paid.  The client may then apply to court under ss. 77 and 78 of the LPA for the release of the file and the court may order payment of fees or security.  Undoubtedly, this is inconvenient for the client, but there is a solid rationale for this procedure as well: for example, ensuring access to justice by protecting lawyers and encouraging them to take on files despite doubts about client's willingness to pay.

What happens, however, when these procedures for protecting lawyers and clients from each other overlap?  Does a lawyer's right to a solicitor's lien trump the client's right to have a bill reviewed and, in the process of the review, the right to obtain from the lawyer all documents necessary for that review?  As Master Taylor, sitting as Registrar, explained in Shapray Cramer LLP v. Mitschele, 2012 BCSC 702, "some meaningful space can be made for both objectives."

Rules 18-1(5), 23-6(4) and 23-6(5), give the Registrar broad powers to make orders to facilitate s. 70 reviews, including ordering a pre-hearing conference and production of documents.  These powers can partially impair an asserted solicitor's lien because it would be "contrary to the stated goals of the new Rules to require that parties who are applying [for a s. 70 review] to bring an application to Supreme Court pursuant to ss. 77 & 78 to retrieve documents necessary for the registrar to conduct a review."  Thus, in no uncertain language, Master Taylor concluded that principles of fairness and fundamental justice require disclosure of relevant documents and do not allow a lawyer to use a solicitor's lien to effectively frustrate the review process:
[59]         If the documents are relevant to the review hearing pursuant to s. 70 of the Act, then the clients cannot prepare their case without reference to the copies of the documents in question and the respondent is hindered in its attempt to recover the funds potentially owed. Nor should the clients be left at the mercy of the solicitors by being given documents which the solicitors ,  in their sole discretion ,  think are necessary for the clients’ needs to conduct the hearing. This concept, in my view, would be contrary to the principles of fairness and fundamental justice.
[60]         Consequently, allowing the clients to have access to the requested documents promotes the interests of both parties. It is only in the event that the solicitors provided the applicants with an unreasonable bill that those funds would not (and therefore should not) be recovered. If this is indeed the case then the pro forma step requiring clients to make an additional application in the Supreme Court is a hurdle in the way of clients who seek the documents necessary to challenge what they say is an unreasonable bill of costs.