What to do when you are unhappy with your lawyer,
and what they may do about it?
Over the past few months, I have spoken with some colleagues who had the unfortunate task of being fired by a couple of clients. It is not pleasant, but it is nothing new. It comes with the position of being a lawyer in the private marketplace. The client is entitled to dismiss a lawyer for any reason they wish to provide. But why does a client/lawyer relationship that seemed so promising end up with a client firing their lawyer, and often worse?
This blog will deal with this question, what a client can do when they are dissatisfied, and the lawyer’s options on addressing these concerns with the client (or former client).
Generally, there are five main reasons why a client will fire a family law lawyer:
- The lawyer has failed to deliver what the client is expecting to receive in the matter;
- The lawyer has taken too long to get the client the result they were expecting;
- The lawyer has cost too much to get the client the result they were expecting;
- The lawyer has failed to communicate with the client;
- The lawyer has made a significant enough error or omission that causes the client to lose confidence in the lawyer.
Failed to Deliver
At the beginning of every file, I meet with the client, in person or virtually, and tell them what I can do for them and what I cannot do. I assure the client that they can expect my best efforts, but I do not offer any guarantees. Why no guarantees? Because the resolution of all family cases is subject to many variables, including the facts of the case as presented by both parties, the current state of the law at the time a decision is to be made, the credibility and weight given to the evidence of each party, the demeanor and recollection of witnesses, the availability of substantiating documents or other types of evidence, the personalities of the lawyers and of the deciding judge.
It is critical for a lawyer to make this clear to the client at the beginning of the case and during the case. A good lawyer will do this by communicating with the client in writing, emailing, and phone. I emphasize the latter because sometimes a client needs to hear it, not just read it.
Took Too Long or Cost Too Much
When clients hire a family law lawyer, it is similar to other services they obtain – they want to know how much the services will cost and how long it will take. So, early in the lawyer-client relationship, I will give the client an estimate of both time and cost. Again, the emphasis is on “an estimate” – again, I make it as clear as I can at the outset that I cannot control the exact time it will take to complete the matter, and I cannot control the exact costs of the proceeding.
There are many reasons why I case drags on, or the legal costs start increasing, including if more parties are added to the file or get involved (the OCL, the CAS, FRO, grandparents, etc.), one or both of the clients develops health issues that cause delays in the case, the complexity of the legal issues, the approach the client instructs their lawyer to take, or the approach of the lawyer for the opposing party (aggressive/combative vs. mediation friendly), if the other side is self-represented (this is generally a significant factor in both increasing the time and cost of a case), the disclosure that needs to be exchanged (cases will get delayed and become costly if a client or other party has not filed their tax returns since Jean Chretien was Prime Minister), the amount of hate/hostility between the parties, the need for interim motions to the court (to get a temporary order, or a motion to compel a party to comply with an order that is already made), and the ever popular delay in waiting for an available court date, or getting bumped from a list if the courts are overbooked.
If a lawyer tells the client that the matter will be over quickly and will be under $1,000.00 to resolve it, only to deliver neither, it is to be expected that the client will be furious. If you bring a car in to get an oil change and are told it will be $50.00 and 30 minutes, you would be very upset if it took half a day and cost $500.00 without anyone telling you why it is taking too long or costing more than you thought it would be.
Failure to Communicate
As you have figured by now, clear communication is critical (as it is in any relationship, personal or professional). This is an art form and not an exact science, and so like many other lawyers, I must continue to learn to be a better communicator with my clients. Some clients like being called regularly, some want just to be updated, and some only want to hear from you when the matter is ready to proceed in court.
However, I have learned that when I start the lawyer/client professional relationship, I clearly set out to the client what I expect from them and what they can expect from me. The lawyer should set out these expectations in a written retainer agreement or a retainer letter. The agreement is what the lawyer prepares and sends to the client at the beginning of the case. It will spell out such terms as:
- to why the client contacted the lawyer,
- what the lawyer may be able to do for the client,
- the lawyer’s hourly rate or flat fee,
- how much the matter could cost to complete,
- how long the case could take to complete,
- what would lead to the time and costs being higher than expected,
- the methods and expectations regarding communications between the client and the lawyer/lawyer’s office (i.e., when the client can expect the lawyer to return/reply to phone calls, email, and texts).
To be thorough, my retainer letter is generally ten pages long. I take the time to prepare it and send it to the client, and so I expect the client to read it, understand it and let me know if there is anything they do not agree with. I presume each of my clients to be sufficiently competent to understand the terms of the retainer letter unless they are not – for those others clients, that is a blog topic for another day.
So, at the outset of the file, I make it clear to my client, both in letter form and in-person/virtually, what we can expect from one another. But this is not enough. The communication bridge is a two-way street and must constantly be flowing. Throughout the life of the file, I will regularly keep the client updated on what is going and what I may need from them. (e.g., I need their financial disclosure, I need their instructions) The client needs to hear from me as to what is happening and what legal advice to give them. This can be by phone, text, email, or letter, or more than one of these methods. To be assured that we are on the same page about what is going on and where the file is going.
But as I said, although I expect a client to read and understand what I send them, sadly, some clients will only hear/read/understand what they want to, and selectively (possible unconsciously?) ignore what they do not wish to hear/read/understand. Based on this reality, a good lawyer must assure themselves that they have communicated with the client not later to claim that there has been a miscommunication. (e.g., the lawyer told them X when it was Y) or poor communication (told them only about X and not about Y), or no contact at all (did not tell them about X or Y at all).
I will address point #5 (the lawyer is alleged to have made a significant enough error or omission that causes the client to lose confidence in the lawyer) a little later in this blog.
So, if a client is unhappy with their lawyer, and the relationship cannot be salvaged, what can a client do other than firing the lawyer? It will depend upon the seriousness of the client’s concerns.
Client Not Happy with Lawyer’s Account
When a client fires their family law lawyer, one reason is that they are unhappy with the lawyer’s bill. They may think the bill is too high or simply not worth paying because the client did not get what they expected.
The first step for a client to take is to call the lawyer to resolve the matter civilly and without further actions. If the client and/or lawyer are unable to do so, the client can have the lawyer’s invoice reviewed, known as an “assessment.” To start this process, they must contact the Assessment Office at the Ontario Superior Court of Justice to have the bill reviewed by an Assessment Officer (AO). A client can ask the AO to decide whether a lawyer’s bill is too high and should be reduced or even nullified.
A client generally has only 30 days from the date he/she receives the lawyer’s bill to assess it. They may be able to ask for an assessment beyond the 30 days, but it is in the assessor’s discretion whether or not to extend that time.
In most cases, a client should expect a lawyer to vigorously defend their account as they have put in the time and effort to provide legal services to the client, and it is expected they will be paid fully for the same. A good lawyer will then point to the retainer agreement/letter as a defense to this claim. Suppose a client does not pay a lawyer’s bill. In that case, the lawyer may take the initial steps to collect the monies from the client, such as taking them to court, getting a garnishment order against them, or having a collection agency try to recover the outstanding bill. Clients are often surprised by this tactic – they should not be because, after all, it is a business to the lawyer to provide their legal services to the public.
Client Wishes to Complain About the Lawyer
If a client is unhappy with the lawyer’s conduct in the case, whether in court or out of court, a client may wish to file a complaint about the lawyer with our governing body, the Law Society of Ontario (formerly the Law Society of Upper Canada). There is a general belief by most clients that family law lawyers do not like complaints to the Law Society. They are right – we do not. But at the same time, do not expect a lawyer to simply acknowledge all the wrongs that a client may allege against them. By making an LSO complaint, a client attacks a lawyer’s character, skill set, and/or integrity. They should expect their former lawyer to put up a strong fight and defend themselves against any such claims.
If the LSO does not feel that the complaint is merited, they will let the client (and the lawyer) know so. Suppose there is some merit to the complaint. In that case, the LSO will try to resolve the complaint and act as a go-between the lawyer and the client to resolve the complaint and allow both parties to move forward without the lawyer or the client taking any further actions. The vast majority of cases resolve in such a manner.
The Lawyer has Made an Error or Omission.
The last reason as to why a client fires a lawyer is the most serious one. When the client alleges that the lawyer was “negligent,” – either the lawyer did something significant that he was not supposed to do, or he forgot to do something significant that he was supposed to do. In such cases, a client will fire a lawyer and then take legal action against the lawyer to address the matter. If a lawyer is alleged to have been negligent, the lawyer has a duty to contact their legal services insurer (LawPro) and advise that a claim may be made against them. This is akin to getting into a car accident and letting your car insurance company know that you might be sued for the accident.
If the LawPro claims adjuster assesses the matter and deems the lawyer was negligent, then a settlement to correct the matter for the client will generally be attempted. If they assess the matter and deem the lawyer was not negligent, then the client can expect that they/their insurer will vigorously defend any court action that the client has taken against the lawyer.
The test for establishing a lawyer’s negligence is high, and as such, a client can expect to face a battle by either/both the lawyer and his/her insurer. Thankfully, this does not happen that often.
At the end of the day, the old saying stands true – an ounce of prevention is worth a pound of cure. Know what you are getting into when hiring a family law lawyer – how much it might be, how long it might take, and what they can (and cannot) do for you.