This week on Hull on Estates, Sean Graham and Natalia Angelini dicuss the unfortunate circumstances that usually accompany the process of getting off the record.

Getting Off the Record - Hull on Estates Podcast #85

Posted on November 13^th, 2007 by Hull & Hull LLP

Natalia Angelini:  Welcome to Hull on Estates, podcast #85 for Tuesday, November 13^th, 2007, with Sean Graham and Natalia Angelini.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.   Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills.  Now, here are today’s hosts.

Sean Graham:  Hi Natalia, how are you?

Natalia Angelini:  I’m good, Sean.  How are you?

Sean Graham:  Oh, pretty good, thanks.

Natalia Angelini:  That’s good.

Sean Graham:  We figured we’d chat about getting off the record in estate litigation.  Hopefully this doesn’t happen too often, because it has a bit of a detrimental impact on a practice, but there are some cases where, for whatever reason, the lawyer or the client decides that the solicitor/client relationship is not proceeding as smoothly as it needs to, and needs to come to an end.  And this is provided for in the Rules and Natalia, maybe you could just chat about the Rules for a second.

Natalia Angelini:  Sure.  Rule 15 is the relevant Rule and there are several subrules that we need to know for this area.  And Rule 15.04 is the subrule dealing with the situation where a solicitor brings a motion to be removed as counsel of record.  And 15.03(3) deals with the situation where your client serves a Notice of Intention to Act in Person.  And 15.03(1) deals with new counsel serving a Notice of Change of Solicitors.  So those are sort of the basic Rules that we’re going to be dealing with today.

Sean Graham:  And, of course, those are the Rules of Civil Procedure for Ontario, for anyone who’s not listening from Ontario.  So, those are the Rules and it allows…it’s a little bit odd in that it allows a lawyer to essentially become a party to the proceeding, only for the purpose of being removed, of course.  But…so it’s a little bit odd because the lawyer is becoming, at least for a moment in time at least, a party to the proceeding.  So, with respect to the name of the lawsuit, and when you file that Notice of Motion, does that change, Natalia?

Natalia Angelini:  No, it doesn’t change.  What simply happens is you indicate underneath your firm address that you are proceeding as the moving party.  You don’t otherwise change the style of cause.  And another thing that you need to be aware of is only your client gets served with the materials, which are filed with the Court.  The other side in the litigation does not get served with the materials.

Sean Graham:  You wouldn’t have to show up and argue that even though your client wanted you removed, the other side likes you so much that they want to keep you on for the lawsuit.

Now, there’s an easier way, and I think you mentioned it, and that’s the Notice of Intention to Act in Person.  Can you talk about that a little bit?

Natalia Angelini:  Sure.  It’s something that I like to utilize when I see that I’ve got no choice but to get off the record and one of two things will happen.  Either your client raises the issue that they want to continue on their own and you tell them what they need to do, to do that.  And they’ll either prepare and file it on their own, or what I do as a courtesy, I will prepare and serve and file the Notice of Intention to Act in Person, on behalf of my client.

Sean Graham:  And I generally accompany the client copy of that document with a letter setting out all the reasons why it’s dangerous to act on your own.  But, for sure, it’s their decision, no question about it.  And if they feel that they don’t need you or for whatever reason, things aren’t working, I think you have to take the approach all the power to them, wish them the very best of luck and let them go on their way.

Natalia Angelini:  And I think it’s important what stage of the proceeding you’re in when your client is doing that.  You certainly want to make sure that there’s no some hearing that’s imminent or examination that’s imminent because the last thing you want is your client being prejudiced because they’ve commenced acting for themselves at a critical point.  So, you know, what that may mean is that you may have to stay on for a little bit longer than you anticipated, or you arrange with opposing counsel for a brief adjournment of whatever matter was scheduled.  And if that doesn’t work, you may just, to cover yourself off, bring your motion in any event and get the Court to order an adjournment as part of your motion.

Sean Graham:  Yeah, I guess the most frightening scenario is that the client serves you on their own accord with the Notice of Intent to Act in Person the day before an important hearing and instructs you that you’re done, don’t show up.  And I suppose all you can realistically do is send a letter saying, please let me get an adjournment so that you can be prepared, maybe seek other counsel.  But if they tell you no, then unfortunately that’s their prerogative and again, wish them the best of luck.

Natalia Angelini:  I totally agree.

Sean Graham:  Now, obviously there’s a whole lot of reasons behind the filing of these documents.  And maybe we can just turn to that for a second.  There are many reasons clients come to lawyers and there are just as many reasons why they decide to leave lawyers.  So one of them…we’ve sort of grouped them into headings…and one of them is the relationship.  Just like any relationship, professional or personal, sometimes it just doesn’t work.  And maybe you could talk about that for a bit.

Natalia Angelini:  Thanks, Sean.  I think there’s a few reasons why this can happen and often times, it’s that you are not seeing eye-to-eye, you’re not communicating in a helpful way or communications have simply broken down.  Other times, it’s because your client has done a disappearing act and you can’t get a hold of them no matter what you do.

Sean Graham:  Yeah, and there’s a lot of clients who have the same complaint, that’s for sure.  They figure their lawyer has done a disappearing act and they don’t get letters and they don’t get responses, and that can lead to a fair amount of acrimony as well.

Natalia Angelini:  That’s right.  And if I recall correctly, one of the last surveys LawPro did, that came up as one of the lead reasons for complaints being commenced.

Sean Graham:  Yeah, and it’s…it can be hard, I think, to answer every communication right away.  And you know a lot of files and all that.  But you really…you really have to try to do it.  It’s an ongoing fight and the sooner you get back to clients, even with bad news, I think the happier they’ll be just to know that you’re on the matter.  And if you’re not, then you may find yourself getting served with the Notice of Intention to Act in Person.

Natalia Angelini:  Exactly.  And in this case, if you’re bringing the motion to get off the record, then it’s right…the opposite scenario.  And you certainly don’t want too much time to pass without communication, because you may find your legal fees are increasing while you’re continuing to attempt to represent your client or follow through with certain steps until you’re actually off the record.

Sean Graham:  And the other thing I’ve found on communication, as opposed to not enough communication, is too much communication.  So you send advice to your client and they respond back to you, with that’s fine, thank you for the advice, don’t do it, do something else. And you send them another letter saying, well, here’s a reason I don’t think that’s a great idea.  And they get back to you and say that’s fine, thank you for your reason, just do what I say.  And you know that you’re heading down a path which is not going to help the client. You try every way you can to advise them, because that’s all we can do, we don’t get to make the calls, the decisions, they do.  But we certainly advise and if that advice is completely not being followed or it appears that it’s not being understood, that is a real problem as well, I think.  And it can reach the stage where you feel you need to get off the record and maybe someone with different or better communication skills can take it from there.

Natalia Angelini:  Good point, Sean.  And I think that sort of ties in to another reason why this course of action is necessary, and that’s lack of capacity.

Sean Graham:  Yeah, and this is extremely touchy, in my experience.  It’s one of the toughest things to say to a client.  You know, I think that maybe you’re not understanding my advice because I believe you may be struggling.  And as an officer of the Court and as an advocate for you, I need to satisfy myself that you can actually understand my recommendations before either agreeing with them or overruling them.  And there are cases where you may need to tell your client with whom you may have been dealing for quite some time and everything’s been fine, that you believe they may be suffering from some sort of lack of capacity.  I can’t think of a more difficult solicitor/client conversation than that one.

Natalia Angelini:  Absolutely.  It’s certainly a touchy area and…sorry…

Sean Graham:  And then I find sometimes you need to say, well, I believe you may be a party under disability, and that’s covered by a different Rule.  But I need to satisfy myself that you’re not.  And so I do need a capacity assessment of your capacity to understand this lawsuit and give me instructions.  And a few things can happen from that.  You can get fired outright.  You get your Notice of Intent to Act in Person or Notice of Change of Solicitors.  The client can disagree, can agree to have the assessment, in which case, you wait for that assessment eagerly and hope that you’re wrong, always, of course.  But if you’re right, then you may need to then move to have a litigation guardian appointed.  And I know we’ve dealt with that in another podcast, so we won’t get into that here.

Natalia Angelini:  Thanks, Sean.  And so I think one of the last, you know, reasons that you would get off the record is…well, one of the obvious ones anyway…is non-payment of your legal fees.  And I think we all try to give our clients some leeway and an opportunity to become current.  But if it becomes clear that your…the legal fees are mounting and, you know, there’s not going to be payment of them, then you really…it’s time to pull the chute.

Sean Graham:  And I find with that one, like you say, you really try to give the clients every opportunity.  I find the toughest one is where lack of legal fees are combined with the client not agreeing with your advice.  And so, for example, if the fees haven’t been paid and you’ve told the client  all along that the fees would be high and you’re covered that way, but the client says I don’t want to talk about negotiation, I want to go to trial, I don’t care, and you’re not getting paid.  Those two fact scenarios are quite inconsistent from the lawyer’s point of view and that can really be the final straw, I find.

Natalia Angelini:  Um hmm, um hmm.

Sean Graham:  And then I guess the last one, I’d just briefly mention, is if, whenever a client asks a lawyer to do something which is fundamentally dishonest, whether by sort of tricking the Court by putting clearly false facts or anything like that.  I think you may have a problem; you may need to get removed from the record.  I’d say 99 times out of 100, you can explain to the client why it almost never makes sense to be dishonest anyway.  It always sort of comes back to bite you.  But once in a while, you cannot make that argument and that may be another reason to get removed.

Natalia Angelini:  Right, and if you don’t, you should really take a look at the Rules of Professional Conduct, which would probably sway you towards bringing that motion.

Sean Graham:  Yeah.  And the one last point I’d comment on is costs.  Once you’ve brought that motion, my experience is that you can pretty much expect not to get paid, certainly for your costs of the motion.  You may ask for it; most judges don’t award it.  What are your thoughts on that, Natalia?

Natalia Angelini:  My thoughts are that it’s really…I see no point in seeking costs on that motion anyway.  The way I would do it, because usually you’re in a situation where you’ve got other legal fees owing anyway, is I would immediately after I get the Order, I would have my account assessed.  And then you would, at least, get covered for costs from beginning to end in any event.  And with respect to the Order that you get on that motion, I just want to remind counsel that you really have to follow the language of Rule 15.04.  The Order has got to very clearly set out the contact information of the client.  And if you look at the Rule, it’s very clear as to how it has to be.  But the form is…the Courts are quite strict on having the proper wording in there.

Sean Graham:  Well, I hope that’s helpful.  I mean, I don’t imagine it’s particularly new to any lawyer listening.  But certainly I always find it’s good to hear some of the basics again once in a while.  And I hope that’s of use to people.  Thanks so much, Natalia.

Natalia Angelini:  Thanks Sean.

This has been Hull on Estates with the lawyers of Hull & Hull.  The podcast you have been listening to has been provided as an information service.  It is a summary of current legal issues in estates and estate planning.  It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

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