Area of Law: Find a Lawyer or Paralegal
Answer # 861
Resolving a problem with your lawyer or paralegalRegion: Ontario Answer # 861
There are five general problems that people sometimes have with lawyers and paralegals:
- Communication problems
- Problem with the fees charged
- Breach of fiduciary duties or neglect of responsibilities
For each of these problems there is a different approach you can take.
1. Communication problem
First, if your lawyer or paralegal does not return your telephone calls or reply to your written correspondence, you have a communication problem. This is the most common complaint that clients have. Quite often lawyers cannot update clients about their progress because there is nothing new to report. Nevertheless, it is expected that lawyers or paralegals will communicate this to their clients.
If this is the problem, it is a good idea for you to express your concern to your lawyer or paralegal and ask for an update. In most cases the problem will be resolved at this point. If you cannot obtain a response, or if you tried talking to your lawyer or paralegal and it did not help, you can contact the Law Society of Ontario for assistance. Your complaint must be filed in writing to the Law Society’s Complaints Services. The Law Society reviews and assesses every complaint and attempts to help resolve the problem without a formal discipline hearing. If your situation is such that the Law Society cannot help you, they will direct you to other sources of assistance.
2. Fee problem
Another common problem concerns lawyers’ and paralegals’ fees. If you have this problem you should first speak with your lawyer or paralegal and ask for an explanation of the account. There may be a good reason the bill is not what you expected. For example, the case may have become more complicated than the lawyer or paralegal originally thought, or the bill may include disbursements. Disbursements are monies paid on your behalf by the lawyer or paralegal and can include a variety of expenses such as photocopying; courier charges; postage; court registration fees; search fees; accounts from private investigators; and assorted agency accounts.
Lawyer fee problem
If you are unable to settle your fee dispute with your lawyer, in Ontario you can have the bill reviewed by the Assessment Office of the Superior Court of Justice.
If you have chosen to have your lawyer’s bill reviewed, called a Solicitor-and-Client Assessment, and sometimes referred to as “taxing” the bill, it is often best not to pay the bill until you have had the Assessment Hearing. This is because some court cases have ruled that payment of the bill signifies “implied” acceptance of its reasonableness. That said, the courts have allowed assessments of bills that have already been paid, particularly in special circumstances such as fraud that is discovered later.
You have one month from the day the bill was sent to you to apply to the Assessment Office to have it reviewed. There is an application fee.
There are four steps to having your lawyer’s bill reviewed:
- At a court office, fill out a Requisition Form and an Order for Assessment form, and pay the court filing fee.
- The Court Registrar will issue an Order for Assessment, and provide a Notice of Appointment for a hearing date.
- Serve both documents on your lawyer along with a copy of the legal bill.
- Go to the Assessment Hearing.
At the Assessment Hearing, an Assessment Officer will review your bill to decide if it is reasonable or if it is excessive. The lawyer has the burden of proving the reasonableness of the bill and will be asked to provide records justifying the time billed, or documents proving you were aware of the costs.
Assessors take many things into account, such as the time spent on the matter, its complexity, the skill required, the results achieved, the client’s ability to pay, and the expectations of the client.
Once your account has been assessed, depending on the outcome, your lawyer’s bill may be reduced. If it is decided that the lawyer’s bill is in order, you will then be responsible for the full amount of the account, plus interest and, possibly, the costs of the review.
Note that it is possible to have your bill assessed if it has been longer than one month since you received it, however, you will first have to get permission from the Super Court of Justice. This is a more complicated, costly and time-consuming process, and there is no guarantee the Court will grant you permission.
Paralegal fee problem
If you are unable to settle your fee dispute with your paralegal, you may submit a claim with the Small Claims Court. Currently, in Ontario, the jurisdiction of the Small Claims Court is limited to $35,000 or less. If your claim is for more than $35,000, you will have to take your case to a higher level in the Superior Court of Justice.
3. Breach of fiduciary duty or negligence
Third, if you believe your lawyer or paralegal has breached a fiduciary duty or neglected responsibilities, you have the right to complain to the Law Society. It should be made clear that there is a difference between professional misconduct and professional negligence.
Professional misconduct occurs when a lawyer or a paralegal does something, in either letter or spirit, that contravenes the Law Society’s Rules of Professional Conduct (applicable to lawyers) or the Paralegal Rules of Conduct.
On the other hand, professional negligence occurs when a lawyer or a paralegal makes a mistake, such as failing to begin legal proceedings within the required time.
If the client believes a lawyer has been negligent and the client’s rights have been prejudiced, it will be necessary for the lawyer to consult another lawyer who can advise, based on the facts and the law, whether there has been negligence. If the advising lawyer tells you that your lawyer has been negligent, your lawyer should be told to report this to LAWPRO which runs the liability insurance covering all practising lawyers in Ontario. The insurance company will decide on whether there will be coverage.
The Law Society also requires licensed paralegals in Ontario to carry professional liability insurance, offered through private insurance providers. If you believe your paralegal has been negligent, you may wish to consult another paralegal or a lawyer who can advise whether there has been negligence. If it is determined that your paralegal has been negligent, they must report this to their insurance company, who will decide on whether there will be coverage.
The Law Society deals with most matters regarding a lawyers or paralegals professional conduct. However, if your complaint involves discrimination or harassment by your lawyer or paralegal, contact the Discrimination and Harassment Counsel (DHC) or refer to topic 952 Law Society’s Discrimination and Harassment Counsel Program for more information.
If you lost money due to the dishonesty of a lawyer or paralegal, you may be able to apply to the Law Society Compensation Fund. Refer to topic 865 The Compensation Fund (in this section).
The best way to handle a complaint is to talk to your lawyer or paralegal as soon as possible to see if you can resolve any differences. Your lawyer or paralegal is working for you and should answer any questions that you have. Keep in mind that you always have the option of firing your lawyer or paralegal and getting another one.
How to file a complaint about a lawyer or paralegal
If you want to make a formal complaint about a lawyer or paralegal, you must follow the procedure set out by the Law Society. Complaints must be brought to the Law Society within three years of the date the problem occurred or the date you became aware of it.
1. Complete and file a Complaints Form
You must put your complaint in writing by completing and filing a Complaint Form with the Law Society. In addition to supplying your personal information and information about your lawyer or paralegal, you must also include what you are complaining about. Your information must be complete and accurate. You should also include the names of any witnesses you may have, as well as copies of any additional documents or records that may support your complaint.
After you have signed the form, you must submit it, together with any supporting documents, to the Complaints Services department of the Law Society. Submissions can be made by fax or mailed. Once the Law Society receives your complaint, they will acknowledge your complaint and provide you with a file number. They may ask for additional information. Visit the Law Society for more information and to view the Law Society Complaints Form.
2. Review of complaint by the Law Society
While the Law Society reviews all complaints it receives, it does not always investigate them. The initial review is done by Complaint Services. If it determines that the complaint raises issues within the Law Society’s jurisdiction, then Complaints Services will direct the matter to the Intake Department of the Professional Regulation Division.
The Intake Department will decide whether the complaint is valid, and will start an investigation if they believe the lawyer or paralegal:
- May have engaged in professional misconduct or conduct unbecoming a lawyer or paralegal, and/or
- Lacks the capacity to meet any of his or her obligations as a lawyer or paralegal.
If the Intake Department decides there is not enough evidence to support the complaint, the file will be closed and no investigation will be conducted. The file may also be closed for other reasons, including:
- The Law Society is already taking disciplinary action against the lawyer or paralegal you are complaining about.
- You have already complained about the lawyer or paralegal and your complaint was closed.
- The lawyer or paralegal you are complaining about is ill, or not currently in private practice, or living out of the country.
- Your complaint does not raise a concern to the Law Society as regulator, and an investigation would not help resolve your concerns.
- There are other resources or services that would be more appropriate for resolving your complaint.
- The complaint is the subject of a criminal, civil or other regulatory proceeding.
If a file is closed, both you and the lawyer or paralegal will receive a letter explaining the reasons why. If the file has been closed and you are not satisfied with the result, you can apply to the Complaints Resolution Commissioner to review the case.
Investigations are conducted by both the Complaints Resolution Department and the Investigations Department. Once an investigation is started, the Law Society will contact your lawyer or paralegal about the compliant. All lawyers and paralegals have a professional obligation to respond to all communications from the Law Society, and to cooperate with the investigation.
Your lawyer or paralegal may admit to the misconduct allegations you have made and consent to a hearing, where disciplinary action will be decided. Even if your lawyer or paralegal does not agree with your complaint, if there is convincing evidence of his or her wrongdoing, the matter may be referred to the Law Society Tribunal, who may then authorize disciplinary proceedings or a hearing to take place.
However, the vast majority of complaint letters do not lead to a hearing and formal discipline of the lawyer or paralegal.
Visit the Law Society of Ontario for more information on how to make a complaint against your lawyer or paralegal. Refer to the Law Society Tribunal for more information on disciplinary proceedings and hearings.
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