In Ontario, all Contingency Retainer Agreements must contain certain clauses as per Solicitors Act, RSO 1990 c.S. 15 and Ont Reg 195/04 : Contingency Fee Agreements.
CONTINGENCY FEE RETAINER AGREEMENT
I, [Name] , hereby retain Tamir Litigation Law Firm to represent me with respect to the injuries I have sustained in a motor vehicle accidents of [Date]
This retainer applies to both tort and accident benefits files.
I acknowledge that it was explained to me that I have several options in retaining counsel, including a retainer based on hourly fees, contingency fee as well as retainers with counsel outside this Firm. I was explained that different counsel may have different hourly rates and that contingency fee rates may also vary. I was also explained that I have a right to discuss these alternatives. Notwithstanding these explanations I have chosen to retain this Firm under a Contingency Fee Agreement, subject to controls placed by the Law Society of Upper Canada and Common Law. I confirm that I have been advised of my right to seek review of the Lawyers’ Bill by the Superior Court of Justice within the time permitted by law.
Who We Represent:
In certain circumstances, family members and other individuals may be entitled to compensation in relation to the Claim. We represent only the individuals that we have agreed to represent and who have signed this agreement.
Potential Conflicts:
If you have asked us to act for more than one person, this is a joint retainer. In that case, we will share information between everyone we represent. Any information received from any of you will be shared with the rest. In the case of a joint retainer, you have advised that there is no conflict of interest between you and that you have no objection to our firm representing all individuals signing this agreement. If a conflict does arise in the future which is not promptly resolved, we may, if permissible, continue to represent . We would then refer any conflicted individual to an independent lawyer. There are some conflicts where we would not be able to continue to act for anyone in relation to the Claim.
What You Can Expect from Us:
We will report to you on significant developments throughout. We will take appropriate steps to protect your interests and advance the Claim, which may include any of the following: (a) obtain and review relevant documentation; (b) conduct other investigations and/or research; (c) retain and instruct experts; (d) advise you if the Claim is likely viable; (e) make reasonable efforts to settle the case; (f) commence a lawsuit; (g) conduct examinations of any individual you sue; (h) prepare for and attend any court appearances, mediation, or pre-trial settlement conferences; and/or (i) prepare for and attend trial.
What We Expect from You:
We expect that you will reasonably cooperate and communicate with us. We can provide our best advice and guidance only when we have all relevant information. It is vital that you be candid and honest at all times.
What The Claim is Worth:
How much money you receive from the Claim is determined by a number of factors that are difficult to determine at the outset. These may include, the extent of the injury, the final prognosis, the economic consequences of the harm caused and/or legal restrictions on recovery. Once we have the necessary information, we will give you our opinion of the dollar value of the Claim. Our opinion may change as the Claim develops.
How Long Will It Take:
It can take up to several years for a Claim to settle or go to trial. The amount of time the Claim takes depends on factors such as: the age of the injured person; how soon they recover from their injuries; when we receive information about what the future holds for the injured person and court schedules.
How Much It Will Cost:
Legal costs are made up of two components: (1) legal fees for our efforts working on the Claim; and (2) disbursements (explained below).
Explanation of Fees, Disbursements and Costs:
You can choose to pay us for our work and disbursements on an ongoing basis, based on time spent at fixed hourly rates. Alternatively, you can pay a percentage of the amount recovered, but only if you are successful in recovering compensation. This is known as a contingency fee. You have chosen to retain us on a contingency fee basis. At some instances we ask our clients to pay disbursements on ongoing basis. If you do not receive money for the Claim, you do not pay us for legal fees.
A contingency basis means that we charge a percentage of the total recovery. The percentage that we charge is (*25% -33%, depending on particulars of the file) all amounts recovered on behalf of the client for injuries, damages, and losses, excluding disbursements (out-of-pocket expenses), excluding partial indemnity costs, if the matter settles before trial.
If the matter has to go to trial, then the contingency fee will increase to 40% plus disbursements, costs and HST. While it is our job, among other, to advise you whether your matter should in fact be taken to trial, the final decision on the issue is ultimately yours. We will also charge the amount paid by the defendant in lieu of indemnity costs and disbursements.
Unless otherwise ordered by a judge, in a successful resolution of the case the defendant will pay to the plaintiff a portion of the plaintiff’s legal bill (partial indemnity costs). This is not the full amount of the legal bill but simply a contribution to it.
So long as we act for the client and our retainer is not terminated, the Firm will carry the disbursements and will not require an upfront charge. Also please note that so long as we act for the client and the retainer is not terminated, our Firm will absorb the following client disbursements in our fee. These disbursements include costs of retaining experts, courier, taxi, photocopies, postage, long distance telephone calls, etc.
Charges for legal services vary. You can speak with other lawyers to compare rates and payment arrangements. A lawyer can never recover more in fees than you recover in damages or receive in a settlement.
Disbursements are the expenses we incur on your behalf. They are sometimes called legal expenses to distinguish them from legal fees. They may include: copying; postage; couriers; long distance; document binding; court and government filings; obtaining medical records; transcripts; court reporter services; investigators; expert consultants; demonstrative evidence; focus groups; witness attendance; travel; and research.
We are entitled to be reimbursed for any disbursements as a first charge on any money received for the Claim. This means that we have the legal right to be paid first from any money received for the Claim.
Sample calculation:
To help you understand how our percentage will be determined, we offer the following sample calculation. This sample calculation does not apply to your case; it is for illustration purposes only. Suppose that before trial, your case is settled for the following amounts (paid as lump sums):
· Damages plus interest: $90,000
· Costs from the defendant: $10,000
· Total: $100,000
In this example, our fee would be 30% of the total damages and interest awarded to our client (excluding costs and disbursements). Any amounts delivered by the defence counsel in lieu of costs and disbursements will be also deposited to the Trust account. The invoice delivered to our client would consist of the following:
Fee of X% x $100,000.00 = $X+ HST
Client Disbursements: $5,000.00 +HST (sample amount)
Amount received by us: $X+ HST + $5000 (sample client disb) = $X
Amount received by you: [the difference]
It is agreed that the lawyer firm shall not recover more in fees than the client recovers as damages or receives by way of settlement.
Disbursements:
In the event there is no recovery we do expect our clients to pay our disbursements.
What Happens on Termination of this Agreement:
At any time during the course of the representation by our Firm, you or the Firm may wish to terminate this contingency fee agreement and to enter into a new retainer agreement. Such termination by either the Law Firm or you, must be in writing. In the event that either us or the client terminates this contingency fee agreement, the terms of this contingency fee agreement no longer apply to the calculation of the fees to be charged by us for the services that they have performed.
Instead, we will charge you on an hourly rate for the work that we have done and will continue to do on your behalf based on the following hourly rates as of June 1, 2010:
Anna Tamir, called to Ontario Bar in 2008: $320.00 per hour + HST
Law clerks and/or paralegals: $100.00 per hour +HST
These hourly rates would apply to all of the work performed on the file from the inception of the file to the completion of the file either by way of settlement or by way of a judgment after trial. Should you decide to no longer retain the services of our Firm, while the matter is still ongoing, the termination of the services must be in writing and all disbursements (out-of-pocket expenses) paid by us on your behalf are immediately payable.
You will be billed by the Law Firm for all services performed up to and including the date of termination of the retainer in accordance with the hours or portions thereof performed by the various members of our Firm based on the hourly rates referred to above. Until such time as all bills, accounts, disbursements and expenses have been paid by you, our Firm retains a solicitor’s lien on your file and will only release your file to a new solicitor upon satisfactory arrangements being made for protection of and payment of the accounts of the Firm from any settlement or judgment after trial.
What Happens if There is No Recovery: You Don’t Pay Anything Towards our Fees:
It is agreed that if no money is recovered by settlement or judgment, no fees for the work we performed on your file shall be charged or billed to you. However, in the event that costs of the other parties are awarded against you, those costs are solely the responsibility of you, the client, and not the responsibility of our Firm.
We will also expect you to pay our disbursements. The latter would include money we pay to the third parties, i.e., for medical records and experts’ reports, court filing fees as well accounts for more mundane items such as photocopies, postage, long distance charges, mileage, etc. Of course, we are also required to charge HST on most of our disbursements.
We will discuss with you at different times during the litigation, whether there is any chance of the case being lost and no recovery obtained.
Payment of Settlement or Judgment Proceeds:
In executing the within contingency fee agreement you direct all the funds recovered by the way of settlement or Judgment be paid to Tamir Litigation Law Firm, in trust, and that all amounts for legal fees, costs, taxes and disbursements shall be paid to the Firm from the funds held in the Firm’s account.
You Decide:
We will give you our best advice and guidance; however, at all times you have the right to make the final choice regarding all major decisions, including settlement.
Other Things You Need to Know:
Structured Settlement: A structured settlement allows you to receive tax-free payments over a period of time instead of a lump sum. There may be advantages to having all or part of a settlement structured or a legal requirement to accept payments over a period of time. If periodic payments are part of any settlement or judgment, you will still be responsible for payment of our account at the time of settlement based on the total paid for the Claim including any amounts to fund periodic payments.
Persons Under a Legal Disability: Legal disability includes being under the age of 18, or mentally incapable. If any person covered by this agreement is under a legal disability, this agreement and any legal charges must be approved by a judge, either before the agreement is finalized or as part of the approval of any settlement. Any money payable to such persons will be paid into court unless a judge orders otherwise.
Your Risks:
We will act in your best interests and give you our best legal advice. However, no lawyer can guarantee a successful outcome. If a lawsuit is filed and the lawsuit or any significant pre-trial hearing is lost, the court may order you to pay a portion of the winning side’s legal fees and disbursements. You are responsible for paying any such costs. Insurance may be available to protect you from some or all of a costs award that you may have to pay. We have discussed the availability of this insurance.Understanding these risks, by signing this Agreement, you are expressly authorizing us to file a lawsuit on your behalf, if appropriate.
Confidentiality and Privacy:
You authorize the collection and use of personal information in order to represent you. From time to time some of your personal information may be disclosed to third parties in connection with the Claim. You consent to us disclosing personal information where we reasonably consider it necessary to advance the Claim.
Communications:
We will contact you at: [Client name, address, phone and email] You can contact us at: [Law firm name, address, phone and email].
Email:
By initialing this paragraph, you authorize the sending of confidential or private correspondence, documents and other information related to the Claim to you through the Internet (and, particularly, e-mail) in an un encrypted condition and without any guarantee of security or protection from interception by a third party.
CONFIRMATION:
This Contingency Fee Retainer Agreement contains the complete agreement between us regarding your relationship with us, and our legal fees and disbursements. It will not be changed unless we both agree and sign any changes. It will legally bind anyone, such as heirs or legal representatives, who replace either you or us but it does not legally bind other lawyers who might act for you if you decide to end our relationship. You confirm that you understand that all usual protections and controls on retainers between a lawyer and client, as defined by the Law Society of Upper Canada and the common law, apply to this agreement.
Execution of this Agreement:
In executing the within Contingency Fee Retainer Agreement, you, the client, acknowledge that you have chosen to execute the within document willingly and voluntarily without undue influence or coercion of any sort. You further confirm by executing the within Contingency Fee Agreement that you understand all of the terms and conditions contained herein and have had an opportunity to review same before signing.
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