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National Conference Builds Momentum for PBLA
By Susan V.R. Billington, Policy and Program Counsel

The pro bono culture in Alberta's legal profession was the topic of a presentation by President-elect Jim Peacock, QC at the first national pro bono conference: Building Bridges to Justice held in Toronto on November 16-17, 2006 and hosted by Pro Bono Law Ontario and Pro Bono Law of BC.

"Conference delegates were very interested to hear about the number and diversity of pro bono programs and initiatives in Alberta," says Mr. Peacock.

Rod Jerke, QC, Bencher and president of the newly formed Pro Bono Law Alberta (PBLA) observed: "This conference provides momentum and many ideas for networking, coordinating and building on the significant pro bono culture in Alberta. By attending this national conference, not only did we highlight the pro bono contributions of Alberta lawyers, we have become part of a national network for the enhancement of access to justice."

The conference brought together over 180 participants from every province and territory across Canada and guests from the United States. Conference sessions included: law firm pro bono policy development, court-based pro bono models, law firm pro bono projects, opportunities for government lawyers in pro bono delivery, global pro bono opportunities, and pro bono and legal aid.

Contingency Fee Issues

by Nancy Carruthers and Ross McLeod, LSA Practice Advisors

The Calculation of Fees

Recent Law Society of Alberta audits disclosed a wide range of methods for calculating contingency fees, many of which result in overpayments to lawyers. Where the auditors find such overpayments, the law firms are often asked to make refunds to their clients. The most common problems are:

Lawyers occasionally calculate their fees on the basis of disbursements which have been incurred and recovered on behalf of the client, even though recovery of these funds does not amount to actual recovery which might find its way to the client.
Sometimes fees are charged on retainer deposits and even on advances made to clients. For the most part, these errors are made accidentally, when lawyers have failed to correctly identify the source of funds deposited into their trust accounts.
In other cases, lawyers have failed to amend their contingency fee agreements to comply with the 2000 amendments to the Rules of Court, which prohibit lawyers from taking the entirety of the recoverable taxable costs as part of their fee. In such cases, the auditors will require the lawyers to reimburse their clients for the overpayments.

Ross McLeod, QC,
LSA Practice Advisor

It is a simple matter to correct the problem arising in the third example ý review the form of agreement your firm is using to ensure it complies with the current rules. To avoid the error in the second example, get in the habit of providing the client with a Summary of Monies Received and

Nancy Carruthers,
LSA Practice Advisor

Disbursed along with the Invoice. The summary will allow your firm to identify those amounts on which the fee should properly be calculated. (A sample form of the summary can be found in an expanded version of this article on the LSA website at www.lawsocietyalberta.com on the Practice Advisors' web page.)

In most cases, contingency fee agreements do not contemplate fees on the recovery of disbursements and it is a questionable practice for lawyers to charge fees on that basis. Of course, any contingency fee agreement is subject to taxation and much will depend on the contents of the agreement. It might be possible to collect fees, calculated as a percentage of recovered disbursements, if it is made very clear in the fee agreement and was adequately explained to the client. The result might also depend, for example, on whether the lawyer is responsible for funding the disbursements, with no right of recovery from the client if the lawsuit fails. The Taxation Officers will, however, carefully scrutinize the lawyers' accounts in these cases.

Claims for Hourly Fees on Termination of a Retainer
It is not appropriate for lawyers to make claims for hourly fees when the lawyer and client end their relationship before the matter is settled. On occasion, the former lawyer seeks to impose a trust condition on the client's new lawyer, requiring payment of the account before transferring the file. Solicitors' liens can only be maintained with regard to disbursements, where the client has agreed to be responsible for them. The former lawyer cannot withhold the file or assert a lien for unpaid fees, and can only require the new lawyer to provide an undertaking to hold the resulting fees in trust, with the intention that they will (continued on page 7)