A grieving daughter was blindsided when the lawyer hired to settle her father's estate charged thousands of dollars for time he spent responding to a complaint the family filed against him.
But lawyers are not allowed to bill for hours spent responding to complaints, according to the Law Society of Ontario. A legal ethics expert says responding to complaints is a cost of doing business and a lawyer's professional obligation, and clients shouldn't be "punished" for asking the law society to investigate a potential problem.
The lawyer, Jim McIlhargey from the Goderich, Ont., firm Troyan & Fincher, told Go Public the complaint was "unfounded, devoid of merit, and spurious" and said he's entitled to compensation for his time.
Brittany Baechler and her family hired McIlhargey to settle her father's estate after he died of cancer in 2013.
The family wasn't happy with how the lawyer was handling things, so they submitted a complaint with the Law Society of Ontario.
"We ended up filing a complaint just because it sort of seemed like things weren't maybe handled in the best way. There were just a lot of issues … unnecessary delays and suggesting altering beneficiary designations," Baechler said in an interview from Goderich, a town located about 200 kilometres west of Toronto.
After volunteer firefighter Dale Baechler, second from left, died from cancer in 2013, his family hired a lawyer to help them deal with the estate. (Brittany Baechler)
"We just were unsure if things were being handled properly so we thought it might be a good idea to have that assessed and get an unbiased opinion of whether our lawyer was behaving appropriately or not."
The Law Society of Ontario found no wrongdoing on the lawyer's part, and closed the file.
The Law Society of Ontario concluded its investigation of the family's complaint in March 2015. (Evan Mitsui/CBC)
Baechler said the family was willing to accept that and move on. But when the time came to close the estate, the lawyer took an additional $2,340 from the estate for his time spent responding to the law society complaint.
"I had thought, what would have happened if we had closed the estate before that? Or if there wasn't money there, would he have sent us a bill in the mail asking for that money? It was just that he had that money in his possession and took the money," Baechler said.
Billing was 'appropriate': Lawyer
The lawyer billed 10.40 hours at $225 per hour for the time he spent responding to the complaint.
When the family asked him to refund the money, he initially refused, but offered a partial refund after some back and forth on email.
In an email to Go Public, McIlhargey said he "offered to refund part of the amount billed as a gesture of goodwill and in an effort to avoid the nuisance and trouble of having to respond to another unwarranted complaint."
"The response to the complaint was a necessary part of my handling of the file," he said, and, "the time spent doing so was an appropriate charge to the client in the circumstances."
Mcllhargey defended his decision to tell his client about the additional charge after he had already withdrawn the money from the estate.
"The time spent responding to the complaint occurred over a short period of time, in the absence of the client (as most legal work does) and, necessarily, without consulting the client or seeking his input on the response."
He also told CBC News the Law Society of Ontario "has no such rule" against billing for time spent on a complaint and "if there were such a rule I would most certainly comply with it."
The Law Society of Ontario, formerly the Law Society of Upper Canada, says it's against integrity rules for lawyers to bill for time spent responding to law society complaints. (Evan Mitsui/CBC)
Alastair Harris-Cartwright, spokesperson at the Law Society of Ontario, told CBC News there is no rule that specifically says lawyers can't bill for those hours, "but doing so would be against the rules pertaining to integrity. We also have a specific rule on fees and disbursements."
Clients can't be 'punished'
Legal ethics expert Alice Woolley said billing a client for time spent replying to a complaint is not appropriate, pointing to the Federation of Law Societies of Canada's professional conduct rules regarding fees and disbursements. The federation is the national co-ordinating body of Canada's 14 law societies, and Woolley said all provinces have variations of the same rules.
Legal ethicist Alice Woolley, right, says the rules are clear that it's not appropriate to bill a client for time spent responding to a complaint. Left: Go Public's Rosa Marchitelli. (Colin Hall/CBC)
Fees must be "fair and reasonable" said Woolley, who is the president of the non-profit Canadian Association for Legal Ethics and a professor of law at the University of Calgary.
"I don't see anywhere in there where it would be permissible to bill someone for responding to a complaint. So I think the fees rules also govern that. But it would [also] be a matter of integrity and it would be a matter of the lawyer-client trust relationship as well. It's all of those things."
Woolley said clients often don't know whether a lawyer has done something wrong when they go to a law society, so even when a lawyer is "completely right," she believes clients shouldn't be "punished for simply bringing a complaint."
If clients are faced with this type of charge, she said, they shouldn't pay it.
"Responding to a law society complaint is a matter between the lawyer and the regulator, and even if the client initiated the complaint, it's still not a service rendered for the client and you cannot properly bill them for it," Woolley said.
"As a lawyer … your licence to practise is a privilege. And one of the costs of that privilege is being subject to the law society, which means dealing with complaints from time to time.… No one likes being the subject of a complaint, but it's part of being a lawyer. It's part of the cost of doing business."
Woolley advises people dealing with billing issues to skip the law society because law societies don't usually deal with billing disputes. Instead, clients who want their legal fees reviewed should go to assessment offices located in courthouses across the country. A court official will review the bill and determine whether it's appropriate.
Those reviews must be done relatively quickly. Depending on the province, clients have between one month and one year to question a lawyer's bill. But Newfoundland and Labrador is an outlier. There, the court does not set a time limit for applying to have a lawyer's bill reviewed.
The Baechler family missed Ontario's 30-day deadline after first asking the law society for help with reimbursement, not realizing — and not being told — it didn't deal with billing problems.
Delays there left the family with little recourse.
Lawyer McIlhargey also didn't get a chance to formally make his case for why he's keeping the money, telling CBC News his critics aren't aware of the "whole story, the context, or the interests of the parties involved" adding, "a valid counterview is that a person should not be free to make unfounded complaints against a professional with impunity."
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