J. Responsible Billing Practices
Rule 5-57 requires that you must only charge or accept a fee, disbursement, or expense, including interest, that is fair and reasonable and that has been disclosed to the client. As such, when billing for services that you have provided or for disbursements that you have incurred, there are responsible practices that should be followed.
First, you cannot prepare and provide a statement of account to a client without first having provided significant legal services unless the statement of account is for disbursements only. See Practice Direction – 89-03 – Appropriate Billing Practices.
Secondly, if money in the trust account is going to be used to pay the statement of account, the client must be provided with a copy of the Statement of Account before or at the time the trust cheque to the member is written [Rule 5-44(1)(d)].
Typically when a retainer is of short duration and the matter is concluded quickly, only one statement of account will be rendered at the conclusion of the matter. An example of this is a criminal matter where you are retained solely to make a bail application.
If the matter is lengthy, you may choose to send a statement of account before the matter is completed and in some situations you may choose to send regular interim statements of account – such as with a protracted piece of civil litigation.
CAUTION
For real estate transactions in particular, do not fall into one of the two common errors that have been observed. First, the estimate of funds required that is prepared at the beginning of the transaction is not a substitute for preparing a statement of account. No fees or disbursements can be paid to your general bank account without first issuing a statement of account.
Secondly, do not bill too early. Legal services are not considered to be concluded until a substantial portion of the money has been disbursed. In most purchase transactions, this is after the transfer has cleared land titles and after the mortgage funds are requested and ultimately paid to the vendor’s lawyer. Where you are acting for the vendor, legal services are usually considered to be concluded after the vendor’s encumbrances have been paid out.
CAUTION
There are a number of specific King’s Bench rules regarding the fees that can be charged in estate matters, the consent requirements for the various parties involved in an estate, and the information that should be provided on any statement of account rendered. If you are acting on an estate matter, you should be thoroughly familiar with these rules.
