The Professional Retainer

No matter that one has quit his law practice for retirement, the scope of the initial retainer may continue to haunt the lawyer for years afterwards.  I know this from personal experience because more than once I have been “consulted” by a former client regarding work I performed many years ago. Fortunately for me the enquiries have to date been restricted to information gathering and general reminiscence as opposed to allegations of professional negligence.   Nonetheless it is common knowledge that no practitioner is above error and the perpetual possibility of discovery is one which lingers long after one has doffed one’s gown.

The Lawyers’ Professional Indemnity Company (which insures all Ontario lawyers for a mandatory minimum amount and also insures many others for “excess” errors and omissions insurance) provides a standard “run-off” amount of coverage for no charge after the lawyer has retired.  It is of course possible to enlarge the coverage amount for a price.  In spite of this safety net no lawyer likes to think that he or she has failed a client.  It is however imperative that the retired lawyer recall that he or she is no longer capable of practicing law (since there is no mandatory minimum insurance other than the run-off insurance which only applies to matters arising after retirement). As such the retired lawyer must be careful not to opine or to have the appearance of opining on a matter of consideration which may have recently arisen.  This is so even were the lawyer particularly anxious to assist the client (or should I say, the former client) in the resolution of their trouble.  The danger is two-fold:  1.) of primary importance, the advice given may be inadequate or incomplete; and, 2.) of secondary importance, the lawyer’s seeming desire to assist the client may be an indirect and even unconscious attempt to deflect liability which might lawfully exist.  While there is certainly shame in having short-changed a client initially, it is an even greater embarrassment and disgrace to thwart what might be the client’s lawful remedies to perfect the abuse.  In plain terms, car accidents are never a picnic but at least there might be insurance and damages which may be collected as compensation.

When it comes to pointing fingers no one can pretend to relish being on the receiving end.  It is clearly uncomfortable for any professional to make an admission of even the chance of error; but the failure to put the interests of the client first does nothing but compound the anxiety.  This is by any standard a tall order and not one to which most would leap.  Nonetheless it is on the balance the lesser of two evils.  Besides one must remind oneself that professionals have errors and omissions insurance for a reason.

As favourably disposed as any well-intentioned lawyer may be to assist his former client, one must further recall that in law there is not a right for every wrong.  It has long ago be established that a claim to be successful must be “actionable”; that is, it must have a foundation in law, generally either case law (precedent) or statutory (legislated law).  This I can assure you is a point upon which insurance defence Counsel are bound to adhere tenaciously notwithstanding any sympathies of their lawyer-client to the contrary. There may be special situations which admit to the implementation of what historically were called the Rules of Equity, namely the general principles of “justice” which are considered to trump even the letter of the law.  This latter vernacular is particularly prevalent in the arena of so-called “natural” law which sustains such principles as freedom of speech, the right to be heard, procedural fairness and so on but it normally constitutes an esoteric thesis upon which most claims are not upheld.

Quite apart from the bona fides of the client’s claim, the duration of the professional retainer is itself subject to some limitation based on the doctrine of laches (delay); namely, the failure to prosecute a claim within a reasonable or stipulated time.  Fortunately for the claimant a body of jurisprudence and case law has grown up surrounding this particular issue and it is generally conceded that the limitation period (whatever it may be) only begins to run from the time the claim was either discovered or discoverable.  This for example affords adequate protection of the title to one’s property if it is not sold for a very long time after it is purchased (and presumably the offending error were not discovered until then).  Where however the error becomes apparent through some other means and nothing is done to prosecute the claim for compensation, the clock may work against the claimant if he dawdles.