Legislation needed to regulate legal practitioners – Court
Local Vibes
October 20, 2017
Legislation needed to regulate legal practitioners – Court

The need for legislation to regulate legal practitioners and for them to engage in good client care practices has been emphasized in a case involving a local lawyer.

In a judgement delivered on July 13, 2015, acting Master Fidela Corbin Lincoln dismissed a claim (SVGHCV2014/0040) that had been filed by attorney Israel Bruce against two individuals for recovery of the sum of US$10,000 (EC$26,700).

Bruce claimed the money as damages for a breach of an oral contingency fee agreement allegedly made with the defendants Wilma Black-Williams and Clifford Williams for the provision of legal services.

The Master, in her judgement said Bruce is “an attorney-at-law who is presumed to be aware of the law regarding fee agreements with clients,” and he ought to have been aware of the “well established and uncomplicated principle of law” pertaining to oral contingency fee agreements.

According to the judgement, Clifford Williams fell ill while employed with Royal Caribbean Cruise Lines. He engaged the services of Lipcon Marguiles, Alsina and Winkleman P.A, (Lipcon), a United States law firm to represent him in his claim against his former employer. The matter went to arbitration and Williams was awarded a substantial sum.

The court documents say that Lipcon provided Williams with a “Closing Statement” showing the net sum payable to him after deduction of attorney’s fees, costs and other expenses.

Wilma Black-Williams, Clifford’s wife, said in court documents that she had several queries about the “Closing Statement” and therefore began to engage in discussions with Lipcon about the statement.

Bruce alleged that Black-Williams attended his chambers and entered into an oral contingency fee agreement for him to provide legal representation to her and her husband in relation to negotiations with Lipcon. He asserted that Black-Williams agreed that she and her husband would pay him 20 per cent of “all monies he secured in excess of the net award” which Williams was informed would be paid to him.

Black-Williams and her husband however “strenuously dispute almost every aspect” of Bruce’s version of the events.

Black-Williams, who is a police officer, said Bruce saw her at the Magistrate’s Court and enquired about her husband’s case against his former employer. She said she does not know how Bruce became aware of the case, but she discussed the matter with him, told him about her dissatisfaction with the closing statement provided by Lipcon and informed him of her intention to write them a letter.

According to court documents, Bruce offered to let her use his letterhead for the letter, “so that the letter would appear more professional.”

“She therefore returned to the police station, wrote down the details to be included in the letter on a sheet of paper and took the paper to the claimant’s office.”

Black-Williams said after this, she made several attempts to contact Bruce to follow up on the letter, but each time she contacted him to get a copy of the letter, he could not provide it or he avoided her.

She asserts that she never entered into an oral contingency fee agreement with Bruce.

According to the judgement, following unsuccessful efforts to settle the matter at mediation, the court, having considered the issues in dispute, ordered that the matter be dealt with summarily and directed the parties to file affidavits and submissions.

In her analysis, the Master said Bruce’s claim does not contain any allegation that Clifford Williams entered into a contract with him or that Black-Williams was acting as the servant or agent of her husband when she purportedly entered into the oral contract with Bruce. The Master therefore questioned the basis upon which Williams became a party to the contract which Bruce alleged had been made with Black-Williams.

She therefore found that Bruce’s claim against Williams for breach of contract had no prospect of succeeding.

The Master said there were substantial disputes in the evidence before the court including, but not limited to, whether Bruce’s services were engaged at all.

She however found that even more important than addressing and resolving the conflicting evidence was the need to decide if the agreement was enforceable, assuming that Bruce had entered into an oral contingency fee agreement with Black-Williams.

“In the context of the legal profession, contingency or conditional fee agreements are agreements where payment to an attorney-at-law depends or is contingent upon there being some recovery or award in the case…

“A review of the case law shows that historically, the common law has never sanctioned an agreement by which a lawyer is remunerated on the basis of a contingency fee…,” Master Fidela Corbin Lincoln said.

The Master therefore concluded that even if Bruce had entered into an oral contingency fee agreement with Black-Williams as alleged, such an agreement was unenforceable at common law.

“Since the oral contingency agreement forms the basis of the claimant’s claim and the agreement is unenforceable, I find that the claim has no prospect of succeeding,” the Master stated in the judgement.

During the hearing, Roderick Jones, counsel for Bruce submitted that his client carried out work for Black-Williams and her husband, and therefore should be compensated. Jones however, according to the judgement, did not cite any authorities in support of that submission.

The Master however noted that Bruce did not plead for reasonable remuneration for services rendered as an alternative to his contractual claim and secondly, even if his pleadings did include a claim for reasonable remuneration, for work done, she was not of the view that such a claim had any real prospect of succeeding.

In conclusion, the Master entered judgement for the defendants.

“The effect of this decision is that the proceedings have been brought to an end. Generally the successful party is entitled to costs calculated on a prescribed costs basis. However, in this case, I depart from the general method of quantifying costs and order that the costs of the proceedings are to be assessed pursuant to CPR 65 if not agreed within 21 days.

The Master said in reaching her decision to depart from the general rule pertaining to costs, she took into consideration all the circumstances including the fact that Bruce is an attorney-at-law who is presumed to be aware of the law regarding fee arrangements with clients and the matter is not an issue which ought to have been pursued in the manner it was pursued by Bruce.

“…or, if pursued due to ignorance of the law or for some other reason, it ought to have been resolved earlier.”

“The defendants have been put to the cost of defending a claim which had no reasonable prospect of succeeding,” the Master said.

She agreed with counsel for the defendants Sten Sargeant, that the case brings into sharp focus the need for legislation regulating legal practitioners in this jurisdiction.

“I agree, but would add that even in the absence of legislation, engaging in good client care practices – such as ensuring that a written agreement which complies with the law is executed – would alleviate the problems which arise in disputes regarding the terms of legal fee agreements,” the Master said.