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Contingency caution

Editorial Obiter

Controversy over contingency fees isn’t new.

However, a ruling this week in the family law realm has important takeaways. In Jackson v. Stephen Durbin and Associates, Ontario Superior Court Justice Thomas Lofchik ordered a Toronto law firm to refund a $72,000 premium it charged to a family litigant for the favourable result achieved at trial in a custody battle.

Stephen Durbin — the principal of the firm involved — is considering an appeal because he doesn’t think this particular type of premium charge should be considered a contingency fee.

What I found enticing were Durbin’s arguments in support of allowing contingency fees in family law, particularly when it comes to cases where women are exiting long marriages and have little financial resources to wage legal battle against their former spouses.

“They need a lawyer, but they can’t afford to retain counsel because he’s got all the money,” Durbin says.

It’s a fascinating angle on promoting access to justice.

Here’s the rub, however. The family law bar already knows it is facing a massive access-to-justice issue.

While allowing contingency fees in family law might be a short-term fix, introducing ‘bonus’ payments to lawyers for successful results carries dangerous precedents. Aren’t ethical lawyers always going to do the best they can to represent their clients? Why should such a premium be necessary?

The means to hire a lawyer (financing) — and the ends achieved (a possible bonus) — are two different things. Either way, encouraging contingency fees for family law cases should be approached with caution.

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