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Imagine an unscrupulous client has unjustifiably complained to the Law Society about your fee account. Imagine you know your fees are fair and reasonable, modest even. And imagine the client’s only motivation is to pressure you to reduce the account. Many of us have probably considered cutting fees to avoid the hassle of an assessment or a complaint.
Nevertheless, it’s unethical to settle a fee dispute in exchange for the client’s promise not to complain or to withdraw a Law Society complaint. Even if the client obviously made the complaint or threat as a tactical bargaining chip to drive the fee reduction. Lawyers can trust Law Society complaints officers to resolve unmerited fee complaints, which are always referred to fee review at the court house.
The Code of Conduct prohibits a lawyer from predicating a settlement offer conditionally on the client dropping a complaint or not proceeding with a threatened complaint. If it’s discovered, the Law Society can initiate its own further complaint. So, it is ironic that a complaint totally without merit can lead a lawyer into a trap resulting in a complaint of serious misconduct.
Arguably, the rule allows a lawyer to accept the unprovoked offer of an unrepresented client to withdraw the complaint in exchange for a fee cut. Little is gained by linking settlement of the fee dispute to the withdrawal of the complaint, since Law Society staff are always alert to merely strategic fee complaints and can be trusted to deal with them appropriately. It may be better to cut the fee and advise the client to do whatever they want about the complaint.
In many cases, complaints about fees are combined with complaints about the competence, reliability, honesty or other conduct of the lawyer. It’s tempting for the lawyer to see nothing but the fee issue in this situation. The Law Society, however, is bound to investigate the non-fee aspects. An attempt to negotiate away the complaint about fees can lead to unintended consequences when the act of negotiating itself triggers a complaint.
Why is it improper to tie settlement of a fee issue to withholding or dropping a complaint? Lawyers are, perhaps, more alert to the dark side of threatening complaints. Imagine a lawyer saying, “I represent your former client. If you don’t reduce your fee account, I’ll report you to the Law Society!” Contrast that with saying, “If you cut your fees, your former client will drop the complaint.”
The first is extortionate and made for a collateral purpose. According to Code of Conduct if there is a valid complaint the threatening lawyer has a mandatory duty to report no matter what. The second is still wrong but for a different reason – it interferes with or obstructs the course of administrative justice. The fee dispute might mask misconduct of substance that needs to be investigated and resolved before the complaint goes away.
The Law Society’s Practice Advisors generally recommend letting the complaint run its course instead of making a deal. The Law Society complaints officers are experienced former practitioners with noses finely tuned to sniffing out unmeritorious complaints. Such complaints will get promptly resolved or referred for fee review and ultimately dismissed. Predicating settlement on withdrawing a complaint frustrates the process and invites another layer of grief.
Written by: Ross McLeod, Practice Advisor