The Continuing Legal Education Society of Nova Scotia. A Look at Contingency Fee Agreements

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1 The Continuing Legal Education Society of Nova Scotia A Look at Contingency Fee Agreements Scott C. Norton' McInnes Cooper Raymond F. Wagner Wagner & Associates Suite Hollis Street, Halifax, Nova Scotia, CANADA B3J 1 V Tel or Fax admin@cle.ns.ca

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3 MODEL CONTINGENCY FEE AGREEMENT (Approved by Bar Council February 18th, 2000) BETWEEN: (Full name of client and address) (hereinafter called the "Client") - and- (Lawyer), Barrister and Solicitor, (Firm) of,, Nova Scotia (hereinafter called the "Solicitor") Because the Client wishes to retain the Solicitor on the basis of this Contingency Fee Agreement ("Agreement") and the Solicitor agrees to act on the Client's behalf in respect of the matters and on the terms specified in this Agreement; The Client and Solicitor agree as follows: 1. In this Agreement: Q IWP6IEXECUTVlKR/STENEIAOIICONFEEAGnCFAAGT, WPD

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5 1. Solicitor includes the firm of the solicitor. 11. Compensation means the total amount of money and other compensation received by the Client or received by the Solicitor on behalf of the Client for the Client's claim, whether realized or received as a result of settlement, negotiation, mediation, arbitration, litigation or otherwise and shall include any amount awarded or otherwise designated as interest (and payments under "Section 'B'" of the Standard Automotive Insurance Policy, if the Solicitor was involved in recovering these payments from the Client's Insurer), but does not include costs awarded in the matter or disbursements that are also recovered. In a structured settlement, compensation means the capital sum structured plus any amount paid as a lump sum at the time of settlement, excluding costs or disbursements recovered. Ill. Disbursements mean the reasonable and proper out-of-pocket expenses incurred by the Solicitor in pursuing the Client's claim. (These include, but are not limited to, long distance and fax charges, postage, photocopying, court fees, discovery expenses, witness fees, expert fees, medical reports). Harmonized Sales Tax (HST) may be added to some disbursements in accordance with the governing legislation. 2. The Client retains the Solicitor and his/her firm to pursue a claim for compensation with Q:IWP6IEXECUTVIKRlSTENE\A01'lCONffEAGTlCFAAGT.WPD Page 2 of 9

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7 respect to (statement setting forth the nature of the claim). Services may be performed for the Client by other lawyers or employees of the firm as appropriate. 3. The contingency upon which the Solicitor's compensation is to be paid is the successful settlement or adjudication of the Client's claim: Subject to paragraph 8, if the Client's claim is not successfully settled or adjudicated, there will be no compensation paid to the Solicitor. Regardless of whether the claim is successfully settled or adjudicated, the Client shall be responsible for all Disbursements incurred by the Solicitor. Disbursements paid by the Solicitor on behalf of the Client may be invoiced to the Client after payment by the Solicitor and payment by the Client to the Solicitor shall be made by the Client within thirty (30) days of being invoiced. AND/OR (The Client shall deposit upon execution of this Agreement the sum of $, to be held in trust by the Solicitor and used only by the Solicitor for the payment of reasonable and proper Disbursements on behalf of the Client). 4. The Solicitor's legal fees are to be paid for services rendered by the Solicitor based on the Compensation received by the Client. If the compensation is dollars or less, the Client shall pay not more than percent (%) of the Compensation if the action is settled before discovery examinations commence. The Client shall pay not more than Q:I\\'P6\EXECUTVIKRISTENElAOJ<CONFEEAGTlCf MGT.WPD Page30f 9

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9 percent (%) of the Compensation if the action is settled after discovery examinations commence but before trial. The Client shall pay not more than of the Compensation if the action settles after commencement of trial. HST will be added to the solicitor's legal fees and shall be paid by the Client. 5. If the compensation exceeds dollars then the fee to be paid for services rendered by the Solicitor will be calculated by applying the percentages in paragraph 4 herein on the first dollars. Compensation and adding, depending on the stage of the proceedings as indicated in paragraph 4, not more than percent, (%) percent, (%) or percent ( %) of the amount the Compensation exceeds dollars. HST will be added to the solicitor's legal fees and shall be paid by the Client. 6. It is understood by the Client and the Solicitor that no offer of settlement shall be binding upon the Client unless specifically accepted by the Client. 7. In the event that the Solicitor obtains an offer of settlement for the Client which the Solicitor recommends in writing be accepted by the Client, and the Client rejects the Solicitor's recommendation and instructs the Solicitor to continue further settlement negotiations and/or proceed to trial resulting in Compensation of an amount less than the offer of settlement initially recommended by the Solicitor, the parties agree that the fee to be paid to the Solicitor Q:IWP6\EXECUTVlJ(RJSTENruQJ\CONfEEAGT\CFAAGT.WPD Page40f 9

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11 pursuant to either paragraphs (4) or (5) hereof shall be based on the amount of the settlement offer which the Solicitor recommended be accepted. 8. In the event that the Client terminates this retainer without reasonable cause or the Solicitor terminates this retainer for a reasonable cause, the Solicitor shall be entitled to reasonable legal fees for the services rendered to the date of such termination together with reimbursement of Disbursements made by the Solicitor to date. For the purposes of this paragraph "reasonable legal fees" will be calculated based upon the number of hours of work performed for the Client at the hourly rate of the Solicitor, which is $, per hour and the applicable hourly rates then charged by other members or employees of the Solicitor's firm. HST will be added to the solicitor's legal fees and shall be paid by the Client. 9. The Client is responsible to pay any costs awarded against the Client. 10. This Agreement does not cover any appeals, by the Client or by any party, in the proposed action. 11. This Agreement, at any time after its making until the expiry of six (6) months from the date on which the Solicitor has received any part of the fee payable hereunder, may be reviewed by a taxing officer at the Client's request, and at the instance of the taxing officer or the Client may be further reviewed by the Court, and either the taxing officer or Q,\WP6IEXECUTV<KIUSTENElAOJICONFEEAGnCFAAGT.WPD Page 5 of 9

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13 the Court may vary, modify or disallow the Agreement. 12. The Client acknowledges that the Solicitor has advised the Client that the content and form of this Agreement may be reviewed by another lawyer on the Client's behalf. The Client further acknowledges that the provisions of this Contingency Fee Agreement have been explained by the Solicitor and the Client understands the terms of this Agreement. 13. This Agreement is binding on the heirs, executors, administrators, successors, assigns and guarantors of each of the parties. 14. This agreement is governed by the laws of Nova Scotia and the provisions of Civil Procedure Rules , which are attached as Appendix "An. It will be filed by the Solicitor with the Prothonotary at the Supreme Court within ten (10) days of its execution. DATED this day of,a.d. SIGNED, SEALED AND DELIVERED) in the presence of ) ) ) ) ) ) Witness ) ) ), at, Nova Scotia. Client Q IWP6\EXECUTVIIUlISTENE\AOIlCONFEEAGTlCFAAGT.WPD Page 6 of 9

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15 ) ) ) Solicitor I acknowledge receipt of an original of this Contingency Fee Agreement on the day of Client Q-IWP6\ XECUTV\KRISTENE\AOJ\CONFEEAGTlCFAAGT WPD Page 7 of 9

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17 ApPENDIX "A" R Nov A SCOTIA CIVIL PROCEDURE RULES Contingent fee agreement A solicitor may, with respect to an intended or existing proceeding, make an agreement with a client for the amount and manner of payment of the whole or any part of past or future services, fees, charges or disbursements rendered and incurred, or to be rendered and incurred, by him with respect to the proceeding, and the form of payment may consist of a gross sum, commission, percentage or otherwise in an amount which may be the same, greater or less than that which the solicitor normally receives as remuneration, subject however to taxation under Rule 63. Agreement must be in writing (1) Where under an agreement referred to in rule 63.17, a solicitor's compensation is dependent or contingent, in whole or in part, upon the successful disposition of the subject matter, then the agreement shall be in writing and signed by the client or his authorized agent. (2) The agreement shall contain, (a) the name and address of each client. (b) the name and address of the solicitor, (c) a statement of the nature of the claim, (d) a statement of the contingency upon which the compensation is to be paid, and whether and to what extent the client is to be liable to pay compensation otherwise than from amounts collected by the solicitor, (e) a statement that reasonable contingent compensation is to be paid for the services, and the maximum amount or rate which the compensation is not to exceed, after deduction of all reason able and proper disbursements, and (f) a statement to the following effect: "This agreement may be reviewed by a taxing officer at the client's request, and may either at the instance of the taxing officer or the client be further reviewed by the court, and either the taxing officer or the court may vary, modify or disallow the agreement." Agreement must be filed (1) Within ten (10) days after it is signed, a copy of an agreement referred to in rule shall be filed with the prothonotary of the county where the solicitor practices, and the prothonotary shall file the agreement separately from any proceeding and, unless the court otherwise orders, the agreement is not available for inspection by, or its contents shall not be communicated to any person, other than the client, solicitor, or taxing officer engaged in the taxation. (2) Where an agreement as mentioned in rule does not comply with rule 63.18, or is not properly filed as provided in paragraph (1), the solicitor is, upon the successful disposition of the subject matter, entitled only to the compensation as Q \WP6\EXECUTVIKRISTENEIAOf\CONFEEAGT\Cf MGT. WPD Page 8 of 9

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19 would have been payable in the absence of any contingency arrangement and without regard to the contingency. Q\WP6IEXECUTV\KRISTEN IAOJlCONFEEAGT\CfAAGT.WPD Page90f 9

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