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Code of Professional Conduct
CHAPTER XI
FEES
RULE
The lawyer shall not
(a) stipulate for, charge or accept any fee that is not fully disclosed, fair and reasonable;
(b) appropriate any funds of the client held in trust or otherwise under the lawyer's control for or on account
of fees without the express authority of the client, save as permitted by the rules of the governing body.1
Commentary
Factors to be Considered
1. A fair and reasonable fee will depend on and reflect such factors as:
(a) the time and effort required and spent;
(b) the difficulty and importance of the matter;
(c) whether special skill or service has been required and provided;
(d) the customary charges of other lawyers of equal standing in the locality in like matters and circumstances;
(e) in civil cases the amount involved, or the value of the subject matter;
(f) in criminal cases the exposure and risk to the client;
(g) the results obtained;
(h) tariffs or scales authorized by local law;
(i) such special circumstances as loss of other employment, urgency and uncertainty of reward;
(j) any relevant agreement between the lawyer and the client.
A fee will not be fair and reasonable and may subject the lawyer to disciplinary proceedings
if it is one that cannot be justified in the light of all pertinent circumstances, including the factors mentioned,
or is so disproportionate to the services rendered as to introduce the element of fraud or dishonesty, or undue
profit.2
2. It is in keeping with the best traditions of the legal profession to reduce or waive a fee in cases of hardship
or poverty, or where the client or prospective client would otherwise effectively be deprived of legal advice or
representation.3
Avoidance of Controversy
3. Breaches of this Rule and misunderstandings about fees and financial matters bring the legal profession into
disrepute and reflect adversely upon the administration of justice. The lawyer should try to avoid controversy
with the client over fees and should be ready to explain the basis for charges, especially if the client is unsophisticated
or uninformed about the proper basis and measurements of fees. The lawyer should give the client an early and fair
estimate of fees and disbursements, pointing out any uncertainties involved, so that the client may be able to
make an informed decision. When something unusual or unforeseen occurs that may substantially affect the amount
of the fee, the lawyer should forestall misunderstandings or disputes by explaining this to the client.4
Interest on Overdue Accounts
4. Save where permitted by law or local practice, the lawyer should not charge interest on an overdue account except
by prior agreement with the client and then only at a reasonable rate.5
Apportionment and Division of Fees
5. The lawyer who acts for two or more clients in the same matter is under a duty to apportion the fees and disbursements
equitably among them in the absence of agreement otherwise.
6. A fee will not be a fair one within the meaning of the Rule if it is divided with another lawyer who is not
a partner or associate unless (a) the client consents, either expressly or impliedly, to the employment of the
other lawyer and (b) the fee is divided in proportion to the work done and responsibility assumed.6
Hidden Fees
7. The fiduciary relationship that exists between lawyer and client requires full disclosure in all financial matters
between them and prohibits the lawyer from accepting any hidden fees. No fee, reward, costs, commission, interest,
rebate, agency or forwarding allowance or other compensation whatsoever related to the professional employment
may be taken by the lawyer from anyone other than the client without full disclosure to and consent of the client.
Where the lawyer's fees are being paid by someone other than the client, such as a legal aid agency, a borrower,
or a personal representative, the consent of such other person will be required. So far as disbursements are concerned,
only bona fide and specified payments to others may be included. If the lawyer is financially interested
in the person to whom the disbursements are made, such as an investigating, brokerage or copying agency, the lawyer
shall expressly disclose this fact to the client.7
Sharing Fees with Non-lawyers
8. Any arrangement whereby the lawyer directly or indirectly shares, splits or divides fees with notaries public,
law students, clerks or other non-lawyers who bring or refer business to the lawyer's office is improper and constitutes
professional misconduct. It is also improper for the lawyer to give any financial or other reward to such persons
for referring business.8
9. The lawyer shall not enter into a lease or other arrangement whereby a landlord or other person directly or
indirectly shares in the fees or revenues generated by the law practice.9
Contingent Fees
10. Except where prohibited by the laws of the jurisdiction in which the lawyer practises, it is not improper for
the lawyer to enter into an arrangement with the client for a contingent fee, provided such fee is fair and reasonable
and the lawyer adheres to any rules of court or local practice relating to such an arrangement.10
NOTES
1. Cf. CBA-COD 10; CBA 3(8), (9); Que. 3.08.01, .02; 81; B.C. B-5; Alta. 32; N.B. E-1; IBA A-8;
ABA DR 2-106.
2. The proper "factors of fairness" have been many times declared by the courts. For a compilation and
discussion, see, e.g., Re Solicitors (1972), 3 O.R. 433 (Ont. H.C.) per McBridge, M. at 436-37: "...
I have not set down these factors in any sense in order of importance. In my view most of these eight factors should
be considered in every case ... time expended is not, in most cases, the overriding factor, nor even the most important.
On the other hand, there are comparatively few cases where the time factor can be completely ignored."
As to the utility of consensual local "minimum fees tariffs", see Re Solicitors (1970), 1 O.R.
407 (Ont. H.C.).
"Certainty is a desirable feature of any system of law. But there are certain types of conduct ... which cannot
be satisfactorily regulated by specific statutory enactment, but are better left to the practice of juries and
other tribunals of fact. They depend finally ... on proof of the attainment of some degree [followed by a page
of illustrations, most related to 'reasonable-ness'].", per Lord Simon, L.C. in Knuller Ltd. v. D.P.P.
(1972), 2 All E.R. 898 at 929-30 (H.L.).
3. See TWA v. The King (1948), 4 D.L.R. 833 at 837 (Ont. H.C.); and cf. CBA 3(9).
4. Cf. CBA 3(10). "The question of compensation for solicitors has long been the anxious concern of the Court,
both in the interests of clients and their solicitors .... [M]uch legislative and judicial activity was directed
to the reform and settlement of procedures for fair and reasonable fees.... [In Ontario] there is a procedure for
determining in every case where it is invoked, that a solicitor's charges are fair and reasonable.", per Wright,
J. in Re Solicitor (1972), 1 O.R. 694 at 697 (Ont. H.C.).
"The object of a bill of costs is to 'secure a mode by which the items of which the total bill is made up
should be clearly and distinctly shown, so as to give the client an opportunity of exercising his judgment as to
whether the bill was reasonable or not'.", per Riddell, J.A. in Millar v. The King (1922), 67 D.L.R.
119 at 120 (Ont. App. Div.).
In certain provinces local law requires that clients be expressly advised of their right to have any agreement
agreeing to fees in advance judicially reviewed: see N.B. E-2; Law Society Act R.S.M. 1970, c. L-100, s.
49; Alberta Supreme Court Rule 616(1)(f).
5. Cf. Solicitors Act, R.S.O. 1980, c. 478, s. 35, re-enacted by 1983, c. 21, s. 1, amended 1984, c. 11,
s. 214(5), permitting interest at the rate established for pre-judgement interest from the expiration of one month
after delivery of the bill. The rate of interest "shall be shown on the bill delivered", ibid.,
s. 35(4).
6. Cf. B.C. B-5(b) and Alta. 35 (proscribing "agency fees" in consideration of the "mere introduction"
of business). Cf. also ABA DR 2-107(a). The intention is not to interfere with routine agency arrangements for
such services as searches or document registration in county towns or provincial capitals, etc.
7. See particularly the Rule and Commentary respecting conflict of interest between lawyer and client for the reasons
underlying these proscriptions, and Orkin at pp. 154-55.
The lawyer may not profit from interest on clients' trust monies in the lawyer's hands. In some provinces payment
of such interest to Law Foundations and legal aid plans is now authorized.
The general principles and fiduciary duties of the law of agency apply to the lawyer-client relationship, particularly
with respect to fidelity, the obligation to account, and against "secret profits". See Fridman, The
Law of Agency (3rd ed. 1971) at pp. 30-31, 132-39, and other standard authorities on agency. It would, for
example, be improper for a lawyer without express disclosure and consent to take any commission, procuration or
other fee or reward from a lender, a stock broker, a real estate or insurance agent, a trust company, a bailiff
or a collection agent in consideration of the introduction by the lawyer of business from which professional work
resulted to the lawyer in which the lawyer acted for or the lawyer's fees were paid by the person whose business
was so introduced.
As to disbursements: "In any case where there is liability upon the part of the solicitor and there is no
dishonesty, the mere fact that the amount has not been paid ought not to prevent recovery. If there should be shown
any dishonesty the case would be very different ...". per Middleton, J. in Re Solicitor (1920), 47
O.L.R. 522 at 525 (Ont. H.C.).
8. Cf. Ont. 9(7).
9. Ibid.
10. See Williston, "The Contingent Fee in Canada" (1968) 6 Alta. L.R. 184; Arlidge, "Contingent
Fees" (1974) Ottawa L.R. 374; Thomson v. Wishart (1910), 19 Man. R. 340 (Man. C.A.); Monteith v.
Caladine (1965), 47 D.L.R. (2d) 322 (B.C.C.A.); Hogan v. Hello (1969), 1 N.B.R. (2d) 306. Alberta, British
Columbia, Manitoba, New Brunswick, the Northwest Territories, Nova Scotia , Quebec and Newfoundland permit regulated
"contingent fees"; the remaining Canadian jurisdictions do not.
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