CanLII - 2009 CanLII 60409 (ON S.C.) - The Diigo Meta page

• 10 Nov 09
  

  David Scrimshaw

  A general retainer to act as counsel in litigation does not vest in the lawyer unfettered authority to “resolve matters” on terms he considers fit,

  Law settlement Professional-Responsibility

  • Under a retainer to act in litigation a lawyer must obtain the consent of his
    client before taking a material step in the litigation which would result in the
    incurrence of significant costs by the client or before compromising the
    client’s rights in the litigation, unless the retainer agreement contains clear,
    express language reposing discretion in the lawyer to act as he sees fit in
    specified circumstances.
  • The requirement of full disclosure is not met where a lawyer acts to compromise
    the client’s rights, for the financial benefit of the lawyer alone, without
    first obtaining the client’s informed consent
  • 2 more annotations...
  • • while an attorney acting under a continuing power of attorney is
      always a fiduciary, the scope of the attorney's fiduciary duties depends on
      whether the donor of the power is incapable at the time of the transaction. If
      the donor is mentally incapable, the attorney's position approaches that of a
      trustee. If not, the relationship between donor and attorney is similar to one
      of agency
    • [67]      Even on Mr. Polten’s own theory
      of the events, he knew that Ms. Lill was an elderly lady, in her eighties, and
      she was competent.  Before committing her to a legal strategy that would
      generate over a million dollars in billings, he was under a professional
      obligation to ensure that Ms. Lill clearly understood the financial risks of
      such a strategy and that she had provided informed, unambiguous, express
      instructions to proceed on that course on her behalf.  No evidence of such
      instructions was placed before me.  Further, he was under a professional
      obligation to ensure that Ms. Lill understood the risk of an appeal and had
      provided express instructions to proceed; no such evidence was placed before
      me.  Finally, he was under a professional obligation to ensure that Ms.
      Lill understood all implications of the offer to settle and had provided express
      instructions to make the Offer on her behalf; no such evidence was placed before
      me.

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