A lawyer who represents a minor plaintiff in a personal injury action must balance his or her duty to the client and to the Court1. The Law Society of Upper Canada’s Rules of Professional Conduct and the Rules of Civil Procedure set out the parameters of those duties. How is representing a minor plaintiff different than a competent adult? There are several differences. Most importantly there are differences surrounding initial retainers, taking instructions from the client and settlement approval.
The ordinary lawyer and client relationship presupposes that the client has the requisite mental ability to make decisions about his or her legal affairs and to give the lawyer instructions. If the client is less than 18 years of age they are considered to be a “party under disability” according to the Rules of Civil Procedure2 and the lawyer therefore needs to take several steps in order to properly represent the child’s interests.
The Initial Retainer
As we all know, a minor who wishes to commence a civil proceeding must be represented by a Litigation Guardian. This means that the instructing client is therefore the Litigation Guardian and not the child. An Affidavit of Litigation Guardian must be prepared and then filed with the court at the time of commencement of an action on behalf of a child.
Problems can arise when a lawyer enters into a contingent fee agreement with a minor plaintiff through his or her Litigation Guardian. Since the child is not legally capable of entering into a retainer agreement it will be the Litigation Guardian who negotiates and signs this document on behalf of the child. Rule 2.08(3) of the Rules of Professional Conduct on Contingency Fees provides that the test to be applied is whether in all of the circumstances the fee is fair and reasonable. The factors to be considered include the likelihood of success, the nature and complexity of the claim, the expense and risk of pursuing it, the amount of recovery and who is to receive any award of costs.
Under the Rules of Professional Conduct a lawyer has the ethical obligation to ensure that his minor client’s interests are not abandoned and that they are protected. Those rules impose the following general duties:
a duty of confidentiality
a duty to execute instructions as given subject to the duty to resign if those instructions are improper, and
a duty to act competently within one’s field of expertise
When acting for children the Rules of Professional Conduct require that lawyers adhere to these duties as closely as possible. This can present challenges. For example, problems arise when the Litigation Guardian is not acting in the best interests of the child or when an older child takes issue with decisions that are being made by his or her Litigation Guardian.
The Rules of Civil Procedure allow for the removal of a Litigation Guardian if the decisions are not being made in the best interests of the child. Rule 7.05(2) provides that a Litigation Guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests including the commencement and conduct of a counterclaim, cross claim or third party claim. Where the Litigation Guardian is perceived as not acting in the child’s best interests, a lawyer’s duty as an officer of the court takes precedence and the lawyer may proceed with a substitution motion even though doing so may be contrary to the Litigation Guardian’s instructions. If there is no competent adult to substitute as Litigation Guardian, the Office of the Children’s Lawyer may be requested or ordered to act in that capacity.
When an older child objects to a decision made by his or her Litigation Guardian a lawyer must determine if that decision is in fact in the best interest of the child. If it is, the lawyer can resolve his competing duties by trying to educate the child about the process and strategy being advanced. If a decision by the Litigation Guardian is not in the best interests of the child the lawyer must refuse to accept that instruction and seek the removal of the Litigation Guardian as described above.
In practice most solicitors have their contingency fee agreement with a child approved at the time of settlement approval. As noted above Rule 7 requires that any settlement involving the claims of a minor plaintiff must be approved by a Judge of the Superior Court of Justice. That Judge will determine whether the settlement is fair and reasonable and will exercise the Court’s parens patriae jurisdiction. The Court of Appeal has stated that this jurisdiction is of ancient origin and is founded on necessity namely the need to act for the protection of those who cannot care for themselves to be exercised in the best interests of the protected person for his or her benefit or welfare3.
In Cogan v. M.F.4, R. Smith J. examined a contingency fee agreement which involved a child. Plaintiffs’ counsel in this case had settled an extremely complex medical negligence matter for more than $12 Million. Justice Smith looked at the following factors in considering the validity of the contingency fee agreement;
- The financial risk assumed by the lawyer
- The likelihood of success
- The nature and complexity of the case
- The expense and risk of pursuing the claim
- The results achieved
- The expected recovery
- Who is to receive the costs
- The valid social objective of insuring that access to justice is maintained for injured plaintiffs including children and parties under disability
Justice Smith then went on to consider two overarching issues: Firstly, whether the agreement was obtained in a fair way and, secondly, whether the agreement was reasonable having regard to all of the factors. The Office of the Children’s Lawyer appeared on the settlement approval motion and argued that the approach the Court should take is to determine an appropriate premium to be given above the hourly rates of the lawyer in the same manner as if a contingency fee agreement had never been made. Justice Smith found that the approach suggested by the Office of the Children’s Lawyer effectively denied the benefit of contingency agreements to injured children and would limit fee agreements.
The judge went on to find that the contingency fee agreement was fair and reasonable in the circumstances and therefore the plaintiffs’ solicitor was entitled to the agreed upon 33% of the total amount recovery including costs or $4,174,928.45. It should be noted that the contingency fee agreement provided that any costs paid by the defendants would be included in the total recovery and not paid to the solicitor in addition to the percentage.
The Cogan case demonstrates that a valid contingency fee agreement with a child can still be approved at the time of settlement if the applicable factors support such approval.
Representing a child in a personal injury action presents many potential pitfalls even for the experienced lawyer. It is essential to ensure that all instructions received from the Litigation Guardian are in the best interests of that child plaintiff. It is also mandatory to obtain approval of your retainer agreement either at the time of settlement or at an earlier stage of the proceedings. The overarching principle to be followed in these cases is to ensure that the best interests of the child are always taken into consideration and that nothing is done to undermine or in any way harm the legal rights of the child.
1 Thank you to an Oatley Vigmond Student-at-Law who performed research which contributed greatly to this article.
2 Rule 7.04
3 Wu Estate v. Zurich Insurance Company (2006), 268 D.L.R. (4th) 670 (Ont. C.A.) at para 10
4 2007 CanLII 50281 (S.C.)