Regina lawyer must pay $55,000 over fee dispute

The Saskatchewan Court of Appeal has upheld a decision ordering a veteran Regina lawyer to refund a former client $23,500 in legal fees, plus the strongly-worded judgment awarded additional costs given his “excessive” defence of his bill.

In its recently-published written ruling, the province’s high court said lawyers should always be conscious that it’s in the public interest to facilitate the fee assessment process rather than frustrate it. But Mervin C. Phillips “conducted the defence of his account with unusual and unnecessary forcefulness. He has portrayed himself as a victim in the process. While a lawyer is entitled to defend the services he has provided with vigour, in this case the vigour was unduly excessive.” The decision adds that it’s Phillips’ former client who “has been the victim.”

Justice Ralph Ottenbreit, who authored the 47-page unanimous ruling dismissing an appeal by Phillips Legal Professional Corp., said the lawyer had left “no stone unturned” in fighting assessment of his bill.

“Misguided self-interest has unfortunately outweighed facilitation of the assessment process. On the basis of all the foregoing, a substantial award of costs is warranted in this appeal,” wrote Ottenbreit. In addition to the refund plus $1,125 in costs Phillips was ordered to pay after the assessment, and $15,000 in solicitorclient costs awarded after a failed appeal to a lower court, the province’s high court tacked on another $15,000 — for a total $54,626.

Messages were left with Phillips’ office on Friday, but he did not provide any comment before deadline or indicate if he plans to seek leave to appeal to the Supreme Court.

In a fee dispute, a lawyer or a client can apply for “taxation” — essentially a review of costs and fees — by the registrar of the Court of Queen’s Bench. As the decision notes, assessments are done in such a manner as to keep costs down.

According to the Law Society of Saskatchewan, a lawyer is entitled to charge “fair and reasonable fees,” dependent on such factors as time and effort required, special skills or circumstances, experience, difficulty, and the client’s prior consent to the fee.

The dispute reached the province’s highest court in this case when Phillips, who has practised law since 1981, disagreed with the registrar’s assessment.

He was retained by the client in 2007 to represent her on the division of family property in a divorce. Phillips also represented another of her family members in an immigration matter. In time, the woman believed Phillips was refusing her instructions — translated by her daughter since she didn’t speak English — to reach a settlement or go to trial. In 2013, the woman left the firm and got a bill for $56,145. Her new lawyer filed for an assessment, a process which Phillips “vigorously opposed” with voluminous affidavits and written submissions.

The assessment officer found the matter was fairly routine, much of the work on the file unnecessary, and that an hourly rate of was $375 reasonable. She cut the bill roughly by half. Taking issue with the process and findings, Phillips appealed to the Court of Queen’s Bench.

In his 2015 decision, Queen’s Bench Justice Dennis Ball rejected Phillips’ grounds for appeal, adding that the lawyer appeared “oblivious to the waste of time and money being visited on his former client, her present counsel and those in the judicial system who have been called upon to address his complaints.”

Phillips appealed to the high court.

In the July 25 decision made unanimous by Justices Gary Lane and Ysanne Wilkinson, Ottenbreit repeatedly found no error by the assessment officer or Ball. He also found Ball’s reasons for assessing such high solicitor-client costs consistent with legal principles relating to censuring Phillips’ conduct and compensating the client.

In finding a further substantial award for costs was warranted, Ottenbreit wrote that Ball’s findings “did not create for Mr. Phillips an epiphany ... Indeed, he presented new arguments that, together with reiterations of meritless arguments made before the chambers judge, introduced unnecessary complexity to this appeal. Many of the arguments were doomed to fail at the outset.”