Legal Blog

Experts

A lawyer retains an expert on behalf of a client. Who is liable to pay the expert: the lawyer, the client, or both? This was the subject matter of 14013337 Ontario Ltd. v. MacIvor Harris Roddy LLP 2011 CarswellOnt 822 (S.C.J.)

 Retainer

 A lawyer within a limited liability partnership retained an accountant to make some sense of a mass of papers for a client’s tax dispute with CRA. The accountant met with the client, met with the lawyer, and trundled off to perform her work. The lawyer and accountant exchanged a number of emails dealing with payment of the ensuing $22,300 account. Before anything was resolved, the lawyer died. The accountant then looked to the law firm for payment.

 As the judge stated, the firm found itself “embarrassed by the sudden death of the partner who dealt with the plaintiff and, not knowing the nature of the relationship between the plaintiff and the defendant, it has left it to the court to determine whether it is liable for the claim.”

 Arguments

 The law firm was more than just a mere bystander. It argued that it retained the expert on behalf of its client and was simply acting as the client’s agent. The expert ought to have made its own arrangement for payment before accepting the retainer and, therefore, the law firm as agent is not responsible for its principal’s liability.

 The expert stated that she had discussed with the deceased partner the fact that in order to ensure her work product was privileged, the partner had to retain her, not the client.

 General Rule

 We think that the law firm’s position was nonsense and agree with the judge’s analysis that follows. He said:

 “On a policy level it is wise for the courts to encourage the employment of experts by counsel rather than by the client. The client invariably wishes to hire an ‘advocate’. Modern philosophy concerning experts is that they should be independent and should not feel beholden to support the position espoused by their employer. Given the usual practice, given the policy reasons for encouraging the usual practice, and given the Bar’s ability to prevent such misunderstandings by a simple letter, I am prepared to proceed on the basis that when an expert is approached by a solicitor to prepare material for litigation there is a presumption that the solicitor has undertaken to ensure payment of the expert’s reasonable fees unless the solicitor makes the contrary clear from the outset. While this presumption may not apply to the usual agency situation the honour of the Bar and the reality of practice makes this presumption suitable in cases such as this.”

Specific

 In the actual case, the judge accepted the accountant’s testimony and found that the discussion regarding privilege meant that the partner retained the accountant, as she stated; this, in itself, ensured that the law firm was liable for the account. However, even if there had been no explicit discussion at all, the judge would still have held the law firm liable on grounds that the law firm did not make it apparent to the expert that she could look only to the client for payment.

 Moral

 Do not retain an expert on behalf of your client unless you set out in writing that you are not liable for payment; alternatively, either obtain a retainer covering the estimated fees or be prepared to fund those fees on behalf of your client on a timely basis.