Law firm sued for fees that client had said it would not pay. Client took issue with some of the facts set out in the statement of claim, alleging that reference to them breached solicitor-client privilege. Client took the position that it was only disputing the quantum of the fees charged and not the quality of the services. The motion judge rejected this assertion; it is impossible to assess the quantum without delving into the scope of the retainer, reasonable expectations of the client, instructions provided, quality of work etc. Since the burden of proof was on the lawyers to justify the work done and fees charged, they had to be permitted to delve into solicitor-client privileged communications. The judge held that, as soon as the client repudiated the legal account and refused to pay, that was an implied waiver of the solicitor-client privilege to the extent needed for the lawyer to prove its claim for its fees.
Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.