Contingent Fee Agreements continued
It is important that you turn your mind to the sorts of issues that can arise in a contingent fee agreement (such as how disbursements are to be billed and paid), and craft a retainer that takes these matters into account.
Disbursements are usually charged as the file proceeds, so it is good practice to create a mechanism that allows for this. Examples of disbursements on a personal injury contingency file include invoices for clinical records or police files. Before drafting a contingent agreement, you are encouraged to review the precedents available on the Law Society’s website. (Two of these precedents are provided as Appendix A: Sample General Retainer (Long Form) and Appendix B: Sample Personal Injury (Contingent Fee) Retainer, and links are provided to additional precedents in the Additional Resources section of this module.)
Note: Keep accurate records of your time spent on a file even though you have entered into a contingent fee arrangement—the reasonableness of your fee may still be challenged. For example: you have taken on a client on a contingent fee basis and have conducted the file past examinations for discovery. Your client becomes displeased with you and decides to change lawyers. You have released the file to the new lawyer on her undertaking to pay your fees for work you performed to date out of the eventual settlement or award in the case. You have not tracked any of your time on the file. This puts you in a difficult position if there is a review of your bill (where a client challenges the amount of your fee before a Registrar) of the file, and to a certain extent puts you at the mercy of the new counsel. If it were to proceed to a review and you kept little to no record of the work you did on the file and the time spent, it would be very difficult to provide evidence. Keeping accurate and detailed records of your time gives you the best chance to recover a reasonable fee for your labour.