Alberta Rules of Court 615 and 616 authorize contingency agreements between lawyer and client. These agreements most commonly provide that the lawyer will be paid a percentage of the monies recovered for the client. Rule 617 requires that such agreements be filed with the Clerk. Rule 618 provides that if not filed, the lawyer is entitled only to compensation which would have been paid in the absence of the contingency agreement. Many contingency agreements provide that if the client discharges the lawyer before completion of the file, the lawyer shall be entitled to render an account for the work done to date.
Problems frequently arise when the client discharges the lawyer retained under such an agreement.
The lawyer, relying on the provision regarding billing on discharge, renders an account which may be hourly based or otherwise as allowed in the agreement. The client is usually financially unable to pay an account. This comes as no surprise to the lawyer who knows that the main reason giving rise to and justifying the contingency fee concept is the inability of some clients to finance litigation. Notwithstanding the client's inability to pay, the discharged lawyer may assert a solicitor's lien and refuse to give up the file without payment of the account. I question whether the lawyer has a solicitor's lien in these circumstances.