KAY L. RHODENIZER Applicant (Solicitor) - v. -, 2014 NSSM 30

Claim No: SCCH No. 424568 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA AND IN THE MATTER OF A TAXATION Cite as: Rhodenizer v. M.W., 2014 NSSM 30 BETWEEN: KAY L. RHODENIZER Applicant (Solicitor) - and - M. W. Respondent (Client) TAXATION DECISION AND ORDER BEFORE Eric K. Slone, Adjudicator Hearings held at Dartmouth, Nova Scotia on April 17, 2014 Decision rendered on April 28, 2014 APPEARANCES For the Applicant self-represented For the Respondent self-represented

BY THE COURT: 1 This is a taxation of an account between Kay l. Rhodenizer (hereafter “ the lawyer ” ) and her former client, M. W. (hereafter “ the client ” ). 2 The client was undergoing a marital separation and divorce proceeding and retained the lawyer in or about late June 2013 to represent him.

This lawyer was the third one that the client retained, the others having acted for a time and been discharged by the client. 3 The client chose the lawyer because of her reputation as an experienced and capable family law practitioner. 4 The lawyer met with the client and presented him with a written Retainer Agreement which she insisted he take home and read over. She told the court that in a situation such as this, she would not sign the agreement at the first meeting, for two reasons: 1. She was not certain that she would accept the retainer, and 2.

She did not want the client to be able to argue, in the event of a dispute, that he had been rushed into signing the agreement. 5 In the result, the lawyer decided to take on the client and vice versa, and the Retainer Agreement was signed. 6 The lawyer/client relationship lasted until late January 2014, when the lawyer issued a further, large interim account, which the client was unhappy with. I will return to that bill later. 7 Part of the client ’ s issue with the lawyer ’ s bill stems back to discussions held at the very first meeting, before the Retainer Agreement was even signed.

The client wanted some kind of estimate for what the eventual bill might be. The lawyer mentioned the figure of $40,000 for a four-day trial, which must have been the anticipated trial length at that time. I have no doubt that the lawyer qualified this estimate to the n th degree, given how little she knew of the client or the file.

The Retainer Agreement contains no estimate at all, and in fact points out very clearly that the bill could exceed any estimate given, because of a variety of contingencies. 8 The client, among other requests, asks this court to limit the lawyer to her estimate. 9 I am satisfied that the so-called estimate was nothing more than the lawyer ’ s thoughts, off the top of her head, of what an average, garden variety divorce trial lasting four days might cost. This was not a legally binding fixed price.

Had there been an intention to put a fixed price on the file, I am sure that this would have been reflected in writing. In fact, the only written agreement - the Retainer Agreement - is inconsistent with any notion of a fixed price.

10 The lawyer testified quite candidly that she would have had to have been crazy (or words to that effect) to quote a fixed price. I am more than satisfied that there was no such intention, and the governing principle is that found in the Retainer Agreement, to the effect that the lawyer would be charging by the hour at her usual hourly rate of $350.00. I also find that the client knew, or ought to have known, that this was an hourly billing retainer and not a fixed price contract. 11 Acting in the role of a taxing master, it is my job to assess whether the lawyer ’ s charges are reasonable.

I can reduce an hourly rate, if I regard it as unreasonable, and can reduce the hours chargeable if I am convinced that they were spent unnecessarily or without the client ’ s express or implicit authority. I can also reduce disbursements, if they were incurred unnecessarily, although there were no disbursement issues raised by the client in this case. 12 Disposing first of the issue of hourly rate, the lawyer admits that she is “ expensive ” but points out that she has been practising family law in Halifax for 28 years, and has a reputation as a competent, thorough and sometimes aggressive advocate.

She points out that she works out of an office in her home, and that clients know they are not paying for fancy office space but, rather, are paying for her. 13 This court is generally familiar with the lawyer ’ s reputation, and how she fits into the family law bar in this area. She is clearly a very senior lawyer with a good reputation. Clients cannot expect to get someone of her seniority and calibre for much less. Even if some lawyers were prepared to charge less, the rate being charged by the lawyer was disclosed and explicitly agreed to, and is within the range of acceptable rates.

There is no reason to reduce the rate allowable. 14 The client ’ s main beef is not the rate, however. His grievances concern the fact that, he says, the lawyer did not always act on his explicit instructions, and spent an inordinate amount of time preparing for an imminent settlement conference. 15 By way of background, it is important to note that the client owned a number of rental properties, and had been buying and selling real estate throughout the marriage. The client ’ s wife (through her lawyer) was demanding full financial disclosure in support of her matrimonial claims.

This was a necessary task for the lawyer to undertake. 16 What the lawyer found, as she began the work, was that the client had a highly idiosyncratic way of keeping his records, and when she asked him to supply her with his financial records these arrived in the form of many boxes and, at times, garbage bags full of material. All of this needed to be reviewed and understood. 17 The lawyer also found the information to be, at times, confusing. She described finding documents (such as deposit slips involving considerable sums of money) and asking the client what they represented. Sometimes the client knew.

At other times he did not know. And sometimes he purported to know, and gave answers that the lawyer knew (because of her investigations to date) were incorrect. 18 As a result, the lawyer spent a great deal of time going through documents and trying to make sense out of them, as well as trying to present the information in a way that would be useful in the litigation. 19 The client has several issues with all of this time spent on his documents. He believes that it might have been more efficient to have hired an accountant, rather than pay the lawyer $350 per hour to perform this task.

He also believes that not all of this time was necessary, since the task at hand was to prepare for a settlement conference, not to do what appeared to be trial preparation (or work in connection with other issues “ down the road ” ) since such trial might never occur. 20 The lawyer had several points to make. First of all, she says, it was never suggested that an accountant should be hired. Even so, reviewing documents is not purely an accounting exercise. She was bringing to bear on the task her legal judgment. For example, it was part of her function to determine whether documents were relevant.

It was also necessary to consider what she was finding in the context of the larger picture of the dispute.

21 As for the concern that she was doing trial preparation or work in connection with issues that were not imminent, the lawyer testified that she could not limit her preparedness just to a settlement conference. Understanding the file for a settlement conference is no different than understanding it for trial. It was her approach to have a sufficient mastery of the facts and the evidence to be able to act productively on the client ’ s behalf at all times.

This time was not wasted. 22 I accept what the lawyer says about the need to spend whatever time was needed to get a handle on the facts, and a lawyer who would have gone into a settlement conference unprepared (because of the dubious distinction between preparing for the conference and preparing for trial) would have done the client no favour, and might even be accused of failing to fulfill her professional responsibilities. Any settlement would likely have involved all issues, and the lawyer could hardly be expected to be versed only on a narrow set of issues. 23 The client had several other complaints.

He stated that the lawyer spent inordinate amounts of time on certain issues, despite his express instructions not to do so. He was also unhappy that she appeared to be spending considerable time answering requests from his wife ’ s lawyer, when that lawyer was not always responsive to his requests for information.

He was also critical of her for continuing to insist that various of his properties be freshly and independently appraised. 24 He also expressed a concern that the lawyer had prepared a settlement conference brief that was missing an attachment, and that the opposing lawyer and the judge did not appear to understand. 25 He also (somewhat trivially) raised the question of whether the lawyer was charging him for time that she spent taking what appeared to be frequent smoke breaks while working on his file. 26 The lawyer testified that once she undertakes a file, she needs to be prepared on all issues and cannot ignore something just because the client suggests it is not important. 27 As to the criticism that she was being more responsive to the wife ’ s lawyer than vice versa, she stated that she does not litigate “ tit for tat. ” In general, she is determined to fulfill her professional and legal responsibilities, regardless of whether or not the opposing counsel is being as diligent.

In this particular case, it was mostly the opposing lawyer making demands which were legitimate, because the client (rather than his wife) was in control of most of the documentation. 28 The client seemed to think that the lawyer would have been fulfilling her legal responsibility to answer the opposing lawyer ’ s requests for documents by just putting them in a box and sending them over, without organizing them. This is naive or misguided, or both. The lawyer had to organize the documents received, for her own purposes, and had to understand what it was she was sending over.

Had she done what the client suggests, she could inadvertently have sent over irrelevant or privileged documents, and could have hurt the client ’ s case. She would also have deprived herself of the opportunity to understand the underlying facts. 29 As for the issue of the settlement conference brief, the lawyer concedes that there was an attachment missing, which she supplied at the conference itself. It was her evidence that no harm flowed from the omission.

As for the allegation that the judge and opposing lawyer appeared to be confused by the brief, she testified that she had done some fairly complex tables and calculations which she had to explain, but that the judge and opposing lawyer understood what she was presenting. 30 As for the issue about appraisals, the lawyer was concerned that the available appraisals were several years old and had been done for lenders, which meant that they were highly conservative.

She testified that the client appeared to believe that he could give expert opinions on the value of his own properties, and she had to advise him that the court would never accept his opinion because it was not objective. She believed it was in his interest to have proper, professional appraisals done. 31 The suggestion that the lawyer was charging the client for smoke breaks was, frankly, a cheap shot. There was no evidence to

support it. The only evidence the client raised was the fact that his file smelled like smoke when he received it back from the lawyer. The lawyer testified that there are parts of her home office where she works on files and allows smoking. Where she took outside smoke breaks, she did not charge the client for her time. I accept this. The bills 32 The lawyer issued a number of interim bills before the one in question, and all but the last were paid.

The history of the billing appears to be as follows: Date amount status June 25, 2013 (initial consult) $402.50 Paid July 4/13 June 26, 2013 $143.75 Paid July 4/13 July 4, 2013 $10,000 retainer provided July 14, 2013 $6,915.62 Paid (from trust) July 30, 2013 $5,308.93 Partly paid from trust, balance paid later August 17, 2013 paid balance plus further retainer provided August 28, 2013 $9,843.15 Partly paid from trust September 14, 2013 $161.00 Eventually paid October 14, 2013 $3,250.40 Paid from trust November 14, 2013 $6,125.91 Eventually paid December 20, 2013 $560.63 All balances paid up to date except for $2,441.54 January 14, 2014 invoice for remaining balance of $2,441.54 plus interest - paid January 25, 2014 $59,547.06 February 12, 2014 $120.75 TOTAL AMOUNT BILLED $79,116 fees plus disbursements of $1,675.02 and HST of $12,118.69 - total = $92,909.71 TOTAL AMOUNT PAID BY CLIENT $33,241.90 BALANCE UNPAID $59,667.81

33 As this history graphically illustrates, the client was diligent in paying his bills until he received the second to last one on January 25, 2014. That bill included approximately 175 hours worked by the lawyer from November 15, 2013 to January 25, 2014. The bill is accompanied by detailed docket entries.

The lawyer testified that she set aside a lot of time over the Christmas Holidays to work intensively on this file, which she felt was necessary given the upcoming settlement conference. 34 I have no doubt that the bill came as a shock to the client, and it likely would have been better had the lawyer not included ten weeks of work on one bill. However, there is nothing to indicate that any of the time was spent wastefully or that the lawyer charged for anything that she ought not to have charged for.

Furthermore, I accept that the lawyer told the client that the next bill would be “ a large one ” and, as such, he ought not to have been taken entirely by surprise. 35 Family litigation can be expensive. I am certainly not the first person to make that observation. The client hired a senior lawyer who worked hard on his behalf. Unfortunately, he fired her after receiving the last bills and may lose out on some of the benefit of the work she did on his behalf.

That is not the lawyer ’ s fault. 36 In the result, I am satisfied that the total amount claimed of $59,667.81 is properly owing, and my order shall so reflect. 37 The lawyer is also entitled to her costs of filing the claim ($96.80) and serving it ($92.00.) 38 She also claims interest at the contracted amount of 2% per month on outstanding balances.

In the exercise of my discretion, I only am prepared to order interest at the prescribed rate of 4% as permitted under the Small Claims Courts Act Regulations , which I will calculate from the date that this Taxation was filed, namely February 21, 2014 to the date of this order (66 days). This amounts to an additional $431.67. 39 The total owing by the client is therefore $60,288.18. Eric K. Slone, Adjudicator