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Legal profession should consider opening up about costs

An Ontario judge’s recent critique of the province’s justice system, warning its courts are increasingly “only open to the rich,” highlights the need for lawyers to justify the value of their services, says Toronto lawyer Richard Worsfold.

In York University v. Michael Markicevic, York University launched a lawsuit against former assistant vice-president Michael Markicevic, accusing him of a $1.2-million fraud.

The case is a year-and-a-half old, accruing hundreds of thousands of dollars in legal costs, with no trial date in sight, the Globe and Mail reports.

Justice David M. Brown calls the case an example of a national problem where more and more civil defendants face the prospect of legal fees maximizing their financial resources before they even reach a trial, the report says.

“Such a state of affairs reflects an unacceptable failure on the part of our civil justice system,” Brown writes in the decision.

Worsfold, partner with Basman Smith LLP, says one solution to the issue lies with the public, and their choice of legal counsel.

“It is true that litigation is becoming extremely expensive and is out of reach for many, but there are 45,000 lawyers practising in Ontario and most of them charge nothing close to $850 an hour, which is the cost quoted in the decision,” says Worsfold. “There’s a number of well-managed small firms that will take on matters at a fraction of the cost.”

Worsfold says, “I wonder why, if there are so many lawyers in Ontario, competition is not driving fees down? Fees of the scale Justice Brown is talking about are really only found at the largest firms. Corporations and the public need to trust smaller, efficient firms where they can get value for their legal dollar.”

Worsfold, who practises civil and commercial litigation along with personal injury and employment law, says lawyers also have a role to play in publicizing their services.

“With that many lawyers out there, you would think competition would come into play, and lawyers would be forced to demonstrate to the public that they have a good, affordable product and they are delivering value,” he says.

“Lawyers don’t generally advertise rates, so it’s difficult for clients to shop around. I’d certainly like to see the profession be more open to being forced to justify the rates they’re charging both in terms of results and in terms of speedy access to a solution.”

In the decision, Brown also comments on the “relentless mantra” that “mediation will solve all problems,” suggesting the belief is at the root of the current problem, which Worsfold says is unfair.

“I tend to think mediation is a part of the solution and it greatly assists in reducing costs to all parties because people can solve their problem in a rational fashion at an early stage and not spend weeks in trial,” he says.

Worsfold says different ideas - like the mandatory posting of hourly rates online - have been floated by the Law Society of Upper Canada, but none have been implemented.

“I think it’s important for the public to know there’s a large number of lawyers who don’t charge anything close to $1,000 an hour and those lawyers have good experience and might be more accessible than lawyers at a larger firm,” he says.

“I think the legal profession likes to have a certain amount of prestige to say it’s not a commodity like other commodities, so there's certainly a reluctance to post lawyers’ hourly rates, so lawyers benefit from a lack from competition,” says Worsfold.

“I think if there is greater competition or the public feels it’s easier to find an affordable lawyer, that will have an impact in lowering the overall cost of litigation.”

Limiting access to justice to only those with deep pockets creates risks, says Worsfold.

“People might give up and not pursue actions that have validity, or they might get steamrolled into settling a claim prematurely,” he says. “I think certainly there’s a concern if the courts aren’t open to all.”

Worsfold says additional resources from the provincial government could also help, noting long delays for trial dates drive up costs.


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