A Toronto lawyer says he has learned an expensive lesson about not taking clients’ words without a written direction after a judge ordered him to pay nearly $20,000 this week for accepting a settlement offer without receiving an instruction from his client first.
Joseph Zayouna says his former client, who was hit by a Toronto Transit Commission streetcar in 2009, had told him to “deal with her father” about her personal injury case while she was away attending school.
The father, Zayouna says, agreed to a settlement offer from the TTC during a visit to his office and later changed his mind after talking to his family. By then, Zayouna had accepted the TTC’s settlement offer.
In a cost endorsement this week, Superior Court Justice David Price put Zayouna on the hook for the cost of a motion on the validity the settlement agreement.
“The motion involved issues of importance to the bar and to the administration of justice. They involved the duty of a plaintiff’s lawyer to secure instructions from his/her client before accepting an offer to settle and the extent to which a defendant’s lawyer is entitled to rely on ambiguous responses to its offer,” wrote Price. “I am satisfied that the motion involved issues that were of importance to both the parties and the public.”
Although TTC was unsuccessful in its motion to enforce the settlement, the cost of the proceeding should be covered by Zayouna, the judge added.
Zayouna says when his client’s father came to his office and heard about the offer he told him, “Yes, I accept it. If she can get more, make another offer but you have my permission to accept it.”
His mistake was twofold, says Zayouna: He had accepted his client’s order to “run everything by her father” as an authority for the father to make decisions, and even when the father agreed to accept the offer, he should have made him sign an instruction.
“What I learned from it is that whatever you get, you get them to sign a direction or get them to e-mail you in writing so at least that way you cover yourself,” he says.
Zayouna is ordered to pay his former client, Manar Srajeldin $11,127 and an additional $7,781 to the TTC.
UPDATE – Read about the appeal decision in this case here