Vancouver firm accused of ‘cherry picking’ actions wins appeal

If a law firm is retained in a case involving multiple actions, it is not obligated to represent the client in all of the actions in order to get paid for the work it performed, says the British Columbia Court of Appeal.

The court clarified the definition of an “entire contract” after a client sued a Vancouver law firm that withdrew a contract after completing only one of the two actions related to his case.

The client, Fred Cashman, retained Slater Vecchio LLP to act for him in a claim for damages arising out of a 2005 car accident. After completing one of the actions in the case, the law firm notified Cashman that no work had been done on the second one, and it was “not prepared to act further for you on it.”

That’s not what the contract said, Cashman responded. “In short, it’s not proper that you cherry pick a claim and when the easy part is done then decide to give up on the claim without a flight,” he said, suggesting the retainer was an “entire contract.”

But according to the law firm, it was “under no compulsion to continue to act. Any party can terminate the contract and we are doing so at this time.”

A master and a judge agreed with Cashman about the law firm’s obligation to see both actions through to completion, but in a decision this week, the B.C. appeal court sided with Slater Vecchio.

In this case, the court said it did not have to decide whether the retainer was an entire contract because it found the agreement was “amended or supplanted” by a related settlement agreement. But for the record, it addressed the law dealing with entire contracts.

The court adopted Slater Vecchio’s definition of an entire contract, which applies when complete performance is required before there is any duty to pay.

“If a shoemaker agrees to make a pair of shoes, he cannot deliver one to you and ask for half the price,” Slater Vecchio wrote in its factum. “Similarly, if a man engages to carry a box of cigars from London to Birmingham, it’s an entire contract, and he cannot throw the cigars out of the carriage halfway there, and ask for half the money.”

Appeal court Justice Edward Chiasson, writing for the three-judge panel, agreed.

“It is apparent that the foundation of the entire contract concept in the context of a retainer agreement is an implied term that the lawyer will be paid only at the end of the retainer. Where the retainer involves a number of discrete proceedings, where there is a recovery in a proceeding the mischief addressed by the entire contract principle, the risk that the client will obtain no benefit from part performance of the retainer, does not apply,” Chiasson added.

“There would appear to be no principled reason why the lawyer is not entitled to his agreed fee even in circumstances in which there may be additional work to be done on other proceedings.”

Cashman, who is a lawyer himself, tells Legal Feeds he pursued the case because the law firm’s actions were below the standards of professionalism he expects from his fellow legal professionals.
“I just feel strongly that lawyers should not be looking for ways to break their words, they should be looking for way to keep it. Period,” says Cashman, who is considering an appeal. “To me, that’s what this comes down to.”

No one from Slater Vecchio was immediately available for comment.

Update 1:40 pm: comments from Cashman added.
Update Jan. 20: Correct name of judge who wrote the appeal.

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