The justice system is often predictable enough that the total fees required to defend a case can be estimated accurately in advance. Retainer agreements can therefore be based on a ‘block fee’. Block fees assume that the services that will be required are known at the time the retainer agreement is made between client and counsel. In the large majority of cases, they are. Retainer agreements also ensure that unanticipated issues and events can be incorporated into the working relationship between lawyer and client if that later becomes necessary due to changed circumstances.
It is relatively uncommon that a block fee must be re-visited. Mr. Clark commonly writes off additional services that notionally take an account past the estimated block fee. When there is a change in circumstances significant enough to warrant further fees, as often as not it is good rather than bad news for the client; it may arise from an improved chance of wining. For example we might discover that a key witness was on drugs and a private investigator or expert witness could be retained to help impeach the witness’s reliability; or a flaw is discovered in routinely used breathalyser equipment so that an adjournment and further disclosure motion lead to a complete successful defence. In any such case you would not want your defence shackled.
In order to anticipate situations where the costs of the defence legitimately change after the retainer agreement has been entered into, the basis of block fees can be indicated in the retainer agreement by reference to a particular hourly rate and limited by the number of substantive court appearances required to conclude the matter. This is another way in which a written retainer agreement heads off issues that could otherwise distract or interfere with the client-lawyer relationship. Clarity about how a block fee is arrived at allows for informed discussion and decision-making where there are unexpected developments in the nature of a case or the available defences.
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Criminal lawyers know too well how unfair it can be for a wrongly accused person to pay hard earned money to defend against criminal prosecution. And criminal lawyers should perhaps do more to remind the public that 13% on your legal fees goes straight back to the government as HST. When the crown seeks to put you in jail, it also requires your lawyer to send back to the government 13 cents on every dollar you pay to your lawyer to defend you against the crown/government. It is respectfully suggested that this is outrageous and should be put to politicians as such – by everyone, not just those recently or currently affected! Failures of criminal justice affect us all.