Retainer Agreement

Standard Terms and Conditions of Engagement

Interpretation

  1. This document sets out the standard terms and conditions on which Lexcor Business Lawyers llp (“Lexcor”, “us”, “we” or “our firm”) has agreed to provide legal services to a client (“the Client” or “you”). The provisions hereof apply to all retainer agreements, generally established by letter or email correspondence (the “Specific Terms”), in which they are incorporated by reference.  Accordingly, this document, together with the Specific Terms to which it is incorporated by reference, is hereinafter referred to collectively as this “Agreement”.
  2. Any terms defined or used as titles in the Specific Terms shall have the same meanings herein. The term “matter” refers to the matter defined by the Scope of Services.
  3. In this Agreement, unless something in the subject matter or context is inconsistent therewith: words importing the singular number shall include the plural and vice versa; words importing a gender shall include the masculine, feminine and neuter genders; words importing persons shall include individuals, partnerships, corporations, unincorporated organizations, associations, trusts, trustees, government agencies and any other form of organization or entity whatsoever; any general terms followed by specific examples, whether using “includes”, “including”, “such as” or other similar terms, shall be interpreted broadly according to their full meaning and will not be limited to or by the examples listed.

Scope of Services

  1. Once work is commenced, the Scope of Services you have requested us to provide may be expanded. Indeed, it frequently occurs that a retainer for a very specific matter evolves into a long-term relationship dealing with a diverse variety of matters.  You agree that all of the terms of this Agreement will extend, with the necessary modifications, to include any and all such additional work.

Estimated Timeline

  1. Any estimated schedules, timelines or completion dates are only estimates, not guarantees, and assume that you will provide us with all relevant documentation, information and instructions in a timely manner.

Client

  1. The Client may be one or more persons and will include any person separately named as Designated Payor.
  2. If the Client is more than one person, unless otherwise specifically agreed:
    • each such person will be jointly and severally liable for all of the Client’s obligations under this Agreement, including payment of our accounts; and
    • we may seek and rely upon instructions, whether oral or written, from any one of you and all such instructions will be binding on each of you.
  3. If, as part of the Scope of Services, we establish a legal entity on behalf of the Client, such as a corporation, partnership or trust, such entity will also be considered a Client for all purposes of this Agreement.

Representing Multiple Clients

  1. If the Client is more than one person, we confirm that, at this time, each of your interests in this matter appear to be the same and you have requested that we act for each of you in this matter.
  2. If the Client is more than one person, we must follow principles of undivided loyalty such that no information received from one of you as a part of the joint representation can be treated as confidential as between all of you. If we should receive information from one of you which we are instructed to keep confidential, we will have to stop acting for one or all of you, as described in further detail below.
  3. A conflict of interest occurs when what is best for one of our clients somehow is not best for, or hurts, another of the firm’s clients. If a conflict develops between any of you, we confirm each of your instructions to attempt to resolve this conflict.  If a successful resolution cannot be accomplished in a timely way or at all, or if our attempts to resolve the issue would cause us ethical concerns, we will have to withdraw from representing all of you.
  4. If we agree to act for any one of you in a matter separate from this one, and we receive confidential information from that separate matter that is relevant to this matter and the client in that separate matter wishes to keep it confidential, then the information must not be disclosed to the others in this matter and we will have to withdraw from the joint representation.
  5. If we must withdraw from the joint representation or otherwise cease acting for all of you, then we will cease to act for all clients other than any Continuing Client designated in the Specific Terms. We confirm that the Continuing Client, if any, is a continuing client of this firm and is regularly represented by lawyers in this firm on different matters.
  6. Our representation of the Client does not include the representation of related persons or entities, such as persons who are shareholders, directors or officers of a corporate Client, its parents, subsidiaries or affiliates, partners of a partnership or a joint venture, or members of a trade association or other organization. In acting for you, we are not acting for or taking any responsibilities, obligations or duties to any of those related persons and no lawyer, client or other fiduciary relationship exists between us and any of those related persons.
  7. If we receive instructions from spouses to prepare or amend any joint document (such as mutal wills, powers of attorney, trusts, estate planning or estate administration for such spouses based on their shared understanding of the terms to be included in any such document), the spouses agree that the matter shall be treated as a joint retainer subject to the conflict rules set out above. If, subsequent to the execution of any joint document, one spouse instructs us in a manner contrary to the spouses’ earlier mutual instructions, we shall decline to act in respect of such matter unless the mutual consent of both spouses is otherwise obtained or unless the other spouse is no longer married to the Client or is no longer alive.

Instructions and Communications

  1. You control our work by your instructions. Clear and frequent communication is vital to our relationship.  Written instructions, including email, are best.  Please do not assume that we know any particular facts.  We need you to tell us all relevant information as we do not want to give advice based on incorrect assumptions.
  2. We will make all reasonable efforts to communicate with you in a timely and effective way. We encourage you to raise any questions or concerns you may have promptly. In our experience, virtually every misunderstanding arises from a failure to discuss the issue. You accept your part in ensuring that issues are raised, facts communicated, and solutions found sooner, rather than later.
  3. We will try to return your phone calls or respond to your emails and letters as quickly as possible, but we may not always be able to do so on the date of receipt. If a matter is urgent, please let our staff know and we will make every effort to respond to you on an urgent basis.
  4. If the Client is not, or includes a person who is not, an individual, we will only accept instructions from the persons designated in the Specific Terms as the Client Contact or the other representatives designated by the Client Contact. It is your responsibility to advise us in writing of any limitation or change in the authority of persons authorized to provide us with instructions.
  5. To the extent possible, all of our correspondence will be electronic, whether by email or direct interaction with our website or a secure portal. We confirm our mutual consent to the exchange of information by unencrypted email, facsimile and cellular telephone, and expressly accept the risk of loss, misrouting, interception, misuse or unauthorized receipt of all such transmissions and information by other parties.  We will have the right to continue communicating with your advisors, agents and employees by unencrypted email, facsimile and cellular telephone, and to transmit information using such means to any of them, until this consent is withdrawn by written notice to us.
  6. Although our office implements virus protection and control measures, we cannot guarantee that any or all e-mail and attachments will be free from viruses in their various forms. We strongly recommend that recipients of e-mail use anti-virus software to screen all e-mail received from external sources.  We cannot and do not accept any liability for any loss or damage, including consequential damages, that may occur as a result of the transmission or receipt of e-mail to or by recipients. If you have any doubts about the authenticity of any communication or documents purportedly sent by us, please contact us immediately.
  7. The accuracy of information is vital to our ability to provide you with competent advice. Therefore, we may, but are not required to, independently confirm information that is essential to your matter.  For example, in any situation where real property is involved, we may independently confirm title by subsearch.  Similarly, where corporations are involved, we may confirm information by reviewing public records and minute books.
  8. We will consult with you with respect to major decisions or choices, pertaining to significant alternatives or financial impacts, but we will be expected to process your legal affairs in accordance with efficient standardized procedures without consultation, recognizing that legal services must often be performed as an art rather than a science.
  9. If there is anything you do not want us to send you by electronic communication, please let us know. At your request, we can make documents and selected records in all of your matters available to you through a secure online portal.

Firm Personnel

  1. Most of the work on your matter will be performed or directly supervised by the Responsible Lawyer. We reserve the right, however, to assign other lawyers, assistants, clerks and paralegals in our firm to perform services if in our judgment that becomes necessary or desirable.  In appropriate circumstances, we will attempt to delegate work to the lawyer or staff member with the necessary qualifications and lowest hourly rate to perform the services in order to reduce your total costs.
  2. Where two or more of our lawyers consult on your file (in person or electronically), you will be billed for the time of the lawyers involved. Consultation between lawyers takes place to decide work assignments on larger matters, to delegate tasks, to determine strategy and to consult on legal issues.  This consultation is an important part of the progress of your matter, and in many ways, is the work we do for you.
  3. You can expect that our legal services will be performed on a professional and competent basis, and in a timely manner. We reserve the right to determine how the legal services provided to you are performed, and by whom they are performed.  If you have particular requirements in this regard, or as to the timeliness of our services, you should raise these with us as soon as possible, so that the appropriate resources can be directed to your particular needs.
  4. If we believe that special expertise is required from third parties, such as tax, accounting or litigation specialists, we will obtain your prior authorization before retaining their services.

Legal Fees

  1. If a fixed fee or estimate of fees has been provided in the Specific Terms, the fixed or estimated amount is limited to the Scope of Services and is based on our consideration of the materials and information you have provided to us, and assuming that nothing out of the ordinary is encountered in the course of completing this matter. With estimated fees, we are not guaranteeing that we can accomplish the work for the estimated fees, but are representing to you that in our judgment that amount appears reasonable under the circumstances.
  2. You understand that, by this Agreement, you are contracting for our time, experience, and breadth of professional expertise. Unless otherwise specifically agreed, our fees will be determined based principally on:
    • the time spent by us on your behalf, based our regular hourly rates;
    • the complexity and novelty of the issues and the amounts involved;
    • the specialized skill and knowledge of the lawyer performing the services;
    • the rights and obligations at risk or in issue;
    • the results accomplished, and the extent to which the expertise of our firm contributed to a successful outcome;
    • the tactics used by, and the resistance encountered from, other parties;
    • the extent to which any work needs to be performed on an emergency or urgent basis or outside of normal business hours; and
    • any other factors which, in the firm’s determination, would make the fee fair and reasonable in the circumstances.
  3. Where our work for you involves documenting a contract or relationship, much of the time required will depend on:
    • the extent to which the business details have been worked out – identified, addressed and agreed upon; and
    • the amount of negotiation required, whether on business or legal issues.
  4. Unless otherwise specifically agreed, you will be charged for all activities undertaken in providing legal services to you or on your behalf, including meetings, telephone conversations, voicemail, preparing and sending correspondence, legal research, consideration of issues and alternatives, development of strategy, drafting and reviewing documents and travel time.
  5. The current hourly rates of our lawyers and staff are displayed on our website and can be seen by clicking here. You acknowledge that our rates are subject to change from time to time.
  6. We will advise you before undertaking any procedures that will substantially increase the amount of fees and will proceed only upon your instructions to do so.
  7. Unless otherwise specifically agreed, we are not working on a contingency basis and payment for the services we provide is not dependent upon any particular result.
  8. If you have concerns about our inability to provide a fixed fee or precise estimate for you, please advise us now, so that there is no future confusion.

Disbursements

  1. In addition to our legal fees, you are responsible for reimbursing us for all reasonable out-of-pocket expenses we incur on your behalf and office charges allocated to your file, including land transfer taxes, government filing fees, search and registration charges, agency fees, mileage, postage and delivery expenses and any other amounts charged by third parties. Note that we do not generally charge for long distance calls and faxes and we do not charge for staff overtime on evenings or weekends in order to meet time deadlines.
  2. We will seek your authorization before incurring any substantial disbursements which are not obviously anticipated by the Scope of Services.
  3. To the extent possible, we will use the funds which we are holding in trust for you to pay for out-of-pocket expenses. Where a substantial disbursement, such as land transfer tax, is involved, we will ask you to pre-pay, or provide trust funds specifically for, such disbursement.

Taxes

  1. Unless you can provide satisfactory evidence of an applicable exemption, all fees and disbursements are subject to applicable taxes, namely the Canada-Ontario harmonized sales tax (HST), which is in addition to the actual amount of fees and disbursements.

Financial Retainer

  1. Before we begin work on your behalf, we may require a Financial Retainer to reduce the prospect of providing legal services to you without getting paid. Unless otherwise agreed, the full amount of any Financial Retainer will be placed in our trust account and will serve as a source of payment for all or part of your disbursements and our accounts when rendered.  You may be asked to replenish the Financial Retainer from time to time.  Any unused portion will be returned to you upon the completion or termination of our services.
  2. Our firm does not pay interest on Financial Retainers held in trust, nor does our firm retain any interest paid on Financial Retainers held in trust. All interest earned by a lawyer’s mixed trust account in Ontario is remitted to the Law Society of Upper Canada in accordance with the Law Society Act.

Accounts/Billing

  1. For your convenience, our accounts will be issued in the name of the Designated Payor, if any, but the Client will remain primarily responsible.
  2. Except as otherwise specifically agreed, if your matter is finite in nature and relatively brief in terms of duration, we will usually bill you upon completion of the matter. Otherwise, for matters of an indefinite or ongoing nature, our firm issues interim accounts regularly, according to the accrual of fees or passage of time or both.
  3. Where the Client is more than one person, you may decide among yourselves how our accounts will be allocated, provided that each of you will be jointly and severally liable for payment of the whole amount.

Payment Terms

  1. Payment is due on all of our accounts when rendered. If we have a Financial Retainer or other funds in trust, or a credit card on file, you authorize us to take payment from such trust funds or credit card when the account is issued.
  2. We accept payment in the form of cash (up to $7,500.00), cheques, MasterCard and Visa as well as any other form of payment accepted by PayPal. For your convenience, you can make an online payment through a secure form on our website by clicking here.  A receipt will be issued by email by no later than the next business day.
  3. If any account is not paid when rendered, interest will be charged on the outstanding balance in accordance with the Solicitors Act (Ontario) from the date of the account until it is paid in full.
  4. If your account remains outstanding for more than 15 days from the date of issuance, we reserve the right under this Agreement to cease all work on your file. In addition to ceasing work, we may commence collection proceedings against you. Such proceedings will include a claim for collection costs, including our time, and we will report all such proceedings to any credit reporting agency of which we are a member.
  5. Monies received by us on your behalf may be applied by us to any amount owing to Lexcor, or any agent acting on our behalf. You authorize and direct us to deduct, and hereby assign to us, any amount received by us on your behalf, whether proceeds, settlement, etc.
  6. The Client hereby gives to Lexcor a first charge and security interest in and against any document, asset or funds under Lexcor’s control, or the proceeds of any transaction undertaken within the Scope of Services, to the extent of unpaid accounts and interest of Lexcor or any other authorized third party who has rendered services on behalf of the Client. The security interest given to Lexcor hereunder shall constitute a purchase-money security interest in accordance with the Personal Property Security Act.

Intellectual Property Rights

  1. Where the Scope of Services anticipates that Lexcor will develop specific intellectual property for the Client, all such intellectual property will belong to the Client. Unless otherwise specifically agreed in writing, any intellectualy property developed by us in the course of providing services to you will remain our exclusive property.

Client Property

  1. Provided that all amounts due to us have been paid in full, we will return your papers and other property to you upon receipt of your request for those materials. If any amount remains due to us, we will assert a lien against any of your property in our possession, including minute books, until payment has been made in full.
  2. We will retain our own files pertaining to the matter, including our drafts, notes, internal memos and work product. We reserve the right to destroy within a reasonable time following completion of any matter any file materials retained by us.

Privacy

  1. You understand and agree that, in retaining Lexcor to provide legal services, the collection, use, retention, and disclosure of personal and other sensitive information may be required in order to fulfil those services and related obligations. A copy of our Privacy Policy respecting the management of personal and sensitive information is available to view on-line by clicking here.
  2. You agree that we may provide a link from our website to yours, and that we may make reasonable use of your name and logo on our website and other promotional materials.
  3. Although we take every reasonable precaution to maintain the confidentiality and privacy of your information, we may rent office space to, and use the support services of, persons who are not members of our firm. You hereby acknowledge and consent to the fact that these other persons may, despite our efforts, have access to your information.

Solicitor-Client Privilege

  1. Certain communications between a lawyer and client are absolutely confidential and are protected by law through “solicitor-client privilege.” Because of it, you can speak freely to us about anything relating to you or the facts in your matter. We cannot be compelled by the tax department, the police, the government, or the courts to give up anything you said that is subject to solicitor-client privilege.  The privilege is yours, not ours, so only you can waive it.  It arises when you share information in confidence in order to obtain legal advice or services.
  2. However, not all communications are protected by solicitor-client privilege. The ethical rules governing the practice of all legal professionals define the limited circumstances in which we can disclose confidential information.  Information that is not privileged, we treat as confidential.  If you have any questions about privilege or confidentiality, please feel free to ask us.

Termination of Services

  1. You have the right to terminate our services to you upon written notice to us.
  2. Subject to our obligations to you to maintain proper standards of professional conduct, we reserve the right to terminate our services to you for good reasons, which include:
    • if you fail to cooperate with us in any reasonable request;
    • if our continuing to act would be unethical or impractical;
    • if our retainer has not been paid; or
    • if you fail to pay our accounts when rendered.
  3. If you terminate our services or we withdraw, you will continue to be responsible to pay our fees and disbursements incurred up until the time we stopped acting for you.
  4. When we complete the services you have retained us to perform, we will consider the solicitor-client relationship for that matter to have been terminated and will not be obliged to advise you as to subsequent legal developments relating to this matter. If you later retain us to perform further or additional services, our solicitor-client relationship will be revived and, unless a new agreement is entered into at that time, will be subject to the terms of this Agreement.

Excluded Matters

  1. The lawyers at Lexcor restrict their practices to business law. Our lawyers do not go to court and they do not practice or provide advice on any matters involving litigation of any kind, whether or not there is a business law element.  If your matter becomes litigious, we would be happy to refer you to another lawyer or law firm who is better suited to represent your interests in that specific matter.
  2. Similarly, although our firm is regularly involved in tax planning matters, we are not tax experts and do not provide tax advice. We would be happy to work with your tax advisor or, if you do not have a tax advisor, we would be pleased to suggest some.
  3. We are licensed to practice law only in the province of Ontario. If your matter involves the law of any other jurisdiction, we will not offer any kind of opinion, or engage in any act that would constitute unauthorized practice, on your behalf, and you agree that nothing that we do on your behalf will be interpreted or considered by you to constitute a foreign legal opinion or unauthorized practice.  We may, if requested by you in any other jurisdiction, offer administrative assistance or comments of a general nature.  You agree that we will have no liability to you for damages suffered by you as a consequence of such assistance or commentary.  We do not carry insurance to cover any loss that you may suffer in the event that such assistance or commentary is incorrect or negligent.  In the event that you desire legal advice from an insured professional with respect to any opinion, advice, assistance or commentary you require relating to another jurisdiction, you should request that we retain such counsel on an agency basis, or that we refer such counsel to you so that you may retain them directly.
  4. Our representation of you is strictly limited to the performance of duties undertaken by lawyers in Ontario in the ordinary course. It does not extend to or include any other service including, without limiting the foregoing, any form of business, financial, appraisal, valuation or investment advice or assessment. You acknowledge and agree that you bear sole responsibility for seeking and obtaining any and all such additional advice or assessments as you may now or in the future consider necessary, and accept complete and absolute responsibility for all decisions made and instructions given by you in the course of this Agreement.

Amendment

  1. We reserve the right to amend these terms and conditions from time to time.