Revamp billing, McMurtry urges lawyers

In short, he questioned whether the hourly billing system encourages lawyers to drag out the case, instead of working for an early, and cheaper, resolution.

The Toronto Star
February 4, 2001

Revamp billing, McMurtry urges lawyers

Ontario's lawyers should change the way they bill their clients to keep the courts from becoming a preserve for the well-off, Ontario's most powerful judge warns.

In a speech he conceded is “probably guaranteed to raise the hackles of most law firm managers,” Chief Justice Roy McMurtry threw down the gauntlet to several hundred lawyers yesterday at a legal seminar, challenging them to make their services more affordable for the ordinary person.

The problem, he said, is an age-old practice of billing by the hour, instead of by the case.

“We are facing many, many more unrepresented litigants in the courts,” McMurtry told the gathering, sponsored by the Ontario section of the Canadian Bar Association.

Referring to a 50-year-old British study that concluded “the expense of civil litigation in England is speedily making it a luxury beyond the reach of most individuals,” McMurtry said the situation in Ontario today isn't much different.

The British conclusion, half a century old, is “a sentiment that has, of course, been repeated many times in Canada,” McMurtry observed.

McMurtry said the debate over how to bill should “continue in a principled fashion, given its importance to the public interest.”

Acknowledging he might not be too popular for telling lawyers they should consider placing ceilings on the fees they charge, McMurtry nevertheless soldiered on, describing the need to ensure the individual citizen's access to justice as “the greatest challenge for the legal profession.”

He challenged the lawyers to come up with their own suggestions to ensure people are not locked out of the courts by crippling lawyers' fees.

McMurtry mentioned one critic of the hourly billing approach who wrote that “it seems obvious the lawyers have no direct incentive to economize in the provision of services.”

In short, he questioned whether the hourly billing system encourages lawyers to drag out the case, instead of working for an early, and cheaper, resolution.

Though lawyers' hourly fees vary widely, some do charge block fees and the province's legal aid plan uses a block fee approach.

Under block fees, the lawyer sits down with the client at the start of the case, and an over-all fee to cover all services is agreed on - regardless of the amount of time spent.

Criminal lawyer Brian Heller, an organizer of the seminar, acknowledged the issue of billable hours is a “very, very hot topic because there are people who cannot afford to access justice.”

But, Heller said, there is “a middle of the road solution,” because “you can have firms that are structured appropriately so that their staff can handle the work on a competent level at a lesser rate.”

“It depends on who in the firm is slated to do the work,” Heller added. “And you can have juniors do the work as long as it is done competently at far less an expensive (hourly) rate than a senior counsel.”

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