Principato and proportionality: Balancing value, benefit, and risk
Two weeks ago, the Ontario Superior Court of Justice sent a message to family lawyers (other litigators should take notice, too!) via a costs ruling in Principato v. Principato, a somewhat tortured family law proceeding.
The Principatos, it turns out, are like the vast majority of us: They lack the personal wealth sufficient to pay for a full-court litigation press over each and every issue that has arisen in their divorce. At the beginning of their litigation they were angry; now they are angry and broke. The proceeding, which the court described as still “in its infancy” (there had been a case conference, and some preliminary motions) had already gobbled up $92,000 of their money. And now the court was being asked to consider costs submissions in the amount of $15,000 from each side.
The response from Justice R.D. Gordon? Providing “Cadillac service” to clients without Cadillac means merits a reminder that lawyers have “a professional obligation to conduct litigation in a manner which reflects the means of the client and the issues which present.”
In this case, the court conceded that some clients can be resistant to a “proportionality analysis”; however, this does not absolve counsel from attempting to explain that “availability of certain actions does not equate to the appropriateness of those actions.” When impecunious clients won’t listen, counsel should, we’re told, “reflect upon whether they wish to act for a client who will not follow their advice.”
Justice Gordon was not specific about what counsel ought to have done instead. We all know that courts seem equally alarmed when the pendulum swings too far in the opposite direction: toward self-representation. Struggling to find an appropriate middle ground that achieves justice, avoids most serious risks, and remains within clients’ means is likely the most important issue in family practice today. For more on this, see “What keeps you up at night?” from the August 2012 issue of LAWPRO Magazine.
Clients are not the only parties who assume risks when they opt for scaled-back service. “Unbundling” family law services requires very clear lawyer-client communications, lest lawyers be exposed to claims based on incomplete service. Two articles on unbundling appeared in the January 2012 issue of LAWPRO Magazine: Unbundled legal services: Pitfalls to avoid by Dan Pinnington, and Unbundling and family Law: A cautionary tale by Debra Rolph.
Proportionality analysis? Unless your law office parking lot is jammed with Cadillacs, you’re doing it every day. Visit practicePRO for more tips on how to do it right.
Update March 8, 2013: By way of update, we have learned that the respondent in the Principato matter filed a motion (he characterized it as a “request for reconsideration”) of the no-costs order. After expressing uncertainty that the motion was proper in the first place, Justice R.J. Gordon reaffirmed his original order that the parties ought to bear their own costs with respect to the child support motion.