Ex-Files with Jeremy Sutton: Would the court allow my lawyer to pull out of a hearing if I didn’t pay him in time?

There are options if you have a really big legal bill. Photo / 123RF

OPINION

Q: My ex-wife and I have been unable to agree on care arrangements for our two daughters since our separation. We have had proceedings in the Family Court which have been ongoing for two years. A week-long final hearing has been scheduled for three months from now. To date, I have paid my lawyer $75,000 in legal fees. Yesterday he sent me a letter saying he requires me to pay a retainer of $30,000 within a fortnight to cover disbursements and preparation for the hearing. He complained that I paid the last invoice late. He said he would request the court’s permission to withdraw from acting for me if I did not pay the retainer in time. This seems unfair given the amount I have already paid him.

Would the court allow my lawyer to withdraw from acting even though a hearing has already been scheduled?

What are my options? If I were to change lawyers, would this be unusual at this stage in the court proceedings? If I were to do so, how would I make sure my case is not disadvantaged?

A: Whether your lawyer could withdraw from acting for you

The court would likely allow your lawyer to withdraw from acting if you do not pay the retainer requested on time. In deciding whether to allow a lawyer to stop acting, the court will consider whether:

1. There is good cause to allow the lawyer to withdraw; and
2. The extent to which all parties involved in the proceedings are prejudiced.

The legislation specifies that “good cause” includes the failure of a client to pay a fee on the agreed basis. Lawyers are required to provide clients with a written “Terms of Engagement”. You should re-read this document. It is likely to state your lawyer will stop doing further work for you if you do not pay their fees. Although your hearing date has already been set down, it is still three months away, so a judge would likely take the view that this is sufficient time for you to arrange alternative representation.

Options for payment

If you are happy with your lawyer’s representation of you to date, and the only issue is fee payment, then it is worth discussing with him whether he is open to an alternative payment arrangement. A benefit of staying with your lawyer is that they are already familiar with your case. If you change representation, a new lawyer would have to spend time (and would charge fees) for reviewing your files.

Some alternative payment arrangements you could discuss with your lawyer are:

1. Payment in installments: You could request that the lawyer allow you to pay an agreed sum towards your legal fees on a weekly, fortnightly or monthly basis;
2. Payment of a fixed fee: You could request that your lawyer specify a fixed fee for you to pay to cover their work to the conclusion of the hearing. Many lawyers still operate by charging an hourly rate billed in six-minute units, but some lawyers will depart from this and set fixed fees. This would give you greater certainty about what your fees will be.
3. An extension of time: If you need more time to come up with funds to pay the retainer, then you could request an extension of time for payment.
4. If your expenses are high, relative to your income, you could apply for legal aid. You may need to change to a legal aid lawyer for this purpose. Legal Aid Services recognise the cost of living crisis.

Overall, the fees charged by your lawyer should be fair and reasonable, considering the complexity of the case. If you think an invoice that has been issued is unreasonable then you could request a breakdown of the work undertaken and/or discuss the invoice with your lawyer. You also have the option to file a complaint about the fee with the New Zealand Law Society (which will usually consider the complaint if the fee is over $2000 and the invoice was issued within the last two years). Discussing the issue directly with your lawyer first is usually the best option.

You could also request that your lawyer provide you with an estimate of legal fees to the conclusion of your hearing (if he has not already provided this).

Changing lawyers without prejudicing your case

Some parties do elect to change legal representation before a hearing; it would not be considered “unusual”.

To avoid any disadvantage to your case, it would be best that you instruct your new lawyer as soon as possible so that they can begin preparation for the hearing. Your current lawyer will likely only release your file to them once any outstanding legal fees have been paid.

Jeremy Sutton is a barrister and family lawyer at Bastion Chambers.