Is a lawyer permitted to pre-take fees received from clients pursuant to a fixed fee agreement directly into his general account?

In Law Society of BC v. Faminoff, 2014 LSBC 22, the respondent deposited advances received from clients pursuant to fixed fee agreements directly into his general account. He admitted to professional misconduct by doing so but explained that he had believed that he was permitted to “pre-take” advances provided under a fixed fee agreement. The panel held that the pre-taking of fees in such circumstances is not permitted under the Rules (paras. 38-40).

In Law Society of Upper Canada v. Secker, 2017 ONLSTH 116, the respondent invoiced the client a fixed fee for all services yet to be performed in a litigation matter, and deposited the client’s payment into his general account even though the requisite services has not yet been provided. The respondent admitted that he committed professional misconduct by not depositing these funds into his trust account (paras. 1(e), 8-10, 15).

In Law Society of Upper Canada v. Roper, 2020 ONLSTH 74, the respondent was an undischarged bankrupt and so did not operate a trust account. He entered into fixed fee agreements with three clients. In one instance, a written agreement was signed at which time the respondent received a substantial partial payment for which the client was invoiced. In a second instance, the initial payment was received, and an invoice prepared, a few days before a written agreement was signed. In the third instance, a written agreement was provided to the client but never signed, and the client provided an initial payment for which she was invoiced. In all three instances, the initial payment was deposited into the lawyer’s general account and spent by the lawyer before any legal services had been provided. The panel held that the lawyer committed professional misconduct by depositing the money into his general account because, under the applicable rules, money received for legal services only ceased to be trust monies once the lawyer had performed the services and delivered a bill (paras. 65-74).