In Wang v Jiang 2020 BCSC 901 the court dealt with an application by two law firms for a solicitor’s lien upon monies that they held in their respective trust accounts, so that they could pay their outstanding fees.
The court rejected the application on the basis that the lawyers did not recover or preserved the funds, but simply held them on deposit for their clients.
Section 79 of the Legal Profession Act, S.B.C. 1998, c. 9 provides:
79(1) A lawyer who is retained to prosecute or defend a proceeding in a court or before a tribunal has a charge against any property that is recovered or preserved as a result of the proceeding for the proper fees, charges and disbursements of or in relation to the proceeding, including counsel fees.
In order to support a claim for a solicitor’s lien over funds, the claiming solicitor must prove that he or she recovered or preserved the property against which the lien is claimed: Hosseini v. Oreck Chernoff, 1999 BCCA 386.
In the Wang v Jiang case, no property was recovered by either of the two law firms, nor were they able to preserve the property from which the monies they hold in trust were derived.
The court found that the two law firms did a lot of work that provided valuable services to their clients, but their services could not be remunerated from funds that did not belong to their clients.
The court agreed with the view expressed in similar circumstances by Madam Justice Loo in M.R.P. v. S.R.P., 2014 BCSC 51at para. 24, where, in rejecting a claim for a solicitor’s lien she wrote:
“I do not find that the husband’s counsel recovered or preserved property for him as a result of the proceeding. It would also be totally unfair for the husband to prefer his lawyer’s fees ahead of his obligation towards the wife and the children. He continues to not properly provide for them, and if the husband were to satisfy his lawyer’s fees ahead of him, they would be left with little, if anything.
The court for the same reason concluded that neither of the two law firms were entitled to solicitor’s liens against the funds they hold in trust.