Illegal Practice of Law ‒ Nullity of an Agreement for Services Whose Object and Cause Are Contrary to the Act Respecting the Barreau du Québec
On July 13, 2017 Justice Chantal Gosselin of the Court of Québec rendered an important decision in a matter involving the illegal practice of the profession of advocate.
Mtre Camirand, a lawyer (“Camirand”), had a business relationship with a joint-stock company named Québec Ticket Inc. (“Québec Ticket”) that specialized in contesting traffic tickets. Pursuant to agreements for services concluded with Québec Ticket between 2008 and 2014, Camirand provided various legal services to it, for which he invoiced it a monthly fixed amount. Québec Ticket directly invoiced its clients who had received professional services rendered by Camirand. The services agreements with Camirand specified that he was an independent contractor.
In 2014, Camirand provided a legal opinion to a Mr. Savage (“Savage”) in connection with a statement of offence for impaired driving. Savage paid an invoice in the amount of $2,050 to Québec Ticket for services rendered by Camirand. He then applied to the Québec Bar for conciliation of the account for services rendered. His application culminated in a conciliation agreement whereby Camirand had to reimburse $2,000 to Savage for the fees he paid to Québec Ticket, which Camirand did on May 27, 2014.
In the meantime, the services agreement between Camirand and Québec Ticket was terminated in the spring of 2014. After paying Camirand’s March and April 2014 invoices for services rendered, Québec Ticket refused to pay his May 2014 invoice. Camirand subsequently instituted an action seeking damages for unpaid remuneration in lieu of sufficient prior notice of termination of the services agreement ($6,898.50), reimbursement of the $2,000 he had to pay Savage, and $2,000 for trouble, annoyance and inconvenience.
Analysis and recap of applicable principles
Justice Gosselin first of all analyzed the agreement for services between Camirand and Québec Ticket to determine whether or not it was legal in light of the applicable legislation. She specifically considered the following legislative provisions:
The Civil Code of Québec1 (the “CCQ”) provides that a contract is an agreement of wills that is formed by the sole exchange of consents between the contracting parties2. A contract must have a valid cause and object3. A contract whose cause or object is prohibited by law or contrary to public order is null and is deemed never to have existed4.
The Act respecting the Barreau du Québec5 (the “Act”) allows a lawyer to carry on his professional activities within a joint-stock company6, either alone or with persons governed by the Professional Code7 or members of other professional associations identified in the Regulation respecting the practice of the profession of advocate within a limited liability partnership or joint-stock company and in multidisciplinarity8, in accordance with specific terms and conditions.
In addition, the Act provides for various situations where a person who is not a member of the Quebec Bar is deemed to be illegally practising the profession of lawyer where: the person usurps the functions of a lawyer; (2) the person acts or claims to act as lawyer, or (3) the person acts in such a manner as to lead to the belief that he is authorized to fulfill the functions of or to act as an advocate9.
The Act also creates a presumption of illegal practice of the profession of lawyer where a person other than a member of the Bar: (a) associates himself for the practice of the profession with a lawyer or shares with him in any way or by any means the benefit of professional fees or earnings, or (b) causes the fees or professional earnings of a lawyer to be transferred, in whole or in part, to him or any other person, in consideration of the fact that such other person (1) gives or promises cases or business to such lawyer, or (2) pays him or promises him a salary or any other remuneration10. The Act also provides that any person other than a member of the Bar shall be deemed to be illegally practicing the profession of lawyer who procures, promises or agrees to procure for a third person professional services, without any liability on his part towards the lawyer for his charges11.
After analyzing these provisions, Justice Gosselin on her own motion deemed the services agreement between Camirand and Québec Ticket to be null because its object and cause were prohibited by the Act. Pursuant to the agreement, Québec Ticket was indirectly offering legal services to third persons and was receiving legal fees, which is prohibited by the Act.
Because of the nullity of the agreement for services, it was deemed never to have existed, such that Camirand could not be awarded $6,898.50 for legal services that he rendered but was not paid for, or the amount of $2,000 for trouble, annoyance and inconvenience. However, because of the operation of subrogation12, Justice Gosselin concluded that Québec Ticket had to pay Camirand the $2,000 that he had reimbursed to Savage pursuant to the conciliation agreement.
This recent case confirms that a Court can, of its own motion, deem null and void an agreement for services whose cause or object is prohibited by the Act. Practicing lawyers, and particularly those practicing within a corporation, must at all times ensure that they are complying with the Act and the regulations thereunder in order to avoid civil suits or penal prosecutions for illegal practice of the profession.
The author reminds practitioners that a lawyer who contravenes the provisions of the Act also exposes him or herself to deontological sanctions.
1 CQLR, c. CCQ-1991
2 Articles 1376 and 1385 CCQ
3 Article 1385, paragraph 2, CCQ
4 Articles 1411, 1412, and 1422 CCQ
5 CQLR, C. B-1
6 Article 125, paragraph 1 CCQ
7 CQLR, c. C-26
8 CQLR c. B-1, r. 9, s.1
9 Supra, note 1, s. 133
10 Supra, note 1, s. 134
11 Supra, note 1, s. 135
12 Article 1651 CCQ