In August 2002, I retained the law firm Davis LLP, then known as Davis & Company, to defend me in a highly publicized libel suit. From the firm’s Web site, I randomly picked David Foulds to be my lawyer of record. It didn’t seem to matter whom I chose for the position, since I was hiring the firm, not an individual. The choice would prove to be one of the two most fateful decisions I have ever made. This single lapse of judgment, if one may call it such, would cost me in ways that I could scarcely believe possible then, or even much later.
It didn’t start out badly, though. In fact, David Foulds began more or less as one would expect; he discharged his duty with infrequent prodding from me. And the lawsuit seemed to be on the verge of ending early when, on June 30, 2004, the opposing counsel informed David Foulds of the willingness of his clients to pay me compensation and settle out of court. The discussion took place behind closed doors, without my presence. David Foulds advised me not to consider the offer yet, and based on his advice I chose not to.
My dealings with David Foulds went sour only after I depleted my savings and was unable to write him five-figure cheques anymore. This happened before the end of 2004. Although I continued to pay his bills in instalments, sending him a minimum of $1,500 a month, his activities became sporadic; then he stopped work completely. For an entire year, from September 2005 to September 2006, the case lay dormant. He never communicated with the opposing counsel or me during this time.
On September 20, 2006, I wrote him a letter, offering him a share of the final settlement. I left it to him to suggest the percentage of the settlement he wanted; I was prepared to give him up to 45 percent if that was what it took to revive the case. If for some reason the contingency-fee arrangement was unacceptable to him, I offered to continue paying him as before, in monthly instalments. As with many of my previous letters, this one was ignored; he didn’t even bother to acknowledge receiving it.
On October 10, 2006, two weeks after my last letter, I sent him another.“Mr. Foulds, you are still my lawyer,” I reminded him. “I have paid your invoices in full. I have discharged my end of the bargain and expect you to do the same as well.” And I added, “This is the last such letter I am sending you.” I took the unusual step of sending him the letter by registered mail. And this one got his attention.
David Foulds agreed to revive the case on the condition that I pay him in advance for his services; he demanded that I send him a minimum of $1,500 a month to be deposited in an account that he termed the trust fund, which would be administered by his office. The money would be used towards the payment of his invoices only if I couldn’t settle them upon receipt, he noted. Otherwise the fund would grow in the account, ensuring his continued service.
On October 25, 2006, I sent David Foulds fourteen postdated cheques, as per his instructions, each one in the amount of $1,500. And he resumed work, careful that his fee didn’t exceed the amount in my trust fund. It was painfully slow progress; nothing that I said to him seemed to make any difference. It soon reached a stage where David Foulds gave me one half of a document one day and the other half three months later, just to drag out the case. On that day, February 14, 2007, I e-mailed him: “I know that I am at your mercy and there is not a thing I can do about it. But there must be a higher power that you fear, and I petition you in the name of that power to do the right thing and breathe life into the case. My life is wasted waiting for this case to be resolved.”
I had honoured the postdated cheques that I had sent David Foulds on October 25, 2006, and as the year 2007 progressed my trust fund was showing signs of growing, albeit at a snail’s pace. But that was not enough to inspire him to breathe life into the case. He needed repeated reminders to do the smallest of things. On July 13, it got to the point where I had to advise him in writing of my intention to bring the matter out into the open if he continued to drag his feet. That spurred him into action. Within the week—on July 19, 2007—he filed the case in court, and as the first tier of the Canadian judiciary system, the mediation date was set for April 24, 2008. It had been five years since I hired Davis LLP.
On January 8, 2008, I decided to share with David Foulds the one thing that had been weighing heavily on my mind ever since the day, over a year earlier, I had asked him to resurrect the case. “When you left the case dormant for an entire year and I was looking for a way to get you to revive it,” I e-mailed him, “I was faced with a major dilemma: Even if I managed to persuade you to breathe life into the case, would you be willing to pursue it wholeheartedly? And when I offered you a share of the final settlement as an incentive and you said you preferred the payment in advance, before even providing me with the service, I couldn’t help but wonder if you were not going to tell me in the end to settle for a pittance.” What I wanted to know was the amount of the damages that he considered appropriate now that he had seen all the evidence.
David Foulds mulled over the question for a couple of days. Then, on January 11, 2008, he e-mailed me his response—and also sent me a hard copy by registered mail. “I have considered your e-mail carefully,” he wrote. “Having done so, I regret to advise you that I have concluded that our firm can no longer continue to represent you in this matter.” He argued that I had shown “a loss of confidence” in him. “It would not be professionally responsible to represent you when you have expressed doubts about my willingness to pursue your case wholeheartedly, suggested that I have preferred my own interests over yours, and maintained that you have ‘suffered under the firm.’” I had the right to appeal his decision in court, he informed me. It could be done “in the first week of February.” And he returned to me the balance from my trust fund, some $6,000.
The lawsuit had cost me $140,000 in total to this date. (See the invoices in ‘The Evidence’ page.) And now, when I had depleted my savings and even sunk deep in debt, when my spirit was at its lowest ebb, and when my confidence in the Canadian legal system had been badly shaken, I found myself in the position that I had long dreaded: looking for another lawyer.
I hired Davis LLP based solely on the advertisement that I saw on the firm’s Web site, www.davis.ca. With seven offices scattered all over Canada and one in Tokyo, Davis LLP, I learned, employed over two hundred lawyers, covering every conceivable facet of the legal profession. The firm’s Toronto office is situated in the famous business district, where one finds the most successful names in Canadian and international business. Still, the biggest selling point to me was a statement that I saw prominently displayed against the company name. “Legal advisors since 1892,” it read. What could possibly go wrong with a firm that was almost as old as Canada?
When I picked David Foulds from the firm’s Web site at random, I placed my faith and trust in the firm, Davis LLP. If he had worked for himself, or for some obscure law firm, I would have peered closely at his track record. I knew already how taxing a lawsuit could be, not only financially but also emotionally. A lawyer–client relationship could last many years; I would have taken extra care before picking him.
There is nothing that Davis LLP can do to right the wrongs done to me. I am not seeking damages, financial or otherwise. By sharing my experience with the public, I am only hoping to help others avoid the pitfalls that caused me so much aggravation. It is also my hope that Davis LLP will take a lesson from this and mend its ways.
Nega Mezlekia
www.negamezlekia.com