Lessons Learned for Maintaining a Lengthy Relationship

October 13, 2015

contract

By Kelly Melnyk – Thompson Rivers University 3L JD Student

Earlier this year, it was announced that the Canadian Football League Players Association (CFLPA) had severed its relationship with Edmonton lawyer, Ed Molstad, after nearly 40 years. The change came after a round of negotiations in 2014 that left some players questioning the abilities of Mr. Molstad. It had also been alleged that Mr. Molstad had been overcharging the Union for services during his tenure as counsel, although that complaint was dismissed by the Law Society of Alberta.

The move by the CFLPA is one that should draw the attention of both Players Associations and young lawyers seeking to break into the field of sports law. These two sides are interrelated in that there is a certain level of responsibility that each party needs to accept. The elected representatives of the CFLPA and counsel both owe a duty to the members of the Union and so it becomes a matter of ensuring that the relationship best embodies this principle.

As a lawyer, being criticized for ones abilities and having their ethics questioned publicly by their own client can shake the willingness to represent said client to the best of their ability. However, representing your client’s interests even when they misbehave is an essential skill to maintain or restore the relationship, a skill that many young lawyers aspiring for work in the CFL should develop.

In a relationship that had lasted longer than many marriages, the CFLPA and Mr. Molstad found themselves in a situation that revolved around the question, “What happens when the relationship appears unable to sustain the duty?” The questions concerned Mr. Molstad’s abilities but also perceptions of overcharging appeared to have destroyed the trust in the relationship between counsel and client, making it impossible to continue on. Despite the concerns over performance and costs, the CFLPA issued a warm statement over Mr. Molstad’s contribution to the sport and the CFLPA over the last 40 years.

One cannot help but wonder if nearly 40 years of working together brought a level of complacency on both sides. In the complaint to the Law Society, the practice of charging a flat fee of $400,000 to the Union, plus a further $200,000 was found to be exorbitant by the complainant players. Mr. Molstad demonstrated that the hourly fee for his services would have amounted to nearly $1 million for that same year. This seemed to further enflame the complainants, demanding an explanation to some of the line items in the billings.

As up and coming lawyers, we are taught to ensure that our clients know what we are billing for and to track our hours. Using vague descriptors, such as “review of files” as alleged in the complaint, do not aid in maintaining a trusting relationship with the client. A senior lawyer ought to have kept better records of for the file but does this constitute a breach of the ethical obligations? The law society did not seem to think so. When representing some 500 players, the accountability is to be there on both the part of the lawyer and the CFLPA executive.

Providing a detailed accounting of services rendered for a large sports organization that can justify the cost is just one skill that a lawyer should have in order to build and maintain the client relationship. The Union bears responsibility for reviewing the bill and agreeing with the charges before proceeding with payment for the services. This was supported by the law society and is the practice in many industries. Rather than having a few members launch a complaint with the law society against counsel, the CFLPA should have pursued the concerns internally so as to avoid the public concerns that arise out of such allegations.

In any relationship, whether as the lawyer or the client, it is necessary to ensure that the communication is open to avoid a total breakdown of the relationship. Lawyers looking to step into roles with players associations should view the outcome between the CFLPA and Mr. Molstad as a cautionary tale on the duty and obligations to the client. Seemingly simple steps such as clear billing and communication allow lawyers and player’s unions to build and maintain trust. Had these steps been followed by Mr.Molstad and the CFLPA the relationship could have been extended for another ten years or more.

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