Mr Butcher finds fees payable where solicitor retained but instructed to do nothing

In Wilkins’s Case [2006] VCAT 2199, an unrepresented solicitor appeared in VCAT against an unrepresented former client in a dispute about costs instituted by the former client under the Fair Trading Act, 1999. The solicitor did some work for a beneficiary of a deceased estate. Then the beneficiary said he instructed the solicitor to do nothing, without terminating the solicitor’s instructions. The other beneficiaries and the estate were doing things, however, and the beneficiary had expressed his desire to challenge the estate. He complained when he received two bills for about $3,500. Mr Butcher found that in truth the solicitor had had a watching brief, and accepted the solicitor’s submission that he was “damaned if he does and damned if he didn’t” in that to do nothing would “be laid open to a charge, possibly of a disciplinary nature and potentially a dispute by a client saying that his failure to take action gave rise to liability for the client’s loss” (though it is hard to see how¬† a solicitor could possibly get into trouble for following explicit instructions so long as he had properly explained the risks). Mr Butcher found:

“Given that vital correspondence can be sent to a legal practitioner under those circumstsances, he is under a duty to seek the client’s instructions concerning that material and in doing so to advise the client of the significance of that material. It is clear that this has been the situation in this matter.”

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