Legal Services Commissioner’s new modus operandi

The Legal Services Commissioner has delivered a speech which captures well the changes he has wrought in that office.  It is fair to say that his new modus operandi is less legalistic, and designed to concentrate on the hard cases.  He has instructed his staff to use the telephone, and, if necessary, to jump in a taxi and go and visit practitioners.  Previously, this was an organisation with the following characteristics: Continue reading “Legal Services Commissioner’s new modus operandi”

Will clients be entitled to seek itemised bills within 7 days under the Australian Consumer Law, 2010?

Patrick Oliver, the head honcho at a cool little Melbourne-based consultancy to incorporated legal practices called Lexcel, has drawn my attention to s. 101 of the Consumer Law, 2010.  It provides for ‘consumers’ to request itemised bills from service providers, and requires that they be provided within 7 days, in default of which a pecuniary penalty may be levied.  Sub-section (5) says ‘The supplier must ensure that the itemised bill is transparent.’

There is no carve-out for lawyers. I would not be surprised if the double-regulation is fixed by legislative amendment.  Meanwhile, however, the full text of s. 101, which commences on 1 January 2011, is as follows: Continue reading “Will clients be entitled to seek itemised bills within 7 days under the Australian Consumer Law, 2010?”

Costs disclosure obligations and consequences of not complying: part 1

Here begins a series of posts on costs disclosure obligations under the Legal Profession Act, 2004, and the consequences of not complying with them.  It is a work in process, and I would be grateful for any experiences of this area of the law you might have, and any authorities of interest which I have not included.

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The legislation
We have had costs disclosure obligations mandated by legislation for a long time now.  The Legal Practice Act, 1996 came into operation on 1 January 1997, and applied to matters in which the solicitor was retained after that date, and to costs agreements made after that date: cl 18, Schedule 2.  There is a similar regime under the Legal Profession Act, 2004, which came into force on 12 December 2005 but, as we will see, the differences are kickers. The Legal Profession Regulations, 2005 contain provisions relevant to about the costs disclosure and bill disclosure regimes alike. Continue reading “Costs disclosure obligations and consequences of not complying: part 1”

Incompetence as ‘unsatisfactory professional conduct’

A barrister in NSW is being prosecuted for being incompetent in the presentation of a criminal appeal: Council of the NSW Bar Association v DCF [2010] NSWADT 291.  The incompetence of his written submissions are said to amount to unsatisfactory professional conduct.  Section  496 of the Legal Profession Act, 2004 (NSW) says that unsatisfactory professional conduct includes:

‘conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner’.

The barrister admits that his submissions were incompetent, but denies any lack of diligence.  His application for summary dismissal of the charge on the basis that unsatisafactory professional conduct requires both incompetence and a lack of diligence failed.  Either incompetence or a lack of diligence alone may warrant discipline.

On the desirability of requesting a written progress report

I deal with clients who have been economically raped by rapacious lawyers.  How these crimes  manage to be perpetrated is a source of constant amazement to me.  Of course these evildoers never provide written advice.  They would be incapable of giving it, and would never tie themselves down like that. Most Australian clients have a statutory right to written progress reports: Section 3.4.18 Legal Profession Act, 2004 (Vic), and see the other jurisdictions’ provisions below.  That says:

‘A law practice must give a client, on reasonable request — (a) a written report of the progress of the matter in which the law practice is retained’.

Many clients would be well advised to exercise this right.  A request might say:

‘Dear Madam,

I would be grateful if you would provide me with a written report of the progress of this matter, under s. 3.4.18 of the Legal Profession Act, 2004.  In particular, I would be interested to know [specify].

Yours etc.’

The consequences for the lawyer of not complying are probably spelt out in s. 3.4.17, and are very significant: Continue reading “On the desirability of requesting a written progress report”