Stephen Warne on professional negligence, regulation and discipline around the world

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On the desirability of requesting a written progress report

December 2nd, 2010 · 1 Comment

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: the client need not pay the lawyer’s fees, and the lawyer may not sue for the fees until they have been the subject of a solicitor-client taxation (now called a ‘review’) at the lawyer’s expense (s. 3.4.45), and on the taxation the fees are to be reduced proportionately to the seriousness of the failure to comply.  Furthermore, non-compliance may amount to unsatisfactory professional conduct or, if deliberate, professional misconduct, and so result in disciplinary sanctions for the lawyer, and provide a good basis for disciplinary complaint on the part of the client.  I say ‘probably’ because it is not entirely clear to me that the information required to be provided by s. 3.4.18, which comes after s. 3.4.17, is within the class of ‘disclosures’ failure to give which carries the consequences just outlined.

The other jurisdictions’ provisions are:

Section 317 Legal Profession Act, 2007 (Qld);

Section 312 Legal Profession Act, 2006 (NT);

Section 301 Legal Profession Act, 2007 (Tas);

Section 269 Legal Profession Act, 2008 (WA);

Section 218 Legal Profession Act, 2004 (NSW);

Section 278 Legal Profession Act, 2006 (ACT).

I have never heard of anyone exercising the right.  There are no cases which flesh out what is necessary to comprise a ‘report of the progress of the matter’.

See also:

Tags: costs disclosure defaults · Professional fees and disbursements