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Another solicitor struck off for not paying counsel’s fees

October 17th, 2012 · No Comments

A South Australian solicitor has been struck off for a panoply of wrongs, one of which included failing to pay counsel’s fees: Legal Practitioners Conduct Board v Wharff [2012] SASCFC 116.  On this subject, broadly construed, see also: Council of the Law Society of NSW v PJB [2012] NSWADT 153Council of the Law Society of NSW v ML [2012] NSWADT 146, and Council of the Law Society of NSW v HI [2012] NSWADT 203 (where the NSW solicitor was struck off).  See also Legal Services Board v G-J [2012] VSCA 68 (re the Quistclose trust which may arise when a client pays solicitors moneys for the specific purpose of paying counsel’s fees), Victoria Lawyers RPA Limited v M O Lawyers Lawyers Pty Ltd TO217 of 2002, 31 October 2001 and Law Institute of Victoria Limited v SO & GS,TO555 & TO556 of 2005 10 November 2005, and Legal Services Commissioner v JHMcC [2011] VCAT 231 noted in this post.

In Wharff,  A Full Court of the South Australian Supreme Court (Kourakis CJ, Blue and Stanley JJ) said:

‘A solicitor who engages a barrister or solicitor agent undertakes a personal liability, either in honour or in contract as the case may be, to pay the barrister’s or agent’s fees, unless otherwise agreed.[3]  Where a legal practitioner undertakes such a personal liability, it is unethical to ignore his or her obligation, and hence a wilful or persistent refusal or failure to pay fees can amount to unprofessional conduct.[4]’


[3]    Rhodes v Fielder, Jones and Harrison [1918-19] All ER 846 at 847 per Lush J (Sanke J agreeing); Re Robb (1996) 134 FLR 294 at 310 per Myles CJ, Gallop and Higgins JJ.

[4]    Rhodes v Fielder, Jones and Harrisons [1918-19] All ER 846 at 847 per Lush J (Sanke J agreeing); Law Society of New South Wales v McCarthy [2002] NSWADT 58 at [46] per Malloy, Robinson QC and Kirk; Law Society of New South Wales v Graham [2007] NSWADT 67 at [29] per Karpin ADCJ, Pheils and Fitzgerald.

The full passage is as follows:

‘Failure and refusal to pay barrister’s and agent’s fees

  1. In December 2001, the practitioner engaged Mr Hamwood, a barrister, to appear in the Family Court in Brisbane.  On 12 December, Mr Hamwood rendered an account for $1,980.  The practitioner never paid that account or any part of it.
  2. In late 2001 or early 2002, the practitioner instructed Mr McKell, a solicitor, to act as his agent in two matters in New South Wales.  Mr McKell rendered accounts which the practitioner never paid.  On 21 March 2002, the practitioner spoke and wrote to Mr McKell.  He said that he would pay the outstanding costs by the end of March.  On that basis, Mr McKell undertook further work in one of the matters, but the practitioner failed to make any payment.
  3. Each of Mr Hamwood and Mr McKell complained to the Board.  In December 2002, the Board published their complaints to the practitioner and sought a response within 14 days.  Despite several reminders, the practitioner did not respond to the complaint by Mr Hamwood until March 2003, when he gave a limited response and sought two weeks in which to provide a more substantive response. Despite further reminders, he did not provide the more substantive response in relation to Mr Hamwood or his response in relation to Mr McKell until March and April 2004.
  4. A solicitor who engages a barrister or solicitor agent undertakes a personal liability, either in honour or in contract as the case may be, to pay the barrister’s or agent’s fees, unless otherwise agreed.[3]  Where a legal practitioner undertakes such a personal liability, it is unethical to ignore his or her obligation, and hence a wilful or persistent refusal or failure to pay fees can amount to unprofessional conduct.[4]

    [3]    Rhodes v Fielder, Jones and Harrison [1918-19] All ER 846 at 847 per Lush J (Sanke J agreeing); Re Robb (1996) 134 FLR 294 at 310 per Myles CJ, Gallop and Higgins JJ.

    [4]    Rhodes v Fielder, Jones and Harrisons [1918-19] All ER 846 at 847 per Lush J (Sanke J agreeing); Law Society of New South Wales v McCarthy [2002] NSWADT 58 at [46] per Malloy, Robinson QC and Kirk; Law Society of New South Wales v Graham [2007] NSWADT 67 at [29] per Karpin ADCJ, Pheils and Fitzgerald.


  5. The practitioner not only failed to meet his professional obligation to pay Mr Hamwood and Mr McKell, but he compounded his failure by failing to respond satisfactorily to communications from the complainants and the Board.  It is evident that there was no bona fide dispute concerning the practitioner’s liability to pay the fees because his counsel submitted to the Tribunal that the only reasons the fees were not paid was because he did not have the financial resources to pay them.  However, the fees were incurred within the first 12 months of the practitioner’s practice on his own account, he continued to practice thereafter for over a year without paying the fees, he did not advance to the complainants or the Board while he was practising an inability to pay the fees as his reason for not having paid them, and he had induced Mr McKell to continue to act on the basis of a promise to pay the fees within 10 days.’

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Tags: Misconduct · Professional fees and disbursements · Striking off