VCAT cancels bill and leaves solicitor wholly unremunerated for sloppy work

stephen — Tue, 04 Mar 2008 00:51:12 +0000

Praag v W & T Lawyers [2008] VCAT 307 was a rare thing: a case in VCAT’s Legal Practice List actually prosecuted pursuant to the Legal Profession Act, 2004. Mr Praag was his late mother’s executor. Before her death, she lived in Canberra. Her assets were a house in Canberra and $50,000 cash. Mr Praag went to the respondent solicitors who said they would get probate of the will for $2,800. The scale cost for doing so was $499. They did not otherwise comply with the costs disclosure regime in the Legal Profession Act, 2004. In fact it was unnecessary to get probate in Victoria, and it would have been better to have got it in the ACT. Though Mr Praag was able to withdraw the cash from the Bank with the Victorian parchment, he was unable to deal with the house unless he resealed the probate in ACT, which cost a bit extra on top of the cost of getting probate. Member Butcher mentioned several ‘concerns’ he had before concluding:

‘In all I am concerned that the legal practitioner has not done the right thing by Mr Praag on a variety of levels. Having regard to all of the above I am satisfied that it is appropriate to order that the account rendered by the respondent to the applicant dated 19 October 2006 is cancelled and the respondent is ordered to pay the sum of $2,800.00 to the applicant forthwith’

Sounds a bit harsh, really, until you notice that the solicitors did not appear at the hearing. Had the solicitors turned up, they might have made an argument that they did what they agreed to do successfully for the amount the client was prepared to pay, though whether such an argument would have been available to them we can only guess at on the facts recorded in the brief reasons. If a client knows in advance exactly how much a job is going to cost, and agrees to that fee, all the other costs disclosures (like who within the firm is going to do the work, that itemised bills must be sought within 30 days, and that interest will accrue at a certain rate on unpaid bills) are subsidiary, and a failure to make them would not, in many cases, justify keeping the lawyer out of his fees altogether. Compare, for example, the Court of Appeal’s guidance on this issue in Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) [2007] VSCA 280 (discussed by Legal Eagle here).

Roisin Annesley’s Victorian Barristers’ practice guide

stephen — Sun, 29 Oct 2006 03:02:38 +0000

The Bar has produced a practice guide. It is a great achievement and stands as a beacon for the Law Institute’s future efforts at promulgating knowledge of the practice rules. The Bar actually has something called the Professional Standards Education Committee. Written by Roisin Annesley, it was launched by Victoria Marles, the Legal Services Commissioner on 18 October 2006, and distributed free to every member of the Bar. Annesley has done a lot of work as Counsel Assisting the Legal Profession Tribunal (and continues to do occasional work assisting the Legal Practice List at VCAT). A doyen of professional discipline, Paul Lacava SC, and a judge who has excoriated Professional Standards, Justice Gillard, are credited with substantial involvement. It has chapters on:

the concept of the independence of the bar;
the regulatory regime for barristers;
duties to the court;
duties to the client;
conflicts;
fees;
direct access;
etiquette;
special duties in criminal cases; and
common grounds of ethical complaint or negligence.

It also contains the full text of the Bar’s Constitution, the practice rules, the parts of the Legal Profession Act, 2004 dealing with fees, a list of approved direct access bodies, and a collection of bulletins from the Bar’s Ethics Committee.

The Australian Professional Liability Blog » “professional negligence”

VCAT cancels bill and leaves solicitor wholly unremunerated for sloppy work

Roisin Annesley’s Victorian Barristers’ practice guide