Justice Byrne construed a no-win no-fee costs agreement in Maurice B Pty Ltd v Burmingham  VSC 20. It was drafted by the solicitors and presented as a printed document for signature. His Honour construed it so as to resolve any ambiguities in favour of the client, invoking Clare v Joseph to reiterate the courts’ jealous supervision of lawyer-client relations to guard against the exercise of undue influence: Continue reading “Costs agreement read contra proferentem”
Imagine this. A beneficiary thinks a trustee is diminshing the trust estate by spending too much on lawyers. They have no standing to seek a taxation of the trustee’s solicitor’s bill, and the trustee’s solicitor’s file is unavailable to them by virtue of legal professional privilege enjoyed by the trustee. The beneficiary has no contractual or equitable relationship with the solicitor. You might think they’re rooted. But you would be wrong, for the beneficiary may apply to VCAT’s Legal Practice List for an order that the solicitor pay to the disgruntled beneficiary that beneficiary’s share of so much of the fees properly and reasonably charged by the solicitor on instructions as represents the difference between what a reasonable trustee would have spent and what the trustee, perhaps over-anxious by disposition, in fact spent. So says VCAT’s Legal Practice List’s decision in Sinni v DO  VCAT 135. I should disclose that I appeared in a directions hearing in this matter. Continue reading “The disgruntled beneficiary and the executor’s lawyer”
In Zhang v VP302 SPV  NSWSC 73, a solicitor negotiated a contract for the purchase of property by his clients. The vendor’s solicitor sent a draft contract. The purchasers’ solicitor went through it with his clients. They specified changes they required. The purchasers’ solicitor put the changes to the vendor’s solicitor. The vendor’s solicitor substantially accepted the changes, but in purporting to document them fiddled around the edges so that what was sent back was in effect a counter-offer. The purchaser’s solicitor already had a signed contract from his clients. They had signed the execution page. The solicitor played around with the contents of the previous pages so as to accept the vendor’s counter-offer, and sent off to the vendor’s solicitor the part signed by his clients. It is not suggested that he was not acting in what he considered to be his clients’ interests. But he did not take his clients’ instructions before agreeing to the counter-offer by sending off the part signed by them, amended in accordance with the counter-offer.
The purchasers desired to get out of the contract. They said that they had never agreed to some of its terms. The vendor’s position, not surprisingly was —
Too bad! your solicitor agreed to the terms we proposed on your behalf, we had no reason to believe he did not do so with your authority, we were entitled to rely on his ostensible authority, and you’re stuck with it. If you’ve got a problem go sue him.
Sounded like a lay down misere for the vendors to me, but this decision unearthed a panoply of authorities for the proposition that a solicitor has no ostensible authority to bind his client to an ordinary contract. (I say ‘ordinary’ because some kinds of contracts lawyers clearly do have ostensible authority to bind their clients to, for example contracts for the out of court settlement of litigation.) Justice White of the NSW Supreme Court found for the vendor on this question in the end, but had to get over a lot of hurdles along the way. This was his Honour’s review of the authorities, and analysis of this issue: Continue reading “Solicitor’s ostensible authority to contract on behalf of client”
This post has been sitting around as a draft waiting to be finished. There is little chance of that for a long time. So here is my incomplete annotation to s. 103 of the Legal Practice Act, 1996. That is the provision which gives VCAT (formerly the Legal Profession Tribunal) jurisdiction to set aside costs agreements on a statutory basis peculiar to that species of contracts. All costs agreements in all matters in which first instructions were taken prior to 12 December 2005, regardless of when the costs agreements were entered into, may be argued to be governed by the old Act. So there is some life left in the old s. 103 yet. Continue reading “Applications to set aside costs agreements”
Update, 14 February 2009: A judge of the Supreme Court of South Australia said this in Everingham v Mullins  SASC 448:
’12 The appellants maintain that Stanleys undertook an entire job and were not entitled to be paid when they were reluctant to continue the third set of proceedings. The Magistrate found: (par 28)
“There had been a complete breakdown in the solicitor/client relationship. Mr Bourne said that he could not get a simple task done by a junior solicitor without criticism from the Everinghams, and by then he felt that he was in a conflict situation because he had no enthusiasm to act in the third judicial review and therefore he was not any longer prepared to act. By offering the Everinghams the option of going to another solicitor he felt that the conflict would resolve. I should point out that the third judicial review was in turn discontinued, apparently on the advice of Caldicott and Co.”
13 The instructions came to an end by mutual consent. Mrs Everingham refused even to speak to a junior solicitor who was sent to a routine listing conference by Stanleys. In my opinion, the Everinghams were not entitled to avoid paying their solicitors by reason of the circumstances in which the relationship came to an end.’
Update, 13 July 2008: A commenter, ‘purplehazel’, has provided such a learned response that I repeat it below. Let’s keep working on this problem people, and see what the readers of this blog can come up with:
I think asking for “authority for the proposition that a solicitor may terminate a client retainer where the relationship of solicitor and client has irretrievably broken down?” is too broad a question. You have to consider the reasons for the breakdown.
The solicitor can’t get rid of the client on a whim, but case law and practice rules would support it the following contexts; refusal to comply with discovery, committing or telling the solicitor of plans to commit perjury, potential ‘abuse of process’ scenarios that you can’t talk the client out of and situations where the client wants you to break the law.
As for case law that simply refers to the ‘breakdown of the relationship’ all I’ve been able to come across so far is this:
Para  of Ahmed v Russell Kennedy (a firm)  VSC 41 (23 February 2000)
“ I do not see why the learned magistrate should not have concluded that each of the appellant’s refusal (or failure, in the circumstances) to pay any outstanding disbursements, and the breakdown in the solicitor/client relationship – in the context of what his Worship might have concluded was the appellant’s knowing misstatement of the terms of the retainer – gave good cause for the solicitors to terminate the retainer.”
But…reference to the ‘breakdown in the solicitor/client relationship’ does seem to be a consequence of the fee dispute and not a separate ground. It did however cause me to have a closer look at Underwood Son & Piper v Lewis  2 QB 306 [a decision of the English CoA] which Halsbury’s laws of Australia has as the leading case.
Underwood is authority for the idea that the retainer is an entire contract and can only be terminated by the solicitor on “good cause and reasonable notice”. It includes analogies about cigars and shoes from Re Hall & Barker ((1878) 9 Ch D 538 at 545):
‘If a man engages to carry a box of cigars from London to Birmingham, it is an entire contract, and he cannot throw the cigars out of the carriage half-way there, and ask for half the money; or if a shoemaker agrees to make a pair of shoes, he cannot offer you one shoe and ask you to pay one half the price.’
However, Underwood doesn’t just refer to a client’s failure to put the solicitor in funds to meet disbursements; to insistence by the client that the solicitor take some dishonourable step; and to circumstances where the client hinders /prevents the solicitor’s actions [the 3 instances related in Halsbury’s laws of Australia at [250-465] footnote 9] it also includes this obiter comment from AL Smith LJ:
“and many cases situations may be supposed in which the solicitor may be entitled to refuse to act for the client any further.”
Interesting that the cases citing Underwood seem less about what the solicitor may or may not do, and more about whether they can’t stop acting and still expect to be paid for what they’ve done so far (or to keep payments already received).
Relevant questions on the facts – is there one contract with the client or a series of separate ones? to what extent can a written costs agreement or other agreement that sets up the retainer simply take the relationship between the parties out of the realm of the ‘entire contract’ altogether?
There’s another passing reference (which doesn’t really help much) in R v Promizio  NSWCCA 75 (31 March 2004) at .
Conflicts between self interest [the risk of disciplinary or other sanctions] and the duty to the client would arise in the examples I suggest in the second paragraph of this comment – but they are probably best seen as part of the duty to uphold the law/duty to the court.’
Original post: One of the solicitors I have done some work for has several times told me that she ‘sacked the client’. Though clients can terminate the solicitor-client relationship without notice and for whatever reason they like, there are limits on solicitors’ entitlement to do so; even non-payment of fees only entitles you to cease acting pending payment, at least until the situation becomes chronic. I am going through a phase of looking unsuccessfully for authority for propositions I thought I know to be correct, and not finding them. Hence this call to readers: can you point me to authority for the proposition that a solicitor may terminate a client retainer where the relationship of solicitor and client has irretrievably broken down? Or authority for the proposition that in that situation, a solicitor ought not to continue acting because to do so would involve a conflict between self-interest and duty to the client? Here’s a recent case from the Utah Supreme Court which discusses the US authorities on this issue, where breakdown of the relationship is obviously good cause for a solicitor terminating a retainer. What about in Anglo-Australian law? Anybody?
In retainers governed by the Legal Profession Act, 2004, failures to disclose matters which the Act requires to be disclosed about future legal costs can have the result that the solicitors may not recover their fees whether by proceedings or otherwise until they have been the subject of a solicitor-client taxation in the Supreme Court, generally at the solicitors’ expense regardless of who ‘wins’ the taxation (i.e. regardless of whether the Supreme Court affirms the solicitors’ bill or substantially discounts it). The draconian provision which says so, s. 3.4.17, and the provision which says one of the things non-disclosure of will trigger s. 3.4.17 is a change to the original estimate (s. 3.4.16) are set out at the end of this post.
In the first case, a file handler changed firms. The new firm did not reiterate the old firm’s estimate of fees and they were told to go off and have a Supreme Court taxation over a bill for $2,500 before coming back and continuing their proceeding. Unless the solicitor is found not to be entitled to any fees, a Supreme Court taxation ends with a Supreme Court order to the client to pay the amount found to be appropriate. The solicitor would presumably go back to the Tribunal only if there were defences which the Taxing Master did not have power to deal with and which VCAT’s Legal Practice List would.
In the second, the failure of a solicitor to update his fee estimate for the first 10 days of a retainer in which the original estimate blew out by over 50%, was found not to have breached s. 3.4.16 because in the context of the retainer over 10 days, it was not reasonably practicable to give the update. The decision must mean that there is no absolute duty on a solicitor to keep track of costs as they are accruing and to advise the client when the original estimate is exceeded. Continue reading “Two costs disclosure default cases in VCAT”
Update, 21 December 2017: An English costs judge has made a decision about whether clients can demand, as of right, further copies of lawyers’ documents already received by the client (e.g. file copies of letters from lawyer to client). He said no, not even if they want them to work out whether to seek taxation of costs. The decision does not say, of course, that the Court would not order production in any case, but rather simply says that clients have no entitlement to them, even if they offer to pay for the copies. The case is Green v SGI Legal LLP  EWHC B27 (Costs). A note about it is here.
Original post: This post is like a case book(let) rather than a text. It sets out the raw materials which bear upon the question of who as between solicitor and client owns (in the sense of is entitled to the original of) what documents typically found in a solicitor’s file. It is very long, and largely unsummarised: a resource to go back to rather than something to trawl through now. It is the product of reading Wentworth v De Montfort (1988) 15 NSWLR 348 (the subject of this separate companion post), the leading case on the question in NSW, and the cases which have considered it since. One day, hopefully, I will do a shorter post summarising the principles.
The state of the law is a scandal. For a start, it is ridiculously uncertain. To the extent it is certain, it is ridiculously difficult to interpret. These deficiencies give rise to abuse. An appropriate law would be that every client ought to be entitled to inspect the whole of a solicitor’s file, and ought to be able to have the whole of the original. Even smart institutional clients do not stipulate for this when negotiating retainers. Presently, the law (or an interpretation of it which is universally tolerated in Victoria) allows solicitors to take bits out of the file and give the client only what remains, so as to leave them with an incomplete whole, a thing without internal integrity, nothing but one part of the jigsaw of the past, an aid rather than a map for the reconstruction of past events. It is little known that the lien will trump an obligation in the solicitor to discover the file to the client (though the solicitor must discover the file to others). In fact, the solicitor is obliged to give discovery but not to allow inspection: Hammerstone Pty Ltd v Lewis  2 Qd R 267, a case I have caused to be put into play successfully twice, once in the Magistrates’ Court and once in VCAT’s Legal Practice List.
Solicitors’ Professional Conduct and Practice Rules, 2005 (‘7. Ownership of Clients’ Documents – Termination of Engagement’) provides Continue reading “Ownership of documents on a solicitor’s file”
The other day, I did a very geeky thing which was also a bit unonline. I had a coffee with fellow lawyer blogger, the mysterious Legal Eagle. One result of the coffee was that somehow I charmed her into writing a second case note of interest to readers of this blog — this time on the long and not entirely straightforward decision of the Victorian Court of Appeal in Equuscorp v Wilmoth Field Warne, referred to briefly in my post ‘Cases, cases’. Go read it. A second may have been that Ms Eagle has ‘tagged’ me with a ‘meme’. It’s very blogosphere. I will participate, but one of the three limbs of this modern day chain letter is going to die with me as I don’t intend to tag anyone else. I will be very grateful if some of the effusive commenters over at her blog migrate over to mine and get a bit of discussion going. So, 3 reasons why I blog. Continue reading “On blogging”
Update, 19 February 2008: Fellow Melbourne law blogger Legal Eagle has kindly written a case note on Equuscorp v Wilmoth Field Warne.
Update, 21 December 2007: Another two advocates’ immunity cases:
1. Symonds v Vass  NSWSC 1274, 36,000 words, after nearly 3 weeks of trial. See Ysaiah Ross’s case note in his article in The Australian on 30 November 2007 titled ‘Let’s Dump Advocates’ Immunity’.
2. Mallik v McGeown  NSWSC 1414.
Update, 19 December 2007: Fellow Melbourne law blogger Legal Eagle has done an excellent case note on the first case referred to below, saving me the trouble.
Original post: The Supreme Court and Court of Appeal is dropping cases on this blog like no tomorrow. I can’t keep up, so I will just bring them to your attention for the time being:
1. Re Legal Practice Act 2004; re OG, a lawyer  VSC 520, in which the Court of Appeal today struck off the roll a barrister whose disclosure to the Board of Examiners about an allegation at university that he cheated on an assignment was found to be a lie. Legal Eagle provided a long note of the case here. In other news, a famous American judge, Richard Posner, wrote a book on plagiarism. He blogs too. Update: 29 January 2008: And compare this American case (In the Matter of Willie Jay White, Supreme Court of Georgia) about an applicant for admission to practice which was denied because his explanation for curious similarities between his work and another’s at law school was not believed.
2. Equuscorp Pty Ltd v Wilmoth Field Warne (a firm)  VSCA 280, a case about whether estoppel by convention could operate against the prima facie disentitlement in a solicitor to recover fees under a void costs agreement, and about where exactly the dividing line is between a void and a good costs agreement. It is the latest in a long saga.
3. Coadys (a firm) v Getzler  VSCA 281, a case covering much the same territory as the Equuscorp Case. This case and the previous one will be very important for the interpretation of the Legal Profession Act, 2004‘s costs provisions.
4. Francis v Bunnett  VSC 527, in which Justice Lasry dismissed an application for summary judgment by reference to advocates’ immunity in a classic regretted settlement case. That is, his Honour was not persuaded of the hopelessness of the client’s argument that where there has been no adjudication after a trial, there is no finality of the kind protected by the immunity which is worthy of protection. It is notable that a number of cases which have gone the other way are not mentioned in the judgment.
5. MM&R Pty Ltd v Grills  VSC 528, a decision of Justice Cavenough yesterday about the availability of advocates’ immunity as a defence to a suit alleging simple delay, and where there has been no adjudicated decision of a court worthy of protection. His Honour recognised that the immunity applied in such circumstances.
It will be interesting to read the two advocates’ immunity decisions more carefully, and tease out to what extent they are consistent with one another.
Here’s a weird old privilege case: Sugden v Sugden  NSWCA 312. A minor from Orange in rural NSW suffered bad injuries in a car crash while she was driving. She was on L plates and her father was supervising. Since she was all banged up and in the Royal North Shore Hospital in Sydney, her father went to the local solicitor in Orange and gave a statement with a view to getting advice as to who was responsible for compensating her for her injuries. Turns out, he was the one to blame, so the daughter sued him. He and the daughter’s solicitor had stopped communicating after a while, of course, but there were the communications beforehand. Needless to say the only reason the daughter was suing her father was that her father had liability insurance. The insurer obviously wanted a copy of the father’s statement. The President of the NSW Court of Appeal and Justices Ipp and McDougall JJ said they couldn’t have it because it was privileged and the owner of the privilege was the father, who had been acting as his daughter’s agent. The analysis was under the uniform evidence legislation which does not apply in Victoria except in the Federal and Family Courts etc. exercising federal jurisdiction.
I was already a fan of the first edition of Judge Stephen Walmsley SC, Alister Abadee, and Ben Zipser‘s excellent Professional Liability in Australia, published by Thomson, and had been waiting for the new edition with interest. I got myself a copy the other day. It’s good, and there are substantial additions since the first edition, including a lot on expert evidence, a new bit on professional discipline, analysis of the Financial Services Reform Act, 2001, analysis of the cases on the civil liability acts and a good analysis of proportionate liability.
It is a text which delves into all of the legislation which clusters around professional liability these days and grapples with it, a thankless task for an Australian text writer compelled to read and understand all of the states’ and territories’ regimes and then synthesise them. So the availability of compensation in professional discipline regimes is treated properly, as is the effect of professional standards legislation, which caps liability for scheme mebers. The research is wide-ranging and thorough: a VCAT decision is cited. It is written from a practical perspective rather than a theoretical perspective. There is not the over-reliance on English authority which sometimes characterises texts in this area. The writing tends to take positions rather than carrying on at great length about parallel or divergent lines of authorities without suggesting which is to be preferred. One suspects that bad decisions have simply been ignored in the hope that they will be forgotten. If only more text writers would operate in this fashion.
Professional negligence is one of those areas of law in which everyone claims to be a specialist. There are, for example, 387 barristers at the Victorian Bar who claim on their web profile to practise in professional negligence. Then there are undoubtedly many others, like me, who haven’t listed their practice areas using the scheme which allows for searching like that.
Thomson has kindly offered a 10% discount for readers of this blog if you go to their bookshop at 160 William St, Melbourne. Alternatively, the book can be purchased online, for $220 inclusive of postage and handling.
Here’s the latest from Reynolds Porter Chamberalain. Contents this edition include:
The High Court considers the scope of a solicitor’s duty of care in his dealings with an unsophisticated client
In Phelps v (1) Stewarts and (2) Dinsmore  EWHC 1561 (Ch) the Court rejected a solicitor’s argument that her retainer was of a limited nature, given the complexity of the matter concerned, and the fact that the client was unsophisticated.
The High Court considers whether the removal of advocates’ immunity from suit is of retrospective effect
In Awoyomi v Radford  EWHC 1671, the High Court held that the removal of advocates’ immunity from suit was retrospective and that accordingly a claim against two barristers was statute-barred.
The Court of Appeal exercises its duty to say that the judge applied the law to the facts wrongly, regarding extent retainer
In Stone Heritage Developments Limited and Others v Davis Blank Furniss (a firm)  EWCACiv 765, the Court of Appeal held that the judge at first instance had erred in his finding that the defendant solicitors were negligent in failing to advise the claimant of one risk but not negligent in not advising of a similar risk. The solicitors had not been negligent at all.
In the Citigroup Case referred to in the next post, Justice Jacobsen summarised the law relating to fiduciary duties. I have reproduced the whole of the relevant passage, which includes a restatement of the law (at ff) relating to solicitors’ fiduciary duties to give prospective clients full disclosure about the disadvantages of time costing if such a course is proposed. In my experience, those principles lie gathering dust in real life, and it is a harsh decision maker who trots them out to shaft some poor solicitor who really gets up his nose. In summary, the principle is:
‘298 A solicitor who wishes to enter into a time charging costs agreement with the client must make full disclosure to the client of all the implications of such an agreement: see Foreman at435-437 per Mahoney JA; Re Morris Fletcher v Cross’ Bill of Costs  2 Qd R 228 at 243 per Fryberg J; McNamara Business & Property Law v Kasmeridis  SASC 90 at  –  per Doyle CJ.
299 This principle applies whether or not the costs agreement is made before the solicitor is instructed: see Symonds v Raphael (1998) 148 FLR 171 at 186-187 per Baker and Burton JJ; see also McNamara at  per Doyle CJ.’
But here’s the entire exegisis of the law of fiduciary relationships, as applied specifically, to the general case of adviser and client: Continue reading “The latest on fiduciary relationships”
These propositions from Z v New South Wales Crime Commission  HCA 7 may be useful in relation to matters more generally than for understanding the basis of the Court’s decision: Continue reading “Useful propositions from Z v New South Wales Crime Commission”
The Legal Services Commissioner is considerably better than were the Law Institute’s Professional Standards or the Legal Ombudsman at declining to give the time of day to self-evidently unmeritorious complaints against solicitors. Mind you, she has better discretions allowing her to do so under the Legal Profession Act, 2004. I don’t know what path George Anderson’s Case  VCAT 383 took to get to VCAT, but it sounds like it really should not have been allowed to travel so far along the dispute resolution process. Once in VCAT, it was given short shrift and dismissed with an order that Mr Anderson pay the sued solicitor’s costs. What caught my eye, though, was the recital in the reasons without adverse comment of an eminent counsel’s drafting of a notice of appeal to the High Court and its provision to Mr Anderson under cover of a refusal to sign it. That brings to mind my earlier post on unbundled legal services and recent American treatment of the issue in case law. The practice has recently been the subject of criticism after thorough review of the American authorities in Delso v. Trustees for Plan of Merck & Co., Inc., 2007 U.S. Dist. LEXIS 16643 (D.N.J. March 5, 2007). Legal Profession Blog’s take is here, and Freivogel on Conflicts Blog abstracts the case like this: Continue reading “Man pays lawyer’s costs in hopeless VCAT Legal Practice List case”
In Geelong School Supplies Pty Ltd v Dean  FCA 1404, the facts and outcome of which are described in the previous post, Justice Young went to some lengths to summarise the law on the third basis articulated by Brooking JA in Spincode for restraining solicitors from acting. The relevant parts of the decision are reproduced below. Continue reading “The administration of justice ground for restraining solicitors from acting summarised”
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: Continue reading “Roisin Annesley’s Victorian Barristers’ practice guide”
I have always been curious about the extent to which a term might be implied into a retainer giving contractual force to the rules of conduct whether found in rules of the Law Institute or found in the regulatory Acts.
In Equuscorp Pty Ltd v Wilmoth Field Warne (No 3)  VSC 164, Byrne J said at  that it was not open to the plaintiff to contend that a breach of s. 174 of the Legal Practice Act, 1996, which governed the withdrawal of moneys from solicitors’ trust accounts, constituted a breach of an implied contractual term in a particular retainer to comply with the Act.
He suggested, in the same paragraph, that a party who wishes to rely on the solicitors’ professional conduct rules ought to adduce them into evidence.
Many a smug lawyer has grinned at me across a mediation table and trotted out some version received by Chinese whisper of Lord Denning’s typically over-reaching dictum in his dissenting judgment in Griffiths v Evans  1 WLR 1424 at 1428;  2 All ER 1364 at 1369 said to prove conclusively that the absence of a file note is a slam dunk for the plaintiff in any contest of evidence between solicitor and client. The dictum was confined to disputes as to retainers; it harks from a species of cases decided long ago on affidavit and not oral evidence; and it is at best a reflection of the public policy in favour of the formality of legal relationships than a principle of evidence. So say the judges in the cases extracted below. Continue reading “That goddam dictum of Denning about file notes and conflicts of evidence”
The retainer referred to in this earler post on Equuscorp Pty Ltd v Wilmoth Field Warne [No. 3], which contained a whole agreement clause, was found to contain an implied term that the solicitors “will follow the instructions given by [the client] in relation to the files. Continue reading “Duty to follow client’s instructions implied into solicitor’s retainer”