Update, 8 August 2017: This decision is promising as a source for the answer to this question: Grope Hamilton Lawyers (Reg’d) v Prater & Prater Kitchens Pty Ltd  SASC 54.
Original post: Say you’re a solicitor. You send a bill to your client noting your intention to pay it from monies in your trust account held for the client. Seven days go by and there is no objection to the transfer. Say at this point you have a perfectly good entitlement to appropriate your fees from trust. But you don’t get round to transferring the money on the 8th day. And then the client objects to the transfer, belatedly. Can the solicitor ignore the out of time objection and transfer the money?
What if, as a variation to these facts, the monies which are transferred are not yet received at the time of the bill, but the costs agreement provides for any monies received into trust to be appropriated to meet outstanding legal fees? And when the monies are received, the client says ‘Don’t you touch a cent of that money’?
I gave advice recently on this question, but could not find authority on it, or even a statement of the law in the relevant texts. It must come up all the time. Everybody — and I chatted to a bunch of people you might think would know the answer to this question — told me what they thought a prudent course. Nobody, except a woman in a Bureau de Spank who forbade my client from transferring monies from trust pending resolution of his client’s costs dispute, evinced any confidence about what the law actually permits. And then when my client asked for reasoning for that prohibition, the woman said that she was in fact just trying to suggest a prudent course.
Prudence is a concept which suggests that no one really knows what the relevant legislation says. It would not be prudent not to exercise an incontrovertible legal right and so let your client hold you to ransom while you resolve their costs dispute, for example. It would be dumb.
The answer is out there, because it results from the usual processes of statutory construction.
But is there any authority? That is what I would like you to tell me, please.
- NSW solicitor who failed to pay counsel’s fees struck off
- More on solicitors’ obligations to pay counsel’s fees
- The barrister and the trust monies saga ends in 6 month holiday
- Unpaid fees deny prof neg plaintiffs inspection of discovered file
- Epic battle re trust monies results in misconduct finding against barrister