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Withdrawing complaints under the Legal Profession Act, 2004

In the Victorian Legal Services Commissioner’s 2006-2007 annual report, she makes the following points about withdrawing complaints under the Legal Profession Act, 2004:

  • civil complaints and disciplinary complaints alike may be withdrawn;
  • if a civil complaint which is characterised as a costs dispute is withdrawn, any costs paid into trust at the outset must be paid to the lawyer;
  • if a disciplinary complaint is withdrawn, the Commissioner may nonetheless continue to investigate the conduct of the lawyer.
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Unconscionability and legal fee estimates, again

The law of unconscionable conduct has been rolled out again as a vehicle to adjust lawyers’ fees in the same way as they might be in a civil costs dispute under the Legal Profession Act, 2004, but in a case to which that Act’s regime did not apply. It has happened once before to my knowledge (see my previous post). In P&R v. Goodwin [2007] VCAT 1199, solicitors sued for their fees, but succeeded in obtaining an order only for the difference between the amount they estimated total legal fees to be at the start of the retainer, and the amount they had already been paid by the client. I do not think VCAT has jurisdiction in relation to disputes between lawyers and clients, because the jurisdiction is predicated on the engaging in of trade or commerce (VCAT has reserved on a test case in that regard). That aside, it is a relatively attractive forum in which to sue for fees. This decision may suggest that it is better to sue in a court, however, unless there is an unusual squeaky cleanliness in following the costs disclosure regime. Continue reading “Unconscionability and legal fee estimates, again”

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Victorian Legal Services Commissioner: 2 new brochures

Victoria Marles’s office has produced two new brochures, available from Information Victoria:

‘Are you making a complaint about legal costs? The LSC is required to make reasonable efforts to resolve costs disputes between legal practitioners and their clients. The brochure includes information on the maximum amount of costs which may be considered ($25,000); time limits for making a complaint and the process for making complaints.

Mediation service explained outlines how mediation can be used to resolve civil complaints.

Brochures and further information are available from the LSC at Level 9, 330 Collins Street, Melbourne 3000, phone 1300 796 344 (local call) or (03) 9679 8001 or visit www.lsc.vic.gov.au.’

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VCAT’s jurisdiction over post-proceedings Family Law fees

Senior Member Howell determined today in M v JC Lawyers [2007] VCAT 273 that VCAT had jurisdiction to entertain a costs dispute about solicitor-client fees of post-proceedings negotiations under the threat of mutual applications to reopen under the change of circumstances provisions the final orders of the Family Court made 9 years previously. Continue reading “VCAT’s jurisdiction over post-proceedings Family Law fees”

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Man sues lawyer for declaration in reverse suit for fees

A client sued his former solicitor in VCAT for a declaration that no fees were owing because of costs disclosure defaults by the solicitor. Member Butcher stayed the proceeding pending taxation by the Supreme Court’s Taxing Master on the basis that the sending of a cost disclosure statement at the same time as the work done — in this case a letter of advice — was a default under the Act with the result that the fees were not payable until taxed by the Supreme Court at the solicitor’s expense. He also found that in those circumstances, no costs agreement had come into existence; the offer was made after the performance of the solicitor’s obligations under it. Continue reading “Man sues lawyer for declaration in reverse suit for fees”

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How not to bill; how not to deal with a fee dispute; the story of a Yank lawyer

Courtesy of Justinian, I bring you the story of the overcharging New Jersey lawyer who charged like this:

“With regard to the fee, he purportedly spent entire days, sometimes eight or nine hours per day, for several days in a row, apparently in ‘lockdown’ — researching, reviewing and negotiating issues that had little or no bearing on the substance of the transaction. Further, respondent presented nothing to substantiate the time charges underlying the bill. Nothing in the record refuted Ferwerda’s compelling testimony that respondent’s services should have been limited to review of the SBA loan documents, an unalterable lease agreement, and the franchise agreement, itself a non-negotiable contract.”

Then, when the client hesitated before paying the $50,000 bill, he:

“threatened her with criminal prosecution for “theft of services” and he didn’t stop there: He also warned that she might lose her business, her home and her professional license.”

She went to another lawyer, who instituted a fee arbitration. The first lawyer settled by waiving his fee, all the time contending he was perfectly entitled to it. When he was charged with gross overcharging and intimidatory conduct, he failed to appear at the hearing, earning himself a break for 6 months.

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Solicitor refers costs dispute to VCAT’s legal practice list

In  Robert J Lawyers v Kirby [2006] VCAT 2609 A client complained about his solicitor’s fees. The Legal Services Commissioner was unable to  settle the costs dispute. The solicitor exercised his right to refer the matter to the Legal Practice List of VCAT. Unusual, but sensible, since the Legal Practice Act, 1996 empowers VCAT to give judgment, effectively, for outstanding fees, and that is what he got, after having 15% knocked off for what I would characterise as a rather technical breach of the Legal Practice Act, 1996’s costs disclosure rules. Continue reading “Solicitor refers costs dispute to VCAT’s legal practice list”

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Roisin Annesley’s Victorian Barristers’ practice guide

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”

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A complaint for every 6 solicitors last year in England

Here is an article from that most excellent of newspapers, England’s The Guardian, which notes that:

  • the Law Society received 17,074 complaints, one for every six solicitors in England and Wales last year;
  • that was up 14% on 2002;
  • a third of people think they receive poor service from their solicitor;
  • a quarter of those surveyed think their solicitor doesn’t listen to their opinion;
  • a third don’t feel they are told enough about how much they will be charged;
  • more than half the people surveyed said they received no pre-estimate of fees at all; and
  • only about a quarter said they got one in writing.

Costs disputes in England apparently progress through firms’ internal dispute resolution mechanisms, to the Consumer Complaints Service at the Law Society, and then, if the punter is so minded, for review by the Legal Ombudsman. The complaint form used is interesting. It seeks the details of the complainant and the subject of the complaint and says “Please tell us the name and address of the solicitor you are complaining about and briefly state your complaint. (We will contact you later for more details.)” next to a box the size of a postage stamp. That is a sensible approach. I have seen hundreds of complaints. Though Victoria’s regulators were required until recently to give reasonable assistance to complainants in formulating complaints, I do not believe they ever did so. I have seen a case where a man requested assistance and it was flatly denied.

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Unrepresented woman jumps off Legal Practice Act conveyor belt into Fair Trading Act jurisdiction

It has to be said that De Sarro’s Case [2006] VCAT 1924 is about as boring as they come, a costs dispute about whether a quote of $400 plus GST was for the whole conveyance or only for preparation of the vendor’s statement. Apart, that is, from the unusual feature that Ms De Sarro apparently went through the Professional Standards costs dispute process, got her permission to refer the matter to VCAT, but then decided to proceed to VCAT not on the basis set out in her permission letter under s. 128 of the Legal Practice Act, 1996 (or its correlate in the Legal Profession Act, 2004) but by instituting a proceeding in VCAT’s civil jurisdiction under the Fair Trading Act, 1999.

The solicitor won this contest on the facts, and it seems no one raised the question of whether the solicitor’s services were prepared in trade or commerce.

It seems from the catchphrases noted in Austlii, that the application was pursuant to s. 108 of the Fair Trading Act, 1999. That says VCAT may hear and determine a “consumer-trader dispute”, defined to include a claim in negligence arising between a purchaser (being the person to whom the services are supplied) and a supplier of services, including the performance in trade or commerce of work of a professional nature. VCAT’s powers include ordering in-house mediation, ordering compensation, exemplary damages and interest, ordering payments by way of restitution, rescinding, rewriting, rectifying, or declaring void contracts or terms of contracts, granting injunctions, and ordering specific performance. Continue reading “Unrepresented woman jumps off Legal Practice Act conveyor belt into Fair Trading Act jurisdiction”

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Common issues with another case in another place a factor in favour of dismissal under s. 136A, Legal Practice Act, 1996

J’s Case [2000] VLPT 3

This decision may stand tenuously for the proposition that the factors favouring dismissal of a dispute under the Legal Practice Act, 1996 on the basis that it would be more appropriately dealt with by a court include the existence of factual disputes common to that dispute and another dispute being heard by another court or tribunal. But it is clear that it was an incidental consideration in the decision to dismiss the dispute. Continue reading “Common issues with another case in another place a factor in favour of dismissal under s. 136A, Legal Practice Act, 1996”

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VCAT has no jurisdiction over Family Court fee disputes

VCAT does not have jurisdiction over costs disputes in relation to Family Court cases or to state Magistrates’ Courts exercising the Family Court’s jurisdiction (except to the extent it is exercising jurisdiction under ss 35 or 35B of the Bankruptcy Act, 1966), but does have jurisdiction in relation to costs disputes in relation to Federal Magistrates’ Court proceedings under the Family Law Act, 1975. Continue reading “VCAT has no jurisdiction over Family Court fee disputes”

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Legal Profession Tribunal not bound by doctrine of precedent

If authority were needed for this proposition, it is to be found in B’s Case [2004] VLPT 8 where Mr Howell said:

“a member of a tribunal is not bound to follow a decision of a tribunal made by a member of the same standing. Of course, the previous decision should be carefully considered, and it might be regarded as persuasive and followed, but in the interests of certainty in the law it should not be followed if it is clearly wrong. The aim is to correct errors, not to perpetuate them. If it becomes necessary to resolve a conflict between different decisions, that conflict can be resolved by an appeal, or by a decision of a superior court or tribunal in another case, or by amending legislation.”

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Multiple claims and the $15,000 limit on power

Tweed on behalf of National Exchange Pty Ltd v Griffin Law Firm [2006] VCAT 1305

A solicitor was retained to pursue parties for breaches of contract involving small sums. He fell into dispute with the client in relation to fees in 376 such matters. Mr Howell found there were 376 separate disputes each for less than the jurisdictional limit so that he had jurisdiction, and refused an application for dismissal under the power to dismiss disputes which would be more appropriately heard by a court. Continue reading “Multiple claims and the $15,000 limit on power”

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No estimate of fees at outset results in 15% being knocked off

Ieremia’s Case [2006] VCAT 1419

A solicitor signed his client up to a no-win no-fee costs agreement on County Court Scale C in relation to a weekly payments dispute with Workcover. The weekly payments were reinstated as a result of the solicitor’s work, though Workcover did not permit him to attend the conciliation at which that result was achieved. He did provide written submissions in advance of the conciliation, however. Because he failed to provide any estimate of fees at all, Mr Howell knocked 15% of his bill for about $1,400 for disbursements includes $1800 for professional fees and ordered the client to pay the discounted amount. Continue reading “No estimate of fees at outset results in 15% being knocked off”

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Solicitor uses VCAT’s civil jurisdiction successfully to sue for fees

Property and Business Commercial Lawyers v Dean [2006] VCAT 1492

The work of VCAT’s Legal Practice List extends beyond the work formerly carried out by the Legal Profession Tribunal, as evidenced by this decision of Senior Member Howell upholding a solicitor’s suit for fees against his former client. The solicitor quoted $650 for a conveyace and 1.5 hours’ work at $250 per hour in relation to the documentation of a loan. The course of the retainer changed and it was common ground more was involved than originally anticipated. A bill was delivered for $1,792, double the estimate. The failure to give an updated estimate under s. 89 of the Legal Practice Act, 1996 was of no consequence to the solicitor’s suit for fees: it had effect only on the taxation of a bill of costs or in a costs dispute: s. 91. This was neither; it was a simple civil suit for fees brought by the solicitor in VCAT under the Fair Trading Act, 1999 (Vic.). Mr Howell indicated that had s. 91 had application he would have knocked 10% off the bill. He ordered the client to pay the bill and awarded interest on it. Continue reading “Solicitor uses VCAT’s civil jurisdiction successfully to sue for fees”

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Lawyer’s bill in the middle of a case not inconsistent with promise to bill only “when we have completed the work on your behalf”

Buttigieg’s Case [2005] VCAT 2916

The costs agreement in a Workcover matter said “we will only charge you if you are successful” and that was defined to mean “lump sum compensation, … weekly payments of compensation including an increase in the rate, …, payment of medical and like expenses”. But it said “We shall send you a bill for our professional fees when we have completed the work on your behalf.” Buttigieg said since she had not yet received lump sum compensation and her case had not yet been completed, she should not have to pay a bill of $1,100 rendered upon receipt of $7,800 in arrears of weekly payments (i.e. not lump sum compensation). Mr Howell concluded:

“These provisions [of the costs agreement] do not sit easily together, as being successful and completing a matter are different concepts. [“the terms … are equivocal and to a limited extent quite confusing. For example, the costs agreement is a standard form designed to deal with both workplace injuries and motor vehicle injuries, which means that many of its provisions had no relevance whatsoever in Ms Buttigieg’s case. It is possilbe that this dispute might not have arisen if the costs agreement had been tailored to deal with her case.] Doing the best I can to make sense of the costs agreement, I am satisfied that the thrust of the agreement was that no fees would be charged unless compensation of some kind was received by Ms Buttigieg. [She] received about $7,800 in back payments when weekly payments were restored, and [the solicitors] did not render an account to Ms Buttigieg until that had happened. I do not see liability for payment of costs as dependent upon completion of the claim, partly because there are periodic variations or adjustments in many workcover claims and the work in those claims tends never to be completed.”

Mr Howell decided that because of the poorly drafted costs agreement, the solicitors were not entitled to costs “even if the dispute … was frivolous, vexatious, misconceived or lacking in substance” (the touchstone for his discretion).

Alan Hebb was for the Tribunal, I Fehring for the solicitor.