Gee do plaintiffs adore sprinkling a bit of fiduciary duty action into their pleadings against solicitors. Their counsel see it as moon dust. A sophisiticated plaintiff (who had been party to separate litigation which eventually culminated in a High Court case about contractual certainty) tried it on in a somewhat novel way in Equuscorp Pty Ltd v Wilmoth Field Warne (No 3) [2004] VSC 164 but bombed out before Justice Byrne. Continue reading “Fiduciary duties and the sophisticated client”
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”
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”
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.”
Winner gets indemnity costs but recovers less when loser proves winner’s costs agreement with his solicitors void
Casey v Quabba [2006] QCA 187
As reported in Lawyers Weekly, the Queensland Court of Appeal said the trial judge should have allowed the unsuccessful party in litigation to call for and challenge the validity of the successful party’s costs agreement with his solicitor in a party-party taxation of costs on an indemnity basis. Further, the judges found the successful party’s costs agreement was void for failure to specify the minimum requirements fora costs agreement, and ordered the costs to be taxed on the basis that there was no valid costs agreement (presumably by reference to the court scale). Don’t get too excited though; the case turned in part on the facts that (i) the taxing officer was directed by the rules of court to have regard, in indemnity costs taxations, to the costs agreement of the successful party, and (ii) the purpose of the Queensland provision was not only to benefit the client party to the agreement, but also to protect third parties affected, such as those against whom costs orders are made.
But I do wonder whether any thought was given by the successful party and the solicitors hastily putting together a valid agreement with retrospective operation. I can see no reason why it should not work.
WA solicitor guilty of unprofessional conduct in “No compensation = No legal fees” ad
Legal Practitioners’ Complaints Committee v SJB [2006] WASAT 201
It is a serious crime in Western Australia to advertise in a way calculated to cause a person make a personal injury claim. A solicitor ran ads headed “Injured in a road accident and made a claim? If so, read on. [footnote: If you have not made a claim, disregard this advertisement.]” A narrow construction of the provision was adopted, consistent with the seriousness of the offence it created, and no breach was found. But not enough was done to explain “No compensation = No legal fees” and the misleading nature of those words amounted to unprofessional conduct as a falling short of the standard of conduct observed and approved by members of the profession of good repute and competence. Continue reading “WA solicitor guilty of unprofessional conduct in “No compensation = No legal fees” ad”
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”
Epic battle re trust monies results in misconduct finding against barrister
Victorian Bar Inc v DAP No. 6 [2006] VCAT 1226
A barrister banked $50,000 into his personal account, arguing that it was a “retainer” and not monies held on account of future fees. VCAT found that it could not have been a retainer because that is a modest fee paid to a barrister to prevent them from acting against the payer, and the barrister already could not act against the complainant at the time of the payment because of his close involvement as his counsel over many years prior to the payment. The difference between “wilful” and “reckless” breach of the Legal Practice Act, 1996 or rules of conduct was explained. The interlocutory decisions in this matter were digested earlier. Continue reading “Epic battle re trust monies results in misconduct finding against barrister”
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”
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”
Queensland Legal Services Commissioner
The Office of the Queensland Legal Services Commissioner has, like VCAT, set up a searchable full-text database of disciplinary decisions in Queensland. A Queensland case on gross overcharging, resulting in a 12 month holiday for the solicitor caught my eye: Council of the Queensland Law Society Inc v Roche [2003] QCA 469. It is full of expressions like “inexcusable rapacity”. One of the charges was 12 minutes for wrapping a box of chocolates.
Solicitor not allowed to substitute higher bill for lower where decision to charge lower amount deliberate
Cowen’s case [2006] VCAT 231
A solicitor felt sorry for an unrepresented criminal defendant and rendered a paltry bill. When he copped a costs complaint, he purported to revise his bill to include all the things he had omitted to bill the first time. Mr Butcher said — no way. Continue reading “Solicitor not allowed to substitute higher bill for lower where decision to charge lower amount deliberate”
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.
Trustee has standing to apply to set aside costs agreement between bankrupt and solicitor
McVeigh’s Case [2005] VCAT 2917
McVeigh was the trustee in bankruptcy of the solicitor’s former client. The solicitor said he had no standing because only a client, defined for the purposes of s. 103 to mean “a person who retains a legal practitioner or firm to provide legal services for fee or reward”, can bring an application to set aside a costs dispute. Continue reading “Trustee has standing to apply to set aside costs agreement between bankrupt and solicitor”
Workcover case trust transfer costs solicitor $10,000
Law Institute v SA [2006] VCAT 442
On 21 March 2006, Mr Butcher found a solicitor guilty of three counts of unsatisfactory conduct (maximum fine of $1,000 and fine of $500 for taking fees out of workers’ compensation settlement, and $500 for admitted breach of the costs disclosure rules under s. 86 of the Legal Practice Act, 1996 respectively) and one of misconduct ($1,000). Costs of $6,740 were ordered in favour of the Law Institute. Accordingly, for failing to comply with costs disclosures, and then taking costs which he was apparently entitled to out of the settlement monies, the solicitor was ordered to pay a total of just less than $10,000. There was a stay of 6 months. Continue reading “Workcover case trust transfer costs solicitor $10,000”
The new r. 3.4.3, Legal Profession Regulations, 2005 (Vic.)
Section 15 of the Legal Profession (Amendment) Regulations, 2007 inserted a new s. 3.4.3 into the Legal Profession Regulations, 2005 (Vic.). This is it, with my parenthesised interpolations:
‘3.4.3 Interest on unpaid legal costs
(1) This regulation is made for the purposes of section 3.4.21(4) of the [Legal Profession Act, 2004] and prescribes the rate of interest in excess of which a law practice may not charge interest under section 3.4.21 of the Act or under a costs agreement.
(2) The rate for the period commencing on and including the first commencement day and ending immediately before the second commencement day is the rate fixed under section 2 of the Penalty Interest Rates Act 1983 as at the relevant date.
(3) The rate for the period commencing on and including the second commencement day is the rate that is equal to the Cash Rate Target as at the relevant date, increased by 2 percentage points.
(4) In this regulation—
Cash Rate Target means the percentage (or maximum percentage) specified by the Reserve Bank of Australia as the Cash Rate Target;
first commencement day means the day on which regulation 15 of the Legal Profession (Amendment) Regulations 2007 comes into operation [r. 3(2) says reg 15 comes into force 6 months after the rest of the Regulations; r. 3(1) says the rest come into operation on the date they are made, which was 8 May 2007, so the first commencement day is 8 November 2007];
relevant date means the date the bill was issued by the law practice concerned;
second commencement day means the day that is 28 days after the first commencement day [6 December 2007].’