QLD Lawyers fees for advice in good faith

[JJay]

My mum and I arranged a meeting with a lawyer to discuss her claim. This lawyer was previously engaged by my mum, but we had since released him to self litigate, as funds were tight he was fully aware of this.

We required some insight a few months later and were considering using his service for certain parts where he was required on a casual basis.

A casual meeting was arranged between himself and us plus a Barrister was attending who was familiar with the overall claim.

He sent this to us for an initial meeting.
I would ask you to consider limiting XXXXX’s expenses at this time to a conference of about an hour in which we will give our advice to you in good faith and with XXXXX’s interests at central focus for everyone.
Initially mum and I thought it meant that he would chat for no charge, but then we received an account. The bill was for $1,800.

We advised him in later correspondence, that we would never had agreed to this meeting if we knew it was going to cost this amount.

He is now threatening taking legal action. I would have thought at the very least we would be obliged to pay for the one hour as he suggested and that would be all.

What is suggested.

A footnote, this claim is still open and mum has since gone to a community legal centre where a Barrister gave her special attention and has pointed out that the above mentioned lawyer in question has not performed correctly with my mums claim and the barrister feels that he should be sued for this.

Thanks.

 

[Rob Legat - SBPL]

There are parts to this which require consideration but are unknown:
1. Was there a costs agreement done initially?
2. If yes, did it sufficiently cover the use of outside parties (e.g. barrister)?
3. Was the original file confirmed as closed by the solicitor?
4. If yes, did you receive correspondence 're-opening' the file?
5. What is the bill you received made up of? There should be an amount (if any) for the solicitor's professional costs. Any charges of the barrister should appear as an outlay.
6. Was there any correspondence at all in discussing engaging a barrister as to the cost involved?

These questions are relevant because you are not the barrister's client - the solicitor is. And the solicitor is the one liable for payment of the barrister's fees (hence why it is an outlay). This situation should be covered in the Costs Agreement.

For example, mine has a clause which covers the engagement of another law practice/barrister which provides [paraphrasing]:
- The client will be advised if another law practice/barrister is engaged to provide specialist advice;
- If they provide us with fees disclosure, that information will be passed on to the client; and
- The client will be liable for any interest charged on the specialist's fees due to delay in payment by the client.

The barrister is required to provide a costs agreement under the Legal Profession Act for any matters with an anticipated professional cost of more than $1,500 (excluding GST), which is to be done before, or as soon as practicable after, being engaged.

Likewise, if the solicitor engages another law practice (including barristers) then they must effectively give that same disclosure.

As an example given in section 309 of the Act:

"If a barrister is retained by a firm of solicitors on behalf of a client of the firm, the barrister must disclose to the firm details of the barrister’s legal costs and billing arrangements, and the firm must disclose those details to the client. The barrister is not required to make a disclosure directly to the client."

Failure to do so is likely to amount to unsatisfactory professional conduct.

 

[JJay]

Thank you.

• Yes, cost agreement initially done.
• Costs advised the lawyers fees.
• Yes, the engagement of the lawyer was terminated in writing and the termination document was filed.
• No correspondence to re-open the file. However, we contacted the lawyer following some new developments as he was familiar. We wanted to get his input surrounding our queries so we could review and then decided if we were to reengage him on a casual basis. He was aware of this arrangement. At all times he was fully aware that mum was unable to support costly fees, which is why we could only consider casual engagement if the lawyer felt our idea was worth pursuing. The lawyer then asked if it was ok for him to chat with the barrister about things as the barrister was familiar (barrister had advised parties prior in the matter before it went pear shape). We said it was fine to speak with barrister, believing that our lawyer was just collaborating for his own information as colleagues do and our lawyer had previously collaborated with this barrister casually about our matter without any costs to mum. The lawyer later emailed an estimated cost schedule for our proposed proposal but closed the letter by saying that he suggests an informal meeting first for about an hour to discuss and see if the matter was worth perusing.

At no time was anyone given instruction to act for mum, we understood the informal meeting was to see if any such re engagement was valid. In fact, we interpreted his offer for the informal meeting to be of no cost and a gesture in good faith.

Below is the letter of costs estimates and the offer to meet.

The first point to be made is that neither of us have seen any of the pleadings and the pleadings form the basis of the cases to be put to the Court for adjudication. Consequently, we have little idea of the merits or the possibility of a Counterclaim. It may well be possible and indeed warranted, I just cannot say. Further to the above, you say that they are wanting to list for trial, which to me suggests that the pleadings have closed, hence your query regarding an Application for Leave to file. The cost of such an application in the District Court with Counsel and Solicitors instructed would be in the range of $12,000 to $15,000, plus GST, I estimate. If unsuccessful, the Respondents’ costs of the Application may be awarded against your mother and judging from the past fee comparison at Mediation, I expect those costs to substantially outrange my estimate of my firm’s fees.


While costs are a very serious aspect of litigation for any litigant, it is felt that some general advice is offered to you without the incursion of significant fees to lawyers simply to bring themselves “up to speed” with regard to the elements and dynamics of XXXX case thus far. Mr. XXXXX is insistent that he would require a brief from my firm before accepting instructions to fully advise. We have discussed such a measure and have estimated that to read, consider and notate the brief by Mr. XXXX and for my firm to likewise read, consider, notate the material and prepare the Brief would involve each of us in approximately 6 to 8 hours of work, without conferences by telephone with each other and conferences without XXXXX and her support persons. The cost involved to do this to provide advice on a way forward would therefore land at around $6,500 plus GST.


I propose that we have an informal conference with you to establish the propriety of (a) wishing to pursue such an Application; (b) the benefit to be gained, if any, of pursuing that course of action versus the risks; (c) the preparations you have made thus far for trial; (d) the possibility of making a formal and realistic offer of settlement pursuant to the Uniform Civil Procedure Rules in order to put pressure on the Plaintiffs to consider settlement.


I would ask you to consider limiting XXXX expenses at this time to a conference of about an hour in which we will give our advice to you in good faith and with XXXXX interests at central focus for everyone.

The bill received is below.

TO OUR PROFESSIONAL COSTS herein of and incidental to your instructions in this matter including perusing and attending to various items of correspondence with you and XXXX prior to a requested conference with Mr XXXXXX and XXXXXX, perusal of pleadings in the action thus far, including Statement of Claim, Defence and Reply, telephone attendances on Mr XXXXX to discuss the value of a conference and its parameters, emails setting up the conference, attending conference Tuesday, 9th October, 2018, between Mr XXXXX, yourself and XXXXX and providing advice in relation to the current Supreme Court Action and a likely Counterclaim in respect of the formation of the Deceased’s Last Will in xxxxxx and the conduct surrounding same, the possibility of having such Will declared invalid and thereby destroying the locus standi of the Plaintiffs in that action, examining the possibility of a formal letter to the Plaintiffs’ solicitors advising of your intention to seek leave to file a Counterclaim in the action based inter alia, on the conduct of the Plaintiff, XXXXXX – total time engaged – in excess of two (2) hours:-

Our Costs @$400.00 per hour – exceeding but in this instance *800.00 Disbursements

Disbursements - XXXXXXX (barrister) fees and outlays as per invoice:- 750.00* 750.00*
GST on Fees, Office Charges and Disbursements 155.00
TOTAL DUE INCLUDING GST$ 1705.00
LESS FUNDS HELD IN TRUST
AMOUNT OWING$ 1705.00

When we initially approached the lawyer and following a few emails, he responded with this regards fees. Just to be clear, at this time we were still investigating other options and also the possibility of engaging the barrister only on a casual basis. The barrister had been sent an email from us to this effect but he declined.
At this point, no one was given any instructions to act for us and all was still being circulated via our queries to see what the best approach would be. All that took place moving forward was via instruction or suggestion from the lawyer (he requested pleadings, etc, he suggested an informal meeting).
We were led to believe that the informal meeting was set up to have an off the record chat regards the possibility of moving forward.

I have emailed XXXX. Can you please send through anything you may have which would support an application for leave to file a counterclaim in this matter? It would be helpful for us to see and read the pleadings filed thus far eg Claim, Defence and any Affidavits. I gather that your mother and brother will not entertain any notion of negotiation at this time?
Just so you are clearly in the picture, both Counsel and ourselves are obliged by law to make Disclosure to you regarding legal costs and your rights relative to them, virtually ab initio, in cases involving expenditure of legal costs of $1500 or more (in the case of Solicitors, at least). Any work below that amount, in the case of my firm, will be charged on the same basis of calculation and at the same rate ($400 per hour plus GST) as stipulated in my firm’s Client Agreement which we entered into at the outset of instructions when we were previously engaged. Should fees exceed $1500, plus GST, we will be obliged to issue another Client Agreement confirming our appointment and the basis of it. XXXXX may issue his separate Disclosure at a time to be chosen by him.

Thank you.

 

[Rob Legat - SBPL]

I don’t think the ‘in good faith’ means what you think it does. My interpretation is that they’re taking your representations about the case in good faith for the purposes of the conference without having done a full review. This is backed up by the statement about limiting the barrister’s costs, as opposed to the estimated $6,500 plus GST to do a full brief.

 

[JJay]

Thanks,

Yes agreed with the "ïn good faith", it appears that the lawyers language has fallen over our head with how it is interpreted.

After discussion, we have concluded that a fair outcome is to pay the lawyer for his one hour.

Would you consider this a fair offer. FYI the lawyer is threatening a claim with the magistrates court to recover the $1700 plus costs.

 

[Rob Legat - SBPL]

I'd suggest calling the lawyer, explaining your confusion and seeing if they're willing to give you a discount.