Please enable JavaScript.

Coggle requires JavaScript to display documents.

Week 4 Part 1 - Money Matters - Costs and Liens, 2 Remuneration of a legal…

- - - - to ensure readiness for trial
      - to provide reasonable estimates of the length of hearings
      - rules and Court directions
      - to present written submissions on time
      - to observe listing procedures
      - to give the earliest practicable notice of an adjournment application
      - Failure in any of these respects may be taken into account in exercising the jurisdiction to order costs against practitioners personally
    - - The considerations proposed by Justice Kirby in State of Queensland v JL Holdings Pty Ltd (1996-97) 189 CLR 146 at 169-172 in relation to the granting of an indulgence with respect to a late amendment provide guidance, specifically in relation to late amendments but also generally in relation to procedural indulgences.
- - - - A lien is a legal practitioner’s right to keep a client’s property until the client has paid the legal practitioner’s fees and disbursements.
    - - If a client owes a legal practitioner money, the practitioner can hold a lien over all
        
        files
        
        This can include files and documents relating to other matters which have been completed and which the client has already paid for.
        
        documents
        
        Passports can be subject to a possessory lien
        
        Xu v Council of the Law Society of NSW [2009] NSWCA 430.
        
        Australian Solicitors Conduct Rules 2011 r 14 and r 15
        
        14 Client documents
        
        14.1 A solicitor with designated responsibility for a client’s matter, must ensure that, upon completion or termination of the law practice’s engagement:
        
        14.1.1 the client or former client; or
        
        14.1.2 another person authorised by the client or former client, is given any client documents, (or if they are electronic documents copies of those documents), as soon as reasonably possible when requested to do so by the client, unless there is an effective lien
        
        14.2 A solicitor or solicitor’s law practice may destroy client documents after a period of 7 years has elapsed since the completion or termination of the agreement, except where they are client instructions or legislation to the contrary.
        
        15 Lien over essential documents
        
        15.1 Notwithstanding Rule 14, when a solicitor claims to exercise a lien for unpaid legal costs over client documents which are essential to the client’s defence or prosecution of current proceedings:
        
        15.1.1 if another solicitor is acting for the client, the first solicitor must surrender the documents to the second solicitor:
        (i) if the second solicitor undertakes to hold a document subject to the lien and with reasonable security for the unpaid costs; or
        (ii) if the first solicitor agrees to the second solicitor agreeing to pay, or entering into an agreement with the client to procure payment of, the first solicitor’s costs upon completion of the relevant proceedings
        
        15.1.2 Alternatively, the solicitor, on receiving reasonable security for the unpaid costs, must deliver the documents to the client.
        
        papers
        
        deeds
        
        A practitioner can also hold a lien over money that the practitioner is holding on behalf of a client
        
        For example, after a legal case a solicitor might receive a cheque for the client
        
        The cheque will generally be banked into the solicitor's trust account. The solicitor will then prepare a bill to the client, and either:
        
        ● Ask for the client’s authority to pay the bill with money from the trust account, or
        
        ● Give the client time to object to paying the bill out of the trust account.
    - - cannot hold a lien over the title deeds of property, which has passed to another owner.
      - cannot be the subject of a lien include wills
        
        Wills cannot be held under a lien because a solicitor holds a will for a client as a custodian, and after the client’s death the will must be produced to show entitlement to property.
    - - If the client terminates the retainer, the practitioner is entitled to a general retaining lien over the client’s documents until the client has paid the practitioner’s bill in full.
      - If the legal practitioner terminated the retainer, he or she only has a qualified lien and should make the client’s documents available upon payment, receipts or satisfactory security so that another practitioner can continue the client’s current court proceedings.
        
        Keane JA in Stark v Dennett [2008] 2 Qd R 72
    - - First, pay the costs.
      - Second, a client can apply to the Supreme Court for the court to order the release of the client’s documents
      - Third, the Commissioner can discharge a lien where he is satisfied that the solicitor will be found guilty of unsatisfactory professional conduct and this form of compensation order deals most appropriately with the client’s direct loss.’
  - - - … a right at common law depending … on implied agreement. It has not the character of an encumbrance or equitable charge. It is merely passive and possessory, that is to say, the solicitor has no right of actively enforcing his demand. It confers on him merely the right to withhold possession of the documents or other personal property of his client or former client … It is wholly derived from, and, therefore, co-extensive with, the right of the client to the documents or other property
    - - In Bolster v McCallum [1966] 2 NSWR 660; (1966) 85 WN (Pt 1) (NSW) 281 the plaintiff, a solicitor, sued the defendants for certain costs and fees.
        
        The issue on which the liability of the defendants turned was whether they personally, or a company in which they were interested, had retained the plaintiff to do the work for which he had charged.
        
        District Court the judge ruled in favour of the solicitor's objection to production of the documents because he claimed a lien over them
        
        On appeal the Court of Appeal held that the judge had erred in law in so ruling. Jacobs JA said at NSWR 662-3; WN (Pt 1) (NSW) 283-284:
- - - - Costs can be fixed by
        
        costs agreement under Legal Profession Act 2007 (Qld) s Part 3.4 Division 5
        
        or in the absence of a costs agreement, by cost assessment Legal Profession Act 2007 (Qld) s Part 3.4 Division 7
    - - ● Family law is regulated by Commonwealth law unless there is a costs agreement between the parties;
      - ● Motor accident claims
      - ● Workers compensation matters
      - ● Victims compensation matters
      - ● Deceased estates
- - - - negotiation between the client and lawyer as to the fees charged. Clients will often ask the lawyer to justify the fees charged.
    - - involves the use of a neutral third party, in an attempt to reach a mutually agreeable solution.
        
        See Legal Profession Act 2007 (Qld) Part 4.5.
    - - involves a Supreme Court appointed costs assessor considering the bill of costs prepared by the solicitor, client objections to the bill and practitioner responses to those objections
        
        Legal Profession Act 2007 (Qld) Part 3.4 Division 7.
        
        costs assessor will decide whether the amount claimed is fair and reasonable, whether the lawyer followed the regulations, whether disclosure was made, the lawyer advertised skills, relevant costs agreements, the instructions ad work done, the complexity and novelty of the matter, quality of work, placed, circumstances and time taken to do the work.
    - - Lawyers may sue clients for unpaid fees after the expiration of 30 days from giving the bill to a client.
      - Where a lawyer has failed to provide to the client proper disclosure of the basis of the costs of the legal services provided the client does not have to pay the costs nor can the practitioner sue for costs until the costs have been assessed under the costs assessments scheme described above.
      - Lawyers can charge interest on unpaid bills, provided the bill states that interest is payable and the applicable rate of interest, 30 days after the bill is given to the client
- - - - Legal Profession Act 2007 (Qld) s 332.
      - https://www.lsc.qld.gov.au/publications/regulatory-guides/6.-itemised-bills