Legal Profession Act

Question 1

What does section s220, 227, and s246 of the LPA say?

Answer 1

s 220 – The bar association can make legal profession rules for barristers.

s227 – those rules are binding and failure to comply can be unsatisfactory professional conduct or misconduct.

s 246 – barrister cannot receive trust monies.

Question 2

What part of the LPA deals with cost disclosure?

Answer 2

Part 3.4

Question 3

(1) How and when must cost disclosure be made?

(2) Who can a cost agreement be made between, and what are the requirements of that cost disclosure?

(3) How must written cost disclosure be expressed?

(refer to sections of LPA)

Answer 3

(1) Cost disclosure must be made in writing before or as soon as practicable after retained (s308)

(2) Cost agreement can be made between a barrister and client/solicitor/3rd party payer and must be made in writing and must state it is an offer to enter into an agreement (s322)

(3) Written disclosure must be expressed in plain English (s314).

Question 4

With reference to cost agreements, there is an on going obligation to disclose…

Answer 4

s315

There is an on going obligation to disclose in writing any substantial change to anything included in the disclosure agreement as soon as reasonable practicable.

Question 5

What are the exceptions to cost disclosure? (Hint 4 main exceptions)

Answer 5

s311(1)

(1) Total cost excluding disbursements not likely to exceed $750

(2) if the client is a sophisticated client (law practice, public company, commonwealth ect)

(3) legal costs agreed to in tender

(4) Pro bono work

Question 6

What must be disclosed, and to who, if a barrister is briefed?

Answer 6

s309

A barrister is not required to directly disclose a cost agreement to the client but must make necessary disclosure to the instructing solicitor to allow them to comply with their cost obligations to the client.

Question 7

What happens if there is a failure to disclose cost agreements?

Answer 7

s316

There is potential for the client not be required to pay the legal costs, costs can be reduced, unsatisfactory or misconduct.

Question 8

How are legal cost recovered?

Answer 8

s326

A cost agreement may be enforced in the same way a contract is.

Question 9

If no cost agreement is required, or no valid agreement is in place, how are cost recoverable?

Answer 9

s319

(1) Scale of costs to be applied, and if no scale is applicable (2) fair and reasonable value for the services with reference to s341 - cost assessment.

Question 10

What are the types of, and requirements for, bills?

Answer 10

ss32; 330-333.

(1) Bills can either be a lump sum or itemised. (330)

(2) A bill must be given personally to the client or if they consent it can be set electronically. (330)

(3) Interim bill: interim bills can given and may be assessed (s333).

(4) Interest: A bill must contain statement regarding rate of interest to be charged on unpaid costs (s321).

(5) Rights to have costs assessed: Bill must contain statement regarding rights to have costs assessed.

Question 11

If a bill is in a lump sum what can the client request?

Answer 11

s332

A client may request an itemised bill which must be complied with by the law practice within 28 days…and the law firm can’t sue until 30 days have passed from the issuing of the bill.

Question 12

What is the status of a cost agreement what contravenes the LPA?

Answer 12

s 327 - It is void

Question 13

When can a client apply for a costs assessment?

Answer 13

s335-338

A client can apply for a cost assessment of the whole or part of the legal costs, and even if they have paid the costs.

Question 14

What do with costs if directly briefed?

Answer 14

All matters set out in 308(1)

Question 15

How are cost agreements set aside?

Answer 15

s328

(1) On application by a client, the Supreme Court or the tribunal may order that a costs agreement be set aside if satisfied the agreement is not fair or reasonable with regard to (2) factors. (ss1-2)

(2) If cost agreement is set aside court has power to make orders it considers appropriate regarding payment of legal costs (ss4)

(3) Orders the court can make include (where scale costs apply, what is fair and reasonable amount to be paid), however can not make an order for payment in excess of what is allowed under agreement. (ss5)

(4) Court can order costs on hearing of the application to set aside agreement. (ss9)

Question 16

What happens if costs are assessed as being grossly excessive?

Answer 16

s343

Can be referred to LSC for misconduct

Question 17

Are costs allowed in speculative personal injury claims?

Answer 17

Yes as per s345-347

Question 18

Are contingency fees allowed?

Answer 18

Contingency fees are prohibited.

Must not enter into a costs agreement
under which amount payable (or any part
thereof) is calculated by reference to the
amount of any award, settlement, or value
of the property that may be recovered
in the proceedings: s 325(1), LPA.

· Must not enter into a costs agreement
in which all or part of the client’s interest
in any proceedings is transferred to the
law practice instead of the client being required
to pay legal costs: s 325(3), LPA.