Legal Profession Act: 220, 227, 246, and Part 3.4

Question 1

s 220(1) LPA

Answer 1

Bar association can make rules about barristers legal practice

Question 2

s 220(2) LPA

Answer 2

Barristers rules may prohibit engaging in legal practice as sole practitioner, in partnership, or employee of an entity, holding officer as legal director of incorporated legal practice etc

Question 3

s 227 LPA (1)-(2)

Answer 3

Legal professional rules are binding, and failure to comply can be unsatisfactory conduct, or misconduct.

Question 4

s 246 (1)-(2)(a)

Answer 4

Barrister must not in course of practice receive monies in trust unless payment for legal services barristers has performed.

Question 5

What is the purpose of Pt 3.4? (s 299)

Answer 5

(a) to provide law practices must make disclosure to client regarding costs
(b) regulate making of cost agreements, including conditional cost agreements
(c) regulate billing for costs of legal services
(d) process for cost assessments and setting aside agreements; and
(e) maximum payment for speculative personal injury claims

Question 6

What the definition of a conditional cost agreement? (i.e. no win on fee)

Answer 6

CCA is a cost agreement that provides that the payment of some or all of the legal cost is conditional on the successful outcome of the matter to which those cost relate.

Question 7

What is the detailed disclosure threshold amount?

Answer 7

s 300; $3000 if no amount is prescribed

Question 8

What is the disclosure threshold amount?

Answer 8

s 300; $1500 if not amount is prescribed

Question 9

What is a litigious matter?

Answer 9

s 300; litigous matter involves, or is likely to involve, the issue of proceedings in court or tribunal…when proceeds are initiated or at any stage proceedings are reasonable likely

Question 10

What is an uplift fee?

Answer 10

s 300; any additional legal costs, exc dicbursements, payable under a cost agreement on the successful outcome of the matter to which the agreement relates.

Question 11

When is disclosure not required?

Answer 11

s307A; 300 cost disclosure is not required unless total legal costs excluding disbursements and GST is not likely to exceed disclosure threshold amount $1500.

Question 12

Who is a law practice?

Answer 12

(a) sole practitioner (b) law firm

Question 13

When can a law practice disclose an abbreviated disclosure cost agreement?

Answer 13

s 307B-300; LP may disclose under s 307B where total amount of legal costs excluding disb and gst not likely to exceed DD threshold amount of $3000

Question 14

When is detailed disclosure agreement required? (Hint 2)

Answer 14

s 308- 300; If total legal costs exc disbursements and GST is likely to exceed DD threshold amount ($3000) applies regardless of whether disclosure under s 307B has occurred.

Question 15

Where a matter is a litigious matter what must be disclosed about this is a detailed disclosure agreement?

Hint: two ss with two parts

Answer 15

308(4)(f)(i) an estimate of the range of costs that may be recovered if the client is successful in the litigation and;

(ii) the range of costs the client may be ordered to pay if successful.

(7)(a) must state that an order by the court for the payment of costs in favour of the client will not necessarily cove the whole of the client’s legal costs and

(b) disbursement may still need to be paid by the client even if the client enters into a conditional cost agreement

Question 16

When can a law practice charge interest on unpaid fees?

Answer 16

s 321 a law practice may charge interest on unpaid legal costs (a) as per cost agreemetn ir (b) otherwise if the costs are unpaid fot 30 days or more after the bill has been issued under this part (2) msut not charge interest unless the bill contains a statemetn that interest is payable and the rate of interest….and (3) rate must not be more that the prescribed amount

308(e) yes and detailed disclosure agreement must set out stated rate of interest or whether a bench mark rate is being used

Question 17

If firm of solicitors (law practice) intends on retaining a barrister (another law practice) on behalf of the client what must they do?

Answer 17

s309(a) where the firm has disclosed to the client an abbreviated cost agreement must to the client disclosure the barristers 307B(2)(b), (c), and (d) basis on which legal costs are calculated, estimate of total legal costs, and estimate of disbursements;

(b) where law firm detailed disclosure agreement must disclose s308(4)(a), (c), and (d): basis on which legal fees are calculated, total legal costs or estimate, and details of intervals which the client will be billed

Question 18

Is a barrister who has been retained by a firm of lawyers required to comply with s 307B or s 308 when providing disclosure to the firm to be given to the client?

Answer 18

s 309(2) no, however must provide to firm necessary information to all firm to comply with 309(1)

Question 19

Is a barrister who is retained by a firm required to provide direct cost disclosure to the client?

Answer 19

s309 - No

Question 20

When must disclosure be made? (Hint 4)

Answer 20

s 310(1) - Disclosure per 307B or 308 must be made before for as soon as practicable after the law practice is retained

s 310(2)(a) if no disclosure occurs per 307A disclosure under s307B or 308 must be made as soon as 307A no longer applies

s 310(2)(b) if disclosure is made under s 307B disclosure under s 308 must occur as soon as 307B stops applying

s 310(3) disclosure of s309 as soon as other law practice is retained

Question 21

Disclosure under under s 307B may be….

(1)(a)…but
(b)….

(5)….

Answer 21

s 310A (1)(a) disclosure under s 310A may be made orally or in writting but if made orally must be confirmed in writting as soon as possible after the time teh discloure must be made under s 310.

(5) disclousre under 307B may be made in a cost agreement…but the disclousre must be in a prominet position at the beginning of the agreement….

Question 22

How must disclosure of s 307A occur?

Answer 22

trick question - no disclosure is required

Question 23

How must disclosure be made under s 308 occur?

Answer 23

s310A(3) must be in writing

Question 24

How must disclosure under s309(1) be made?

Answer 24

s 310A(4)…(a) if disclosure under s307B has occurred orally or in writing…or (b) if s 308 has occurred in writing

Question 25

Can disclosure under s 307B, s 308, or s 309 occur in a cost agreement or in an offer to enter in to to an agreement? If so, how?

Answer 25

s 310A(5) yes but needs to be in a prominent position in the beginning of the agreement or offer.

Question 26

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

Answer 26

s 311 disclosure under per s 307B, 308, or 309 does not need to occur where... (1)(b)(i) where has already received disclosure (307B, 308, 309) within the past 12 months from the law practice AND client had agreed in writing to waive right to disclosure AND principal of the law practise has formed a view reasonable grounds to no require further disclosure 1(c)(i)-(vii) if client is a law practice or an Australian legal practitioner...public company, partnership, etc 1(d) legal costs or the basis on which they will be calculated have been agreed upon by a tender 1(e) client will not be required to pay legal costs - pro bono

Question 27

If a law practice makes a decision under s 311(1)(b) what must the law practice do?

Answer 27

311(4)-(5) must keep a written record of the principals decision with the file and (5) failure to have reasonable grounds may warrant unsatisfactory or misconduct.

Question 28

Explain the additional disclosure requirements for settlement of a litigious matter

Answer 28

s 312 - law practice negotiates a settlement of a litigious matter on behalf of client before the settlement is execute must disclose the following to the client.... (a) reasonable estimate of the amount of legal costs payable by the client if the matter is settled including legal costs of another party and (b) reasonable estimate of contributions towards those costs likely to be received from another party

Question 29

What are the additional disclosure requirements for an uplift fee? and when do they not apply? (Hint 3 and 1)

Answer 29

s 300 an uplift fee means additional legal costs exc gst and disbursements, payable under a costs agreement on the successful outcome of the matter. s 313 If cost agreement involves an uplift fee the lay practice must before entering the agreement disclose the client in writing (a) law practice legal costs (b) the uplift fee (c) the reasons why the lift fee is warranted. Does not need to made for sophisticated client.

Question 30

What is the form of written disclosure?

Answer 30

s 314(1) written disclosure must be in clear plain language, and in english (unless more familiar with another language)...and if the client can't read must arrange for someone to communicate it orally.

Question 31

What is the effect of failing to disclose? (Hint 6) (fix)

Answer 31

s 316(1) If a law practice does not disclose under this part as required.... ....the client does not need to pay legal costs unless they are assessed under division 7 ss(2)...law practice may not maintain proceedings against the client unless costs have been assessed under division 7 ss(3)-(4)...where a cost agreement does not disclose something which was required to be disclosed client can apply to have the cost agreement set aside...legal costs may be reduced by relevant amount considered by costs assessor proportionate to the failure ss(5) where a law practice has failed to comply with disclosure as requried by s 309(2) because the retained law practice did not provide the information necessary to comply this section does not apply to the retaining law practice but does apply to the retained law practice (7) failure to comply may be unsatisfactory misconduct or unprofessional conduct

Question 32

Where a law firm retains a barrister (law practice) on behalf of a client but the law firm fails disclose the barristers cost information as required by s309(2) to the client because the barrister failed to provide that information...what is the effect of the non disclosure?

Answer 32

s 316(5) lpa ss 1-4 do not apply to the law practice for costs owing to it, however ss1-4 do apply to the costs owing to the retained practice. AMENDED

Question 33

Can the failure to effect disclosure constitute to disclose unsatisfactory conduct or professional misconduct?

Answer 33

s 316(7) - Yes

Question 34

When can a client request a progress report? and can the law practice charge for such a report? and does a barrister retained on behalf of the client have to provide a report?

Answer 34

s 317(1) a law practice must give a client, on a reasonable request (a) written report of the progress of the matter and legal cost incurred by the client (2) a law practice can charge a reasonable amount for the preparation of a report under (a) but not (b) (3) a barrister is not required to provide a report under (1) but must give law practice information necessary to allow them to comply with the request.

Question 35

On what basis are legal costs recoverable?

Answer 35

s 319(1)(a) legal costs are recoverable under a costs agreement or (b) if a does not apply under the scale costs or (c) if no cost agreement or scale, fair and reasonable value of legal services provided.

Question 36

Can a law practice charge interest on unpaid legal costs? and if so, how? and is there a limit?

Answer 36

s 321(1) a law practice may charge interest on unpaid legal costs (a) if under costs agreement (b) otherwise - if the costs unpaid for more than 30 days can claim interest under this part.. (2) Law practice must not charge under s 321(1) unless the bill contains statement interest is payable and of the rate interest. (3) interest rate must not be more than the rate prescribed under the regulation.

Question 37

Who may a make a costs agreement? (ss1) What are the requirements of a costs agreement? (hint (ss2),(ss4)) What cant the cost agreement state? (ss5)

Answer 37

s 322(1) - A cost agreement may be made between (c) a law practice and another law practice retained on behalf of the client. (2) Cost agreement must be in writing (4) The offer must clearly state (a) that it is an offer to enter into an cost agreement (b) how the offer can be accepted (c) what conduct will constitute acceptance (5) can not provide that costs can not be subject to assessment under div 7

Question 38

What is a conditional cost agreement ? and what type of matters can it not apply to?

Answer 38

s 323(1) a conditional cost agreement may provide that the payment of some or all costs is conditional on the successful outcome of the matter to which costs relate (2) can relate to any matter but criminal law or family law

Question 39

What are the requirement's of a conditional cost agreement? (Hint 5)

Answer 39

323(3)(a) must set out circumstances which constitute a successful outcome (b) may provide that disbursements are to be paid irrespective of outcome (c) must be in writing, clear plain language, and signed by client (d) client can get legal advice (e) cooling off period of 5 days

Question 40

s 323(3) a conditonal cost agreements-.... [hint 5]

Answer 40

(3)(a) what constitutes a successful outcome (b) disbursements may be paid irrespective of outcome (c) must be in writing, clear language, and signed (d) must seek independent legal advice (e) must have cooling offer period

Question 41

Are legal fees recoverable if a client terminates a conditional cost agreement within the 5 day cooling period?

Answer 41

s 323(5)(a) may only recover legal fees for legal services performed before termination performed with client's instructions and knowledge and (b) may not recover an uplift fee

Question 42

Can conditional costs agreements contain an uplift fee? If yes, what are the requirements and/or rules regarding the including of an uplift fee? (Hint 5)

Answer 42

s 324(1) yes - conditional cost agreement can provide for an uplift fee (2) basis of calculation must be separately identified in CA (3) must contain an estimate of uplift fee or if not practicable (1) a range of estimates and/or major variables that will affect the calculation of the fee (4) if litigious matter (i.e. a matter that involves or is likely to involve the issuing of proceedings in court or a tribunal) uplift fee MUST not exceed 25% of legal costs exc disbursements and GST (6) A law practice must not enter into an agreement contrary to s 324 - 100 PU

Question 43

Can a cost agreement contain contingency fees?

Answer 43

s 325(1) no - law practice must not enter a cost agreement under which cost are payable by reference to any award or settlement or the value of property recovered in the proceedings - 100 PU (3) no - law practice must not enter in cost agreement which client's interest in any proceeding is transferred to firm

Question 44

Why are contingency fees prohibited?

Answer 44

This is because it creates an ethical issues as lawyers would be encouraged to conduct a matter in a way which would maximise their fees...(idk)

Question 45

How can a cost agreement be in enforced?

Answer 45

s 326 - The same way as any other contract

Question 46

Particular cost agreements are void... (1) when are cost agreements void? (2) how are costs under a void cost agreement recoverable (3) What does 327(3) set out (3) A law practice which has entered into cost agreement in contravention of s 324 must do what? (4) A law practice which has entered into cost agreement in contravention of s 325 must do what? (5) Where a law practice has not repaid an amount under ss(3)-(5) what can the client do?

Answer 46

327(1) a cost agreement is void if it contravenes any provision the division (2) legal costs under a void cost agreement are recoverable as per 319(b) scale costs or (c) reasonable value of legal services...subject to division 7 (3) if law practice is not entitled to recover any amount in excess of scale costs or fair and reasonable amount...any amount in excess needs to be repaid (4) where a CA breaches s 324 'uplift fee in a conditional cost agreement' not entitled to recover uplift fee and must repay to client (5) where CA breaches s 325 'contingency fees' can not recover any amount relating to legal services and must repay amount to client (6) client can sue law practice for debt owed where there has been failure to comply with ss5-6

Question 47

Can a client set aside a cost agreement? if so how, and what three matters the court or QCAT may have regard to when determining whether to set aside?

Answer 47

s 328(1) client can apply to SC or QCAT to set aside cost agreement which is not fair or reasonable (2) Court or QCAT may have regard to (a) whether client was induced into entering into ca (b) whether lawyer was found to have committed unsatisfactory misconduct or professional misconduct (c) whether law practice failure to make disclosure as required.... etc

Question 48

Where the Supreme Court or QCAT set aside a costs agreement, it may make an order in relation to what? and when making that order what may the court do?

Answer 48

s 328(4) court may make an order regarding payment of legal costs.... (5)(a)...apply the applicable scale costs (b) determine what is fair and reasonable legal costs...have regard to listed matters (6) however may not order the payment of an amount in excess of what the law practice would have been entitled to had the cost agreement not been set aside

Question 49

When can a law practice start proceedings to recover legal costs?

Answer 49

s 329 - A law practice must not start legal proceedings to recover legal costs until at least 30 days after the law practice has issued a bill

Question 50

What is the section/s that deals with Bills? (Hint 5 sections)

Answer 50

1. s 329 a law practice must not start legal proceedings to recover legal costs from a person until at least 30 days have passed since bill was given...regardless of whether cost agreement was in place 2. s 330(1) bill can be lump sum or itemised...(5) sets out how a bill can be given to a person (7) can be given electronically if person consents 3. s 331 a bill must include written statement sitting out avenues of despute i.e. costs assessment or setting side cost agreement and time lines...does not apply to a sophicated client 4. s 332 s 332(1) if bill is given in lump sum form...client can request itemised bill which must be provided within 28 days of request 5 s 333 a law practice may give a person an interim bill, however note it can be subject to assessment under division 7

Question 51

When may a client or third party apply for a cost assessment under Div 7? and when must an application be made?

Answer 51

s 335(1),(3),(5) A client may apply for a costs assessment of whole or pay of the costs even if the costs have been wholly or partly paid...a cost application assessment must be made with 12 months after the bill was given or request for payment was made OR if costs were paid if neither a bill was given nor a request was made... (5) If cost assessment made out of time...may be dealt with by cost assess or court if court decides to deal with it after considering reasons for delay...

Question 52

Can a law firm (law practice) apply for an assessment of barristers (law practice) legal costs?

Answer 52

s 336(1)(3)(4)(5) LPA - A law firm who has retained a barrister on behalf of a client can apply to have part or whole of legal costs assess regardless of whether part or whole of legal costs have been paid. The costs assessment must be made with 60 days after either the bill was given or the request for payment was made or the costs were paid if either a bill was given or a request was made... (5) A cost application can not be made if there is a cost agreement between the client and the other law practice...

Question 53

What is the consequence of an cost assessment application? (Hint 2)

Answer 53

s 338(1)(a) - A person liable for legal costs can not be required to pay money into the court on account of legal fees, and (b) subject to leave, the law practice MUST NOT start any proceeding to recover legal costs until the assessment is completed...

Question 54

In conducting a cost assessment. the cost assessor must consider...what three things?

Answer 54

s 341(1) in considering a costs assessment, the costs assessor must consider:- (a) whether or not it was reasonable to carry out the work to which legal costs relate (b) whether or not the work was carried out in a reasonable way; and (c) the fair and reasonableness of the amount of legal costs in relation to the work.

Question 55

When will a cost assessor refer a legal practice for disciplinary action? (hint may (1), must (2)).

Answer 55

s 343(2) where a cost assessor or court reduces legal costs payable by 15% or more costs assessor or court may refer the matter to the commissioner to consider whether disciplinary action should be taken against law practice (3) Where a cost assessor or court considers (a) the costs charge by a law practice to be grossly excessive or (b) the cost assessor raises another matter which may amount to professional misconduct...the assessor must direct the matter be referred to the commissioner to consider whether disciplinary action should be taken.

Question 56

Can a sophisticated client contact out of a div 7 cost assessment?

Answer 56

s 344 - Yes

Question 57

What division deals with speculative personal injury claims?

Answer 57

Div 8 345-347

Question 58

When is a person a third party payer?

Answer 58

s 301 A person is a third party payer if the person is not the client and (a) is under a legal obligation to pay some or all of the legal services or (B) has paid all or part of the legal services.

Question 59

Where a law firm retains a barrister on behalf of the client is that law firm considered a third party payer for the barristers account?

Answer 59

S 301(5) no

Question 60

Who is a sophisticated client?

Answer 60

s 300 definitions a person is a sophisticated client who is exempt under s 311(1)(c) or (d) which includes:- 311(1)(c)(i) a law practice/legal practitioner, (ii) public company, (v) partnership who provides legal professional services, (viii) government department, and (1)(d) where legal fees are agreed as per tender process.

Question 61

What is the difference between an associated third party payer and a non associated third party payer?

Answer 61

s 301 associated 3PP has a legal obligation to pay the firm directly Cf non associated has an obligation to pay the client who will pay the firm

Question 62

Does a law practice have any cost disclosure obligations to associated third party payers?

Answer 62

s 318 - Yes if a law practice is required to disclose to client under division, the law practice must also make the same disclosure to any associated third party only to the extent it relates to costs payable and legal services to be provided

Question 63

Division 1: Preliminary (s 299) Division 3: Cost disclosure (s307A) Division 4: Legal costs generally (s319) Division 5: Cost agreement (s 322) Division 6: Billing (s 329) Division 7: Cost assessment (s 334)

Answer 63

Division 1: Preliminary (s 299) Division 3: Cost disclosure (s307A) Division 4: Legal costs generally (s319) Division 5: Cost agreement (s 322) Division 6: Billing (s 329) Division 7: Cost assessment (s 334)

Question 64

Cost disclosure under the LPA is not required to be made to certain clients or in certain circumstances (see s 311 LPA). Where a client falls within one of the exemptions under s 311 does that impact their ability to request progress reports, obtain information in relation to any matter in s 307A or 308, or negotiate a cost agreement, or obtain a bill ?

Answer 64

s 311(5) nothing in s 311 affects or takes away from any client's right to request progress reports, obtain information in relation to any matter in s 307A or 308, or negotiate a cost agreement, or obtain a bill.

Question 65

What section of the LPA provides for the maximum a law practice can charge for a Speculative Personal Injury Claim ('no win no fee') matter?

Answer 65

s 347

Question 66

Section 347 of the LPA provides a formula which calculates the maximum amount a law practice can recover for a speculative personal injury claim...can a law practice or direct briefed barrister charge more than that figure?

Answer 66

yes, however must apply to the law society or bar association as per s 347(3)

Question 67

Where a client has retained a solicitor and barrister...can the client have a cost agreement directly with the barrister? If so, what section of the LPA

Answer 67

s 322(1)(b) yes a cost agreement can be made between a client and a law practice retained on behalf of the client by another law practice.

Question 68

A law practice has given a client a bill. Can a law practice apply to have cost assessment of the bill? if so, when can they apply?

Answer 68

s 337 LPA a law practice that has given a bill may apply for a cost assessment of whole or party of the bill...however a costs application must not be made unless at least 30 days have passed...since request for payment was made or costs were paid if neither a bill was given nor a requets was made or a cost application hs been made under this divion by another person

Question 69

Where a party has applied for a cost assessment what must they do?

Answer 69

s 339 a party who has applied for a cost assessment must give notice...ss(a)-(d) and a person given notice of the costs application under s 1 is entitled to participate, taken to be a party to the assessment, and is BOUND by the assessment.

Question 70

If a barrister is directly brief by a client...do they have any cost disclosure obligations under the LPA? Or does this stuff only apply to law firms?

Answer 70

A barrister is a law practice as per sch 2 dictionary...therefore where barrister accepts a direct brief they must comply with the same disclosure obligations as any other law practice would... The only change is where a law firm (law practice) retains (briefs) a barrister (law practice)...the barrister is not required to disclose under s 307B-8 but must comply with s 309(2).