Problem Questions Flashcards
A legal practitioner represents is client, Mr Brown, in a personal injury matter and fails to enter into an agreement with Mr Brown on how he will provide his services, and the cost of his services. He obtains a settlement of the matter with which Mr Brown is satisfied and in full agreement, and he charges Mr Brown in accordance with the appropriate scale. Mr Brown pays the account without seeking an itemised account.
Question: Does the practitioners conduct fall short of the standard of competence and diligence that I am to expect of a reasonably competent lawyer
s 300 LPA…Personal injury matter likely to be considered a s300 litigious matter namely matter the matter that involves or is likely to involve the issue of proceedings in a court…
s 307A lpa unknown whether the legal fees would likely exceed the disclosure threshold amount of $1500 excluding gst and disbursement
s 312 lpa The law practice has breached s 312 because it has executed a settlement of a litigious matter without first disclosing to the client (a) a reasonable estimate of legal costs payable by the client…etc or (b) a reasonable estimate of any contributions towards those costs likely to be received by the other party.
s 316 - the failure to disclose as per 312 the client does not have to pay legal costs ss(1) and can apply for assessment for legal costs as per s 335…and on assessment costs my be reduced proportionate to the seriousness of the failure to disclose s 316(4)
s 335 lpa the client can apply to for costs assessed does not matter that they have been paid in costs in full ss4 subject to ss5
s 316(7) may be unsatisfactory misconduct etc and referred to LSC s 343…
Ms Reed signs a cost agreement with a law practice in respect of the purchase of a commercial property. The practitioner advises Ms Reed that the cost estimate for the matter is $5000. AT the conclusion of the transaction Ms Reed receives a bill for $10,000 without receiving any prior communications about costs and with no explanation as to why the final bill is more than twice the estimated costs.
Question: Does the practitioners conduct fall short of the standard of competence and diligence that I am to expect of a reasonably competent lawyer?
s 308 must provide a detailed disclosure given likely legal fees are to exceed $3000 excluding gst and disbursements
s 330 bills can be a in a lump sum
s 315 here there has been a substantial change in the costs and the law practice was required to disclose in writing as soon as reasonably practicable to the client about the change
s 316 failure to disclose s 315 means the legal does not need to pay legal fees
s 316(7) failure to disclose may amount to misconduct etc
s 316(2) law firm can not commence proceedings until costs have been assessed under division 7
alt s 316(3) client can apply to have cost agreement set aside s 328 and court can take into account the failure of the firm to disclose s 315 matter s 328(2)(b)
s 328(4) if the cost agreement is set aside the court can make any order about payment of legal costs
or
s 316(4) Client can also apply to have costs assessed and the assessor may reduce costs payable in an amount proportionate to the failure to disclose
A practitioner receives instructions to act for Ms White. The practitioner has not provided a client agreement to Ms White. At the conclusion of the matter the practitioner renders an account for $7,500 in the form of a lump sum. The client pays in full. The account is challenged by Ms White in the LSC within 1 month after the costs were paid. The account is reduced to $4,000. The cost assessor calculates the assessment in accordance with the appropriate scale. The lawyer refuses to refund the difference.
Question: Does the practitioners conduct fall short of the standard of competence and diligence that I am to expect of a reasonably competent lawyer?
s 308 unknown, however likely that the estimated legal fees were likely to exceed detailed disclosure threshold $3000 excluding gst and disbursements…
s 310 required the practice to make disclosure before or as soon as practicable after being retained
s 330 bills can be in lump sum
s 316 failure to disclose meant that client did not need to pay unless assessed by division 7
idk what provision applies, however I would have thought that the client would be able commence proceedings for the recovery of the balance…idk
