1 Chapter 6 Fees Who is Liable? 85 Disclosure Requirements 86 Se#lement of litigious ma#ers 87 Upli5 fees 88 Failure to disclose 88 Agreements 88 Costs agreements 88 Conditional costs agreements (no win, no fee) 89 Fees: Manner of Charging 90 Contingency fees 90 Brief fee and refreshers 91 Daily and hourly fees 91 Preparation fees 92 Advice work 92 Junior brief fees 93 Circuit fees 93 Treatment of disbursements 94 Fees on se#lement 95 Fees in the event of adjournment/not reached 96 Fees paid in advance 97 Mode of payment 98 Billing 98 83
2 84 GOOD CONDUCT GUIDE Recovery of fees 99 Interest on fees 100 Pro bono briefs 101 Ad hoc work 101 Costs Dispute 102
3 FEES 85 Who is Liable? 6.1 At common law, a barrister may recover fees from a legal practitioner, practising as a solicitor, or the client. 1 The introduction of the Act does not alter the common law position. Although the Act imposes disclosure requirements upon barristers in respect of their fees, 2 the Act does not establish a statutory contract between the barrister and solicitor, or the barrister and the client. 6.2 Liability for a barrister s fees is a question of fact as to who are the contracting parties on each occasion. 6.3 In Dimos v Hanos, Gillard D cautioned barristers against contracting directly with the client or on the basis that the client is solely responsible for the fees, because, in his Honour s view, the solicitor is in control of the situation. The solicitor knows both client and barrister. The solicitor knows the client s ability to pay the barrister s fees and charges. The solicitor is always in the best position to obtain moneys in trust Traditionally a barrister s backsheet, memorandum and documents enclosed in the brief evidence the contract between the solicitor and the barrister. The disclosure statement provided by a barrister pursuant to s of the Act will presumably also form part of the contract. 6.5 A solicitor may mark a backsheet at a particular fee for an appearance or advice. If a barrister receives a brief which has been marked at a fee which is less than the barrister s usual fee for such an appearance or advice, the barrister may return the brief. 4 Courtesy and common sense require that a telephone call be made either by the barrister or the clerk to the solicitor prior to the return of the brief for the purpose of negotiating a mutually acceptable fee or to suggest other appropriately qualiled barristers who may be willing to accept the brief. 6.6 A barrister who is briefed to appear in separate proceedings must have a separate backsheet marked for each proceeding. 5 Where a barrister is briefed to negotiate on behalf of several plaintins against one defendant, the barrister may accept a single brief and that brief, subject to the agreement of the barrister, may be marked with a single or 1. Dimos v Hanos P2001Q VSC 1T3. 2. s Dimos v Hanos P85Q P86Q. 4. Rule X6(h). 5. Rule X1(a).
4 86 GOOD CONDUCT GUIDE composite fee. Similarly, where a barrister is briefed by the same legal practitioner to appear in two or more related proceedings, the barrister may accept a single brief to appear in such proceedings, and subject to the barrister s agreement the brief may be marked with a single or composite fee. 6 Related proceedings are delned by Rule X1(d). T Disclosure Requirements 6.T In respect of legal costs, the Act requires legal practitioners to provide information to clients as to the legal costs that will be incurred. Section 3.4.X sets out the information to be provided by a law practice[barrister to a client. This section applies to barristers accepting briefs on a direct access basis. Chapter T discusses direct access ma\ers in detail. 6.8 Section (1) provides that where a law practice intends to retain another law practice on behalf of the client, i.e. a solicitor retaining a barrister on behalf of a client, then the solicitor has to provide the following information as to the barrister s fees] (a) the basis on which legal costs will be calculated^ (b) an estimate of the total legal costs or if it is not reasonably practicable to estimate the total legal costs, a range of estimates of total legal costs together with an explanation of the major variables that will anect the calculation of costs^ and (c) when bills will be rendered. 6.X A barrister does not have to make disclosure to the client as set out in s.3.4.x, but must disclose to the instructing solicitor the information set out in the paragraph above, to enable the solicitor to make the required disclosure to the client. 8 Further, a legal practitioner is required to inform clients as to their rights if they wish to dispute an account The Bar has prepared pro forma disclosure statements between a barrister and a solicitor. Copies of those statements are Annexure C and are also available on-line from the Bar s website The Act provides for exceptions to the requirement for disclosure, X namely] 6. Rule X1(c). T. The delnition of related proceedings for the purposes of rule X1(d) is set out in chapter 5. (See chapter 4,bRetainer and Duties to the Clientd for further discussion of these rules). 8. s (2). X. s
5 FEES 87 (a) if the total legal costs in the ma\er, excluding disbursements, are not likely to exceed et50.00^10 (b) if] (i) the client has received one or more disclosure statements pursuant to s.3.4.x or s (1) from the barrister in the previous 12 months^ and (ii) the client has agreed to waive the right to disclosure^ and (iii) the principal of the law practice decides on reasonable grounds that, having regard to the nature of the previous disclosures and the relevant circumstances, the further disclosure is not warranted^ or 11 (c) if the client is one of the following] (i) a law practice or an Australian legal practitioner^ (ii) a public company or subsidiary^ a foreign company or subsidiary^ a registered Australian body^12 a Lnancial services licensee^13 a Minister of the Crown acting in that capacity^ a government department or a public authority The Act imposes an additional disclosure requirement in respect of se\lement of litigious ma\ers and uplig fees. Se#lement of litigious ma#ers 6.13 Prior to the negotiation of a se\lement of a proceeding, a barrister must either ensure that the solicitor has complied with s (1) or make the disclosure required by that section to the client directly. 15 Section (1) requires that before the se\lement of a proceeding is executed the client is advised of a reasonable estimate of the amount of legal costs payable by the client if the ma\er is se\led, including any costs of another party that the client is to pay, and a reasonable estimate of any contributions towards those costs likely to be received Many barristers, in the ordinary course of advising on a se\lement, would provide an estimate as to costs, however, the section now makes it mandatory for such disclosure to be in writing and for the barrister to ensure that the solicitor has given a reasonable estimate. 10. Or the prescribed amount, whichever is the higher. 11. Although a barrister may decide not to make disclosure pursuant to this section, the safer course would be to make disclosure in all cases. 12. Within the meaning of the Corporations Act 2001 (Cth). 13. Within the meaning of the Corporations Act 2001 (Cth). 14. s (1)(c). 15. s (2).
6 88 GOOD CONDUCT GUIDE Upli5 fees 6.15 An uplig fee is delned by s of the Act to mean ba premium payable on the legal costs (excluding unpaid disbursements) otherwise payable under a costs agreement on the successful outcome of the ma\er to which those costs relate, as referred to in s d. Section deals with conditional costs agreements involving uplig fees Where a barrister enters into a costs agreement involving uplig fees, then the barrister must disclose to the client in writing, before entering into the agreement, the barrister s usual uplig fee expressed as a percentage of those fees and provide reasons why the uplig fee is warranted. 16 Failure to disclose 6.1T The consequences of a failure to disclose the ma\ers required by the Act are] (a) a client will not be compelled to pay, and a barrister will be unable to maintain a proceeding for recovery of fees, unless the costs have been reviewed under Division T of Part 3.4^1T and (b) such conduct may constitute unsatisfactory professional conduct or professional misconduct by a barrister. Agreements Costs agreements 6.18 Barristers may enter into a costs agreement either with solicitors or clients. Although there is no statutory obligation to enter into a costs agreement, any such agreement must comply with the requirements of the Act X A costs agreement must be wri\en or evidenced in writing. A barrister may satisfy the requirement that the costs agreement be in writing if the barrister has provided a wri\en oner and that oner is subsequently accepted in writing or by other conduct. 1X The wri\en oner must clearly state] 16. s T. s.3.4.1t. Division T makes provision for costs review by the Taxing Master of the Supreme Court. 18. s X. s (3).
7 FEES 89 (a) that it is an oner to enter a costs agreement^ and (b) that the client may accept it in writing or by other conduct^ and (c) the type of conduct that will constitute acceptance The Bar has a pro forma disclosure statement and costs agreement. The types of conduct that will constitute acceptance are] (a) signing the document and returning a signed copy to the barrister^ or (b) continuing to provide the barrister with instructions in the ma\er^ or (c) any other method of acceptance. The pro forma disclosure statement and costs agreement is Annexure C and is available on-line from the Bar s website. Conditional costs agreements ( no win, no fee ) 6.21 A barrister may accept a brief fee on the condition that some part or the whole of the fee will only be payable in the event the client obtains a se\lement or a judgment in favour of the client, colloquially known as bno-win, no-feed briefs. A barrister may not accept a brief on the basis of a conditional costs agreement under the Family Law Act 1975 (Cth) or in any criminal proceeding If a barrister accepts a brief on a no-win, no-fee basis, then the barrister has additional obligations in relation to any costs agreement entered into with the client. 22 In particular, the costs agreement] (a) must set out the circumstances that constitute the successful outcome of the ma\er to which it relates (e.g. liability of the defendant either agreed to at mediation or by way of judgment order, to pay the plaintin any amount in excess of e20, plus costs)^ (b) must be] (i) in writing^23 (ii) in clear plain language^ and (iii) signed by the client^ (c) must contain a statement that the client has been informed of the client s right to seek independent legal advice before entering into the agreement^ and 20. s (4). 21. s.3.4.2t(2). 22. s.3.4.2t(3). 23. In contrast with an ordinary costs agreement, a conditional costs agreement cannot be accepted by conduct.
8 90 GOOD CONDUCT GUIDE (d) must contain a cooling-on period of not less than Lve clear business days during which the client, by wri\en notice, may terminate the agreement The requirements contained in paragraphs (b)(iii), (c) and (d), above, are not required if the conditional costs agreement is made between a solicitor and a barrister. 24 Therefore in circumstances where a barrister is asked to accept a brief on a no-win, no-fee agreement three days before the trial of the proceeding, the barrister can only enter into a conditional costs agreement with the solicitor, not the client The Rules identify conditional costs agreements as conditional fee agreements. 25 Rule 200 sets out the circumstances in which a barrister may return a brief accepted under a conditional fee agreement, namely, in circumstances where] (a) the barrister and the instructing solicitor consider on reasonable grounds that the client has unreasonably rejected a reasonable oner of compromise contrary to the barrister s advice^ (b) the client has refused to pay the barrister a reasonable fee for the work done and to be done^ and (c) the client has been informed of the enect of Rule 200 prior to the barrister accepting the brief and the barrister has the Lrm view that the client has no reasonable prospect of success or of achieving a be\er result than the oner. Fees: Manner of Charging Contingency fees 6.25 A contingency fee is a fee calculated by reference to] (a) the value of any property or any transaction involved in the ma\er^ or (b) the amount of any award or se\lement or the value of any property that may be recovered in any proceedings Contingency fees are prohibited by s.3.4.2x of the Act. 24. s.3.4.2t(4). 25. Rule X(f). The Rules employ the language of the 1XX6 Act. 26. s.3.4.2x(1).
9 FEES 91 Brief fee and refreshers 6.2T Traditionally the basis of charging counsel s fees for of a court hearing was a brief fee and a refresher. Party party costs are ogen taxed on that basis, particularly in personal injury litigation. Barristers appearing on behalf of plaintins in personal injury ma\ers may charge on the basis of a brief fee and refresher. Similarly, barristers appearing for defendants who are funded by Victoria Legal Aid in criminal ma\ers may sometimes charge on this basis In respect of the taxation of costs, the Supreme Court (General Civil Procedure) Rules 2005 allow for brief fees and refreshers, or daily fees, in respect of barristers fees for trial. 2T 6.2X Traditionally a brief fee includes remuneration for preparation extending up to at least a substantial part of the day before the hearing, as well as for time spent in court before the Lrst refresher commences. 28 Where fees are claimed on the basis of a brief fee and refreshers, the Supreme Court Taxing Master allows a refresher fee for every Lve working hours (including lunch) ager the Lrst six hours. A Lnal refresher may be allowed for any period less than Lve hours that the hearing occupied. 2X 6.30 Where a barrister is briefed on the basis of a brief fee and refreshers, a refresher of two-thirds of the brief fee is the traditional basis for counsel to charge. The determination of the amount of the brief fee is dictated by the amount of proper and reasonable preparation and the complexity of the factual and legal issues involved in the ma\er. Daily and hourly fees 6.31 The vast majority of barristers today agree fees with instructing solicitors on the basis of daily fees for court appearances and hourly fees for bin chambersd work. Depending on the complexity of the issues of a ma\er, a barrister may negotiate with the instructing solicitor to be paid for preparation. This is either negotiated on a daily fee or an hourly basis. Unless other wise agreed, a daily fee includes all time spent by counsel in court on a day of hearing and all time spent by counsel in preparation and conferences on that day. 2T. Rule 63.81(1)(a) & (b). 28. Magna Alloys & Research Pty Ltd v Kevin Lindsay Coffee (No.2) P1X82Q 2 VR XT. 2X. Supreme Court (General Civil Procedure) Rules 2005, r 63.82(3).
10 92 GOOD CONDUCT GUIDE Preparation fees 6.32 Brief fees make some allowance for preparation, subject to agreement otherwise, and daily fees also include some preparation within the fee charged. In cases which involve complex factual and legal issues it may be reasonable and proper for counsel to charge an additional fee for preparation In Magna Alloys 30 Fullagar D said in relation to the Taxing Master s discretion to allow a separate fee, bthat generally speaking he should allow it only in ma\ers of great complexity or voluminous documentationd. That case involved the taxation of party party costs SigniLcant changes have taken place in the practices of counsel and in the nature of litigation, particularly commercial litigation, since the Magna Alloys decision. It is not uncommon for counsel to charge preparation fees in commercial litigation. Barristers appearing in complex criminal proceedings such as those involving drug charges or fraud charges, which have increasing amounts of paper work, may reasonably charge preparation fees. Preparation fees are also ogen charged in family law ma\ers listed for hearing for more than half a day Barristers ought not to assume that instructing solicitors take into account necessary preparation when brielng. Instructing solicitors are ogen unaware of the extent of preparation required. Barristers should, as with all fees, inform the instructing solicitor that they will be charging preparation and give an estimate as to what the likely cost of that preparation will be. This estimate may sometimes only be able to be given upon receipt of the brief. Barristers are required to comply with the statutory costs disclosure requirements in respect of preparation. That obligation is a continuing one Some solicitors (notably prosecuting authorities and other government departments and agencies) ogen seek to impose strict thresholds (ex per hour for preparation in excess of six hours) or to impose a cap on fees for preparation. The enect of those restrictions, if accepted, may be that a barrister undertakes many hours, or even days, of unpaid work. Counsel should be alert to this possibility arising and negotiate a fee with his or her instructor appropriately. Advice work 6.3T Fees for briefs to advise are usually marked at an hourly rate. Barristers need to take care in providing an estimate of the number of 30. Magna Alloys & Research Pty Ltd v Coffee PNo.2Q P1X82Q VR XT at 10X.
11 FEES 93 hours required to advise, especially in advance of receiving the brief. Experience has shown that briefs to advise ogen take many more hours than expected. If the brief concerns an area of law with which the barrister is unfamiliar, a certain amount of bself-educationd may be involved before the advice can be provided. Most barristers do not charge for the hours involved in such education. Junior brief fees 6.38 Dunior brief fees ought to be agreed on the basis of the junior s seniority, experience and skill, and the responsibility the junior is likely to have during the course of the proceeding. Dunior counsel cannot hide behind the robes of their leader but owe an independent duty of care to the client. 31 Accordingly junior counsel s fees ought to reoect this duty and the obligation of junior counsel to exercise independent forensic judgment. Circuit fees 6.3X Circuit fees are payable where a barrister is briefed to appear in a place within Victoria but outside the barrister s home town, generally outside Melbourne. Circuit fees are designed to compensate the barrister for the expenses which will be incurred for accommodation, meals and travel, although out of pocket expenses might exceed the actual circuit fee paid. Circuit fees are Lxed by the courts. Barristers may negotiate a higher circuit fee with the instructing solicitor in each case. Some barristers are instructed by one Lrm to appear on behalf of a number of clients listed for hearing in the circuit court. A circuit fee is properly charged on each brief Sometimes barristers are briefed to appear in places interstate or overseas or to travel overseas for the purpose of conferring with witnesses. Circuit fees do not apply to those situations. Where a barrister is required to travel interstate or overseas, it is usual for the instructing solicitor to arrange and pay travel expenses. Barristers may choose to pay for their own accommodation and meals and agree a fee with the instructing solicitor on a daily basis to reoect these additional expenses. Alternatively instructing solicitors may prefer to pay all accounts on behalf of the barrister. 31. Flower & Hart v White Industries (Qld) Pty Ltd (1XXX) 163 ALR T44 at T5X.
12 94 GOOD CONDUCT GUIDE 6.41 Barristers are entitled to charge some fee for travelling to far away destinations. As with others, this fee is negotiated according to the individual circumstances. For example, a barrister travelling to London to confer with a witness is likely to lose three to four days in travelling time. The barrister may or may not do some work on the aeroplane, but not for the entire trip. If the barrister was not involved in travelling to London, then the barrister may be actively engaged in other work. The barrister may wish to charge one or more daily fees or an hourly rate for the time spent travelling. Some barristers take the view that the nature of the brief and the fees that will be earned do not warrant charging the client for travel time. Treatment of disbursements 6.42 Generally barristers do not charge separately for disbursements, nor is there provision in the scale for the recovery of disbursements incurred by barristers. Most barristers absorb the costs of photocopying, telephone calls and secretarial assistance in the brief fee. Barristers are not expected to meet the cost of providing copy documents and authorities to the court or to opposing counsel. It is entirely proper for barristers to request that the instructing solicitor obtain appropriate number of copies of documents and authorities to be used at a hearing With the advances in technology many solicitors will scan documents, including correspondence from the other party, and forward the documents for inclusion in the barrister s brief via . This can ogen result in a large amount of printing by the barrister. If a barrister does not wish to absorb that cost, it is reasonable for the barrister to request the solicitor provide a hard copy of the documents However, in some circumstances it may be appropriate for a barrister to charge disbursements, for example long international telephone calls or facsimile costs. When a barrister wishes to charge for these out-of-pocket expenses, the barrister should render an account to the instructing solicitor identifying the costs. Barristers clerks should be consulted as to appropriate ways of identifying these costs. Clerks generally account for disbursements separately, and do not take disbursements into account in calculating their commission or clerking fees.
13 FEES 95 Fees on se#lement 6.45 Where a case se\les before the commencement of the hearing a barrister who has received a brief to appear is entitled to charge either a brief fee or the Lrst day s fee. Notwithstanding that entitlement, whether it is reasonable to charge a brief fee or a day s fee will depend on how long before the hearing date the proceeding was se\led and how much preparation was undertaken In circumstances where a proceeding is se\led within a reasonable period for the barrister to be briefed for the same day, it is the custom of the Bar that the barrister will not charge a fee. This custom is more readily applicable to courts of lower jurisdiction. In circumstances where counsel is briefed well in advance and has forgone the opportunity of other work, or the proceeding has involved signilcant preparation, it may not be unreasonable for counsel to charge a fee which is appropriate in the circumstances. Ogen the barrister will have negotiated a separate preparation fee so that there is no issue as to charging for such preparation. Where preparation has been fully paid there may still be a question as to whether the whole of the appearance fee should be charged. In such circumstances, counsel ogen choose to charge a reduced daily fee (for example, two-thirds) to take into account the lost opportunity to obtain another brief. 6.4T Where a proceeding is se\led during a hearing, unless previously agreed counsel are only entitled to charge the fees incurred to the time of se\lement. Therefore if a proceeding is se\led on the morning of the third day of a trial, counsel may charge three daily fees together with any reasonable and[or agreed preparation fees. If a proceeding is se\led before the end of the hearing in court on the second day, counsel will usually charge only two daily fees plus preparation However, it is not uncommon for counsel entering into costs agreements in respect of long and complex litigation to make provision for at least one day s fee to be paid in the event of se\lement before or during the hearing. For example, if a hearing was estimated to run for four weeks and se\led on the tenth day, counsel may have negotiated a bdisappointment feed of one or two daily fees, to compensate them for having held themselves available for four weeks. 6.4X Courts may sometimes order mediation to take place on the eve of the commencement of a trial or even during the course of a hearing. In such a case it is not unreasonable for counsel to negotiate a fee for the mediation and a brief fee in the event that the proceeding is se\led,
14 96 GOOD CONDUCT GUIDE on the basis that counsel must be available for the trial and must be prepared to appear if the proceeding is not se\led. Fees in the event of adjournment/not reached 6.50 Unless it is specilcally agreed, it is the custom for barristers not to charge a fee in the event that a hearing is not reached on a particular day. In circumstances where a ma\er is not reached, a barrister may retain the brief in chambers with the expectation that the barrister will be briefed when the hearing is re-lxed A barrister is entitled to charge a fee if the hearing is adjourned including where a practice court ma\er is adjourned close to the return date. In circumstances where the hearing is adjourned a day or two before the hearing, the barrister may choose to mark a reduced fee. This is a ma\er within the discretion of the barrister If the barrister is briefed for the party consenting to an adjournment, the barrister should make the instructing solicitor aware that a fee will be charged to enable the solicitor to negotiate payment of that fee as part of the costs thrown away by the adjournment There is an increasing practice amongst some solicitors to bsecured junior counsel to appear on the return of a summons or a hearing, without sending a brief. At the same time the solicitor is hopeful of se\ling the proceeding or summons. At the eleventh hour, the solicitor will either send the brief, giving the barrister a short time to prepare the ma\er, or inform the barrister that the ma\er has se\led. The delivery of the brief, not the telephone booking, is the formal evidence of a retainer. In the absence of a backsheet (or a costs agreement made under s ) it is dipcult, if not impossible for the barrister to charge a fee. In those circumstances, the barrister should insist on the delivery of a backsheet and inform the solicitor that a fee will be charged if the ma\er is se\led. If the solicitor declines to forward a backsheet then the barrister should inform the solicitor that the barrister is prepared to accept a brief in the ma\er in due course, but will accept another brief if onered for that day In circumstances where a hearing is adjourned on the day of hearing due to the sudden ill health of opposing counsel or some other personal and unforeseen circumstance, it is a courtesy of the Bar for counsel not to charge a fee to their client so as to avoid the embarrassment to opposing counsel of being asked to indemnify the client in respect of that fee.
15 FEES 97 Fees paid in advance 6.55 A barrister is entitled to require an appropriate fee be paid on delivery of the brief or before the work is done. Moneys on account of fees are usually held by the solicitor in the solicitor s trust account. If the barrister has some doubt as to whether the solicitor will pay the fees in a timely manner, or where the cost agreement is between the client and the barrister, then the barrister can request moneys on account of fees be paid into the barrister s clerk s trust account Where a barrister enters into a costs agreement in accordance with the Act, a barrister can delne the terms upon which payment of fees is to be made. In Tuczynski v Bristow 33 O Bryan D held that a barrister is entitled to request that his client pay fees in advance or periodically during the course of a trial and to enter into an agreement accordingly. On the facts of that case, the court found that there was no express term restraining the barrister from rendering an interim account for trial fees during the hearing. Further it was not reasonable to imply such a term into the costs agreement. Accordingly, it was held that the barrister was entitled to seek payment of his fees before completion of the trial and to terminate his services before completion of the trial if they were not paid. Notwithstanding that decision, it is preferable, and recommended, that counsel who wish their fees to be paid in advance of a hearing should stipulate that requirement in a costs agreement made under s T Similarly a barrister is entitled to request that money be paid into a solicitor s trust account before agreeing to appear or to commence work on behalf of a client. A barrister may refuse a brief where the barrister has requested fees to be paid in advance and the client has refused to put the solicitor in funds, as that would constitute a reasonable ground to doubt that the fee will be paid reasonably promptly Where fees are paid in advance and the barrister has rendered an account for the work completed in accordance with the brief, the barrister is entitled to be paid from those funds. Accordingly, if a barrister has money paid into the barrister s clerk s trust account for a Lve-day hearing, at the end of each day the barrister is entitled to render an account to the instructing solicitor and then draw down on that money to pay the daily fee. 32. A barrister who does not employ a clerk cannot do this, neither can such a barrister receive advance fees himself or herself because such money is, by delnition, trust money. 33. Tuczynski v Bristow P1XXXQ VSC 16T. 34. Rule X6(b).
16 98 GOOD CONDUCT GUIDE Mode of payment 6.5X If a barrister has a clerk, all amounts paid for barrister s fees must pass through the hands of the barrister s clerk. 35 Clerks may accept payment by cash, cheque, bank transfer or credit card. Some solicitors who accept payment of a barrister s fees by credit card seek to deduct the credit card charges from the fees. A barrister not agreeable to this course should inform the solicitor in the disclosure statement that if the client wishes to pay by credit card then the barrister s clerk (who usually does not deduct such fees from the fees received) is able to accept payment by credit card directly, otherwise the barrister will not accept a reduction in fees Particular care should be taken with cash payments. If a solicitor or client wishes to tender cash in payment of a barrister s account, the barrister should not accept the payment personally but should instead direct the solicitor[client to the barrister s clerk for payment. Example A barrister travelled to country Victoria to view a property which was the subject of proceedings issued in the Supreme Court. Prior to a\ending the view, the instructing solicitor had informed the client that an amount of e10, was required to be paid into trust on account of fees. The client produced e10, in cash at the site. The barrister asked the client to give the money to his solicitor. Upon their return to Melbourne, the barrister escorted the solicitor to his clerk s opce to deposit the money If a barrister receives a cheque in payment of fees the barrister should immediately pass it on to his or her clerk. If a barrister does not have a clerk, the barrister must comply with the accounting requirements of Rule 188A for all payments. Billing 6.62 A barrister may render either a lump sum bill or an itemised bill for his or her fees. 36 The bill must be signed by the barrister or by an 35. Rule s (1).
17 FEES 99 approved clerk or an employee authorised by the clerk. 3T It may be given to the person liable for payment of the fees in a variety of ways, including by post to the person s usual or last known business or residential address If a barrister renders a lump sum bill, the person liable for payment of the fees is entitled within 30 days of receipt of the bill to request an itemised bill. 3X A barrister is not entitled to charge a person for the preparation of an itemised bill. 40 Recovery of fees 6.64 Fees are recoverable] (a) under a costs agreement made in accordance with the Act^ or (b) if (a) does not apply, in accordance with an applicable practitioner remuneration scale^ or (c) if neither (a) or (b) apply, according to the fair and reasonable value of the legal services provided Where a barrister has entered into a costs agreement in accordance with the Act, that costs agreement can be enforced in the same way as any other contract However, in the event that a costs agreement is entered into that does not comply with the Act, then it is deemed to be void. 43 Costs under a void costs agreement are recoverable according to the fair and reasonable value of the legal service provided T Section (2) sets out criteria which the Taxing Master may have regard to in determining what is a fair and reasonable value of the legal services provided, including] (a) compliance by the barrister with the Act and the Rules^ (b) any disclosure made by the barrister in accordance with the Act^ (c) any relevant costs agreement^ (d) the skill, labour and responsibility displayed by the barrister^ (e) the retainer and whether the work done was within the scope of the retainer^ 3T. s (2)(a). 38. s (4). 3X. s s (3). 41. s.3.4.1x. 42. s (1). 43. s (1). 44. s (2), which refers back to s.3.4.1x, the terms of which are set out in the text above.
18 100 GOOD CONDUCT GUIDE (f) the complexity, novelty or dipculty of the ma\er^ (g) the quality of the work done^ (h) the place where, and the circumstances in which the legal services were provided^ and (i) the time within which the work was required to be done The Tribunal may set aside a costs agreement if satisled that the agreement is not fair, just or reasonable X A barrister may not commence legal proceedings to recover fees from a person until at least 65 days ager a bill has been rendered to the person in accordance with ss and , 46 unless permi\ed to do so by a court under s (2). Proceedings brought contrary to this requirement must be stayed. 4T 6.T0 Where a solicitor has assumed liability for payment of a barrister s fees, the barrister may not seek to recover unpaid fees directly from the client. 48 However, in the following circumstances a barrister may seek the permission of the Ethics Commi\ee to recover unpaid fees directly from the client] (a) where the solicitor is bankrupt or insolvent^ (b) where the solicitor is deceased and the solicitor s estate is insolvent^ (c) where a solicitor cannot be served with legal process^ or (d) where a barrister has obtained judgment against the solicitor and that judgment is unable to be satisled. 4X 6.T1 In circumstances where a solicitor has defalcated in respect of trust funds, including funds paid by a client on account of a barrister s fees, it is not improper for a barrister to seek to recover unpaid fees from the lay client, if the client is entitled to recover the amount of the fees from the Fidelity Fund pursuant to the Act and the barrister is not entitled to do so. 50 Interest on fees 6.T2 Rule 1X0 states that a barrister is entitled to require payment of fees within a reasonable time. Most barristers fee slips sent by clerks state that payment is to be made within 30 days of the issue of the fee slip. If 45. s (1). 46. s (1). 4T. s (2). 48. Rule 1X2(a). 4X. Rule 1X2(b)(i) (iv). 50. Rule 1X2(c)
19 FEES 101 a barrister s fees are not paid within the stipulated time for payment, a barrister is allowed to charge interest on unpaid fees at a rate not exceeding the rate for the time being Lxed under section 2 of the Penalty Interest Rates Act 1983 until the fees are paid. 51 Pro bono briefs 6.T3 The Latin term pro bono publico, commonly shortened to pro bono, means for the public good. Legal practitioners have, for centuries, provided their services either at no cost or at substantially reduced costs, with the aim of ensuring access to justice for all persons regardless of their ability to pay. 6.T4 Legal services are generally provided on a pro bono basis to people on a low income or to non-prolt organiqations. Barristers can provide many kinds of legal services on a pro bono basis, including legal advice, representation in court, submissions to government on ma\ers of public interest, and preparation of legal documents. 6.T5 A barrister who accepts a pro bono brief from a lay client directly must comply with Part VI of the Rules regarding direct access. The rules governing direct access ma\ers are dealt with extensively in chapter T. SpeciLc rules regarding charitable work, contained in Part VII of the Rules, are also discussed in chapter T. Ad hoc work 6.T6 A barrister may engage in work outside the barrister s professional work. For example, a barrister may be a lecturer or tutor at a university, may write an article for a journal or speak to an audience for a fee. Where a barrister receives payment for this work, the barrister is entitled to treat the payment as direct income and is not required to account to the clerk. 6.TT A barrister engaging in work outside the professional work of a barrister should always be mindful of Rule 4 which prohibits a barrister from engaging in conduct, inter alia, which is likely to diminish public conldence in the legal profession or in the administration of justice or otherwise bring the legal profession into disrepute. The barrister must also ensure that such other work is not incompatible with the proper discharge of the duties as counsel, 52 and may not use his or her 51. s Rule 118.
20 102 GOOD CONDUCT GUIDE professional qualilcation for the advancement of that other occupation or activity, except where it is usual or reasonable to do so. 53 Costs Dispute 6.T8 As discussed at the beginning of this chapter, at common law a dispute between a barrister and the person liable to pay the barrister s fees is a ma\er of contract. The barrister may sue to recover unpaid fees in a court of appropriate jurisdiction. The Act specilcally provides that the entering into a costs agreement does not prevent a person making a complaint under chapter 4 of the Act in relation to legal costs TX Chapter 2 discusses in detail the provisions of the Act in respect of costs disputes A dispute between a solicitor and a barrister in relation to costs can be a costs dispute as delned by s.4.2.2(2)(a) The Tribunal s jurisdiction is limited to costs which do not exceed e25, for any one ma\er. 55 The Tribunal does not have jurisdiction to hear a costs dispute if the total amount of the fees charged exceed e25,000.00, even if the amount in dispute is less than e25, The Legal Profession Tribunal held that it did not have jurisdiction to deal with costs disputes in family law ma\ers where the proceeding is governed by the Family Law Act 1975 (Cth) and[or the Federal Magistrates Act 1999 (Cth). 5T 53. Rule 11X. 54. s (2). 55. s.4.2.2(2)(a). 56. B v Home Wilkinson & Lowry Legal Profession Tribunal T0036[1XXX, 23 November 1XXX. It is likely that the same interpretation of the section will be applied under the Legal Profession Act T. S v De Marco Lawyers Legal Profession Tribunal T0025[2004. VCAT does not have jurisdiction to hear disputes in these ma\ers for the same reasons as set out in the Legal Profession Tribunal s decision.
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