I was briefed by a Solicitor for a parenting Interim Hearing in the Federal Circuit Court.

I provided the Solicitor with my cost/fee agreement for the brief to appear, which stipulated my hourly and daily rate and a range of estimate of costs.

I prepared for the Interim Hearing and appeared, I then sent through my invoice, in accord with my disclosed cost/fee agreement.  The Solicitor called me to request me to reduce my fees as she didn’t want to inform the client of my fees (which were pursuant to my cost/fee agreement). My cost/fee agreement had been disclosed to the Solicitor immediately upon receipt of the brief to appear and there had been no prior discussion about my hourly/daily rate or estimate.

I wondered how many other Solicitors brief and pay Barristers according to their own “rules” and not according to the Solicitors professional ethical obligations found in the Legal Profession Act 2004 (NSW) or the NSW Professional Conduct and Practice Rules 2013 (“Solicitors Rules”)?

 Briefly, what are Solicitors ethical obligations to clients and Barristers as respects Barristers costs/fees and disclosure to the client?

Rule 35.1 Solicitors Rules 2013 states:

35.1 If a solicitor instructs a third party on behalf of the client, and the solicitor is not intending to accept personal liability for payment of the third party’s fees, the solicitor must advise the third party in advance.

Section 326 LPA states that a cost agreement may be enforced as any other contract. Therefore, any solicitor who disregards or ignores a Barristers cost/fee agreement and does not disclose to the client, may be responsible for the Barristers fees, pursuant to the cost agreement, from their  own funds, as the “contract” is between the Solicitor and the Barrister unless the Solicitor has informed the Barrister of his/her intention to not accept personal responsibility.

The Legal Profession Act 2004 (NSW)  (“LPA”) Chapter 3, Division 3.2 provides solicitors with their ethical obligations for cost disclosure in respect to their own fees and third party (Barrister fees).

In particular, section  310 LPA (Disclosure if another law practice is to be retained):

• (1) If a law practice intends to retain another law practice on behalf of the client, the first law practice must disclose to the client the details specified in section 309 (1) (a), (c) and (d) in relation to the other law practice, in addition to any information required to be disclosed to the client under section 309.
• (2) A law practice retained or to be retained on behalf of a client by another law practice is not required to make disclosure to the client under section 309, but must disclose to the other law practice the information necessary for the other law practice to comply with subsection (1).

Therefore, a Solicitor must disclose (as a minimum) to the client, pursuant to s 309 (a, c and d) in relation to the other law practice (Barrister)

The basis on which legal costs will be calculated

An estimate of the total legal costs if reasonably practicable, if not reasonably practicable a range of estimates with an explanation of the major variables that will effect the calculation of these costs
Details of the intervals at which the client will be billed

The effects of failure to disclose is found in section 317 LPA.

Failure to disclose and pay Barristers fees may also result in disciplinary action, if founds to be in breach of a Solicitors professional obligations.

It is imperative that Solicitors are aware of their ethical obligations found in the Legal Profession Act 2004 (NSW) and the Solicitors Rules and comply with those obligations when disclosing Counsel fees to clients and then paying Counsel according to the “contract terms”. 

Compliance with professional standards combined with professional courtesy creates trust and a solid foundation to build long lasting professional relationships between Solicitors and Barristers as well as building a sterling professional reputation, which can’t be underestimated.

Louise Mathias Barrister & Mediator                                                 
Elizabeth Street Chambers | Tel: (02) 9336 5399                                     
Website: www.sydneybarrister.net.au