26 November 2010

"Ill Disciplined" Lawyers?: Australian Examples...

Can lawyers "inadvertently" overcharge their clients? Lawyers in Australia have very explicit obligations when dealing with client money. There are also supposedly very explicit "rules" regarding how much clients can be reasonably billed and charged for legal work performed in the pursuit of justice or a claim. The biggest of these cases of recent infamy has been related to the work of Keddies Lawyers in Sydney. However, the issue is one that extends way beyond a solitary law firm.

Richard Ackland has written an excellent piece on this phenomenon, and I use the same examples here (with my own spin attached).

For example, a case involving the survivors of the Voyager disaster saw one victim receive a payout of just AUD 72,000. This seems fair enough until one learns that the government actually forked over an amount of AUD 412,000 to settle the claim. Yes, AUD 340,000 was eaten up in lawyers fees and disbursements. My math is not all that good, but by my reckoning the victim received just 17.5% of the compensation paid after fees and expenses.

An investigation of the fees billed and charged to the victim / client in this case found that the victim had been charged twice for the same work, that discounts provided from barristers for work on the case were not passed on, that this client was billed for work that was also billed to other clients, and that "work" on the case saw more than 24 hours billed in one day!

According to the Victorian Supreme Court this was not deliberate, but rather the consequence of a lack of attention to detail by the lawyer involved. Therefore, the inadvertent lack of attention to detail is just one of those things that happens? Doesn't the community expect that lawyers must be held to a higher duty of care when dealing with trust monies in their client accounts? And, isn't this expectation a reasonable one? The excuse that there was an inadvertent lack of attention to detail is akin to "But, Your Honour, I was drunk so I though her 'no' was really a 'yes'!" Perhaps an even more pressing question is "Your Honour, if the inadvertence is continual, then is this not a pattern that suggests there is an underlying intent to steal from client trust monies?"

Yet, the cases to date on lawyers over-charging their clients and mishandling client trust monies reads like a script of "how to protect your own". The NSW Court of Appeal found in a case against Leon Nikolaidis that the overcharging could not have been deliberate because his secretary sent out the letter of account. How convenient is that excuse? Seriously, if the lawyer signed off on that letter of account then the presumption must be that the lawyer read the letter and is therefore responsible and accountable for the content of the letter, right? Anyone else that signs a letter voluntarily yet fails to read its content would be held responsible for what that letter contains.

Why should it be different for lawyers?

2 comments:

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