The Uniform Law applies to all matters where first instructions were provided after 1 July 2015. It requires that practitioners disclose an estimate of “total legal costs” to all clients other than “commercial or government” clients, before or at the time of retainer.
“Total legal costs” means professional charges, disbursements (including counsel’s fees), and GST and the Legal Services Commissioner has advised that they are the likely total costs for the whole of the retainer. Therefore, if a solicitor is retained to conduct litigation, they are the costs of proceeding to judgment, unless the retainer is limited to some earlier point in the proceeding.
There has been considerable concern that practitioners are not able to provide a range of estimates. The Legal Services Commissioners have advised that the provisions do not preclude a practitioner providing a range of estimates, or estimates by stage/phase in addition to the single estimate of total legal costs.
The Legal Services Commissioner has noted that the estimate must be a reasonable assessment of the likely total costs. Whether or not the estimate is reasonable would be judged without the benefit of hindsight and having regard to the level of information available to the practitioner at the time of provision of the estimate. However, the expectation is that the practitioner will tailor the estimate to the facts and circumstances of the particular matter rather than adopting a “proforma” or “tick the box” approach to estimating.
However, it is not unreasonable for the practitioner to have regard to their previous experience about the level of costs incurred in similar matters when considering the appropriate estimate.
Practitioners are obliged to make continuing disclosure, which involves updating an estimate immediate upon becoming aware of the estimate being likely to be inaccurate. The Legal Services Commissioner has issued guidelines indicating that updates to estimates should be provided within 14 days of becoming aware of the need to update.
Finally, practitioners should note the additional obligations of the Uniform Law requiring a practitioner take all reasonable steps to ensure the client has given informed consent to the proposed course of conduct and the costs of same. This obligation extends to obtaining consent to changed estimates.