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LIV responds to The Australian article ‘Federal court urges law firms to send more work to Bar’

LIV responds to The Australian article ‘Federal court urges law firms to send more work to Bar’

By LIV Media

Litigation 

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Last Friday The Australian published an article suggesting that law firms had been placed on notice and face adverse cost outcomes if they cause extra costs for their clients by providing late briefs for barristers or prepare their own pleadings. The story relates to a recent application in the Federal Court for security for costs in the case of Armstrong Scalisi Holdings Pty Ltd v Piscopo.

Some in the legal profession have suggested that some law firms were preparing pleadings themselves instead of leaving this to be performed more cheaply by barristers.

The LIV believes that solicitors across Victoria are doing the best they can for their clients, and at the same time keeping costs reasonable for the expert services performed.

In Victoria, solicitors have the same rights to present material to court as barristers and do so every day in courts across the state.

Many solicitors, particularly those with specialist accreditation, possess expertise in one or more areas of law and have sound drafting skills that enable them to competently draft pleadings. Expert solicitors are aware of critical pleading issues in their area of expertise, while less experienced counsel may not have the same level of expertise. Skilled solicitors should not be discouraged from drafting pleadings when they are properly qualified to do so and have expertise in the particular subject matter.

The LIV believes solicitors are very familiar with all aspects of their client's case, having received instructions from and communicated with the client from the outset. They are well-positioned to draft pleadings as they know the intricacies of their client's case. 

While some complex matters may require the involvement of more than one lawyer in drafting pleadings, the drafting of pleadings in many matters could adequately and efficiently be undertaken by a competent solicitor alone with experience and expertise in that area of law.

Even if counsel drafts the pleadings, they may not be briefed or available to appear at the hearing of a matter.​

Solicitors must act on their client's instructions. If, for financial or other reasons, the client instructs the solicitor to draft pleadings rather than retain counsel to do so, then the solicitor is bound by those instructions. If the solicitor is not confident or sufficiently experienced in the particular area of law to carry out the task then this should be explained to the client and the client should be advised about the possibility of an adverse outcome, including adverse costs consequences, if counsel is not briefed to draft the pleadings.

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LIV Media

E: media@liv.asn.au


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