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Ethics: Charging professionalism

Ethics: Charging professionalism

By Gino Dal Pont

Ethics Practice & Procedure 

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Lawyers whose charging reflects over-servicing may not escape a disciplinary consequence.

Snapshot
  • Lawyer charging has long proven a vexed issue in society, and a frequent area for client complaint. 
  • While complaints often target smaller firms whose clients are not wealthy, a commitment to professionalism more broadly supports a level of charging restraint.
  • Lawyers whose charging reflects over-servicing may nowadays not escape a disciplinary consequence.

Charging by lawyers has long been an issue of concern for society. In the modern era of consumerism, it consistently represents a principal area of client complaint, even if statistics show that most such complaints lack sufficient foundation. At the same time, there is considerable disciplinary case law on lawyer over-charging,1 and the regulation of lawyers, at general law and under statute, has hardly overlooked the topic. The judiciary assumed a discrete jurisdiction to set aside costs agreements, otherwise without parallel in the law. The latter has since translated to statute, which has also formalised the process of taxation (assessment) of costs, again unique to charging by lawyers.

Unsurprisingly, broadly speaking the members of the legal profession who earn the most money from legal practice are those whose clients have the most money. These lawyers figure infrequently in the taxation (assessment) environment, are rarely the victims of having costs agreements set aside and exhibit little presence in the disciplinary arena vis-à-vis overcharging. Indeed, statistics reveal that client complaints chiefly target sole practitioners or small practices, and those who practise family law, personal injury law and succession;2 a common denominator in each instance being clients who are ordinarily not as financially endowed as those who retain larger practices.

The latter, which often have a significant commercial practice focus, are therefore more likely to represent what may be termed “sophisticated clients”, where the inequality that has historically characterised the lawyer-client relationship is diluted somewhat. The charging of costs in this environment involves more direct engagement in the market and its inherent balancing of demand and supply than any constraint by general law or statutory costs regulation informed, inter alia, by concern over agency costs.

Be that as it may, and granted that an entirely uniform legal profession appears a creature of the past, most lawyers still accept that professionalism must count for something. In my experience, even the most mercenary lawyers infrequently disclaim the professional mores of public service. Perhaps this is a realisation that the profession hardly exists in a vacuum to further its own financial position but by reason of the value (not confined in monetary terms) of its service to society, in all its iterations.

If professionalism is to count for anything, charging is not an inapt place to focus. The prevailing fiduciary character of the lawyer-client relationship itself calls for restraint in a financial sense; indeed, that lawyers practise in what is arguably the only recognised profession to be the subject of the full gamut of fiduciary responsibility itself supports the public service notion. While fiduciary law may not have featured prominently in the lawyer-client charging environment  chiefly because of the other legal avenues available to address costs issues mentioned earlier, it may not be without significance that on an occasion where it did, a large commercial law firm was the defendant.3

Indeed, a concern underscoring methods of lawyer charging is the prospect that lawyers have significant unilateral discretion when it comes to the services provided within a retainer, and therefore (usually) the costs charged for those services. With this, there is the attendant concern that lawyers could be over-remunerated for their services. The “blank cheque”4 notion underscoring some people’s perceptions of time charging, and Anglo-Australian law’s disdain for percentage fee charging,5 are in part informed by this very concern. That civil procedure reforms directed to the “just, efficient, timely and cost-effective resolution of the real issues in dispute”6 have lawyers as a primary target is similarly a recognition of the need for financial restraint.

In this environment, it is accordingly unsurprising to find a heightened sensitivity, in the disciplinary realm, to lawyers who perform ostensibly unnecessary work for what appears primarily an effort to increase their earnings.7 Concerns surrounding lawyer charging and associated access to justice dictate that this sensitivity is unlikely to abate with the passage of time. ■


Gino Dal Pont is Professor, Faculty of Law, University of Tasmania.

  1. See GE Dal Pont, “Contextualising Lawyer Overcharging” (2016) 42 Mon ULR 283.
  2. T Sklar, Y Taouk, D Studdert, M Spittal, R Paterson and M Bismark, “Characteristics of Lawyers who are Subject to Complaints and Misconduct Findings”, (2019) 16(2) J Emp Stud 318.
  3. Re Morris Fletcher & Cross’ Bill of Costs [1997] 2 Qd R 228.
  4. Re Ladner Downs and Crowley [1987] 41 DLR (4th) 403 at 428 per Southin J.
  5. But in Victoria now see Justice Legislation Miscellaneous Amendments Bill 2019 (Vic), with its proposed introduction of percentage fees in the class action environment, via a new s33ZDA in the Supreme Court Act 1986 (Vic).
  6. Civil Procedure Act 2010 (Vic) s7(1).
  7. See, for example, Hawkins v Council of the New South Wales Bar Association [2019] NSWCATOD 148.

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