Saturday, 24th of February, 2018

The Legal Profession

Overview

Many people who come into contact with the law will feel out of their depth. Lawyers are a means of contact with the law so that people can feel that they are not lost in the difficult language and complicated processes of the law. This is why lawyers have obligations on them to communicate with their clients – their special knowledge and expertise creates a relationship between lawyer and client that requires the lawyer to act responsibly and openly with their client.

Lawyers fulfill a number of roles in society. Television programs often depict them as defenders of people's rights in courts, but they play many other roles. The majority of lawyers work in private practice either as ‘partners’ or employees in legal firms. (A partner is a lawyer who has an ownership stake in the firm). These firms vary from small or one lawyer practices dealing with a range of ordinary legal matters to huge commercial law firms with branches in a number of cities and even overseas.

Representing people in court is only part of a lawyer’s work, and some may never represent a person in court. Other aspects of a lawyer’s work include:

  • negotiating with other lawyers to resolve disputes
  • drawing up agreements and other documents, such as completing business transactions such as loans and homes and assets purchases and sales
  • generally giving advice as to what can and can't be done legally
  • the pros and cons of differing ways of dealing with legal problems.

Lawyers who engage mainly in this kind of non-court work are traditionally known as ‘solicitors’. Lawyers who specialise in court work are known as ‘barristers’, though another important part of a barrister's work is giving opinions on the law and drafting court documents. The convention is that barristers are usually ‘briefed’ by solicitors instead of directly by clients themselves. All lawyers in Tasmania are admitted as both ‘barristers and solicitors’, though some specialise as barristers.

Lawyers fulfil many different functions in government at both state and Commonwealth level. They represent the government in court, most often as prosecutors, and work as government solicitors. They also work as judges and magistrates, members of tribunals, boards and commissions, administrators in the public service and in local government, especially in the planning area. They work in Legal Aid Commissions and community legal centres to try and ensure that the bulk of the population who cannot afford to pay for the services of private lawyers can have access to legal services. Lawyers also work ‘in-house’ in banks, insurance, the media and large corporations, and some enter politics.

Most lawyers, no matter where they work, will end up specialising in a particular branch of law, for example, the practice, or enforcement, or teaching, of taxation law. Within the ranks of lawyers practising in the courts there are specialists in many different fields, such as criminal law, family law, or personal injury law. These lawyers (or barristers) may be experts in a particular field but totally unfamiliar with an area within which they do not practise. This is why it is important to access services such as the Law Society of Tasmania’s ‘Find a Lawyer’ to find the right lawyer or firm, or community legal service for your legal problem.
 

The Regulatory Framework

Much of the legal system, especially the courts, depends on lawyers to make it work effectively. Public confidence in the competence and integrity of the legal profession is very important. This means that there are strict requirements for entry to the legal profession. There is also strict regulation of the way that lawyers deal with their clients and other lawyers. This is often called ‘professional ethics’. Much of this law is contained in the Legal Profession Act 2007 and the Rules of Practice 1994. The Law Society of Tasmania plays an important role in implementing the Act and Rules of Practice. Their Legal Profession Board can take complaints about a lawyer or practice.

The Law Society is the professional association of lawyers. All practising lawyers belong to it. It has extensive statutory powers to investigate the conduct of lawyers and take action against those who have erred. Any lawyer who wishes to practise must obtain a practising certificate from the Society each year. There are no compulsory continuing legal education requirements on lawyers in Tasmania, however there are voluntary events available through the Law Society to interested lawyers.

Qualifications to Practice

Lawyers practising in Tasmania must have a university law degree. Generally most students now complete combined degrees in Arts/Law, Economics/Law, Commerce/Law and Science/Law over five years. Completing a law degree in three years is notoriously difficult and labour intensive. To practise as lawyers graduates must then complete a six month ‘legal practice’ course. If this is completed in a state other than Tasmania, a would-be lawyer can apply for recognition of this training. The 12 month apprenticeship to a practising lawyer previously required after that training has been abolished.

To be admitted as a lawyer a person must be ‘a fit and proper person’. Admission as a practising lawyer involves taking oaths. These oaths are taken before a judge of the Supreme Court. Once admitted a lawyer's name is entered onto ‘the roll’ in the Supreme Court. A lawyer can be struck off the roll by the Supreme Court for serious malpractice.

A lawyer who practises without being admitted or not having a practising certificate commits offences. Lawyers must also be insured against professional negligence claims. A more detailed summary is available at the Supreme Court of Tasmania website.

 

Professional Conduct

Lawyers can advertise for business, particularly the areas of law in which they claim to specialise, though practices which are likely to bring lawyers or the legal system into ‘disrepute’ are not allowed. Lawyers must be competent in carrying out their work, complete work in a reasonable time and keep the client informed of significant developments.

Lawyers must not disclose any information to others acquired while handling the client’s work, without the client’s consent. A lawyer must disclose any interest they may have or conflict of interest. Lawyers can act for more than one person in relation to something but only if there is unlikely to be any conflict of interest. If a conflict does develop, a lawyer will be unable to continue to act for either client.

A lawyer must inform their client of any eligibility they may have for legal aid. A lawyer must also keep the legal aid agency (the Legal Aid Commission of Tasmania) informed if the client no longer has any reasonable prospect of succeeding in their case, or of any change in their financial circumstances. The client should be informed of any advice their lawyer will give the Commission.
 

Legal Profession Board

If a person has a complaint about the way a lawyer has dealt with their work they can contact the Legal Profession Board of Tasmania. The Legal Profession Board is a statutorily independent body. It is the sole body in Tasmania dealing with complaints against legal practitioners. It consists of six Board Members appointed by the Governor of Tasmania. 

Functions

The main role of the Legal Profession Board is to receive and resolve complaints about the conduct of lawyers. They can do so by:

  • Mediation
  • Intervention
  • A hearing – either to the Disciplinary Tribunal or the Supreme Court

The Board does not provide legal advice.

Complaints Against Legal Practitioners

Before the Legal Profession Board will take any action on a complaint, it will assess whether the complaint has substance. The complaint cannot be vexatious or frivolous, or misconceived. If the complaint has substance, the Board will investigate. There is no fee associated with making a complaint. There is also a set form on which a complaint must be made out. This form is available on the ‘making a complaint’ site, given above.

If the Legal Profession Board decides that a practitioner may be guilty of professional misconduct, it must prosecute the practitioner. This is done before the Disciplinary Tribunal or the Supreme Court.

Contacting the Legal Profession Board

http://www.lpbt.com.au/contact

Legal Remedies - Complaints against Lawyers

Types of Complaints

The nature of the complaint against a lawyer determines the remedy that may be obtained by the client. Complaints fall into four main categories: delay in handling work; poor quality of work; excessive fees; and incorrect handling of trust funds.

Another type of complaint is that the client has not been adequately informed of the progress of the work the lawyer is performing.

A client should not feel intimidated by the lawyer. A client has a right to know what their lawyer is doing on their behalf. It should be remembered, however, that lawyers can charge for all telephone calls and correspondence with a client, including those arising from a client’s enquiries about progress with their matter. One approach is to write a letter to the lawyer setting out specific questions about how the matter is progressing. If this approach is not successful, consideration should be given to making a complaint against the lawyer in question.

Delay

Lawyers often seem to take a long time to handle work. In some instances this is not their fault. The delay may result from other parties, government agencies or problems in getting matters heard in court because of a backlog of court cases. But there are instances where it is the lawyer who is at fault. It may be useful to raise the matter with the senior partner of the firm concerned.

Another possibility is to complain to the Legal Profession Board or the Office of Consumer Affairs and Fair Trading providing copies of the relevant papers. Where there is a serious delay causing damage or loss to the client, it may be possible to sue the lawyer for negligence.

This is particularly so with regard to court actions: in most instances there are time limits for bringing actions, providing defences or performing other stages in the court process. If these time limits are not observed, the client may lose the legal rights that they would otherwise have had.

Fees

This is a complicated area and what follows is simply the basics. Lawyers should generally explain at the outset how much a matter is going to cost, how this cost will be calculated, how often accounts will be given and any court costs scale which applies. Lawyers are obliged in court matters to provide clients with estimates of costs at periodical intervals. The Law Society has rules providing for advice to be given by lawyers to client's about costs as a matter progresses.

The Family Court also has rules about lawyers giving clients estimates of costs as matters progress. Clients can expect to receive estimates of their costs after they first see their lawyer and at periodical intervals as the matter progresses. Clients should always ask for details about costs when they first see a lawyer and if they do not receive details of cost estimates as the matter progresses then they should ask for them. If the cost estimates are not provided then the client can make a complaint with the Law Society and also, if the matter is a family law matter, with the Family Court. Often estimates will have to be revised because of factors outside a lawyer's control, but if this occurs the lawyer should keep the client advised.

Costs do not include out of pockets (often known as disbursements). Lawyers can charge for stamps, phone calls and faxes, photocopies, government charges, barrister's fees and medico-legal reports and any other out-of-pockets which are necessary or incurred with the client’s permission in the case of larger amounts. These should be shown separately on an account.

The Law Society has recommended scales in relation to many areas of law such as conveyancing and probate. Lawyers can charge a recommended scale where one is applicable and must enclose a copy of that scale with any account drawn to the scale where they do this. Lawyers can also charge a reasonable fee or make a written agreement (known as a costs agreement) with clients as to fees to be charged. Lawyers can charge less than the recommended scale though they do not generally advertise this in an obvious way. A person may have to ring around to get quotes.

A lawyer may charge a client in three main ways:

  • on the basis of the value of the item in question. This is usually the case for conveyancing and probate matters. For this work, there is a statutory scale of fees depending upon the value of the property being bought or sold, or the value of the deceased’s estate.
  • on an item-by-item basis for each item of work done by the lawyer in the handling of the client’s matter. Thus a lawyer can charge the client for the writing of letters, the reading of letters and for various items of work relating to preparation and appearing in court proceedings.
  • according to the time spent working on the matter.

A lawyer’s charges are presented to the client in a written bill of costs. The bill of costs has two parts:

  • the charge by the lawyer for doing the particular work — this is known as the lawyer’s profit costs, and are calculated by one of the three methods outlined above or a combination of them;
  • the out-of-pockets which the lawyer has to pay in the carrying out of the work on the client’s case.

Where court action has been involved, the lawyer must charge in accordance with the costs scale of the relevant court unless there is a written agreement to the contrary. The bill will usually indicate whether it is based on such a scale. The Law Society will usually advise enquirers whether the correct scale, if any, has been used.

Costs agreements can be set aside or amended by a taxing officer or arbitrator (see below) if they are unfair and unreasonable. If a person is successful with a civil claim in court (other than in the Family Court where different rules apply) they will usually get an order for costs in their favour. This order will only cover their party-to-party costs. A lawyer can claim additional costs from the client which are not covered by these costs as long as they were reasonably necessary in dealing with the case. These are known as solicitor-to-client costs. These can make up to 25% of the total costs but are usually a lesser proportion. Both sorts of costs will also include out-of-pockets.

Most civil court cases are settled by negotiation before they go to trial. Before settling a case, a lawyer must tell their client the minimum amount the client will receive if the case is settled and of the payments likely to come out of the settlement.

Settlements will usually also involve agreements as to payment of costs. Where liability is an issue, agreements that each party pay their own costs are common.

A lawyer can ask that money be deposited with the firm to cover likely legal costs and fees, and can refuse to continue to represent a person if that money is not deposited. This is known as security for costs. This money must be paid into the firm's trust account. A lawyer cannot draw amounts over $100 from the trust account or sue the person for unpaid fees without presenting an account. A client can ask in writing for an account to be itemised. The lawyer can charge for itemising larger accounts except where the itemised account turns out to be less than the original account.

If it is felt that the bill is excessive, the client can complain to the Legal Profession Board. The Board may ask the lawyer to explain how the amount was arrived at and it may indicate whether the bill seems too high. If the lawyer has calculated the cost of the services on an item by item basis, or a time basis, it may be that the lawyer will merely give an abbreviated list or description of items (without indicating the cost of each of them) and then charge a lump sum. However, the client is entitled to have the bill set out in an itemised fashion with all the costs that the lawyer is charging. This is known as getting the bill in taxable form. Although the client has a right to have the bill prepared in this form, the lawyer may arrive at a sum higher than in the original un-itemised bill.

If a client disagrees with an itemised account, either they or their lawyer can have the dispute referred to an arbitrator. An arbitrator is an independent lawyer appointed by the Law Society. If the account is under $3,000 the arbitrator 'is to mediate and settle the dispute without formality and with the least expense'. Disputes about itemised accounts can also be dealt with by a court official called a taxing officer. It is the traditional way of dealing with disputes about accounts and generally more formal and expensive. In this process, each item on the bill has to be justified to the court officer by the billing lawyer. If the lawyer has made unreasonable charges, they will be deducted from the amount the client must pay. However, unless one sixth or more of the bill is taken off (and it is possible for the officer to add to the bill), the client will have to pay an extra sum to the lawyer for their costs in having the bill taxed. This is in addition to meeting the costs of any new lawyer who has assisted the client in having the bill taxed.

Quality of Work

It is difficult for clients to judge whether lawyers have provided poor quality work. Even if the client loses an ‘open and shut’ case, that is not sufficient indication that the lawyer has been at fault. The lawyer has to be negligent before the client has a legal remedy against the lawyer.

Negligence could arise because of excessive delay which has resulted in the client losing their legal right, or the lawyer could be negligent in handling the client’s affairs by not taking certain precautions that are commonly taken by lawyers. For example, in handling a conveyancing matter, the lawyer may not have made the necessary enquiries about the property that the client wishes to buy.

As a result, the client goes ahead with the purchase and only later discovers that the land cannot be used in a way that was originally intended. What will be regarded as negligent work varies from case to case and no firm guideline can be given here. Furthermore, not only must there be negligence by the lawyer but the client must have suffered financial loss as a result of the lawyer’s work.

To determine adequately whether a lawyer has been negligent, further legal work may be needed and the client may have to seek another solicitor if they wish to sue the previous lawyer. It should be noted that all lawyers have compulsory insurance against legal actions for negligence.

Lawyers’ Remedies

Suing

If a person does not pay a lawyer’s account it becomes a debt which the lawyer can recover like any other debt. The Legal Profession Board cannot stop this from happening.

Keeping Papers

In some instances a lawyer may refuse to return a client’s papers unless the client pays the lawyer’s bill. This is known as exercising a solicitor’s lien. If a client considers that the lien is being exercised unreasonably they can complain to the Law Society, which may try to persuade the lawyer to give the papers to the client’s new lawyer. The client’s new lawyer may also be able to negotiate with the old lawyer about this.

Time Limits

If someone has a legal claim against another person, they should get legal advice about it as soon as possible. One very important reason is that most legal actions must be started within a particular period of time. Usually this will be a number of years, but in some cases the time period can be as little as 21 days as is the case for an action for unfair dismissal in the federal Industrial Relations Commission or an appeal against a decision made in the Magistrates Court. In other cases, the person must give notice of the intention to take legal action and in such cases the time limit will usually be a matter of months.

There are a number of reasons why the law imposes time limits on legal actions. The most important of these is that people should be able to conduct their business affairs, and get on with their lives generally, without the continued threat of having to deal with legal actions for things that happened many years before. Another is that the longer that legal actions are delayed, the harder it will be to get together the evidence needed to resolve them. A person’s memory of events quickly fades, documents are lost and witnesses move on or even die.

Extensions of Time Limits

Time limits are generally imposed by legislation which creates or regulates the legal action. Quite often the legislation which imposes the time limit will allow someone to seek an extension of time to take legal action where time has run out. But potential litigants should not allow this to lull them into the belief that time limits don't matter. Often applications to extend time must be made within a time limit, and in cases where no particular time limit is imposed, the longer the person leaves it, the harder it will be to get an extension.

In some cases specific grounds on which someone can seek an extension of time are set out, but generally they will need to show that there was a good reason for the delay, that the delay is not going to cause unfairness to the other party (because, for example, a vital witness has died) and that they have a reasonable case to argue.

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.