The issue in question concerned a security packet file held for clients over the entire course of their professional relationship. When he first received instructions to hold documents on their behalf, the solicitor told the clients that he would bill for any advice provided or work for a miscellaneous nature the firm was asked to do. The clients disputed they were told this, but documents may support his view. 

From time to time, the solicitor would write to the clients to provide them with an updated list of the documents held in the packet and asked them to advise whether any documents should be destroyed. He would also seek further clarification on several instructions and made recommendations about other but related matters. 

In January 2019, the solicitor wrote to the clients advising that upon documents being uplifted or the security packet being closed, he would charge for the storage and other specified services. Despite requesting the clients respond with a signature confirming this, and despite several follow-ups, he did not receive anything.

At some point, the relationship – which had started with the clients’ grandparents many years before – had soured. The clients at that stage requested the documents and the invoice for their storage, which the solicitor promptly returned along with a bill for $711, made up of $500 in legal costs and the rest in disbursements or GST. 

In response, the clients wrote back to question the invoice and the delay in charging for certain work, despite the “significant discount” he provided. The client finished the letter by claiming that while she did not wish to report his alleged “unreasonable miscellaneous items” to the Law Society, she wanted to negotiate the price further.

“The fact that they escalated the matter by threatening to complain to the Law Society and then doing so, in my view, says more about the clients’ unreasonable attitude than it does for [the solicitor's] conduct in rendering the bill,” the Civil and Administrative Tribunal said in judgement, adding that the whole letter contained several “obvious errors” and noted it could have been a phone call.

Soon thereafter, the Law Society became involved and, after an investigation in which the solicitor cooperated fully, informed him that there was a “reasonable likelihood that [the solicitor] would be found guilty by the ACAT of unsatisfactory professional conduct”. They instead issued a public reprimand and a fine on the grounds that the invoice was issued for the entire 11-year period. 

VIEW ALL

The solicitor submitted that the tribunal cannot be satisfied that there is a reasonable likelihood that he would be found guilty of unsatisfactory professional conduct. He further submitted that the clients did not complain about the lateness of the invoice, other than in relation to the rate of the work. The tribunal agreed with his submissions. 

“The conduct with which [the solicitor] is charged is that he issued a bill covering a period of 11 years. Characterising that conduct in that way conflates two separate and distinct issues. The first relates to the work for which [the solicitor] was entitled to render a bill. The second relates to his delay in rendering a bill. The council focussed exclusively on the issue of delay – and in doing so, fell into error,” the tribunal found. 

The tribunal further found that the reason the solicitor was not entitled to render a bill for such work was that his right to recover legal costs was statute barred. The relevant conduct the council “should have considered” was rendering a bill where the entitlement to recover the relevant legal costs was statute barred. 

Not only did the council fail to give attention to this issue, the tribunal said it also appears to have committed the “same error” as the solicitor did in overlooking the operation of the limitation period in making its decision. The council’s decision was set aside and substituted by a decision to dismiss the complaint. 

“As the duty focuses on the conduct of a solicitor towards his or her client rather than on the effect of the conduct, I agree that a breach of duty can be established without proof of actual disadvantage or other detriment to the client. However, to show that a solicitor has failed to treat his or her client fairly, in my opinion it is necessary, at a minimum, to prove the solicitor’s conduct was reasonably likely to disadvantage or otherwise cause detriment. The council failed to do so,” the tribunal found. 

The entire judgement can be found on AustLII or JADE: LEGAL PRACTITIONER 202021 v COUNCIL OF THE LAW SOCIETY OF THE ACT (Occupational Discipline) [2021] ACAT 74.