Managing director reprimanded over barrister fee mishap

At the end of 2016, following work on an estate matter, BBV Legal was involved in a Supreme Court fee dispute after a costs assessor determined just over $330,000 had not been properly incurred and expressly alleged the firm provided inadequate costs disclosures.

During a December mediation conference, Vilensky stepped away to call a barrister who had been retained on the estate matter to discuss whether he was prepared to waive his outstanding fees. This was only a portion of the $209,000 that had already been paid to him.

Immediately after the call, Vilensky told the firm’s director and its counsel the barrister had agreed. The barrister later disputed this.

Although Vilensky made a contemporaneous file note about this call, he did not send anything to the barrister to confirm in writing. This failure constituted unsatisfactory professional conduct.

The Western Australia State Administrative Tribunal heard Vilensky accepted a “reasonably competent Australian legal practitioner would confirm in writing their understanding of any arrangement with counsel that involves any waiver of fees or the release of the obligation to pay fees to counsel”.

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In a separate Supreme Court matter, Vilensky caused to be prepared and sent an invoice in the amount of $117,736 to a client for the purpose of obtaining funds for the payment of specific disbursements incurred, but not yet paid, by the firm.

However, the April invoice required the amount to be paid into the general bank account despite it being trust money.

According to the tribunal, Vilensky failed to deposit the trust money after funds were received “as soon as practicable” and failed to hold the trust money exclusively for the client.

This and a failure to report the trust account irregularity to the Legal Practice Board amounted to professional misconduct.

The case: Legal Services and Complaints Committee and Vilensky [2024] VR 75.