Queensland Law Society

Legal Services Commissioner v AL Jackson [2017] QCAT 207

Legal Services Commissioner v AL Jackson [2017] QCAT 207

Catchwords

Complaints and discipline – four charges made against the Respondent (three dismissed) – excessive charging of legal costs – transfer of trust money without authority – failing to maintain reasonable standards of competence and diligence – whether Respondent breached section 443(3) LPA

Executive Summary

The Legal Services Commissioner (‘the Applicant’) brought four charges against J (‘the Respondent’) in connection with her conduct whilst acting on behalf of S and K (‘the Clients’) in an estate matter. The Applicant alleged that the Respondent:

  1. charged the Clients excessive legal costs;
  2. breached section 249(1)(b) of the Legal Profession Act 2007 (Qld) (‘the Act’) by transferring trust money without authority;
  3. failed to maintain reasonable standards of competence and diligence; and
  4. breached section 443(3) of the Act by failing to respond to a written notice issued by the Applicant.[1]

The Tribunal ordered that:

(a)   the Respondent’s conduct in respect to Charge 1 amounted to unsatisfactory professional conduct;

(b)   charges 2, 3 and 4 be dismissed; and

(c)   the parties were to make submissions as to an appropriate sanction and costs.[2]

Background

The Clients retained the Respondent in December 2007 to act on their behalf in an estate matter and subsequently signed two trust account authorities.

The Respondent had carriage over three files associated with the estate. These included:

(a)   the original estate file;

(b)   the re-opened file; and

(c)   the warrant file.[3]

In February 2008, the Respondent engaged H to provide a costs assessment of the estate file. On the same day, C, another law practice, contacted the Respondent to advise that they had been instructed by the Clients to act in the administration of the estate.

The Respondent sent a letter in response to C, stipulating her requirements for the release of the Clients’ files. In the letter, the Respondent notified C that a costs assessor had been engaged to assess the files that afternoon and that the costs assessed would have to be paid in full prior to the release of the files.[4]

In March 2008, H finalised the assessment of costs which were sent to the Respondent, however, evidence of this was never provided to the Tribunal.

The Respondent sought advice from Counsel in relation to the termination of the retainer with the Clients. The barrister advised that the letter received from C was a repudiation of the terms of the retainer. Further, that the trust account authority specified that the authority was to continue until it was revoked. The barrister noted that there had been no revocation of the trust account authority.

The Respondent proceeded to issue three bills to the Clients in April 2008 for work done from December 2007 until February 2008 (‘Invoice 1, 2 and 3’). Each bill set out that it was to be paid in full by making transfers from the Respondent’s trust account to her general account.[5]

Amounts covering Invoices 2 and 3 were duly transferred from the Respondent’s trust account to her general account in April 2008, and the Respondent wrote to K advising that she had placed a solicitors’ lien over the estate file due to the amount owing on Invoice 1.

In relation to the handing over of the warrant file, the Respondent referred to the personal undertaking given to the Queensland Police Service and to the Coroners Court, and stated that until such time as she was released from that obligation she would not be able to transfer the files to C.

In April 2008, C provided the Respondent with signed authorities from the Clients for the release of the Clients’ files and the remaining trust account funds.

After correspondence exchanged between C and the Respondent in which the Respondent questioned the adequacy of the authorities provided, C made a complaint against the Respondent to the Applicant about her refusal to transfer the files.[6]

Following the release on the part of the Respondent of the undertaking provided to the Coroners Court, the Respondent sent the Applicant a copy of the Clients’ files in June 2008.[7]

After notifying the Respondent that the review of the material provided had been completed and the Applicant intended to release the file to C, the Applicant sought submissions from the Respondent in connection with the release of the files and the claimed lien over the files.[8]

After receiving further correspondence from the Applicant in relation to the Respondent’s purported failure to provide a full explanation for the basis of the claimed lien or any account in support, the Applicant gave written notice in accordance with section 443(3) that if the Respondent’s failure continued for a further 14 days, she may be dealt with for professional misconduct.[9]

The Respondent provided information regarding the trust account authorities by way of letter to the Applicant, however, the Applicant found that the information provided did not constitute a sufficient response to the 443(3) notice.

In November 2008, C referred the matter to the District Court for a costs assessment and the legal costs were ultimately reduced by 51 percent. It was determined by the costs assessor and confirmed by the District Court Judge, that:

(a)   the Respondent charged for ‘care and consideration’ when there was no provision for this charge in the client agreement;

(b)   there was no provision for the amounts that related to preparation of an itemised account, research, administrative tasks at solicitor’s rates; and

(c)   there was no provision for amounts that related to tasks performed once the retainer had been terminated.[10]

Following the decision of the District Court in April 2012, the Applicant released the Clients’ files to C, without further reference to the Respondent.

Issues

In relation to Charge 1, the Applicant alleged that the Respondent’s conduct involved three instances of charging excessive costs, including:

(a)   for care and consideration when this was not provided for in the retainer;

(b)   for the costs associated with the preparation of bills of costs; and

(c)   for work undertaken after the termination of the retainer.[11]

The Respondent submitted that “it was reasonable to charge for those sums as the work was actually done on the file, as per the retainer agreement. The error was in form, not quantum.”[12]

Charge 2 related to the Applicant’s allegation that the Respondent did not have authority to authorise deductions for professional fees. Referring to the case of In re E (Enduring Power of Attorney),[13] the Applicant submitted that the trust account authorities were impliedly revoked when they retained C to act on their behalf in the estate matter.[14]

The Respondent argued that a provision within the second trust account authority provided for adequate authority to disburse funds from the trust account for professional fees.[15]The Respondent asserted that the trust account authority in the retainer stipulated that it was to survive the end of the retainer through the use of the words “as and when those fees and outgoings are incurred and at any time prior to or after the finalisation of the matter. [16]

In connection with Charge 3, the Applicant alleged that the Respondent had delayed the administration of her clients’ estate through its assertion of an unfounded solicitor’s lien. It was submitted that the Respondent had displaced the lien by transferring the amounts claimed from her trust account to her general account.

The Respondent disputed the charge, arguing that it would have been impossible to transfer the client files as she was no longer in possession due to the Applicant’s retention of the files at that time, the delay was a short period of time and in circumstances where the Clients had indicated that they did not urgently require the files.[17]

Charge 4 related to the notices provided by the Applicant to the Respondent in accordance with sections 443(1) and 443(3) of the Act. The Applicant alleged that the Respondent failed to provide the information requested on numerous occasions.

The Respondent argued that section 443(3) did not require her to respond or provide further information, and therefore the charge was invalid[18] and that she did in fact respond to the Applicant on three occasions.[19]

Issues considered

The Tribunal found that the client agreement between the parties did define the obligations of the clients with respect to fees. The retainer did not make provision for fees associated with ‘care and consideration’ to be paid by the clients, and therefore no charge should have been made. This conclusion was also reached by the District Court Judge in the assessment of costs.

Further, the Tribunal held that the Respondent was not entitled to charge for the preparation of an itemised bill[20] nor was she entitled to make a claim for costs incurred after the termination of the retainer.[21]

Therefore, when considering the conduct of the Respondent in respect to the excessive charging of fees (Charge 1), the Tribunal concluded that the conduct amounted to unsatisfactory professional conduct.[22]

In relation to Charge 2, the Tribunal found that the disbursements were authorised by the trust authority contained within the retainer agreement.[23] It was held that the Respondent did not fall short of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and the charge was dismissed.[24]

The Tribunal found that as the Respondent’s conduct in connection with the delay in transferring the Clients’ files occurred over a short period of time in circumstances where the Clients indicated that they did not urgently require the files, this did not fall below the standards of a reasonably competent legal practitioner and Charge 3 was dismissed. [25]

Charge 4 was also dismissed as the Tribunal held that the notice had not been ignored by the Respondent and an adequate response was provided to the Applicant.[26]

 

Adriana Tate

Ethics Clerk

As approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics Centre



[1] Legal Services Commissioner v Jackson [2017] QCAT 207, [1]-[4].

[2] Ibid [353]-[354].

[3] Ibid [24].

[4] Ibid [12].

[5] Ibid [22].

[6] Ibid [27].

[7] Ibid [35].

[8] Ibid [36].

[9] Ibid [40].

[10] Ibid [47].

[11] Ibid [51].

[12] Ibid [71].

[13] [2001] Ch 364 at 371.

[14] Legal Services Commissioner v Jackson [2017] QCAT 207, [184].

[15] Ibid [192].

[16] Ibid [197].

[17] Ibid [309], [317].

[18] Ibid [328].

[19] Ibid [331].

[20] Ibid [136] citing Carter Newell’s Bill of Costs [1996] 2 Qd R 13 at 19; Re Moore [1996] QSC 212.

[21] Legal Services Commissioner v Jackson [2017] QCAT 207 at [145].

[22] Ibid [181].

[23] Ibid [245].

[24] Ibid [249].

[25] Ibid [318].

[26] Ibid [349].