To answer the first question, yes, the client can seek cost assessment even after having paid the entire sum of costs.
The Legal Profession Uniform Law (LPUL) poses a requisite practice to give to their customers the knowledge of the costs involved in their litigation. Disclosure of the requisite information should be made after the passing of any directions issued early on in a matter.
In case the aforementioned is unachievable, such as crucial criminal matters or letters with a pressing timeline which is the first step in a seriously elongated process, the legal practice shall entrust the costs at the very earliest, or whenever practicable after the conclusion of such time-tied work. The disclosure must be written and in plain English. The client’s signature on the disclosure is a non-compulsory necessity.
According to the LPUL, disclosure made at a later stage, which provides information as regards a significant variation must contain sufficient details as regards the impact on legal costs to allow the litigator’s arrival at a thought-out call as regards the upcoming course of the matter. In the immediate question, since ABC failed to inform Les beforehand about the significant upshot in costs that might occur, as compared to the original cost agreement and disclosure, it has breached the Cost Disclosure compliance.
The Personal Properties Securities Act, 2009 provides that upon fulfilment of certain conditions, the aforementioned liens fall outside of the act’s operation. However, liens which originate from a client agreement are subject to the act’s sphere of operation. This means that ABC law firm cannot hold the client file of Les, and their exercise of the common law lien is an invalid one. Original documents supplied through a client are normally outside the applicability of the rules relating to common law lien. Nonetheless, in the view that a professional put in the substantial effort on a document and remain unpaid as regards the same, the document is capable of being recognised as a subject of the lien.
In the present case, since Les had discharged all of his liabilities in the form of costs, ABC does not have the power to hold the Cost agreement, Cost disclosure statement or the file notes as a common-law lien, and they will have to hand over these documents to Les.
As regards the impact of the complaint of the client to the Law Society, we the measuring parameters for the answer in a 2015 matter, wherein it was held that if a complaint is made after an application for costs assessment was filed, but before the conclusion of the said assessment, then that costs assessment must not proceed. Since the facts are silent on whether the cost assessment had been completed, it is uncertain if the costs assessment will be stalled or continued as they would, in the normal course of action.
An undertaking is a document which comes with its weight and seriousness. Classified as a personal guarantee by a legal professional, it is a claim against which the opposing counsel can seek in a Court of Law, and finds its basis in the presumption that the promises of the instrument are to be performed rigorously3. For the absence of a compulsive necessity would be an Achilles’ heel of an apparatus engaged most frequently by stakeholders and practitioners of the legal profession.
The Australian Solicitors’ Conduct Rules prevent a solicitor from offering to a fellow lawyer an undertaking, to remain in line with which necessitates the bonafide deliverance of the conduct of a party whose genuineness stands on precarious footing.
The rule is drafted in a most obdurate fashion and holds that undertakings committed amongst barristers and solicitors enjoy sanctified status. They work as a lubricant to propel forward the machinery which allows the benefits and gains of one participant to be realised, without hampering the advantages that may be sought by the other side. Interestingly, the rule also directs the professors of law to not issue undertakings which find their foundation within the will of an independent third party, to rest one’s belief on whom would be akin to trusting the judgement of a crocodile while enjoying a swim in a lake.
To answer the question, yes, Jason did make an undertaking to Sally, when he said that upon receipt of the funds into his client’s account, they will immediately attend to discharging their liability to the creditor in question. To reinforce the answer presented, I seek support from the Countryside Banking Corporation case, the judges observed that “excusing the defendant from the execution of an undertaking will surely jeopardize the acceptable claims of the profession of law to standards of veracity and moral conduct over which the profession, as well as the general populace, have to rely perennially upon”.
Again in a case from 20075, the Tribunal said:
“The mere fact that an undertaking entered into by a practitioner offends public policy, or is for any reason unenforceable, will not excuse the practitioner who fails to comply with his or her undertaking. The obligation of a practitioner, who enters into an undertaking, is to ensure a full understanding of the obligations imposed by that undertaking.
Practitioners should be aware of the grave obligations consequent upon the giving of undertakings, and the risk to the professional reputation of those who give them lightly or thoughtlessly.”
In another case involving Law Society, New South Wales, the respondent was an advocate who did not comply with an undertaking to pay the commission due to the real estate agent participating in the sale, arranged at the disbursement at the time of selling of land. The Tribunal concluded with a verdict confirming professional misbehaviour while levying a penalty comprising of both, a rebuke as well as a fine of $3,000.
Therefore, Jason did make an undertaking to Sally as per the provision given in the question, and there was, in fact, a breach of the said undertaking
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