The Bar Association assists members with recovery from solicitors of unpaid fees, which have been outstanding for more than three months but less than two years. The association will only assist members who have complied with the fee disclosure requirements of the Legal Profession Act 1987 or the Legal Profession Act 2004.
Where members were first instructed in a matter on or after 1 October 2005 (when the LPA 2004 commenced operation), the provisions of Part 3.2 of the LPA 2004 apply. Where members were first instructed in a matter before 1 October 2005, the provisions of Part 11 of the LPA 1987 apply.
Members should be aware that the disclosure obligations under the LPA 2004 are more onerous than under the LPA 1987 and that infringement of the LPA 2004 provisions may amount to professional misconduct or unsatisfactory professional conduct.
Failures of disclosure can also attract adverse consequences in the fees recovery process.
Members who have not complied with the fee disclosure requirements of the relevant Act (either in full or in part) will not be able to maintain an action for recovery of their fees in the absence of obtaining an assessment of fees and determination from a costs assessor. The cost of any such assessment must be borne by the member and cannot be passed on to the instructing solicitor.
Assistance will be provided in the following manner:
- on being satisfied of the member’s compliance with the relevant Act, the association will write to the solicitors requesting payment;
- members are advised in writing if the association’s efforts have been unsuccessful and the association is of the view that further correspondence with the solicitors will be fruitless;
- in the event payment is not forthcoming, the association will suggest to the member that he/she retain a solicitor to advise on the most appropriate action to take to recover the fees.
The member may retain a solicitor of his/her choice or alternatively may retain one of the firms of solicitors the association has placed on a list of solicitors who have indicated a willingness to undertake fee recovery work on behalf of members.
Three firms of solicitors have provided information to the association as to the manner in which they will charge if retained by members. The rates charged differ between those firms and in particular depend on the seniority of the solicitor undertaking the work. Details of the rates charged have been made available to clerks and are also available from the Bar Association’s Professional Conduct Department on ph: (02) 9229 1727 or via e-mail: pcd@nswbar.asn.au
Members will be required to contract directly with any firm of solicitors ultimately engaged whether that firm is one of the three included in the list referred to above or a firm of the member’s own choice. The Bar Association will not be responsible for any legal fees incurred by members nor does the association give any assurance in respect of the quality of the advice or service provided.