Legal fees

I will start a bit chaotic, because I am still very much pressed by time to do things and do not have much time to write about it. However, do come back as I plan to have complete guide what to do about legal fees when they were exaggerated. It has been and still is very difficult journey for me. I want to share my experience, so others can avoid my mistakes and can do their research much faster using the results that I already have.

Check Road traffic injury for further information what I found useful and not so useful when you get injured and try to recover. Trauma and subsequent PTSD was one of contributing factors, that made dealing with legal fees so difficult.

I got unfair bill from lawyer what do I do?

There are laws that protect you from this. There were so called regulated fees that set maximum allowed fees if there was no written contract allowing to charge more (depends on the area of law).

Some lawyers, especially in NSW, are know for exaggerating fees and claiming work they have not done. I have personal injury claim, that went very bad due to misrepresentation by my lawyers. Yet, in total I got $290,000 bill. I am disputing it.

The first thing to do is to ask itemised bill. The have to provide it for free and it has to be on their time spent for blocks of time of 6 minutes. Otherwise their bill is not valid.

Do not agree to pay anything till you explored your options.

There were 3 ways to approach it:

1. OLSC. I made complaint to OLSC but got no help from them. Despite this you still should write a complaint to OLSC. There are time deadlines to dispute fees 30 days for itemised bill and 60 days for a lump sum bill.

2. Supreme court cost assessment. They will mainly focus on contract and work done based on bill provided. Both parties provide their objections and arguments and assessor decides what is fair. The assessors decision is enforceable by law, but you can request review and appeal it. There is one year limit since the bill was issued.

3. Lawyers may sue you if you can not come to agreement. Then you can put counter claim about quality of service or if it was requested at all.

In my experience, lawyers will change their tone and start negotiating with you when you start taking these steps.

Location

My experience here relates to legal matters I had to deal with in NSW Australia. If I write about other experience, I will note it explicitly. I remember that in Lithuania insurance claim used to be much simpler and incomparably better. System functions differently and by feedback much better in Victoria Australia.

Definitions

I have encountered 3 types of legal profession representatives:

paralegal

I encountered only as supportive personal for solicitors. They might have lower fees, but I do not know can you hire them on their own. Wikipedia description, while there were studies for paralegal, their roles seem to be not well defined.

solicitor

is the one you will engage. Finding good one in personal injury is almost mission impossible. If you are lucky you will deal with average one. However, you need help dealing with him or most likely you will be left in big trouble.

barrister

most of the barristers do not communicate directly with clients, only through the solicitor. This is why finding good solicitor is even more important.

Type of fees for legal service contract

There were 2 basic ways how legal fees can be charge. The only problem is that I found out about it only after 8 years after dealing with solicitors.

Regulated costs

Because the legal fees are huge problem in getting justice, there is a scheme how they were covered by insurance (or guilty party). Many solicitors take work based on these fees, so after you done with your claim all fees will be paid by insurance. Here is link to a law defining it: Motor Accidents Compensation Regulation 2015 (MACR2015). This law applies to 2015 (when I was injured). You may need a bit newer version of 2020.

My case

I got injured in 2015-03-30. The PIC assessment conference was in 2023-06-28. The Claimant's legal costs and disbursements are assessed based on Motor Accidents Compensation Regulation 2015. The calculation should be based on the date when injury happened.

From determination: 64. I assess the Claimant's legal cost ad disbursements in accordance with s 149 and 150 of the Act and the Motor Compensation Regulation 2015 in accordance with attached sheet in the sum of $41,319.30.

Note:

• 149 is Division 2 Maximum legal and other costs
• 150 is Division 3 Medico-legal fees and expert witnesses

After PIC Assessment Conference 2023-06-28, PIC produced file for File:2023-07-26 PIC legal cost calculation.pdf. Peter Livers, my solicitor at that time, refused to provide me this file, but I was able to get it from PIC.

Cost agreement

Terrible midfield and this is the way how I was abused. Law more or less require for lawyers to bill based on time spent. Time has to measured in 6 minute blocks. However, some lawyers write cost agreement based in items.

Ways to deal with exaggerated fees

There is nice site that provides good explanation about legal fees: costs and charges.

The best option is to challenge the fees before paying it. You still can do after paying, but there were benefits to challenge it first. Lawyers may attempt you receiving the compensation you about to get if you challenge their fees. The common way and it is regulated by law is to ask for the disputed legal fees to be kept in trust account until it is agreed or assessed.

Negotiate

Lawyers are well aware that they are breaking the law by providing exaggerated fees. It is mentioned in several places that it is recommended to negotiate with lawyers before taking the next step. Any attempts to talk with my lawyers about their fees ended up only in increasing it.

Legal Services Commission

I wrote 4 complaints to Office of Legal Services Commissioner (OLSC) and all been dismissed without any investigation for the reasons mainly outside of the complaint. For now OLSC is the least reliable place to complain about lawyers in my opinion. They give false hope and provide protection for lawyers for their misconduct.

OLSC are responsible to make sure that lawyers conduct themselves appropriately. They can reduce cost, issue fines, award compensation and take other actions against dodgy lawyers. They have 3 years limit to complain about lawyers actions and 2 months about their bills, 3 days if it was itemized bill. To find out more how they can help you can check fact sheets.

Disciplinary actions

The OLSC maintain a register of disciplinary action they took. I have searched for cases when they overcharge for exaggerated fees:

1. https://portal.olsc.nsw.gov.au/dasearchbn/daresultdetail/?id=112e510a-b733-eb11-bf74-000d3ad1941e

Supreme court cost assessment

Supreme court cost assessment (SCCA) can assess and reduce legal fees.

I also found guide how cost assessment works: Costs Guide 7th Edition

How to prepare for supreme court cost assessment

I have started preparing for supreme court cost assessment several months ago. At that time, I did not know what it is, I was just told that I can have legal fees taxed. It sounded suspicious as I know very different meaning of word tax. Now I know that it is called supreme court cost assessment.

Assessing someone's work is nothing new to me. I did a lot of it in my professional work especially when I am doing analysis and design of various systems. It is a bit similar to solicitor's work, only solicitor's work is much much simpler. However, my cognitive abilities are severely reduced after injury, so if I write some things the way that is not clear, please let me know.

Simple rules that help:

1. If you made here, the chances are you can do this. I have crippling PTSD, brain injury (still being treated) and I am still doing it. For some useful tips and guidance check Daily functioning tips.
2. Use one place to store all files. I use Google drive: easy to share with other people and can work at the same time with the same documents. You will need help, so multi-user platform is important. It also allows various access rights, so you can share data with solicitor or other people you need to get some advice in read only form. 15GB is for free and it way more than enough for your claim, no matter how complex it is.
3. Name files starting YYYY-MM-DD (ISO 8601 adopted in Australia too) date format. It will simplify locating documents a lot. Give every document a meaningful title. Date documents based when document was created, most of the time it is when you finished editing document, sometimes you may choose to date when document was sent to relevant recipient.
4. Use email program to read emails. Google browser application is not enough. You want to have all your emails on your computer with views that allow you to see emails in simple list mode. Google email chains are great, but when you need to see chronology, you will benefit from simple list. I use Thunderbird, but most of email programs will have this functionality. They also keep all information when email was sent in case if you need to prove it.
5. When sending information often emails is enough. You do not need to create additional document and sent it as attachments. Do it only when document has meaning and purpose on its own. Documents may not carry information when they were created or sent, emails do. Some lawyers do it just to increase their bills, or to hide dates when documents are created and sent, but about this latter.
6. Digitize everything. Do not leave any documents on paper, including all your medical records, receipts and so on. Ideally you should be doing on the way, as soon as you get document. For example, some receipts tent to fade very quickly and leaving scanning them for later might be a bad idea.
7. Prefer digital documents (mostly originals) vs scanned documents. Many platforms, like Google Docs, allow search in pdf files. Even if you are not using this feature now, you or someone working on your case may need it during the whole claim process.

What to expect

I have not gone through the cost assessment process so, it is hard to tell what to expect. There is some information about the principles used by cost assessors, but it still does not allow to estimate outcome:

1. No transparency. Cost assessment service does not public their certificates. There is no way to find out what fees have been brought before them and what were outcomes. There is also no quantifiable information on the criteria used for assessments.
2. The only published guide is GUIDELINE COSTS PAYABLE BETWEEN PARTIES UNDER COURT ORDERS. It provide hourly rates for different level of services and what lawyers can claim.
3. There is no publicly available information on cost assessment certificates (CAC). The appeals against CAC in courts at NSW Caselaw is the only publicly available information about CAC I was able to find. Please keep in mind that all comments here are based on my understanding of these cases and is very limited, please read the cases you are interested your self:
   1. Gilles & Eliades v Giakoumelos [2008] NSWSC 70. Law firm unsuccessfully appealed cost assessment. An assessor reduced senior counsel (barrister) fees by $52,360 from $125,000. Among other things "He came to the view that the hourly rate charged by senior counsel was excessive". Unfortunately name of the barrister is not mentioned. It would be useful to find out were there any actions by OLSC.
   2. Principal overcharged client almost $300K. "After a District Court review in 2019, an eventual costs assessment was $384,695.22 – a difference of $289,554.32, or 42 per cent". "Shaye Elizabeth Chapman, sole practitioner at Bundall firm Shaye Chapman Lawyers, was investigated by the Legal Services Commission (LSC) after it received a referral from a costs assessor and a complaint from one of her clients".
   3. Hearsay podcast episode and publication about cost assessments: fair, reasonable and proportionate?
   4. Musgrave as Executor of the Estate of Mark Musgrave v SRM Lawyers Pty Ltd [2023 NSWDC 242]. The plaintiff disputed that the agreement with the law firm was conditional with the successful outcome. The judge decided that the outcome matched the contract conditions.
   5. Bingham v Bevan [2024 NSWSC 1045] solicitor successfully challenged barrister fees of $2,100.45 assessed by CAC.
4. While cost assessors are assigned from the same lawyers they are appointed by the Chief Justice of NSW. This gives some how of them being more fair, than the officials I faced through various commissions.
5. This is ACT presentation for lawyers about cost assessment, but many things apply to NSW too.
6. Costs column: Costs assessment and review in NSW: Lessons from Ahern v Aon Risk Services Australia - it seems cost assessors have a lot freedom setting hourly rates (and ignoring what is billed).
7. There is extensive guide about cost assessment appeals.

Searching for advice

Finding a reliable advice about cost assessment is bigger challenge that you might expect due to no reliable data being available. Have a read on how to find a good solicitor for more in depth advices. I focus only on specifics related to looking for advice on cost assessment in this section.

1. You can call Supreme Court of NSW and they will provide basic administrative information, but nothing that would help you to measure the strength of your case. I found calling to be way more productive than writing.
2. Try different search phrases like "supreme court cost assessment" and "legal cost specialist" when looking for private advice. For some phrases search is so dominated by paid ads that not paid information that matches your search criteria may never appear on search results no matter how far you go in results lists.
3. Use several search engines. I found Google being so dominated by ads that never got to information I was looking for. Try also at least bing.com and duckduckgo.com.

Further reading

1. Queensland cost assessment provides additional information about their cost assessment scheme.
2. Article about pitfalls barristers face when trying to recover their fees using cost assessment regime. It provides some trust in cost assessment.
3. barrister cost assessment accepted out of time - interesting article about court case where barrister cost assessment was accepted after time limit. However, it mentions that fees have to meet all fairness criteria, and this is not my case. It seems that Law Partners are not allowed to go to court to recover their fees when their cost are grossly exaggerated.
4. Short info on how cost assessment works, from lawyers perspective.

District court

I was recommended by some solicitors that the best way to deal with exaggerated lawyers' fees (Law Partners) is to go to district court. However, I am not confident this way as I already have problems with lawyers, so why should I expect that it will get better next time.

The way lawyers have to conduct them self is defined in Legal Profession Uniform Law (LPUL). It is 283 pages, too challenging in my current state, so I mostly rely on info I got while preparing to go to court against Law Partners.

The same reasons to complain to OLSC about lawyers' conduct apply to going to court too. However, the lawyers whom I contacted like to focus on 3 topics:

1. Exaggerated legal fees
2. Professional misconduct
3. Financial loss due to misconduct

Many of the firms that focus on suing lawyers for professional misconduct also deal with personal injury claim. I cannot say is it because area of law overlaps or is it because there is a lot of misconduct in actions of personal injury lawyers and many of people need to change personal injury lawyer and also someone to represent them dealing with previous lawyers. My personal experience is that it is all about lots of misconduct.

Money on hold while resolving disputed fees

Dealing with unfair fees may take some time. If lawyers are claiming part of the money you are about to receive the best option is to put it in specialized bank account.

Trust Account

Trust account is meant to be safe and money can be used only for designated purpose: some of its payed to lawyers, the rest returned to owner. However, trust accounts have one huge problem all interest from this account goes to Law Society of NSW. Law Society in simple terms is a union of lawyers. In my experience its main purpose is to protect lawyers from accountability for any misconduct. So, by allowing your money to go to Law Society you are feeding the abusive system. Lucky the law allows an escape. You can request your lawyer to keep money in Controlled Money Account.

Controlled Money Account

Controlled Money Account (LPUL Section 128(1)) has the same safety guards as Trust Account, but with major benefit - interests stay in Controlled Money Account. You need to request your lawyer to move money from trust account to controlled money account. Tiny detail that I was unfortunately not aware year ago and lost one year of interests.

Getting legal advice

I was advice and I recommend it to others to tee before going to court to get legal advice about your case. You may first check Legal aid to see maybe there were free/independent options first. This will help to avoid potential conflict of interest when you go to private lawyer and when giving you advice, they have a conflict of interest to lock you in as a client and it is hard to find out how much you can trust them.

Finding a good solicitor to get legal advice might be the same difficult as finding one for personal injury. If you are going to use law society solicitor referral service, then there is an "Area of Law" named "Litigation - Professional Negligence - Legal" and "Miscellaneous - Solicitors Costs Disputes" that are the best match in my belief. Similar as looking for lawyer get at least few advice so that you can compare.

My case

After 8 years since the injury I finally had a tribunal on 2023-06-28. I got tribunal assessment determination on 2023-07-20. I have learned that a tribunal can be very corrupt as I have no other explanation for decisions and reasoning that can not be explained by any type of errors or very poor decision making. One of the parts of the tribunal decision was awarding compensation for $41,319.30. Now I have to deal with exaggerated costs, which were close to $300,000.

Law Partners

I saw two lawyers from a firm called Law Partners. I started with solicitor Gillian Potts and then for no good reason she included barrister Ken Pryde. They promised to keep fees low, estimating for the whole claim about $60,000. Did very little and gave a bill of $183,000. Currently I have 2 complaints against them: one against Gillian Potts another against Ken Pryde at OLSC. However, there were problems:

• I misunderstood deadlines and some actions may be past the 3 years deadline. OLSC is deciding whether they grant me an exemption.
• OLSC thinks that fees are over their allowed threshold.
• Ken Pryde retired and OLSC is unwilling to investigate.

While waiting I need to prepare what to do next. The possible action is to apply for cost assessment at supreme court cost assessment (SCCA), but I am not sure if they will take into account misconduct by Law Partners.

Later in the future I will convert my complaints about Law Partners, so that you can find out in detail how their actions and hopefully avoid it. In mean time here is information here is analysis of their inflated bill.

Exaggerated Law Partners fees

I feel like a scam is the best way to describe the Law Partners work on my claim. There were many things wrong, but lets have look at the simple thing Analysis of Law Partners itemised bill.

Moya de Luca-Leonard

She promised a lot, but did only one thing (submitted application for further medical assessment and got my PTSD recognised). Yet, charged as if she has done everything and more.

This is a more pressing issue as I have not done anything about it yet. Simply had no time. However, the last reply I got from OLSC is that they may take 6 months before they look at my complaints due to current workload. There were some Moya actions that been hidden in my mind that are resurfacing only now, after the tribunal:

• She told me that the court case against the driver for damage to the bicycle and CTP insurance claim are linked. Later on, I found that this is not true. This caused me an enormous amount of mental health damage.
• She ignored my plea to include information about factually incorrect assessment provided by a psychologist hired by QBE solicitors. This made a huge impact on my claim making it almost impossible to claim loss of income.
• She resigned from my claim without completing it, yet with exaggerated legal costs.

Recently when my memories come back, I have realised that I want to write a complaint to OLSC about it. However, I have concerns about evidence I have as some most hurtful things were said on the phone. Follow this link for more detailed story Moya de Luca-Leonard.

A bit of new development. I was preparing very detailed info for cost assessment. It seemed that she is prepared to fight very hard, so I had to make sure that I have very strong case and well prepared. I worked very hard and for very long time, much longer than I thought it might take, but I think I am getting well prepared (I still have a lot to do). I had to register every email or document, but I was surprised to find way less work done than I expected. However, I did not know anything about cost assessment process and it seems few things might be very different than I expected. It seems that even before applying for cost assessment I need to negotiate. I thought she is not going too. However, now because of few other things I have to offer more than I was prepared or I thought will be assessed even in reasonably bad outcome. I do not know what happens if she accepts the offer. All my work may be for nothing, so for now I will try at least to write a guide about the things I have learned. And I learned a lot about #How to prepare for supreme court cost assessment.