Charging access to justice Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column
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Access to justice has increasingly become a catch-cry that the legal profession has been invited to address.
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The profession has responded in various ways, against a statutory backdrop directed at regulating costs chargeable.
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Professional discipline for overcharging nonetheless remains as a critical vehicle to police illegitimate impediments in this regard.
It is trite to observe that we live in a society where questions over access to justice — specifically persons’ inability to access justice — are accentuating. While far from the only impediment to accessing ‘justice’ (itself a loaded word), the cost of legal services presents as a significant contributor. It is unsurprising, therefore, that the legal profession has been called upon to play a part in improving access to legal services, as a threshold for accessing justice. In 1980, for instance, the (then) Chief Justice of the United States Supreme Court spoke of the profession’s “special obligations to be energetic and imaginative in producing the best quality justice at the lowest possible costs for those who use it”.1 While few would suggest that the profession cannot do more in this regard, its contribution to fostering access to justice cannot be denied. This is not merely by significant pro bono (and discounted ‘low bono’)2 commitments, but also in, amongst other things, undertaking legal aid work, speculative fee retainers and being parties to the ‘unbundling’ of legal services.3 Any notion, moreover, of avoiding fee competition — which was once seen as unprofessional4 — has well and truly fallen by the wayside.
unsatisfactory professional conduct or professional misconduct.5 So what may, in the commercial field, equate to good business is, when the legal profession is involved, distinctly unprofessional. ‘Overcharging’, it has been said, “damages the reputation of the profession and reduces public confidence in the profession”.6 The temptation to charge more than what is ‘fair and reasonable’ can be intense. As can the pressure (including sub-consciously) to rationalise an otherwise illegitimate charge. For instance, the Family Court of Western Australia recently observed that “[a]ny lawyer practising for a significant time in family law will experience the difficult, demanding or ‘high maintenance’ client who by his or her actions and attitudes generates additional work in the lawyer’s office, or who seeks to insist on unnecessary work being performed”.7 In such circumstances, the court responded, the lawyer’s obligation is ‘clear and long established’, namely “a duty to advise and protect a client against unnecessary expense”.8 Two weeks later, the Queensland Civil and Administrative Tribunal found that a lawyer who, inter alia, charged a loading for ‘care and consideration’ outside of express provision in the retainer agreement, as well as for legal work done after the termination of the retainer, engaged in unsatisfactory professional conduct.9 That the lawyer felt justified, in view of the legal services supplied, in charging a loading and for post-termination work was no bar to professional discipline. When it comes to fostering access to justice, therefore, there are compelling reasons for lawyers to approach matters of charging ethically.
And, as lawyers are (sometimes painfully) aware, in any event statute performs an important function in regulating costs legitimately chargeable, including by way of costs disclosure, formalities for bills of costs and the process of costs assessment and review. Client knowledge and empowerment, to this end, are steps directed at precluding lawyers abusing their (usually) stronger position, which in turn foster, it is reasoned, access to justice.
NOTES:
Concerns surrounding remaining potential for abuse of lawyer position in this regard also surface within the disciplinary sphere. Statute makes it explicit that “charging of excessive legal costs in connection with the practice of law” is capable of constituting
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1.
W Burger, ‘The Role of the Law School in the Teaching of Legal Ethics and Professional Responsibility’ (1980) 29 Cleveland State L Rev 377 at 378–9.
2.
‘Low bono’ involves lawyers charging for legal services at lower than the prevailing market rate: see L E Herrera, ‘Encouraging the Development of ‘Low Bono’ Law Practices’ (2014) 14 U Md LJ Race, Religion, Gender & Class 1.
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This is not to overlook risks inherent in ‘unbundling’ legal services: see, for example, Sequence Properties Ltd v Patel [2016] EWHC 1434 (Ch).
4.
See, for example, Re Evill [1951] 2 TLR 265 at 268 per Lord Goddard CJ (‘There is nothing worse in any profession than that there should be fee cutting’).
5.
Legal Profession Act 2008 (WA) s404(b).
6.
Legal Profession Complaints Committee v Park [2017] WASAT 89 at [42].
7.
Taronite v Mabra (Costs) [2017] FCWA 72 at [104] per O’Brien J.
8.
Ibid., [105], [106].
9.
Legal Services Commissioner v Jackson [2017] QCAT 207.