The unnamed barrister took the payment ahead of a criminal trial
A standards committee laid a $5,000 fine on a barrister sole who accepted payment for fees directly from a client ahead of a criminal trial.
The unnamed barrister, who was given the pseudonym Mr B, was found to have engaged in unsatisfactory conduct as a result. The committee said he violated rule 14.2(e) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC).
Mr B took on client Mr E’s case on short notice after his previous counsel withdrew as a result of funding issues. They agreed that Mr E would partially settle the fee before the trial.
No further payments were made to settle the fee; almost two years after Mr E’s trial, Mr B invoiced Mr E for the outstanding amount. Mr E still did not pay and was declared bankrupt. Mr B initially applied to be a creditor for the outstanding fees but pulled out his application.
The committee accepted that Mr B had agreed to take on a complicated case with little notice at the behest of his instructing firm and lacked security for his fee. Mr B’s firm had provided Mr E with the terms of engagement on behalf of his previous counsel. Thus, the committee was satisfied that Mr E was clear on the fee arrangement and determined that Mr B did not violate RCCC rule 3.4A.
However, rule 14.2(e) stipulates that a barrister may not receive or hold money for another person. Mr B recognised that having Mr E deposit the fee directly into his account instead of holding funds in his instructing firm’s trust account was a significant administrative oversight.
Thus, the committee determined that Mr B breached rule 14.2(e) – a violation exacerbated by his failure to invoice Mr E immediately after the retainer. Mr B conceded that he did not invoice Mr E on time and failed to record their agreement; however, he said that Mr E had not been harmed in the process.
Moreover, the committee noted that Mr B either did not respond to queries promptly or failed to respond completely. Thus, an investigator was appointed.
The committee decided to censure Mr B in addition to the $5,000 fine. He was also ordered to pay costs of $7,500.
