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Is a solicitor or his client responsible for a barrister’s fee?

05/05/2010

A recent decision has thrown more light on the nature of a solicitor’s relationship with counsel.

A barrister sued for a declaration that solicitors were personally responsible for the fee on a brief.  The solicitors had been instructed by their client to retain the barrister.  The  solicitors delivered the brief.  At a pre-trial conference, the client – not the solicitor – was handed and signed a”Fees Disclosure and Agreement with Solicitor“.  The solicitors instructed throughout the week-long trial. The barrister rendered a fee note to the solicitors, who (several months later) denied personal liability.

The Court  explained that, conventionally, the relationship of counsel and client was such as to prevent them making any contract for advocacy in litigation.  Therefore, no fee could be recovered because there was no contract on which a barrister could sue either the solicitor or client.   General practice was that counsel took instructions, and rendered fees to, the solicitor rather than to the lay client.  However, legislation now allows a barrister to contract with either the client or a solicitor.  A barrister now has the choice  to render legal services either on a conventional (non-contractual) basis or by entering into a contract. The costs agreement alone does not create a liability to pay costs.  It only resolves any controversy about the lump sum or the rate to be charged.  The reasonableness or the performance of individual items of work can still be attacked.  The costs agreement is required whether there is a contract for legal services or an obligation of the conventional kind.

The  judge explored the following factual indicia about whether a contract was made directly with the lay client or the solicitor.

  • The lay client had a direct involvement in the choice of the barrister.
  • The brief was endorsed with the solicitors’ firm name without indication that the solicitor would not be liable for the fee on brief.
  • The “Fees Disclosure and Agreement With Solicitor” explored a range of contractual terms about the legal services, not just the quantum of costs.
  • That document was handed directly to the lay client for signature.
  • It was signed by the lay client alone and not by the solicitor.
  • The solicitors did not immediately object to the fee note.

On that light, he decided that a contract had been concluded directly with the lay client, but not with the solicitor.

Read the full text of the decision in Keesing v Adams [2010] NSWSC 336

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2 Comments leave one →
  1. AquanyWaync permalink
    22/05/2010 4:53 am

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    Christian, iwspo.net

  2. AquanyWaync permalink
    01/06/2010 11:32 am

    Just want to say what a great blog you got here!
    I’ve been around for quite a lot of time, but finally decided to show my appreciation of your work!

    Thumbs up, and keep it going!

    Cheers
    Christian,Diet Guide!

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