INFORMATION

How To Pay Your Account

Choosing The Wrong Lawyer Can Be A Costly Mistake

How Much Will It Cost

Barristers & Solicitors

Why We Don't Do "No-Win-No-Fee" Arrangements

Time Billing

Why Do We Use Time Billing?

Scale Charges

Why It Is Impossible To Quote A Fixed Sum

Advance by Way of Deposit or Retainer

Deferred Fee Arrangements

Disbursements

If I Win Will I Get My Costs Back?

Legal Aid

Our Affiliates (Debt Termination, Community Advocates, Estate & Finance Settlements)

Disclaimer

How To Pay Your Account

To pay your existing account, kindly direct debit funds to the following account:

To pay a deposit of advanced funds:

Kindly confirm all payments by email to enquiries@drllegal.com.au. So that a receipt may be forwarded to you.

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Choosing The Wrong Lawyer Can Be A Costly Mistake

There are all kinds of law firms and all kinds of lawyers. There are large corporate law firms, with many partners, many employees and offices all around the country and overseas. There are small boutique law firms that specialise in particular areas of law. There are sole practitioners and there are those who practice in partnership with other lawyers. There are Barristers and there are Solicitors.

It is hard to know what is best for you. Choosing the wrong lawyer can result in a huge bill being incurred as a lawyer who is not experienced in the area you need and takes time to become acquainted with your particular problem.

While law firms with expensive offices and many staff members may give the appearance of being successful and competent, you should not forget that it is you the client who is paying for all this. We try to strike a balance between the two requirements of professionalism and cost efficiency.

A large corporate law firm is less likely to be interested in representing you as an individual, with your personal Court matters, family problems or small business needs.

At the other extreme there are sole practitioners, or practitioners in suburban or country areas, who can often be more economical because they have lower overheads. However, that will not necessarily be translated into lower legal fees. Often such lawyers lack sufficient back-up working by themselves, need to “brief” other lawyers to assist them when they are very busy. As a result, you lack the personalised care and attention you need.

In our view, while some small boutique firms are more specialised in certain areas, it is important that you find one that specialises in the areas that you need - the kind of problems most likely to be experienced by ordinary people. We are such a firm, specialising in Family Law, Criminal Defence and Civil Litigation. We feel we strike the correct balance between being big enough to offer a range of legal services in the various areas you are likely to need, but at the same time small enough to deal personally with your requirements.

We will tell you straight up what we think the merits of your case are, and we will try to give you a reasonable estimate of what it will cost you. If we can’t help you, we will tell you straight away, not fumble around with your matter before leaving you with a large bill and an unresolved problem. If unexpected problems arise, then we will (with your permission) refer the matter to a Barrister or Specialist Lawyer who deals with such problems – we won’t waste your money on a problem we can’t fix.

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How Much Will It Cost

Litigation is complicated and can take many unexpected twists. Much depends upon the nature of the problem, what the other parties do, and what the Court ultimately decides. It is impossible to be precise with the cost involved, or to guarantee that you will be successful.

What we try to do is give reasonable estimates of what things will cost, based on our experience. We think that our estimates are, when all variables are taken into account, much lower than that of most other law firms, big or small.

Our first consultation or telephone conversation with you will be free, if you do not proceed further.

Like most lawyers, we charge at an hourly rate (and while this varies among staff members, it is usually less than that charged by most lawyers in Perth). We will also do Legal Aid work.

We usually request an initial deposit up front when we take instructions, because this is to cover the initial investigation of the merits of your case, and research, drafting & preparing documents or letters of advice, company and land title searches, court filing fees and service fees as well as our professional fees.

During the course of your matter we will interim bill you, generally once per month (unless another arrangement is made). Each month we will review the progress of your matter and send you a progress report. We will also report on any developments such as court appearances, or tell you when the other side has done something significant. We will send you copies of all letters and documents we receive, and also seek your approval before filing any court documents we prepare for you.

If you receive Legal Aid, then we will not bill you at all, but rather bill the Legal Aid Commission. However, it should be understood that extensions of Legal Aid must be sought for each new stage of your matter, otherwise we cannot continue to assist you.

In certain circumstances we may agree to defer our professional fees, such as in cases where a property or insurance settlement may be expected to cover your professional fees. However, this is at our discretion, and we will generally not pay out of-pocket expenses (called disbursements) for you, nor will we run your matter to a trial on a deferred fee basis. We can also help you to arrange litigation finance to fund a long term legal battle, where the matter is likely to proceed to a trial.

We do not do “No-Win-No-Fee” arrangements, for reasons explained below. Should you be looking for such a service we are happy to refer you to such lawyers, but we do ask you to consider some of the potential risks and traps of this type of scheme. We usually require a deposit into trust before appearing in court.

Between the time that proceedings are commenced, by a writ or application, until the time a trial commences, this is called the “interlocutory” or interim stage of the litigation. Many matters spend a considerable amount of time in this stage, because court procedures require many things to be done before it will make a final determination of a dispute. Although these proceedings take a long time, and much work is required, it is necessary to go through because otherwise you might be taken by surprise at trial with something unexpected. You may not be well prepared, and not given a fair hearing.

Unfortunately many people run out of money during this stage. Some lawyers, particularly those who represent big business, often deliberately do things that delay these proceedings or increase the amount of work that needs to be done, so that you will run out of money before the matter goes to trial.

We try to minimise the amount of work we do at the interlocutory stage, to try and keep your costs down. However, sometimes we do need to do things for tactical reasons before trial, or to respond to what the other side has done, because it is in your best interests. We will, of course, ask your permission to do this, but you should understand that this may increase your costs.

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Barristers & Solicitors

Traditionally Barristers did Court (Counsel) work, while Solicitors did transactional work such as drafting documents, doing deals, and preparing cases for court. The word “lawyer” is a general one that applies to both Barristers and Solicitors, while the word “Attorney” means the same thing as “lawyer” (although it is more commonly used in America).

In modern times the distinction between Barristers and Solicitors has become a bit blurred, with many solicitors appearing in court as well.

In some places, such as NSW and the UK, there is a strict division between Barristers and Solicitors, but not in Western Australia.

Nevertheless, some lawyers in WA practise exclusively as Barristers or as Solicitors. This does not necessarily mean they are better lawyers, but rather, that they are more specialised in a particular field (and there are often advantages and disadvantages of working this way).

Lawyers who practise exclusively as Barristers (sometimes referred to as “Counsel”) are specialists in either trial work, and/or, are specialists in particular areas of law (eg, Criminal, Commercial Litigation, Family law) etc.

Lawyers who practise exclusively as Solicitors tend to specialise in non-court legal work such as corporate law and tax law.

We, at Dean R. Love & Associates, practise as both Barristers and as Solicitors. In doing so, we try to reduce the “double-billing” that sometimes occurs when you have both a Barrister and a Solicitor acting for you.

We believe that, within our fields of Family Law, Criminal Law and Civil Law, we are competent at completing the work of either a Solicitor or a Barrister without unnecessary duplication or additional cost.

Nevertheless, there are some instances where specialised knowledge is required for a particularly complicated problem which may require a person having more experience than us in a particular area. In those circumstances, we will request your permission to consult a specialist Barrister or Solicitor, to advise you on your problem.

This will only be done with your permission, in circumstances where we believe it is to your benefit to seek advice from someone with more specialised knowledge in a particular field. In such cases, the Barrister or Consultant Solicitor’s fees are a disbursement (expense) incurred by us on your behalf. As such, we will usually require a deposit of funds into trust before briefing or consulting them.

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Why We Don’t Do “No-Win-No-Fee” Arrangements

Some lawyers advertise “no-win-no-fee” arrangements. We do not, and frankly we are concerned that this arrangement offers too many potential traps for you, the client.

Anything that sounds too good to be true – probably is.  The “no win, no fee” promise offers you the hope of getting a sizeable payout from a compensation claim, with no cost outlay.

The problem is that there is always a risk in litigation that you might be unsuccessful. This may result in a great deal of mental anguish as well as some financial cost. If you are unsuccessful in Court you may be required to pay the other party’s costs if ordered by the Court.

While you may have an arrangement with your lawyer to not pay them anything in legal fees should you be unsuccessful, this will not stop you from having to pay the other party’s costs if they are awarded by the Court.  Additionally, many of these no win, no fee arrangements do not cover disbursements.  In a lot of personal injury cases in particular, such things as medical report fees, Court filing fees and expert witness fees can often be quite substantial and you may be left to foot the bill for these expenses even though your lawyer has not charged you anything for their services.

One of the reasons why some lawyers are prepared to offer this type of service is because they are betting on a sure thing.  Generally speaking they are looking for compensation cases where liability has already been admitted by the other party.  This means that you have already won.  It simply then becomes a question of how much you have won.  This involves negotiating with the other side to determine the value of the compensation.  This in itself is a matter that may go to trial, even though the first question of who is at fault has already been resolved.

Often with “no win, no fee” retainers, your lawyer will not be prepared to undertake a trial for you.  This means that even when an offer is compensation is made, that you may not be prepared to accept, the matter will proceed to trial and your lawyer may refuse to act for you beyond that point.

You should always ask your lawyer in these types of situations, two questions:

• What happens if liability is not admitted by the other party?
  
  
• What happens if an offer of compensation is made that I do not wish to accept?

If liability is not admitted, there is a very strong possibility the case will go to trial, and you should have a very clear arrangement with your lawyer as to what will happen in those circumstances – and whether they will require you to pay at this point.

In respect to the second question, if an offer of settlement is made but it is not one you should accept – again, you should have a very clear understanding with your lawyer as to what will happen.

Additionally, “no win, no fee” retainers do not mean you will not be required to pay the other side’s costs if you withdraw or are unsuccessful.  

Generally speaking litigation is not profitable for anyone other than the lawyers. The old saying that ‘only the lawyers win when you go to court’ is, unfortunately, true in most cases.

If you can avoid ever going to court, then you definitely should. Unfortunately, life doesn’t always work out the way you want it to, and when that happens you made need to go to court.

Sure, in civil litigation, if you win you get costs awarded to you. However, you may not win. Even if you do, the costs you will incur will probably be awarded on a Court Scale. Costs on the Court Scale will not cover the fees that your lawyer is charging you on an hourly rate. Furthermore your lawyer will want to be paid during the litigation, whereas you will only have costs awarded after it has ended (which may take years).

In Family Court matters or in Criminal Court matters, costs are rarely awarded. Even when they are, the same applies. Litigation will always cost you more than you will get back in costs. Sometimes, of course, litigation produces a successful result. You may get a compensation payment or an award of damages, or you may successfully challenge a Will, or you may get a property settlement from the break-up of your marriage.

Sometimes the objective isn’t money, and you may get an order relating to your children, an order restraining another party from doing something, or indeed you may be acquitted of a charge that is wrongfully laid against you.

In such cases as these, it is necessary to bring legal action in Court, and that is the service we at Dean R. Love & Associates aim to provide. But you need to be sure that it is something you have to do, that you are fully aware of the risks and consequences of such action, and that you do not take such action without thinking it through very carefully.

Litigation is similar to getting pregnant – you can’t get a few months into it and then decide you don’t want to do it anymore!

Our view about “No-win-no fee” arrangements is that they often mislead clients about their prospects of success in litigation, and that they often involve promises that can’t be kept. That’s why we don’t do it.

Our view is that lawyers who offer such arrangements are looking for the types of cases that are likely to settle out of court, before trial. If they do, then they receive their fees and you get what ever is left. Sometimes their fees are grossly inflated compared to the work actually done.

If, however, your case cannot be settled out of court i.e. because the other side will not agree to settle), then your matter will be listed for a trial. Very few lawyers (if any) will do a trial on a “no-win-no-fee” basis. Most of them will either ask you for some money up front before doing a trial, or simply dump you if you can’t afford to continue.

This places you in a very difficult position. Your matter is going to trial. You have no lawyer, because you can’t afford to retain one for a trial, and if you discontinue the litigation the other side will seek an order for costs against you.

This is something you should be aware of before you obtain a lawyer on a “no-win-no-fee” basis.

While we would hope that litigation isn’t like gambling, we would hope that you have a good case and we would hope that the Courts will give you the result you deserve. We will do all that we can to ensure this happens.

Nevertheless, if you can’t afford to gamble, then you shouldn’t!

Remember – the only good lawyers are the one’s you never have to meet!

You are much better off spending $1 on yourself, or on your family, than us.

You only come to us, when you have no choice.

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Time Billing

All lawyers time-bill on an hourly rate, using pro-rata 6 minute units (being one-tenth of an hour).  For example, my hourly rate is $220 (GST inclusive).  This is divided pro-rata into 6 minute units at $22 each. 

For a letter that takes 10 minutes to prepare and finalise = $44 :

For a telephone enquiry to be dealt with inside 6 minutes = $22;

For the preparation of document that takes approximately 1 hour = $220.

This might sound excessive; however, it must be born in mind that this factors in all business expenses, employees salaries, as well as compensation for work done.  It also prevents clients who may be able to afford to pay, from having to subsidise the ones that cannot or will not.  That is why all legal practitioners do it that way, and I believe that my hourly rate is less than most.

It is not possible to quote a fixed sum for most types of legal work, or even for various stages of legal work, because you are dealing with an uncertain situation – uncertain about what the other side will do, what the court will do, how complex the matter will be or how long it will take to resolve.  Quoting a fixed sum for a matter that is resolved quickly or proves to be less complex than anticipated, would resolve in the client being overcharged.  Similarly, quoting a fixed sum of money for a matter that turns out to be more difficult or more time-consuming than anticipated, would usually result in the practitioner withdrawing and not completing the work as agreed.

I provide as an example below a Bill of Costs:

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Why Do We Use Time Billing?

All lawyers bill for all work undertaken on a file, including answering and returning telephone calls, reading and preparing documents and letters, researching applicable law, meeting with clients and attending Court work.

All of these matters require time to be expended on a particular client’s file, and as such, they increase the cost of the service provided. 

Client’s often resent the fact that lawyers charge for every telephone call or reading every document that needs to be examined.  This is perhaps a misunderstanding of the nature of the work being undertaken or the service being provided.

Unlike a salesman who might regard such things as answering telephone calls and meeting with customers as a usual part of the process of selling a product, a lawyer does not sell a product – they sell a service:  their time and expertise.

It is invariably the case that a practitioner will be running a large number of files, receiving a volume of correspondence every day and receiving a number of telephone calls every day and having to respond to correspondence and prepare documentation regularly.  All of this takes time to prepare and the volume of work undertaken every day is not always appreciated.

It is a necessary part of professional practice that every telephone call, piece of correspondence must be actioned, in addition to the preparation of Court documents and attendance at Court appointments that are instructed.  All of this takes time, and it is necessary to apportion the cost of this service equally and fairly to those clients requiring that service.

To do otherwise would mean that clients who are more demanding of a practitioner’s time (in terms of telephone calls and meetings) being provided with a greater service than those who are less demanding of time.  This is unfair to the clients who are less demanding of the service and may result in them receiving a lesser standard of service, or subsidizing the service provided to others.

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Scale Charges

For various types of legal work there are costs scales determined by the Legal Profession’s Costs Committee.  There is nothing that requires a legal practitioner to restrict themselves to the scale, and most do not.

This is because scale charges have the same problems that quoting fixed sums has for legal work.  Sometimes the scale can be too much for the work done, and sometimes too little.  Additionally, cost scales do not apply to every situation, and even when they do there is always a component of “getting up” (i.e. preparing a case for trial) which may vary considerably depending upon the work done.

In many cases the scale only applies in circumstances where the client is successful and is claiming costs from the other party.  If the unsuccessful party will not agree as to what these costs are, an application to the Court may need to be brought to have them assessed.

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Why It Is Impossible To Quote A Fixed Sum

With most legal work there is a degree of unpredictability about how long it will take to do, how complicated it will be, and how the other parties (i.e. the Court, or your opponent in litigation) will respond to it. This makes it impractical to quote a fixed sum or lump sum for most types of legal work.

Sometimes legal work will take longer than is initially expected because it proves to be more complicated or time-consuming than first thought, or because the client requires more attention to be given to their matter (e.g. more meetings, more telephone discussions and more material to be read), or because the Court requires or directs the parties to do certain things or to present their case a certain way, or because the other party has adopted an unexpectedly adversarial or disagreeable position.

A lump sum is impracticable because it may prove to be too little compensation for the work undertaken in some circumstances, and too much in others.  For the same reason, payment in installments at regular intervals in the litigation may also prove impractable for much the same reasons.

A percentage of any compensation, damages or property to be divided may also prove to be too much or too little compensation depending upon the outcome of the case – and indeed, it presumes that the client will ultimately be successful in their action.  If no compensation, damages or property is received then we are still left with a difficult problem of how to assess what is fair payment for work undertaken.

One-off payments can work in certain circumstances, such as a consultation with the practitioner, a written opinion or a straightforward legal document.  However, all too often, when a one-off payment is agreed, it eventuates that there is more to the matter than is first thought.  A one-off appearance in court can result in an adjournment or the matter being set down for a hearing on another date.  Similarly, the preparation of a legal document may not prove to be as simple or straight forward as first thought, and may require further investigations to be undertaken in order to be done properly.  While most practitioners occasionally charge on a one-off basis for some types of work, it should be clearly understood that there is no continuing obligation in relation to that consultation or document, unless otherwise agreed.

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Advance by Way of Deposit or Retainer

Often the best way to proceed is to request an advance of legal fees by way of a retainer or deposit on legal services, being a reasonable pre-estimate of legal fees and disbursements.  The payment of this advance is usually confirmation of the client’s instructions to proceed, as well as providing a reasonable pre-estimate of costs.

This has the advantage of allowing the client to budget for what they may anticipate the legal action might cost, and also to decide whether or not to proceed. It also has the advantage to the practitioner of ensuring that they do not proceed with a large amount of work, only to find that the client is unable or unwilling to pay for this service.

It also allows for the practitioner to know whether or not they are instructed to proceed, or whether they are permitted to seek other instructions at that time.  If no payment is received, then the practitioner may be free to accept another brief from another client. 

It should be understood that such advance payments are only a deposit on account of anticipated legal fees and disbursements – not an agreement to fix legal fees at a certain level (for the same reason that quoting lump sums is impractical).  If the matter proves to be less time-consuming or less complex than originally allowed for, then it is only fair that the client receives a partial refund of their deposit.

If, however, the matter proves to me more complicated or more time-consuming than first thought, then this should be explained to the client, and authorisation to proceed further should be sought or otherwise implied from instructions.  This may result in an additional account being supplied at the end, where the practitioner is instructed to proceed.

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Deferred Fee Arrangements

I do not offer “no win, no fee” arrangements for the reasons set out above.  It creates too many problems when liability is not admitted, or in circumstances where an offer of settlement is made that the client is unwilling to accept.

What I may offer in certain circumstances, is a deferred fee arrangement.  The deferred fee arrangement is offered on a number of conditions:

1. You must accept my advice, including advice to settle or discontinue your case.  If you do not accept my advice I may cease to act for you and issue an account for professional fees and/or disbursements for work incurred to that point.
   
   
2. This deferred account arrangement does not extend to taking your case to a trial, appeal or final hearing of your matter.  If your case cannot be settled on a commercial basis out-of-Court and must go to a trial, appeal or final hearing, a deposit on account of professional fees will be required to cover the cost of briefing a Barrister (even if I or one of my employees, are to be the Barrister doing the trial or final hearing).
   
   
3. Pursuant to this deferred account arrangement, I will only take your case as far as a Settlement Conference (however described by the Court) either formally in court, or informally out of Court.
   
   
4. All expenses/disbursements (including Counsel Fees, Court Fees, and Expert Witness Fees) are to be paid by you, or paid by the Legal Aid Commission pursuant to a Legal Aid Grant.
   
   
5. If Court or other legal proceedings are commenced, you understand that there is no guarantee of success.  If you lose or discontinue your case, you may be liable to pay the other party’s costs.  This deferred account arrangement does not constitute an indemnity from these costs by me.
   
   
6. However, your matter concludes you will still be liable to pay my accounts for professional fees and/or disbursements. I may agree to reduce these as a result of an unsuccessful outcome, but this is a matter of discretion. This deferred account arrangement does not constitute a “no win, no fee” arrangement.
   
   
7. You should understand that for commercial reasons priority must be given in my practice to interim billed/fee-paid work (i.e. clients who have either deposited money in trust or are paying fees on an ongoing basis, will be afforded priority over deferred fee clients).
   
   
8. If at the Settlement Conference there is no offer of settlement, or an offer of settlement that you are not prepared to accept, I will have an election to either continue to act for you on the same basis, continue to act for you on an interim billing basis, or cease acting for you and render an account for professional fees and disbursements incurred on your behalf.
   
   
9. Where appropriate, we may recommend that you apply for litigation funding through a Litigation Funding Organisation.

Other lawyers may be prepared to offer you a deferred fee arrangement – but you should clarify with them what the conditions of this arrangement are up front.

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Disbursements

It may also include the use of special legal consultants such as a Barrister for trial or a consultant lawyer in a certain specialised area of law.  These costs may be passed onto the client pursuant to the agreement with the practitioner.

These disbursements (or expenses) will be billed to your account, in addition to the time billed as professional fees.

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If I Win Will I Get My Costs Back?

If you win after a Court action, you may be awarded costs (it is often at the discretion of the Court).

Some Courts (like the Family Court) and most Administrative Tribunals do not award costs, other than in exceptional cases.  Also, you are unlikely to be awarded costs for negotiations undertaken through lawyers before formal legal proceedings are commenced.

It is important to understand the difference between Party – Party Costs and Solicitor - Client Costs.

• Party – Party costs are the costs awarded to you by the Court if you win.

• Solicitor – Client costs are what your lawyer charges you.

They are not the same.  Even if you are awarded Party – Party costs because you won – these will usually be assessed by the Court, according to the Scale (i.e. see the heading “Scale Costs”.)

These Party – Party Costs may prove significantly less than your Solicitor – Client Costs.  Therefore, it is not wise to assume that you will get all of your costs back from the other party even if you do win. It is usually at best a contribution to your costs.

Furthermore, you may have to pursue the other party for costs, just as you may have to pursue them for damages or compensation.  This too, unfortunately, can lead to more legal expenses being incurred.

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Legal Aid

If you receive a grant of Legal Aid for representation, then The Legal Aid Commission will pay for your lawyer and you will not need to pay anything.

However, there are a couple of qualifications on this:

• Sometimes Legal Aid will require a contribution from you of money towards the Grant of Aid.  This money will be collected from you by your lawyer.

• Sometimes Legal Aid will give limited grants, either for a mediation conference, or for limited advice and representation.  If your matter goes further, your lawyer must apply for and obtain an extension of aid (i.e. it is not a “blank cheque” for legal representation).

• Sometimes Legal Aid will grant aid for disbursements (expenses) only.  For example, for medical reports in a compensation case.  This means that your lawyer may still charge you professional fees for their services.

• You must generally accept your lawyer’s advice, as a condition of the Legal Aid grant.  Also your lawyer must advise Legal Aid if there is merit in your action – if you do not accept your lawyer’s advice and wish to proceed against advice, Legal Aid may be declined and you will have to fund this action yourself.

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Our Affiliates (Debt Termination, Community Advocates and Estate & Finance Settlements)

For more information regarding our affiliates (Debt Termination, Community Advocates and Estate & Finance Settlements) please click on the button found at the top of this web site named "Affiliated Services" or click here

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Disclaimer

This discussion of “How Lawyers Charge” is not intended to constitute legal advice on the subject of costs, nor is it intended that any civil liability ought to arise out of it.

This discussion is intended purely for educational purposes, and serves only to assist people to better understand how lawyers charge for their services.

Nothing in this discussion should be read as affecting the Terms of Engagement my practice has with any clients, nor should this handout affect, or interpret or be incorporated as a condition within any Legal Services Agreement or Costs Agreement with any client.

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