Scandalising the profession
Hellfire Club • Friday, February 18, 2011 
Judge David Reid of the Queensland District Court has found Clayton Utz to have used unacceptable billing methods.
He ordered the massive law shop to deliver itemised bills with respect to invoices for hundreds of thousands of dollars.
The judge made the orders last last month under s.300 of the Legal Profession Act in respect of six invoices totaling $399,844 sent to a client, P & W Enterprises Pty Ltd.
Reid found "the various invoices were a wholly inadequate explanation of the work actually performed".
P & W had sought advice from Clayton Utz in November 2009 in relation to its involvement in a residential development known as "Paragon on Arthur".
P & W had already paid Clayton Utz $181,445 of the fees claimed, before seeking advice from other solicitors. That left $218, 393, plus interest, outstanding.
On August 24 last year P & W's new solicitors requested that Clayton Utz provide an itemised account in assessable form in respect of the bills.
P & W said the bills could not properly be described as "itemised" as that term is defined by s.300 of the Legal Profession Act.
The bill of costs and items charged were grouped together into a lump sum.
Section 341(1) of the Act says that in conducting a costs assessment, the assessor must consider the fairness and reasonableness of the costs in relation to the work carried out.
Judge Reid found that it was not possible to determine whether the amount charged for a particular item was reasonable, necessary or a proper professional charge.
For instance, on December 21, 2009 a claim was made for 8.9 hours of work by a solicitor. The charge came to $2,581 being 8.9 hours at $290 an hour.
Clayton Utz offered the following description of the work:
"Various activities including letter to Dibbs Barker re Mitchell Bradtman report; prepare response to show cause notice; peruse affidavits and e-mail to council re same."
Judge Reid said:
"Description of the work is insufficient to determine whether the hours of work performed on that day were reasonable or otherwise required having regard to the provisions of s.341 of the Legal Profession Act."
"Generalized descriptions" were regarded by the court as of little and sometimes no assistance to P & W or its solicitors gathering information needed for an assessment of costs.
Why Clayton Utz didn't head this one off at the pass much earlier is a mystery.
See judgment in full
The long-running Maria Bechara case looks as thought it might finally have exhausted itself.
The NSW solicitor lost her appeal against a finding of professional misconduct by the Administrative Decisions Tribunal that she had deliberately charged grossly excessive fees.
The case involved the not-unheard-of vice of multiple billing for the same work performed in the same unit of time.
Bechara was charged with a breach of s.208Q(2) of the Legal Profession Act 1987, NSW, that stipulates against "the deliberate charging of grossly excessive amounts of costs and deliberate misrepresentation as to costs".
McClellan CJ at CL said the solicitor ...
"must have been aware that she was not entitled to charge one unit of time more than once [and yet she] deliberately chose to do otherwise."
She was ordered to pay a fine of $6,500, which was at the lower end of a possible maximum of $50,000 as a penalty for professional misconduct.
The overcharging arose from a personal injury case in 1997, in which three people from the same family, coincidentally, suffered injuries on three different days in the same house.
Bechara acted for each client, who sought sought damages against the NSW Land and Housing Commission in the District Court.
Because each of the accidents happened in similar circumstances, it was agreed before the commencement of the hearing, that the proceedings would be heard together with evidence in one being evidence in the other. There was no formal order for consolidation.
Each of the three plaintiffs was successful and verdicts of $98,005; $27,446 and $30,050 plus costs were recovered.
Bechara prepared three itemised bills.
She separately charged each client $250 for every hour that a junior solicitor was present in court, a total of $750 an hour for the three clients.
In addition, she separately charged each client $280 per hour ($840 per hour in total) for her attendance when judgment was delivered.
She made no attempt to identify the time spent on the matter of each client or the nature of the work actually performed by the junior solicitor during each hour of the hearing.
Nor was any attempt made to apportion between the clients the costs common to all matters.
In October 2007 the Legal Service Commissioner submitted to the Administrative Appeals Tribunal that Bechara was obliged under s.208A of the Legal Profession Act 1987 (now repealed) to only charge for work actually performed by her for each individual client and to charge each client a fair and reasonable fee. 
McClellan CJ at CL: found grossly excessive chargingIn failing to apportion costs and in charging each client the full amount quoted in a costs agreement, the tribunal found she was in breach of the terms of the costs agreements.
Justice Peter McClellan accepted the general principle that "a lawyer cannot charge the same unit of time more than once".
He found that there must be an apportionment of time spent on matters common to two or more of the proceedings.
"The precise mechanism of apportionment will depend on the circumstances of the case ... The appellant was not entitled to charge each client as though different solicitors had been engaged in each matter ... The charges which the solicitor made were grossly in excess of the charges which were appropriate in the circumstances."
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From Western Australia comes the disturbing case of the solicitor who urged Legal Aid to withdraw support for an impoverished former client.
The Legal Profession Complaints Committee fined Dean Love $4,000 in November last year, but on February 2 the State Administrative Tribunal increased the fine to $7,000, in deference to public interest considerations and the objectives of professional disciplinary proceedings.
In 2007 Love helped arrange for his client private litigation funding of $21,200 with an interest rate of 16.95 percent, and total annual servicing charges of about $5,000.
In 2008 legal aid was granted to the client.
However, after the client moved to another lawyer, Love notified Legal Aid that litigation funding had been approved, and that the client had the capacity to fund his matter privately and therefore should not qualify for legal aid.
Love continued to undertake legal work, purportedly on behalf of the client in the absence of any instructions, and billed $1,000 (using the litigation funding) for fees for work that included, among other things, charges for his correspondence with legal aid.
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Brott: repeat offenderAnd then there's Brotty, mentioned frequently in earlier dispatches (see HERE and HERE and HERE and HERE).
On February 7 Issac Brott was pinged by the Victorian Civil and Administrative Tribunal on four charges under s.137 of the Legal Practice Act 1996.
This time he had commenced and acted in legal proceedings on behalf of people who had no knowledge of the matter and had given no instructions to act.
Because Brott had a history characterised by misconduct, stretching back to 1985, the tribunal made orders that he not be allowed to apply for a ticket before January 4, 2019.
The tribunal referred to the Supreme Court a recommendation that his name be struck off the jam roll.
Brott, 59, was admitted to practice in 1978 and traded as Isaac Brott of Little Bourke Street.
The Legal Services Commissioner successfully showed that between December 2003 and November 2004, Brott purported to act for John Elias and commenced proceedings on his behalf without any or any proper instructions.
Brott also was found guilty of the same offence for similar conduct between April 2004 and November 2004, in which he acted without instruction for Cliff Hillier.
There was no evidence that he made any attempt to speak to either person in whose names he issued proceedings.
The tribunal said Brott's conduct was "disgraceful or dishounourable". It was not persuaded he was remorseful in anyway, or that he had he demonstrated any insight into his wrong doing.
Could this be Bye, Bye Brottie?
Alex Angel-Graham reporting
Billing, Clayton Utz, Fees, Isaac Brott
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