Ethics and - Gordon & Jackson

Even where all these steps have been undertaken, lawyers still need to be
aware of how their costs are viewed. If the matter is litigious and proceeds
to a hearing, although the client may be successful in winning their case, if
their judgment is wiped out by your costs it will be a hollow victory. Rarely
does “it’s the principle that’s important” last to judgment.
In some areas, like Family Provision claims against Estates, costs of the
applicant have generally been borne by the Estate of the deceased.
However, recently courts have been reluctant to award what they consider
to be excessive costs and in some cases have either refused costs 4 or
capped them. 5
Currently the Law Reform Commission is reviewing the legislation and
cases in relation to costs. Practitioners in this area will be aware of the
courts already limiting costs in small estates by disallowing affidavits prior
to Mediation.
In addition you need to ensure you keep good, legible, dated file notes.
Some complaints don’t come in for some time and trying to remember
what you told someone five years back is almost impossible. 6 Not keeping
file notes is considered unprofessional by the courts. Emails can be
stored electronically and .pdf copies of relevant documents are worth
storing especially with the reducing cost computer disk space.
Ensure your instructions are current
Barristers are familiar with being told on the day of trial that “the matter has
settled”. In the euphoria of settling a difficult case the lawyer may have
forgotten to communicate this fact to Counsel. The client will not be happy
to be paying Counsel’s fees when they consider the matter done and
dusted.
However a worse scenario is for a solicitor to continue to act in a
proceeding and advising his opponent that the client had refused their
offer to settle. Quite by accident his opponent discovered the Plaintiff had
died some days before so would have been unable to give those
instructions.
I can only imagine the judge’s reaction and attitude to the lawyers for the
plaintiff. A case on point is listed in this paper.
4 Re Carn-Moerth-v-Moerth and another;Moerth-v-Mac Bean (No 2) [2011] VSC 275,
Gardiner AsJ Related [2011] VSC 176.
5 Cangia v Cangia (No 2) 5 [2008] VSC 556
6 Bale v Mills [2011] NSWCA 226, Allsop P, Giles JA and Tobia AJA para 15 and 17.
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