ByLawyers News and Updates

Costs – All states

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By Lawyers 101 Costs Answers reference manual has been extensively reviewed and enhanced.

This comprehensive reference manual is available in the Reference materials folder on all By Lawyers matters plans. The 101 Costs Answers guide is also as part of the By Lawyers Practice Management publication.

Commentary enhancement

An important new section of commentary has been included dealing with disclosure before settlement in litigation matters. Barrister Philippe Doyle Gray, who we are delighted to welcome to the ranks of our authors, covers in detail the requirement under the Legal Profession Uniform Law for clients to receive advice about the cost implications of settlement. Philippe has also made his helpful Settlement Computer available via a link in the By Lawyers commentaries. This automated spreadsheet assists practitioners with the sometimes complicated calculations required to properly give disclosure before settlement, taking into account the various possibilities for the resolution of a matter.

The new section of commentary has been added to the By Lawyers litigation and injuries guides in those states where the Legal Profession Uniform Law applies, namely New South Wales, Victoria and Western Australia.

New precedents

Two new precedent letters to the client have been added to provide clients with the necessary disclosure before settlement:

  • Letter to client – Costs disclosure before settlement – NSW, VIC and WA;
  • Letter to client – Costs disclosure before settlement – QLD, SA, TAS, ACT and NT.

There is one precedent letter for Legal Profession Uniform Law states and one for the other jurisdictions where costs disclosure before settlement is not mandatory but is nonetheless best practice.

These new letters are available in the If required – Updating costs disclosure and security for costs folder on all By Lawyers matter plans. They are also available on the relevant litigation and injuries matter plans under Going to court.

Costs agreements

By Lawyers extensive suite of costs agreements that comply with the regulatory requirements in each state are currently under review. Keep an eye out for a future News & Updates post when the revised versions are published.

Costs agreements – All states

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Enhanced automation of Costs agreements for LEAP users

As part of By Lawyers ongoing objective to provide seamless and intuitive entry of information in our precedents, the automation of all Costs agreements has been enhanced.

With the use of the ‘LEAP for Word’ add-in and the creation of new LEAP fields, the By Lawyers Costs agreements precedents now offer LEAP users the following features:

New Questions – LEAP for Word add-in

Intuitive questions for inserting applicable fee scale, fixed fee and initial amount to be held in trust. The questions appear in the LEAP for Word panel:

 

Simply complete the required information and click the ‘Update Document’ button for this information to populate in the correct location:

 

For further information on using the LEAP for Word add-in, see the document ‘Working with By Lawyers precedents’ available in Folder A on all By Lawyers Guides.

Hourly rates – New LEAP fields

When charging professional fees on an hourly rate, the rates for relevant staff members now populates automatically from the ‘Rates’ information completed for each staff member in the ‘Staff Members’ section of your firm setting:

Disbursements – New LEAP fields

The ‘Disbursements’ section now populates from the information completed in the ‘Disbursements’ tab within ‘Firm Details’:

 

Estimate of total professional fees and disbursements – New LEAP fields

The ‘Estimate of total professional fees and disbursements’ section now populates from the information completed in the ‘Accounting’ tab within ‘Matter details’ in each matter:

Please do not hesitate to get in touch if you have any questions: askus@bylawyers.com.au.

Certificates of title – NSW

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The NSW Government has approved the cancellation of all remaining paper certificates of title as part of the implementation of electronic conveyancing. All remaining paper certificates of title are expected to be cancelled in April 2021. Certificates of title will then no longer be evidence of indefeasible title. The By Lawyers Conveyancing and Property guides will be amended accordingly at that point.

Implications

  • For solicitors and conveyancers any lien held over a certificate of title as a form of security for payment of costs will become ineffective.
  • Equitable mortgagees holding certificates of title as security will need to make alternative security arrangements.

Alternative security for professional costs 

  • A solicitor’s lien over all client documents created or obtained in the matter.
  • Creating a charge for the repayment of costs over the client’s real property which entitles the firm to lodge a caveat on title until all costs are paid.
  • Authority to pay professional fees and disbursements from client funds held in the trust account.
  • Guarantee clause for the performance of the agreement by a guarantor, and creating a charge over the guarantor’s real property.

All By Lawyers Costs Agreements provide for these methods of security.

Alternative protection for lenders 

  • Lien over other documents or assets held by the borrower to secure the repayment of the loan.
  • Ensuring that loan agreements contain a right to register a mortgage.
  • Lodging a caveat.

The By Lawyers Mortgages (NSW) Guide contain a ‘Mortgage Linked Loan Agreement’ that is linked to the mortgage and incorporates the provisions found in the By Lawyers ‘Registered Memorandum AJ843928’. A copy of the memorandum of common provisions is recorded at NSW Land Registry Services and can be used at no additional cost by our users.

The By Lawyers Mortgages (NSW) Guide also covers caveats and contains an ‘Acknowledgement of debt – Caveatable Interest’ that creates an interest in the borrower’s real property entitling the lender to register a caveat on the property to secure repayments.

Cancellation of ALL certificates of title

Keep an eye out for the upcoming cancellation of ALL certificates of title, paper and electronic, in NSW. This will see the removal of the requirement to lodge consents and changes to the requirements relating to verification of identity, right to deal and retention of proper evidence.

There will be another Obiter post from By Lawyers when our guides are updated for these developments.

101 Costs Answers – ALL STATES

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101 Costs Answers is the latest addition to the By Lawyers ‘101’ series of helpful reference materials.

Located in the Reference materials folder on every By Lawyers matter plan, this publication contains valuable commentary and precedents on all aspects of legal costs.

The precedents include all of the By Lawyers costs agreements/client services agreements and costs disclosures, drawn together from all By Lawyers publications into a convenient single publication.

The By Lawyers costs agreements are compliant with the strict requirements of the various state laws. They cater for all areas of law, with detailed recitals of the scope of work usually undertaken in each type of matter. This not only defines the retainer but makes it easy for practitioners to produce documents quickly upon engagement.

The 101 Costs Answers commentary includes:

Disclosure requirements

The commentary helps practitioners to navigate some of the more complicated disclosure requirements including regulated costs and the specific obligations for different types of litigation matters. The effect of non-disclosure is also covered.

Disbursements

Commentary on defining and recovering disbursements includes relevant case law and examples. The By Lawyers costs agreements are drafted to clearly identify usual disbursements.

Counsel’s fees

The commentary deals with the contractual relationship between solicitors and barristers as well as disclosure requirements. With the solicitor responsible for payment of counsel’s fees regardless of the solicitor’s agreement with the client, the By Lawyers costs agreements include counsel’s fees as specific disbursements which the client is obliged to pay.

Debt recovery

Where debt recovery is necessary, 101 Costs Answers contains letters of demand and example pleadings to assist with the recovery of costs. There is also detailed commentary on costs assessment procedures and the relevant forms for each state are available on the matter plan.

Like all By Lawyers publications, 101 Costs Answers contains interactive links to relevant legislation and cases, which are always kept updated.

Costs disclosure – Increase of legal rates during a matter

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Increase of legal rates during a matter

All By Lawyers Costs Agreements and Client Service Agreements have been updated to include a clause notifying a client that legal rates may increase during the course of a matter requiring a revision of the costs estimate provided. This clause provides for 30 days written notice of any proposed changes to legal rates. While such a clause is not required by Legal Profession legislation concerning costs disclosure requirements, providing such notice on initial costs disclosure is considered best practice.

All of our Guides contain Costs Agreements (Client Service Agreements for QLD Guides) within the folder ‘A. Getting the mater underway’. All of our agreements are compliant with the relevant Legal Profession legislation and are reviewed and updated regularly to ensure compliance.

Interest on unpaid legal costs – TAS

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Under new regulations, the maximum rate of interest on unpaid legal costs that can be charged by Tasmanian lawyers has increased significantly. The Legal Profession Regulations 2018 came into force on 28 November 2018 and replaced the Legal Profession Regulations 2008.

Rule 66 now provides that the applicable rate for interest on unpaid legal costs is that prescribed by the Rules of Court for the purposes of section 165 of the Supreme Court Civil Procedure Act 1932. The current rate is 7.5%. The previous rate was 3.5% and was tied to the Reserve Bank of Australia Cash Rate Target.

All By Lawyers Tasmanian costs agreements have been updated accordingly.

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