Barristers, Brisbane, QldLaw ReportsBarristers, QJP Reports

Terms

Publication of this site does not comprise an offer to provide legal services by FindMyBarrister.com.au.

Barristers are not legally required to accept direct access briefs. Accepting a direct access brief is a matter entirely for the barrister. FindMyBarrister.com.au does not warrant that a barrister will accept any particular request for services. FindMyBarrister.com.au will not in its absolute discretion refer on matters that it does not consider are appropriate for a direct access brief.

FindMyBarrister.com.au is limited to offering a connection between lay clients and a barristers clerking service.

Subject to any specific agreement, this page contains the terms a barrister accepting a direct access brief from this site will act upon and makes any necessary disclosures.

Mandatory Disclosures

Instructing a barrister by direct access brief is regulated by the Legal Profession Act 2007, by the Barrister's Conduct Rules 2011, by Court Practice Directions and contract law.

A barrister who is instructed by a client directly must make disclosure of certain terms and rules to comply with these instruments.

If you wish to directly brief a barrister you must have read and accepted those Rules and disclosed terms as set out below.

The fact that some of these disclosures have been made to you must be certified to the Court to comply with relevant Court Practice Directions.

Direct Access Briefing Terms

The following terms comprise the direct access briefing terms.

Please note that FindMyBarrister.com.au is not a law practice itself. If you brief a barrister through FindMyBarrister.com.au your relationship is with the barrister directly however the terms the barrister will act on are set out here, subject to any specific agreement.

Disclosure and Offer

Where a barrister has accepted a direct access brief referred through FindMyBarrister.com.au, this document is published as:

  • disclosure under the Legal Profession Act 2007; and
  • an offer to enter into a costs agreement in relation to matters briefed to barristers accepting briefs through FindMyBarrister.com.au under the Legal Profession Act 2007.

Fee Disclosure

Fees will be calculated on the basis set out on the FindMyBarrister.com.au's Scale of Fees as published on this website from time to time.

Estimate of Fees

An estimate of fees is provided by reference to the fixed scale and item description in the FindMyBarrister.com.au's Scale of Fees as published on this website from time to time and or will be given under separate cover.

If you are successful in a matter before the courts you will have an entitlement to apply to the court to recover your costs on that court's scale of costs. The court scale is not the same as the scale your fees will be charged at. The amount recoverable depends on the work done and the court scale.

The estimate is based on the information provided by you and available at the date of the estimate.

An estimate provided to you is just that: it is an estimate, not a quotation and is subject to change if you require more or different work to be done than originally contemplated.

Termination

If counsel is instructed by you for a matter involving an appearance in court with the effect that he or she cannot accept another brief for the time set aside for you or your matter, then counsel is entitled to charge a fee for time lost in consequence provided the termination of the instructions is without fault on counsel's part on the basis:

  • If counsel is given more than 7 days notice of the cessation of instructions, no fee apart from time spent on account of out-of-court work.
  • If counsel is given less than 7 days notice of the cessation of instructions, but more than 48 hours notice, 50% of the above fees;
  • If counsel is given less than 48 hours notice of the cessation of instructions, the full fee for time thrown away will be incurred.
  • If counsel can obtain work in place of the time allocated and lost on cessation of instructions, there will be a corresponding reduction in fees for any fee charged for time thrown away.

What this means is that if you book a barrister you have reserved them for the days booked. They can't take other work for your days. If you cancel shortly before your matter is on, the barrister has lost the opportunity to work on your booked days but still has to pay insurance, chamber and other costs, and has had to turn away other work for your booked days. The barrister will try to find other work to occupy him or herself after you cancel and if they do your fee will be reduced to the extent of other work obtained, but the nature of the work is such that this is difficult to do on short notice because things are, as with your matter, organised a long time in advance.

Companies

Where instructions are given on behalf of a company, the natural person who relays the instructions and the company directors, if they are a different person to those relaying instructions, undertake to be personally responsible to the briefed barrister for professional fees and outlays occurring as a result of those instructions. The natural person giving the instructions warrants they are authorised to bind the directors to this agreement. Liability is joint and several.

Contact Person

The client may contact either the barrister acting for them or the clerk at FindMyBarrister.com.au to discuss legal costs but the contract is between the client and the barrister directly.

Billing Details

Invoices will generally issue on completion of major events from time to time within the scope of the retainer, for example, preparation of a particular document, conclusions of a conference or series of conferences, or at the conclusion of the retainer or failing such an event then monthly at the conclusion of each month, where appropriate. If the matter is proceeding to court the barrister will issue the invoice in the two days before going to court up to prior to going to court on the morning or afternoon of the court appearance.

Invoices may be delivered by hand, or by email or by post or all or any of these ways at the barrister's election.

Terms of Payment

Any memorandum of fees will be issued in the form of a tax invoice.

Invoices are payable on receipt.

Because barristers do not hold money in trust FindMyBarrister.com.au barristers require payment of their fee by a direct access client to be made in cleared funds before, but on the morning of each day's Court appearance, unless the instructions have been terminated as set out in the terminations provision in the general terms. Cleared funds means payment by bank cheque, postal money order or cash. Personal cheques are not acceptable.

Because the fees for days set aside are payable in full 48 hours before the hearing date(s) unless there has been a cancellation, fees are payable for hearing dates 48 hours before the those dates, and it is a fundamental term going to the root of this agreement that a direct access client will pay the fee for the barrister's services according to these terms.

If the instructions have been to prepare a document or advice on behalf of the client the barrister does not have to give the document to the client until the fee for producing the document has been paid. The barrister may exercise a lien over any material in his or her possession pending payment of any outstanding fees.

Please be aware that if a direct access client does not pay the barrister in accordance with these terms the barrister reserves the right to withdraw their services in response. If the barrister continues to act for a direct access client when the direct access client has not paid the barrister in accordance with these terms, the barrister has an ongoing right to withdraw his or her services even if they have continued to act for the direct access client after the direct access client has failed to pay counsel.

Payment of fees is not contingent upon the outcome of the retainer; that is, payment is required regardless of whether your action is successful or fails. There are no "no win, no fee agreements".

Liability between instructing parties is joint and several.

In the case of a default or alleged default in payment of any memorandum of fees issued pursuant to this agreement, any legal process issued by counsel can be served by ordinary prepaid post to the address the party advised was their last business or home address, this provision being included to give effect to rule 119(1)(a) of the Uniform Civil Procedure Rules 1999 and an affidavit of counsel deposing to the advised business or home address of a direct access client shall be conclusive proof of the advice and the address.

The laws of Queensland and the Legal Profession Act 2007 apply to any legal costs under these provinces.

Interest

If bills remain unpaid for one calendar month and a minimum of 30 days of becoming due for payment, interest may be charged on the unpaid amount at a benchmark rate being the rate prescribed by regulations under the Legal Profession Act 2007 which is the rate defined by the regulations to the Legal Profession Act 2007, plus two percentage points as at the date of the bill.

Trust Monies

Barristers are not solicitors and do not operate solicitor's trust accounts. Lay clients providing instructions on direct access briefs must understand barristers do not operate a trust account and will not ask an instructed barrister to hold monies on trust.

Direct access clients will not require fees paid to be held in a special bank account for 14 days or any other period of time, after delivery of any memorandum of fees for work performed and they authorize the barrister to disperse funds paid to the barrister on presentation of the barrister's invoice for work performed, immediately on the direct access client's payment and the barrister's receipt of the funds.

Immunity from liability

Counsel's immunity under common law from suit relating to work done in court, or work done out of court affecting the conduct of this matter in court, will apply to any retainer.

Costs Agreement

This publication is an offer by a participating barrister to you to enter into a costs agreement pursuant to Part 3.4 of the Legal Profession Act 2007 with you as a legal practitioner (as defined above) or as a direct access client for any work briefed to that barrister through the FindMyBarrister.com.au barristers clerking system by you.

It may be accepted in writing or by conduct.

The conduct that will constitute acceptances includes any act by you which would objectively be viewed as accepting conduct, and by briefing counsel or by accepting counsel's services or work product.

2011 Barristers Rules

As set out above, the conduct of barristers practicing in Queensland is regulated by the Barrister's Conduct Rules 2011. The Rules provide for information which must be disclosed to direct access clients in Rules 24B, 15 and 17.

You must have read these rules before you can directly instruct a barrister through FindMyBarrister.com.au.

  • Barrister's Conduct Rule 24A

    24A. Nothing in these Rules shall be taken to oblige a barrister to accept instructions directly from a person who is not a solicitor.

  • Barrister's Conduct Rule 24B

    24B. A barrister who proposes to accept instructions directly from a person who is not a solicitor must:

    1. inform the prospective client in writing of:
      1. the effect of Rules 15 and 17;
      2. the fact that circumstances may require the client to retain an instructing solicitor at short notice, and possibly during the performance of the work;
      3. any other disadvantage which the barrister believes on reasonable grounds may, as a real possibility, be suffered by the client if the client does not retain an instructing solicitor;
      4. the relative capacity of the barrister in performing barristers' work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them; and
      5. a fair description of the advocacy experience of the barrister; and
    2. obtain a written acknowledgement, signed by the prospective client, that he or she has been informed of the matters in (a) above.

  • Barrister's Conduct Rule 15

    15. Barristers' work consists of:

    1. appearing as an advocate;
    2. preparing to appear as an advocate;
    3. negotiating for a client with an opponent to compromise a case;
    4. representing a client in a mediation or arbitration or other method of alternative dispute resolution;
    5. giving legal advice;
    6. preparing or advising on documents to be used by a client or by others in relation to the client's case or other affairs;
    7. carrying out work properly incidental to the kinds of work referred to in (a)-
    8. ; and
    9. such other work as is from time to time commonly carried out by barristers.

  • Barrister's Conduct Rule 16

    16. A barrister must be a sole practitioner, and must not:

    1. practise in partnership with any person;
    2. practise as the employer of any legal practitioner who acts as a legal practitioner in the course of that employment;
    3. practise as the employee of any person;
    4. be a legal practitioner director of an incorporated legal practice; or
    5. be a member of a multi-disciplinary partnership.

  • Barrister's Conduct Rule 17

    17. A barrister must not, subject to Rules 18 and 19,

    1. act as a person's general agent or attorney in that person's business or dealings with others;
    2. conduct correspondence in the barrister’s name on behalf of any person otherwise than with the opponent;
    3. place herself or himself at risk of becoming a witness, by investigating facts for the purposes of appearing as an advocate or giving legal advice, otherwise than by:
      1. conferring with the client, the instructing solicitor, prospective witnesses or experts;
      2. examining documents provided by the instructing solicitor or the client, as the case may be, or produced to the court;
      3. viewing a place or things by arrangement with the instructing solicitor or the client; or
      4. library research;
    4. act as a person's only representative in dealings with any court, otherwise that when actually appearing as an advocate;
    5. be the address for service of any document or accept service of any document;
    6. serve any process of any court;
    7. conduct the conveyance of any property for any other person;
    8. administer any trust estate or fund for any other person;
    9. obtain probate or letters of administration for any other person;
    10. incorporate companies or provide shelf companies for any other person;
    11. prepare or lodge returns for any other person, unless the barrister is registered or accredited to do so under the applicable taxation legislation; or
    12. hold, invest or disburse any fund for any other person.

Court Practice Directions - Complaints

Any complaint of professional misconduct, unsatisfactory professional conduct, or other conduct to which Chapter 3 of the Legal Professional Act 2004 applies, against a barrister, may be made to the Legal Services Commissioner (Level 25, 307 Queen Street, Brisbane Q 4000).

Form 1

Legal Profession Act 2007 (s 308(5))

FORM OF DISCLOSURE OF COSTS TO CLIENTS

Legal costs — your right to know
You have the right to:

  • negotiate a costs agreement with us
  • receive a bill of costs from us
  • request an itemised bill of costs after you receive a lump sum bill from us
  • request written reports about the progress of your matter and the costs incurred in your matter
  • apply for costs to be assessed within 12 months if you are unhappy with our costs
  • apply for the costs agreement to be set aside
  • accept or reject any offer we make for an interstate costs law to apply to your matter
  • notify us that you require an interstate costs law to apply to your matter.

For more information about your rights, please read the fact sheet titled Legal Costs — your right to know. You can ask us for a copy, or obtain it from your local law society or law institute (or download it from their website).