Duty of litigation practitioners to prepare for hearings and costs restrictions from Legal Aid

 Re: N (a solicitor) [2010] QSC 267

CATCHWORDS:

Profession and trades – Lawyers – Duties and liabilities – Duties to court – Generally – Duty to ensure matters are dealt with expeditiously – Criminal matter

Legal Profession Act 2007 (Qld), s 418

Ashmore v Corporation of Lloyd’s [1992] 1 WLR 446, cited

Fryberg J

In a professional conduct decision which flowed from a criminal sentence hearing where there was delay and a failure to take a statement, his Honour commented on the duty of practitioners in litigated matters to prepare for the hearing and furthermore, preparation is required despite the lack of funding from Legal Aid.

His Honour also concluded, I am left with the uncomfortable feeling that the errors on the part of both N and counsel for T would not have occurred had the matter not been funded by legal aid.”

[25]

It cannot be doubted that one of the duties of a solicitor engaged in litigation, criminal or civil, is the timely preparation of cases for hearing. In Ashmore v Corporation of Lloyd’s, Lord Roskill said:

“[I]n any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge’s time as is necessary for the proper determination of the relevant issues.”4

That was said in a civil case, but it applies with equal force in a criminal one. The duty is owed not only to the client; it is also owed to the court. On the criminal side, substantial public resources will be thrown away if a trial or hearing cannot proceed on its allocated date. If the accused is legally aided, it is not simply the resources of the prosecution and the court which will be wasted. In addition other litigants will be delayed in obtaining hearing dates. Any breach of duty is therefore not simply a matter between the solicitor and her client.

Referral

[31]

Nonetheless, I decided not to refer the matter to the Legal Services Commissioner. I did so because in the end I was not satisfied that the public interest would be served by such an investigation or by consequential proceedings against N. N was a young solicitor and had only 2½ years’ experience in criminal practice. I was satisfied that enough had already happened to her publicly to ensure that there would be no repetition of her conduct.

[32]

Second, I was conscious that the Commissioner’s resources are limited and did not want him to feel under any duty to investigate a matter in which any need for personal deterrence had already been overcome. The Commissioner has more important matters to deal with.

[33]

Third, counsel had been briefed in the matter for a month and a half and had at no time advised that a statement or affidavit might be required. It is true that he had not been instructed to advise on evidence, nor had he originally been briefed with

the statement of agreed facts made pursuant to the practice direction. However this was not a complex case. Counsel ought to have warned of the possibility that evidence might have to be called long before the day of hearing. He also ought to have informed N of the Crown’s attitude on commerciality on 17 December 2009. That does not mean that N was relieved of the obligation to consider that possibility for herself. It simply means that because decisions on calling evidence are ultimately the responsibility of counsel, she did not bear sole responsibility for the omission, particularly having briefed experienced counsel.

[34]

Finally, I felt that questions of general deterrence would adequately be served by my publishing my reasons for the course which I took. I have dealt with the matter at some length in the hope that these reasons may gain a wider audience among members of the profession.

[35]

I am left with the uncomfortable feeling that the errors on the part of both N and counsel for T would not have occurred had the matter not been funded by legal aid. It ought to have been abundantly clear that a statement would be needed once commerciality was denied by the client. On the evidence no additional funding was available for taking a statement. It is a natural enough human reaction in such circumstances to seek to defer incurring the cost; but that is a reaction which is apt to blur the sound exercise of professional judgment. Having accepted a retainer, a true professional does not let the quality of the work undertaken suffer because the available remuneration is inadequate. If lawyers are not prepared to bear the cost of all necessary steps in a legal aid matter, regardless of funding, they should not take on the work.

4 [1992] 1 WLR 446 at p 448 (emphasis added).

Brisbane Barrister – David Cormack

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