Lls Take Home Exam
Question one
Melanie
Representing both parties
Melanie had previously worked for Anthony, if her providing legal work in the past poses as a conflict of interest to Anthony then she should cease to act for both parties (SR10, Professional Conduct and Practice Rules . P s9.3). She also should have kept previous property dealings confidential and refrained from using it information acquired in prior dealings to act in the best interest of her current client (Mallesons Stephen Jaques v KPMG Peat Marwick). However, she may have been doing this out of moral obligation to encourage Anthony to disclose his property in the financial statements.
Also negligence can arise if a practitioner does not keep both parties informed of about the relevant activities of the other party (Blackwell v Barroile Pty Ltd). Also under family law rules a practitioner cannot represent two or more parties that have adverse interests in the proceedings. However, s4441A allows joint representation for uncontested decress of dissolution or nullity. In this case both parties gave implied consent but a conflict of interest did arise. A fiduciary relationship exists and the clients were entitled to assume that the practitioner would not have ‘conflicting allegiances and approach the matter with their own interest at heart ( Dal Pont).
the issue of billing
Melanie should have entered into an agreement with Jane and Anthony and Mathew to procure payment of Mathews costs upon the completion of the relevant proceedings (SR s29.4.2). There is an obligation to for Melanie to disclose to Mathew the basis of the costs of legal services to be provided (LPA s176), as Melanie was retained by Mathew on behalf of the clients. This must be done in writing and expressed in clear and plain language and before Melanie was retained (s 178 and 179).
Mathew
failure to disclose costs
Mathew failed to disclose a written cost agreement in advance or ASAP after the law practice is retained (LPA part 3.2), nor advise them of their rights ( s 309), including a right to negotiate, which can only be waivered if they qualify as a sophisticated client (s312) which may result in gross overcharging. Yet this disclosure does not apply, if the legal work that can be performed immediately after instructions are given (s1.2.1.), but parties then still need to reach an agreement based on a declared rate or agreed basis and the intended billing arrangements and other arrangements prescribed under s175.
Transfer of the matter to Melanie
There is an issue of negligence as the clients choose the law firm due to its reputation as an ‘accredited family law specialist, Mathew transferred the