Published on 2 March 2018

[All names used in this article are fictitious.]

A barrister who sought a sentence indication without instructions on behalf of a client who wished to defend an assault charge has been censured by a lawyers standards committee.

The client did not instruct the barrister, Caithness, to obtain a sentence indication, the committee found.

As well as the censure, the committee fined Caithness $3,000 and ordered him to reduce his fee and refund the client $600.

The client’s complaint to the Law Society included that,

• Caithness had not kept him informed as the case progressed;
• Caithness advised him to plead guilty when he had no wish to do so, by electing to seek a sentence indication when he had not been instructed to do so; and
• He had paid the barrister $1,580 and did not feel he had received value for money.

In explaining the nature of his fee arrangement to the Lawyers Complaints Service, Caithness said he and the client agreed to a weekly charge of $50. “There was no hourly rate, no set fee, and whilst it was a most uncommon fee it certainly suited the circumstances and was an informed agreement between the two of us.”

The committee made four unsatisfactory conduct findings on the basis that Caithness had:

• Obtained a sentence indication when he was not instructed to do so;
• Failed to appear at a callover;
• Arranged for the client to pay funds directly to his account and received fees in advance; and
• Failed to provide the client with a final account.

As well as the censure, fine and order to refund the client $600, the committee ordered Caithness to pay $2,000 costs.

On review the fine was reduced to $2,500 by the Legal Complaints Review Officer (LCRO). This was because new evidence not presented to the Committee was produced corroborating that Caithness had arranged for an agent to appear on his behalf.

Although no irrevocable harm was done by obtaining a sentencing indication, the committee said that it was “work undertaken that was not requested and not desired”.

Caithness’ conduct therefore breached rule 13.3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Rule 13.3 obliges counsel to obtain and follow client instructions on significant decisions in respect of the conduct of litigation.

The barrister’s conduct called for a censure, the committee said.

“Conducting a case otherwise than in accordance with a client’s instructions [is] … viewed seriously by the committee.

“Equally as serious are the receipt of funds in contravention of the rules relating to a barrister’s practice – the receipt of fees in advance as opposed to receipt of a payment to be held in a solicitor’s trust account on account of subsequent fees, and the failure to render a final invoice or any invoice,” the committee said.