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The Working Party (except for one member, whose reservations are set out below) is
of the view that, subject to what is said below as to barristers, Proposal 52 should be
adopted in principle. However, there should be further consultation before deciding
on the manner of its implementation. Various approaches are possible.
(a)
The Interim Report referred, for example, to the approach in New South Wales,
involving a statutory duty on barristers and solicitors to disclose specified
matters to the client and, in default of disclosure, relieving the client of any
obligation to pay the bill until after it has been through a special taxation
process, the cost of which is to be borne by the defaulting lawyers.
Additionally, failure to make the necessary disclosures is deemed "capable of
being unsatisfactory professional conduct or professional misconduct".
(b)
The Interim Report also mentioned the approach in England and Wales, where
the Solicitors' Practice Rules place an obligation on solicitors to provide
information to clients in accordance with a professional code laid down by the
Law Society with the concurrence of the Master of the Rolls.
(c)
Other mechanisms for implementation, and a combination of various
approaches, could also be considered. For instance, a rule of court might
provide that within say, 7 days of coming onto the record in any case, solicitors
would have to file a certificate, countersigned by the client, declaring that
specified fee-related information and estimates had been given to the client and
would be regularly updated. Failure to provide the required information could
be a matter taken into account in an appropriate manner in any solicitor and own
client taxation.
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