Following here is a de-identified example of a retainer and costs estimate
29 October 2022
Client / Address
By hand
Dear....
Costs Disclosure and Costs Agreement
I note this offer of legal services is an update of my costs agreement of 3 October 2022 as foreshadowed there. This letter follows the same numbering with underlined additions. The reason for the update is that estimate of costs may be clarified further based on outcome of first mention at the Supreme Court on 14 October 2022, with directions schedule. Allowance should also be made for informal settlement outside those court directions (as per your instructions).
This document, together with our General Terms of Business, sets out the terms of our offer to provide legal services to you and constitutes our costs agreement and disclosure pursuant to the Legal Profession Uniform Law (“the Uniform Law”).
You confirm that you have hereby been informed of your right to obtain independent legal advice before entering into this Conditional Costs Agreement.
A. Scope of Work
You have instructed us to:
B. Professional Fees
We will charge you professional fees for the work we do based on hourly rates. The hourly rates charged by our professional staff are set out below:
Thomas McLoughlin, principal solicitor – rate $200 per hour
You will be proportionately charged for work involving shorter periods less than an hour. Our charges are structured in 6 minute units. For example, the time charged for an attendance of up to 6 minutes will be 1 unit and the time charged for an attendance between 6 and 12 minutes will be 2 units.
Our rates are reviewed on a regular basis and may change during the course of a matter. In relation to lengthy matters this may impact upon our cost estimates (which may be revised accordingly). You will be given 30 days' notice in writing of any changes to our charge out rates.
Presently this practice does not charge GST under lawful exemption for small business.
Disbursements
We may incur disbursements (being money which we pay or are liable to pay to others on your behalf). Disbursements may include:
Internal Expenses
You will be responsible for internal expenses which we incur in carrying out your instructions. These may include photocopying via a print shop at their cost.
C. Estimate of Professional Fees, Internal Expenses and Disbursements based for this new costs agreement.
We estimate our professional costs, given previous history of this matter as follows:
a) draft and finalise, file and serve the defence on Janice as co-excutor preferably before 14 October 2022, but critically by 24 October 2022 being 28 days deadline;
b) as much feedback as possible on legal issues, such as:
c) Prospects of success in the defence,
d) Any evidence issues – such as necessity for a handwriting expert, or necessity for a geriartrician expert evidence;
e) The necessity to brief expert counsel to finalise pleadings in the Defence and provide further legal expertise. I am considering ........of Frederick Jordan Chambers with excellent value for money hourly rates ($2K per day) and experience in the Equity division of the Supreme Court;
TOTAL - $6,300 31.5 hr
D. Variables
Some of the variables which may impact upon the cost estimate provided above include the following:
Please note that this is an estimate only and not a fixed quote. The total costs may exceed the estimate. While the estimate is based on present information and instructions and our current understanding from you as to what services are required, our costs may exceed the estimate if further information becomes available or circumstances change which affect these matters. In this event we will provide you with a revised estimate as soon as practicable. Where there is a significant change in your matter then as far as possible we will advise the impact of the change on the legal costs.
E. Costs Payable and Recoverable on Litigation Outcome
Our expectation is that your legal costs may be paid or recoverable through your ............ estate, or perhaps ........ share of the estate.
If you are successful in proceedings and have a costs order in your favour it is possible that you will recover all of the costs you must pay us from the estate of .....share of the estate under the will.
If we are wrong and you do have a costs order in your favour, it may still be necessary to seek to enforce such costs order e.g. through the legal costs assessment system. This can be time consuming and costly.
The possible costs associated with such potential enforcement proceedings are not dealt with in this document, but will be advised to you should the relevant circumstances arise. Nonetheless you will still have to pay us.
If you lose the litigation (which at this stage we do not expect) then the estate of ....... may pay your costs, or you may pay the costs of the other party in this jurisdiction, perhaps from your share of the estate – but only if they have retained a lawyer. They cannot charge the cost of their own time as a non lawyer, or their own time where the lawyer is an effective party to the proceedings applying their own unpaid time ........
__________________
Signature of client
Dated: ___ October 2022
_____________________
Signature of Thomas McLoughlin, principal solicitor – practitioner number 20310
And for law practice Mosman LNS Legal Service, practice number 23969
Dated: 29 October 2022
General Terms of Business
1. Billing Arrangements
An tax invoice for our professional fees and internal expenses including any uplift fee will be issued on the successful outcome of the matter.
As for disbursements we may issue a tax invoice monthly.
All tax invoices are due and payable 30 days from the date of the tax invoice. (Or such other agreement between the parties as the case may be.) You consent to us sending our tax invoices to you electronically at your usual email address or mobile phone number as specified by you.
2. Acceptance of Offer
You may accept the Costs Disclosure and Costs Agreement by:
a) signing and returning this document to us or:
b) continuing to instruct us.
Upon acceptance you agree to pay for our services on these terms.
3. Interest Charges
Interest at the maximum rate prescribed in Rule 75 of the Legal Profession Uniform General Rules 2015 (“Uniform General Rules”) (being the Cash Rate Target set by the Reserve Bank of Australia plus 2%) will be charged on any amounts unpaid after the expiry of 30 days after a tax invoice is given to you. Our tax invoices will specify the interest rate to be charged. (Or such other agreement between the parties as the case may be.)
4. Recovery of Costs
The Legal Profession Uniform Law (NSW) (“the Uniform Law”) provides that we cannot take action for recovery of legal costs until 30 days after a tax invoice (which complies with the Uniform Law) has been given to you.
5. Your Rights
It is your right to:
negotiate a costs agreement with us;
negotiate the method of billing (e.g. task based or time based);
request and receive an itemised bill within 30 days after a lump sum bill or partially itemised bill is payable;
seek the assistance of the designated local regulatory authority (the NSW Commissioner) in the event of a dispute about legal costs;
be notified as soon as is reasonably practicable of any significant change to any matter affecting costs;
accept or reject any offer we make for an interstate costs law to apply to your matter; and
notify us that you require an interstate costs law to apply to your matter.
If you request an itemised bill and the total amount of the legal costs specified in it exceeds the amount previously specified in the lump sum bill for the same matter, the additional costs may be recovered by us only if:
when the lump sum bill is given, we inform you in writing that the total amount of the legal costs specified in any itemised bill may be higher than the amount specified in the lump sum bill, and
the costs are determined to be payable after a costs assessment or after a binding determination under section 292 of the Uniform Law.
Nothing in these terms affects your rights under the Australian Consumer Law.
6. Your Rights in relation to a Dispute concerning Costs
If you have a dispute in relation to any aspect of our legal costs you have the following avenues of redress:
in the first instance we encourage you to discuss your concerns with us so that any issue can be identified and we can have the opportunity of resolving the matter promptly and without it adversely impacting on our business relationship;
you may apply to the Manager, Costs Assessment located at the Supreme Court of NSW for an assessment of our costs. This application must be made within 12 months after the bill was provided or request for payment made or after the costs were paid.
7. Payment method
We require payment into our business account by EFTPOS or electronic transfer, or cash payments agreed beforehand.
8. Authorisation to Transfer Money from Trust Account
You authorise us to receive directly into our trust account any judgement or settlement amount, or money received from any source in furtherance of your work, and to pay our professional fees, any uplift fee, internal expenses and disbursements in accordance with the provisions of Rule 42 of the Uniform General Rules. A trust statement will be forwarded to you upon completion of the matter.
9. Retention of Your Documents
On completion of your work, or following termination (by either party) of our services, we will retain your documents for 7 years. Your agreement to these terms constitutes your authority for us to destroy the file after those 7 years. The authority does not relate to any documents which are deposited in safe custody which will, subject to agreement, be retained on your behalf indefinitely. We are entitled to retain your documents while there is money owing to us for our costs.
You will be liable for the cost of storing and retrieving documents in storage and our professional fees in connection with this.
10. Termination by Us
We may cease to act for you or refuse to perform further work, including:
while any of our tax invoices remain unpaid;
if you do not within 7 days comply with any request to pay an amount in respect of disbursements;
if you fail to provide us with clear and timely instructions to enable us to advance your matter, for example, compromising our ability to comply with Court directions, orders or practice notes;
if you refuse to accept our advice;
if you indicate to us or we form the view that you have lost confidence in us;
if there are any ethical grounds which we consider require us to cease acting for you, for example a conflict of interest;
for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required time-frame;
if in our sole discretion we consider it is no longer appropriate to act for you; or
for just cause.
We will give you reasonable written notice of termination of our services. You will be required to pay our costs incurred up to the date of termination.
11. Termination by You
You may terminate our services by written notice at any time. However, if you do so you will be required to pay our costs incurred up to the date of termination (including if the matter is litigious, any cancellation fees or other fees such as hearing allocation fees for which we remain responsible).
12. Lien
Without affecting any lien to which we are otherwise entitled at law over funds, papers and other property of yours:
we shall be entitled to retain by way of lien any funds, property or papers of yours, which are from time to time in our possession or control, until all costs, disbursements, interest and other moneys due to the firm have been paid; and
our lien will continue notwithstanding that we cease to act for you.
13. Privacy
We will collect personal information from you in the course of providing our legal services. We may also obtain personal information from third party searches, other investigations and, sometimes, from adverse parties.
We are required to collect the full name and address of our clients by Rule 93 of the Uniform General Rules. Accurate name and address information must also be collected in order to comply with the trust account record keeping requirements of Rule 47 of the Uniform General Rules and to comply with our duty to the courts.
Your personal information will only be used for the purposes for which it is collected or in accordance with the Privacy Act 1988 (Cth). For example, we may use your personal information to provide advice and recommendations that take into account your personal circumstances.
If you do not provide us with the full name and address information required by law we cannot act for you. If you do not provide us with the other personal information that we request our advice may be wrong for you or misleading.
Depending on the nature of your matter the types of bodies to whom we may disclose your personal information include the courts, the other party or parties to litigation, experts and barristers, the Office of State Revenue, PEXA Limited, the Land and Property Information Division of the Department of Lands, the Registrar General and third parties involved in the completion or processing of a transaction.
We do not disclose your information overseas unless your instructions involve dealing with parties located overseas. If your matter involves parties overseas we may disclose select personal information to overseas recipients associated with that matter in order to carry out your instructions.
We manage and protect your personal information in accordance with our privacy policy [which can be found on our firm website or a copy of which we shall provide at your request]. Our privacy policy contains information about how you can access and correct the personal information we hold about you and how you can raise any concerns about our personal information handling practices. For more information, please contact us in writing.
14. Sending Material Electronically
We are able to send and receive documents electronically. However, as such transmission is not secure it may be copied, recorded, read or interfered with by third parties while in transit. If you ask us to transmit any document electronically, you release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document, for any delay or non-delivery of any document and for any damage caused to your system or any files.
15. GST
Where applicable, GST is payable on our professional fees and expenses and will be clearly shown on our tax invoices. By accepting these terms you agree to pay us an amount equivalent to the GST imposed on these charges. At the time of this costs agreement there is no GST payable to Mosman LSN Legal Service.
16. Governing Law
The law of New South Wales governs these terms and legal costs in relation to any matter upon which we are instructed to act.
