Dealing with lawyers

What is the difference between a lawyer and a solicitor?

The term lawyer refers both to solicitors and barristers. In NSW, a solicitor is a lawyer who holds a current practising certificate issued by the Law Society of New South Wales. Solicitors meet with clients, conduct research, give legal advice and sometimes represent (speak for their clients) in court. 

In NSW, a barrister is a lawyer who holds a current practising certificate issued by the New South Wales Bar Association. Barristers specialise in representing people in court, especially in complex matters. They usually work together with solicitors and have limited contact with clients. Barristers are sometimes also referred to as 'counsel'. 

Is my lawyer allowed to disclose information I have told them in confidence to someone else? 

Usually, your lawyer must not disclose information you have told them in confidence. This is called client legal privilege. 

However, your lawyer may disclose confidential information if:

• you have given them permission to share the information 
• they are required by law, for example, the lawyer has been issued with a subpoena (although in some circumstances it is possible to claim privilege over that information and it may not need to be produced)
  
• they are getting advice about their legal or ethical obligations
  
• they are trying to avoid the probable commission of a serious criminal offence
  
• they are trying to prevent imminent serious physical harm to yourself or another person
  
• they are speaking to their insurer.
  

Can a lawyer represent me in an immigration matter or do I need to go to a registered migration agent?

You can get immigration assistance from:

• a registered migration agent
• a lawyer
• an exempt person.

From 22 March 2021, a lawyer who holds a practising certificate can provide immigration assistance. Your lawyer will need to register with the Department of Home Affairs and complete form 956 to be appointed as the legal practitioner in your immigration matter.

An exempt person is:

• your nominator or sponsor
• your close family member
• a parliamentarian
• a member of a diplomatic mission
• a member of a consular post
• a member of an international organisation.

For more information, see Who can help you with your application? on the Department of Home Affairs website.

What can I do if I ​​am u​nhappy with my lawyer's conduct?

If you are unhappy with the service your lawyer is or has provided you, you can:

• speak to your lawyer directly about your concerns
• make a complaint to the Office of the Legal Services Commissioner (OLSC)
• get legal advice about other options, such as starting court action against your lawyer if you believe they have been negligent.

If you want to dispute your lawyer's costs, you can also:

• try mediation through the OLSC, and/or
• apply for your costs to be assessed with the Supreme Court Costs Assessment Scheme.

What if my ​lawyer was negligent?

If you believe your lawyer has acted negligently, you may be able to take legal action against them for any financial loss that has been caused. All lawyers have compulsory insurance against legal actions for negligence.

 It is important that you get legal advice from a lawyer who specialises in professional negligence cases before taking any legal action.

Can a person work as a lawyer​​ if they are bankrupt?

Being declared bankrupt does not automatically mean that a person can't work as a lawyer. A lawyer must immediately notify the organisation that regulates their work if they become bankrupt or insolvent. In NSW, barristers must contact the NSW Bar Association and solicitors must contact the Law Society of NSW.

The organisation will decide if the lawyer:

• should be able to continue to work as a lawyer, and 
• if they can keep working as a lawyer, what conditions should be put on their work.

Examples of conditions are that the lawyer must not:

• operate any trust account or controlled money account
• act as a trustee of any real or personal property
• act as an executor or administrator of a deceased persons estate.

What is the difference​​ between costs and disbursements?

A bill from your lawyer may list costs and disbursements.

Costs are the fees charged by a lawyer for all work done in handling a matter.  

Disbursements are the fees or expenses your lawyer has paid on your behalf to third parties, for example, applying for official records, getting documents and reports and court filing fees. If a lawyer briefs (hires) a barrister, the barrister's fees will be included as a disbursement.

It's like taking a car to the mechanic - costs are similar to the mechanic's fees for their labour and disbursements are like the costs for parts and the cost of taking the car to another specialist or professional, for example, an electrician to have electrical work done.

For more information, see Fact Sheet 3 - Types of Costs on the Office of the Legal Services Commissioner website.

What is the difference​ between lawyer/client costs and party/party costs?

Lawyer/client costs (also known as solicitor/client costs) are legal costs your lawyer charges you for representing you or acting on your behalf.

Party/party costs are legal costs that the court can order another party to pay, or which another party may agree to pay as part of a settlement. Party-party costs are also known as ordered costs. 

For more information, see Fact Sheet 3 - Types of Costs on the Office of the Legal Services Commissioner website.

How much can lawyers ​​charge?

Lawyers in NSW are generally free to charge what they like for their services, provided that the charges are fair and reasonable. In certain types of cases, lawyer's fees are regulated. This means that there are additional rules around what they can charge. Fees are regulated for the following types of matters:

• motor accident compensation matters
• deceased estates, up to the Grant of Probate
• personal injury claims.
  

Most lawyers will either charge a fixed amount for the work they do for you or calculate their costs at an hourly rate. You can shop around to co​​mpare costs and you can also negotiate costs with the lawyer and how you will pay before you agree to hire them.

For more information, see the factsheets on the Office of the Legal Services Commissioner website:

• Fact Sheet 6 - Regulated costs - Motor Accident Compensation
  
• Fact Sheet 12 - Deceased Estates​
  
• Fact Sheet 4 - Regulated Costs - Personal Injury Claims​.
  

Does my lawyer ha​​​ve to tell ​me their costs upfront?

Your lawyer has an obligation to disclose their costs, including the likely amount of the​ bill, the basis for calculating their charges and any arrangements for billing as soon as practicable after instructions are initially given in a matter.

Your lawyer is not required to disclose their costs upfront if the legal costs are not likely to be more than $750, before disbursements ​and GST are added.

If your legal costs are ​​not likely to be more than $3000, excluding disbursements and GST, your lawyer may provide a short standard costs disclosure form rather than making full costs disclosure.

The disclosu​re must be in writing and be in clear, plain language.

The costs disclosure must include information about the work to be done and an estimate of the overall cost. It must also include information about your rights to:

• negotiate the costs agreement
  
• negotiate how you want to be billed
• receive progress reports about your case and about your costs
• request an itemised bill
  
• have the bill assessed, and 
• mediate any dispute about the costs.

There are also additional disclosure requirements:

• before entering into an uplift costs agreement
• in family law matters, and
• before the settlement of litigation.

Your lawyer must also provide progress reports if you request them. Your lawyer can charge you for these reports.

There is also an ongoing obligation to disclose. Sometimes the lawyer can't estimate the total costs at the beginning of the matter. However, the lawyer must give you an estimate on an ongoing basis and estimate the total costs as soon as they can. If there is a change in anything in the costs disclosure, your lawyer must tell you in writing as soon as possible.

When providing both initial and ongoing disclosure, your lawyer must take all reasonable steps to ensure that you have understood the information provided and given informed consent. ​

For more information, see:

• Fact Sheet 2 - Costs Disclosure on the Office of the Legal Services Commissioner (OLSC) website 
• What your solicitor must tell you on the Law Society of New South Wales website.

If you retained your lawyer before 1 October 2005, you should speak to the OLSC about your lawyer's obligations in relation to costs disclosure.

What are my rights if my lawyer​​ has not disclosed their costs?

If your lawyer has not properly disclosed their costs to you:

• any costs agreement entered into is void
• you are not required to pay the legal costs until the Supreme Court Costs Assessment Scheme has assessed those costs (at the lawyer's expense)
• the law practice can't commence, or maintain, any proceedings for recovery of the legal costs until the Supreme Court Costs Assessment Scheme has assessed those costs (at the lawyer's expense).

Do I still have to pay my legal ​​bill if I didn't sign a costs agreement?

Your lawyer can still recover money from you if you don't pay your bill, regardless of whether you signed your costs agreement. Sometimes you won't need to sign a written costs agreement for it to be valid (unless it's a conditional costs agreement​) and sometimes your lawyer can just disclose their costs with a letter.

Usually, if you allow a lawyer to act on your behalf after you've received a copy of a costs agreement or letter, you will be taken to have accepted it.

Can a lawyer ​charge​ me for preparing​​ a costs agreement?

A lawyer is not allowed to recover the costs associated with making a costs agreement.

What are conditional costs agreements?

Conditional costs agreements are an agreement with your lawyer that legal costs are charged on a 'no win, no fee' basis. This means that the lawyer will only charge you their costs if you win the case.

If you enter into a conditional costs agreement with your lawyer, you will still be required to pay disbursements, even if you lose. You may also have to pay the legal costs of the other party if you lose your case.

Conditional costs agreements generally don't apply for family law matters or criminal law matters.

For more information, see Fact Sheet 3 - Types of Costs on the Office of the Legal Services Commissioner website.​

What requirements are there​ for conditional costs agreements?

Conditional costs agreements must:

• be in writing
• be written in clear plain language
• set out what it means to win your case, and
• be signed by you.

These agreements generally include a cooling-off period of no less than five business days. This means that you can terminate a conditional costs agreement within the cooling-off period by writing to your lawyer. If you terminate a conditional costs agreement during the cooling-off period, your lawyer can only recover the costs for legal services provided before the termination, on your instructions, and with your knowledge.

If you decide that you no longer want your lawyer to act for you after the five day cooling off p​eriod, you may have to pay their costs and disbursements up to the date you tell them to stop representing you. This should be stated in the costs agreement.

If you no longer want your lawyer to represent you and you are not sure whether you have to pay all of their costs, you should get legal advice.

Can I ask my lawyer​​ f​​or a progress report on my matter?

You can ask your lawyer for a written progress report about your matter, and your lawyer is allowed to charge you for that report.

You may also ask your lawyer for a written report about the total legal costs you hav​e incurred to date. Your lawyer can't charge you for this.

Am I entitled​ to an itemised bill?

You can request an itemised bill at any time from your lawyer. They must provide this to you within 21 days of your request.

Your lawyer can't commence proceedings for recovery of costs until 30 days after they have provided you with an itemised bill.

If you retained your lawyer before 1 October 2005, you do not have an automatic right to an itemised bill.

Can a lawyer charge me for ​​an itemised bill?

Your lawyer can't charge you for the preparation of an itemised bill.

What can I do if the bill from my lawyer is much higher than I e​​xpected?

You can try the following options:

• ​talk to your lawyer about your concerns. You may be able to negotiate the costs, or enter into a payment arrangement if you agree with the bill but can't afford to pay the total amount by the due date.
• contact the Office of the Legal Service​​s Commissioner (OLSC) about mediation if you want to dispute your lawyer's costs. The OLSC can make a binding costs determination if the total amount in dispute is less than $23,865 from 1 July 2024. For more information, see Fact Sheet 8 - Costs Dispute Resolution on the OLSC website.
• apply for the costs to be assessed at the Supreme Court. For more information, see Costs assessment on the Supreme Court of New South Wales website.

If an agreement is not reached, your lawyer can take you to court to recover their costs. If the bill has not been paid after 30 days, your lawyer can also add interest.

For more information, see:

• Fact Sheet - Your right to challenge legal costs on the Law Society NSW website
  
• Fact Sheet 7 - Costs Disputes on the OLSC website
  
• Costs assessment on the Supreme Court of New South Wales website.

There are time limits to lodge a complaint about your lawyer's costs with the OLSC or the Supreme Court Costs Assessment Scheme. 

Can I dispute the bill i​f I have​​ already paid ​it?

If you retained your lawyer for a family law matter before 30 June 2008, you should get legal advice about how to dispute your lawyer's costs.

For all other matters, you can apply for an assessment of your lawyer's costs an​​d disbursements through the Supreme Court of NSW, even if you have already paid part or all of their bill.

Your application must be made within 12 months after:

• the bill was given to, or the request for payment was made to, you, a third party payer or other law practice, or
  
• your legal costs were paid if neither a bill nor a request was made.

What can I do if I have been ordered to pay the other party's costs but I think they are excessively high?

If you were ordered to pay the other party's costs in a family law matter before 30 June 2008, you will need to get legal advice about how to dispute these costs.

For all other matters, you can apply to have the other party's legal costs asses​​sed with the Supreme Court Costs Assessment Scheme. You have to pay an application fee (also called a filing fee) for costs assessment.

For more information, see Costs assessment on the Supreme Court of New South Wales website.

Can I have the decision ​​of the cost assessor reviewed?

If you applied to have the costs assessed by the Supreme Court Costs Assessment Scheme and you are not happy with the outcome, you can have a panel of two Costs Assessors review the decision. In some cases, you can also appeal to the District Court.

Before lodging an appeal, you should get legal advice.

How is a certificate ​​of determination enforced?

After you have applied for costs to be assessed by the Supreme Court Costs Assessment Scheme, the costs assessor will issue a certificate that sets out the assessed costs and disbursements. Where there are costs that have not been paid the certificate can be filed in the relevant court, for example, the Local, District or Supreme Court depending upon the amount unpaid.

The certificate is taken to be a judgment of that court for the amount of unpaid costs. The amount can then be enforced as a judgment debt.

Do I still have to pay my lawyer​​ if I decide to end their services?

You will still be required to pay your lawyer for any work they have done up until you have ended their services.

Can my lawyer​ keep my file until I pay the bill?

If you owe your lawyer money, they can hold a lien over all papers, files, documents and deeds that belong to you and that the lawyer has received while representing you. This means that they may keep your documents until you pay.

For more information, see Fact Sheet 10 - Liens on the Office of the Legal Services Commissioner website.

What happens to a lawyer's​​ files if they stop practising or have died?

Lawyers generally have an obligation to keep files for seven years, although certain documents must be kept for a longer period, for example, title deeds and Wills. If a lawyer stops practising, for example, they retire or close the business, or they have died, arrangements are usually made to deal with their files, including open and closed files.

What happens to the files will depend on:

• whether the lawyer was a sole practitioner, or an employee, or partner in a firm
• how old the files are and what type they are, for example, title deeds or Wills, and

• whether the practice is continuing to operate, or whether it has been taken over by another practice.

If you are trying to locate a file from a lawyer that is no longer practising or has died, you can:

• contact the firm where the lawyer worked (if they are still operating), or

• contact The Law Society of New South Wales for information about whether the firm has been taken over, or whether they have information about where the files are being held.

For more information, see Fact Sheet 14 - File Ownership and Handling on the Office of the Legal Services Commissioner website.

What is a​ trust account?

A trust account is an account used to hold a client's money on their behalf and separately from the funds of the lawyer's practice. A trust account must be held with a financial institution in NSW, for example, a bank, building society or credit union that has been approved by the Law Society Council of NSW.

What is trust​ money?

Trust money is the money a lawyer holds on behalf of a client to use for or in connection with their case. For example, your lawyer may hold trust money in an account to use for the payment of stamp duty and other disbursements when you purchase a property. A lawyer can also hold your money in their trust account to pay their fees for legal work that they will complete. 

What is a lawyer's duty in keeping and using trust accounts?

A lawyer holding a trust account has a 'fiduciary duty' to their client, meaning that the lawyer must act in good faith for the benefit of their client. They must:

• keep the client's money separate from their own funds
• use that money only as the client directs
• keep accurate and correct accounts of the client's funds, and
• keep records of various transactions including receipts, bank deposits, cheques, withdrawals by electronic fund transfer, bank statements, reconciliations, statements of account etc.

Money held in a trust account must be used exclusively for your legal matter. A lawyer can only use the funds held in trust for purposes directed or authorised by you. There is no need for your directions to be in writing, although it can help to ensure that your directions are clear.

Lawyers are under an obligation to keep accurate records of each trust transaction, so you will be able to check these records and confirm that they match your directions.

Can my lawyer take​​ money from my trust account to pay their costs?

In some circumstances, your lawyer may be able to take money from your trust account to pay their costs, such as where it was authorised in the costs agreement or where you have given your lawyer instructions that authorise the withdrawal for that purpose.

Your lawyer may also take money from the trust account to pay their costs where they have given you a bill and you:

• did not object to the funds being withdrawn from the trust account within seven days of receiving the bill, or
• did object within the seven days but did not apply for a costs assessment within 60 days of receiving the bill.

Does my lawyer have​​ the right to hold my money in trust aft​er I ask for it back?

A lawyer can hold a lien​ over trust account money to cover unpaid costs. The amount withheld under the lien cannot be more than the amount of unpaid costs. A lien over trust money does not prevent you from applying to have the costs assessed.

For more information, see Fact Sheet 10 - Liens on the Office of the Legal Services Commissioner website.

Should I receive a receipt​​ for money I deposit in a trust account?

A lawyer must provide receipts for each deposit into a trust account. A trust receipt must: 

• be electronically numbered
• contain the firm name
• state 'Trust Account'
• be dated
• state the amount of money received
• state the client's name
• have sufficient information to ascertain what the reason for the deposit is, and 
• contain details of the ledger account of the trust.

When am I entitled ​to receive a statement of account?

You are entitled to a statement of account from your lawyer for money in trust:

• when you ask your lawyer for it
• when your legal matter is finished, or
• as soon as possible after 30 June of each year unless:
  • the account has been open less than six months
  • the balance of the account is $0 and there have been no transactions within the last 12 months, or
  • a statement of account has been given to you within the previous 12 months and no transaction has occurred since then.

What can I do if​​​ I am not happy about what my lawyer is doing ​​​with my trust account?

If you have a problem involving a trust account you should first talk to your lawyer about it. If this does not resolve your concerns you can contact the Office of the Legal Services Commissioner.

If your lawyer has acted dishonestly with trust account money or property you may also be able to make a claim on the Fidelity Fund with The Law Society of New South Wales.

How do I make a claim on the​​​ Fidelity Fund?

You may be able to make a claim on the fidelity fund if you have lost trust money or property because a lawyer was dishonest in some way. You can't make a claim on the fidelity fund for negligence.

To make a claim, you need to have experienced some financial loss.

Usually, if the Law Society of New South Wales finds that a lawyer has acted dishonestly in relation to trust money or property, they will place a notice about the law practice and invite anyone affected to make a claim on the fidelity fund. They often specify a date the claim has to be made by.

For more information about making a claim on the fidelity fund, see Legal Practitioners Fidelity Fund on The Law Society of New South Wales website.

What happens to the interest ​​on my trust account?

Interest on a trust account is deposited with the NSW Public Purpose Fund (PPF). This is a fund administered by the Law Society of New South Wales and the NSW Department of Communities & Justice. The money is used to fund organisations in NSW who provide legal services.

What can I do if my lawyer no ​longer has the money left in my trust account?

If a lawyer can't find the person they are holding trust money for, they can pay the money into the Consolidated Fund administered by the NSW Treasury. NSW Treasury must be informed who the money should be paid to. Once this is done, a lawyer is no longer responsible for holding the money.

If you believe the Consolidated Fund may contain trust money belonging to you, you should contact the NSW Treasury.