Take the law… Carter Capner Law's Queensland law digest

This morning’s Australian carried a front-page story quoting senior practitioner Brian Bartley’s September Proctor editorial that attacks personal injury lawyers.

Brian’s editorial was in defence of time billing and the making of appropriate downward adjustments to time recorded if the time spent was not productive to “getting the job done”. He asserts some law firms – personal injury law firms are singled out – have deliberately adopted particular time charging practices “as a means of maximising fees”.

In an argumentative editorial, Brian cites examples of such abuse as:

• In relation to six minute time units: “if one has five routine telephone calls to make, they are likely to take closer to 10 minutes than 30 minutes”.
• “When the same secretary phones on a daily basis to enquire whether the list of documents is completed yet – and receiving the same answer takes very little time – then this is obvious that the daily quota of units is being generated”.

Really? How obvious? Why wasn’t Brian’s list of documents prepared on time? Are 15 minute time units in court scales more benevolent than 6 minute intervals? Who makes 5 consecutive single-matter related calls, reflects, cross-references, decides and records all in 10 minutes?

The editorial raises two topics worthy of further discussion: should staff charge rates only be commensurate with experience (a proposition with which Opinonian agrees); and should only lawyer time be chargeable (a proposition that Brian supports and to which Opinonian says, let’s regulate rents, interest rates and doctors report fees too).

He singles out personal injury law firms with considerable distaste. His attack appears based on actual cases where he acts against them for insurers: “It is not difficult to know when these sorts of practices are adopted by firms on the other side of a matter – it isn’t necessary to wait until the bill is produced.”

This statement begs more questions: Is Brian using editorial space to broadcast comments to attack opposition lawyers who are striving to achieve outcomes against his own clients? Is it an indemnity costs ”bill” and if so, why was the order made? Whose client is complaining about Brian’s opposition’s fees?

The term “personal injury lawyer” probably describes 80% of lawyers (other than family lawyers) who do not act for the big end of town and insurers. The writer refers to their clients as being sometimes “unsophisticated”.  They are consumer lawyers – at the coalface of providing access to justice to the public – something that government has long ago abandoned.

There is something sinister in such tirades against consumer lawyers whose effectiveness is often resented. To such lawyers, the statements are heard as: “How dare you be such a persistent and effective opposition and how dare you sometimes even win! And get paid!”

Undermining effective opposition advocacy and promoting (one-sided ?) criticisms of the justice system plays an insidious role in diminishing access to justice. This has the effect of pushing the line for the public to swallow: ”Gosh our legal system is bad! Golly, let’s fix it by making sure there are no more lawsuits” (especially by the unsophisticated).

This affects the whole community. It worked spectacularly only last decade in the so-called insurance crisis. Laws passed in 2002 and 2003 created barriers to justice for the public and have permanently removed citizens’ rights that took a century to achieve.

Overcharging – by lawyers, butchers, telcos, real estate agents and plumbers – is wrong. There are existing regulations to prevent this. From January 1, the unfair and unconscionable contract provisions of the Australian Consumer Law will apply to them all. This will assist unsophisticated consumers in many transaction types.

The editorial aside, Opinonian has a strong foreboding that another campaign of insurance company manipulation to further erode individual rights is already underway.

Lawyers are the last line of defence for the public – all lawyers. Opinonian – who is not “on the other side” of any matter alluded to in the editorial and has no connection with anyone who is – argues lawyers also have an ethical duty to defend the legal system against unfair criticism.

- Opinonian