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Family lawyer’s $115k bill voided for disclosure failures
A family lawyer’s $115,000 legal bill was voided by a judge who found he did not provide a costs estimate but allegedly promised his client the fees would be “less than the costs” of her ex-partner’s lawyers.
Naomi Neilson
Judge Susanne Cole of the NSW District Court found solicitor Andrew Cohen failed to make costs disclosures and told his former client she was not required to pay another cent of her outstanding $115,010.06 legal bill until it was assessed or determined in a separate dispute.
For work between March 2018 and October 2021, Cohen charged his client $230,894.60 for work done in the Local Court and family law proceedings, with about half paid by the client during the course of the retainer.
The court was told that in place of an estimate in the costs agreement, Cohen wrote “the cost of the work [is] presently inestimable” and – other than a description of work “which was anticipated might arise” – claimed it was “not possible to provide an accurate estimate”.
In addition to the contravention of his discloser obligations, the client alleged Cohen did not take “all reasonable steps” to ensure she understood the proposed costs and gave consent for them.
The client alleged she was told by Cohen the costs “will be less than the costs my ex-partner is paying their lawyers”.
In his affidavit, Cohen claimed he had a telephone conversation with the client in July 2020, during which he said “words to the effect” of the outstanding fees being “big, but not as being as they should be”.
Cohen claimed he told the client the figure would be “well over six figures” but he would give a “sufficiently large” discount for prompt payment, so the total fee would fall below $100,000 – provided the matter did not progress into arbitration and the client settled.
The client denied having this conversation.
Judge Cole said that even if this conversation did take place, “his words plainly did not constitute an estimate of the total legal costs”, and the Uniform Law required the disclosures be made in writing.
The judge also rejected Cole’s argument that he was “unaware of his failure to comply” until he received the client’s written submissions.
“Cohen should not have to be made aware of his obligations under the Uniform Law,” Judge Cole said in her written reasons.
When Cohen argued the client’s case was “too complex and their future too uncertain to give an estimate of total costs as soon as practicable”, Judge Cole said this observation did not assist him.
“I note that section 174 of the Uniform Law contemplates that further estimates may be given as a matter progresses,” Judge Cole said.
Cohen was told he could seek a costs assessment, and it would be a matter for the manager to determine whether the application could be dealt with outside of the 12-month deadline.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
