File Opening, File Management, Costs Disclosure and Billing Practices Policy

This policy sets out the procedures for the opening and conduct of client files, disclosure of costs to clients and cost recovery practices. It ensures compliance with the Legal Profession Uniform Law (LPUL), the Australian Solicitors’ Conduct Rules (ASCR), and other applicable legal obligations, while promoting transparency and trust in our relationships with clients.

This policy applies to all staff within the firm involved in opening client files, managing preparing cost agreements, disclosing costs, and handling cost recovery. It applies to all clients of the firm, unless specific exceptions are agreed to by the firm or required by law.

1. Retainer Instructions

1.1

Retainer instructions, completed at the first interview with the client, assist the practitioner to take detailed initial instructions. They record the information received, the work to be completed, the time frame in which it is to be completed and the likely cost of completing that work. If there is any doubt about what is required, then the retainer should be confirmed by the client in writing.

1.2

All changes to the retainer during the course of a matter are to be confirmed in writing.

1.3

Employees who receive instructions to act in a matter are to complete a Retainer Instructions Form (found in the resources section of the onboarding portal, attached to this policy and located in the Retainer Instructions File No 111111) for all new matters before opening the file.

1.4

The Retainer Instructions Form should be completed by the solicitor who is assisting the personal responsible for the matter and saved in File No 111111.

1.5

Once a file has been opened, a copy of the form should be saved on the client’s matter and pinned to the top of the file.

1.6

To do this:

(a) Right click the form in File 111111;

(b) Select “Duplicate”;

(d) Enter the client’s matter number and select the matter. The form will be transferred to that file by Leap.

(e) Open the client matter and right click the form. Select “Pin to top”.

2. Conflict of interest check

2.1

As all types of matters have the potential to raise a conflict of interest for the firm, it is important in every new matter to search for the parties in the firm’s database. Do this at the time of opening the file.

2.2

Treat each client as an individual with care, attention and understanding. The client’s interests are paramount and are not to be compromised in any way, in favour of the firm, its members, other clients, or any other third party.

2.3

The conflict of interest check is a thorough search of the firm’s database looking for the names of the other parties to the transaction to see if there is any potential for conflict. Be alert to the possibility that the firm may have acted for a party in a different capacity, such as the director of a company or trustee of a trust.

2.4

If a conflict exists but it is deemed an acceptable risk, the Principal may authorise the acting solicitor to contact the parties involved and seek their approval prior to accepting instructions.

2.5

Sometimes a potential conflict of interest which was deemed an acceptable risk at the commencement of a matter, can crystallise on the happening of certain events, or on the receipt of certain instructions. On these occasions speak with the Principal immediately it becomes apparent.

2.6

Once the check has been performed note this in the Retainer Instructions.

2.7

Completing a conflict of interest check in LEAP

Select Conflict Checkfrom the LEAP Home menu and search the names of relevant parties. If the other party is a corporation or non-individual, search also the names of its directors and officers.
If any conflict is discovered, refer the file to the Principal for instructions before proceeding further.

3. Opening a file

3.1

If no conflict of interest exists, a file may be opened.

3.2

All files are to be opened in Leap. No client files are to be created or opened outside of Leap.

3.3

Ensure that all relevant information is entered correctly, including names, dates of birth, email and mailing addresses, telephone numbers etc.

3.4

Be mindful that a client may not want mail sent to their home. It is prudent to ask a client whether their email is secure and whether they want mail sent to their home address. This should always be done in family law matters because often client’s seek advice on their rights on separation before their partner is aware of the client’s decision to separate. Other matters may involve family violence. It is therefore essential that we do not inadvertently alert a partner or spouse to our client’s instructions.

3.5

Where it is expected that the file will involve a hard file (such as a litigation matter), use Leap to generate a file cover sheet so that a hard file can be opened.

3.6

Where no hard file is expected, a file cover sheet does not need to be printed.

4. Disclose costs and disbursements in writing

4.1

The process of disclosing costs is not just guesswork but rather a considered estimate of the cost of providing the necessary time and resources to properly conduct the matter. It is helpful to keep a record of these workings. This process not only results in more accurate estimates but provides the firm with a framework for how the matter will proceed.

4.2

The disclosure of costs is an ongoing obligation. If the matter takes an unexpected turn, or the scope of the instructions change and the costs estimate therefore needs to change too, then the firm’s policy is to immediately update the costs disclosure and explain to the client the reason for the change.

4.3

The Uniform Law requires solicitors to give clients written information about how costs will be calculated and provide an estimate of the total legal costs, excluding GST and disbursements: s 174 of the Legal Profession Uniform Law (NSW). The law practice must take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs.

4.4

These requirements do not apply if the anticipated costs are less than $750 or if the client is commercial or government, however it is Lawpoint’s practice that all client’s must be provided with a costs agreement and costs disclosure regardless of the value of the estimated costs. This practice can only be departed from in individual cases by the prior approval of the Principal.

4.5

Costs may be charged pursuant to a costs agreement, which must be in writing, or in accordance with scale. It is Lawpoint’s policy that costs agreements and costs disclosure must be issued to all clients regardless of whether scale costs apply (e.g. probate matters).

4.6

Costs agreements are only permitted to be issued in the precedent form of costs agreement approved by the Principal, which can be found in the Leap Costs Disclosure precedents file.

4.7

Except in the case of a conditional costs agreement, a costs agreement does not need to be signed by a client and can be accepted by conduct, however it is Lawpoint’s policy to request that all clients confirm in writing (usually via email) that they accept the terms of the costs agreement.

4.8

When submitting a costs agreement to a client, you should include in the covering email the following “Please confirm by return email that you agree to the terms of the costs agreement”.

4.9

Employees should avoid commencing work on a matter until a client provides confirmation of acceptance of the terms of the costs agreement, unless the client has made a requested deposit of funds into trust, which is conduct which is consistent with acceptance of the terms of the costs agreement.

4.10

If the client is to provide documents or information before some action can be taken, then they must be reminded. This requirement must be followed up until the documents or information is received or the retainer is terminated. A failure by a client to provide information does not avoid the risk of liability for inaction. If there is persistent refusal to supply necessary information the retainer needs to be terminated and therefore the matter should be referred to the Principal for consideration.

4.11

All costs agreements must be submitted to the Principal for approval before they are sent to a client. This is especially important for conditional costs agreements.

4.12

Conditional costs agreement must be signed by the client. Under no circumstances is work to be undertaken on conditional costs matters until a signed costs agreement has been received from the client.

4.13

Where it becomes apparent to you that the initial costs assessment will be exceeded, a new costs agreement should be prepared with updated estimates and submitted to the Principal for approval.

4.14

If in doubt about costs disclosure obligations or this policy, speak with the Principal.

5. Costs Estimates in Leap

5.1

Once the costs estimate has been approved by the Principal, enter cost estimates as quoted amounts for fees and disbursements in the LEAP matter. The practice will then be notified when a matter is approaching the estimated amount and take steps to update the costs disclosure accordingly.

5.2

Set up cost estimate in a matter

(a) Open the matter.

(b) Open the Matter Details screen by clicking the file number displayed under the DETAILS heading.

(d) Tick the Inc. Tax checkbox if the amount is inclusive of GST.

(e) Tick the Show Estimates Warning checkbox to display a warning message when entering a time activity/cost recovery that exceeds the estimated cost recovery amounts entered.

(f) Click OK.

(g) Click Save & Close.

5.3

Where you receive a warning from Leap that the costs estimate has been exceeded or is approaching that point, further updated costs disclosure must be made to the client without delay.

6. Money up front on account of costs and disbursements

6.1

For most matters such as litigation and criminal work, the firm requires funds to the value of the initial estimate of costs to be paid into the firm’s trust account at the commencement of the matter prior to work commencing.

6.2

Where the initial estimate of costs is increased and the costs disclosure is updated, make a further request concurrently for the client to deposit further funds into the trust account.

6.3

Where funds in trust have been exhausted, a further request for funds in trust should be made to the client and you should avoid incurring significant costs and disbursements until those funds are received.

6.4

Where a client fails to pay funds into trust by the date requested, you should ensure that you follow up your request and set a deadline by which you require those funds to be paid.

6.5

If the funds have still not been paid, you should refer the matter to the Principal for further directions.

7. Invoices

7.1

For property and conveyancing matters, such as purchases and sales of property or leases, clients are generally invoiced on settlement.

7.2

For wills and powers of attorney matters clients are generally invoiced on completion.

7.3

For ongoing matters such as litigation and family law, clients are invoiced at the end of each month. This ensures the client is fully aware of the work being done and the associated costs and avoids them receiving large accounts representing several months of work.

7.4

The exception to this is where the costs incurred in a matter is approaching or exceeds the amount of funds held in trust in which case an invoice will be issued more frequently.

7.5

Invoice are only authorised to be issued by the Principal. Under no circumstances is an invoice to be issued to a client without the authority of the Principal.

7.6

When time-recording, include sufficient information about each attendance so that the client understands the entry, but time entries should never be used as a substitute for a file note.

7.7

Time entries should describe the attendance but not record matter-related detail. A time entry including, Conference with client, is enough information. Conference with client when she was advised to settle for $200K provides too much detail. If such detail is included and the invoice is later put before a court in any proceedings, or provided to a costs assessor, then privilege in the advice may be waived.

7.8

It is helpful to use identifiers including names in time entries on all matters, for example:

(a) email to barrister Smith, rather than email to barrister; or

(b) conference with witness Dr Jones, rather than conference with witness, or conference with doctor.

7.9

This will assist where there is more than one such person involved in the matter but also allows easy identification of entries which may have been entered in the wrong matter.

8. Ongoing file Management

Incoming mail/emails

8.1

All incoming mail will be opened by a designated person, entered into the mail book and scanned into the relevant matter, before being distributed to the appropriate team member.

8.2

All incoming emails related to a client matter must be saved into the corresponding matter.

8.3

All documents received from any party in relation to a matter need to be scanned and the electronic version filed in the appropriate matter. Rename scanned copies with a description that will assist any person reviewing the file to easily identify the document without opening it. Keep original documents in the hard copy file until the conclusion of the matter.

8.4

It is the responsibility of the team members acting on a matter to ensure that all incoming communications and documents are saved or scanned into or filed correctly for each client matter.

Outgoing mail/emails

8.5

All emails and letters need to be created in the matter. Where it is not possible to create the document in the matter, the document must be saved into the matter.

8.6

If documents are created and sent to the client for signature, a scanned copy of the document needs to be kept in the matter and a copy of the signed version also needs to be kept when it is returned.

8.7

Advices to clients and substantive communications with other parties on a matter must be settled and signed-off by the lawyer with responsibility for the matter.

8.8

All outgoing hard copies of documents, including cheques, must be scanned and saved to the client matter in the form that they are being sent.

Ongoing conduct of matter

8.9

The importance of proper client service cannot be over-stated. It is a core feature of client retention, generating new business and risk management.

8.10

All emails received from clients, other practitioners and any other party involved in a matter will be responded to, even if by way of mere acknowledgement, within 24 hours of receipt.

8.11

All telephone calls should be returned the same day, or as soon as possible the next day. If the relevant employee is unavailable, the client is be given a realistic time by which the employee will contact them. If meeting that time frame proves impossible, the client is to receive a call or email making other arrangements.

8.12

All time frames agreed with the client or with other parties, or set by the court, must be recorded on the file and are to be met wherever possible. If there is unavoidable delay, the client or other party must be informed as soon as possible, and a new timeframe agreed. For court timetables, if there is delay the other parties must be contacted and the matter re-listed where appropriate.

8.13

Any client communication issue must be referred to the Principal as soon as it arises. This includes any client who cannot be contacted or who will not respond.

9. File Notes

9.1

A file note, which can be a costing time slip, must be made in relation to all calls and attendances throughout the matter. This includes calls that are unsuccessful or to a number incorrectly given by or on behalf of the client. A complaint in relation to a failure to communicate with the client cannot be argued in the absence of records of unsuccessful endeavours to contact the client whether or not it is possible to leave a message for them.

9.2

File notes of conferences and meetings should cover information received, questions asked and advice given.

9.3

All file notes must be dated and entered on the file and must identify the writer and those present at and the length of any meetings. They must be entered as close as possible to the event being recorded, not left until a later time.

10. Compulsory client updates

10.1

If it becomes apparent at any stage that the scope of work has changed then the change must be confirmed in writing with the client as soon as possible.

10.2

If it becomes apparent at any stage that the time frame given has become inaccurate, then the client must be promptly informed of the delay and the reason for it and a new timeframe agreed.

10.3

A client must be kept regularly informed of the progress of their matter. Review all matters regularly and follow-up with clients as required. Make a file note to record that a matter has been reviewed even if no action can be taken at that time. Record why the matter cannot progress and diarise to follow-up again at an appropriate time. Inform the client accordingly.

11. Client complaints

11.1

Client complaints especially those about invoices or costs must be promptly referred to the Principal.

11.2

Once a complaint is received the Principal will deal with the client directly or will authorise a response for you to send to the client. The Principal will conduct a review of the complaint, interview the employee involved and may seek a written response from them. They will determine whether the complaint is justified and what if any action will be taken.

11.3

All employees are required to cooperate fully with any complaint investigation.

12. Disbursements

12.1

All properly incurred disbursements should be correctly entered into a client’s matter as soon as practicable after the disbursement has been incurred.

12.2

For example, if you file a Statement of Claim on behalf of a client, the disbursement for the filing fee should be entered immediately upon you receiving a sealed copy from the Court.

12.3

Similarly, disbursements incurred in Pexa such as Pexa fees and NSW LRS registration fees, which do not involve financial settlement (i.e. client funds used from trust) should be entered immediately after the fee is generated by Pexa.

12.4

All travel on behalf of a client needs to be first approved by both the client and the Principal– unless it is urgent or is a transport fare under $100.

12.5

You must retain receipts so that the disbursements may be recorded on the client file.

12.6

Disbursements for expert report fees, which can often be thousands of dollars, must not be incurred without the approval of the client and the Principal.

13. Anti-money laundering procedures

Proof of source of funds

13.1

In any transaction where a client is providing funds in addition to the firm’s legal costs, staff members should obtain proof of the source of those funds and ask for supporting evidence to confirm the information provided.

13.2

If the supporting evidence and explanation provided by the client is consistent with the type of retainer being undertaken and there are no other money laundering concerns, the staff member can simply note the explanation on the client’s file.

13.3

Where a transaction involves higher risk, staff members are required to ask the client for supporting evidence, possibly in the form of:

(a) bank statements;
(b) recently filed business accounts; or
(c) other documents confirming the source of the funds, such as the sale of a house, a sale of shares, receipt of a personal injuries award, a bequest under an estate or a win from gambling activities.

13.4

Where cash is involved proving the source of funds becomes more challenging, as a bank statement showing a large withdrawal does not mean that the cash the client is now in possession of was actually the money withdrawn. Equally, a bank statement showing a large cash deposit does not provide information about where the cash came from in the first place.

13.5

You must not accept cash from a client in payment of any costs or disbursements exceeding $2,000 without the authority of the Principal.

13.6

If you have a concern about the possibility of money laundering, you need to bring it to the immediate attention of the Principal who will then ensure that the matter is fully investigated.

14. Completion of a matter – Archiving

14.1

On completion of a matter use the File Closing Checklist, which is available on the Practice Management matter plan in The Practice section (copy attached to this policy and also found in the resources section of the onboarding portal).

14.2

It is important to:

(a) Open the matter in LEAP.
(b) Verify that the matter status is either Complete or Not Proceeding. If it is neither, review the file for the correct date and update in LEAP.
(c) Check the Details & Correspondence tab for any comments needing attention.
(d) Check the Calendar & Tasks tab for any incomplete instructions, or any notations requiring follow up.
(e) Check only nil balances show in the accounting tabs.
(f) Check the Time & Fees tab to ensure no further bills are required.
(g) Check the Office Accounting tab to verify that the matter has been billed and that there are no outstanding balances.
(h) Check the Trust Funds tab to verify there is a nil balance.
(i) From the Details & Correspondence tab click on the 3 dots on the top right, and select Archive Management. Record the location of the physical file and the date of destruction which will be the completion date plus 7 years in most instances.
(j) On the hard copy file, record the Completion/Settlement date or the Not Proceeding date on the front and back of the file at the bottom.
(k) Record the file number at the top of the file on the back cover and on the side tab.
(l) Check the file for any documents that need to be returned to the client or moved to safe custody, so they are not destroyed.
(m) Scan and save a copy of any important documents to the LEAP matter.
(n) Ensure all documents remaining in the file are securely pinned to the hard copy file.

14.3

Paper files are to be retained for a regulated number of years before they can be destroyed. Most are retained for a minimum of 7 years from the date of closure of the matter, however consideration needs to be given to the more unusual matters which may see a file retained for a longer period.

14.4

Ensure that all filing is up to date and there are no documents which have not been filed on the client file.

14.5

Once the matter is ready to be closed, please notify the Practice Manager of the file name and number.

14.6

Lawpoint uses File Republic: Information Management for Lawyers. This cloud based file management tool enables us to easily manage the storage and destruction of closed files and if required files can be located, retrieved, or have additional documents added to them.

14.7

File Republic regularly collects completed files from the office and takes them to a secure facility where the file is scanned, catalogued, and digitised. Files are then available through our File Republic integration with LEAP.

You can find the Retainer Instructions here.