New South Wales
Court of Appeal
CITATION: Bechara v Legal Services Commissioner [2010] NSWCA 369 HEARING DATE(S): 31 August 2010
JUDGMENT DATE:
21 December 2010JUDGMENT OF: McColl JA at 1; Young JA at 2; McClellan CJ at CL at 8 DECISION: Appeal dismissed with costs. CATCHWORDS: LEGAL PRACTITIONERS – professional misconduct – appeal from Administrative Decisions Tribunal – legal practitioner acted for three clients whose proceedings were heard together with evidence in one being evidence in the other – whether practitioner’s failure to apportion hearing costs constituted professional misconduct – appeal dismissed LEGISLATION CITED: Legal Profession Act 1987 (NSW)
District Court Rules 1973 (NSW)
Legal Profession Regulation 1994 (NSW)
Legal Profession Act 2004
Supreme Court Act 1970CATEGORY: Principal judgment CASES CITED: A Goninan & Co v Atlas Steels [2003] NSWSC 956
Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79
Bechara v Kobeissi [2005] NSWSC 192
Boguslawski & Anor v Gdynia Amerkya Linie (No. 2) [1951] 2 KB 328
Carter v Newcastle Wallsend Coal Co (1909) 9 SR (NSW) 474
Centennial Coal Company Ltd v Xstrata Coal Pty Ltd (2009) 76 NSWLR 129, 146-7
Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186
Council of the NSW Bar Association v Meakes [2006] NSWCA 340
Credit Connect v Carney; Credit Connect v Smit [2010] NSWSC 910
Hoshott v Council of the Law Society of New South Wales (Supreme Court of NSW, Meagher, Sheller and Stein JJA, 17 December 1997, Unreported)
Howes v Law Society of the Australian Capital Territory (Supreme Court of ACT, Gallop ACJ, Higgins and Crispin JJ, 23 July 1998, Unreported)
In re Metropolitan Coal Consumers' Association (Grieb's Case) (1890) 45 Ch D 606
International Financial Society v Smith (1896) 22 VLR 114
Law Society of New South Wales v Foreman (1991) 24 NSWLR 238
Law Society of New South Wales v Moulton [1981] 2 NSWLR 736
Law Society of NSW v Harvey [1976] 2 NSWLR 154
Legal Services Commissioner v Bechara (No 2) [2009] NSWADT 145
Legal Services Commissioner v Bechara (No 3)) [2009] NSWADT 313
Legal Services Commissioner v Bechara [2008] NSWADT 215
Legal Services Commissioner v Nikolaidis (No 3) [2005] NSWADT 200
Malouf v Jezairy [2003] NSWSC 762
Maria Bechara v Mohamed Kobeissi (26 March 2007, Unreported)
Meade v Queensland Ambulance Service [1996] QSC 62
Murray v Legal Services Commissioner [1999] NSWCA 70; (1999) 46 NSWLR 224
New South Wales Bar Assn v Livesey [1982] 2 NSWLR 231
NSW Bar Association v Cummins [2001] NSWCA 284,
O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204
Oppenshaw v Whitehead; Mucklow v Whitehead (1854) 9 Exch 304; (1854) 156 ER 163
Pester; Leslie v Hydro-Electric Corporation (1997) 7 Tas R 233
Prentice v Cummins [2002] FCA 1503; (2002) 124 FCR 67
Price v Clinton [1906] 2 Ch 487
R v Hore; Ex parte Brisbane City Council [1969] Qd R 75
Re Veron; Ex parte Law…
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Details
- Case
- [2010] NSWCA 369
- Decision Date
CaseChat Overview and Summary
This matter concerned an appeal to the Court of Appeal of New South Wales by Mr Bechara, a legal practitioner, against a decision of the Administrative Decisions Tribunal. The Tribunal had found Mr Bechara guilty of professional misconduct. The dispute arose from Mr Bechara's conduct in acting for three clients whose separate proceedings were heard concurrently, with evidence led in one proceeding being relied upon in the others.
The central legal issue before the Court of Appeal was whether Mr Bechara's failure to properly apportion the hearing costs amongst his three clients constituted professional misconduct. This required the Court to consider the nature of a legal practitioner's duty to their clients, particularly in relation to the fair and accurate billing of professional fees, and whether a breach of this duty in the circumstances amounted to conduct falling short of the standard of integrity, probity, and trustworthiness expected of a legal practitioner.
The Court of Appeal, in dismissing the appeal, reasoned that a legal practitioner has a fundamental obligation to ensure that clients are charged only for work properly and necessarily done on their behalf. In this instance, the concurrent hearing meant that the time spent by Mr Bechara and his instructing solicitors was not solely attributable to any single client. The failure to adequately distinguish and apportion these costs meant that the clients were potentially overcharged, or at the very least, the billing was not transparent or accurate. This lack of proper apportionment was found to be a breach of the practitioner's duty to his clients and, as such, constituted professional misconduct. The Court affirmed the Tribunal's finding that such conduct fell below the required professional standards.
The appeal was dismissed, and Mr Bechara was ordered to pay the costs of the appeal.
The central legal issue before the Court of Appeal was whether Mr Bechara's failure to properly apportion the hearing costs amongst his three clients constituted professional misconduct. This required the Court to consider the nature of a legal practitioner's duty to their clients, particularly in relation to the fair and accurate billing of professional fees, and whether a breach of this duty in the circumstances amounted to conduct falling short of the standard of integrity, probity, and trustworthiness expected of a legal practitioner.
The Court of Appeal, in dismissing the appeal, reasoned that a legal practitioner has a fundamental obligation to ensure that clients are charged only for work properly and necessarily done on their behalf. In this instance, the concurrent hearing meant that the time spent by Mr Bechara and his instructing solicitors was not solely attributable to any single client. The failure to adequately distinguish and apportion these costs meant that the clients were potentially overcharged, or at the very least, the billing was not transparent or accurate. This lack of proper apportionment was found to be a breach of the practitioner's duty to his clients and, as such, constituted professional misconduct. The Court affirmed the Tribunal's finding that such conduct fell below the required professional standards.
The appeal was dismissed, and Mr Bechara was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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