[Home] [Databases] [WorldLII] [Search] [Feedback] New Zealand Law Commission

[Database Search] [Name Search] [Previous] [Download] [Help]

APPENDIX D

The Law Society of South Australia Professional Conduct Rules Rule 8.10 and Attachment 1

8.10. Provided that the practitioner complies with the provisions of sub-paragraphs (a) and (b) hereof, a practitioner, in any matters other than criminal and matrimonial matters, either at the commencement of a practitioner’s retainer from the client or after initial investigation of the matter, may agree that in the event of the action being unsuccessful the practitioner either will not charge the client or will charge only the disbursements or some defined amount or proportion of disbursements and that in consideration therefore, in the event that the client’s action is successful, the practitioner would be entitled to charge a solicitor-client fee which constitutes up to double the fees to which the practitioner would otherwise be entitled if those fees were charged according to the scale contained in the Sixth Schedule to the Rules of the Supreme Court.

(a) (i) a practitioner shall only enter into a contingency fee agreement where in his or her professional judgment the client’s claim has some prospect of success but that the risk of the claim failing and of the client having to meet his or her own costs is significant;

(ii) the practitioner should prior to the signing of the contingency fee agreement inform the client of the client’s right to obtain independent legal advice and of the right to have the contingency fee agreement reviewed by the Supreme Court pursuant to Section 42(7) of the Legal Practitioners Act and of the right to have the fees charged reviewed by the Conduct Board under [S]ection 77A of the Legal Practitioners Act and the agreement should specifically record this.

(b) Any contingency fee agreement:

(i) must be in writing and in plain English and set out clearly the terms of the agreement, and be signed by the client;

(ii) should generally be in the form of Attachment 1 to these Rules and contain at least the terms contained in that agreement;

(iii) must contain the provision that the client shall have a cooling off period of five clear business days from the signing of the contract during which he or she may, by giving notice in writing to the practitioner, terminate the contingency fee agreement.

ATTACHMENT 1

________________________________________________________________

THE LAW SOCIETY OF SOUTH AUSTRALIA

SAMPLE STANDARD CONTINGENCY FEE AGREEMENT

THIS CONTINGENCY FEE AGREEMENT is made the 1993

BETWEEN:

(the solicitor)

AND

(the client)

RECITALS:

A. The client wishes to engage the solicitor to provide legal services to the client in conducting an action (describe generally nature of action) hereinafter called “the action”.

B. The client wishes those services to be provided on a basis that the client will not be obliged to pay for the same (or alternatively shall not be obliged to pay for legal professional costs and only an obligation to pay for out of pocket expenses) in the event that the action is unsuccessful. [Here describe what will constitute an unsuccessful action, eg: no recovery, or recovery of less than a certain amount or the different degrees of success which will lead to different consequences as to the client’s liability to pay for out of pocket expenses.]

C. The solicitor is willing to provide the requested service on the basis requested by the client on condition that in consideration for agreeing not to charge the client for such services in the event that the action is unsuccessful, the solicitor shall be entitled to charge the client fees comprising up to (insert percentage) of the amount which would otherwise be payable for the professional legal costs of the action under the scale of costs formally applying (Scale of costs provided for by the Supreme Court Rules Fourth Schedule), together with disbursements and out of pocket expenses. This agreement records that condition and some of the other terms of the engagement of the solicitor by the client for the action.

D. The solicitor has advised the client, among other matters:

1. of the client’s entitlement to seek independent legal advice as to entering into the agreement;

2. of the existence of a five day cooling off period;

3. of the client’s right to apply to the Supreme Court of South Australia under Section 42(7) of the Legal Practitioners Act to seek to rescind or vary this agreement if it is asserted that a term of the agreement is not fair and reasonable;

4. of the client’s right to have the amount of the fees charged reviewed by the Conduct Board under Section 77A of the Legal Practitioner’s Act;

5. of the probability that if the client’s claim fails the client may well be liable to pay the party and party costs of the other party or parties to the action,

and the client by signing below hereby acknowledges the receipt of such advice.

SIGNED: ..........................................................................

IT IS AGREED as follows:

1. The client engages the solicitor to act as the client’s solicitors in the action.

2. In the event that the client does not obtain judgment in the action there shall not be liability to pay any costs or disbursements to the solicitor (alternatively “there shall only be liability to pay to the solicitor out of pocket expenses and not moneys for professional costs” or other arrangements made for disbursements).

3. In the event that the client does obtain judgment in the action, there shall be liability to pay to the solicitor, in addition to out of pocket expenses, legal costs calculated at (insert percentage) of the amount which would otherwise be payable under the [applicable] scale, (but the solicitor shall only be entitled to claim against the client for the amount, if any, received in respect of the judgment).

(a) if the client recovers more than $

the applicable percentage is %.

(b) if the client recovers more than $

the applicable percentage is %.

4. The client is entitled, within five clear business days of the signing of this agreement, to terminate the same by notice in writing delivered to the solicitor.

5. In the event that the client whether lawfully or unlawfully or the solicitor lawfully, terminates the engagement of the solicitor prior to the conclusion of the action, this agreement shall remain in force, and if the action subsequently concludes in favour of the client, the client shall then be liable to pay the solicitor the fee for work done by the solicitor calculated in the manner set out in this agreement, but should the action not conclude in his favour the client (shall not be obliged to pay the solicitor for work performed/only obliged to pay disbursements as the case may be), subject to any contrary agreement between the client and the solicitor.

6. (Any other clauses agreed with the client.)

DATED this ____________________ day of __________________ 19

SIGNED (by the client)

this ____________________ day of ________________ 19

WITNESS:

.....................................................

SIGNED on behalf of (the solicitor)

by

WITNESS:_____________________

......................................................

Note: The form of the agreement may be adapted to meet individual circumstances, and the agreement may be supplemented by other terms, but the substance of the recitals and the rights of the client set out above must not be prejudiced thereby.

________________________________________________________________