Offering a Bill of Costs for Taxation — A Morality Tale
Law Society of Singapore v Andre Ravindran Saravanapavan Arul [2011] SGHC 224
Introduction
Complaints of overcharging are a perennial occupational hazard faced by lawyers. As noted by the Court of Three Judges (the “Court”) in the recent decision of Law Society of Singapore v Andre Ravindran Saravanapavan Arul[2011] SGHC 224, overcharging may occur because lawyers’ work is “not quantifiable in terms of money” or may be overvalued by lawyers themselves. How can lawyers help themselves to minimize allegations of overcharging by unhappy clients? This case provides some guidance.
Facts
The respondent faced show cause proceedings on a charge of grossly improper conduct following a Disciplinary Tribunal’s determination that he had grossly overcharged his client, a management corporation, by rendering various bills for a total fee of $226,308.12 (including $572.35 for disbursements) for a 13-month period of preparatory work concerning recovery of misappropriated moneys. Such work included “attending to clients, seeking information from the police, answering queries, researching the law and giving legal opinions”, but “did not result in any letter of demand being sent to the intended defendants”.
After paying $109,297.35 (including $572.35 for disbursements) towards payment of the bills, the management corporation subsequently discharged the respondent and lodged a complaint with the Law Society for gross overcharging by the respondent. The Disciplinary Tribunal eventually found that the respondent’s substantive work was limited to three legal opinions given to the client and accepted expert evidence that a reasonable fee would have been approximately $75,000.
The only issue before the Court was the appropriate sanction to be meted to the respondent as he accepted that he had breached r 38 of the Legal Profession (Professional Conduct) Rules (“PCR”) by grossly overcharging the client for the amount of work done. The respondent also accepted that he did not keep proper timesheets or particularize his bills sufficiently and failed to propose to his client to have his bills taxed.
The Court observed that “this is an important case for the legal profession as this is the first time that a solicitor has been found guilty of gross overcharging since s 83(1) of the LPA was amended in 2008 to provide for the additional sanction of a monetary penalty for disciplinary offences committed by solicitors”. In this case, the Court noted in particular that the respondent’s conduct had not been dishonest and he had undertaken to refund the sum of $33,725 to his client. In line with its principles for imposing proportionate sanctions for different degrees of overcharging, the Court ordered that the respondent be fined $50,000 and censured, as well as to pay the Law Society’s costs for the show cause proceedings.
A Lawyer’s Obligation to Charge Fairly
The Court reiterated that every lawyer had a fundamental ethical obligation to charge fairly for work done under
r 2( 2 (c) of the PCR. Whether a lawyer charged fairly was a question of fact, taking into account, among other things, his standing, the nature of the legal work and the time spent on the work. Gross overcharging which affected the integrity of the legal profession would not be a fair charge. Even agreed fees charged on a time basis do not preclude a finding of overcharging because while the client had “agreed to the tariff of the charges, he [had] not agreed to the number of hours which he may be charged for”.
Where a bill was prima facieexcessive , the Court made a number of important pronouncements on offering a bill for taxation as follows:
1. It would remedy or ameliorate the lawyer’s conduct, as by offering to have his bill taxed, the lawyer would be “unlikely to have the frame of mind or intention to overcharge his client”. Taxation would not only benefit the client as it was the “most objective and conclusive way” to determine the proper fee which should be charged, but also avoid the need for the lawyer to face disciplinary proceedings for overcharging;
2. All lawyers should be mindful that their bills can be taxed under the law and of their obligation to inform their clients of their right to taxation, failing which dire consequences could result; and
3. If a bill was not taxable, a lawyer should, as a matter of prudence, “negotiate a mutually acceptable amount or even offer mediation”.
In this case, the Court noted that if the respondent had offered to have his bills taxed, the Disciplinary Tribunal might have determined that his conduct “did not constitute grossly improper conduct since he did not have the intention to overcharge (ie , he did not intend to charge more than what he would have received had his costs been taxed )”. However, the respondent did not do so when his client disputed his bills. The Court cautioned that this case should “be a morality tale for the edification of all like-minded solicitors in similar situations”.
The Court also suggested that the Law Society should, in future cases involving complaints of overcharging, advise or require the aggrieved client to apply to court to have the bill of costs taxed first, instead of embarking on an investigation into the complaint without more. The taxation order “would then enable the Law Society to assess whether the [client’s] complaint of overcharging merits investigation”.
Conclusion
This case serves as a reminder to all practitioners, the importance of maintaining a good channel of communication with the client on matters relating to billing and costs. Clients have a legal right to have their bills taxed and lawyers are obliged to inform their clients of this right. In many cases, a quick, pro-active and comprehensive response to a dissatisfied client’s query or dispute relating to the bill would go a long way in preventing misunderstandings between the client and lawyer on how fees are charged.
The Law Society has provided information on taxation for the public at the Law Society’s website at http://www.lawsociety.org.sg > Public > You and Your Lawyer > Legal Costs and has, since the Court’s decision, instituted a practice of informing the complainant that if he disputes his lawyer’s fees, he is required to first seek a determination by the Court through taxation of the bill(s) rendered by his lawyer. After obtaining a taxation order, he can then decide if he wishes to file a complaint of overcharging. The Law Society also manages a Cost Dispute Resolve scheme to resolve disputes of costs between a client and lawyer if both parties agree. More information on the scheme can be found at the website address above.
►Alvin Chen
Chief Legal Officer
Director, Representation and Law Reform
The Law Society of Singapore
E-mail: alvin@lawsoc.org.sg