Background 

Mr E was represented by a firm in a criminal case. A barrister was instructed to act but withdrew due to issues with funding. Mr B agreed to represent Mr E in the case at short notice, where it was agreed that Mr E would pay part of the fee to Mr B directly before the trial. Mr E did not make any further payments to cover Mr B’s fee.   

Two years after the trial, Mr B invoiced Mr E for the remaining fees. It went unpaid and Mr E was subsequently declared bankrupt. Mr B applied to be a creditor for the unpaid fees. He ultimately withdrew this application.  

Issue 

The Committee considered whether Mr B had breached rule 3.4A of the RCCC by failing to provide Mr E with information about the principal aspects of client service in advance. It also considered whether Mr B had breached rules 14.2(e) and 14.10 of the RCCC by receiving a fee from Mr E directly and personally holding the money paid in advance.  

Discussion and decision 

The Committee acknowledged that Mr B agreed to act in a "very complicated matter" without much notice and did not have any security for his fee. Mr B took on this matter at the request of his instructing firm, who had sent Mr E the terms of engagement on behalf of the previous counsel acting for him. The Committee had regard to rule 3.7(a) and was satisfied that Mr E was clearly informed of the fee arrangement. Accordingly, it found that Mr B was not in breach of rule 3.4A of the RCCC.  

Rule 14.2(e) provides that a barrister must not receive or hold money on behalf of another person. Mr B accepted that he should not have received the funds directly to his account from Mr E and admitted that this was a serious administrative oversight. The Committee also noted that Mr B did not send an invoice until nearly two years after the trial. The Committee determined that Mr B breached rule 14.2(e) and that this was made more serious by his failure to invoice promptly at the end of the retainer.  

The Committee noted that Mr B accepted direct payment instead of holding funds in the instructing firm’s trust account. It was of the view that this was related to the breach of rule 14.2(e) of the RCCC. Mr B accepted that he was at fault for not sending an invoice or recording that the fee had been agreed. However, he also commented that there was no harm caused to Mr E. The Committee determined that Mr B was not in breach of rule 14.10 of the RCCC (that rule applies to direct instructions and Mr E had an instructing solicitor). 

Penalty 

When considering penalty, it was noted that Mr B did not respond to the Committee’s queries in a timely manner during the process. At times he did not respond at all. As a result, it was necessary for an investigator to be appointed. However, the Committee also had regard to the fact that Mr B did agree to a complex trial on short notice and no harm was caused to Mr E as a result of his omissions.  

In light of this, the Committee censured Mr B and ordered him to pay a fine of $5,000 along with costs of $7,500.