There are many court documents and other documents you will need to provide to your client if you are going to have an ongoing relationship with the client after the first interview. Unfortunately, you may, when looking at the list which follows, take the view that the paternalism of the Family Law Act and Rules (which take the view that distressed Family Law clients have trouble protecting their own interests), when coupled with society’s enthusiasm for consumer protection, has reached rather mad levels.

It is not technically essential to give all the following documents to your client at the first interview, but it is essential to provide them at an early stage. It is far better to give the client a folder of information at the first interview, make a note of this on your file, and forever after be protected from an allegation that you have not properly advised the client of their rights and fully provided all the required documents and preliminary information that they should receive.

Note that the Family Law Rules require that these documents be provided. The Federal Magistrates Court has less extensive obligations. Most states also impose their own obligations on lawyers about the information that they must provide their clients, especially in relation to costs.

IMPORTANT: As of 1 July 2008 Costs issues come under the umbrella of State Legislation. The information below therefore will determine the information to be given to your client. For a summary of the changes and how they impact refer to the paper by Registar Micallef of the Family Court

The Legal Profession Act 2004 came into effect on 12 December 2005. In Victoria, changes to this Act now require clients to receive significant information on the costs of providing legal services. Effectively, you are now required to enter into a Costs Agreement, even if you are charging under the Family Law scale. You should provide your client with both the Family Law Costs brochure and also the relevant brochures under State legislation. Failure to comply effectively means that the client does not have to pay your bill until it is taxed – at your expense! Most States have introduced similar legislation, but perhaps not as draconian. Comply with the notice provisions!

Victorian practitioners may wish to avail themselves to further information about these changes. There is also a prescribed Family Law Costs brochure.

The following comments relate to

South Australia

South Australian legal practitioners have the following obligations under Rule 41 of the Rules of Professional Conduct and Practice (effective 1 March 2003):

Rule 41            Communicating with clients on costs.

41.1   It is a practitioner's duty to communicate effectively and promptly with clients.

41.2   Without limiting sub-rule 41.1 the practitioner shall unless it is unreasonable or inappropriate in the circumstances so to do:

(a)            as soon as practicable after first taking          instructions from a client provide to the client written advice as to the reasonably estimated range of costs and disbursements the client may incur by pursuing the legal activity and the method of calculation of those costs.

(b)            provide to the client as soon as practicable after taking instructions written advice as to the basis upon which the practitioner accepts the client's retainer and in particular setting out the basis upon which the practitioner intends to charge the client for the services rendered and the current rates that apply to such charges; provided that such advice will not be required where there exists an applicable prior agreement by which all work done by the solicitor for that client or all work of a certain kind is subject to an agreed charging rate.

(c)            provide to the client as and when reasonably requested, a review of the estimated costs and disbursements and the reasons therefore.

(d)            provide to the client prior to the settlement of a litigious matter negotiated by the practitioner, advice as to the likely minimum net amount that the client will receive should the matter be settled in accordance with the proposed settlement and should payments due from such settlement be no more than those of which the practitioner is reasonably aware at the time of the settlement.

Note however that section 42(6) of the Legal Practitioners Act 1981 (SA) provides that a legal practitioner MAY make an agreement in writing with a client in relation to costs.

The Supreme Court held in McNamara Business Property Law v Kasmeridis & Anor [2005] SASC 269 on 22 July 2005 that section 42(6) should not be construed to require a client's acceptance of a costs agreement to be in written form. So, provided you have evidence that the client has accepted the costs agreement, the client doesn't have to actually sign. This ONLY applies to cases outside of the jurisdiction of the Family Court. Clearly, it is better to have the document signed.

Tasmania

For legal practitioners in Tasmania, the Legal Profession Act 1993 requires (section 130) that, before the lawyer is retained, a client must be given a written statement (except where there is urgency) advising of the method of costing, the right to negotiate an agreement, and the right to request an itemised bill. After being retained the lawyer must (section 143A) give a written statement of who will be doing the client’s work, and information such as the likely range of costs and also the likely range of any costs order that might be made against the client. Non-compliance (section 143F) can result in a proportionate reduction in the lawyer's bill on taxation by a taxing officer or an arbitrator.

We suggest that you should always err on the side of giving your client more information rather than less, especially relating to costs. You should follow the Family Court procedure – providing numerous brochures and clear costs advice – in all cases. If clients are unhappy about your method of charging or your estimate of the total cost then, frankly, it is better that you stop acting for them immediately. If they are forewarned, you are much more likely to have an ongoing and positive relationship with them.

The folder of information to give your client at the first interview will include the following:

1. Marriage, Families and Separation brochure relating to legal and social effects of separation, family dispute resolution etc.;
2. The Mediation: Pathways to Agreement brochure is now defunct due to the pre-action procedures.
3. Registrar’s pamphlet setting out costs advice with the Family Law Rules Scale of Costs;
4. Registrar’s prescribed pamphlet: Costs Notice. This tells the client in detail how to query any account you give them and, if it comes to that, how to take costs disputes against their lawyer to court; and
5. Costs Advice. This is a notice you should prepare, setting out:

1. the basis on which costs will be calculated – the scale or Costs Agreement;
2. an estimate, if practicable, or a range of estimates, of the total costs of conducting the case;
3. how party/party costs may apply in addition to the client’s own costs;
4. whether any other lawyer (e.g. a barrister or an agent) or an expert witness will be engaged, and if so, the estimated costs; and,
5. two brochures about Pre-Action Procedures as prescribed by the court. These will be discussed in the next chapter at length. When you want to start negotiating with the other side or take them to court, you have to serve them with the appropriate pre-action procedures brochures. There is one for financial cases and one for parenting orders. If your case involves both, then you have to serve both brochures. It is recommended that you hand them to your client as well. In this way, they will understand what is being done and why it is being done when you get to the stage of having to negotiate with the other side and to make disclosures as referred to in the Pre-Action Procedures.

See generally rule 19.03(1). This requires you to give a costs advice when you ‘receive instructions to act’. In other words, as soon as you get any instructions to do anything after the first interview, then you should give the costs advice. Merely giving the client a letter of advice would not qualify. It is strongly recommended that this is in the folder of information given to the client when you first see them, then you cannot forget! Also, if the matter is very urgent, the problem does not arise of having to dictate a costs advice and then send it by mail, with delays involved.

It goes without saying that it is difficult to give an estimate of what the total costs of the case will be. It is recommended that you err on the high side.