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The area of legal costs can be very complex and confusing for consumers to navigate.

To help you deal with any concerns you may have with your legal costs, you might use the services of a costs lawyer or a costs consultant.

‘Lawyer’ vs ‘consultant’

The terms ‘costs lawyer’, ‘costs consultant’ or ‘costs clerk’ can often mean the same thing. Regardless of their title, a person who works in the area of legal costs generally does the following type of work:

• Prepare detailed/itemised bills of costs, or assessments of costs
• Prepare a Notice of Objections to an itemised bill
• Appear as an expert for or on behalf of a party in court
• Negotiate on behalf of a party in a costs dispute
• Provide advice on issues such as security for costs, the validity of solicitor-client cost agreements and making or accepting of offers to settle the costs dispute

There are a few important distinctions between what a person who calls themselves a ‘costs lawyer’ can do, compared to a person who calls themselves a ‘costs consultant’ or by a similar title.

Costs lawyers

As the title implies, a costs lawyer is a registered lawyer who works in the area of legal costs. A lawyer may also call themselves a ‘costs consultant’ or ‘costs clerk’.

A person who is not a lawyer may also work in the area of legal costs, but by law must not call themselves a ‘costs lawyer’. Instead, most would call themselves a ‘costs consultant’.

A non-lawyer who calls themselves a costs lawyer is committing an offence. The Board could bring charges against that person for falsely representing that they are a lawyer.

Insurance

All registered lawyers, including those working as costs lawyers, must be covered by professional indemnity insurance. Non-lawyer costs consultants are not required to hold this insurance, but some do. You should check this at your first appointment.

Offering other legal services

A costs lawyer may offer legal services in addition to costs services. By contrast, a non-lawyer offering costs services is prohibited by law from undertaking any legal work, or suggesting they can offer legal services. Such an offence could lead to imprisonment.

The law also requires that the language used in advertising, branding, communication and service proposals for legal costs must be carefully worded to eliminate the potential for confusion about the services being offered.

A non-lawyer costs consultant may be engaged by a law practice as a lay associate.  Despite working for a law practice, the non-lawyer is still prohibited from offering or undertaking legal services.

Appearing in court

Non-lawyer costs consultants may only appear in Court on behalf of a client if the Court has granted them leave to appear. If the Court does grant the non-lawyer leave to appear, this does not automatically entitle the costs consultant, nor any solicitor retaining them, to claim costs from their opponent for that appearance. The costs consultant’s fees may therefore have to be borne by the consumer, no matter the outcome of the Court case.

Complaints

If you have concerns about the quality of any lawyer’s work, their behaviour or the costs they have billed you, we recommend you raise your concerns with your lawyer directly. This also includes costs lawyers. Most issues can be resolved quickly and amicably. You can also discuss your concerns with our office.

We are able to help you with complaints about non-lawyer costs consultants only if they work for a legal firm. For all complaints about non-lawyer costs consultants who are not employed by a legal firm, please contact Consumer Affairs Victoria.

Is my costs consultant a lawyer?

If you are unsure if your costs consultant is a lawyer or not, you can ask them if they hold a current practising certificate. You can also check the Board’s online Register of legal practitioners and law practices which lists all people who hold a current legal practising certificate.

Questions to ask your costs consultant

The Board and Commissioner do not recommend the use of costs lawyers over non-lawyer costs consultants. Both fields contain persons with eminent experience. Consumers are entitled to ask questions to ensure that they are seeking the right type of person to address their legal costs issue:

1. Do you hold a current practising certificate?
2. Do you hold a current professional indemnity insurance policy?
3. How many years’ experience do you have in the area of legal costs?
4. Are you employed by a law practice?

If a problem arises with your lawyer, what you can do?

Many of the enquiries and complaints that we receive about lawyers are often caused by communication breakdowns.

Often things are left unsaid for too long, or not explained simply or clearly enough and by the time we find out about it your working relationship with your lawyer has hit a low point.

If you have a problem with a lawyer's behaviour, their legal costs or the work they have done, it’s best to deal with these issues straight away.

 

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Working with your lawyer

Most people deal with lawyers on very few occasions, such as when buying a house or making a will. If you are not familiar with the law, you may be uncertain how to work with lawyers or understand what to expect from the legal process.

Our fact sheet Working with your lawyer provides tips on how you can develop and maintain a good relationship with your lawyer.

Your first appointment

Before you engage a lawyer, there are many things to consider.  Our fact sheet Meeting a lawyer – your first appointment outlines things to consider about who you engage, the questions you should ask and what your and your lawyers obligations will be.

Your rights as a client

We have several fact sheets to help you understand your rights and responsibilities when working with a lawyer.

• Legal costs – What rights does a consumer have?
• No win – No fee costs agreements 

Is your lawyer licensed?

Your lawyer must hold a current ‘Australian practising certificate’ to practice law in Victoria. This is their licence to do work for you and proof that they are covered by insurance. If a lawyer doesn’t hold this certificate, it is against the law for them to do legal work for you. This is called unqualified legal practice. You can find out if your lawyer holds a current practising certificate by checking our Victorian Legal Profession Register.

For more information about why you should only use a registered lawyer for your legal work, see our Unqualified legal practice page.

Complaints

Sometimes things go wrong and you may not be not happy with something your lawyer has said or done. Most problems can be worked out easily by discussing them with your lawyer. Please see the Complaints page for information about our complaints process.

If your concerns cannot be resolved you can make a complaint to us. We can receive complaints about the legal costs you have been charged, the quality of service you received, and the behaviour of your lawyer. For information about how and when to make a complaint, please see the How to lodge a complaint page.

Regulation of conveyancers

Both lawyers and non-lawyers may do conveyancing work. While we regulate all lawyers, we have no power over non-lawyers working as conveyancers (except where they work for a lawyer or a law practice). For more information about conveyancers, see our Problems with conveyancing page.

National Redress Scheme for institutional child sexual abuse

A free government-funded service is available to assist you with applying for compensation under the National Redress Scheme for institutional child sexual abuse. Find out more here.

Migration support for people impacted by the crisis in Afghanistan

We are aware of reports of scammers seeking to take advantage of people seeking migration / visa support following the crisis in Afghanistan. There is free support available from the government and/or community legal services. Always check that the person you are dealing with is qualified and approved to do the work.
 
Support available

• The Asylum Seeker Resource Centre has valuable information to assist people who need help.
• Victoria Legal Aid can offer free legal advice.

Check if your lawyer or migration agent is registered

• Register of Victorian lawyers
• Migration agents
   

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Below are examples of how we assess claims for compensation for loss of trust money or trust property. These examples are based on real claims we have previously assessed. Some details have been changed to protect the privacy of the claimants.

Claim allowed

Lisa hires a lawyer in a family law matter than involves commencing proceedings in the Federal Circuit Court. As part of that retainer, she deposits $10,000 into her lawyer's trust account for anticipated legal costs, court filing fees for court, and barrister's fees.

Lisa isn't aware that her lawyer has a gambling problem and is in heavy debt. Without Lisa's permission her lawyer transfers the $10,000 into a personal bank account so it can be used for gambling. Her lawyer was hoping to recoup previous losses and hoped this would allow him to return the $10,000 to the trust account at a later stage. Meanwhile Lisa's lawyer tells her that her matter is progressing even though no work has been done, and even worse, all her money has been gambled away.

In this scenario, Lisa's claim on the Fidelity Fund would be wholly allowed because her loss was as a direct result of her lawyer's dishonest and fraudulent behaviour. 

Claim disallowed

Mary has $1million in savings and wants to invest that money in high interest-earning investment schemes. Her lawyer manages various hedge funds, and tells her that a profit is guaranteed if she invests in these hedge funds. Mary transfers all of her savings to the lawyer's trust account and authorises her lawyer to invest the money in any hedge fund that he sees fit. Instead of investing the money in the hedge funds as promised, her lawyer invests Mary's money in high-risk shares that saw the $1million reduced to $100,000. 

If Mary lodged a Fidelity Fund claim to recover the $900,000 that was lost, that claim would be wholly disallowed. This is because Mary had given her entire savings to her lawyer for investment purposes and so the Fidelity Fund is not liable.

Claim partly allowed

Adam is the executor of a deceased estate valued at $500,000. He hired a lawyer to apply for grant of probate and distribute the estate funds. The $500,000 was deposited into his lawyer's trust account pending its distribution in 6 months time.  Adam instructed his lawyer to invest that sum in an interest bearing account for the next 6 months and he assumed this investment would have yielded $12,000 in interest.

Adam's lawyer did not follow those instructions and instead withdrew the $500,000 for personal spending. After 6 months, Adam tried to contact his lawyer to call the distribution of the estate funds, but the lawyer's phone has been switched off and the firms office has closed down.

Adam lodged a claim on the Fidelity Fund for $512,000, representing the estate funds and the interest that the estate would have received if those funds were invested as he asked. 

Here, the claim would only be partly allowed in the sum of $500,000 because this loss arose from the dishonest and fraudulent act of the lawyer. However, the Fidelity Fund would not compensate Adam the potential interest that could have accrued because the Fidelity Fund only compensates for actual loss suffered. 

If you have lost trust money/property due to dishonesty or fraud by a lawyer, you may be eligible to claim back that money from our Fidelity Fund. 

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Conveyancing is work carried out in connection with certain property transactions including, for example, the sale of a freehold interest in land or the grant of a mortgage. Conveyancing work may be performed by lawyers and by people who are not lawyers. Non-lawyers wishing to carry on a conveyancing business for fee or reward must be licensed by the Business Licensing Authority and comply with other requirements under the Conveyancers Act 2006 (Vic).

Regulation of conveyancers

The Victorian Legal Services Board regulates lawyers and investigates allegations regarding people who engage in legal practice without being lawfully permitted to do so. Both lawyers and non-lawyers may do conveyancing work. While we regulate all lawyers, we have no power over non-lawyers working as conveyancers (except where they work for a lawyer or a law practice). Consumer Affairs Victoria regulates non-lawyer conveyancers. For further information about non-lawyer conveyancers, please contact Consumer Affairs Victoria.

Can a conveyancer carry out legal work?

Licensed conveyancers are authorised to carry out some legal work in connection with conveyancing transactions including preparing agreements, conveyances, transfers, leases or mortgages in the course of those transactions. However, non-lawyer conveyancers may not carry out legal work that is not ‘conveyancing work’ within the meaning of section 4 of the Conveyancers Act. Conveyancing work does not include legal work carried out for the purpose of:

• commencing or maintaining legal proceedings;
• applying for a grant of probate or letters of administration;
• establishing a corporation or varying the constitution of a corporation;
• creating, varying or extinguishing a trust;
• preparing a testamentary instrument;
• giving investment or financial advice; or
• investing money otherwise than as provided for in Part 5 of the Conveyancers Act (which deals with trust money and trust accounts).

Who can help me with if I have problems with a conveyancer?

If you have problems with a non-lawyer conveyancer, please contact Consumer Affairs Victoria. If you would like to make a complaint about a lawyer, whether in relation to conveyancing or other legal work, please see Tips to handle a dispute. If you believe a non-lawyer conveyancer is doing legal work that is not conveyancing work, please contact the Board.

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What can you expect from us if you make a complaint?

• Wherever appropriate we will try to help you resolve your concerns.
• If we are unable to deal with your complaint we will explain why and give you some information about other options that may be available to you.
• We will explain our processes to you.
• We will treat all parties to a complaint with respect and courtesy.
• If we decide that it is necessary then we may formally investigate specific concerns.
• We will deal with all complaints in an impartial way and as quickly as we can.

What are your responsibilities if you make a complaint?

• We ask you to do your best to clearly identify your concerns.
• We need you to co-operate with any requests we make for further information or documents.
• If you need more time, please ask for it – do not wait until a deadline has passed.
• We also ask that you treat our staff with respect and courtesy.