File closed ... now move on

Keddies, again … Self-regulation protects the independence of the legal profession and allows the most flagrant breaches of ethical standards to be regarded as acceptable … Tracing the Tariq overcharging case and how all misconduct complaints found their way to the dust bin … Charging another three-quarters of the amount on top of what is acceptable is not gross overcharging ... Victim presses for inquiry into OLSC 

It is one of the great marvels and triumphs of self-regulation that the NSW legal profession's regulators have not managed to put a glove on the former principals of Keddies. 

Mark: complaints dismissedDespite the litany of overcharging allegations, the mass of evidence and the hundreds of claims against Keddies heading to the District Court, the Office of Legal Services Commissioner's efforts have been notoriously ineffective. 

Either complaints have been dismissed by the commissioner, Steve Mark, or been bought-off by Keddies rushing around thrusting piles of cash into complainants' pockets, on the condition that their allegations are withdrawn. 

Certainly, the courts' interpretation of the law on overcharging may not be entirely helpful to Mr Mark, but the problem is exacerbated by the commissioner's overly delicate interpretation of what is legally possible. 

Needless to say, the Law Society has sat on its hands and looked the other way. 

The net effect has been that the great unwashed have an even more jaundiced view of the profession, its processes and the way it protects the most audaciously greedy of its number. 

From the aggrieved client's perspective there can be no Vegemite and no happiness. 

Take the case of Mohammed Tariq. 

After being injured in January 2007 in an accident caused by a P-plate driver he instructed Keddies to act for him on February 2, 2007. 

NRMA Insurance admitted liability before Tariq signed his costs agreement in April 2007. The claim was purely about proof of damages. 

His wife Khalida and his daughter Ambreen instructed Keddies in July 2007 to bring compensation to relatives proceedings for nervous shock. 

All three matters were resolved at an informal settlement conference on February 21, 2008. 

The payout settlement for Mohammed was $400,000, from which Keddies charged $85,761.47 for fees and expenses. 

Khalida's matter settled for $45,000, inclusive of costs, and Keddies charged $15,146.30 for fees and disbursements. 

Keddies clients are as mad as hell ... and won't take it anymore Ambreen's matter settled for $75,000, inclusive of costs, and Keddies deducted $17,390.30 for fees and expenses. 

Keddies applied some fee discounts - $15,627.44  for Mohammed, $1,686.46 for Khalida and $4,872.39 for Ambreen. 

In August 2009 barrister Michael Robinson finalised costs assessments in the three matters, concluding that there had been systematic duplication and overcharging, "which in my view is deliberate and has in many cases led to the charging of costs that are grossly excessive". 

Robinson added: 

"Possibly the most gross example of overcharging arises out of two simple phone calls made to counsel and the NRMA representative on February 18, 2008, which could reasonably have been done by a clerk. At items 835-836 of the bill of Mohammed, $196 is claimed, at items 98 and 99 in the bill of Ambreen the same amount is claimed, and at items 88 and 89 of the bill of Khalida the same amount is claimed, making a total of $588 for work that in my opinion, should have been done by a clerk charging $20 for 12 minutes of work." 

Robinson said the costs were grossly excessive and knocked $37,246.49 off Mohammed's  bill. He referred the papers to the Legal Services Commissioner. 

In Khalida's case the costs assessor said Keddies should pay back $5,850.35 and in Ambreen's case the bill was $5,412.10 over-the-top. 

Again, in those cases the costs assessor referred the matters to Steve Mark for further investigation.  

Tariq: protesting

Once in the hands of the Legal Services Commissioner the complaints were suffocated in a thick layer of palaver. 

Two years after Robinson's assessment, Mark dismissed the overcharging complaint. He said there were five separate cost assessments, two of which had been provided by Keddies, one obtained by the OLSC, one from consultants engaged on Tariq's behalf and Robinson's assessment. 

The variations were bewildering. In Mohammed's case the extent to which the costs exceeded what was regarded as fair and reasonable ranged from 8.23 percent to 74 percent. 

Mark then cited a recent ADT case, Bar Association v Ward, where the ADT (Wendy Robinson QC,  Sharron Norton SC, and lay person L. Bubniuk) said that the amount overcharged was 63 percent beyond what was considered fair and reasonable, yet that was not grossly excessive. 

It was noted with some enthusiasm by the tribunal and Mark, that this was "considerably short of a doubling" of the expert's assessment of fair and reasonable costs. 

If this is the law with which the OLSC is stuck, then it is badly in need of repair. 

Keddies also claimed it did a considerable amount of work on the files for which no charge was made. Keddies said it had documentary proof to support these extra non-billed charges. 

Mark explained to Tariq that it would be possible for the ADT to bring those amounts into account, so reducing the amount overcharged. 

"In light of the above, I cannot be satisfied there is a reasonable likelihood that the tribunal would find the charging was so grossly excessive as to be unsatisfactory professional conduct or professional misconduct. 

It follows I must dismiss the complaint of overcharging." 

Russell with one of his famous billsThere are news reports that indicate Keddies settled an action brought by Tariq in the District Court in July 2010. The firm agreed to repay the family $50,000, plus their legal costs in the matter. 

Keddies said the Legal Services Commissioner had dismissed 10 out of 11 of the Tariq family's complaints against the firm and that this claim for costs had no legal basis. 

However, the firm had ''carefully considered the state of mind of Mr Tariq, which has been clearly documented in the courts, and decided against subjecting him and his family to the trauma of a drawn-out legal battle in which they were unlikely to win''. 

Nearly three months after the overcharging claim was dismissed, in a letter dated December 22, Commissioner Steve Mark dismissed the complaints about failure to make timely and adequate costs disclosures. 

Again, the subjects of the complaints were employed solicitor Phillip Scroope, along with principles Tony Barakat, Russell Keddie and Scott Roulstone. 

Mohammed first instructed Keddies on February 2, 2007, but the costs agreement arrived two months later. 

Khalida and Ambreen first instructed Keddies on July 23, 2007, but costs agreements and disclosure documents were not provided until November 30, four months later. 

Steve Mark said:  

"The disclosures made fell far short of the disclosures required under s.309 of the Legal Profession Act.  

I consider that the disciplinary tribunal would be reasonably likely to find that proper costs disclosure was not made until the costs agreements were given to you, your wife and your daughter." 

However, those encouraging observations soon unravelled. 

Steve Mark sought a response from solicitor Scroope and this has been accepted without too much ado.

Apparently, it was simply too upsetting for Tariq to receive the costs information in a timely fashion. 

Scroope was concerned "not to impose unnecessary additional burdens on, or cause stress" to Tariq. 

He wanted his clients "to have the best possible opportunity, free from pressure of any kind to understand the costs arrangements". 

Similarly, Scroope was convinced it was inappropriate to send costs disclosure documents in the mail. 

If you swallowed that, you'd swallow anything. 

Scroope: duplicate billingMark accepted that the ADT might conclude Scroope acted in "the honest but mistaken belief that he was justified in delaying the making of costs disclosure". 

Complaint dismissed. 

As for Russell, Scott and Tony, they simply pointed the finger at their employed solicitor, so Mark said they were off the hook too. 

File closed. 

Mohammed has written to Premier Barry O'Farrell requesting an inquiry into the OLSC. 

The sole matter scheduled before the ADT involving any of the Keddies' billing scandals is set down for April 30. 

Russ has admitted that he was responsible for overcharging in the Meng case - so the hearing is about the penalty to be imposed on a lawyer who has retired. 

The allegations relate to the way the firm handled Shuang Ying Meng's personal injury case, in which $800,000 was charged for fees and costs from a settlement of $3.5 million. 

The misconduct complaint against Philip Scroope still stands, but those against Barakat and Roulstone have been withdrawn by the Legal Services Commissioner on the curious ground that it is sufficient that Keddie himself has taken taken the rap. 

So the hapless former employee is the only one left in the frame.