Tim Hazelwood: The Legal System – Some Ethical Concerns

Being asked to act as an executor of a will for the first time brought with it mixed feelings. I felt honoured that someone had trusted me to ensure their wishes were carried out, but I was also apprehensive because I had little understanding of what the process involved.

I have since acted as an executor on a number of occasions, but my first experience was particularly enlightening.

Following the funeral, I handed all the required documents to the solicitor after discussing the matter with them by telephone. At the time, the process appeared straightforward. There was one beneficiary, and the property had been left to that person.

It was therefore to my shock and dismay when the solicitor subsequently presented me with a substantial bill. There was a shortfall because there was not enough money remaining in the estate to cover the fees. I asked for a breakdown of the costs, but I could not reconcile how the amount being sought had been calculated.

In the meantime, I discovered that solicitors have a duty to explain the process to their clients and provide an estimate of costs at the outset. This had not happened in my case.

Around the same time, I was appointed executor of another will. On this occasion, the solicitor asked to meet both of us who had been appointed as executors. The entire process was explained to us in detail. I also asked for an estimate of the costs, and I was given a figure that ultimately proved to be remarkably accurate.

What was particularly striking was that the final bill was almost half the cost of the previous case, despite the estate being considerably larger and involving multiple beneficiaries.

Armed with this experience, I contacted the first solicitor and questioned the bill, explaining what had happened in the second case. Almost immediately, the bill was reduced by a quarter.

Since then, I have heard numerous stories from people who feel they have been treated unfairly when it comes to legal fees. It appears that some solicitors charge a percentage of the assets involved, while others seem to arrive at a figure without providing any clear explanation as to how it has been calculated. I also understand that the Law Society does not generally become involved in individual disputes over legal costs, leaving people with little obvious avenues to challenge fees they believe are excessive.

Having experienced this first-hand, I now have a new appreciation for the efforts of the Minister for Justice, Jim O’Callaghan, as he seeks to rein in costs, particularly in cases where free legal aid is provided. Coming from a legal background, he is well placed to understand some of the difficulties and potential abuses within the system. His stated aim of achieving value for money for clients and for the State is welcome, and he appears determined to pursue reform.

I was also struck by a statement from Brother David Gibson, who said that “legal fees in protracted litigation are typically four times the compensation received by the claimants.” He further pointed out that, in one case, the legal fees charged by a law firm were almost 19 times the compensation ultimately paid to the claimant.

One only has to look at the advertising of some legal firms seeking out former residents and pupils of religious-run schools and institutions to appreciate that this has become a significant and seemingly very profitable area of legal practice.

Perhaps it is now time for the Minister for Justice and the Law Society to broaden their focus and examine more closely the practices surrounding legal fees. Some clients may have little understanding of how those fees are calculated or what they can reasonably expect to pay. 

I am mindful, however, that the vast majority of people working in the legal profession are honourable and professional. On a personal note, and on behalf of the ACP, I am grateful for the support and expertise of legal professionals, from which I and many others have benefited.