The case of Richardson v Poon  QCATA 85 signifies a change in the way solicitors and barristers engage with one another.
In this arguably extraordinary case, Ms Poon, a barrister, was referred through the Queensland Bar Association pro bono scheme to assist a client with representation in a serious prosecution.
Ms Poon was prepared to represent the client but required her to have an instructing solicitor to avoid the direct brief process.
Mr Richardson was contacted by the client for this purpose. Ms Poon subsequently provided a costs disclosure and retainer agreement to the solicitor, an offer to which he made no response, and did not in any way overtly accept.
However, the retainer provided that:
“You may accept this offer to enter into the retainer agreement:
- by writing to me to that effect; or
- by your conduct in not writing to me immediately in response notifying me that you do not accept these terms, and me in turn embarking upon the work required to be undertaken under the retainer agreement.”
Ms Poon appeared for the client in a trial, and subsequently rendered two invoices to the solicitor, totalling in excess of $8000, which the solicitor passed on to the client; neither the client nor the solicitor paid the invoices.
This is perhaps unsurprising given the matter was undertaken pro bono, and the solicitor did not attend the hearing, instruct at any conferences or in any way play an active role in the hearing.
Because the invoices were not paid, Ms Poon commenced proceedings against the solicitor, just before the six-year limitation period for recovery expiring. An adjudicator found the solicitor was indeed responsible for the fees because he had not overtly rejected the barrister’s offer, and because he continued to be on the record and instructed Ms Poon to appear.
The solicitor appealed, but was unsuccessful, albeit that the Senior Member acknowledged that this outcome was somewhat unfortunate, noting:
 Having said that, I observe that Ms Poon was obviously aware that Mr Richardson was only engaged to assist Ms Cole in defending the case for the purposes of briefing counsel. He never appreciated he would be personally liable for the barrister’s fees and there were no specific discussions with Mr (sic) Poon about this. Ms Cole had little or no financial resources and sought pro bono assistance. Ms Poon also knew this and knew, from her conversations with Ms Cole and Mr Arnet that they had not paid any money into trust to cover her fees. This could hardly have been unexpected and confirmed by her with the offer to have them pay the fees in instalments. Ms Poon has taken advantage of the retainer to recover her fees from Mr Richardson who had no interest in the outcome of the case, he was only trying to help.
 Given all the circumstances associated with Ms Cole’s representation, it is surprising that Ms Poon pursued Mr Richardson for payment knowing Ms Cole could not pay and that’s why she sought pro bono assistance. This is further exemplified in that Ms Poon did not bring her claim against Mr Richardson until just before the six-year limitation period expired, thus baring her claim. In considering all these matters, in the absence of the binding retainer Mr Richardson would likely have been relieved of the moral obligation to pay the fees under the old barrister/solicitor convention.
 Unfortunately for Mr Richardson, a ground for leave to appeal has not been established. There has been no error of law or finding of fact by the learned adjudicator. Although the outcome might seem unjust from his perspective, he has been caught by the retainer and Ms Poon’s decision to rely on it, in a case that was originally taken on as a pro bono matter.
This matter is a cautionary tale for all solicitors, and indicates that extreme caution must now be exercised when engaging barristers, especially in cases involving pro bono referrals.
Prudent solicitors will make it clear to barristers, in writing, that retainers must be formally concluded via written acceptance, and that deemed or unilateral retainers will not be recognised.
As acknowledged by the learned Member, the solicitor in this case sought only to help; an unfortunate consequence of this matter is that such help will likely be less forthcoming in the future.
Shane Budden is a Special Counsel, Ethics, with the Queensland Law Society Ethics and Practice Centre.