Fees: Barrister failed to record time
A direct access barrister who failed to justify fees for herself and a colleague of £420,000 plus VAT for a divorce hearing has been fined £5,000 by a Bar disciplinary tribunal.
The tribunal said it was a “basic and important requirement” for barristers to keep contemporaneous records of work done when charging hourly rates and Rosa Zaffuto should have identified ‘Person B’, who was disabled, as a vulnerable client.
The tribunal heard that Ms Zaffuto, assisted by former barrister David Beard, was instructed by Person B on a direct access basis in August 2017 to represent her in a financial dispute resolution hearing.
At a meeting with the client, Ms Zaffuto agreed to review the eight lever-arch files of documents in the case for a fixed sum of £6,000. She did not refer to this arrangement afterwards.
The fee referred to in a client-care letter signed by Person B in September 2017 was an hourly rate of £375 plus VAT for the work done by both lawyers.
The pair investigated the finances of Person B’s husband and prepared for an ultimately unsuccessful financial dispute resolution hearing on 1 December 2017.
Instead, on 6 December, Person B ended her agreement and decided to represent herself. She received a fee note for £420,000 for 1,120 hours of work at £375 per hour, plus VAT of £84,000, making a total of £504,000.
Ms Zaffuto said the barristers had worked continuously on the case for three months but agreed to cap their billable hours at 40 per week, though they had worked many more.
The tribunal said Ms Zaffuto’s “uncontradicted case” was that the fees charged were much lower than if she had worked it out “exactly”, and Person B was happy and later acknowledged in writing that the fees were owed.
However, the relationship became “acrimonious” by April 2018, with Person B accusing Ms Zaffuto of colluding with her husband and asking for the £6,000, the only money she had paid, to be returned.
The barrister began bankruptcy proceedings, serving a statutory demand on Person B, who responded with a letter from Statutory Law Ltd, which is not a firm of solicitors, objecting to it. Ms Zaffuto did not respond to the letter.
The tribunal found that the breaches of core duty 5 – maintaining trust and confidence in the individual barrister and the profession – were so serious as to amount to misconduct.
Ms Zaffuto did not keep “any or adequate records” supporting the fees charged, nor had she provided Person B with records or details of work done “as may reasonably be required for verifying the fee note”.
She argued that, had she not agreed to a capped fee, the “actual fees for the period” for both barristers would have been £800,000. She described Person B as “cash poor” but “asset rich”.
She said Person B knew she did not have records of the work done because she had agreed to a capped fee, rather than her barrister “working it all out and coming to a much higher figure”.
However, the tribunal said it was a “basic and important requirement that a barrister should keep adequate and contemporaneous records of work done when charging fees on an hourly basis”.
This would not normally involve “very elaborate or time-consuming record-keeping”. In this case, a record of the actual hours worked, with start and stop times and a summary of heads of work done in that time would have sufficed.
Ms Zaffuto should also, under Bar Standards Board guidance, have identified Person B as a vulnerable client, requiring special treatment because she was a “lone parent with limited financial resources”, who had a disability and was caring for a child with a disability.
Instead, she was given an “invidious choice” of agreeing to a discount on fees or requiring her barrister to work out the higher fees.
The failure to respond to Statutory Law’s letter and provide the details about the fees requested was similarly a serious breach of core duty 5.
In mitigation, Ms Zaffuto’s counsel pointed out that there was no evidence that she had over-charged for the work or that Person B challenged the fee.
The tribunal noted that, though there was evidence suggesting Person B was “in some respects indifferent” to the sum being charged in fees and was aware “in broad terms” that the sum would be large, Ms Zaffuto also failed to update her periodically about the level of fees.
Ms Zaffuto was fined £5,000, ordered to pay £3,570 in costs and ordered to attend, before the end of this year, a two-day course for public access barristers.
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