1. Scottie Romisson (Scottie) is a principal solicitor of Romisson & Barney Lawyers, a general law practice comprising 3 legal practitioners. The other principal solicitor is Joyce Barney (Joyce). The third practitioner is Gus Tyler (Gus), an employee solicitor, who joined the law practice fairly recently.

2. Peta Duton (Peta) is the Minister for Education, Migration and Enterprise (MEME). Marri Sharkson (Marri) is an opinionated blogger, occasional free-lance journalist and self-proclaimed crusader against corruption. Marri's slogan on her blog states that she goes 'where angels fear to tread', apparently a misunderstanding of the proverb 'fools rush in where angels fear to tread'.

3. In a recent post on her blog, Marri alleges that Peta had abused her position as the MEME. Marri bluntly states in her post that Peta pressured a charity, the Australian Foundation for Asylum-seekers and Refugees (AFAR) to divert its resources away from assisting asylum-seekers fleeing war-torn or unstable countries in and around Asia and Africa, and channel those resources towards encouraging migration from North America and Europe. Marri alleges that Peta applied pressure on AFAR through a government department within her portfolio, the Section for Charitable Organisations and Not-for-profit Enterprises (SCONE), which oversees charitable organisations like AFAR. Marri suggests that Peta is beholden to a nationalist lobby group that has been agitating for a new 'Caucasian Australian' policy because of the lobby group's generous donations to Peta's political campaign. In her post, Marri poses the question, 'If this isn't corruption, then I don't know what is'.

4. Annie Rusdon (Annie) of Rusdon Legal, solicitors for Peta, have just served on Marri a 'concerns notice' under the Defamation Act 2005 (Vic). Peta's solicitors are demanding that Marri publish a retraction and an unqualified apology in her blog and in a national newspaper, as well as pay Peta's legal costs, otherwise they will commence defamation proceedings on behalf of Peta against Marri.

5. Marri and Scottie are 'friends with benefits'. On a Tuesday afternoon, Marri flounces into Scottie's office without an appointment and slaps the 'concerns notice' from Rusdon Legal onto his table, demanding that he respond to it on her behalf. Scottie quickly scans through the 'concerns notice' and tells Marri that he is not confident taking it on as defamation law is a specialist area, but can recommend an expert to her.

6. Pouting her cherry-red lips, Marri petulantly suggests that she can always take her favours elsewhere. Getting the hint loud and clear, Scottie sighs and pulls out a chair for Marri and assures her that he would do his best, of course. Marri graciously takes the seat, crossing her legs and smiling at Scottie demurely. Scottie steels himself mentally for a long afternoon.

7. Scottie spends the rest of the day getting information from Marri about the matter. He finds it difficult to focus because Marri keeps coming over to kiss him. Finally he thinks he has sufficient information and tells Marri that he will do some research and provide her with an update. Apparently, Marri's claims are based on an inside source in SCONE. Scottie asks Marri to drop by his office on Friday morning for the update. Fluttering her eyelashes, Marri suggestively invites Scottie to drop by her place that weekend to discuss the matter in 'more conducive surroundings'. Scottie knows what the invitation implies and agrees instantly. 8. As she is leaving, Scottie tentatively suggests to Marri that it is in her own best interests to instruct a defamation law expert as it is a specialist area. Marri simply arches her left eyebrow and pashes him before sashaying her way out of his office. Scottie surrenders to his fate, not unwillingly.

9. Scottie spends the next 3 days reading up on the law of defamation and forms the view that Marri has a defence of justification or in the alternative, a defence of honest opinion. However, he fails to appreciate that Marri may have asserted statements of fact and that while one defence relates to facts that are substantially true, the other relates to comments or expressions of opinion on matters of public interest founded on a demonstrably proper basis.

10. Tingling with anticipation, Scottie goes to Marri's house on the weekend. He is also excited to convey what he believes to be good news to Marri regarding her defence if Peta follows through on her threat to commence defamation proceedings. On arrival, he starts to tell her about his research, but Marri coyly puts a finger to his lips and leads him to her bedroom.

11. In the afterglow of their passion, discussing the merits or otherwise of defending potential defamation proceedings is the furthest thing from Scottie's mind. Significantly, it completely slips his mind to bring to Marri's attention, the merits or otherwise, of making an 'offer of amends' to Peta.

12. The following Monday, Scottie replies to the letter from Rusdon Legal refuting the allegations of defamation in the 'concerns notice' and stating that Marri is standing by her post about Peta in her blog. He sends a copy of his reply to Marri by email.

13. Rusdon Legal commence defamation proceedings on Peta's behalf in the County Court of Victoria against Marri and serve the court papers on Romisson & Barney Lawyers as solicitors for Marri.

14. Scottie files a Notice of Appearance in court on Marri's behalf within 3 days of receiving the court papers from Rusdon Legal and serves on them a copy of the Notice of Appearance. He sets aside all other work and starts working on a draft Defence for Marri. He also drafts the 'overarching obligations' and 'proper basis' certificates pursuant to sections 41 and 42 of the Civil Procedure Act 2010 read with rules 4.09 and 4.10 of the County Court Civil Procedure Rules 2018.

15. Scottie requests Marri to attend at his office as soon as possible to sign the court papers. When Marri arrives, Scottie asks her to go through the draft Defence. Marri skims over it and tells Scottie, 'I guess it's OK, but I have just learned that my source was passed over for promotion twice and he is thinking of early retirement. I gather that he and Peta did not get along. Does that make a difference? But I still believe him, I think ...'.

16. Scottie assures Marri that there is no cause for concern. He informs her that this new information makes little difference as he believes that her defences of justification and/or honest opinion will hold up in court. He asks Marri to sign the 'overarching obligations' certificate, telling her that it is 'just a formality' and without any discussion about what the certificate means. Marri signs the certificate, hugs Scottie warmly and leaves without any questions.

17. Scottie finalises and signs the Defence and the 'proper basis' certificate. He files these documents in court together with the 'overarching obligations' certificate that Marri has signed and effects service of all the papers on Rusdon Legal. He also emails copies of the documents to Marri. Having done all these within a week of filing and serving the Notice of Appearance, Scottie congratulates himself on his quick work.

18. As Scottie has not mentioned legal costs, Marrie assumes that he will waive his professional fees. Marrie is however, aware that there are expenses such as court filing fees that she is prepared to pay for or reimburse Scottie if he has paid for such expenses in advance. To her surprise, she receives in the post a "Legal Services Agreement" from Scottie with a cover letter requesting her to pay a deposit of $5,000.

19. Marrie contacts Scottie about the "Legal Services Agreement" and deposit. He tells Marrie that the "Legal Services Agreement" is on a "no-win, no-pay" basis and that if she does not win, she does not have to pay his professional fees. He says that the $5,000 deposit is for reimbursement of past expenses that he has paid on her behalf, and for future expenses. Marrie asks Scottie about Clauses 2.3 and 2.4 but he tells her that the clauses are standard and assures her that they do not apply to her as she is not making a claim. Marrie does not really understand but she does not want to press the point and leaves it.

Question

Please refer to the Facts and, in particular, the "Legal Services Agreement" You may assume that the original "Legal Services Agreement" and the cover letter received by Marrie were both signed by Scottie. Critique the "Legal Services Agreement" with reference to the relevant provisions of Part 4.3, Division 4 of Schedule 1 - Legal Profession Uniform Law of the Legal Profession Uniform Law Application Act 2014, including any possible consequences that may arise.

Romisson & Barney Lawyers

567 Sunrise Boulevard Melbourne 3000

Tel: 9192 9394 Email: a..n@porter-michaelslegal.com

Legal Services Agreement

Part 1: Appointment of Legal Representative

1.1. Marrie Sharkson of 77 Sunset Strip, Thomastown VIC (the Client) hereby instructs Scottie Romisson of Romission & Barney Lawyers, 567 Sunrise Boulevard, Melbourne VIC (the Solicitor) to act for her in the defamation proceedings commenced by Peta Duton.

1.2. The Client undertakes to provide instructions when requested and to attend court when required. A breach of this undertaking provides grounds for the Solicitor to cease acting for the Client and to withdraw from the proceedings but without prejudice to the Solicitor's right to claim any outstanding costs and disbursements from the Client for any work done.

1.3. The Client authorises the Solicitor to do everything reasonably necessary and incidental to the timely progress of the case, including the filing of documents in any court or tribunal.

1.4. The Solicitor undertakes to seek the Client's consent before briefing a barrister for the Client and to keep the Client informed of progress.

Part 2: No-win, No-pay Arrangement with Uplift Fee

2.1 This is a no-win, no-pay arrangement and the Solicitor's professional fees are only payable by the Client if the Client is successful.

2.2 The Solicitor is of the view that there is a reasonable prospect of success; however, the Solicitor does not guarantee that the Client will succeed.

2.3 The Solicitor's professional fees are usually $1,000 per hour. However, in the event of success, the Client agrees to pay additional 20% of the Solicitor's usual professional fees, which will then increase by $200 to $1,200 per hour.

2.4 If the Client is successful, the Client will further pay an uplift fee of 10% of what the Client receives from the other party (excluding costs), whether by court order or by negotiated settlement.

2.5 Disbursements (expenses), including the fees of any barrister briefed for the Client, are the Client's responsibility and must be borne by the Client regardless of the outcome. (signed) Scottie Romisson Principal (dated)