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Barry Lane
3 December, 2008  
Solicitors' liens and legendary litigators

Sometimes solicitors can lien so far and so hard they topple over. This has happened to deticketed Melbourne solly Issac Brott. Barry Lane reports on the latest twist in the Brott saga


imageLegendary Melbourne litigator, Issac Alexander Brott, can’t take a trick these days.

You’ll recall from my recent report that Brott got rubbed out by the Bureau de Spank on September 18 for a number of misdemeanors, including trust account breaches, confusion with a client over costs and permitting a ticketless acquaintance, one Xavier David Holden, to engage in legal practice.

After pleading guilty to those charges and admitting seven priors between 1985 and 2004, Brottie was told by the Bureau not to consider reapplying for a practicing certificate before July 4, 2009.

A somewhat merciful disposition, I think you’ll agree.

Following the Bureau’s order, no doubt Brott had to make arrangements rather quickly to transfer his files to another solly.

It appears from Cosgriff v Issac Brott & Co that Malcolm Buxton got the gig. Mr Buxton was ready and willing to act for Ms Cosgriff.

Unfortunately, Ms Cosgriff, who was deep into a piece of litigation in the Supreme Court against trustees of a deceased estate, had other ideas.

Her proceeding was slotted in for a ten day trial commencing on February 17, 2009.

Shortly after September 18 this year 2008, Ms Cosgriff engaged listed lawshop Slater & Gordon to act for her.

S&G Ltd asked Brottie for Ms Gosgriff’s file but a cheque for outstanding fees of $134,000 didn’t accompany the request (the balance claimed from a total of $257,000).

He refused to deliver claiming that he had a solicitor’s lien.

Ms Cosgriff sought the court’s assistance in recovering her file without coughing-up.

imageJustice David Byrne (pic) didn’t see things Brott’s way. HH said:

“Whether it is the client or the solicitor which terminates the relationship is to be resolved in a practical way …

The situation which confronts me is, happily, an unusual one. In my mind I should approach the question on the basis that the solicitor has, by his wrongful conduct, caused himself to be discharged. This is because his wrongful acts have rendered him legally incompetent to continue with the retainer …

In these circumstances the lien is determined. It would be altogether contrary to any principle of equity that a solicitor whose misconduct rendered a blameless client bereft of legal representation should nonetheless be permitted to retain the file so that the client was unable to retain fresh representation.

I say nothing of the former solicitor’s entitlement to recover those costs properly incurred prior to his incapacity, it is that he cannot assert the normal possessory lien.”

imageMind you, this shouldn’t have come as any surprise to the legendary litigator, or his counsel, because last year Brottie (pic) acquired a client from a competitor in remarkably similar circumstances.

In Bodycorp Repairers Justice Kim Hargrave permitted Brottie to take Bodycorp from its then solly, W.P. Edwards, free of Mr Edwards’ lien.

HH found that Edwards had neglected his client’s interests to such an extent that he should forfeit his lien.

As they say in the classics: what goes around comes around.