The disciplinary investigator’s duty of disclosure; more on inadequate reasons following a disciplinary investigation

Summary AB v Law Society of NSW [2018] NSWSC 1975 is a decision of Davies J given on 19 December 2018, quashing the Law Society’s decision under the Legal Profession Uniform Law (NSW) to prosecute a former solicitor for falsely attesting a passport application form, having been told, and believing, that the signature was genuinely applied by the signatory, but not in the solicitor’s presence. The decision was quashed because the Law Society failed to disclose to the solicitor, despite demand, during the disciplinary investigation all relevant documents, in breach of the obligation of procedural fairness, and because its reasons for its decision to prosecute were not reasons at all, and so amounted to jurisdictional error. In this latter respect, the decision is an application of the law set out in Levitt v Council of the Law Society of NSW [2017] NSWSC 834 (see this blog post) and the decision dismissing the appeal from that decision, reported at [2018] NSWCA 834.

How the decision came to be anonymised is not referred to in the reasons. Can anyone tell me how that happened?

Continue reading “The disciplinary investigator’s duty of disclosure; more on inadequate reasons following a disciplinary investigation”

Costs in disciplinary prosecutions under the Legal Profession Act 2004: excellent news for disciplined solicitors?

Summary The Legal Profession Act 2004 was repealed on 1 July 2015.  But transitional provisions probably give it ongoing life in relation to all disciplinary investigations which commenced prior to that date (see this blog post), even where the resultant disciplinary prosecution post-dates 1 July 2015.  This post suggests that such prosecutions in VCAT (of which there are still many) are now subject to VCAT’s usual costs regime under s. 109 where the presumption is that there will be no order as to costs, and there is no favouratism for the Commissioner. 

That is a great improvement on the previous situation when costs were in practice always awarded to the Commissioner and never awarded against the Commissioner, with the Commissioner often getting full costs despite being unsuccessful in some respects.  The costs of the Commissioner’s employee were allowed on County Court scale D, despite the remuneration under that scale greatly exceeding the wages paid to the employees on top of fees paid to counsel, on whom the Commissioner is extraordinarily reliant.  My impression is that the average costs order in a simple matter which is largely uncontested is  $10,000, but costs orders of $50,000 and up may attend upon contested matters which take several days to try (take VCAT’s most recent disciplinary decision, for example: $87,000 claimed by the Commissioner against a poor old sole practitioner out in the suburbs).

The previous position prevailed because of a provision in the VCAT Act 1998 which has been amended consequent upon the repeal of the Legal Profession Act 2004 so as no longer refer to that Act. 

Mind you I have tried this argument out in VCAT twice already and made no progress with it, though VCAT has provided no reasons as to why it is incorrect.

Continue reading “Costs in disciplinary prosecutions under the Legal Profession Act 2004: excellent news for disciplined solicitors?”

2018: Not Such A Good Year (Marriage, Sex, Birth, Politics, Murder and Madness)

Murder and madness Violence and the courts’ response was prominent as an issue, because it was an election year in Victoria, and so was racism because of the Minister for Making Refugees Disappear and other senior government people.  I liked John Silverster’s end of year article which celebrated the fact that crimes were down 7% and 3,000 extra police were in training.  A miserable law and order scare campaign ill-executed by state and federal Liberals ultimately bombed spectacularly when Dan Andrews stared it down.  For example, the shadow Attorney-General John Pesutto lost the seat of Hawthorn to a retired school principal who does not drive, John Kennedy (not the Hawks legend of the same name, or the Hawks legend’s Hawks playing son of the same name) and the Liberals held Brighton (Brighton!) by only 865 votes against a late-announced 19 year old Labor candidate who also doesn’t drive and who spent $1,750 on his campaign.  The newly elected Liberal member then surprised many by railing in his maiden speech against duck shooting and expounding environmental concerns more generally.

Continue reading “2018: Not Such A Good Year (Marriage, Sex, Birth, Politics, Murder and Madness)”

2018: Not Such a Good Year (‘Great’ Powers)

China’s CCTV surveillance system

Europe  The peasants revolted in France, which seemed to take everyone by surprise.  Seems President Macron’s honeymoon period, following his remarkable 2017 election, may be over.  England thought about changing prime ministers but thought better of it, while it agonized over what sort of Brexit it should have, or whether they should vote on the whole thing again.  New Caledonia finally had a referendum about whether to break away from France.  Slightly more than half of those of the eligible voters who voted said ‘Non’, but they get to do it all over again in 2020, and maybe in 2022 too.

Continue reading “2018: Not Such a Good Year (‘Great’ Powers)”

2018: Not Such a Good Year (Africa)

Africa  Peaceful protests in 15 of Sudan’s 18 provinces against the kleptocracy of Omar al Bashir persisted in Sudan for 10 days, definitely about high prices and probably about three decades of corruption.  He responded with police and army killings, beatings, tear gas, mass arrests and death squads, calling the protesters from all sectors of society including doctors ‘foreign stooges and infidels’, and throwing the opposition leader into jail for good measure.  The President is a soldier who took power in a military coup, is indicted for genocide in Darfur by the International Criminal Court (the only serving head of state to have been charged with crimes against humanity), and is said to have US$9 billion in London banks.  It sounds like the plot of a Sacha Baron Cohen movie.  Unfortunately not.

Continue reading “2018: Not Such a Good Year (Africa)”

2018: Not Such a Good Year (Environment)

The stats were not good.  The world’s population grew by more than 80 million, with over 140 million births, taking the total to 7.7 billion, of whom 41% live in India, Pakistan and Bangladesh (formerly part of India), China and Tibet.

The combined population of China and Tibet still exceeds India’s, but only by 56 million.  Their combined population was up .41%, while India’s was up 1.11% (both growth rates much less than Australia’s).

Australia’s population ticked over 25 million, increasing by a person every 83 seconds.  According to Worldometer, Australia’s population increase of 1.32% is higher than just about any other wealthy country outside the Middle East.  More than two-thirds of us live in the capital cities (but more Queenslanders live outside Brisbane than live in it).  Victoria accounted for 37% of Australia’s population growth, more than that of NSW, South Australia, Tasmania, the Northern Territory and the ACT combined. 

Continue reading “2018: Not Such a Good Year (Environment)”

2018: Not Such a Good Year (Obituaries)

Aretha Franklin, a photograph from ‘The Guardian’

It was not a year of celebrity or otherwise notable deaths. The Grim Reaper must have saved them for a year sparse of spectacular executions by Trump buddies, which this year was not.

Aretha Franklin, the Queen of soul and a civil rights activist, and Stephen Hawking, both of whom lived amongst the stars, probably topped the international list of regular passings. Hawking was a great supporter of British Labor, of universal health care, nuclear disarmament, Al Gore’s presidential campaign, and anti-Brexit. He actively championed action against climate change.

Continue reading “2018: Not Such a Good Year (Obituaries)”

2018: Not Such a Good Year (Professional Misconduct)

Saud al-Qahtani

Oh what a year for professional misconduct:

Michael Cohen President Pussygrabber’s lawyer and fixer, Michael Cohen, exposed incidentally by the Mueller investigation as an outright crook, was sentenced to three years in America’s particularly unpleasant slammers for (amongst other things) inexplicably paying off women who allegedly falsely claimed to have had extra-marital relations with the President, a violation of campaign finance laws. One of the women, ‘Stormy Daniels’, sued the President for defamation over one of his tweets ‘A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!’ She said it insinuated that she had lied about the man whom she sketched having threatened her against going public with her allegations. The President had the suit struck out under a law designed to protect against strategic lawsuits against public participation (SLAPP), the judge ruling that the tweet was ‘rhetorical hyperbole’ protected by the first amendment. Ms Daniels is to pay the President’s legal fees (the claim was for 580 hours at up to US$840 per hour) fixed at nearly US$300,000.

Brett Kavanough The misconduct against Judge Brett Kavanough must not have been established to the satisfaction of the senate committee which confirmed President Pussygrabber’s nomination of the arch-conservative whose appointment imperils Roe v Wade. The hearing was excruciating in its hopelessness (highlights here); senators have no idea how to cross-examine.

Continue reading “2018: Not Such a Good Year (Professional Misconduct)”

2018: Not Such A Good Year (Me, War, Terror)

If you want to read a real journalist’s wrap of The Year, see The Age here, another from The Age here, 7:30’s, the Saturday Paper’s here, or for a cheerier wrap, see The Guardian’s Brigid Delaney here.  And this New York Times wrap of the year in photojournalism is great. I must acknowledge the heavy debt of what follows to Wikipedia, without which extraordinary resource much of which follows could not have been written by me.

Me, myself I had a lovely year, though I must be getting old: a child from my reader’s course became a QC (congratulations Dr Button QC); a kid below me at school is the Dean of Law at the University of Singapore (Professor Simon Chesterman); a youth I used to have morning tea with in Law School, Professor Carolyn Evans, is already an ex-Dean of the Melbourne Law School; her boyish husband who was admittedly quite good at mooting is the Solicitor General of Australia (Stephen Donahue QC); my body got grumpy.

Continue reading “2018: Not Such A Good Year (Me, War, Terror)”

2017: Not Such a Good Year

(See Crocs, Spiders, Snakes, Sharks below)

Not such a good year.  Much appeared to happen in the United States, but the story is still emergent and so I might save that for next year.  Furthermore, query what actually happened, as Tom Switzer pointed out recently.  He also pointed out that Tump’s approval ratings were on par with Merkel’s, Turnbull’s, and Theresa May’s.

Nukes 2017 was a Korean kinda year, mostly because of the ‘BBC Dad’ interview of Associate Professor Robert E. Kelly, an expert on North Korea, a resident of South Korea, and a little bit because nuclear war kept threatening to erupt there (though the two Koreas are having their first public talk about peace in a long time).  The memory of having children of the Professor’s children’s age is sufficiently fresh for me that the clip is one of the few things that makes me laugh out loud, over and over.  It got better as it was revealed over time that the Professor was sporting jeans below his suit jacket and tie and would have looked even more ridiculous if he had got up, and it was enhanced by the wonderful mess generated by commenters  mistakenly assuming the Professor’s wife was a maid. 

Of course there was a serious undercurrent to this impeccable vaudeville which made it funnier.  Or rather there was a serious undercurrent (possible nuclear annihilation) to the vaudeville of two leaders with bad hair to which the story was ancillary.  Trump tweeted ‘I told Rex Tillerson, our wonderful Secretary of State, that he is wasting his time trying to negotiate with Little Rocket Man.’  Little Rocket Man infuriatingly let off a new nuclear weapon each time Trump advised that he was prepared to ‘totally destroy North Korea’ (e.g. in an address to the United Nations), with ‘fire and fury and, frankly, power like the world has never seen’.  Given that North Korea might very well kill and injure 9 million people in Tokyo and Seoul very promptly upon being attacked (compare Hiroshima and Nagasaki’s about 200,000), Trump’s talk was hopefully absurd, but I doubt the Japanese thought it was very funny. Seoul is just 55 km from the border and there are batteries and batteries of conventional weapons pointed at it just over the border such that Pyongyang has an unusually profound non-nuclear deterrent to nuclear attack.

The North Korean said ‘I will surely and definitely tame the mentally deranged US dotard with fire.’  An evangelical adviser to Trump preached ‘In the case of North Korea, God has given Trump authority to take out Kim Jong Un. ‘  

Last year saw reports that Tillerson had called Trump a ‘fucking moron’ after a meeting in which Trump expressed his wish to increase the US’s nuclear arsenal from 4,000 to 32,000 nukes.  Trump also railed against the agreement between Iran and the US, UK, Russia, France, China, and Germany by which sanctions were lifted in return for Iran committing not to build a nuclear bomb and to suffer intense monitoring.  Fitting then that Melbourne’s International Campaign to Abolish Nuclear Weapons, a bunch of doctors and Melbourne Uni types, won the Nobel peace prize in Oslo after 120 nations (not including any state with nuclear weapons, any NATO state, or Norway) adopted the Nuclear Weapons Prohibition Treaty.  Africa, Latin America and most of South-East Asia, nuclear-free zones, promised en bloc not to assist the development, threat of the use of, or transport of nuclear weapons and to work towards a nuclear weapon free world. Continue reading “2017: Not Such a Good Year”

Re-raising complaints-(not)

In Cahill v Victorian Legal Services Commissioner [2017] VSC 177 (Keogh J); [2017] VSCA 283 (Kyrou JA with whom the other Justices of Appeal agreed), the previous Victorian Legal Services Commissioner closed a disciplinary complaint against a solicitor once related proceedings were commenced. Despite then being functus officio, at the complainant’s request he ‘re-raised’ the complaint once the proceedings ended in what he regarded as inconclusive circumstances.  He prosecuted the practitioner, who successfully sought judicial review on the basis that the Commissioner was not entitled to have a second go at the investigation.  The Commissioner appealed unsuccessfully to the Court of Appeal.  Apparently, that was the end of it.

This case reaffirms the principle that statutory authorities cannot revisit their final decisions because they change their mind or come to appreciate that they are wrong: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 603; Semunigus v Minister for Immigration [2000] FCA 240; (2000) 96 FCR 533, 540 [55]; Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 (20 December 2016) [48] (Nettle JA). Continue reading “Re-raising complaints-(not)”

LPUL’s transitional provisions

Nothing is quite as un-fun as argument about transitional provisions, but it is often unavoidable, since disciplinary tribunals are usually creatures of statute, and if the new or the old statute is mistakenly invoked, the Tribunal may purport to exercise jurisdiction which it does not have, with the result that its orders will be nullities which may be disregarded even absent an appeal: The Herald and Weekly Times Pty Ltd v Victoria [2006] VSCA 146 at [33].  I suspect the people who dream up these things would say that counsel have an obligation to assist Tribunals to avoid over-reaching.

This post principally considers Griffin v The Council of the Law Society of NSW [2016] NSWCA 364, a judgment of Sackville AJA with whom Ward and Gleeson JJA agreed, and Council of the NSW Bar Association v Nagle [2018] NSWCATOD 104, a decision of the Hon F Marks, Principal Member.

If you have been the subject of disciplinary orders since 1 July 2015, you might want to dust them off and check whether the correct Applicant sought them under the correct legislation.  If not, you might be entitled to disregard them, and require their removal from the disciplinary register.

To save you from having to puzzle over the detail of what follows, here is my summary, which assumes that you understand that Schedule 1 to the Legal Profession Uniform Law Application Act (Vic), which Schedule I refer to as ‘the LPUL’, stands as a law of NSW by virtue of the Legal Profession Uniform Law Application Act (NSW): Continue reading “LPUL’s transitional provisions”

Costs recovery in pro bono cases in Victorian state courts: Part 3

I was asked to talk to my colleagues at the Victorian Bar recently in relation to costs recovery in pro bono cases. It is now more certain that costs may be recovered from the other side by victorious litigants who engage their lawyers on the basis of a greater variety of pro bono arrangements. That is as a result of both recent developments in the judge-made law and changes to the Supreme and County Courts’ rules. Over the last few days, I published parts one and two of the paper I distributed. What follows is the third and final part, which considers different kinds of client-favourable costs agreements (some quite esoteric) and analyses their indemnity principle implications.  It also provides some thoughts on how to draft costs agreements for work done otherwise than on a purely commercial basis, and how to ensure counsel get paid. Part one is here and part two here

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Species of client-favourable costs agreements

Options available to lawyers who wish to do work at less than their usual rates for non-commercial reasons include:

(a) not making any arrangements as to fees at all;

(b) charging your usual rates and leaving it to your discretion whether you send out a bill, or whether you forgive some or all bills given in the event that certain outcomes obtain;promising to do the work for free;

(c) agreeing to do the work at a reduced rate;

(d) doing the work on a no win = reduced fee basis;

(e) doing the work no win = no fee;

(f) doing the work no costs order = no fee;

(g) doing the work on no actual recovery of costs / compensation / costs or compensation = no fee basis. Continue reading “Costs recovery in pro bono cases in Victorian state courts: Part 3”

Costs recovery in pro bono cases in Victorian state courts: Part 2

I was asked to talk to my colleagues at the Victorian Bar recently in relation to costs recovery in pro bono cases. It is now more certain that costs may be recovered from the other side by victorious litigants who engage their lawyers in a greater variety of pro bono bases. That is as a result of both recent developments in the judge-made law and changes to the Supreme and County Courts’ rules. Over the next few days, I will publish, in digestible chunks, the paper I distributed. What follows is the second part. Part one of this article is here.

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Case law

The Court of Appeal declared that the indemnity principle is not offended by a costs agreement which is conditional on the client obtaining a costs order in Mainieri v Cirillo (2014) 47 VR 127. In that case, the successful party’s solicitors’ costs agreement said: Continue reading “Costs recovery in pro bono cases in Victorian state courts: Part 2”

Supreme Courts tell legal regulators their limitation defences are bollocks

In England, the stern sounding Bar Standards Board brought disciplinary proceedings against a black barrister, Portia O’Connor, the first barrister to become a partner in one of the very modern alternative business structures they allow in old Blighty these days.  They succeeded but the decision was overturned on appeal and the appellate tribunal was not complimentary about the procedures of the Board.  So the barrister sued the Board for discrimination.  The regulator relied on limitation defences. The Supreme Court has just decided that the defences were misconceived: O’Connor v Bar Standards Board [2017] UKSC 78.  Should be an interesting case.

Meanwhile, in Kaczmarski v Victorian Legal Services Board [2017] VSC 690 the Board, represented by an external firm of solicitors and experienced counsel, tried unsuccessfully to shut an unrepresented shareholder of an incorporated legal practice out of an appeal against the reappointment of an external manager to the practice.  It did so by arguing for an extraordinarily strict and as it turned out quite wrong approach to what it said was an un-extendable 7 day time limit for appealing.

I must say I’m puzzled what all the fuss was about, in view of s. 155 of the Legal Profession Uniform Law Application Act 2014.  That section makes clear that nothing in the LPUL limits or restricts the Supreme Court’s administrative law jurisdiction, so that the reappointment of the external manager might have been challenged by judicial review, for which order 56 of the Supreme Court’s rules provides a 60 day extendable time limit, or under the Administrative Law Act 1978 which provides a 30 day time limit.  But neither side seems to have made argument by reference to it.  The bases on which the decision might have been challenged, and the relief available might well have been different between the three avenues of challenge, of course. Continue reading “Supreme Courts tell legal regulators their limitation defences are bollocks”

Costs recovery in pro bono cases in Victorian state courts: Part 1

I was asked to talk to my colleagues at the Victorian Bar recently in relation to costs recovery in pro bono cases.  It is now more certain that costs may be recovered from the other side by litigants who engage their lawyers in a greater variety of pro bono bases.  That is as a result of both recent developments in the judge-made law and changes to the Supreme and County Courts’ rules. Over the next few days, I will publish, in digestible chunks, the paper I distributed.  What follows is the first part.

The issue

The amendments to Order 63 of the Supreme Court’s rules and of Order 63A of the County Court’s rules are designed to overcome one aspect of the operation of the indemnity principle in costs law.

Simply put, costs are awarded as a partial indemnity to a successful party for that party’s liability to pay their own lawyers and witnesses and for such payments already made.[1] The indemnity principle says that the amount allowed under a costs order may not exceed the total of those liabilities. Put most pithily, the loser’s costs liability cannot be greater than the winner’s fees and disbursements. Continue reading “Costs recovery in pro bono cases in Victorian state courts: Part 1”

Holy moly! VCAT finds costs agreement void for ambiguous disclosure then orders solicitors to content themselves with original estimate

VCAT has published reasons, the first I’ve come across, dealing with the allowance of costs under a costs agreement void for disclosure defaults: Sleath v RGL [2017] VCAT 1998.  Though they do not say so, it seems that the principal logic of the determination, under the same principles as the Costs Court is required to have regard to in taxations, was to keep the practitioners to their original written estimate notwithstanding subsequent oral updates. Scary stuff for lawyers if other decision makers reason similarly.  Whether the Costs Court will reason similarly is an interesting question.  It may be more likely that the Legal Services Commissioner will feel compelled to adopt similar reasoning in those costs disputes which it determines itself rather than referring off to VCAT.  Good news for clients and third party payers if so. Continue reading “Holy moly! VCAT finds costs agreement void for ambiguous disclosure then orders solicitors to content themselves with original estimate”

Suit for fees goes badly wrong but could have gone much worse

An ACT practitioner seems to me to have been skilfully represented, escaping with findings of unsatisfactory professional conduct, a reprimand and a fine.  The decision in Council of the Law Society of the ACT v LP [2017] ACAT 74  just shows how far cooperation and a persuasive articulation of remorse and insight can go.

The practitioner illegally sued his former client for fees in circumstances where he knew that the very person who had instructed him, a director of the client who had given a director’s guarantee and so was a third party payer, had sought taxation.  Generally speaking, solicitors cannot sue their clients for fees once the client has commenced taxation.

In support of applications for default judgment, and to wind up the corporate client, the practitioner represented to the court, including on oath, that there was no dispute about fees.  Given that the director, a builder, was the alter ego of his building company client, the proposition that the company did not dispute the fees attracted a charge of professional misconduct by swearing a false affidavit, a thoroughly serious allegation.  By a plea bargain, it was downgraded to a weird charge of unsatisfactory professional conduct (varied by me for readability):

The practitioner breached his general law ethical duty of professional conduct or the duty owed to the director of his former client pursuant to Rule 1.1 of the Legal Profession (Solicitors) Rules 2007 to continue to treat the former client fairly and in good faith, and not to treat it otherwise than in an honourable and reputable manner during the dispute over costs owed by the director or the former client.

Rule 1.1 was itself a weird old rule:

‘A practitioner should treat his or her client fairly and in good faith, giving due regard to the client’s position of dependence upon the practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a practitioner.’

Perhaps the horribleness of the original false affidavit charge’s drafting contributed to the prosecution’s willingness in the end to back away from it and retreat into the weirdness set out above.  The original charge (again, varied by me for readability) was: Continue reading “Suit for fees goes badly wrong but could have gone much worse”