Another unrepresented lawyer bites the dust in WA

The lessons against self-representation in discipline cases are coming almost too thick and fast for me to digest them. Here is The West Australian‘s short article on the striking off recently of Vijitha De Alwis, a solicitor who played a part in a legal saga involving an attempt to deport a non-citizen Briton convicted of crimes, Mr Taylor. The Full Bench of the Supreme Court of Western Australia struck De Alwis off the roll of practitioners on 29 September 2006 in Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 following a report by the Legal Practitioners Disciplinary Tribunal. It is a case about receiving trust monies without holding a trust account, like the Victorian case in this post, but it is as much a case about a self-represented person shooting himself in the foot by:

  • serial non-compliance with rules and orders;
  • repeated bias applications (he said the Legal Practitioners Discipline Tribunal “descended to the dust of the Arena and blinded itself”); and
  • repeated ill-got-up adjournment applications on health grounds (one was based on a medical certificate in the following terms: “This gentleman suffers from numerous medical problems and is currently unfit to stand trial or an inquiry”; on another occasion “He said that he had medical advice to the effect that, if he continued to handle his case he ‘might end up having a severe Heart Attack or a massive Stroke that will be fatal’).

One of his problems was that there was ample evidence of him appearing in courts as advocate (or attempting to) at around the same times as he said he was unable to face trial in the proceedings against him. Another was that his written submissions as to why he was too ill to make written submissions disproved what they sought to argue (see [100]). The Full Court said:

“111 … the practitioner’s unfitness for practice is amply demonstrated, in addition, by the manner in which he has conducted himself in these proceedings. His affidavits have been replete with argumentative material, often including allegations of gross misconduct against judicial officers, practitioners and court staff, none of which appear to have any foundation. Moreover, as will be apparent, he has repeatedly failed to comply with time limits and directions imposed by the Court.”

De Alwis had acted for an incarcerated man whose permanent residence had been cancelled and was set to be deported. The man’s wife complained. De Alwis received about $10,000 into his personal and office accounts before doing work for which he later claimed to be entitled to that sum. He did not have a trust account. He had no valid costs agreement. He rendered no bill. He gave no trust statement. All he had done, it was said, was:

“prepare an application and a one-page supporting affidavit to the Federal Court, attend directions hearings in the Federal Court on six occasions during the period January to June 2002; prepare an application to the High Court and a supporting affidavit (the application was never filed and the affidavit was never sworn) and attend to other incidental matters on Mr Taylor’s behalf.”

The work did not justify a fee of about $10,000. The Tribunal found that De Alwis had fraudulently converted the seven instalments of money paid to him by or on behalf of Mr Taylor to his own use and that he was not a fit and proper person to remain on the roll of practitioners.
De Alwis

“advanced a number of possible explanations for his conduct … He said that he had lacked familiarity with the rules relating to solicitors’ trust accounts. He spoke of delays with banks concerning the opening of a trust account. He said that he had performed legal services to a value which exceeded the amounts paid to him by Mr Taylor. He said that the agreed sum of $10,900 did not include disbursements, of which there had been many. He said that, under the Federal Court scale, Mr Taylor would have had to pay more than the money already paid.”

When the matter reached the Supreme Court, there was bedlam, and not for the last time:

“30 The practitioner said that lawyers were “frightened to accept instructions” to represent him because of the “unfair and unprofessional practices” engaged in by counsel for the Complaints Committee in an attempt to “curry favour with” a judge of the Supreme Court who had referred a matter concerning the practitioner to the Complaints Committee and who was “gunning for” him. He said that the Full Court had no jurisdiction to hear the strike-off proceedings until a decision had been made on his application for a rehearing. He also said that an application for a writ of certiorari against the Tribunal was pending in the Supreme Court and that this required to be determined before the Full Court could hear the strike-off proceedings. In fact, there was no such application pending, no application for a writ of certiorari against the Tribunal having been filed in respect of its decision to refer the matter to the Full Court.

31 During the course of the hearing, the practitioner collapsed and was taken from the Court by ambulance officers. The matter was adjourned.”

Two of the judges had chaired meetings of the Legal Practitioners Complaints Committee concerning other matters involving De Alwis before they became judges. The judge who had chaired most meetings disqualified himself. Pullin J, who had “chaired a meeting at which it was resolved that information regarding Mr De Alwis be published to the Law Society of the Northern Territory” did not (see [63] to [68]).

De Alwis was struck off, as recommended by the Legal Practitioners Complaints Committee:

“109 It seems to us that in this case the practitioner’s conduct was so serious a breach of his obligations as to demonstrate his unfitness for practice. Not only did he reveal no understanding of his obligation to keep proper accounts and records and, more fundamentally, to keep his own money separate from that held on trust for his client and to account to his client for that money, he has also continued to argue that he has done nothing wrong and that the money was owed to him for the large amount of work that he claims to have done on behalf of his client. We have said that the evidence before the Tribunal, and accepted by it, reveals that he had done no more than prepare pro forma applications and short supporting affidavits in the Federal Court, make five short attendances at the Federal Court (three of which were brought about by his failure to comply with orders of that Court), engage in some incidental conduct and prepare an incompetent application for special leave to the High Court. While he asserts that he performed work on other matters on behalf of Mr Taylor, Mrs Taylor’s evidence was that the money paid to the practitioner was solely in relation to his services concerning the Minister’s decision to cancel Mr Taylor’s permanent residence visa.”

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