The Supreme Court of Kansas yesterday published a judgment — In the Matter of E. Thomas Pyle, III — which is interesting on a number of fronts. The first is that Pyle was disciplined for writing a letter which criticised an adverse disciplinary ruling against him. The second is that he was disciplined for failing to complain about an opposing lawyer having formed the view that the opposing lawyer had engaged in misconduct (but when he did belatedly complain, the complaint was apparently not made out). Victoria has just such a dob-in rule, but I have never before heard of any lawyer being disciplined for failing to report a colleague to disciplinarians. The third is that the lawyer was originally disciplined for breaching the rule against direct contact with his opponent’s client by facilitating his own client’s direct contact with the other side, a concept I have difficulties with. And the fourth is a cracker. Pyle was found to be a “Clintonesque” witness. Continue reading “Kansas Supreme Court on the rule against direct communication with opponent’s clients”
Depression in lawyers: Australia and America
Legal Blog Watch has sent these details spinning around America’s computer savvy legal fraternity:
‘Lawyers Down Under Also Down
Most of us are already familiar with the sad fact that lawyers in the United States are more prone to depression than any other profession. But I was surprised to learn from this post at Legal Pad that 16 percent of Australian lawyers suffer from severe to moderate depression, which ranks them as the most depressed of Australian professionals, just above insurance underwriters. Continue reading “Depression in lawyers: Australia and America”
New English decision on without prejudice privilege and mediations
Herbert Smith, an English firm, have written a little note about Brown v Rice & Patel [2007] EWHC 625 (Ch). The decision does not come to any startling conclusions, but recaps the more recent English decisions on without prejudice privilege, and is accordingly worth noting. There was a dispute about whether a settlement had been arrived at. The Court found that it could have regard to communications at mediation — notwithstanding that they were recognised to be privileged under negotiation, or “without prejudice” privilege at common law — in order to ascertain whether an agreement had been arrived at. None had, the Court found, because the mediation agreement required a signed written document as a condition of the existence of any final settlement, and the mediation agreement had not been amended in that regard. But the Court declined an invitation to recognise a ‘mediation privilege’ which would throw a blanket of privilege over everything said or done at mediation which would admit of fewer exceptions than the common law negotiation privilege. The Court also confirmed the exception to the privilege ‘where one party is intended to and does in fact act following a clear statement made by the other party in the negotiations giving rise to an estoppel.’ The other cases referred to in the note are: Continue reading “New English decision on without prejudice privilege and mediations”
Judge Bowman temporary VCAT President
The Age reports today that Judge Bowman, the more senior of VCAT’s 2 Vice-Presidents, has been appointed Acting President pending the appointment of a permanent President. The Age speculates who might be appointed too.
Useful propositions from Z v New South Wales Crime Commission
These propositions from Z v New South Wales Crime Commission [2007] HCA 7 may be useful in relation to matters more generally than for understanding the basis of the Court’s decision: Continue reading “Useful propositions from Z v New South Wales Crime Commission”
High Court on whether client’s identity can be privileged
In Z v NSW Crime Commission [2007] HCA 7, a man came to a lawyer and sought advice about the implications of anonymously passing to police information about a suspected criminal. The solicitor gave advice, and the client authorised the communication of the information to the police. The solicitor passed it on without advising his client’s identity. Years later, after the suspected criminal allegedly attempted to murder someone, the NSW Crime Commission purported to compel the solicitor to advise the client’s identity and how he could be contacted. The High Court said the solicitor must do so, as did every other judge along the way. The ratio of the decision is that any privilege which did exist over the client’s name and contact details was expressly abrogated by a statute about the Crimes Commission. As to whether there was any privilege in the first place, though, two judges held that the client’s identity was privileged, two held that it was not, and one — the Chief Justice — did not express a view. Update: Deacons’s analysis here. Continue reading “High Court on whether client’s identity can be privileged”
Free notifications of new High Court and Vic Supreme Court cases; client legal privilege watch
I found some useful web resources yesterday. First, Peter Faris QC publishes blogs which do no more than consolidate in one place all the court-provided information (what I think of as the unreported version of a headnote) about the decisions of the High Court, Supreme Court of Victoria, and Victorian Court of Appeal. Each court’s decisions have a separate blog:
Victorian Court of Appeal blog
Supreme Court of Victoria blog.
They make searching across only the keywords a snap, a feature which Peter told me he uses extensively in his own research, but more importantly from everyone else’s point of view, provides an easy way to be alerted automatically to each new decision of each court (though there is a lag between the courts’ publications of their decisions on the web and Faris cutting and pasting it into his blogs). The blogs have instructions on how to set up the automatic notifications using RSS feeds which sound complicated but which either you or one of your nieces will be able to set up without any difficulty. This is a very simple application of technology providing significant benefits.
From Faris’s High Court Blog, I learnt of a new decision of the High Court on legal professional privilege, Z v New South Wales Crime Commission [2007] HCA 7 (see the next post). Then a Google search on that decision resulted in a new find: the Law Council of Australia’s Client Legal Privilege Watch, which digests new decisions about client legal privilege (also known as legal professional privilege).
Chinese wall crumbles in big litigation and Optus loses its lawyers 2 years in
Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2007] NSWSC 350 is a decision with wonderfully appalling facts. In the rush to agree consent orders before a directions hearing one morning, a megafirm sent a document to the other side which handed proof on a platter of a flagrant breach of a Chinese wall put in place less than 2 years earlier which had been unsuccessfully attacked by the other side at the time. Partners signing letters and court documents in large firms to the exclusion of all others is generally said to be a risk management exercise. In truth, a partner with no idea about a file will often be a worse choice of responsibility taker than a more junior lawyer who does know a lot about the file, as this sorry tale well illustrates. This was one of those moments when the file’s supervising partner was unavailable, and a solicitor cast around for another partner, any partner, to sign a document. One feels for the firm in this situation, between a rock and a hard place: it either says “Yes, the partner signed it but he didn’t really look at the document,” or “He gave it all appropriate attention despite the hurry, and inexplicably failed to notice the obvious fact that it was a document in the case he went to court about and promised to have nothing to do with.” The firm plumped, more or less, for the second alternative. Here, the Chinese wall had supposedly been operational for nearly 2 years between people in one location used to working with each other.
I hazard to guess that this particular megafirm would be keen to avoid further publicity for ethics violations after an unlucky run recently. So the announcement “I inadvertently signed orders on behalf of the new client in the matter which I swore the year before last in that conflict of interest hearing I would and could ensure I would have nothing to do with” would have been met at that week’s partners’ lunch with foul temper if not foul language. Continue reading “Chinese wall crumbles in big litigation and Optus loses its lawyers 2 years in”
High Court speaks on accrual of cause of action for negligence in pure economic loss case
On Friday, the High Court published a near unanimous judgment in Commonwealth of Australia v Cornwell [2007] HCA 16 on the accrual of a cause of action for negligence in which pure economic loss was claimed. I am yet to read the judgment properly, however it is apparent that a cause of action in negligence was found to have accrued decades after the parallel contractual cause of action, which was complete upon breach of a duty of care owed by the Commonwealth to the plaintiff in 1965. Callinan J dissented, saying the cause of action was well and truly statute barred. Neither of the decisions discussed in recent posts, in which a defendant-friendly approach was taken, Winnote v Page, or Jessup v Wetherell, are considered in the decision.
Equitable damages for breach of confidence, tortious invasion of privacy, breach of statutory duty: privacy legislation
In Jane Doe v ABC [2007] VCC 281, the County Court’s Judge Felicity Hampel granted a cool quarter of a million dollars in damages for the tort of invasion of privacy, for breach of the statutory duty in s. 4(1A) of the Judicial Proceedings Reports Act not to publish identifying details about victims of sex offences, and for breach of an equitable duty of confidence the ABC was found to have owed to the complainant in a rape trial it reported on. This is an important decision in the law of confidential information, 22,000 words long and the product of 10 months’ work by her Honour. I cannot confess to having read it carefully yet, but Blakes have helpfully written a little note of it. I wonder whether Alan Jones’s lawyers have read this decision yet. Further, I wonder whether the child witness’s parents have read it. Just for the sake of having links to them on this blog, the other decisions on privacy as a cause of action post-ABC v Lenah Game Meats (2001) 208 CLR 199 (see the MULR commentary here) are: Continue reading “Equitable damages for breach of confidence, tortious invasion of privacy, breach of statutory duty: privacy legislation”
No plans for retirement in centenarian lawyer
Richard Bird, a Salt Lake City sole practitioner turned 100 the other day, and still works 9 to 5, Monday to Friday. I’d love to know how many conduct complaints he’s fielded over his 70 year career.
1 in 4 law graduates in fields “clearly unrelated to law”
The Age published a Kenneth Nguyen article today out of the blue about the numbers of:
- Australian law schools — 30 years ago there were 12, now there are 30;
- people pursuing law degrees — which the article suggests is the modern day arts degree; and
- people not going on to practice law — 1 in 2 — or even work in law related fields — 1 in 4.
I doubt the social utility of people spending 3 or 4 years in a course as vocational as law without any intention to practise. People study maths and chemistry because the skills are transferrable. So too, apparently, law. No one recognises the enormous social inefficiency of people studying one thing in order to get some spin-off benefit. No one asks why education should not be devised to teach the skills directly. I always marvel that the one thing people who studied maths do not necessarily come away with is a facility in mental arithmetic and the approximation of sums, the two things which might actually be of benefit to them in the real world. And then there are the law students who come away from law school without an ability to write. Don’t get me started.
Misconduct charge no. 21 against Victorian silk stayed as abuse of process
The latest and possibly last chapter in the tribulations of Victoria’s most senior female silk is to be found in M v VCAT [2007] VSC 89, a decision of Justice Mandie. The barrister was charged on 4 July 2005 with 24 charges of misconduct, and ended up after a hearing of the first half of the charges with a finding of only 4 counts of unsatisfactory conduct. All but one of the second half were abandoned, but the Bar, as prosecutor, sought to amend the last remaining charge so as to substitute an allegation of unsatisfactory conduct for the original charge of misconduct. VCAT found it had no power to grant leave to amend a charge, and the barrister convinced the Supreme Court to stay the hearing of the last charge as an abuse of process, VCAT having refused to do so. It was an abuse because the Bar wished to proceed with the misconduct charge not so as to make out an allegation of misconduct, but so as to provide a vehicle for a finding of unsatisfactory conduct under a statutory power which empowered VCAT to make a finding of unsatisfactory conduct after hearing a misconduct charge. Justice Mandie found:
‘[58] … It would bring the administration of justice into disrepute to permit the Bar to prosecute a charge of misconduct while at the same time saying the opposite, namely, that it was not advancing a case of misconduct or seeking a finding of misconduct. It is an entirely different position to that which might have arisen had the charge been proceeded with and, after all the evidence was in, the Bar conceded that the evidence supported only a lesser charge [i.e. unsatisfactory conduct]. The use of a misconduct charge simply to obtain a finding of a lesser charge when the case for misconduct is completely disavowed before the hearing commences is, I think, a misuse of the statutory procedure and, indeed, as the plaintiff submitted, contrary to the spirit of the Act, given the requirement that the Bar be satisfied when bringing the charge that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of misconduct. If the Bar has reached the view, as it has, that a case of misconduct cannot be made out and it does not seek to do so, such a charge ought not as a matter of justice and fairness be heard.’ Continue reading “Misconduct charge no. 21 against Victorian silk stayed as abuse of process”
Abuse of process and disciplinary tribunals
In M v VCAT [2007] VSC 89, discussed in the next post, the Supreme Court of Victoria’s Justice Mandie provided a useful treatment of the law relating to abuse of process as applied to disciplinary tribunals. It is set out below in full. Continue reading “Abuse of process and disciplinary tribunals”
Affair over 6 years and a $100,000 payment earn psychiatrist an 18 month holiday
H v Medical Practitioners Board of Victoria [2007] VCAT 526 was a rehearing of a case before the Medical Practitioners Board (the decision of which is here). VCAT, constituted by Vice President Harbison and Associate Professor Davis, reduced the severity of the outcome of an unprofessional conduct prosecution for an intimate relationship with a former patient, which continued after the psychiatrist had paid her $100,000 conditional on her not suing him or lodging a disciplinary complaint. VCAT suspended him for 18 months in lieu of the deregistration imposed on him by the Board, the majority of which had concluded that:
‘Dr [H] is unlikely to engage in unprofessional conduct of the nature of a sexual relationship with a patient or former patient again. … However we note that some of factors in Dr [H’s] personal background that formed the context within which this relationship developed remain unresolved. … on balance, … there is likely to be a benefit to the public in Dr [H] continuing to practise his profession. However, through our knowledge as members of this Board, we are aware that the predictive capacity of bodies such as ours in relation to repetition of sexual misconduct is poor. Therefore it is incumbent upon us to be cautious.’
That conclusion was recounted in VCAT’s judgment as a finding ‘that it was unlikely that Dr Honey would be likely to engage in unprofessional conduct of the nature of a sexual relationship with a patient again [sic.]’.
The Board’s decision is notable for containing a dissenting opinion. Disciplinary tribunals are often constituted by panels of lawyers and non-laywers, but I do not recall ever seeing a legal disciplinary tribunal publish majority and minority reasons. Continue reading “Affair over 6 years and a $100,000 payment earn psychiatrist an 18 month holiday”
Rumour is, Legal Service Commissioner yet to lay a charge; VCAT news
An elder statesman of Victoria’s professional discipline community quietly observed to me the other day that Victoria’s Legal Services Commissioner, Victoria Marles, is yet to lay a disciplinary charge before VCAT. That’s an average of none per month over the 16 months her office has existed. In view of the fact that she is required by s. 4.4.13(2) to prosecute every case of intentional or reckless breach of the Legal Profession Act, 2004 or of the solicitors’ or barristers’ conduct rules, this state of affairs, if accurate, suggests that Victoria’s barristers and solicitors are behaving as never before, all of a sudden. The Register of Disciplinary Action certainly does not suggest a high level of activity. Monday’s Law List for VCAT shows Senior Member Howell, formerly the Legal Profession Tribunal’s Registrar, occupied with a Legal Practice List matter, but Member Butcher, formerly that Tribunal’s Deputy Registrar, sitting in other lists, as seems to be a common occurrence.
Interestingly, the redoubtable Daming He is back on Monday in VCAT-pretending-to-be-the-Full-Legal-Profession- Tribunal, presided over by Vice President Bowman. Bowman VP’s new co-Vice President is Marilyn Harbison. Many practitioners know her Honour from when she presided for many years over County Court civil directions days. Vice President Harbison was appointed by the Kennet Government to the County Court in January 1996 after 18 years’ full time legal practice. Her areas of expertise in practice were building and allied disciplines and insolvency, however she has been both a member of a lawyers’ disciplinary tribunal, and a conciliator of solicitor-client disputes under the Legal Profession Practice Act. At the time of her appointment, she was the President of Victoria’s Public Interest Law Clearing House. Now she heads up one of VCAT’s three divisions, the Human Rights Division. Her Honour has already decided a salacious professional discipline case, described in the next post, along with a number of discrimination cases and Working With Children Act cases.
And of course the other news is that Justice Morris has resigned as VCAT’s President, four years into his 5 year term, and has resigned his lifetime appointment as a judge of the Supreme Court of Victoria in favour of practising at the Bar, though he will not be appearing before the Supreme Court or VCAT for 4 years because of the conduct rules governing barristers. He joins a growing list of retirements from senior judicial office in Victoria after only short stints in favour of a return to the Bar which now includes Justice Tony Pagone of the Supreme Court and Justices Neil Young and Ron Merkel of the Federal Court. More to come, too, I hear.