The English have promulgated a new set of professional conduct rules for solicitors, which commence tomorrow. Here they are, and here’s a Law Society page with associated resources. I have only scanned them, but they seem to be beautifully written: clear, detailed, without unnecessary complexity, and graced by helpful commentary. Some of them seem sensibly to record stuff that probably doesn’t strictly need to be in rules of this kind, but which it is very sensible to include. As a professional negligence lawyer, I would love it if our solicitors’ rules said this, as clearly as this: Continue reading “Souped up conduct rules commence in England”
Legal Services Commissioner publishes annual report
The Legal Services Commissioner’s website is growing some content. Her annual report for the part-financial year ending 2006 is published there. In summary:
- For those who enjoy the suffering of others, commencing at p. 22 there is a list of all the adverse disciplinary findings made by VCAT’s Legal Practice List, and it names the practitioners involved;
- The Commissioner’s office has 3 executives in addition to Victoria Marles: Janet Cohen (formerly the Deputy Legal Ombudsman), David Forbes, and Diana Gillespie; 9 legal staff 2 of whom are part time; (2 out of the 13 mentioned are blokes) and 19 administrative staff;
- She received 1,218 complaints under the new Act (6 a day), of which 664 were only disciplinary (55%), 310 were only civil (25%), and 244 were both (20%) (all of the complaints figures below are only about the new Act complaints received, except where indicated);
- Only 33 were against barristers (3%);
- 238 involved a costs dispute (20%), a surprisingly low figure, especially given that 553 of the complaints were about costs or bills (45%);
- Only 117 involved a pecuniary loss dispute (10%) which shows that two-thirds of the 322 complaints characterised as being about “Negligence — including bad case handling and advice” were dealt with as disciplinary complaints or costs disputes which is most surprising;
- Only 719 were handled by the Commissioner (59%) — the rest were referred to the Law Institute and the Bar for investigation and recommendation as to ultimate decision to be made by the Commissioner;
- 67% of those delegated to the Law Institute involved a disciplinary complaint;
- 14% were about wills and estates, 14% about conveyancing, 18% about family law, and only 5% about crime;
- 6% were about conflicts;
- There were 3 complaints of sexual impropriety;
- There were no ‘other genuine dispute’ within the definition civil disputes in s. 4.2.2(2) of the Legal Profession Act, 2004;
- No prosecutions were brought;
- Not a single finalised disciplinary complaint was successful (and only 1 out of the 100 old Act complaints succeeded — it resulted in a reprimand);
- There were 3 FOI applications to the Commissioner; and
- The going tariff for a breach of the obligation to deliver up documents within time pursuant to the Commissioner’s power of compulsion seems to be a $500 fine and costs of $1,000.
The Office had revenue of $3.4 million (almost all from the Legal Services Board) of which $1.3 million went on staff, including training (an annualised average of $73,300 per employee, some of whom are part-time, but it gets a little complicated because the Commissioner spent $205,000 on temps), $1.1 million went to the Law Institute for functions the Commissioner delegated to it (there is a list of all delegations on p. 20) and $150,000 to the Bar for the same thing.
Astonishingly, 89% of all disciplinary complaints finalised were summarily dismissed pursuant to s. 4.2.10 of the Legal Profession Act, 2004. Almost 1 in 6 was chucked within 30 days, and almost 9 in 10 within 60. To be fair, this may represent the dross which has been sifted out, since 60% of the complaints received during the reporting period were still open at the end of the financial year, and 60% of them had been open for 2 months or longer. I say ‘astonishingly’ because I perceive it to be a radical departure from the practice of the Commissioner’s predecessors. In general, though, it is a good thing if the Commissioner uses her office’s limited resources to deal doughtily with the complaints which suggest conduct conducive of condine condemnation, while giving the drossmongers and feewhiners the short shrift they often deserve.
I saw the other day a set of circumstances which was unfortunate, and which I hope is not too often replicated. The Commissioner characterised a complaint as a pecuniary loss dispute (one of the species of civil dispute) and a conduct complaint. The particulars of the complaint read, in substance — “See the attached Family Court affidavit”. Rather hastily after the receipt of the complaint, the Commissioner exercised her discretion to bypass the dispute resolution procedures with which she is tasked in relation to civil disputes by giving the client a ticket to go off and agitate her professional negligence claim in VCAT. She referred to s. 4.3.6 of the Legal Profession Act, 2004 which says she can do so if she considers the dispute unsuitable for her to attempt to settle. The matter was referred to VCAT’s Legal Practice List. Then, the Commissioner realised that because the exact subject matter of the complaint was before the Family Court she had no power to deal with the complaint, which she dismissed pursuant to the power in s. 4.2.10(1)(e) of the Legal Profession Act, 2004, which says ‘The Commissioner may dismiss a complaint if— (e) the complaint is not one that the Commissioner has power to deal with’. Yet she did not withdraw the ticket she had mistakenly given to the c lient to refer the purported complaint to VCAT insofar as it amounted to a civil dispute in the belief that she did have power to deal with the complaint.
The Commissioner settled 10% of civil disputes. She let 5% through to VCAT’s pecuniary loss dispute jurisdiction, which would explain why it’s been quiet down in the Legal Practice List. That means 85% never went anywhere for various reasons. She summarily dismissed 53%. She refused to extend time 18 times.
Of the complaints summarily dismissed, 41% were dismissed for being frivolous, vexatious, misconceived or lacking in substance. 9% were dismissed because the Commissioner formed the view the complaint required no further investigation. One-third were dismissed on the basis the Commissioner did not have jurisdiction.
And another Court of Appeal sets aside another gross overcharging conviction
As reported in today’s Australian Financial Review, the NSW Court of Appeal has told the Administrative Decisions Tribunal’s Legal Services Division that it got it wrong when it found a Sydney solicitor guilty of gross overcharging. The case is LN v Legal Services Commissioner [2007] NSWCA 130 Though the solicitor signed the bill, he did not really read it, and the Legal Services Commissioner obviously didn’t think hard enough about the charge, since the solicitor got off on the basis that he did not have personal culpability for gross overcharging. It is not well understood that there is no concept of vicarious liability for professional misconduct or unsatisfactory professional conduct. He might have been disciplined for failure to supervise, I suppose, but that was not what he was charged with. The relevant decisions below are here and here.
The law on applications to stay suspensions from practice pending appeal
In PJQ v Law Institute of Victoria Ltd [2005] VSCA 326, the President of the Court of Appeal laid down the law in relation to applications for stays pending appeals of suspension orders meted out by VCAT (then the Full Legal Profession Tribunal): Continue reading “The law on applications to stay suspensions from practice pending appeal”
Costs ordered against Law Institute in unsuccessful opposition to appeal against sentence of solicitor
The last post referred to part 1 of the last chapter of an intriguing saga. The second and final part of that chapter is the decision on costs: PJQ v Law Institute of Victoria (No. 2) [2007] VSCA 132. The President of the Court of Appeal rejected the following submissions by the Institute:
- that the Institute was just a contradictor, assisting the Court by ensuring that it had two views to choose from, and was akin to an amicus curiae;
- that it would have been entirely inappropriate for a professional regulator such as the Institute to consent to the relief sought by the appeal;
- that the cases which say that ‘costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that the tribunal has been guilty of serious misconduct or corruption or has acted perversely’ are relevant (‘this submission is entirely misconceived. The Institute is not a tribunal. Rather, it appears before the Tribunal as a party. Its function is that of prosecutor. No question arises here of the Tribunal’s costs, since the Tribunal did not appear.’);
- it was relevant that parliament had directed that costs of the Full Tribunal hearing were not to be awarded against the Institute save in exceptional circumstances (s. 162, Legal Practice Act, 1996; see now Victorian Civil and Administrative Tribunal Act 1998, Sch 1 cl 46D(3));
- because it made no submissions as to penalty, the Institute did not lead the Tribunal into error. Continue reading “Costs ordered against Law Institute in unsuccessful opposition to appeal against sentence of solicitor”
Court of Appeal sets aside unduly harsh outcome in gross overcharging prosecution
PJQ v Law Institute of Victoria[2007] VSCA 122 is the part 1 of the last chapter in a story of good tactical plays characteristic of professional discipline specialist Sam Tatarka in the representation of a solicitor charged with gross overcharging, and applying trust monies to pay his fees without the appropriate paperwork. It sounds like a plea bargain was entered into whereby the solicitor pleaded guilty to the charges on the basis that what led to the overcharging was overzealous representation and disorganization rather than dishonesty and in return, the prosecutor — the Law Institute of Victoria — would not make submissions as to penalty. But that is speculation. When it came time for ‘sentencing’, the solicitor offered an undertaking to the Tribunal that any file in which he proposed to charge more than $20,000 would be independently costed by a costs consultant. The Tribunal enquired whether he would submit to such costing by the Law Institute’s costs assessing service. The solicitor said yes.
In Law Institute of Victoria Limited v PJQ [2005] VLPT 8, the Full Legal Profession Tribunal came down hard, accepting the expert opinion of a man without a law degree that appropriate legal costs for a proceeding of the kind in which the solicitor had represented his client were half what he had charged, and suspending the solicitor from practice for 12 months. To the surprise of the President of the Court of Appeal, the Tribunal made no mention of the alternative to suspension represented by the undertaking despite going through the ritualistic ‘no punishment happening here’ recitations (‘Our task does not involve punishment of the legal practitioner. Our task is to provide for the protection of the public, including deterrence of the legal practitioner and the profession generally from like conduct…’; ‘Conscious of the necessity to place the barrier high before depriving a member of the profession of their practising certificate we have given all the circumstances of this case the most careful and repeated consideration.’ etc.).
President Maxwell, with whom Justices Chernov and Nettle agreed, held that the Tribunal’s inexplicable failure to mention in its reasons the undertaking offer suggested that its sentencing discretion had miscarried. His Honour actually acknowledged with refreshing forthrightness that penalisation is part of sentencing for professional discipline offences, but, by his words, sought to give real meaning to the concept that protection of the public is what professional discipline is all about, by quashing the Full Tribunal’s orders and, on resentencing, making no orders in recognition of the substantial costs already incurred by the solicitor and the partially endured suspension: Continue reading “Court of Appeal sets aside unduly harsh outcome in gross overcharging prosecution”
The regulator’s regulator, the Ombudsman, criticises Migration Agents’ bureau de spank
The Ombudsman has been looking into the performance of a regulator, MARA, the Migration Agents Registration Authority. He was critical. His press release is here, the full report here. Reproduced below are the bits about impartiality and the avoidance of conflicts of duties ‘in the case where an industry representative body is also the regulatory body and complaint-handling organisation’. Though the Legal Services Commissioner does not fall into that category, the Uber-regulator’s review of a professional regulator may nevertheless be of interest to those who deal with her. The Ombudsman suggested that oral complaints be taken, reduced to writing by regulator staff, and confirmed by sending out the writing to the complainant. I think that would be an efficient way of dealing with complaints against lawyers by unsophisticated clients. It would be a case of a stitch in time saves nine, and would prevent lawyers from having to respond to allegations which are incomprehensible and legally embarrassing. The Legal Services Commissioner ‘may’ provide assistance to members of the public in making complaints: s. 4.2.12(c) Legal Profession Act, 2004. Under s. 123(5) of the Legal Practice Act, 1996, the Law Institute’s Professional Standards were obliged to assist if asked, but to my knowledge they rarely did so, and I am aware of instances where assistance was formally sought but refused. Now, that extract from the report I mentioned: Continue reading “The regulator’s regulator, the Ombudsman, criticises Migration Agents’ bureau de spank”
The US take on past client / current client duty conflicts based on the ‘getting to know you factors’
America’s Legal Profession Blog had posted yesterday on a conflicts case about what we in Australia would call “the getting to know you factors”. The case was Hurley v Hurley, decided on 22 May 2007 by a 5 judge bench of the Maine Supreme Judicial Court. The background is that a lawyer may be prevented from acting against a former client even in a matter unrelated to the earlier retainer and where no specific confidential information was obtained in the earlier retainer which could be put to use against the former client in the new retainer. A lawyer may be prevented from acting in those circumstances where the earlier retainer or retainers was or were of such an intimate character that the lawyer came to know so much about the former client in a general way that it would be unjust to let them loose on a former client’s opponent.
The seminal case is probably Yunghanns v Elfic Ltd, a 3 July 1998 decision of Victoria’s Supreme Court’s Justice Gillard. (The rule does not apply, in general, to barristers acting against institutional litigants such as insurance companies and banks for whom they have acted in the past: Mintel International Group Ltd v Mintel (Australia) Pty Ltd [2000] FCA 1410 at [43] to [44]). In the American case, one personal injury retainer, in which the lawyer gained insights into the former client’s ‘ability to testify under oath, her reactions to her adversary, her patience with the protracted process, her ability to accept compromise, her ability to handle stress, and the way in which she relates to her attorney’ was sufficient to disentitle him from acting against her in a contested divorce. Now, that post in full: Continue reading “The US take on past client / current client duty conflicts based on the ‘getting to know you factors’”
What does “VCAT’s not a court of pleadings” actually mean?
In Dalton v Silberberg [2007] VCAT 1069, Deputy President Steel laid down the law in relation to the minimum standards for pleadings by unrepresented applicants in VCAT cases other than simple one-hour hearing cases, and struck out the applicant’s points of claim. The decision is also worth reading to ascertain VCAT’s Civil List’s attitude to how much vexation is necessary before dismissal becomes the appropriate course as opposed to the striking out of the statement of the applicant’s claim. The Deputy President adopted what the Supreme Court said in another case about pleadings in Tribunals:
‘a defendant is entitled to expect that a claim will be laid out with a degree of specificity such that, if it is obvious that the claimant seeks to pursue a claim which is untenable, that can be the subject of an application before trial’. Continue reading “What does “VCAT’s not a court of pleadings” actually mean?”
Doctor’s opinion not given in trade or commerce so VCAT had no jurisdiction
In a landmark decision with profound implications for VCAT’s Fair Trading Act, 1958 jurisdiction over lawyer-client disputes about professional negligence and fees, a Deputy President of VCAT has recognised that it did not have jurisdiction to hear a former client’s misleading and deceptive conduct claim brought against ‘a professional’ in the traditional sense of the word, in relation to professional advice. The claim was brought under s. 9 of the Fair Trading Act, 1958 (the state analogue of s. 52 of the Trade Practices Act, 1974), which says:
“(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”.
The case is Stagliano v Duke [2007] VCAT 1070. The applicant was injured at work, and made a Workcover claim. His employer’s Workcover insurers had him examined. The doctor wrote a report and sent it to the insurer. That professional opinion was not given in trade or commerce, even though it was given pursuant to a contract with the insurer, and for a fee, Deputy President Steel held, for the following reasons: Continue reading “Doctor’s opinion not given in trade or commerce so VCAT had no jurisdiction”
An ABC interview with Justice Callinan
Here it is. You can read the transcript or listen. Some tidbits:
- ‘You only have to look around the rest of Australia at present and you can see that there are systemic problems in every police force and they seem to recur with unfortunate frequency.’
- He prosecuted Lionel Murphy and cross-examined Michael Kirby in that case.
- He acted for Allan Bond.
- He sought Christopher Skase’s extradition.
- He has two books and a couple of plays ready for publication.
So-called lawyer to the underworld fails in challenge to ticket non-renewal
Melbourne’s best known female criminal lawyer was convicted some time ago of contempt of court for refusing to answer questions on oath in a Supreme Court murder trial of her husband’s murderers: as I reported here. She has sought review of that decision in VCAT, and sought judicial review from the Supreme Court as well. That latter course failed today, partly because of the availability of her remedies in the VCAT proceedings, which may still result in the renewal of her practising certificate. Until that case is decided, she is entitled to keep practising. See The Age‘s article here, and Justice Kevin Bell’s judgment in ZGW v Legal Services Board [2007] VSC 225 here. It begins by sketching out the background issues and the questions for determination in the case:
‘1 The plaintiff, a young and intelligent solicitor, was working hard in a firm specialising in criminal law. She met a man who was one of its clients and the two formed a relationship. They were living together as husband and wife when he was murdered. Continue reading “So-called lawyer to the underworld fails in challenge to ticket non-renewal”
Vic Supreme Court summarises VCAT’s power to review practising certificate decisions
In the matter of ZGW v Legal Services Board [2007] VSC 225, Justice Bell made some observations about VCAT’s power to grant merits review of decisions about practising certificates made by the Legal Services Board, and the interrelationship of that power with the availability of judicial review: Continue reading “Vic Supreme Court summarises VCAT’s power to review practising certificate decisions”
Here’s a copy of the Vic Wrongs Act 1958’s proportionate liability provisions
PART IVAA PROPORTIONATE LIABILITY Continue reading “Here’s a copy of the Vic Wrongs Act 1958’s proportionate liability provisions”
‘The Cook Book’: a review
I never really got into Richard Cook‘s The Annotated Rules of Court as a solicitor. Because it is not published by either of the two lawbook houses, I suspect it languishes under-utilised, but it can be purchased online from the Law Institute Bookshop. I had access to Williams online on my computer, and a copy of Williams’s 3 volume looseleaf service on my floor. Yet I remember wandering around playing that dreadful game “Where’s Williams?” a lot, and being frustrated by the online thing. My suite mate Richard gave me a copy of the ‘Cook Book’ in one of the many acts of generosity by the institution of the Bar and by individual members which I have been experiencing during my reading period. He presents annually in a War and Peaceish-sized paperback for a very reasonable $130:
- the Chapter I civil procedure rules of the Supreme, County, and Magistrates’ Courts;
- all the civil forms used in those courts;
- their scales of costs; and
- in the commentary, much of what one needs to know from the statutes which govern the Court, such as the Magistrates’ Court Act, 1989. Continue reading “‘The Cook Book’: a review”
Without prejudice privilege and negotiations long before litigation
CMS Cameron McKenna, an English firm, has noted a new English case on the availability of without prejudice privilege — otherwise known as negotiation privilege — over negotiations which take place long before litigation is commenced or even a reasonably certain prospect. In Framlington Group Limited v Barnetson [2007] EWCA Civ 502, an unlawful termination of employment case, the Court of Appeal said ‘the crucial consideration would be whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree’. The relevant passage is: Continue reading “Without prejudice privilege and negotiations long before litigation”
Contracting out the dirty work
Via Freivogel on Conflicts: The New York County Lawyers’ Association has published an ethics opinion on the propriety of hiring investigators to communicate with counterparties in ways which would be unethical for the lawyer hiring them. Prima facie improper with only very limited exceptions, they say. Unless what is contemplated is pre-litigation, it seems to me that an unaddressed question is the operation of what the Americans call “the rule against communicating with a represented opponent” (rule 4.2 in the quote below). On that topic, Freivogel cites this case:
Use of lying investigator with hidden recording device to interview adversary’s employees causes violation of Rules 4.2 and 8.4(c) and exclusion of evidence. Midwest Motor Sports d/b/a Elliott Power Sports, Inc. v. Arctic Cat Sales, Inc., 347 F.3d 693 (8th Cir. 2003). Continue reading “Contracting out the dirty work”
Was this the most unsuccessful Australian defamation action ever?
Justice Gillard is my favourite judgment writer. What a shame the legal system is about to lose him to retirement. When the moment is ripe, he gives the cattle who wander without insight onto the slaughterhouse floor the most splendid judicial whallopings. Justice Gillard is a senior judge, and there is a serious point to be made by this post which is otherwise well-suited to public holiday reading. There is an extraordinary terror in the law of calling anyone a fraud (which means nothing more in the law than ‘dishonest’), and of finding anyone to have deliberately lied. Doubtless this is preferable to a world in which lives might be ruined by the dishing up of gossip as fact, but scandalous lies are routinely tolerated, even expected, and virtually no one is ever prosecuted for perjury, rendering the oath meaningless. It is a splendid thing when a lawyer has sufficient command of the legal process to call it as he sees it when the need arises, and Justice Gillard is one of those lawyers.
Remember the whalloping his Honour gave the Law Institute in a professional discipline prosecution, where he said that its decisions were so manifestly unreasonable as to comfortably satisfy the Wednesbury unreasonableness test, to wit that no reasonable decision maker could ever have made them? It was nothing compared with the defamation case of Li v Herald & Weekly Times [2007] VSC 109 about the Hun‘s “Medibonk” expose of the Collins St Chinese herbalist who provided massages with happy endings and then wrote out receipts with service codes for less exciting services which private health insurers would pay for. That’s ‘happy endings’, by the way, in the sense of ‘Ms Li removed the bath mat sized towel, put a pair of latex gloves on her hands and applied creams and oils to his testicles and penis. His penis became erect and Ms Li masturbated him to ejaculation.’ Continue reading “Was this the most unsuccessful Australian defamation action ever?”
Michael Bakhaazi jailed for 3 years for stealing a quarter million dollars
On 13 December 2006, Justice Curtain jailed Elias Michael Bakhaazi, a solicitor, for three years and three months, with a non-parole period of eighteen months, and ordered him to pay back that part of the stolen funds that had not already been paid back: R v Bakhaazi[2006] VSC 496.Incidentally, he was Daming He‘s solicitor. He stole more than a quarter of a million dollars in five separate transactions with six victims, mainly in 2001 and 2002. His victims were hard-working Lebanese who trusted him because of his links with that community as well as because he was their solicitor. It seems Mr Bakhaazi lost $700,000, turned to gambling, lost his marriage, became suicidal, and now has excellent prospects for rehabilitation. Of the victim impact statements, her Honour said: Continue reading “Michael Bakhaazi jailed for 3 years for stealing a quarter million dollars”
Confirmed: your client can privately prosecute you for misconduct
Acting President Bowman handed down a decision on Friday in Cedric Naylor’s Case [2007] VCAT 958 approving the existing practice of VCAT, and before it the Legal Profession Tribunal, of entertaining professional misconduct allegations against lawyers by their clients as part of applications to set aside costs agreements. Entertaining them, that is, outside the disciplinary investigation and prosecution procedures in Part 5 of the old Legal Practice Act, 1996, and regardless of whether those who otherwise prosecute disciplinary charges would have brought a charge. Under the old Act, a costs agreement could be set aside upon proof by the client of (i) dishonesty in the solicitor, or (ii) misconduct or unprofessional conduct in the retainer, or (iii) a want of fairness and reasonableness of the agreement. Judge Bowman ruled that it was not necessary for the solicitor to be found guilty of misconduct or unsatisfactory conduct in the ordinary way, by a prosecution by a legal regulator under the disciplinary provisionso of the Act before the client could rely on the second ground, but he did say that if misconduct is made out in an old Act case, then no disciplinary consequences such as a suspension of a practising certificate can follow in that hearing. But, armed with the result in the s. 103 application, there seems to be nothing to stop the client sending the reasons in to the regulator and requesting investigation of the conduct already determined to be misconduct by the body which would hear any charge flowing from the investigation. And so, of course, there seems to be nothing to stop the client from threatening to do so in little spats over fees.
Continue reading “Confirmed: your client can privately prosecute you for misconduct”