A delegate of John Britton, Queensland’s Legal Services Commissioner, has declined to lay disciplinary charges against Dr Haneef’s lawyer, Stephen Keim QC, despite finding a clear breach of a rule of professional conduct, and that — to my astonishment — Mr Keim gave his client’s record of interview to The Australian without having sought Dr Haneef’s instructions. Continue reading “Stephen Keim SC, Dr Haneef’s barrister”
NSW wills and estates lawyers to have fees capped in family disputes
The Sydney Morning Herald reports plans by the NSW Attorney General to cap fees proportionately to the amount at stake. The article is a bit light on what that means exactly, but the Law Society of NSW President purported to welcome the changes.
The English profession
Update, 12 February 2008: Apparently there’s a lawyers’ phones bugging scandal over in England. Sounds like a fairly substantial problem to me. I’ll keep you posted, if I ever find the time.
Original post: Here’s a pithy little article in The Times about 3 English lawyers’ liability cases. Well worth the small effort to read it, though the promise ‘How to Avoid a Professional Negligence Claim’ is, with respect, overarching.
Legal Blog Watch has an article on the increasing power of American firms in the London market. 3,900 lawyers in London are working for US firms, they say.
Here’s The Guardian on the difficulties of eradicating the scourge of the white upper class privately educated former barrister from the judiciary over there. Deputy Premier Hulls should take a sabbatical, and a room at Australia House, and engage in some high powered consultancy.
The Times has an article about the new Chairman of the English Bar, Tim Dutton QC, a professional negligence specialist. The whole article is worth reading. He is thinking about to what extent to market direct access retainers between clients and barristers leaving out the middlemen solicitors on the basis that the junior bar represents the best value in the legal market, and to what extent to keep the main source of work, solicitors, content by preserving the status quo. He is thinking about the discussions about allowing barristers to form partnerships in England. He points out that though the top barristers are amongst the best paid in society, 30% of barristers’ under 3 years’ call earn less than £10,000 ($22,500) on publicly funded work. The article concludes with some key facts about the Bar, which numbers 15,000 barristers:
So long as you don’t intentionally fail to turn up when briefed, no problem
Senior Member Howell’s decision in Crawford v Kennedy [2008] VCAT 5 begins:
‘Mr. Gilbert Crawford was a defendant in proceedings to be heard in the Magistrates’ Court on 29 March 2006. He was impressed by [the late] Mr. Peter [H] QC when he saw Mr. [H] on a television programme. Mr. Crawford went to see Mr. [H] and engaged him to appear on his behalf at the hearing in the Magistrates’ Court.’
A Melbourne solicitor, presumably giving evidence on oath, was described as ‘not an impressive witness’ who was ‘determined not to give an answer unfavourable to Mr. H,’ which she presumably won’t be too happy about. Interestingly, she is quoted in this article in The Australian as saying that her one-time boss, tax lawyer Michael Brereton was using Mr H almost full-time before Mr H died. Mr Brereton was being irritated by a dispute with the tax man in the Supreme Court, and retained Mr H to ameliorate the irritation, but was also briefing Mr H on behalf of his own clients, according to the article. It was Mr Brereton’s case which Mr H attended to on 29 March 2006, instructed by the female solicitor, who had by then gone out on her own, and was acting for Mr Brereton. Continue reading “So long as you don’t intentionally fail to turn up when briefed, no problem”
Webcasts of court proceedings
‘Your Honours, counsel, my name is Gerry Hall and I am the attorney representing Lyndell Howard, the defendant in this case. You know, I got up early this morning and I reviewed the trial court pleadings, and the motions we had filed there in the trial court, the transcripts of some of the testimony. I looked at the trial court briefs, and then the Supreme Court briefs, trying to better develop my argument and then it kind of dawned on me — this is all stoopid. You’ve all read everything we’ve put before you, and I don’t need to bore you with recitations of what Greever or Felinar or all those other cases say, or the significance of s. 5-3-1 of the Criminal Code, and how that applies here. They may have helped to get us here, and I think they certainly are supportive, but I think the real problem, and the reason we have cases interpeting this official misconduct statute, is that it’s just not entirely clear. If it were, we wouldn’t be here. Because it would be, you know, black and white.’
So began the case of Williams v Manchester in the Supreme Court of Illinois. They upload video of the submissions to the internet. It’s an appeal court, so many of the objections to televising court proceedings do not apply with the same force. Watch the case here, if only for an insight of how differently they do things over there (see above: ‘You know, I got up early this morning and…’). Or you can look at a case summary, read the written arguments as .pdf files, watch the oral arguments, and read the judgments in certain cases of the Florida Supreme Court here. More options at the bottom of this page. All this I learnt from this blog.
WARNING: costs agreements and bills require amendment
Since 6 December 2007, the maximum interest chargeable on bills has dropped from 12% (the penalty interest rate) to the Reserve Bank Target Rate +2% (at the time of writing 8.75%), and the period of non-payment after which you can begin charging has changed too. You need to amend your bills because if you don’t put the right statement on them, you won’t be able to recover interest unless you dream up some sophisticated arguments. In the case of ongoing retainers, you probably need to send the first new bill of the new regime under cover of a letter advising a change in the rate applicable to unpaid bills. Otherwise, you might fall foul of the ongoing obligation to disclose any substantial changes to anything previously disclosed.
You do not have to express the interest chargeable as a percentage rate per annum. In my experience, the only time anyone ever charges interest is when suing for fees, after the relationship has broken down, or demanding payment of fees as a condition of staying on the record or giving up a file subject to a lien. Perhaps that was because the rate was so punitively high, and perhaps because too few people knew about the penalty interest rate calculator on the internet. Why not set a lower rate which is dead easy to calculate and actually make a habit of collecting interest? So long as the rate you are effectively charging works out lower than what you would charge if you charged the maximum annual percentage rate over the same period, you’ll be sweet. Read on to find out the answer to the questions someone in your firm is sure to ponder at some stage in the future: does it apply to bills given before 8 November 2007? Does it apply in retainers in which instructions were first taken before that date?
Continue reading “WARNING: costs agreements and bills require amendment”
How to calculate interest on post-5 December 2007 bills in Legal Profession Act, 2004 (Vic.) matters
What follows assumes that you have not made any special agreement in a costs agreement, and so the default position applies. It is truly an idiot’s guide because (i) I have great sympathy for people who have difficulties with numbers, and (ii) I well remember how grateful I was when a partner of Middletons, Mark Howard, showed me as an articled clerk how to calculate penalty interest. Continue reading “How to calculate interest on post-5 December 2007 bills in Legal Profession Act, 2004 (Vic.) matters”
2007 a review: law and war
Happy new year, readers. 2007 was a big one for me, and it seems that lots of interesting things happened. So I made a list.
The Bar: My senior mentor, Peter Riordan SC, was elected Chairman of the Bar Council. Peter Hayes QC died, and the Ethics Committee took Peter Faris to task for commenting to excess on drugs in the profession. Mr Faris joined the Law Institute in lieu of the Bar. Former solicitor-advocate Andrew Fraser got out of jail and published his memoirs, Court in the Middle. Julian Burnside wrote an excellent book. Good people joined the Bar, including Tony Horan, formerly a partner of Phillips Fox, and Lisa Nichols, formerly a partner of Slater & Gordon Ltd, suggesting that it is a healthy institution. Mark Dreyfus QC was elected into Federal Parliament, Jeff Sher QC retired, and Peter Cawthorn, Dr Ian Freckleton, and Kerri Judd, all leaders of the professional negligence and/or discipline bar, took silk. Ross Ray QC assumed the helm at the Law Council of Australia.
The Bench: Justice Kiefel was appointed to the High Court from the Feds, the Howard Government’s 6th appointment after Justices Hayne, Callinan, Gleeson, Heydon and Crennan. She was the trial judge in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the case which is commonly understood to mean that you can always amend your pleadings at any time, contrary to her Honour’s view that sometimes, enough’s enough. Justice Callinan, the protagonist in Flower & Hart v White Industries (Qld) Pty Ltd (1999) 163 ALR 744, one of the key legal ethics cases of recent times, retired after nine and a half years. Lex Lasry was appointed to the Supreme Court. He was one of the blokes who campaigned against the execution of Van Nguyen, and was a legal observer at David Hicks’s show trial. Also appointed were Jack Forrest, Ross Robson, Paul Coghlan (ex-director of the Office of Public Prosecutions), and Tony Pagone (a tax lawyer with a keen interest in human rights who was reappointed after a tenure of 9 months in 2001 and 2002). The Court of Appeal had added to its bench Murray Kellam and Julie Dodds-Streeton. So 1 in 5 Supreme Court judges was appointed this year. Justice Gillard retired after ruling that Dr Abbie Lee was not defamed in the Herald-Sun‘s ‘Medibonk’ articles which called her a madam and a fraud. Justices of Appeal Callaway and Eames retired too.
Michelle Gordon, to whom the High Court’s Justice Hayne is married, was the only Melbourne appointment to the Federal Court. Former Federal Court judge Marcus Einfeld QC was committed to stand trial for perjury after pleading not guilty.
Blogs: Melbourne lawyers Peter Faris, Leagle Eagle, Dr Mirko Bagaric, and Nicky Greenberg all wrote interesting blogs, mostly not about the law. Jamie Wodetzki, also a Melbourne lawyer, published the excellent Breakfast Blog. Club Troppo‘s ‘Missing Link‘ rounded up the best posts from Australian blogs twice a week or so: well worth subscribing to.
Books: Monash’s Professor Adrian Evans and Melbourne’s Christine Parker put out a book Inside Lawyers’ Ethics. Walmsley, Abadee and Zipser did great with the second edition of Professional Liability in Australia. University of Woollongong’s Ainslee Lamb and John Littrich put out Lawyers in Australia. Jason Pizer published the 3rd edition of his Annotated VCAT Act. The 9th edition of Keith Fletcher’s The Law of Partnership in Australia hit the stores. Former actress, barrister and ABC Radio National ‘Law Report’ compere Susannah Lobez published Gangland Australia. Leigh Sales published a book about David Hicks, Detainee 002. J.K. Rowling‘s Harry Potter and the Deathly Hallows sold over 8 million copies in the first 24 hours of its release. Black Inc.’s The Monthly continued, unlike most in its genre, to publish, suggesting this might actually be the new quality news magazine which sticks around. Helps when your publisher, Morry Schwartz, is a property developer I suppose. (A bit off-topic, but Bali got Lawyers’ Lawyered this year, so: Black Inc. also published Under the Volcano; The Story of Bali. Former English property lawyer Jonathan Copeland published another good book about Bali — a rare thing — Secrets of Bali.)
Crime, and alleged crime: Christopher Hudson allegedly shot Norton Gledhill solicitor Brendan Keilar dead outside the Rialto where I had been working until a couple of weeks before. A martial arts enthusiast is suspected of killing Pumpkin’s mum, and cast Pumpkin adrift at Spencer St. Carl Williams said that in an ideal world, he wouldn’t have executed Jason Moran in front of his kids, and Justice Betty King responded to point out that in an ideal world he wouldn’t have executed him at all. In an ideal world wife Roberta probably wouldn’t have expressed disappointment that Carl would be behind glass, making spitting in his face problematic, and Jason probably wouldn’t have hired two hit men to gun Carl down at his daughter Dhakota’s christening, giving Carl the idea of the execution with kids in the first place. The Herald Sun must have been spewing about the 35 year fully catered luxury State holiday Justice King granted him despite his insolence. Tony Mokbel was found in Greece. Bad wig. Peter Dupas was convicted of another murder as a result of confessions made to Andrew Fraser. Paris Hilton went to jail, prompting this peculiar peaen from Dr Bagaric. Continue reading “2007 a review: law and war”