In the financial year ending 30 June 2012, the Legal Services Commissioner in Victoria received 1,982 new complaints following 5,316 enquiries. When representing lawyers in disciplinary investigations and prosecutions, my fees generally come out of their own pockets. I have seen lawyers bankrupted by disciplinary prosecutions and others who have left practice and sought psychiatric assistance because of the trauma associated with them. This post provides some case studies of how ugly disciplinary investigations can get and points out that there is insurance available for the defence costs. Continue reading “Insurance cover for disciplinary investigations and prosecutions”
Making allegations against fellow practitioners
I have posted before about the Darwin solicitor whose disciplinary complaint against a fellow practitioner resulted in her being fined $19,500 for making that complaint without a proper factual foundation. I have just come across another case in which a female solicitor was disciplined for her intemperate allegations against another lawyer, despite having had an honest belief that she had a reasonable basis for making them: Legal Profession Complaints Committee v in de Braekt [2011] WASAT 1. She was recently struck off: [2013] WASC 124.
A panel provided over by a judge of Supreme Court of Western Australia and President of WASAT, Justice John Cheney, said in the earlier decision:
‘107 Legal practitioners should be slow to make allegations of impropriety against other legal practitioners or their client. Such allegations should not be made unless there is a reasonable basis upon which to make them. The same can be said of allegations of abuse of process. It is apparent that the impropriety asserted by Ms in de Braekt was based upon her view that, having regard to the various matters upon which she relied, the winding up proceedings amounted to an abuse of process.’
I am looking at another matter at the moment in which a complaint has been made to a Legal Services Commissioner by one of the lawyers for one party to extant litigation against one of the other party’s lawyers, in relation to conduct which is itself the subject of the civil proceedings and which is in fact said to have generated the information on which those proceedings are founded. Even if the disciplinary complaint is stayed pending the exhaustion of appeals from the civil proceedings, it seems to me that the propriety of making a complaint in such circumstances is doubtful. Does anyone have any views, or — better — authority on the question?
VSCA restates practitioners’ duty of honesty to Court
In Forster v. Legal Services Board [2013] VSCA 73, Kyrou AJA, with whom Weinberg and Harper JJA agreed, restated briefly the law which requires lawyers to be absolutely honest in their dealings with Courts:
‘161 In Meek v Fleming,[85] Holroyd Pearce LJ agreed with the proposition that while a lawyer must not knowingly mislead the Court as to the facts or the law, he or she may put such matters as he or she believes will best advance the client’s case.[86] A party need not reveal something to the discredit of that party. However, this does not mean that the party can by implication falsely pretend that a particular state of affairs exists, and knowing that the court has been misled with respect to a material matter, foster and confirm the misrepresentation through answers given by the party.[87] A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the Court and thereby breach his or her duty to the Court. Once a misleading impression has been created, even if innocently, the lawyer has an obligation to correct that impression as soon as he or she becomes aware of the true position.[88] That obligation continues until judgment is given.[89] Continue reading “VSCA restates practitioners’ duty of honesty to Court”
More on solicitors’ obligations to pay counsel’s fees
Council of the Law Society of New South Wales v JAX [2012] NSWADT 283 is a case in which the solicitor was disciplined for paying himself out of fees provided to him by his client for payment of counsel’s fees. Ultimately he went bankrupt and did not pay the fees. See also this earlier post on this subject. The decision also represents yet another admonition to pleaders of disciplinary charges to plead dishonesty expressly if they intend to allege it.
There were the following agreed facts: Continue reading “More on solicitors’ obligations to pay counsel’s fees”