Stephen Warne on professional negligence, regulation and discipline around the world

The Australian Professional Liability Blog random header image

About

What is this blog?

Principally, it is a knowledge management system for one bit of my practice. It is the modern version of the card files traditionally kept by leading lawyers and judges, except that its contents are shared with you. I was reading cases and forgetting them. Now, I try to make a note of each case I read, which means I read less and remember more. I have not read everything linked to on the blog, by any means. Sometimes, things are squirrelled away for the case when I will find them useful.

As with all blogs, the articles are ordered by date, with the latest ones first, which is not particularly helpful if you’re looking for something in particular. You can search the full text of the blog using the search box. I cite cases like this: ‘Dumb v. Dumber (1980) 1 CLR 206′, section numbers like this: ‘s. 25’ or ‘sections 86 and 91’, and statutes like this: ‘Legal Profession Act, 2004 (NSW)’. Alternatively, you can browse the index, and click on an item to see all posts which I have tagged with that index entry. The tags I have ascribed to each post are set out at the end of each one. Click on one, and you will be taken to a list of all articles with the same tag. The related articles listed at the end of each post are generated automatically by WordPress, presumably by reference to the other posts’ tags.

Many posts may be of interest for laypeople, but I have generally assumed familiarity with basic legal terms and concepts. Some posts will be of little interest except to users of VCAT’s Legal Practice List.

Why the Chinese photos?

My brother Dan, an all round computer genius, web designer, photographer, and journalist, took them, and I love them.

Some things to know

VCAT What I call ‘VCAT’ is the Victorian Civil and Administrative Tribunal, set up by the Victorian Civil and Administrative Tribunal Act, 1998. It is fast and cheap, controversial with the public because of the planning decisions it is tasked with making and controversial in legal circles because it is fast and cheap. It hears many complex and high value cases these days as well as many many simple cases for less than $10,000 in which pre-hearing steps are kept to a minimum, and people may actually represent themselves successfully. In fact, it is somewhat tricky to convince VCAT to allow legal representation in certain lists. Much of what you need to know about VCAT is to be found on its website and in Jason Pizer’s Annotated VCAT Act.

Statutes Unless otherwise indicated, statutes (acts of parliament) are Victorian.

Citations The way I usually refer to case names is not the way you should refer to them, because I have substituted something, usually an acronym, for the professional’s name.

Links to cases are generally to a rich text version. When you click on the link, a nicely formatted version of the judgment will download to your computer, and you read it from there. If you don’t want that to happen, here’s what you have to do to get to the version on the Austlii website which will not look as good but which will not clutter up your computer once you’ve finished with it: (1) right click on the hyperlink; (2) select “copy link location” or similar; (3) use the paste command (Ctrl + v) to put what you copied into the bit on your browser where you type in URLs (i.e. the bit you type www.google.com into if you want to go there); (4) delete the “rtf” at the end and type “html” instead. If there is no “rtf” at the end, then you needn’t have bothered, but then, you couldn’t have known that.

Is this what I do?

This blog is about one aspect of my practice, the continuation of my specialisation as a solicitor: professional negligence and other professional-client disputes, especially about fees, professional indemnity insurance, and professional discipline, registration and regulation. The other half is diverse insurance and commercial litigation not involving personal injuries. Since coming to the Bar, in addition to the kind of work just described, I have done a couple of Domestic Building Contracts Act cases, a surprising number of defamation cases, a partnership dispute, and an unqualified legal practice case. I have done cases about guarantees and mortgages, misleading and deceptive conduct, contaminated land, and I have been involved in a shareholders’ class action, and given advice about proportionate liability, and so on.

Be careful

The blog’s posts are not updated. Once a post is written, it just sits there, forgotten, and probably out of date (except that I sometimes update them, in which case the update is clearly marked at the top of the post). I strive hard for simplicity. In articulating the facts of a case I do so only to the extent necessary to let you understand what you need to. Often, a case will be about several issues, only one of which is of interest to me and the other I will ignore. Then you may only get half the facts. If you are going to use a case referred to in the blog in court, you will need to read it for this reason. Generally, there is a link to the Austlii version of the judgment to facilitate that.

I will not blog my own cases

I do not and will not post about any case in which I have acted for any party, unless, in exceptional cases (such as my involvement in the High Court case on advocates’ immunity, D’Orta-Ekenaike v Victoria Legal Aid), I have that person’s permission. There are two reasons:

  • First, I take client confidentiality seriously and consider that my obligations extend to not giving additional publicity to details of cases against my clients even when those details are already publicly available. (Most Australian professionals’ names in the blog are anonymised so as not to promote their misfortunes more than necessary for the purposes of critical discussion of the law.)
  • Secondly, publicly criticising the outcome of your own cases, or lauding your own successes, is a bad idea.

What is it about?

The blog is about:

  • professional discipline (e.g. being struck off the roll of counsel; gross overcharging prosecutions; unsatisfactory conduct investigations by the Legal Services Commissioner);
  • professional negligence (called attorney malpractice and medical malpractice in the US);
  • other forms of liability of professionals (for example, under the Fair Trading Act, 1999, or in equity for breach of a fiduciary duty);
  • professional fees;
  • costs in litigation;
  • professional regulators (for example, the Legal Services Commissioner and the Medical Board of Victoria);
  • professional ethics and rules of conduct.

It is also about these things which don’t quite fit the pattern:

  • Victorian legal identities;
  • legal blogs;
  • legal professional privilege (also known as client legal privilege);
  • negotiation privilege (also known as without prejudice privilege);
  • privacy and confidentiality generally;
  • judgment writing and legal writing more generally;
  • criminal prosecution of lawyers, with an emphasis on sentencing principles;
  • VCAT’s civil list (for the insights into the Fair Trading Act, 1999);
  • Victoria’s Fair Trading Act, 1999.

There are strong biases though. The blog is mostly about lawyers at the moment, with doctors next most featured. Obviously, Australian law predominates, especially Victorian. I aim to provide notes on every decision of any interest from VCAT’s Legal Practice List, but haven’t yet quite succeeded in making notes of some longer decisions. There is also a fair bit of American law. By writing about VCAT decisions and American decisions, I have tried to be useful by writing about things that are not already the subject of 11 near-identical newsletter articles already readily available on the web.