Roisin Annesley’s Victorian Barristers’ practice guide

The Bar has produced a practice guide. It is a great achievement and stands as a beacon for the Law Institute’s future efforts at promulgating knowledge of the practice rules. The Bar actually has something called the Professional Standards Education Committee. Written by Roisin Annesley, it was launched by Victoria Marles, the Legal Services Commissioner on 18 October 2006, and distributed free to every member of the Bar. Annesley has done a lot of work as Counsel Assisting the Legal Profession Tribunal (and continues to do occasional work assisting the Legal Practice List at VCAT). A doyen of professional discipline, Paul Lacava SC, and a judge who has excoriated Professional Standards, Justice Gillard, are credited with substantial involvement. It has chapters on: Continue reading “Roisin Annesley’s Victorian Barristers’ practice guide”

A complaint for every 6 solicitors last year in England

Here is an article from that most excellent of newspapers, England’s The Guardian, which notes that:

  • the Law Society received 17,074 complaints, one for every six solicitors in England and Wales last year;
  • that was up 14% on 2002;
  • a third of people think they receive poor service from their solicitor;
  • a quarter of those surveyed think their solicitor doesn’t listen to their opinion;
  • a third don’t feel they are told enough about how much they will be charged;
  • more than half the people surveyed said they received no pre-estimate of fees at all; and
  • only about a quarter said they got one in writing.

Costs disputes in England apparently progress through firms’ internal dispute resolution mechanisms, to the Consumer Complaints Service at the Law Society, and then, if the punter is so minded, for review by the Legal Ombudsman. The complaint form used is interesting. It seeks the details of the complainant and the subject of the complaint and says “Please tell us the name and address of the solicitor you are complaining about and briefly state your complaint. (We will contact you later for more details.)” next to a box the size of a postage stamp. That is a sensible approach. I have seen hundreds of complaints. Though Victoria’s regulators were required until recently to give reasonable assistance to complainants in formulating complaints, I do not believe they ever did so. I have seen a case where a man requested assistance and it was flatly denied.

Excellent paper on lawyers’ discipline by Stitt QC and Lindsay SC

The New South Wales Law Society distinguishes itself amongst the Australian law societies with its in depth ethics resources. The Bar Association too is good in that regard in that state. Here is an excellent paper by R.R. Stitt QC and G.C. Lindsay SC entitled “Disciplinary Proceedings Affecting Barristers”. It’s a bit old now (June 1997, revised January 1999) but, really, not much changes in the world of professional discipline. I now acknowledge this paper as a source of various future posts. There is a Victorian equivalent, by Dr Ian Freckleton (available here until 1 February 2007, filed under 5 April 2006).

Chief Justice realises legal system’s too expensive!

South Australia’s Chief Justice gave a talk recently on how the justice system is too expensive. It’s true. What I am very uncertain about is how much more expensive it is than, say, at the time of Bleak House. I mean, I think airfares are expensive, but they’re cheaper, comparatively, than they have ever been.

Detailed new conflict rules commence in England

Solicitors’ Practice (Conflict) Amendment Rule 2004

(1) (Introduction)

(a) This rule sets out provisions for dealing with conflicts of interest other than
those conflicts in relation to conveyancing, property selling or mortgage
related services which are dealt with in rule 6.

(b) This rule applies to a regulated individual and a regulated practice.

(c) Conflicts between the duty of confidence and duty of disclosure owed by an
individual or a practice to two or more clients are dealt with in rule 16E. Continue reading “Detailed new conflict rules commence in England”

Another unrepresented lawyer bites the dust in WA

The lessons against self-representation in discipline cases are coming almost too thick and fast for me to digest them. Here is The West Australian‘s short article on the striking off recently of Vijitha De Alwis, a solicitor who played a part in a legal saga involving an attempt to deport a non-citizen Briton convicted of crimes, Mr Taylor. The Full Bench of the Supreme Court of Western Australia struck De Alwis off the roll of practitioners on 29 September 2006 in Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 following a report by the Legal Practitioners Disciplinary Tribunal. It is a case about receiving trust monies without holding a trust account, like the Victorian case in this post, but it is as much a case about a self-represented person shooting himself in the foot by:

  • serial non-compliance with rules and orders;
  • repeated bias applications (he said the Legal Practitioners Discipline Tribunal “descended to the dust of the Arena and blinded itself”); and
  • repeated ill-got-up adjournment applications on health grounds (one was based on a medical certificate in the following terms: “This gentleman suffers from numerous medical problems and is currently unfit to stand trial or an inquiry”; on another occasion “He said that he had medical advice to the effect that, if he continued to handle his case he ‘might end up having a severe Heart Attack or a massive Stroke that will be fatal’).

One of his problems was that there was ample evidence of him appearing in courts as advocate (or attempting to) at around the same times as he said he was unable to face trial in the proceedings against him. Another was that his written submissions as to why he was too ill to make written submissions disproved what they sought to argue (see [100]). The Full Court said:

“111 … the practitioner’s unfitness for practice is amply demonstrated, in addition, by the manner in which he has conducted himself in these proceedings. His affidavits have been replete with argumentative material, often including allegations of gross misconduct against judicial officers, practitioners and court staff, none of which appear to have any foundation. Moreover, as will be apparent, he has repeatedly failed to comply with time limits and directions imposed by the Court.” Continue reading “Another unrepresented lawyer bites the dust in WA”

Peter Faris QC profiled by The Age

Update: 26 December 2007 And again, this time on the subject of drink.  Peter Faris used to drink a lot of it. Then one day he stopped. Cold turkey.

Original post: You will have noticed that this blog is a blog in part about lawyers, with a bias towards Victorian lawyers. Here is an article about Peter Faris QC, a former chairman of the National Crime Authority, and founder of the Fitzroy Legal Service who “in the 1960s and ’70s added long hair and went to court in brown, elastic-sided boots, North Melbourne footy socks and a pinstriped morning suit, a sartorial snub at the dress code.” Here is his blog.

Amendments to Legal Profession Act, 2004

The Justice Legislation (Further Amendment) Act 2006 No. 79 (Vic) was assented to on 10 October 2006 and the relevant part came into effect the following day: s. 2(1). Part 13 amends the Legal Profession Act 2004. The relevant purpose is stated in s. 1(k):

“(k) to amend the Legal Profession Act 2004—
(i) to reflect amendments to the national model provisions for the regulation of
the legal profession;
(ii) generally to improve the operation of the Act”.

Part 13 says: Continue reading “Amendments to Legal Profession Act, 2004”

The South Australian take on the purpose of disciplinary proceedings

Here is what the then Chief Justice of South Australia, Doyle CJ, had to say in Craig v Medical Board of South Australia (2001) 79 SASR 545 at [41] to [48] about the purpose of disciplinary proceedings, referred to with approval by the Full Court of the Supreme Court of South Australia in Papps v Medical Board of South Australia [2006] SASC 234 (the subject of the last two posts):

“The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of
proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession. Continue reading “The South Australian take on the purpose of disciplinary proceedings”

Breach of undertakings leads to 12 month suspension for doctor

This is another salutary lesson against professionals representing themselves. An argument that the disciplinary tribunal had not accorded procedural fairness by failing to warn in advance of the possibility of a suspension was given short shrift.

And the courts’ reticence to disturb the findings of specialist professional tribunals, even when exercising appellate jurisdiction under a statute providing for appeals from such tribunals, was expressly articulated in Papps v Medical Board of South Australia [2006] SASC 234. That was an unsuccessful appeal by the doctor to the Full Court of the Supreme Court of South Australian from an unsuccessful appeal by him to a single Supreme Court judge from the decision of the Medical Practitioners Professional Conduct Tribunal suspending his right to practice for 12 months as a result of a miscellany of allegations, including a breach of practice management undertakings he had made to the Medical Board of South Australia. Another of the allegations was overenthusiasm as a medico-legal consultant: Continue reading “Breach of undertakings leads to 12 month suspension for doctor”

A sad story of a failure to qualify as a doctor after 20 years’ effort

Tsigounis v Medical Board of Qld [2006] QCA 295 is a warning of the dangers of self-representation by professionals. A medical student at Monash University took more than 11 years to complete her medical degree 20 years ago. She could not find work in Victoria, and travelled to Townsville to do her internship following a period of limited practice in Greece. It was not a happy internship. After extensions of the internship (involving a requirement of psychiatric counselling) and various ‘show cause’ notices, the Medical Board bit the bullet and refused to register her as a doctor, two years after the first application for registration, satisfied that the intern was incapable of satisfactorily completing an internship. Continue reading “A sad story of a failure to qualify as a doctor after 20 years’ effort”

Federal Court’s scheme for costs against solicitors personally

In Tran v Minister for Immigration Multicultural and Indigenous Affairs (No. 2) [2006] FCA 199, Justice Weinberg ordered a solicitor to pay costs personally. Justice Weinberg said:

“I am in no doubt that the applicant’s solicitor had no idea what he was talking about when he foreshadowed with me, at a directions hearing … that the applicant would be challenging the constitutional validity of certain provisions of the Migration Act.”

His Honour had warned him that if it turned out to be without merit, personal costs liability might follow. When notice of a constitutional issue (“all but incoherent”) was given, the Minister retained the Australian Government Solicitor in place of Clayton Utz, occasioning costs thrown away. The way his Honour described the constitutional argument, which the solicitor struggled to articulate for only a brief moment, suggests that it was reminiscent of Denis Denuto’s “it’s the vibe” speech in The Castle. Continue reading “Federal Court’s scheme for costs against solicitors personally”

Leave granted retrospectively to file charge out of time against barrister for 1999 conduct

New South Wales Bar Association v LI (No 2) [2006] NSWADT 263

Some of the allegedly agro behaviour of a now-78-year-old barrister at an arbitration which commenced on 19 December 1999 was not appreciated and resulted in a disciplinary complaint in May 2000. In mid-2003, a charge was finally laid by the NSW Bar Association. There had been changes of personnel at the Bar Association, and 5 months of absolute inactivity while they were distracted by another matter.
The Bar Assocation did not comply with a time limit for filing the charge after having become satisfied that the Administrative Decisions Tribunal would be likely to find unsatisfactory conduct. Their solicitor was ignorant of the limitation period, and they had become used to being granted leave retrospectively as a matter of course to file out of time. The barrister had made certain admissions towards acknowledging that his conduct amounted to unsatisfactory conduct. There had been protracted negotiations towards an agreed outcome involving a private reprimand and some form of counselling. But the barrister ultimately declined to be compelled to engage in psychotherapy. The NSW Administrative Decisions Tribunal ultimately granted the Bar Association’s application for retrospective leave to file the charge about 6 months late. Continue reading “Leave granted retrospectively to file charge out of time against barrister for 1999 conduct”

No problems with right to costs contingent on recovery from other side on costs order?

Update: 9 February 2008: A good wrap up of the American debate here at Legal Blog Watch.

Original post: In Wentworth v Rogers [2006] NSWCA 145, the NSW Court of Appeal seemed to pave the way for a future declaration as to the efficacity of a costs agreement that says the solicitor will get paid only if the client recovers costs from the other side, and only to the extent of that recovery, so long as there is some lip service paid to a residual obligation in the client to pay the lawyer regardless. Until I read this learned judgment I thought perhaps I was the only doubting Thomas in the world who thought that these agreements, increasingly de rigeur amongst the more switched on pro bono set, had their problems. So I was glad to see that the problems were recognised, and even more glad that such costs agreements seem likely in the future to be certified  kosher. Continue reading “No problems with right to costs contingent on recovery from other side on costs order?”

A little case about costs against lawyers personally in NSW

I posted a few days ago about the differences between the Victorian and NSW regimes for ordering costs against solicitors personally.

In Deputy Commissioner of Taxation v Rollason [2006] NSWSC 1032, the defendant consented to judgment with costs at trial having advised the Commissioner’s solicitors more than a month beforehand, confirmed 3 days beforehand, that the matter was unlikely to be defended. There was accordingly non-compliance with the pre-trial directions. The Court was in the dark about what was going on. Justice Gzell said the proper course in the circumstances would have been to apply to vary the pre-trial directions or seek the stay of the proceedings. The Court was inconvenienced in arranging its business. Justice Gzell required the defendant’s barrister and solicitor to show cause why they should not pay the costs thrown away by virtue of their non-compliance with the orders personally. Continue reading “A little case about costs against lawyers personally in NSW”

An incomplete list of Victorian admission cases

As noted by Justice Chernov in Board of Examiners v XY [2006] VSCA 190:

  • Frugtniet v Board of Examiners (No 2) [2005] VSC 332 (Gillard J)
  • Frugtniet v. Board of Examiners [2002] VSC 140 (Pagone J)
  • Fraukes v. Board of Examiners (Unreported, Supreme Court of Victoria, Phillips, J., 8 March 1989)
  • In the matter of Lisa Bronwyn Mann (Unreported, Supreme Court of Victoria, Nicholson, J., 9 December 1987)
  • Nicholls v. Board of Examiners [1986] V.R. 719 (Ormiston, Fullagar and Vincent, JJ.)
  • In the matter of Beverley Honig (Unreported, Supreme Court of Victoria, Nicholson, J. 28 August 1986)
  • Board of Examiners v. Whalen [1983] 1 V.R. 437
  • Re Miller [1979] V.R. 381
  • Re Warren [1976] V.R. 406 (Young, C.J. and Gillard and Anderson, JJ.)
  • Cash v. Board of Examiners [1972] V.R. 426

The XY saga of a formerly mentally ill applicant for admission

It is an intriguing saga which is recounted in Board of Examiners v XY [2006] VSCA 190, involving the application for admission to practice by a woman with a criminal record and a history of mental illness. According to psychiatrists, by the time of an appeal to the Supreme Court, her mental illness was over. So the Court overturned the Board of Examiners’ original decision, though acknowledging it had been correct at the time. The Court of Appeal recounted the facts (but did not reproduce the intriguing fact noted by the trial judge that much of the self-harm inflicted by the woman occurred in the toilets of court buildings in the city): Continue reading “The XY saga of a formerly mentally ill applicant for admission”

ACT Supreme Court summarises incompetence of counsel as a ground of appeal

Cornelius Stevens v Emily Mccallum [2006] ACTCA 13 (Higgins CJ, Crispin P and North J)

You can overturn your conviction if you can establish that by virtue of the incompetence of your counsel, your conviction was occasioned by a miscarriage of justice in the sense that you missed out on a substantial chance of acquittal. Whatever other scare tactics may be employed in favour of the preservation of the immunity, I believe it is true that counsel are less likely to cooperate in such appeals if the prospect of liability is attached to such cooperation.

The incompetence of counsel is a ground of appeal only in the criminal realm, and that is the only good reason in my mind for distinguishing between criminal and civil justice in considering advocates’ immunity. In this case, the Court’s contempt for the job done by the barrister was underscored by the language of the joint judgment, which included the words “blundered”, “egregious”, and “quixotic pilgrimage”, and the conviction was overturned because “the incompetent conduct of counsel led to the tender of the only evidence sufficient to convict the accused.” I have reproduced the whole of the Court’s summary of the relevant law below. Continue reading “ACT Supreme Court summarises incompetence of counsel as a ground of appeal”