Applications for reinstatement to the roll of practitioners

Generally, if you are struck off and want to be reinstated to the roll of practitioners, it is necessary credibly to exhibit remorse for the conduct which led to your being struck off.  Pity the person struck off for something they genuinely believe they did not do: must not lie on oath about being contrite but cannot get their livelihood back without being believed on that point.

Unfolding ever so slowly before the Supreme Court of Queensland is an application for reinstatement by a solicitor who was struck off for deliberately misleading a court and attempting to suborn the evidence of a witness. She believes that the evidence of the witness in her striking off case was false.  She pursued that line on an appeal from the striking off decision to the Court of Appeal and unsuccessfully sought leave to appeal to the High Court.  Then she sued him for defamation, but discontinued, and made several complaints about him to the disciplinary bodies regulating engieers, which were dismissed.  In her reinstatement application, the solicitor sought to rely on new evidence not available prior to the High Court appeal bearing on who was telling the truth at her striking off hearing out of her or the witness. Continue reading “Applications for reinstatement to the roll of practitioners”

How not to correspond with the person you’re seeking a practising certificate from

A decision of the Supreme Court is another lesson in the perils of self-representation.  What started off as a failure to lodge income tax returns for a few years snowballed into a situation where the barrister’s intercourse with the judiciary and the Bar Association in relation to inquiries made by the Bar Association revealed him to be not a fit and proper person to hold a practising certificate, 42 years into his career at the Bar.  See JTB v Bar Association of Queensland [2010] QSC 306, the dismissal of an appeal from a decision not to renew the barrister’s practising certificate.

A mistake not to make

University of Western Australia v Gray (No 25) [2009] FCA 1227 is a horror story.  Gray won and Justice French ordered the University to pay his costs.  It was a big case.  But the University contended that to the extent that Gray’s lawyers had not placed themselves on the roll of practitioners maintained by the Federal Court, Gray could not recover from the University party-party costs of those lawyers. Perth’s Justice Barker decided that the University did not have to pay those costs, by reference to ss. 55A, s 55B and s 55C of the Judiciary Act, 1903. That was so despite the fact that Gray had already paid his lawyers’ fees.  The consolation prize was that the relevant lawyers’ work, or some of it, could be assessed on a party-party basis at the rates allowable for managing clerks. But Justice Barker noted that the scale allowance for solicitors’ time was 4.5 times the allowance for clerks’ time.  The thing is, you see, when you get admitted and sign the roll of your Supreme Court, you do not automatically become enrolled on the rolls maintained by federal courts.  My employer at the time of admission was diligent enough to get me to go and sign the federal rolls at (from memory) the Melbourne Registry of the High Court, immediately after admission.

Criminal records

I have defended more than one lawyer whose client said the lawyer had failed to advise him properly as to the consequences of a guilty plea.  There are many more gradations of disposition of criminal prosecutions than I had realised, and ‘without conviction’ does not mean that society forgets the transgression ever after for all purposes.  I seem to recall that even pending charges appeared on the Police’s LEAP database, which generates criminal record checks.  Victoria has no spent convictions legislation, unlike the other states and territories other than South Australia, but the situation is not quite so simple as that statement makes it sound, since there are certain practical non-legislative impediments to obtaining criminal record checks which go back too far.  Here is a link to a Melbourne University Law Review article which seems to contain a wealth of up to date scholarship on the consequences of various dispositions of criminal proceedings.  The authors are Brownyn Naylor, Associate Professor Moira Paterson, and Professor Marilyn Pittard.

Sex offence doctor’s VCAT success stayed pending appeal

The Herald Sun has been active recently with front page excoriation of VCAT’s professional regulatory review jurisdiction for letting loose on the public again those they have described in unusually large letters as ‘sex fiends’ and ‘insane killers‘.  The two decisions are SL v Medical Practitioners Board of Victoria [2008] VCAT 2077, a decision of Judge Ross’s tribunal, and XJF v Director of Public Transport [2008] VCAT 2303, a decision of Deputy President Macnamara.  Given that the psychiatric evidence about the taxi driver was ’emphatically favourable’, the homicide occurred 18 years ago, and the taxi driver, whose son has leukemia and needs flexible work, has led an apparently blameless and psychiatrically acceptable life since, the Hun was a bit harsh. It surely cannot be right to call a man who committed a homicide two decades ago in the grip of a psychosis from which he has recovered an ‘insane killer’ in such a way as to refer to the present.

The taxi driver decision was reversed legislatively. The Medical Practitioners Board appealed the doctor’s success in VCAT.  Justices of Appeal Redlich and Weinberg granted an unusual stay of VCAT’s decision: Medical Practitioners Board of Victoria v SL [2008] VSCA 264. The appeal ultimately failed: [2009] VSCA 109.

Continue reading “Sex offence doctor’s VCAT success stayed pending appeal”

Burden of proof in actions to cancel a practising certificate or strike a lawyer off the roll of practitioners

In Stanoevski v Council of the Law Society of NSW [2008] NSWCA 93, Justice of Appeal Campbell, with whom Justice of Appeal Hodgson and Acting Justice of Appeal Handley agreed, has provided important guidance on who bears which burdens of proof in cases where a legal regulator seeks to cancel a practising certificate or have a lawyer struck from the roll. (Cancellation by a legal regulator of a practising certificate lasts only as long as the practising certificate (i.e. until the end of the financial year), whereas striking off the roll lasts until an application for readmission succeeds, at which point, an application may be made for a practising certificate. To complicate things, though, cancellation of a practising certificate as a result of a disciplinary hearing by VCAT may result in a condition that the lawyer not reapply for practising certificate for a specific period. Being struck off the roll and having your practising certificate cancelled are not all that different really.) In summary, the situation is as follows:

  • applicants for admission have the burden of establishing that they are fit and proper persons to be admitted to practice and enrolled by signing the roll of practitioners: Re B [1981] 2 NSWLR 372 at 403; Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported) at 5;
  • legal regulators who apply for an order cancelling a practitioner’s practising certificate have a civil onus of proving on the Briginshaw standard that the practitioner is not, at the time of the hearing, a fit and proper person to practise;
  • legal regulators who apply for an order striking off a practitioner, that is, for an order that their name be struck off the roll of practitioners, have a civil onus of proving on the Briginshaw standard that the lawyer is not a fit and proper person to practise, and that the likelihood is that they will continue not to be for the indefinite future;
  • lawyers who have either been struck off, or who have been found guilty of misconduct but rely on remediation during the time between the misconduct and the hearing so as to argue that they are now fit to engage in practice bear the burden of proving that the new leaf they have turned over is as green and shiny as they claim. Continue reading “Burden of proof in actions to cancel a practising certificate or strike a lawyer off the roll of practitioners”

Lawyer to gangland figures not guilty of alleged crimes

The Crown entered a nolle prosequi on Tuesday on the charges of giving false evidence against Melbourne’s best known female criminal lawyer, Z G-W. In other words, they dropped the charges before trial for want of a reasonable prospect of conviction. The key witness was unable to remember crucial evidence which the Crown obviously figured he would remember. The most interesting fact to emerge from this latest development in the saga is that one of the bits of allegedly false evidence was that spirits had told the solicitor the details of Lewis Caine’s murder. She said that spirits were talking to her. It will be interesting to see what the Legal Practice Board and VCAT make of all this. The solicitor’s VCAT proceeding is a merits review under the VCAT Act, 1998 of the Board’s decision not to renew the solicitor’s practising certificate. Parties to such proceedings may not refuse to answer questions on the basis of the privilege against self-incrimination: ss. 80(3), 105 of the VCAT Act, 1998 which are reproduced below.

I wonder whether anything would stop the Board from calling the solicitor as its own witness and just asking her whether she lied on oath, or, if she were to give evidence, cross-examining her about this. If she did, she would presumably be obliged to say so honestly, though her answers could not be used to prosecute her again, only to inform VCAT in its decision about whether she is a fit and proper person to hold a practising certifiate. In ascertaining whether a person is of good fame and character, or otherwise a fit and proper person to hold a practising certificate, the stipes are entitled to take into account not only criminal convictions but criminal charges, even where the charge resulted in an acquittal: Frugtniet v Board of Examiners [2002] VSC 140, a decision of Justice Pagone. Continue reading “Lawyer to gangland figures not guilty of alleged crimes”

Barristers never used to need practising certificates

Justice Fullagar narrated the history of practising certificates and barristers in Victorian Lawyers RPA Limited v Henderson [1999] VLPT 13:

‘For brevity we shall refer collectively to the succession of statutes governing legal practice in Victoria from the time of the Royal Assent to the Legal Profession Practice Act 1958 until the present day as the legal practice acts. Until 1989 the legal practice acts did not require a legal practitioner to have a practising certificate if he or she was engaged in practice exclusively as a barrister. In 1989 the legal practice acts were amended, and what might be called the certificate-free area was restricted to those legal practitioners whose names were on the Bar Roll kept by the Victorian Bar Council. Finally the Legal Practice Act of 1996 provided and still provides that so far as Victorian practitioners are concerned no person whatever shall engage in legal practice unless the person holds a practising certificate. See section 314. The contents of sub-sections (5) and (6), and the penalty of two years imprisonment for engaging in practice without a certificate, demonstrate the importance of these fundamental provisions in the eye of the legislature.

Clause 10 sub-clause 3 of Schedule 2 of the Act of 1996 provided that those practitioners who were on the bar roll need not have a practising certificate until April 1997.’

Child porn accused gets ticket back on strict conditions

Almost 3 months ago, a 71 year old sole practitioner who has practiced for 28 years was charged with knowingly possessing child pornography and knowingly transmitting an image of a child having sex. He has not admitted the charges which remain to be tried. He is of course presumed innocent. Nevertheless, the Legal Services Board (through its delegate the Law Institute of Victoria) peremptorily suspended his practising certificate without notice. The Board’s reasons do not appear clearly from VCAT’s decision. It would be interesting to know why the fact of a charge sufficed to satisfy the Board that the solicitor’s right to practise law should be terminated immediately and without hearing him on the question. The solicitor applied to VCAT for a de novo review of the decision. Senior Member Howell’s decision is FM v Law Institute of Victoria Ltd [2008] VCAT 692. The solicitor has 30 current files and a quarter of a million dollars in his trust account. He desires to retire on 1 July, and said that if he could have his practising certificate back he would undertake not to take on any new matters, and to wind up his affairs by then. In the face of the Board’s vehement opposition, VCAT said he could have his practising certificate back. Continue reading “Child porn accused gets ticket back on strict conditions”

Megafirm partner who stole to make budget gets his ticket back after long holiday

The latest application for review of a decision of the Legal Services Board decision not to grant a practising certificate was in the matter of DAP v Law Institute of Victoria [2008] VCAT 688. The 57 year old solicitor and former Melbourne Cricket Club Committee member was a property lawyer at one of Melbourne’s megafirms for about 27 years, many of them as a partner. Over the last nine of those years, he committed various acts of professional misconduct associated with the firm’s trust account. Of course the megafirm was not always a megafirm. The solicitor was for most of his career in one of the firms swallowed up into the megafirm. Justice Betty King, in the solicitor’s criminal prosecution said:

‘6. The [offences] are at the lowest end of the scale of offences of this nature. The total involved was just over $9,000 and it was not money that at any stage was ever to be for your own spending. The money was directed into meeting the targets set by your firm for your department. All firms have become hard-headed businesses, with targets and budgets and six minute units which, I add, is, in my view, driving young lawyers out of the profession at a very rapid rate. You, unfortunately, had commenced practice when it was a profession and unlike its current incarnation. It would, of course, have been preferable to have approached your other partners and indicated that it was not possible to meet the budget that had been set for you and suffered the consequences of not meeting that budget. Instead, you chose this course of conduct, the one of stealing money from those accounts. That has resulted in far worse consequences for you, your wife, your children and the community that you had previously served so well. Continue reading “Megafirm partner who stole to make budget gets his ticket back after long holiday”

Cases, cases

Update, 19 February 2008: Fellow Melbourne law blogger Legal Eagle has kindly written a case note on Equuscorp v Wilmoth Field Warne.

Update, 21 December 2007: Another two advocates’ immunity cases:

1. Symonds v Vass [2007] NSWSC 1274, 36,000 words, after nearly 3 weeks of trial. See Ysaiah Ross’s case note in his article in The Australian on 30 November 2007 titled ‘Let’s Dump Advocates’ Immunity’.

2. Mallik v McGeown [2007] NSWSC 1414.

Update, 19 December 2007: Fellow Melbourne law blogger Legal Eagle has done an excellent case note on the first case referred to below, saving me the trouble.

Original post: The Supreme Court and Court of Appeal is dropping cases on this blog like no tomorrow. I can’t keep up, so I will just bring them to your attention for the time being:

1. Re Legal Practice Act 2004; re OG, a lawyer [2007] VSC 520, in which the Court of Appeal today struck off the roll a barrister whose disclosure to the Board of Examiners about an allegation at university that he cheated on an assignment was found to be a lie. Legal Eagle provided a long note of the case here. In other news, a famous American judge, Richard Posner, wrote a book on plagiarism. He blogs too. Update: 29 January 2008: And compare this American case (In the Matter of Willie Jay White, Supreme Court of Georgia) about an applicant for admission to practice which was denied because his explanation for curious similarities between his work and another’s at law school was not believed.

2. Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) [2007] VSCA 280, a case about whether estoppel by convention could operate against the prima facie disentitlement in a solicitor to recover fees under a void costs agreement, and about where exactly the dividing line is between a void and a good costs agreement. It is the latest in a long saga.

3. Coadys (a firm) v Getzler [2007] VSCA 281, a case covering much the same territory as the Equuscorp Case. This case and the previous one will be very important for the interpretation of the Legal Profession Act, 2004‘s costs provisions.

4. Francis v Bunnett [2007] VSC 527, in which Justice Lasry dismissed an application for summary judgment by reference to advocates’ immunity in a classic regretted settlement case. That is, his Honour was not persuaded of the hopelessness of the client’s argument that where there has been no adjudication after a trial, there is no finality of the kind protected by the immunity which is worthy of protection. It is notable that a number of cases which have gone the other way are not mentioned in the judgment.

5. MM&R Pty Ltd v Grills [2007] VSC 528, a decision of Justice Cavenough yesterday about the availability of advocates’ immunity as a defence to a suit alleging simple delay, and where there has been no adjudicated decision of a court worthy of protection. His Honour recognised that the immunity applied in such circumstances.

It will be interesting to read the two advocates’ immunity decisions more carefully, and tease out to what extent they are consistent with one another.

Two new cases from NSW

Here’s a 37,000 word long judgment in a professional negligence case against a solicitor which began in early 2000: Rebenta Pty Ltd v Wise [2007] NSWSC 1332. It does not discuss many issues of law. The reason one might want to look at it is that it is one of those rare cases where a dispute about whether there was one ongoing retainer or several more discrete retainers of a solicitor. The solicitor won after a four and a half week trial.

In The Prothonotary of the Supreme Court of New South Wales v. Sukkar [2007] NSWCA 341, the NSW Court of Appeal engaged in a surprising degree of soul searching before deciding to strike an ecstasy importer cum solicitor off the roll of practitioners. The fact that he gave false evidence in his trial did not assist him. The decision is an interesting illustration of the distinction between a finding of want of good fame and character and a finding of professional misconduct where the conduct in question is unconnected with legal practice. The Court of Appeal’s decision in the criminal appeal is reported at Regina v Sukkar [2005] NSWCCA 54. The importation of 124 kilograms of ecstasy earnt the solicitor 14 years in jail. In relation to the appropriateness of a finding of misconduct where the conduct in question is unconnected with legal practice, Basten J said in separate reasons from the majority: Continue reading “Two new cases from NSW”

Supreme Court enjoins Legal Practice Board’s solicitors from continuing to act

ZG-W v CCW (a firm) (2007) VSC 235 is the latest in the saga of the Legal Practice Board’s practising certificate cancellation of Melbourne’s best known female criminal lawyer. She has succeeded in having the Board’s lawyers enjoined from acting further for the Board on the relatively rare basis that it would bring the administration of justice into disrepute if they were permitted to continue to act. They obtained a transcript of an Australian Crime Commission examiner’s interrogation of the solicitor. The solicitor is charged with giving false evidence in that examination which is one of the reasons why the Board refused to renew her practising certificate. Justice Bell said at [20]:

‘The solicitor at the [Office of Public Prosecutions] refused [CCW’s] request because the plaintiff was contesting the allegations and the presumption of innocence applied to her. If I may say so, this is important advice that everybody should keep firmly in mind.’

Because of the invasive powers of compulsion exercised against the solicitor as examinee, the transcript was not permitted to be used otherwise than for the purposes of the examination, though an exception was made for the purposes of the charge of giving false evidence in the examination. The Legal Practice Board, through its lawyers, procured a copy of the transcript for use in the solicitor’s VCAT challenge to the Board’s refusal to renew her practising certificate. The story involves a baptism of fire for a newly admitted solicitor: Continue reading “Supreme Court enjoins Legal Practice Board’s solicitors from continuing to act”

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”

Case specific blogs start appearing

Update: 22 December 2007

Legal Blog Watch’s Carolyn Elefant predicts:

‘2008 will be a banner year for single-issue blogging, like David Rossmiller’s coverage of “everything Richard Scruggs,” Above the Law’s coverage of Aaron Charney’s lawsuit against Sullivan & Cromwell or Durham in Wonderland, covering the Duke lacrosse team rape case.’

Dickie Scruggs, an American lawyer, and others pleaded not guilty to criminal charges that they schemed to bribe a judge handling $26.5 million in legal fees related to Hurricane Katrina claims. Aaron Charney settled his sexuality discrimination case against Sullivan & Cromwell. Mike Nifong was disbarred over his over-zealous prosecution of a rape complaint against a team of Duke University lacrosse players.

Check out, too, this analysis of the project of a blogger, Jane Genova of Law and More, who blogged 3 to 6 posts a day during a civil jury trial about lead paint in the US.

Original post: Apple has announced the iPhone. But Cisco owns a trademark “Iphone”. So Cisco has sued Apple. And a top Cisco exec is blogging about the case, waging the war in the court of public opinion. This post considers that blog and a handful of blogs set up by journalists covering cases of public interest, mainly murder trials of whites from the look of things. Continue reading “Case specific blogs start appearing”

Legal Services Board doesn’t renew ticket of lawyer to gangland figures

Two blokes shot this well known lawyer’s underworld partner Lewis Caine and got put on trial for murder. Representative of a few underworld clients, she refused to give evidence at the two blokes’ trials despite having been ordered by the Court to do so. She said she was scared of getting her head blown off. Harper J found that she was genuinely afraid but under no imminent threat and convicted her of the crime of contempt of court. He did not impose any penalty, however, citing “exceptional circumstances”. She appealed to the Court of Appeal, but dropped it, after — according to The Australianthe judges warned her that if her appeal failed they might impose a penalty. Then the DPP appealed, but the Court of Appeal ruled yesterday that they had no right to do so, and threw it out: DPP v G-W [2006] VSCA 295. But the Legal Services Board wrecked the party by refusing to renew the solicitor’s practising certificate on the grounds that she is not a fit and proper person to practice the law. She will take the matter to VCAT and can continue to practice in the meantime. It will be an interesting case.

“VCAT may make orders of a transitional nature” read down

K v Legal Services Board [2006] VCAT 2303; K v Legal Services Board No. 2 [2006] VCAT 2362 (Bowman J)

A solicitor lied to a County Court judge about holding a practising certificate and was told in 2001 by the Full Legal Profession Tribunal not to bother applying for a practising certificate until 2011 and only if he had complied with two previous orders of the Tribunal. It ordered the solicitor to be referred to the Supreme Court with a recommendation that his name be struck off the roll of practitioners. The Law Institute duly applied to the Supreme Court declined to strike him off, finding that inadequate notice of the Tribunal hearing had been given to the solicitor. The solicitor did not then appeal the Full Tribunal’s order. Three and a half years later, the solicitor applied under s. 2.4.9 of the Legal Profession Act, 2004 for a practising certificate, by which time the Legal Practice Act, 1996 had been repealed and the Legal Profession Tribunal abolished. He said the Supreme Court had ruled that the Full Legal Profession Tribunal’s decision had been defective, and as the successor to that Tribunal, VCAT must be able to “remedy” the Full Legal Profession Tribunal’s defective decision. Bowman disagreed, suggesting that the only remedy available to the solicitor might be to use “the provisions of the Interpretation of Legislation Act, 1984 in relation to repealed legislation” to bring an appeal under the now-repealed Legal Practice Act, 1996 (as to which, see below). Continue reading ““VCAT may make orders of a transitional nature” read down”

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”

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