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

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Entries Tagged as 'appeals'

Appeals from VCAT on the basis of inadequate reasons

April 19th, 2017 · No Comments

A failure to give reasons is an error of law.[1] Seriously inadequate reasons are corrosive of public confidence in the administration of justice and ought not to be tolerated by an appeal court, since justice must not only be done but be seen to be done. This is the first public policy informing the requirement […]

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Tags: appeals · Discipline · Judges · Legal writing · VCAT · VCAT Act

NSWCA surveys fines in NSW lawyers’ discipline decisions over a decade

November 14th, 2016 · No Comments

Russo v Legal Services Commissioner [2016] NSWCA 306 was the subject of my previous post. The Court engaged in a comparatively sophisticated review of disciplinary outcomes in like cases.  The purposes of this post is to reproduce that review and comment on the variables which ought to be taken into account in any proper survey of past outcomes. To […]

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Tags: appeals · Discipline · Legal Profession Uniform Law · Misconduct · Professional fees and disbursements · Professional regulation · Solicitor client bills of costs · The suit for fees · Trust money · Uniform Legal Services Council and Commissioner

NSW solicitor who didn’t pay counsel’s fees struck back on

November 13th, 2016 · No Comments

Salvatore Russo, a solicitor of 29 years’ standing, was struck off NSW’s roll of solicitors on 16 April 2016 by NCAT.  He had received payment from his client for counsel’s fees but not paid counsel for years. Then he was high-handed in response to the client’s entreaties when counsel sued the client directly.  The Court of Appeal found […]

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Tags: appeals · Discipline · Legal writing · Misconduct · Professional fees and disbursements · Trust money · trust monies

Applications to stay disciplinary decisions pending appeal

October 5th, 2016 · No Comments

I had to convince the Legal Services Commissioner to consent to a stay of orders suspending my client pending an appeal he has brought from VCAT the other day.  Happily the Commissioner consented.  For next time, I squirrel away this re-statement by the New South Wales Court of Appeal of the application to this class of […]

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Tags: appeals · Discipline · Legal writing · Suspension

Judicial review of decisions to dismiss disciplinary complaints

October 3rd, 2016 · No Comments

A man was acquitted of criminal charges.  The prosecution’s appeal failed.  He complained about the police’s lawyers’ conduct to South Australia’s Bureau de Spank, the Legal Practitioner Conduct Commissioner.  The Commissioner dismissed the complaint.  There was a statutory right of appeal in respect of some but not all categories of decisions at the conclusion of a […]

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Tags: appeals · Discipline · judicial review · Legal Services Commissioner · National Profession Uniform Law

The Bureau de Spank’s obligation not to publish about disciplinary orders until lawyers’ appeal rights are spent

June 19th, 2016 · No Comments

Parliament is considering a bill to re-instate the disciplinary register, and to prohibit the Bureau de Spank from trumpeting its successes before the respondent practitioners’ appeal rights are exhausted: Legal Profession Uniform Law Application Amendment Bill 2016 (Vic.).  Cl. 150E of the Bill proposes to prohibit the Legal Services Board from providing to the public information about disciplinary […]

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Tags: appeals · Discipline · Legal Profession Act · Legal Profession Uniform Law · Legal Services Commissioner · Legal writing · litigation ethics · National Profession Uniform Law · Professional regulation · prosecutors' duties · regulators' duties · VCAT

The permissible forensic uses of historical mental illness in professional discipline trials

March 2nd, 2016 · No Comments

Professor Dal Pont’s excellent text Lawyers’ Professional Responsibility (5th ed., 2013) suggests at [23.145] that mental illness will rarely provide a defence to a disciplinary prosecution, the purpose of which is protective rather than punitive.  He argues, in part, that the public needs protection just as much from the mentally ill who do bad things […]

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Tags: "disgraceful and dishonourable" · appeals · common law · Discipline · mental illness · Misconduct · negligence as disciplinary breach · Unsatisfactory conduct · wilful disregard for rules

Lawyers withdrawing ‘guilty pleas’ in disciplinary prosecutions at first instance and on appeal

March 2nd, 2016 · No Comments

BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 is the subject of this sister post about the permissible use of evidence of mental impairment.  Two aspects of it deserve their own separate post.  The respondent barrister changed her plea twice, once after the liability phase of the hearing but before the […]

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Tags: "question of law" · amendment · appeals · civil-disciplinary interplay · Discipline · mental illness · procedure

WASCA on the kind of recklessness in making statements which amounts to conduct warranting discipline

June 12th, 2014 · No Comments

Traditionally, the law of professional discipline has differed from the law of negligence in three profound ways.  First, its aim is the protection of the public (though the policy in favour of protecting the reputation of the profession grossly infects the purity of this proposition in most analyses).  Secondly, it is about personal wrongdoing.  Statute […]

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Tags: "question of law" · appeals · autrefois acquit · Discipline · Dishonesty · duties regarding witnesses · duty to court · Ethics · fraud · litigation ethics · negligence as disciplinary breach · procedure · prosecutorial failures · prosecutors' duties

VCAT rolled for finding solicitor guilty of a charge not levelled against him

April 30th, 2014 · No Comments

Justice Karin Emerton seems to be emerging as one of the Supreme Court’s specialists in what I call the law about lawyers, much of which is found in the Legal Profession Act 2004.  Early on in her judicial career, her Honour was assigned to the hearing of the extraordinary suite of matters between the Legal […]

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Tags: appeals · Discipline · jurisdiction · Legal Profession Act · Legal Services Commissioner · Legal writing · procedure · Vic Solis' Conduct Rules