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

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Entries Tagged as 'civil-disciplinary interplay'

The Civil Procedure Act’s overarching obligation to keep costs proportionate

April 20th, 2017 · No Comments

The Civil Procedure Act 2010 applies to proceedings in the Magistrates’ Court, County Court, and Supreme Court but not federal courts or VCAT. Its overarching purpose is to ‘facilitate the just, efficient, timely and costs effective resolution of the real issues in dispute’: s. 7.

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Tags: Civil Procedure Act 2010 (Vic) · civil-disciplinary interplay · Discipline · Ethics · litigation ethics · Party party costs · pro bono · Professional fees and disbursements · Proportionality · Wasted costs

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

Distinguishing between civil and disciplinary complaints

June 4th, 2009 · No Comments

In the latest Byrne v Marles ([2009] VSC 210), Justice Beach seems to have found that any particular allegation made by a complainant may properly be characterised as both a civil and a disciplinary complaint.  If the Legal Services Commissioner receives a complaint, she must investigate it to the extent it is a disciplinary complaint […]

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Tags: civil-disciplinary interplay · costs disputes · Discipline · Legal Services Commissioner · Professional fees and disbursements

Criminal prosecutions (-not) by disciplinary authorities

April 22nd, 2009 · No Comments

Updates, 13 June and 24 October 2012: See now Hagipantelis v Legal Services Commissioner of New South Wales [2010] NSWCA 79 from [23] and Legal Profession Complaints Committee v Masten [2010] WASAT 47. Original post: The Building Practitioners Board is the Bureau de Spank for builders. It initiated an inquiry into whether a builder had […]

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Tags: civil-disciplinary interplay · Criminal liability · Discipline · judicial review

Solicitor gets three year break for multiple conflict findings

November 29th, 2008 · No Comments

In Legal Services Commissioner v DJMH [2008] VCAT 2301, Deputy President McNamara’s tribunal ordered the solicitor not to practice before 1 July 2011 for multiple findings of acting in the face of a conflict.  It is unfortunate that the reasons for decision do not allow an understanding of what was alleged.  It had something to […]

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Tags: civil-disciplinary interplay · common law · concurrent duties · conflicts · Discipline · duty and duty · Ethics · Misconduct

The practising certificate suspension challenge that went wrong

October 21st, 2008 · No Comments

Update, 8 November 2008: When I wrote this post, the Court of Appeal had authoritatively answered another of the questions posed below, about the penalty privileges, but I had not yet read the case, CT v Medical Practitioners Board [2008] VSCA 157.  Now I have, and I have posted here about it. Original post: WPE […]

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Tags: civil-disciplinary interplay · costs · Discipline · Misconduct · Practising certificates · procedure · Professional regulation · prosecutors' duties · regulators' duties · VCAT Act

When will a professional discipline proceeding be stayed pending overlapping criminal charges?

July 23rd, 2008 · No Comments

Post updated 7 April 2013: See now ML v Australian Securities and Investments Commission [2013] NSWSC 283 (application to disbar liquidator not stayed pending related criminal proceedings which were ‘on the cards’: suggested that a secrecy regime could be imposed in respect of the disciplinary proceedings so as to protect the liquidator in the criminal proceedings). […]

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Tags: civil-disciplinary interplay · Criminal liability · Discipline · procedure

Confirmed: your client can privately prosecute you for misconduct

June 3rd, 2007 · No Comments

Acting President Bowman handed down a decision on Friday in Cedric Naylor’s Case [2007] VCAT 958 approving the existing practice of VCAT, and before it the Legal Profession Tribunal, of entertaining professional misconduct allegations against lawyers by their clients as part of applications to set aside costs agreements. Entertaining them, that is, outside the disciplinary […]

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Tags: civil-disciplinary interplay · Discipline · jurisdiction · Legal Practice Act · Misconduct · procedure · Professional fees and disbursements · setting aside costs agreements · Unsatisfactory conduct

Can you be prosecuted for mere negligence?

January 17th, 2007 · No Comments

There is no doubt that mere negligence cannot constitute misconduct in the traditional concept of that expression: Myers v Elman [1940] AC 282 at 288; Re Hodgekiss (1959) 62 SR(NSW) 340 at 351; Re Veron (1966) 84 WN (Pt 1) (NSW) 136 at 143 (CA); Re Miles (1966) 84 WN (Pt1) (NSW) 163 at 173 […]

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Tags: civil-disciplinary interplay · Discipline · Misconduct · negligence as disciplinary breach · Unsatisfactory conduct

Daming He’s experience of the legal regulators

December 16th, 2006 · No Comments

The unsuccessful complaint to the Legal Ombudsman, referred by her to the Victorian Bar, took more than 5 months to complete. Then the Law Institute complaint went on for about 2 months. The Legal Profession Tribunal made a decision 10 months later, the Full Legal Profession Tribunal 3 months later again. The Court of Appeal […]

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Tags: civil-disciplinary interplay · Discipline · Legal Practice Act · Negligence · regulators' duties