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

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Entries Tagged as 'civil-disciplinary interplay'

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 v [...]

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

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

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

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

The subject matter of Daming He's complaint

December 16th, 2006 · No Comments

Update: 17 January 2008 VCAT has re-heard this case, and has made different findings of fact from some of those recounted below. See He v  A & Co Pty Ltd [2008] VCAT 3.
Original post
(This is part 2 of the post about He v A & Co Pty Ltd [2006] VSCA 150; [2006] VSCA 235. Part [...]

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

Justice Gillard gives the Law Institute a bloody belting

April 10th, 2006 · 1 Comment

SPB v Law Institute of Victoria [2005] VSC 509 (Gillard J, 12 December 2005) s. 151(3)(c)
Solicitors who read the back pages of the RPA News (dubbed the "sports pages") well know the schadenfreude associated with the decisions of professional regulators. Rarely does one have such an enhanced opportunity for guilty pleasure in the public excoriation [...]

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Tags: Uncategorized · civil-disciplinary interplay · prosecutorial failures · regulators' duties

A very generous approach to a Hungerfords damages claim tacked onto a misconduct prosecution

April 1st, 2006 · No Comments

Law Institute v KTBH [2006] VCAT 350 (Senior Member Howell)
There were separate disciplinary and negligence proceedings against the solicitor over the same facts. At the end of the disciplinary hearing, and on the basis of the prosecutrix's submissions, Mr Howell decided to determine the negligence case and get the whole thing over and done with. [...]

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Tags: Discipline · Misconduct · Negligence · Unsatisfactory conduct · civil-disciplinary interplay · common law · prosecutors' duties

Non-disclosure of own negligence founds unsatisfactory conduct conviction

March 31st, 2006 · No Comments

Law Institute of Victoria v PJR [2006] VCAT 293 (see the associated pecuniary loss dispute decision here)

The Law Institute prosecuted a solicitor for misconduct constituted by simply missing a time limit. That failed, as did most of the other charges. But he was convicted of unsatisfactory conduct in not telling his client for two years [...]

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Tags: Discipline · Unsatisfactory conduct · amendment · civil-disciplinary interplay · conflicts · costs · duty and interest · negligence as disciplinary breach · procedure · prosecutorial failures