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

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Entries Tagged as 'common law'

Latest word on burden of proof in professional discipline 'prosecutions'

August 30th, 2008 · No Comments

In this post, I just reproduce what Deputy President Dwyer said recently about the burden of proof, right to silence, and inferences which may be drawn from the fact of the exercise by a solicitor of the right to silence. He said it in the context of a hard-fought hearing into the conduct of Kylie's [...]

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Tags: "disgraceful and dishonourable" · Discipline · Legal Practice Act · Legal Services Commissioner · Misconduct · Unsatisfactory conduct · VCAT Act · common law · procedure · prosecutorial failures · reckless disregard for rules · trust monies · wilful disregard for rules

Kylie's one-time lawyer goes down, with a 'disgraceful and dishonourable' finding

August 28th, 2008 · No Comments

On 13 August 2008, Deputy President O'Dwyer found charges of misconduct at common law made out against Kylie Minogue's one-time solicitor, the man towards the centre of the government's Operation Wickenby investigation, Michael Brereton. See Legal Services Commissioner v Brereton [2008] VCAT 1723. Mr O'Dwyer found he had transferred more than $2.3 million of [...]

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Tags: "disgraceful and dishonourable" · Discipline · Legal Practice Act · Legal Services Commissioner · Misconduct · Trust money · common law · conflicts · duty and interest · prosecutorial failures

Law Institute seeks 50 year ban for 62 year old solicitor

July 11th, 2008 · No Comments

In Law Institute of Victoria v DSS [2008] VCAT 1179, the Institute sought in a misconduct prosecution an order that the solicitor not be allowed to handle trust monies for 50 years. Vice President Judge Ross described the submission as 'somewhat excessive'.
The solicitor had stolen $75,000 from his clients and out of his trust [...]

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Tags: "disgraceful and dishonourable" · Criminal liability · Discipline · Misconduct · Practising certificates · Striking off · common law · costs · mental illness · procedure · prosecutorial failures · trust monies

Solicitor who blatantly lied to clients for years keeps ticket

April 29th, 2008 · No Comments

Legal Services Commissioner v BH [2008] VCAT 687 is a case with terrible facts. A man died as a result of a crime. The family hired the respondent solicitor to act for them in crimes compensation applications. He lost the file some time into the second year of the retainer, but did [...]

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Tags: "disgraceful and dishonourable" · Discipline · Misconduct · common law · mental illness · negligence as disciplinary breach · prosecutorial failures

Two new cases from NSW

December 2nd, 2007 · No Comments

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 [...]

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Tags: "disgraceful and dishonourable" · Admission · Criminal liability · Discipline · Misconduct · Negligence · common law

Barrister who signed as witness to pay $10,000

November 1st, 2007 · No Comments

A barrister purported to witness the signature of a wife on a guarantee at the request of his good friend the husband. But he did not witness her signature. Worse, he certified that he had explained the document to her and that she had appeared to understand it. A familiar story. As [...]

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Tags: Discipline · Misconduct · common law

Leading, senior and respected solicitor convicted over $0.75M fraud suspended till 2013

October 13th, 2007 · No Comments

In Legal Services Commissioner v. RDS [2007] VCAT 1835, a 'leading, senior and respected member of the profession' defrauded both his client and the revenue of three quarters of a million dollars.  He had been sentenced to 3 years' imprisonment, suspended for 3 years, having pleaded guilty in the criminal court.  He cooperated with the [...]

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Tags: "disgraceful and dishonourable" · Criminal liability · Discipline · Misconduct · common law · costs · procedure

3 years' holiday for not making ongoing discovery

April 28th, 2006 · No Comments

Guss v Law Institute of Victoria Ltd [2006] VSCA 88 (Maxwell P gave the lead judgment, Callaway and Chernov JJA agreeing)
A solicitor's right to practice was suspended for three years and he was ordered to pay costs of $31,500 for failing to comply with the obligation of ongoing discovery in relation to what was prima [...]

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Tags: "disgraceful and dishonourable" · "question of law" · Discipline · Misconduct · common law · costs · duty to court

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