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

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Entries Tagged as 'common law'

Solicitor’s correspondence with judge telling him how immature his conduct was doesn’t go down well in disciplinary tribunal

April 9th, 2016 · No Comments

Update, 5 October 2016: this decision is under appeal.  See this post. Original post: In Council of the Law Society of NSW v MAG [2016] NSWCATOD 40, a Sydney solicitor was disciplined for writing a private letter of complaint to a Federal Court judge the day after a decision was handed down, adversely to his client in […]

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Tags: common law · Discipline · Ethics · Judges · litigation ethics · Misconduct

VCAT finds practitioner guilty of conduct prejudicing administration of justice

April 2nd, 2016 · No Comments

I only learnt in the last few years that Melbourne is one of the world’s great Jewish cities, with a globally significant series of communities of orthodox adherents.  One of those orthodox communities has delivered up an interesting case.  In Victorian Legal Services Commissioner v AL [2016] VCAT 439, VCAT’s Acting President recently found a well known […]

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Tags: "disgraceful and dishonourable" · Briginshaw · common law · Discipline · duty to court · Evidence · litigation ethics · Misconduct · Rule of law · Vic Solis' Conduct Rules

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

Liability of directors of incorporated legal practitioners for wrongdoing of fellow directors

February 25th, 2016 · No Comments

Legislation regulating lawyers typically deals with directors of incorporated legal practices like Victoria’s Legal Profession Act 2004’s s. 2.7.11 as follows: ‘Each of the following is capable of constituting unsatisfactory professional conduct or professional misconduct by a legal practitioner director– (a) unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the […]

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Tags: common law · Discipline · Duties to third parties · Misconduct · Unsatisfactory conduct

Suspensions which are not suspensions and orders which are not orders

March 25th, 2015 · No Comments

VCAT’s latest decision to come to my attention, of Member Elizabeth Wentworth, involved another solicitor who did not lodge tax returns over an extended period. He was suspended from practice for 12 months, but the suspension was suspended provided he did not breach certain conditions in the three years after the orders.  If he does, then […]

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Tags: amendment · common law · Discipline · Dishonesty · fraud · Legal Profession Act · Misconduct · Practising certificates · procedure · Suspension

NSW solicitor who failed to pay counsel’s fees struck off

May 9th, 2014 · 2 Comments

Updated post (25 July 2014):  The answer to the question posed by the original post is: yes, he will be struck off.  Here are the reasons: Council of the Law Society of NSW V Andreone (No2) [2014] NSWCATOD 81.  His failure to make submissions on the question would not have assisted.  On the question of whether […]

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Tags: "disgraceful and dishonourable" · common law · Discipline · Misconduct · Professional fees and disbursements · Striking off · Trust money

More on the need for specific instructions before commencing proceedings on behalf of others

November 4th, 2011 · 1 Comment

Update: See now Doulman v ACT Electronic Solutions Pty Ltd [2011] FMCA 232.  A solicitor accepted instructions from a fellow solicitor to recover fees allegedly owing by a client.  The proposed plaintiff was a company which the fellow solicitor had until shortly before the retainer been authorised to represent.  The solicitor, acting honestly, accepted these […]

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Tags: common law · Discipline · Ethics · litigation ethics · Misconduct · Retainers

Lawyers’ false attestation of documents and fraudulent certificates of advice

April 10th, 2011 · 3 Comments

Updated post, 11 March 2016: In The Law Society of New South Wales v Gathercole [2016] NSWCATOD 27, the Tribunal was asked by the applicant to order the removal of the practitioner’s name from the roll for falsely attesting a wife’s signature in her absence on a document presented to the practitioner by the fraudster husband, a bank […]

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Tags: "disgraceful and dishonourable" · common law · Discipline · Misconduct · Unsatisfactory conduct

Can conduct unconnected with practice constitute misconduct at common law?

August 21st, 2010 · No Comments

Recently, it has been suggested that misconduct unconnected with legal practice (which the High Court has referred to as ‘personal misconduct’) may constitute professional misconduct at common law: New South Wales Bar Association v Cummins [2001] NSWCA 284; Legal Services Commissioner v RAP [2009] VCAT 1200, the subject of this post.  This post considers whether […]

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Tags: common law · Criminal liability · Discipline · Misconduct

Legal plagiarism cases: a non-exhaustive review

February 24th, 2010 · 1 Comment

I did a plagiarism case before the Board of Examiners last year, and looked up the cases then.  My colleague Patrick Over also reviewed them for his prosecution on behalf of the Legal Services Commissioner of the plagiarist solicitor in Legal Services Commissioner v WJK [2010] VCAT 108, and cleverly found a case from the […]

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Tags: common law · Discipline · Legal writing · Misconduct