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

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Entries Tagged as 'negligence as disciplinary breach'

Yet more on the obligation on Legal Services Commissioners to plead their case properly and stick to it

August 7th, 2016 · No Comments

Legal Services Commissioner v AL [2016] QCAT 237 is a decision of a disciplinary tribunal presided over by Justice David Thomas, President of QCAT and a Supreme Court judge. It is therefore of high persuasive value, and treats Queensland provisions which are the same as the equivalent Victorian provisions. And it provides what I suggest with […]

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Tags: Alleging fraud & misconduct · Briginshaw · Discipline · Dishonesty · Evidence · fraud · gross overcharging · jurisdiction · litigation ethics · natural justice · negligence as disciplinary breach · procedure · Professional fees and disbursements · prosecutorial failures · prosecutors' duties · Taxations · Unsatisfactory conduct · Wasted costs

Advocates’ immunity: at once more powerful and narrower than most yet understand

June 23rd, 2016 · No Comments

Advocates’ immunity was, until recently, more powerful than many lawyers were aware. Since the 1 July 2015 introduction of the Legal Profession Uniform Law and the High Court’s May 2016 decision in Attwells v Jackson Lallic Lawyers Pty Limited,[1] however, it may be narrower than many realise. And perhaps not everyone is aware that the […]

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Tags: Advocates' Immunity · Barristers' immunity · Civil Procedure Act 2010 (Vic) · Costs Court · Discipline · Insurance · Legal Profession Uniform Law · Legal Services Commissioner · National Profession Uniform Law · negligence as disciplinary breach · Professional fees and disbursements · Taxations · The suit for fees · Wasted costs

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

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

Counsel’s discretion as to trial tactics

April 14th, 2011 · 1 Comment

Joseph Vella purchased a knife and a black beanie and then turned up to his estranged wife’s door two days later in their company.  In his quiver he also sported a baseball bat.  He bashed her head in with the bat and then slit her throat with the knife.  Charged with murder, he admitted the […]

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Tags: Discipline · duty to court · Ethics · litigation ethics · negligence as disciplinary breach

Incompetence as ‘unsatisfactory professional conduct’

December 7th, 2010 · No Comments

A barrister in NSW is being prosecuted for being incompetent in the presentation of a criminal appeal: Council of the NSW Bar Association v DCF [2010] NSWADT 291.  The incompetence of his written submissions are said to amount to unsatisfactory professional conduct.  Section  496 of the Legal Profession Act, 2004 (NSW) says that unsatisfactory professional […]

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Tags: Discipline · negligence as disciplinary breach · Unsatisfactory conduct

NSW Court of Appeal on difference between ‘professional misconduct’ and ‘unsatisfactory professional conduct’

February 8th, 2010 · 2 Comments

The distinction between ‘professional misconduct’ and ‘unsatisfactory professional conduct’ is usually elusive.  Guidance from an appellate court in relation to cognate legislation is therefore valuable.  It seems that one instance of ‘incredibly sloppy’ work involving innocent false representations being made to the other side, if it is comprised of a series of closely related bits […]

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Tags: appeals · Discipline · Legal Profession Act · Misconduct · negligence as disciplinary breach · Unsatisfactory conduct

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 not tell his […]

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

Legal Services Commissioner publishes annual report

June 30th, 2007 · No Comments

The Legal Services Commissioner’s website is growing some content. Her annual report for the part-financial year ending 2006 is published there. In summary: For those who enjoy the suffering of others, commencing at p. 22 there is a list of all the adverse disciplinary findings made by VCAT’s Legal Practice List, and it names the […]

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Tags: conflicts · Discipline · Ethics · Legal Profession Act · Legal Services Commissioner · Misconduct · Negligence · negligence as disciplinary breach · Professional fees and disbursements · VCAT

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