Legal Practitioners Complaints Committee and JCB  WASAT 213
A sole practitoner dictated many precedent letters for his routine suburban personal injuries practice. His law clerk of 16 years’ experience, an arts graduate and a one-time law student, did all the work in a workers compensation file: she took instructions, signed letters taken from the precedent bank, negotiated with the counterparty, and was charged out at $240 per hour plus GST and $30 per short letter, $50 per one-page letter and $70 per long letter. The solicitor was unable convincingly to establish that he had done anything very much at all.
He was found guilty of “neglect” in failing properly to supervise the clerk and of “unprofessional conduct” in grossly overcharging. The first finding gave rise to a reprimand, the second to a $2,000 fine. Costs claimed at $10,000 were allowed at only $5,000 on the basis that the solicitor successfully resisted a third charge of constructively misrepresenting that the law clerk was a solicitor and on the basis that the retention of senior counsel by the prosecuting Committee was unnecessary. The third charge failed because no evidence was sought to be adduced of the solicitor’s complicity in the alleged deception, a timely reminder of an oft-forgotten principle that there is no disciplinary version of vicarious liability (a different concept from the wrong of failure to supervise). The law as to the supervision of clerks is well summarised in a neat and detailed judgment of Justice Barker, a Supreme Court Judge.