On the perils of the undersupervised law clerk

Legal Practitioners Complaints Committee and JCB [2005] 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.

Continue reading “On the perils of the undersupervised law clerk”

Bankrupt may not initiate dispute resolution procedure in relation to rights accrued prior to bankruptcy

Kaiser v Faulkner [2006] VCAT 1302

What this case illustrates is simply that upon bankruptcy the right to seek compensation or the waiver or diminution of legal costs through the dispute process under the Legal Practice Act, 1996 vests in the trustee in bankruptcy and never revests in the bankrupt even if not taken up by the trustee. Continue reading “Bankrupt may not initiate dispute resolution procedure in relation to rights accrued prior to bankruptcy”

Open offer under cover of denial of negligence averts hearing

Chen’s Case [2006] VCAT 748 (Senior Member Howell): costs; s. 132(b); s. 133(2); s. 407 (see the associated disciplinary decision here)

A solicitor averted being found negligent by openly offering to pay the claimant the maximum amount VCAT could award under cover of a denial of negligence. Mr Howell found that it would not be “fair” to put the solicitor through a hearing only to determine negligence. Continue reading “Open offer under cover of denial of negligence averts hearing”

Costs of prosecutor’s in-house lawyers

Law Institute of Victoria v SA [2006] VCAT 742

A solicitor’s prima facie sound argument — that the indemnity principle at the heart of the common law’s costs jurisprudence meant that the Law Institute should not be entitled to its in-house solicitor’s costs of the prosecution — failed. The reason: because the LIV was engaging in a statutory duty. Continue reading “Costs of prosecutor’s in-house lawyers”

3 years’ holiday for not making ongoing discovery

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 facie a privileged copy of a document produced by an expert witness a few days before trial which, had the existence of the copy document been disclosed to the other side, might have put the other side onto a train of enquiry which might have led to relevant evidence. Continue reading “3 years’ holiday for not making ongoing discovery”

Justice Gillard says: prosecute the same offence as many times as you like

Update: This decision was reversed on appeal: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301.

Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 (Gillard J)

Justice Gillard said doctors get no res judicata and allowed the doctors’ regulator to fix a bungled prosecution following a complaint by deciding to investigate the matter already decided under its power to investigate of its own volition. Continue reading “Justice Gillard says: prosecute the same offence as many times as you like”

The Law Institute exercised jurisdiction it didn’t have on receiving a pecuniary loss dispute resolution request from a bankrupt

Said Georges’ Case [2006] VCAT 414

Upon bankruptcy certain causes of action vest in the trustee in bankruptcy, and others do not: see ss. 58(1) and 116(2) Bankruptcy Act, 1966. This dispute vested in the trustee upon the client’s bankruptcy, but the trustee wrote the client a letter consenting to “the bankrupt’s pursuit of the dispute with [the solicitor] by lodging the appropriate applications to the Legal Profession Tribunal”. Mr Butcher found that though the trustee probably had the power to engage the bankrupt client to pursue the claim for the benefit of the estate, but “the letter does not indicate to me that such was the intention of the trustee”, and dismissed the dispute.

Evidently, this was a matter overlooked by the Law Institute which blithely exercised jurisdiction it did not have, to the detriment not only of the taxpayer’s pocket but of the solicitor’s.

Bernard Sheehy was for the solicitor, and Alan Hebb for the Tribunal.

Non-disclosure of own negligence founds unsatisfactory conduct conviction

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 that he had missed a crucial time limit, giving rise to a conflict between duty and self-interest. After 3 days of hearings, the solicitor was fined $1,000 and ordered to contribute only a fraction of the Law Insitute’s costs.

Continue reading “Non-disclosure of own negligence founds unsatisfactory conduct conviction”

Demand for information “within 14 days” complies with s. 149

Law Institute of Victoria v MMM [2006] VCAT 182

Section 149(3) of the Legal Practice Act, 1996 says that a demand by the Law Institute under the power to compel information and documents must be in writing and “must allow at least 14 days to comply”. In a marvellously ambitious move, Rod Randall unsuccessfully challenged the Tribunal’s jurisdiction on the basis that a demand for information “within 14 days” did not allow his client at least 14 days to comply.

Continue reading “Demand for information “within 14 days” complies with s. 149″