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

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Entries Tagged as 'prosecutors’ duties'

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

The Bureau de Spank’s obligation not to publish about disciplinary orders until lawyers’ appeal rights are spent

June 19th, 2016 · No Comments

Parliament is considering a bill to re-instate the disciplinary register, and to prohibit the Bureau de Spank from trumpeting its successes before the respondent practitioners’ appeal rights are exhausted: Legal Profession Uniform Law Application Amendment Bill 2016 (Vic.).  Cl. 150E of the Bill proposes to prohibit the Legal Services Board from providing to the public information about disciplinary […]

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Tags: appeals · Discipline · Legal Profession Act · Legal Profession Uniform Law · Legal Services Commissioner · Legal writing · litigation ethics · National Profession Uniform Law · Professional regulation · prosecutors' duties · regulators' duties · VCAT

Admissibility of material relevant to penalty at the liability stage

October 7th, 2015 · No Comments

In my experience, the Legal Services Commissioner generally assumes that material relevant to penalty is inadmissible at the liability stage.  So, for example, the Commissioner applied recently for leave to re-cross-examine a practitioner in a disciplinary hearing, after the close of evidence, in order to adduce evidence relevant to penalty by reference to ‘disciplinary priors’, even though […]

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Tags: Discipline · Evidence · Legal Profession Act · Legal Services Commissioner · procedure · prosecutors' duties

VCAT’s President’s extra-judicial views on Barbaro in VCAT disciplinary hearings

June 10th, 2015 · No Comments

In my last post, I briefly surveyed VCAT’s approach to the Barbaro principle in disciplinary proceedings against solicitors.  I just came across a presentation given by the Supreme Court’s Justice Garde, VCAT’s President which touches on this issue.  The presentation is titled ‘Alternative Dispute Resolution – Can it work for Administrative Law?’. It was given […]

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Tags: Discipline · procedure · prosecutors' duties · VCAT

Submissions on penalty in regulatory proceedings like ASIC and disciplinary prosecutions

June 8th, 2015 · No Comments

The Federal Court has given a landmark decision about regulatory prosecutions.  In federal jurisdictions and state jurisdictions which follow the new decision, professional disciplinarians like ASIC and Legal Services Commissioners will no longer be able to enter into plea bargains in the expectation that the court or tribunal hearing them will rubber stamp the agreed […]

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Tags: Criminal liability · Discipline · Legal Services Commissioner · Legal writing · Out of court settlements · procedure · Professional regulation · prosecutors' duties · regulators' duties · Rule of law

Legal Services Commissioner seeks to overturn privilege against penalties

April 7th, 2015 · 1 Comment

There is an old and well established privilege, the privilege against penalties, which is a relative of the privilege against self-incrimination.  It entitles solicitors facing disciplinary prosecution to stay silent throughout the proceedings until the end of the Commissioner’s case unless the Tribunal makes an order requiring provision of written grounds and an outline of […]

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Tags: Discipline · doctors · duty to court · Evidence · Legal Profession Act · Legal Services Commissioner · litigation ethics · natural justice · Penalties privilege · procedure · prosecutors' duties

More on the constraints on the use of information obtained under statutory powers

February 10th, 2015 · No Comments

In Flori v Commissioner of Police [2014] QSC 284, a police sergeant was suspected of committing a crime: leaking to News Ltd footage of an incident in respect of which another officer was being investigated by a disciplinary authority for using excessive force.  A criminal investigation was launched as a result of the findings of […]

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Tags: Criminal liability · Discipline · Evidence · procedure · prosecutors' duties

VCAT’s Legal Practice List and the Privilege Against Penalties

July 30th, 2014 · 1 Comment

I have been banging on about the privilege against penalties for a long time.  VCAT used routinely to require respondents in disciplinary proceedings to submit witness statements prior to the final hearing.  Then the Court of Appeal admonished it for doing so in Towie v Medical Practitioners Board of Victoria [2008] VSCA 157.  (That case stands for […]

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Tags: Discipline · procedure · prosecutors' duties · VCAT Act

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

Clyne v NSW Bar Association: the leading case on unfounded allegations

February 11th, 2014 · No Comments

Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 is a unanimous decision of the Dixon Court confirming the striking off of a Sydney barrister, Peter Clyne, for making unfounded and serious allegations on behalf of a husband against the wife’s solicitor in matrimonial litigation for the admitted purpose of […]

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Tags: "disgraceful and dishonourable" · Abuse of process · Alleging fraud & misconduct · Discipline · duty to court · Ethics · Evidence · Legal writing · litigation ethics · Misconduct · prosecutors' duties · Striking off