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

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Entries Tagged as 'Unsatisfactory conduct'

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 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

More on solicitors’ obligations to pay counsel’s fees

April 3rd, 2013 · No Comments

Council of the Law Society of New South Wales v JAX [2012] NSWADT 283 is a case in which the solicitor was disciplined for paying himself out of fees provided to him by his client for payment of counsel’s fees.  Ultimately he went bankrupt and did not pay the fees. See also this earlier post […]

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Tags: Discipline · Dishonesty · fraud · mental illness · Professional fees and disbursements · prosecutors' duties · Trust money · Unsatisfactory conduct

Legal Services Commissioner’s website explains difference between professional misconduct and unsatisfactory professional conduct

July 26th, 2011 · 2 Comments

Update: So far, I have had the following responses to my musing, which seems to excite you all more than I could have imagined: ‘Thats easy, fraud is directly aimed at unlawful appropriation – dishonesty may be indirectly so.’ ‘Fraud v dishonesty – my thought: does fraud require there to have been a victim, where […]

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Tags: Discipline · Dishonesty · fraud · Legal Profession Act · Legal Services Commissioner · Misconduct · Unsatisfactory conduct

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

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

Disciplinary penalties for pre-2006 conduct

September 24th, 2010 · No Comments

There are still disciplinary cases coming through the system in respect of conduct which occurred before 12 December 2005, the date on which the Legal Profession Act, 2004 commenced.  Back in those days, the maximum fines the Legal Profession Tribunal could render under the Legal Practice Act, 1996 were $1,000 for unsatisfactory conduct and $5,000 […]

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Tags: Discipline · Legal Practice Act · Legal Profession Act · Legal Services Commissioner · Misconduct · Unsatisfactory conduct

Honest and reasonable mistake as a defence to disciplinary charges

March 24th, 2010 · No Comments

Senior Member Howell decided last year in Legal Services Commissioner v RMB [2010] VCAT 51 that there is a mens rea element to professional discipline offences under the Legal Profession Act, 2004, in that there is a defence of ‘honest and reasonable mistake’.  That fascinates me, since under the previous Act, misconduct and unsatisfactory conduct […]

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Tags: Discipline · duties regarding witnesses · Ethics · litigation ethics · Misconduct · reckless disregard for rules · Unsatisfactory conduct · wilful disregard for rules

Previous infractions of same rule not relevant to distinction between professional misconduct and unsatisfactory professional conduct

March 3rd, 2010 · No Comments

In Legal Services Commissioner v R-MB [2010] VCAT 182, Senior Member Howell found a repeat offender had failed to comply with a demand from the Legal Services Commissioner for a written explanation of conduct the subject of a complaint.  The Bureau de Spank argued that the infraction should be regarded as professional misconduct rather than […]

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Tags: Discipline · Misconduct · Unsatisfactory conduct