In this post, I just reproduce what Deputy President Dwyer said recently about the burden of proof, right to silence, and inferences which may be drawn from the fact of the exercise by a solicitor of the right to silence. He said it in the context of a hard-fought hearing into the conduct of Kylie's [...]
Entries Tagged as 'Unsatisfactory conduct'
Latest word on burden of proof in professional discipline 'prosecutions'
August 30th, 2008 · No Comments
Tags: "disgraceful and dishonourable" · Discipline · Legal Practice Act · Legal Services Commissioner · Misconduct · Unsatisfactory conduct · VCAT Act · common law · procedure · prosecutorial failures · reckless disregard for rules · trust monies · wilful disregard for rules
Once you've done your time, prior misconduct not an indicator of fitness to practise
April 4th, 2008 · No Comments
In JLL v Law Institute of Victoria Limited [2008] VCAT 456, a Box Hill solicitor who had paid only $5,000 of the $55,000 odd he owed under orders of the Legal Profession Tribunal was given a practising certificate by VCAT, overturning a decision of the Law Institute not to give him one on the basis [...]
Tags: Criminal liability · Discipline · Misconduct · Professional regulation · Unsatisfactory conduct · regulators' duties
Yet another sole practitioner ignores the Bureau (yawn)
March 26th, 2008 · No Comments
In Legal Services Commissioner v RMB [2008] VCAT 170, the Bureau de Spank prosecuted a Fitzroy sole practitioner who had studiously ignored a complaint for nearly 11 months. The solicitor finished up paying just $2,500 including costs. Again, the Commissioner is to be commended for keeping costs low ($1,500) by sending along one of [...]
Tags: Discipline · Legal Services Commissioner · Unsatisfactory conduct
Misconduct constituted by ignoring the Bureau
November 23rd, 2007 · No Comments
In the last post, a solicitor ignored the Bureau de Spank for 3 months, a default explicable by personal circumstances and depression during the relevant period. In Legal Services Commissioner v JEH [2007] VCAT 2181 (27 September 2007), a Warragul solicitor ignored the Commissioner for almost 6 months. The reasons are broad-brush in their approach [...]
Tags: Discipline · Misconduct · Unsatisfactory conduct
How to distinguish between unsatisfactory professional conduct and professional misconduct under the new Act
November 23rd, 2007 · No Comments
The definitions of the greater and lesser disciplinary offences under the Legal Practice Act, 1996 and the new Legal Profession Act, 2004 are different. Under the old act, the one was distinguished from the other by the absence or presence or wilful contravention of norms, or recklessness as to whether conduct would contravene norms. No [...]
Tags: Discipline · Misconduct · Unsatisfactory conduct · mental illness
Rule against charging for storing old client files
November 22nd, 2007 · 1 Comment
Update, 15 January 2008: Senior Member Howell decided costs and penalty on 17 December 2007: [2007] VCAT 2465. The Commissioner sought an injunction to restrain the solicitor from repeating the conduct. Unnecessary, said Mr Howell, who refused to make any such order. Now that the solicitor has had the law clarified, as he was entitled [...]
Tags: Unsatisfactory conduct · Vic Solis' Conduct Rules
Danger lurks in settling a disciplinary complaint against a lawyer
November 5th, 2007 · No Comments
A man hired a firm. Then he hired a new solicitor. He had not paid the fees of counsel retained by the first firm, for which the first firm was responsible for paying to the barrister. The first firm handed over its files to the new solicitor upon receiving an undertaking from [...]
Tags: "disgraceful and dishonourable" · Ethics · Misconduct · Unsatisfactory conduct · duties regarding witnesses · litigation ethics
Tariff up for not responding to demand for information by Bureau de Spank
August 24th, 2007 · No Comments
In Legal Services Commissioner v MG [2007] VCAT 1491, the lawyer failed to respond to letters demanding a written response to a complaint by another lawyer. The Commissioner wrote on 18 January 2007, 16 February 2007, 23 March 2007 and 1 April 2007. In other words, a complaint, quite possibly lodged last year, [...]
Tags: Discipline · Legal Profession Act · Misconduct · Unsatisfactory conduct · reckless disregard for rules
Confirmed: your client can privately prosecute you for misconduct
June 3rd, 2007 · No Comments
Acting President Bowman handed down a decision on Friday in Cedric Naylor's Case [2007] VCAT 958 approving the existing practice of VCAT, and before it the Legal Profession Tribunal, of entertaining professional misconduct allegations against lawyers by their clients as part of applications to set aside costs agreements. Entertaining them, that is, outside the disciplinary [...]
Tags: Discipline · Legal Practice Act · Misconduct · Professional fees and disbursements · Unsatisfactory conduct · civil-disciplinary interplay · jurisdiction · procedure · setting aside costs agreements
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 [...]
Tags: Discipline · Misconduct · Unsatisfactory conduct · civil-disciplinary interplay · negligence as disciplinary breach

