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 [...]

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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 [...]

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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 [...]

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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 [...]

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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 [...]

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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 [...]

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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 [...]

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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, [...]

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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 [...]

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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 [...]

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