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

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Entries Tagged as 'duties regarding witnesses'

Jury verdict overturned by VSCA because of insinuation in cross-examination without adequate factual foundation

September 10th, 2014 · No Comments

In Green v Emergency Services Telecommunications Authority [2014] VSCA 207, the Victorian Court of Appeal today overturned a jury’s verdict following a nine-day trial. There had been a miscarriage of justice occasioned by the manner in which the plaintiff was cross-examined by the defendant’s trial counsel.  He had made an allegation of recent invention involving […]

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Tags: Alleging fraud & misconduct · duties regarding witnesses · duty to court · Ethics · Evidence · litigation ethics

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

White Industries v Flower & Hart: unfounded allegations of fraud

January 25th, 2014 · No Comments

This post is a case note of Justice Goldberg’s famous decision in White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169; [1998] FCA 806 as well as of associated decisions and surrounding controversy.  Because it is what I am working on at the moment, it concentrates on that part of the […]

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Tags: Abuse of process · Alleging fraud & misconduct · Client Legal Privilege · duties regarding witnesses · duty to court · Ethics · litigation ethics · Professional fees and disbursements · Wasted costs

The civil and disciplinary consequences of making an allegation of serious wrongdoing without a proper foundation

January 7th, 2014 · No Comments

Friends, I need your help, again.  Certain promises I made to write about and present on the civil and disciplinary consequences of making allegations of serious wrongdoing (e.g. fraud) without a proper foundation are coming home to roost.  I’m looking at: disciplinary sanction of lawyers via Legal Services Commissioner, etc. prosecution; personal costs orders against […]

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Tags: Civil Procedure Acts · Discipline · duties regarding witnesses · duty to court · fraud · Legal writing · litigation ethics · Misconduct · Professional fees and disbursements · prosecutors' duties · Striking off · Vic Solis' Conduct Rules · Wasted costs

Legal Services Commissioner’s obligations of fairness

June 29th, 2013 · No Comments

I have previously reported Justice Finkelstein’s views about the obligations of those who prosecute proceedings for a penalty (‘‘I would hold that a regulatory body that brings a civil proceeding to recover a penalty is under an obligation similar to that owed by a prosecutor to an accused.’). Barristers who are briefed by the Legal […]

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Tags: Discipline · duties regarding witnesses · duty to court · Ethics · Legal Services Commissioner · litigation ethics · Professional regulation · prosecutors' duties

Prosecutors’ duties in professional discipline cases

July 20th, 2010 · No Comments

There is an interesting article by Ian Wheatley at (2008) 16 Journal of Law and Medicine 193.  Titled ‘The Criminalisation of Professional Misconduct Under the Health Professions Registration Act 2005 (Vic): How is a Fine of $50,000 Not Punitive?’. It compares the rights of alleged criminals and the maximum sentences in criminal law, with the […]

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Tags: Discipline · doctors · duties regarding witnesses · duty to court · Ethics · Evidence · litigation ethics · procedure · Professional regulation · prosecutors' duties

A new Australian legal ethics blog

July 12th, 2010 · No Comments

A warm welcome to the blogosphere for the Queensland Law Society’s Ethics Blog, which is in its first posts, but attracts an impressive callibre of comments.  The blog has a post about a recent, rare, decision about those rules about what to do in litigation if you discover your client is lying, or you find […]

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Tags: duties of confidentiality · duties regarding witnesses · duty to court · Ethics · Evidence · litigation ethics

Civil Procedure Bill

July 11th, 2010 · No Comments

The civil procedure landscape is changing fast.  A new Evidence Act.  The establishment of the Costs Court.  The Federal Court’s rocket docket.  The Supreme Court’s Commercial Court.  The abolition of the County Court’s Practice Court in favour of a managed list approach.  Early neutral evaluation.  The increasing use of Associate Justices and Judicial Registrars. The […]

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Tags: duties regarding witnesses · duty to court · Ethics · litigation ethics · Professional regulation · Vic Solis' Conduct Rules

Lawyer referred for appearance of complicity in husband client’s fraud on wife

May 26th, 2010 · No Comments

In Lambert & Jackson [2010] FamCA 357, a Family Court judge sitting in Sydney made the following orders: ‘1. There be a further listing before me on 24 May 2010… for the purposes of giving Ms Y an opportunity to make submissions as to why I should not send my prima facie findings to the […]

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Tags: duties regarding witnesses · duty to court · Ethics · litigation ethics

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