Vic Supreme Court summarises VCAT’s power to review practising certificate decisions

In the matter of ZGW v Legal Services Board [2007] VSC 225, Justice Bell made some observations about VCAT’s power to grant merits review of decisions about practising certificates made by the Legal Services Board, and the interrelationship of that power with the availability of judicial review: Continue reading “Vic Supreme Court summarises VCAT’s power to review practising certificate decisions”

Kansas Supreme Court on the rule against direct communication with opponent’s clients

The Supreme Court of Kansas yesterday published a judgment — In the Matter of E. Thomas Pyle, III — which is interesting on a number of fronts. The first is that Pyle was disciplined for writing a letter which criticised an adverse disciplinary ruling against him. The second is that he was disciplined for failing to complain about an opposing lawyer having formed the view that the opposing lawyer had engaged in misconduct (but when he did belatedly complain, the complaint was apparently not made out). Victoria has just such a dob-in rule, but I have never before heard of any lawyer being disciplined for failing to report a colleague to disciplinarians. The third is that the lawyer was originally disciplined for breaching the rule against direct contact with his opponent’s client by facilitating his own client’s direct contact with the other side, a concept I have difficulties with. And the fourth is a cracker. Pyle was found to be a “Clintonesque” witness. Continue reading “Kansas Supreme Court on the rule against direct communication with opponent’s clients”

Affair over 6 years and a $100,000 payment earn psychiatrist an 18 month holiday

H v Medical Practitioners Board of Victoria [2007] VCAT 526 was a rehearing of a case before the Medical Practitioners Board (the decision of which is here). VCAT, constituted by Vice President Harbison and Associate Professor Davis, reduced the severity of the outcome of an unprofessional conduct prosecution for an intimate relationship with a former patient, which continued after the psychiatrist had paid her $100,000 conditional on her not suing him or lodging a disciplinary complaint. VCAT suspended him for 18 months in lieu of the deregistration imposed on him by the Board, the majority of which had concluded that:

‘Dr [H] is unlikely to engage in unprofessional conduct of the nature of a sexual relationship with a patient or former patient again. … However we note that some of factors in Dr [H’s] personal background that formed the context within which this relationship developed remain unresolved. … on balance, … there is likely to be a benefit to the public in Dr [H] continuing to practise his profession. However, through our knowledge as members of this Board, we are aware that the predictive capacity of bodies such as ours in relation to repetition of sexual misconduct is poor. Therefore it is incumbent upon us to be cautious.’

That conclusion was recounted in VCAT’s judgment as a finding ‘that it was unlikely that Dr Honey would be likely to engage in unprofessional conduct of the nature of a sexual relationship with a patient again [sic.]’.

The Board’s decision is notable for containing a dissenting opinion. Disciplinary tribunals are often constituted by panels of lawyers and non-laywers, but I do not recall ever seeing a legal disciplinary tribunal publish majority and minority reasons. Continue reading “Affair over 6 years and a $100,000 payment earn psychiatrist an 18 month holiday”

Legal Services Board doesn’t renew ticket of lawyer to gangland figures

Two blokes shot this well known lawyer’s underworld partner Lewis Caine and got put on trial for murder. Representative of a few underworld clients, she refused to give evidence at the two blokes’ trials despite having been ordered by the Court to do so. She said she was scared of getting her head blown off. Harper J found that she was genuinely afraid but under no imminent threat and convicted her of the crime of contempt of court. He did not impose any penalty, however, citing “exceptional circumstances”. She appealed to the Court of Appeal, but dropped it, after — according to The Australianthe judges warned her that if her appeal failed they might impose a penalty. Then the DPP appealed, but the Court of Appeal ruled yesterday that they had no right to do so, and threw it out: DPP v G-W [2006] VSCA 295. But the Legal Services Board wrecked the party by refusing to renew the solicitor’s practising certificate on the grounds that she is not a fit and proper person to practice the law. She will take the matter to VCAT and can continue to practice in the meantime. It will be an interesting case.

“VCAT may make orders of a transitional nature” read down

K v Legal Services Board [2006] VCAT 2303; K v Legal Services Board No. 2 [2006] VCAT 2362 (Bowman J)

A solicitor lied to a County Court judge about holding a practising certificate and was told in 2001 by the Full Legal Profession Tribunal not to bother applying for a practising certificate until 2011 and only if he had complied with two previous orders of the Tribunal. It ordered the solicitor to be referred to the Supreme Court with a recommendation that his name be struck off the roll of practitioners. The Law Institute duly applied to the Supreme Court declined to strike him off, finding that inadequate notice of the Tribunal hearing had been given to the solicitor. The solicitor did not then appeal the Full Tribunal’s order. Three and a half years later, the solicitor applied under s. 2.4.9 of the Legal Profession Act, 2004 for a practising certificate, by which time the Legal Practice Act, 1996 had been repealed and the Legal Profession Tribunal abolished. He said the Supreme Court had ruled that the Full Legal Profession Tribunal’s decision had been defective, and as the successor to that Tribunal, VCAT must be able to “remedy” the Full Legal Profession Tribunal’s defective decision. Bowman disagreed, suggesting that the only remedy available to the solicitor might be to use “the provisions of the Interpretation of Legislation Act, 1984 in relation to repealed legislation” to bring an appeal under the now-repealed Legal Practice Act, 1996 (as to which, see below). Continue reading ““VCAT may make orders of a transitional nature” read down”

Another unrepresented lawyer bites the dust in WA

The lessons against self-representation in discipline cases are coming almost too thick and fast for me to digest them. Here is The West Australian‘s short article on the striking off recently of Vijitha De Alwis, a solicitor who played a part in a legal saga involving an attempt to deport a non-citizen Briton convicted of crimes, Mr Taylor. The Full Bench of the Supreme Court of Western Australia struck De Alwis off the roll of practitioners on 29 September 2006 in Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 following a report by the Legal Practitioners Disciplinary Tribunal. It is a case about receiving trust monies without holding a trust account, like the Victorian case in this post, but it is as much a case about a self-represented person shooting himself in the foot by:

  • serial non-compliance with rules and orders;
  • repeated bias applications (he said the Legal Practitioners Discipline Tribunal “descended to the dust of the Arena and blinded itself”); and
  • repeated ill-got-up adjournment applications on health grounds (one was based on a medical certificate in the following terms: “This gentleman suffers from numerous medical problems and is currently unfit to stand trial or an inquiry”; on another occasion “He said that he had medical advice to the effect that, if he continued to handle his case he ‘might end up having a severe Heart Attack or a massive Stroke that will be fatal’).

One of his problems was that there was ample evidence of him appearing in courts as advocate (or attempting to) at around the same times as he said he was unable to face trial in the proceedings against him. Another was that his written submissions as to why he was too ill to make written submissions disproved what they sought to argue (see [100]). The Full Court said:

“111 … the practitioner’s unfitness for practice is amply demonstrated, in addition, by the manner in which he has conducted himself in these proceedings. His affidavits have been replete with argumentative material, often including allegations of gross misconduct against judicial officers, practitioners and court staff, none of which appear to have any foundation. Moreover, as will be apparent, he has repeatedly failed to comply with time limits and directions imposed by the Court.” Continue reading “Another unrepresented lawyer bites the dust in WA”

Soli sends home-made porno to ex-girlfriend’s work and loses ticket

In Legal Practitioners Complaints Committtee v MMT [2006] WASC 211, the Full Court of the Supreme Court of Western Australia struck a 37 year old solicitor (with a Masters in psychology) off the role of practitioners for stalking his ex-girlfriend, another solicitor. In fact he sent her boss a video of him and the victim having sex in happier times. He pleaded guilty in the criminal court and received a suspended 9 month jail sentence. He admitted the allegations against him before the disciplinary tribunal, which found unsatisfactory conduct, the only disciplinary offence in WA, to be made out. The tribunal suspended him from practice. The Tribunal referred its reasons for decision to the Supreme Court. The plaintiff applied successfully for the solicitor to be struck off the roll. Though the solicitor attributed his actions to depression occasioned by the breakup of his relationship with the victim, he had not sought enough psychological assistance for the Court’s liking, and had not been found by the disciplinary tribunal to be genuinely remorseful. He had ceased practising as a lawyer and moved 4 hours away from Perth, where the offences occurred, though. The conduct he engaged in was as follows:

Continue reading “Soli sends home-made porno to ex-girlfriend’s work and loses ticket”