Applications to stay disciplinary decisions pending appeal

I had to convince the Legal Services Commissioner to consent to a stay of orders suspending my client pending an appeal he has brought from VCAT the other day.  Happily the Commissioner consented.  For next time, I squirrel away this re-statement by the New South Wales Court of Appeal of the application to this class of case of the law governing applications for stays in civil proceedings pending appeal in Griffin v Council of the Law Society of New South Wales [2016] NSWCA 275.  (I reported on the first instance decision here, and this latest decision reveals that the solicitor has applied for the removal of his appeal to the High Court so it can rule authoritatively on the application of the freedom of political speech to criticism of the third arm of government, the judiciary.) Continue reading “Applications to stay disciplinary decisions pending appeal”

Suspensions which are not suspensions and orders which are not orders

VCAT’s latest decision to come to my attention, of Member Elizabeth Wentworth, involved another solicitor who did not lodge tax returns over an extended period. He was suspended from practice for 12 months, but the suspension was suspended provided he did not breach certain conditions in the three years after the orders.  If he does, then the Commissioner may apply for the suspension of the 12 month suspension to be lifted so it comes into operation. Member Wentworth decided to leave what exactly would happen in the case of a breach to the discretion of the any future Tribunal constituted to consider it rather than providing automatically for the suspension of the suspension to be lifted.  Legal Services Commissioner v GB [2015] VCAT 254 is interesting to me for six reasons: Continue reading “Suspensions which are not suspensions and orders which are not orders”

New South Wales Law Society misconceivedly suspends sole practitioner’s PC peremptorily

In Dennis v Council of the Law Society of New South Wales [2014] NSWSC 1487, the Law Society suspended a sole practitioner’s practising certificate with immediate effect and appointed a manager to his practice.  He had not responded to commands by a trust investigator to produce documents and answer questions in relation to a disciplinary complaint.  The Society said that he had failed to do so wilfully and without reasonable excuse, and this, it said, made it necessary to abolish the man’s livelihood.

Hoeben CJ at CL found that the commands were invalid in law, and there had been no failure at all to comply with them.  But even if the Society’s interpretation of the provisions of the Legal Profession Act 2004 (NSW) in question had been correct so that there had been a failure to comply with them, his Honour said, this would still not have been an appropriate occasion on which to exercise the ’emergency powers’ which the Law Society exercised.  It simply was not ‘necessary’ for the protection of the public to shut down a sole practice like that.  Especially since, prima facie, the appropriate place for the complainant to raise the practitioner’s conduct was in the proceedings in the Supreme Court of Victoria which were the backdrop to the conduct complained of and which were pending at the time of the complaint.  And more especially still where the practitioner had cited the commercial sensitivity to that litigation of confidential information sought by the Law Society and had suggested that the investigation be paused pending the imminent completion of those proceedings.

Given that the complaint in which the practitioner was said wilfully to have failed to obey the stipes’ commands was the complaint of a non-client, I will be interested to learn what it is about NSW law which means that the solicitor could be obliged to deliver up privileged information even if the commander had the power to issue the commands.  The Victorian Bureau de Spank has no such powers: B v Auckland District Law Society [2003] UKPC 38, a decision of the Privy Council and Legal Services Commissioner v Shulsinger [2010] VCAT 965. Continue reading “New South Wales Law Society misconceivedly suspends sole practitioner’s PC peremptorily”

Depressed serial non-responder not to practise on own account until 2013

Update, 22 October 2010: To similar effect is Legal Services Commissioner v SJO [2010] VCAT 1686.  There, a depressed solicitor in her mid-60s with a string of previous disciplinary findings, was found to have engaged in professional misconduct in practising without a practising certificate.  The solicitor’s is a sorry tale: doctor husband developed psychosis for which he refused to obtain treatment; daughter became addicted to heroin; solicitor contracted breast cancer.  Mind you the Tribunal found that though a mitigating factor, the depression did not excuse the solicitor’s conduct, or explain her professed belief that by virtue of having lodged an application for a practising certificate and not having received a rejection of the application, she was entitled to practise. Somehow or other, this case managed to be heard over 8 days commencing in February. The solicitor was in her mid-60s and on her own account most unlikely to practise in the future. Rejecting the Commissioner’s unusual but not illogical argument that the solicitor should be struck off because of the incongruity in holding the solicitor out as fit to practise as a solicitor during the period in which she was not entitled to apply for a practising certificate, Senior Member Howell extended that period by a year, to 24 February 2015.  Explaining the rejection, the Senior Member said:

‘Protection of the public is a relevant consideration, but the Tribunal has concluded that little, if anything, would be gained by making a recommendation to the Supreme Court that the name of [the solicitor] be removed from the Supreme Court Roll. The Tribunal does not regard it as “incongruous” that the name of a person whose name has been on the Roll for almost 40 years, and who is unlikely to practise in the future for both legal and personal reasons, should be allowed to remain upon the Roll.’

Original post: In Legal Services Commissioner v SWM [2010] VCAT 1543, a depressed former solicitor was told not to apply for a full practising certificate until 2013.  He had previously been found guilty of professional misconduct for not responding to the Legal Services Commissioner’s request for responses to complaints and other instances of inaction where action was called for. 17 times: on 1 November 2007, 7 May 2008, 19 November 2008, 3 February 2009, 28 September 2009, and on 26 November 2009.  On 2 December 2009, the solicitor’s practising certificate was cancelled. He did not apply for a practising certificate on 1 July 2010, when he was permitted to do so again. This time, he was found guilty of four charges of professional misconduct.

The solicitor had an unblemished record to 2006.  Illness struck his family and he became depressed.  Inactivity followed.  Senior Member Howell seems to have accepted that the depression explained the inactivity.  Nevertheless, he ordered that the practising certificate-less former solicitor not apply for a full practising certificate until mid-2013, but allowed him to apply for an employee practising certificate on 1 July 2011.  This post considers the order and alternative orders which might also be appropriate in a jurisdiction whose rationale is, it is said, protection of the public. Continue reading “Depressed serial non-responder not to practise on own account until 2013”

NSW suspends corrupt lawyer after raid on home

An ICAC enquiry resulted in a finding that a senior lawyer at NSW Maritime was corrupt following Operation Vargus: their report is here. That agency oversees marine safety and strategy in all things to do with the sea for the State Government.  Tonette Kelly was moonlighting, working a 100 client, $120,000 a year private conveyancing business while employed full-time. She procured NSW Maritime to purchase professional liability insurance for her, understated her income in her insurance application (so as to lower the premium), engaged other employees of the legal department for reward on her conveyancing files, lied about her activities, and forged a document in her cover up.  She had in fact sought permission from her employer to do about 1 hour’s work a week during work hours, but her moonlighting expanded beyond her employer’s understanding.  Now the NSW Legal Services Commissioner has suspended her practising certificate on the basis of the ICAC findings, and ICAC has suggested the possibility of criminal prosecution for misconduct in public office. NSW Maritime has changed its mind about paying for her defence.

This is tough stuff; damning evidence against Ms Kelly — 4,568 faxes sent from her employer’s fax machine — were seized in a raid on her home.  I have heard of nothing like it by Legal Services Commissioners, and have my doubts about whether, in Victoria, such a matter would be referred to the police so as to allow them to carry out a similar raid.  This involved government corruption, the eradication of which is undoubtedly an important end, especially in NSW, but the social ills generated by lawyers behaving badly, especially in litigation, must be right up there in terms of societal undesirability, worthy too of vigorous investigation. In fact, this is a rare instance of the stipes going up against the big end of town.  The involvement of whistleblowers may explain the curiosity.