Can conduct unconnected with practice constitute misconduct at common law?

Recently, it has been suggested that misconduct unconnected with legal practice (which the High Court has referred to as ‘personal misconduct’) may constitute professional misconduct at common law: New South Wales Bar Association v Cummins [2001] NSWCA 284; Legal Services Commissioner v RAP [2009] VCAT 1200, the subject of this post.  This post considers whether …

Prosecutors’ duties in professional discipline cases

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 …

States’ and territories’ disciplinary systems summarised by the government

Helpfully, the government has put out a little discussion paper about its proposal for a new national legal regulator.  Turns out the proposal is for the existing regulators to keep on keeping on, rebadged as offices of the Uber-Bureau but for there to be one central number for the Uber-Bureau which will oversee everything panoptically …

Latest on claims for the other side’s lawyers to pay your costs personally instead of their client

Kelly v Jowett [2009] NSWCA 278 is the latest wasted costs case.  The lawyers against whom the order was made had tendered against them their own intra-office memorandum: ‘Your performance in the conduct of this matter has been pathetic. Your failure, given the recent transfer of these matters, to even have the courtesy to provide …

More on confidentiality and disciplinary hearings

A propos my post about an English solicitor’s revulsion for the reptiles of the press engorging themselves on the protection of the public by the public spanking of lawyers:  ACT’s lawyers are up in arms.  It seems that suddenly, disciplinary hearings are open to the public, with the transfer of lawyers’ discipline hearings to the …

Byrne v Marles reversed by legislation

I wrote about Byrne v Marles [2008] VSCA 78 here, and suggested reversal by legislation as a possible outcome.  The government slipped the Professional Standards and Legal Profession Act Amendment Act, 2008 through pretty quietly.  Two new sub-sections in the Legal Profession Act, 2004 add to the existing parent sections that nothing within them gives …

VCAT reversed for ignoring penalty privilege in merits review of disciplinary proceeding

CT v Medical Practitioners Board [2008] VSCA 157 is a very important ruling for the world of professional discipline, and its intersection with the world of VCAT. A doctor sought merits review of a disciplinary decision of the Board. The Court of Appeal made clear that the penalty privilege (a close relation of the privilege …

The practising certificate suspension challenge that went wrong

Update, 8 November 2008: When I wrote this post, the Court of Appeal had authoritatively answered another of the questions posed below, about the penalty privileges, but I had not yet read the case, CT v Medical Practitioners Board [2008] VSCA 157.  Now I have, and I have posted here about it. Original post: WPE …

Michael Brereton banned for 5 years and to pay $145,000 in costs

It’s all happening down at VCAT.  I reported on Michael Brereton’s disciplinary trial in absentia and the finding that the charges were made out here.  Now, Deputy President Dwyer has handed down his tribunal’s orders with reasons: Legal Services Commissioner v Brereton [2008] VCAT 273. Mr Brereton did not have a practising certificate at the …

Issac’s holiday; plea bargaining in disciplinary charges examined

Issac’s style of legal letter writing is legendary. There are some quite extensive private collections out there. I recall one letter said to have been penned by the man himself which began ‘Dear Sir, you are a petulant lunatic,’ and after some substantive words continued ‘You are a very small cog in a very big …

Once you’ve done your time, prior misconduct not an indicator of fitness to practise

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 …

WARNING: costs agreements and bills require amendment

Since 6 December 2007, the maximum interest chargeable on bills has dropped from 12% (the penalty interest rate) to the Reserve Bank Target Rate +2% (at the time of writing 8.75%), and the period of non-payment after which you can begin charging has changed too. You need to amend your bills because if you don’t …

Julian Burnside, his book and his take on the Peter Faris affair

Julian Burnside QC is one of 4 Victorians whom I know to have had Wikipedia entries as barristers. The others are Mark Dreyfus QC, Lex Lasry QC, and Peter Faris QC. (Are there any others?) Julian Burnside has become a writer, Mark Dreyfus a federal politician, and Lex Lasry a judge of the Supreme Court. …