The nature of a delegation was described in B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 by counsel and repeated without disapproval by Justices of Appeal Charles and Batt:

'a delegate acting is not an agent who exercises the [delegator's] powers but rather, as the new repository of the powers, exercises his own powers as a delegate.'

The same judges explained the purpose of requiring delegations to be in writing:

'In the circumstances the legislative purpose of permitting a delegation of the functions and powers to be exercised after completion of an investigation, but requiring such a delegation to be in writing, seems to us to be reasonably apparent.  We would accept the appellants’ submissions in this regard, that the requirement of a writing protects the interests of all parties concerned.'

Of course that must be so.  Those who seek to exercise invasive statutory powers, as trust account inspectors do, should carry around the original instruments of delegation with them in their briefcases.  That's what used to happen in the old days. [Read more →]

Reproduced below is a blog post about 'bill padding' from the US site, Legal Blog Watch. That is where lawyers say work took them longer than it really did, and so charge commensurately more, or even make up the fact that they did work, and charge for it. Sometimes I read articles like this and wonder whether lawyers don't think they live in a different world where, if they commit crimes, what will happen to them is that they will be dealt with by professional discipline. They think that, or course, because it's more or less true, unless you get caught stealing from your trust account.  But the criminality of time sheet crime should not be allowed to be buried under anodyne euphemisms. 'Bill padding' sounds kind of cute, a necessary evil. It is a kind of newspeak. Time to do away with it. Let's call it 'rapacity fraud'.  It is tolerated by the profession in this sense.  There are generalised allegations of widespread bill padding.  Talk privately to costs consultants and they will tell you all about it.   But I have never heard of a firm which has even basic anti-fraud procedures to detect the practice.

My point kind of makes itself when the author says 'allegations of bill padding … drew … strong criticism about the practice from legal ethics experts'.  Experts say fraud is bad?  Well shit Sherlock!  The 9th commandment does kind of feature relatively prominently in most systems of law.  We're going to have the case one day when someone actually subpoenas a firm's electronic billing system and its metadata, and diaries, analyses when the billing entries were made, and cross-examines lawyers on how they could have billed 180 units in a day and still made it to the client function at 6 p.m., or why, having billed relatively consistently every day, they would suddenly remember on the 30th of the month some comparatively vaguely described units they had forgotten to record mid-month, or why given that they had used a precedent for similar documents three times previously in the same month, they decided to draft the document from scratch, only to end up with — you guessed it — the same document as the precedent.  Now, that article: [Read more →]

Yesterday, 'after 5 p.m.' as he put it in his letter of capitulation, a solicitor was served with originating process out of the Supreme Court of Victoria.  At 5.18 p.m., a letter agreeing to give the relief sought, without condition (including in relation to costs) was received. Tomorrow, the proceeding will be disposed of by consent, with costs. Anyone got a better story about swift justice?

Professor Reinhardt educated me about litigation, twice, once at law school and then in my Masters.  He had a fondness for the ingenuity of debtors and used to say 'Hope springs eternal in the debtor's breast', a corruption of an Alexander Pope poem, very often. (His second most favourite phrase was 'sticks out like a dog's proverbials'.) Anyway, this post, the subject matter of which is a debtor's exquisitely technical argument about that most arcane of orders, order 63 of the Supreme Court Rules, is dedicated to Professor Reinhardt.  But for those who like to know the take-home message without savouring the nice arguments which produced it, it is this: however you got before the Taxing Master, his orders operate as a final judgment which may themselves be enforced, but before you go out executing on them, you have to get them authenticated: Scott v Evia Pty Ltd [2008] VSC 324, a decision of Justice Hansen. [Read more →]

I have previously posted about the QC who took his computer into work at the DPP only to lose his career when the tech found child pornography on it. It was a bizarre story, and of course there was a twist which has become clear from the disciplinary decision in Council of the NSW Bar Association v PJPP [2008] NSWCA 135: the QC thought he had the porn sequestered on a removable hard drive (the F drive), which he removed before taking it into work, but some had crept out into the rest of the computer. This post looks at the discussion of what inferences, if any, it was proper to draw from the QC's exercise of the right to silence at the investigation stage, and from his failure to give evidence at his disciplinary hearing. [Read more →]

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 one-time lawyer, Michael Brereton, reported on in the previous post. Interestingly, the Tribunal was not critical of the solicitor's decision not to give evidence, but asserted that it was free to draw adverse inferences against the solicitor under the rule in Jones v Dunkel, and did so with gusto, drawing support from Woods v Legal Ombudsman [2004] VSCA 247, and Golem v Transport Accident Commission [No2] [2002] VCAT 736.)

What Mr Dwyer said was: [Read more →]

On 13 August 2008, Deputy President O'Dwyer found charges of misconduct at common law made out against Kylie Minogue's one-time solicitor, the man towards the centre of the government's Operation Wickenby investigation, Michael Brereton. See Legal Services Commissioner v Brereton [2008] VCAT 1723. Mr O'Dwyer found he had transferred more than $2.3 million of clients' money out of his trust account contrary to the trust accounting rules. Since he did not turn up to the hearing, the finding is not altogether surprising. His counsel explained the solicitor 'was attending to important business matters overseas, having invested in an information technology business with links in America and Europe,' which makes me wonder whether he could not have used some of his investments to appear by video link. The Age's report is here.

The Commissioner is to be commended for making some sense of the very complex business transactions in which the solicitor and his clients were involved, and achieving the making out of the allegations of misconduct which were made out. So too the Tribunal, which had a difficult task in the absence of participation by the solicitor, and produced a spare but careful set of reasons. But it was not all wins for the Commissioner. [Read more →]

I spent a week on Magnetic Island just now. It is a good place: a big island with four little suburbs but mostly national park, where people live, go to school, the bakery, the chemist, and the doctor. It has good supermarkets. It has wonderfully hokey restaurants like Man Friday's, a Mexican restaurant which has been there for 25 years, with light shades made from large tins, painted, and patterns banged out with hammer and nails. It has a fine fish and chips shop cum equally hokey seafood restaurant, and it has an honest Italian restaurant with a location on the beachfront to die for but without the prices which generally go with such places. It has blue winged kookaburras and pheasant coucals, red-tailed black cockatoos and koalas, real beach houses (consider this one, and this one), a Friday nightmarket put on by the RSL with a food stall put up by an Indonesian woman, and a dessert stall put up by a local lady who will sell you a one person pavlova and a one person trifle for a total of $6. It has old tractors and dilapidated buildings, everything that a seaside holiday should have.

It is, in other words, the antithesis of Noosa and Cairns, more like the Inverloch of the tropics, and is therefore something to rejoice in. It is just off the coast of Townsville, you see, a working man's town with few tourists. [Read more →]

Once a complaint form has been lodged by a complainant with the Legal Services Commissioner, she has decided that it constitutes a 'complaint' as defined, has heard the respondent lawyer on whether it should be summarily dismissed, and has decided against that course, the Commissioner may exercise any or all of her draconian powers under s. 4.4.11 of the Legal Profession Act, 2004. That provision is reproduced in full at the end of the post, but it says that by a written notice, the Commissioner may require a lawyer under investigation to provide a 'full written explanation' of his or her conduct, and 'any other information or documents', regardless of whether they are privileged or not. The privilege against self-incrimination is no answer to such a demand. The equivalent section under the Legal Practice Act, 1996 was s. 149, and the equivalent inquisitor the Legal Ombudsman, whose last incarnation was Kate Hamond [sic., despite the spelling of the case name].

In Power v Hammond [2006] VSCA 25, Justice of Appeal Chernov said:

[Read more →]

The Age has reported the conviction for drug trafficking of a 41 year old church-going Melbourne patent lawyer with a Master of Laws after a shoe box containing about $170,000 in cash and $300,000 worth of the drug ice was found in her apartment. She is yet to be sentenced. It will be interesting to see what happens to her practising certificate.