Finally, some scholarship on Australian lawyers’ conflicts of duties

Finally, someone has gone a long way towards synthesising the law relating to injunctions to restrain lawyers from acting in the face of a conflict of duties. The Melbourne University Law Review article is “Conflicts of Duty: the Perennial Lawyers’ Tale — A comparative Study of the Law in England and Australia”, [2006] MULR 4. …

Think twice before agreeing to punt an appeal where you and the other side are unpaid in relation to round one

Update, 19 March 2021: My Sydney colleague, Andrew Bailey, drew my attention to Longjing Pty Ltd v Perpetual Nominees Ltd [2017] NSWSC 1690 at [40]ff, which is to similar effect. Original post: In Carter v Mehmet [2021] NSWCA 32, the Court granted the respondents’  security for costs application in part because the appellant’s solicitors had much to …

What the Gobbo royal commission recommended about regulation of the legal profession

Here is Commissioner McMurdo’s Summary and Recommendations from the Final Report, published yesterday, of the Royal Commission into the Management of Police Informants. Reproduced below is what it says about regulation of the legal profession.  There will be more complaints about barristers in the future.  Victorian barristers would be well advised to take out the …

A case under the Uniform Law about a barrister who had no costs agreement and gave no costs disclosure

In Arya v TD [2020] VCAT 923, Member Tang, a former President of the Law Institute now a full-time member of VCAT, had to decide what were the fair and reasonable costs (in the Legal Profession Uniform Law sense of that phrase) of more than 11 hours’ work by a Victorian barrister of 18 years’ …

2018: Not Such a Good Year (‘Great’ Powers)

Europe  The peasants revolted in France, which seemed to take everyone by surprise.  Seems President Macron’s honeymoon period, following his remarkable 2017 election, may be over.  England thought about changing prime ministers but thought better of it, while it agonized over what sort of Brexit it should have, or whether they should vote on the …

Re-raising complaints-(not)

In Cahill v Victorian Legal Services Commissioner [2017] VSC 177 (Keogh J); [2017] VSCA 283 (Kyrou JA with whom the other Justices of Appeal agreed), the previous Victorian Legal Services Commissioner closed a disciplinary complaint against a solicitor once related proceedings were commenced. Despite then being functus officio, at the complainant’s request he ‘re-raised’ the complaint once the …

Suit for fees goes badly wrong but could have gone much worse

An ACT practitioner seems to me to have been skilfully represented, escaping with findings of unsatisfactory professional conduct, a reprimand and a fine.  The decision in Council of the Law Society of the ACT v LP [2017] ACAT 74  just shows how far cooperation and a persuasive articulation of remorse and insight can go. The …

2016: not such a good year (part 4: terror, including genocides)

It is said that 2016 may have been the year in which a coordinated terrorist attack involving bombs and knives reached Melbourne. St. Paul’s Cathedral, Federation Square and Flinders St, possibly on Christmas Day. 400 AFP and ASIO officers and regular police arrested seven men. Four were charged: Abdullah Chaarani, Hamza Abbas, Ahmed Mohamed, and …

2016: not such a good year (part 3: Tromps, Trumps, Russia, China)

Victorious underdogs  With some already noted exceptions, it was the year of the underdog. In the AFL, the Western Bulldogs pulled off an extraordinary Grand Final victory, the fruits of ex-Slater & Gordon man Peter Gordon’s remaking of the club. By contrast, the Court of Arbitration for Sport confirmed the suspension for 12 months of …

NSWCA surveys fines in NSW lawyers’ discipline decisions over a decade

Russo v Legal Services Commissioner [2016] NSWCA 306 was the subject of my previous post. The Court engaged in a comparatively sophisticated review of disciplinary outcomes in like cases.  The purposes of this post is to reproduce that review and comment on the variables which ought to be taken into account in any proper survey of past outcomes. To …

NSW solicitor who didn’t pay counsel’s fees struck back on

Salvatore Russo, a solicitor of 29 years’ standing, was struck off NSW’s roll of solicitors on 16 April 2016 by NCAT.  He had received payment from his client for counsel’s fees but not paid counsel for years. Then he was high-handed in response to the client’s entreaties when counsel sued the client directly.  The Court of Appeal found …

Yet more on the obligation on Legal Services Commissioners to plead their case properly and stick to it

Legal Services Commissioner v AL [2016] QCAT 237 is a decision of a disciplinary tribunal presided over by Justice David Thomas, President of QCAT and a Supreme Court judge. It is therefore of high persuasive value, and treats Queensland provisions which are the same as the equivalent Victorian provisions. And it provides what I suggest with …

Continuing professional development obligations: plus ca change…

Today is the end of the CPD year, and the last day of operation of the Victorian Bar’s Continuing Professional Development Rules 2008 in Victoria.  They are hard to find now, but you can access them here.  The Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 were made on 26 May 2015 and commenced …

When can lawyers contract out of taxation? (part 2)

This is part 2 of a post about in what circumstances lawyers can avoid having their fees scrutinised by the Supreme Court by the process traditionally known as ‘taxation’, but more recently also described in statutes as ‘costs review’ and ‘costs assessment’.  Part 1 is here. First, a disclosure: I argued Beba at first instance, for …

Direct and vicarious liability of bodies corporate for conduct of natural persons

A woman sued a Melbourne school for injuries and distress occasioned by its headmistress’s sexual abuse of her as a girl.  Represented by Lennon Mazzeo solicitors’ Nick Mazzeo, Dyson Hore-Lacy QC and David Seeman, she obtained judgment from Justice Rush of the Supreme Court of Victoria for $1.25 million, a substantial proportion of which was …