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Case specific blogs start appearing

Update: 22 December 2007

Legal Blog Watch’s Carolyn Elefant predicts:

‘2008 will be a banner year for single-issue blogging, like David Rossmiller’s coverage of “everything Richard Scruggs,” Above the Law’s coverage of Aaron Charney’s lawsuit against Sullivan & Cromwell or Durham in Wonderland, covering the Duke lacrosse team rape case.’

Dickie Scruggs, an American lawyer, and others pleaded not guilty to criminal charges that they schemed to bribe a judge handling $26.5 million in legal fees related to Hurricane Katrina claims. Aaron Charney settled his sexuality discrimination case against Sullivan & Cromwell. Mike Nifong was disbarred over his over-zealous prosecution of a rape complaint against a team of Duke University lacrosse players.

Check out, too, this analysis of the project of a blogger, Jane Genova of Law and More, who blogged 3 to 6 posts a day during a civil jury trial about lead paint in the US.

Original post: Apple has announced the iPhone. But Cisco owns a trademark “Iphone”. So Cisco has sued Apple. And a top Cisco exec is blogging about the case, waging the war in the court of public opinion. This post considers that blog and a handful of blogs set up by journalists covering cases of public interest, mainly murder trials of whites from the look of things. Continue reading “Case specific blogs start appearing”

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NSW prosecutor’s computer repair leads to child porn suspension

A Sydney silk took his computer into work at the Department of Public Prosecutions to be fixed. The repairman mentioned the child pornography on the hard disk to his superiors, and the Deputy Senior Crown Prosecutor was suspended on leave with pay and has said he will plead guilty to a charge of possessing child pornography. He may lose his job, his status as a QC, and up to two years of his liberty. With thanks to Freedom to Differ.

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US lawyer castigated for accepting less than 1/3 contingency fee

Thanks to Overlawyered I bring you the story of the US plaintiffs’ lawyer who has advertised for personal injury work arising out of car accidents on a 15% contingency fee basis instead of the normal 33%. The mischievous quirk of behaviour has not been particularly warmly accepted by his peers. This post looks at that story and at the  euqivalent laws in Victoria where  lawyers working no-win no-fee are not allowed to charge a percentage of the client’s winnings, but are allowed to jack up their normal rates by up to 25% in no-win no-fee cases which are “successful”. Continue reading “US lawyer castigated for accepting less than 1/3 contingency fee”

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Can you be prosecuted for mere negligence?

There is no doubt that mere negligence cannot constitute misconduct in the traditional concept of that expression: Myers v Elman [1940] AC 282 at 288; Re Hodgekiss (1959) 62 SR(NSW) 340 at 351; Re Veron (1966) 84 WN (Pt 1) (NSW) 136 at 143 (CA); Re Miles (1966) 84 WN (Pt1) (NSW) 163 at 173 (CA); Pillai v Messiter (No 2) (1989) 16 NSWLR 197. Gross negligence, or a pattern of simple negligence, may amount to misconduct. And to say that mere negligence cannot constitute misconduct is not to say that things characterisable as negligence and things characterisable as professional misconduct are mutually exclusive. Delay is a different kettle of fish: that can certainly be misconduct. This post looks at some modern definitions of unsatisfactory professional conduct and cites authorities for the blindingly common sense proposition that mere negligence without more ought not found any disciplinary charge against a lawyer. Continue reading “Can you be prosecuted for mere negligence?”

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Staying disciplinary proceedings as abuses of process

Update, 23 December 2009: Doubt is cast on the correctness of Hunt AJA’s comments by Hodgson JA, the other justices of appeal agreeing, in Council of the NSW Bar Association v A (2008) 72 NSWLR 236 at 249; [2008] NSWCA 164 ([40]).

Original post: The following passage from the NSW Court of Appeal’s decision in Lindsay v Health Care Complaints Commission [2005] NSWCA 356 (Hunt AJA, others agreeing) casts some doubt on whether a medical disciplinary tribunal presided over by a judge had power to stay a disciplinary proceeding as an abuse of process. The issue arose in the context of which the legislation provided that “The members of the Tribunal are to conduct an inquiry into any complaint … referred to it”, and then, later “It is the duty of a Committee and the Tribunal to hear inquiries and appeals under this Act and to determine those inquiries and appeals expeditiously.” As the Court noted, “Both provisions express the obligation of the Tribunal to exercise that jurisdiction in unusually mandatory terms”. Continue reading “Staying disciplinary proceedings as abuses of process”

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More on absolute privilege and lawyers and clients: Hercules v Phease

In “Whistleblowers and the Law of Defamation: Time for Statutory Privilege?” [2005] 3 Web JCLI, David Lewis cites More v Weaver [1928] 2KB 520 as authority for the general proposition that lawyer-client communications are absolutely privileged, that is, that they may not be sued upon in defamation. I have not read the case to check out that assertion, but someone else has noted the proposition was doubted by Lord Atkin in Minter v Priest [1930] AC 588.
The leading case on absolute privilege and lawyers and clients in Victoria is Hercules v Phease [1994] 2 VR 411, a decision of the Full Court of the Supreme Court of Victoria. In the latest High Court case on absolute privilege, Mann v O’Neill (1997) 191 CLR 204, Gummow J obligingly provided a little case note: Continue reading “More on absolute privilege and lawyers and clients: Hercules v Phease”

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Lawyer’s defamation suit against former client founders on absolute privilege

In Sexter & Warmflash, P.C. v Margrabe, 2007 NY Slip Op 00065, a woman hired lawyers to represent her and her brother in a dispute with a cousin. The lawyers charged a reduced fee but could charge a 50% premium upon resolution of the dispute. The dispute was settled, but the woman thought the lawyers were progressing too fast towards final resolution (and their premium payment) at the expense of her interests. She fired them and copied her brother in on her none-too-complimentary letter of dismissal, which she also sent to two other lawyers she had retained for second opinions. Essentially, she alleged a concurrent conflict between duty and interest, as well as incompetence. The lawyers sued her in defamation for at least US$1 million, and then represented themselves, a step which raises real questions in my mind about their strategic competence, one of the things criticised in the controversial letter. The case was summarily dismissed. The New York Supreme Court Appellate Division‘s statement of the law of absolute privilege is reproduced: Continue reading “Lawyer’s defamation suit against former client founders on absolute privilege”

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Next election important for composition of the High Court

Kenneth Nguyen’s analysis in The Age about the importance, from the point of view of the composition of the High Court, of the next election, is worth reading. He says the next federal election is expected some time after September this year, the same month Callinan J must retire by. The Chief Justice must retire by August 2008, and Kirby J by March 2009. Kirby and Gummow JJ are the only two Labor government-appointed judges on the Court at the moment.

Mind you, sometimes these discussions suggest too close a correlation between the likely decision making of appointees and the predilections of the governments appointing them. Deane and Wilson JJ, both champions of indigenous issues, were Fraser Government appointments, for example, and both were powerful voices on social justice during Liberal Governments. Ron Wilson published the stolen generation report “Bringing Them Home” while Howard was prime minister, and William Deane was openly critical of the Howard Government after he was freed of the constraints of the office of Governor General. On the other hand “Liberal government” means something very different today from what it meant in the 1970’s: Malcolm Fraser has been a strident critic of John Howard, as has John Hewson more recently (though he thought Howard’s IR reforms did not go far enough…).

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The solicitor and “the other side’s witness”, part II

Part I is the extraordinary story of a leading labour lawyer in Melbourne who was found to have induced breach of contract in taking a statement from an ex-employee of the other side in a class action in which the lawyer was the plaintiffs’ solicitor. Unbeknownst to him, the ex-employee continued to be bound by a confidentiality agreement.

Part II is a simple case in which the defendant’s solicitor applied to enjoin the plaintiff’s solicitor from continuing to act, based on a conflict of duties, Grego v Great Western Insurance Brokers Pty Ltd [2006] WASC 284. It was a workers’ compensation case brought by a fisherman in relation to an injury said to have been sustained on the remote Abrolhos Islands. The defendant said the payment of wages by the company which engaged in the fishing activities (of which the plaintiff and his wife were the directors) was a retrospective fiddling of the books after the alleged accident. The plaintiff interviewed the defendant’s accountant in relation to discovered documents, having alleged a fraudulent conspiracy to claim loss of wages. The accountant willingly cooperated in the preparation of an affidavit. Its contents were not damaging to the plaintiff [20]. This was said to amount to an “obvious breach of the duty of confidence” owed by the accountant to the plaintiff as his client.

There is no criticism of the defendant’s solicitor in the judgment because there is no property in a witness. The accountant must have woken up to the inappropriateness of what he was doing, though, because he sent the draft affidavit to the plaintiff’s lawyer for comment before signing.

When told of this, the defendant’s lawyer objected, saying that the accountant had disclosed a privileged document to the plaintiff’s lawyer. He said a draft witness statement is privileged under the litigation limb of legal professional privilege (a normally uncontroversial proposition) and the accountant had interfered with the defendant’s privilege by providing it to the plaintiff’s solicitor. The accountant did go on to swear an affidavit in the terms of the draft, having taken counsel’s advice and having been advised by the plaintiff’s solicitor that it was entirely a question for the accountant whether he signed the affidavit or not (the judge found at [39] that this constituted the implicit conveying of the plaintiff’s consent to the swearing of the affidavit). So by the time of the injunction application, that had already occurred, and could not be restrained. There was no attempt to restrain the use of the affidavit in the litigation. The defendant applied for the plaintiff’s solicitor to be restrained on the basis that the solicitor had:

“2.1 wilfully infringed against the legal professional privilege of the [defendant] in a draft affidavit;

2.2 have placed [himself] in a position where [his] duties to the plaintiff and [his] duties to a material witness necessarily conflict;

2.3 by [his] actions have created a perception that [he] interfered with a witness in the giving of evidence.”

His counsel’s argument met with about as little success as is possible. Justice Peter Blaxell said: Continue reading “The solicitor and “the other side’s witness”, part II”

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How not to bill; how not to deal with a fee dispute; the story of a Yank lawyer

Courtesy of Justinian, I bring you the story of the overcharging New Jersey lawyer who charged like this:

“With regard to the fee, he purportedly spent entire days, sometimes eight or nine hours per day, for several days in a row, apparently in ‘lockdown’ — researching, reviewing and negotiating issues that had little or no bearing on the substance of the transaction. Further, respondent presented nothing to substantiate the time charges underlying the bill. Nothing in the record refuted Ferwerda’s compelling testimony that respondent’s services should have been limited to review of the SBA loan documents, an unalterable lease agreement, and the franchise agreement, itself a non-negotiable contract.”

Then, when the client hesitated before paying the $50,000 bill, he:

“threatened her with criminal prosecution for “theft of services” and he didn’t stop there: He also warned that she might lose her business, her home and her professional license.”

She went to another lawyer, who instituted a fee arbitration. The first lawyer settled by waiving his fee, all the time contending he was perfectly entitled to it. When he was charged with gross overcharging and intimidatory conduct, he failed to appear at the hearing, earning himself a break for 6 months.

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Cross-fertilisation of VCAT jurisdiction under separate enabling acts

In Director of Housing v Young [2002] VCAT 227, Deputy President Levine decided that a $14,000 residential tenancy claim of a kind in which VCAT’s jurisdiction was limited to $10,000 could be brought pursuant to the Fair Trading Act, 1999 as what is now described as a “consumer-trader dispute” because the Fair Trading Act, 1999 was enacted after the Residential Tenancies Act, 1997. He also decided that a case brought under one Act in the associated List may plug gaps in that List by invoking jurisdiction in another Act associated with another List and the whole lot may be heard at once by a member of the first List. Continue reading “Cross-fertilisation of VCAT jurisdiction under separate enabling acts”

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A claim for solicitor to pay costs of very difficult case personally fails

FD v New South Wales [2006] NSWSC 1407 is a case where a very difficult case for the plaintiff, in which mistakes were made, did not create, in the plaintiff’s solicitor, an obligation, on the defendant’s application, to pay costs personally. It was the Armidale District Women’s Centre which sought the order against FD, a woman who believed she had been sexually abused, and that she had sustained a psychicatric illness as a result of the Women’s Centre’s counselling on the referral of the State’s Department of Community Services, whom she also sued. She certainly had a psychiatric illness. She terminated the instructions of her solicitor and counsel and thereafter did not attend court. As she was impecunious, the defendants sought costs against her former solicitor personally. Detailed reasons are given for why the former solicitor ought not personally pay the costs.

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Solicitor refers costs dispute to VCAT’s legal practice list

In  Robert J Lawyers v Kirby [2006] VCAT 2609 A client complained about his solicitor’s fees. The Legal Services Commissioner was unable to  settle the costs dispute. The solicitor exercised his right to refer the matter to the Legal Practice List of VCAT. Unusual, but sensible, since the Legal Practice Act, 1996 empowers VCAT to give judgment, effectively, for outstanding fees, and that is what he got, after having 15% knocked off for what I would characterise as a rather technical breach of the Legal Practice Act, 1996’s costs disclosure rules. Continue reading “Solicitor refers costs dispute to VCAT’s legal practice list”

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“Holy mackerel, you’re small, which is good for …” earns repeat offender GP re-education

Re: Richard George Y [2007] MPBV is a decision of the Medical Board of Victoria about a GP and former model, a one-time member of Cleo’s 50 most eligible bachelors who came to grief a second time for inappropriate comments while his hands were in his patient’s genital area. “Holy Mackerel, you’re small, which is good for …” he said before the poor patient cut him off. According to Socialized Medicine blog, Dr Y “had his licence suspended for 15 months in 2001 after engaging in sexual relationships with two … female patients. His licence was renewed on the condition a chaperone be present when he examined female patients.”

This time around, he was an “unreliable witness”. He gave evidence which the Board simply did not believe. The Board was at pains to point out that there was no allegation of sexual impropriety, but there was a finding of unnecessary double-digital penetration with thrusting followed by unsatifactory evidence as to why it had been necessary. He got reprimanded, cautioned, and ordered to undergo some counselling by senior doctors, the Board making no comment in assessing sentence on the unsatisfactoriness of his evidence despite the fact that one obvious possible explanation for its unsatisfactoriness was that he had lied to his professional regulator. On the characterisation of the conduct, the Board said: Continue reading ““Holy mackerel, you’re small, which is good for …” earns repeat offender GP re-education”

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Latest mammoth loss of a chance exegisis: NSW med neg case

The latest novel written by a judge about the concept of loss of a chance is Halverson v Dobler [2006] NSWSC 1307. I suspect lawyers professional indemnity specialists spend too little time reading the doctors’ negligence cases. Though there seems to be some suggestion that loss of a chance as a concept is on the wane, especially in relation to personal injuries cases, and that loss of a chance should only apply to cases where conventional proof (on the balance of probabilities cannot be made out), that is not quite enough to persuade me to wade through the judgment.

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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 Australian — the 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.

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Tidy little fruits of litigation lien judgment

In Khoury v Gonvales [2006] NSWSC 1290, Mr Khoury, a solicitor, got from Justice Barrett of the NSW Supreme Court a declaration that he was entitled to a fruits of litigation lien. He had acted for Mr Sef Gonzales in a suit against the executrix of the will of Teddy Gonzales, and won. Sef got an order for costs too, and the Court ordered the executrix to pay the costs out of the estate. There was a taxation and that resulted in a judgment against the executrix in favour of the client for the sum of $107,032 in costs. The solicitor wrote to the executrix and asked for the money, but she said she needed the consent of the judgment creditor — Sef Gonzales — before she would pay it to anyone other than him, and that consent was not forthcoming. So the solicitor did the sensible thing and applied to the Supreme Court for a declaration that he was entitled to an equitable lien over the estate to the extent of the judgment debt since it was only through his exertions on behalf of Sef Gonzales that Sef had got the judgment at all. The Court obliged, and provided some neat summaries of the relevant law along the way. Continue reading “Tidy little fruits of litigation lien judgment”

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Litigant’s right to recover fees of interstate lawyer under costs order

Update: now reported at (2007) 237 ALR 802 

This little problem gives rise to ridiculous complexities. In Cannon Street Pty Ltd v Karedis [2006] QCA 541, the Queensland Court of Appeal upheld Justice White’s decision to allow, as party party costs, work done for the successful party by Clayton Utz Sydney in relation to trial of the matter in the Supreme Court of Queensland, despite a parochial provision in the local Supreme Court Act, 1995 (s. 209) which said “A person who is not a barrister or solicitor of the Supreme Court shall not be entitled to claim or recover or receive directly or indirectly a sum of money or other remuneration for appearing or acting on behalf of another person in the Supreme Court”. That the Court had been exercising federal jurisdiction seems to have been significant. I have only glanced at the decision. Another recent case to consider similar issues is Santos Ltd v Delhi Petroleum Pty Ltd [2005] SASC 242.