BRJ v Council of the New South Wales Bar Association  NSWSC 146 is the subject of this sister post about the permissible use of evidence of mental impairment. Two aspects of it deserve their own separate post. The respondent barrister changed her plea twice, once after the liability phase of the hearing but before the decision as to liability was given and once the night before the hearing of her appeal in the Supreme Court of NSW. Each time, she was allowed to do so. Continue reading “Lawyers withdrawing ‘guilty pleas’ in disciplinary prosecutions at first instance and on appeal”
WASCA on the kind of recklessness in making statements which amounts to conduct warranting discipline
Traditionally, the law of professional discipline has differed from the law of negligence in three profound ways. First, its aim is the protection of the public (though the policy in favour of protecting the reputation of the profession grossly infects the purity of this proposition in most analyses). Secondly, it is about personal wrongdoing. Statute aside, there is no law of attributed liability in contrast to doctrines such as vicarious liability in the law of negligence. And thirdly, simple as opposed to gross negligence was never considered to warrant discipline. Things got messed up by the introduction into disciplinary statutes of a concept of unsatisfactory professional conduct defined in terms identical to the test for simple professional negligence.
Disciplinary tribunals (and, in my experience, disciplinary investigators and prosecutors) seem to lapse from time to time into the language of ‘should have known’ even outside the prosecution of that species of unsatisfactory professional conduct which is defined by reference to the test of simple professional negligence. Two practitioners had to go to two Courts of Appeal to reverse decisions on dishonesty charges which were horribly infected by objective reasoning: Legal Services Commissioner v Brereton  VSCA 241 and Giudice v Legal Practitioners Complaints Committee  WASCA 115. Surprisingly, the former decision did not get a guernsey in the latter. The law of recklessness is authoritatively restated in the three separate judgments in Giudice and I have set the whole lot out below along with some observations about Brereton’s Case. Continue reading “WASCA on the kind of recklessness in making statements which amounts to conduct warranting discipline”
Supreme Court overturns 2008’s biggest discipline decision
Update, 31 January 2012: See now Council of the NSW Law Society v Simpson  NSWADT 242 re the meaning of ‘misappropriation’. It was on this point that Justice Bell in Brereton overturned VCAT’s decision: they had not recorded making a finding of dishonest intention.
Original post: Justice Bell yesterday allowed an appeal by Michael Brereton from the decision I wrote about here: see Brereton v Legal Services Commissioner  VSC 378. The matter is to be re-heard by the same tribunal. Mr Brereton is making quite a comeback: see this article in The Australian. Some entertainment for readers of this blog should follow if he makes good his stated intention to sue the Legal Services Commissioner and the Law Institute.
Costs ordered against Law Institute in unsuccessful opposition to appeal against sentence of solicitor
The last post referred to part 1 of the last chapter of an intriguing saga. The second and final part of that chapter is the decision on costs: PJQ v Law Institute of Victoria (No. 2)  VSCA 132. The President of the Court of Appeal rejected the following submissions by the Institute:
- that the Institute was just a contradictor, assisting the Court by ensuring that it had two views to choose from, and was akin to an amicus curiae;
- that it would have been entirely inappropriate for a professional regulator such as the Institute to consent to the relief sought by the appeal;
- that the cases which say that ‘costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that the tribunal has been guilty of serious misconduct or corruption or has acted perversely’ are relevant (‘this submission is entirely misconceived. The Institute is not a tribunal. Rather, it appears before the Tribunal as a party. Its function is that of prosecutor. No question arises here of the Tribunal’s costs, since the Tribunal did not appear.’);
- it was relevant that parliament had directed that costs of the Full Tribunal hearing were not to be awarded against the Institute save in exceptional circumstances (s. 162, Legal Practice Act, 1996; see now Victorian Civil and Administrative Tribunal Act 1998, Sch 1 cl 46D(3));
- because it made no submissions as to penalty, the Institute did not lead the Tribunal into error. Continue reading “Costs ordered against Law Institute in unsuccessful opposition to appeal against sentence of solicitor”
Court of Appeal sets aside unduly harsh outcome in gross overcharging prosecution
PJQ v Law Institute of Victoria VSCA 122 is the part 1 of the last chapter in a story of good tactical plays characteristic of professional discipline specialist Sam Tatarka in the representation of a solicitor charged with gross overcharging, and applying trust monies to pay his fees without the appropriate paperwork. It sounds like a plea bargain was entered into whereby the solicitor pleaded guilty to the charges on the basis that what led to the overcharging was overzealous representation and disorganization rather than dishonesty and in return, the prosecutor — the Law Institute of Victoria — would not make submissions as to penalty. But that is speculation. When it came time for ‘sentencing’, the solicitor offered an undertaking to the Tribunal that any file in which he proposed to charge more than $20,000 would be independently costed by a costs consultant. The Tribunal enquired whether he would submit to such costing by the Law Institute’s costs assessing service. The solicitor said yes.
In Law Institute of Victoria Limited v PJQ  VLPT 8, the Full Legal Profession Tribunal came down hard, accepting the expert opinion of a man without a law degree that appropriate legal costs for a proceeding of the kind in which the solicitor had represented his client were half what he had charged, and suspending the solicitor from practice for 12 months. To the surprise of the President of the Court of Appeal, the Tribunal made no mention of the alternative to suspension represented by the undertaking despite going through the ritualistic ‘no punishment happening here’ recitations (‘Our task does not involve punishment of the legal practitioner. Our task is to provide for the protection of the public, including deterrence of the legal practitioner and the profession generally from like conduct…’; ‘Conscious of the necessity to place the barrier high before depriving a member of the profession of their practising certificate we have given all the circumstances of this case the most careful and repeated consideration.’ etc.).
President Maxwell, with whom Justices Chernov and Nettle agreed, held that the Tribunal’s inexplicable failure to mention in its reasons the undertaking offer suggested that its sentencing discretion had miscarried. His Honour actually acknowledged with refreshing forthrightness that penalisation is part of sentencing for professional discipline offences, but, by his words, sought to give real meaning to the concept that protection of the public is what professional discipline is all about, by quashing the Full Tribunal’s orders and, on resentencing, making no orders in recognition of the substantial costs already incurred by the solicitor and the partially endured suspension: Continue reading “Court of Appeal sets aside unduly harsh outcome in gross overcharging prosecution”
Procedural fairness: “Murray letters” considered by Victorian Court of Appeal
B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 (Ormiston, Charles and Batt JJA)
The Law Institute corresponded with the solicitors in this matter between 1998 and October 2000. The CEO Ian Dunn, wrote what is known in the game as “a Murray letter” on 16 October 2000. That is a letter summarising the tentative conclusions of an investigation giving a practitioner a final opportunity to comment before a final decision to lay a charge. The two solicitors in this case were given 7 days in which to respond. One of them replied at length and indicated he did not desire an extension of time, the other did not request an extension. Later, their lawyers took the point that the charge was invalid and the Tribunal’s jurisdiction not properly invoked. The Tribunal found it had jurisdiction. The Court of Appeal had no jurisdiction to entertain an appeal in relation to this aspect of the Tribunal’s decision because, it found, the finding that sufficient time had been afforded was a question of fact, and it had jurisdiction only to hear appeals on a question of law. Nevertheless, the majority ventured some dicta. Continue reading “Procedural fairness: “Murray letters” considered by Victorian Court of Appeal”
3 years’ holiday for not making ongoing discovery
Guss v Law Institute of Victoria Ltd  VSCA 88 (Maxwell P gave the lead judgment, Callaway and Chernov JJA agreeing)
A solicitor’s right to practice was suspended for three years and he was ordered to pay costs of $31,500 for failing to comply with the obligation of ongoing discovery in relation to what was prima facie a privileged copy of a document produced by an expert witness a few days before trial which, had the existence of the copy document been disclosed to the other side, might have put the other side onto a train of enquiry which might have led to relevant evidence. Continue reading “3 years’ holiday for not making ongoing discovery”