Summary A drunken male barrister approached a seated female assistant clerk whom he did not know at a dinner at a barristers’ clerks conference, lightly pushed her head downwards towards the table and away from his person and said to her in her colleagues’ presence ‘suck my dick’, moments after greeting another barrister on the clerk’s floor, his friend, at the table by sticking his middle finger out, grabbing the other barrister’s head and pulling it to and from his crotch. Continue reading “The ‘suck my dick’ case”
If there were such a thing as a model paedophile, the respondent in Legal Services Commissioner v Ferguson  QCAT 205, a gentleman in his early 60s, might be it. He had psychiatric ill health and other life difficulties and turned to booze and porn, a small fraction of which was child pornography. (No one suggested that his collection of presumably legal non-child porn was relevant in any way to his fitness to practice.) Continue reading “Legal discipline and the model paedophile”
I only learnt in the last few years that Melbourne is one of the world’s great Jewish cities, with a globally significant series of communities of orthodox adherents. One of those orthodox communities has delivered up an interesting case. In Victorian Legal Services Commissioner v AL  VCAT 439, VCAT’s Acting President recently found a well known Melbourne solicitor guilty of two counts of professional misconduct, constituted by breaches of each limb of r. 30.1.2 of the solicitors’ professional conduct rules.
The rule prohibited conduct calculated to, or likely to a material degree to be, prejudicial to the administration of justice, or to diminish public confidence in the administration of justice, or adversely to prejudice a practitioner’s ability to practise according to these rules.
The practitioner’s disciplinary offence was first to state privately to his client’s father his disappointment after an orthodox Jew sitting watching someone else’s case in court had gone out of his way from the well of the court to assist police in the middle of a bail hearing in a criminal prosecution of the practitioner’s client. His second offence was committed when the man, whom I will refer to as the complainant since he lodged the disciplinary complaint which led to the practitioner’s disciplinary prosecution, rang the practitioner and asked him about comments to similar effect which the man had heard the practitioner had made, taping the call. The practitioner expressed directly to the man similar sentiments, expressly invoking the Jewish principle of ‘mesirah’ by which Jews who cooperated with secular authorities against fellow Jews in times and places where Jews enjoyed imperfect protection were ostracized. Jewish authorities have repeatedly said that the principle has no operation in modern day Australia in relation to criminal matters.
The Age has reported, in an article prominently featuring the practitioner, that victims of Jewish abusers have been pressured not to cooperate with police. It reported the Legal Services Commissioner as saying that ‘there was a general principle that made it impermissible for a lawyer to tell a witness they could not inform police about a matter because of a religious or community rule.’ I do not mean to criticise the Commissioner in this regard, because The Age sought his comments prior to the Commissioner’s receipt of the complaint, and the Commissioner was presumably simply responding to a general question about lawyers’ obligations towards witnesses in their cases. But what VCAT’s decision demonstrates is that the practitioner’s comments occurred after the conduct in question which the practitioner believed to have involved false statements based on misinformation, and were directed to a person who was not a witness and who, as far as the practitioner was aware, was simply someone who stood up in the well of the court and interfered in his client’s case. Given that, as far as the practitioner is said to have known, the man who stood up in court had no further role to play in the case or in his client’s drama more generally, it is hard to see how the practitioner could be said to have intended to pressure the man as a victim of a Jewish abuser not to cooperate further with the police in the future in bringing the abusers to justice, as seems to have been the implication. Continue reading “VCAT finds practitioner guilty of conduct prejudicing administration of justice”
Professor Dal Pont’s excellent text Lawyers’ Professional Responsibility (5th ed., 2013) suggests at [23.145] that mental illness will rarely provide a defence to a disciplinary prosecution, the purpose of which is protective rather than punitive. He argues, in part, that the public needs protection just as much from the mentally ill who do bad things as from the mentally flourishing who do wrong. But that reasoning does not have any application where there is not a temporal proximity between the moment of determining liability and the moment at which the putative wrongdoing occurred. In my experience the glacial pace of disciplinary investigations usually mean that the time for setting sanctions is years after the conduct in question. Very often, I find myself acting for practitioners whose minds are flourishing much more than at the time of their wrongdoing.
I always thought (or perhaps more accurately, hoped) that Dal Pont was a little pessimistic about the possibility of mental impairment being relevant to the determination of the question of whether unsatisfactory professional conduct or professional misconduct is. True, there are some decisions broad statements in which support that position, but the authorities are a bit all over the place, and there are so many different kinds of conduct warranting discipline and so many fact scenarios that it seemed to me that the law must be more nuanced than some of those broad statements suggested.
Last year, VCAT’s Legal Practice List last year ruled, contrary to the position advanced by Victoria’s Legal Services Commissioner, that evidence of mental impairment was relevant to the question of whether conduct was professional misconduct or unsatisfactory professional conduct, and heard evidence from a psychologist during the liability phase of the hearing. The two species of conduct warranting discipline arising from a breach of the rules have traditionally been delineated by enquiring whether the breach was innocent or whether it was deliberate or reckless, so that it clearly incorporates a subjective enquiry. VCAT’s decision to hear the psychological evidence on the question of liability was, as I have learnt in the course of penning this post, consistent with that in New South Wales Bar Association v Butland  NSWADT 120.
Now the Supreme Court of NSW has reviewed the authorities and published a useful decision in the matter of BRJ v Council of the New South Wales Bar Association  NSWSC 146 (Adamson J), making clear that mental illness may be relevant to the question of liability, as well as to the question of penalty where it is of course of critical relevance, citing Robinson v The Law Society of New South Wales (Supreme Court of New South Wales, Court of Appeal, unreported, 17 June 1977), a decision I have not come across before. Essentially, Justice Adamson said, it all depends on whether there was a mental element to the kind of conduct warranting discipline which is charged. Conduct described as a failure to maintain standards of competence and diligence is not something to which the practitioner’s mental impairment is relevant. In charges which rely on the practitioner having a particular state of mind do require analysis of the degree to which the practitioner’s state of mind was flourishing. Professional misconduct at common law is determined by what competent and reputable peers would think of the conduct. What they would think is affected by the degree to which the practitioner’s mind was flourishing at the relevant time.
Unfortunately for the barrister who was the subject of the disciplinary hearing under appeal in this case, all this meant that though the Tribunal and the Court accepted that her conduct was caused by her psychiatric illness, she was nevertheless properly found guilty of unsatisfactory professional conduct constituted by failing to maintain standards of competence and diligence and acting in the face of a conflict between self-interest and duty to her client. The test for such unsatisfactory professional conduct does not enquire into the mind of the practitioner, the Court found. Accordingly, the psychiatric causation was legally irrelevant.
See also this sister post, about the disciplinary Tribunal’s and the Supreme Court’s willingness to allow the practitioner to change her plea, once after the liability hearing but before the delivery of reasons and once on the eve of the hearing of the appeal.
Updated post (25 July 2014): The answer to the question posed by the original post is: yes, he will be struck off. Here are the reasons: Council of the Law Society of NSW V Andreone (No2)  NSWCATOD 81. His failure to make submissions on the question would not have assisted. On the question of whether monies received by solicitors from clients for payment of counsel’s fees are trust monies, and on whose behalf they are held, see Legal Services Board v Gillespie-Jones  HCA 35 about which Melbourne University’s Associate Professor Bant’s learned commentary may be found here.
Original post (published as ‘Will Solicitor Who Failed to Pay Counsel’s Fees be Struck Off?’): The Law Society of NSW wants a solicitor who persistently delayed in paying counsel struck off. The NSW equivalent of VCAT has found the professional misconduct established: Council of the Law Society of NSW v Andreone (No. 1)  NSWCATOD 49, and a hearing on sentencing is pending. In this case, clients had paid bills which included claims by the solicitor for counsel’s fees by electronically depositing monies into the firm’s office account — probably at the firm’s direction, as the Tribunal found.
The Tribunal found without reference to authority that those payments were trust monies to the extent that they satisfied the claims by the solicitor for counsel’s fees, the solicitor not having paid the counsel at the time of their receipt. In other words, the solicitor held the monies on trust for the barristers. But it seems that the Tribunal considered the solicitor’s misappropriation of trust monies and the failure to pay the fees as separate instances of professional misconduct. In other words, the mere failure to pay the fees, given its intentionality and persistence, amounted to professional misconduct. This is what the Tribunal said: Continue reading “NSW solicitor who failed to pay counsel’s fees struck off”
Clyne v New South Wales Bar Association (1960) 104 CLR 186;  HCA 40 is a unanimous decision of the Dixon Court confirming the striking off of a Sydney barrister, Peter Clyne, for making unfounded and serious allegations on behalf of a husband against the wife’s solicitor in matrimonial litigation for the admitted purpose of getting the wife’s solicitor out of the case. Those allegations were in fact made in a private prosecution by the husband of the wife’s solicitor for maintenance. Reading the decision, one might think that striking off the rolls was a relatively harsh penalty by today’s standards for the conduct recorded, especially since his client succeeded at committal in having the wife’s solicitor presented for trial. And also if one believes Mr Clyne’s autobiography where he asserted:
‘Particulars given by the New South Wales Bar Association made it quite clear that it was not part of the charge to say that my advice to prosecute was wrong, or improper. Indeed, as I have mentioned before, the advice to prosecute Mann was given in writing, by the eminent and respected Sydney QC, Mr Newton, who later became (and still is) a judge of the New South Wales District Court; and no one has ever criticized Mr Newton for his advice.’
But Mr Clyne had done it before and been sternly warned (see CLR 202) and was unrepentant to the moment he was struck off. Further, he was absolutely one out of the box (he will be the subject of a further blog post) and was no doubt regarded as an excrescence on the legal system to be excised at almost any cost. He went on to irritate the authorities as a professional tax evader and unashamed advocate of tax evasion, writing many books on the subject and others (e.g. Adventures in Tax Avoidance, How Not to Pay Any Taxes, Guilty But Insane) while living a decadent lifestyle which hopped, first class, between hotels in Sydney and his native Vienna. Like George Herscu, one of the villains in White Industries v Flower & Hart, Clyne spent time in jail, and only avoided spending more time by fleeing America without a passport while on appeal bail. He seems to have been intelligent and to have had enough charm to be married to a Welsh entomologist who also wrote many rather different books (e.g. Silkworms, All About Ants, and Plants of Prey). But his autobiography (Outlaw Among Lawyers; the Peter Clyne Story, Cassell Australia, 1981) reveals a thoroughly dishonest if colourful character with very little if any regard for the law. Continue reading “Clyne v NSW Bar Association: the leading case on unfounded allegations”
Updated post, 1 July 2016: see the English High Court case Law Society of Ireland v Patrick Enright described in this case note.
Original post: In Fraser v Council of the Law Society of NSW  NSWCA 72, which is part of the subject of this post, President Kirby made some comments on the relationship between the jurisdiction to strike a practitioner off the roll and a finding or admission of dishonesty, that is, fraud. The Court of Appeal unanimously overturned the decision of a disciplinary tribunal striking off the roll a solicitor with an otherwise unblemished record for fraudulently giving a certificate of advice to a mortgagor, then not being frank about it towards the mortgagee’s solicitor and in the disciplinary investigation, and having difficulty accepting, in the disciplinary tribunal that what he had done amounted to fraud. Kirby P said that a finding of fraud is not a prima facie indicium that a lawyer ought to be struck off; everything depends on the circumstances: Continue reading “Dishonesty in a solicitor: does it require striking off?”
Up-updated post, 18 May 2017: See also LSC v Huggett  NSWCATOD 67, which gathers together additional authorities at .
Updated post, 11 March 2016: In The Law Society of New South Wales v Gathercole  NSWCATOD 27, the Tribunal was asked by the applicant to order the removal of the practitioner’s name from the roll for falsely attesting a wife’s signature in her absence on a document presented to the practitioner by the fraudster husband, a bank manager. Though the Tribunal found that the conduct amounted to ‘professional misconduct of a very high degree’, the practitioner was insightful, remorseful, and had good references. So they gave him a $5,000 fine instead.
Original post: What’s the going rate by way of penalty for lawyers successfully prosecuted for falsely attesting the execution of documents? As usual in the law of professional discipline, the cases are all over the place — what is analysed below is a collection, not a line of, authorities — but I am unaware of any case in which a lawyer’s practising certificate has been interfered with solely for purporting to sign as witness a document they did not witness the execution of or for falsely giving a certificate that advice about the document was given. And you would have to say that a fine of a few thousand dollars and a reprimand is the going rate. Justice Kirby, then President of the Court of Appeal, adverting to the Court’s role as fixing the standards to be observed in determinations by disciplinary tribunals, overturned a disciplinary tribunal’s decision to strike off a solicitor who gave a false certificate of advice in relation to a mortgage, exacerbated the wrongdoing by oral representations to the mortgagee’s solicitor and was not frank in the disciplinary investigations. The Court substituted a fine and a reprimand: Fraser v Council of the Law Society of NSW  NSWCA 1992.
Because of the dishonesty inherent in this species of disciplinary wrong, the cases have traditionally been clear that it amounts to professional misconduct rather than to unsatisfactory professional conduct. But the New South Wales Court of Appeal’s decision in Xu v Council of the Law Society of NSW  NSWCA 430 bucks the trend and characterised one such instance as unsatisfactory professional conduct. All of the other cases need be re-evaluated in light of the Court of Appeal’s decision.
Below are my notes of reading the cases, for a disciplinary prosecution in which I recently acted. I was put onto some of them by readers of this blog, for which many thanks.
In Legal Services Commissioner v WJK  VCAT 108, a sole practitioner who has written a legal text and published a number of articles succumbed to temptation when the pressures of life got to him and meant he did not have time to do a proper job of writing a 10,000 word research paper for his Master of Health and Medical Law at Melbourne Uni. He plagiarised extensively from two published articles which he did not acknowledge at all. I can tell you, I presently have the greatest of sympathy for full-time lawyers who have to squeeze Masters study into their lives. But I must confess to a degree of incomprehension as to why the solicitor, having gotten away with the plagiarism and garnered a good mark, thought publishing the plagiarism in the Journal of Law and Medicine was a good idea.
He made admissions at an early stage after he was caught out, but persisted to the end of the misconduct hearing with mitigatory evidence which was rejected as implausible. He pleaded guilty to two counts of professional misconduct at common law which specifically alleged that his plagiarism was deliberate. His practising certificate was cancelled and he will not be getting a new one within 6 months of the cancellation taking effect.
In Re a Psychologist  TASSC 70, the Supreme Court of Tasmania quashed a decision of the Psychologists Registration Board of Tasmania to suspend a psychologist for 6 months for entering into a sexual relationship with a former patient fewer than 2 years after the end of the therapeutic relationship. In fact he married her. A couple of newspaper articles are here and here.
The Supreme Court quashed the decision because the Board switched from considering these allegations as a breach of a code of conduct to considering them as an allegation of professional misconduct at common law without adequately bringing the switch to the unrepresented psychologist’s attention. Also because the reasons were inadequate. Justice Blow engaged in a mini-review of recent cases about health professionals and sex with former patients: Continue reading “Doctors, psychologists, sex and former patients”
In Legal Services Commissioner v RAP  VCAT 1200, the Bureau failed to establish a charge of professional misconduct at common law against a solicitor in respect of conduct which occurred otherwise than in the course of, and unconnected with, legal practice. (Another charge, not the subject of this post, succeeded.) The allegation was that he:
‘deliberately misled a person with whom he had entered into a commercial transaction, thereby behaving in a manner that would reasonably be regarded as disgraceful or dishonourable by fellow practitioners of good repute and competency’.
The solicitor had negotiated in late 2005 with a car dealer for the purchase of a $1.4 million [sic.] car. Continue reading “VCAT explores definition of professional misconduct at common law unconnected with legal practice”
Legal Services Commissioner v JDG  LPT 17 is a shocking case in which a Queensland barrister was struck off after he lied when confronted by investigators with the true proposition that he had offered to pay a $50,000 bribe to a Magistrate or Crown prosecutor on behalf of a client. He also took $59,000 in cash from the direct access client and popped it into his safe. He used some of it to feed his gambling. He should, of course, have chucked it into a special account. He told his client that: Continue reading “Beak bribe boast bars barro”
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: Continue reading “Lawyers and the criminal law”
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  VSCA 247, and Golem v Transport Accident Commission [No2]  VCAT 736.)
What Mr Dwyer said was: Continue reading “Latest word on burden of proof in professional discipline ‘prosecutions’”
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  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. Continue reading “Kylie’s one-time lawyer goes down, with a ‘disgraceful and dishonourable’ finding”
In Law Institute of Victoria v DSS  VCAT 1179, the Institute sought in a misconduct prosecution an order that the solicitor not be allowed to handle trust monies for 50 years. Vice President Judge Ross described the submission as ‘somewhat excessive’.
The solicitor had stolen $75,000 from his clients and out of his trust account, lied to a trust account inspector, removed evidence so as to hinder his investigation, and involved a client in misleading the inspector by dictating a letter full of lies and having her sign it and send it to the inspector with a view to perverting the course of justice. These were ‘manifestly serious’ instances of misconduct. In a criminal prosecution, Justice Lasry had sentenced the solicitor to 18 months’ imprisonment, wholly suspended. The solicitor was suffering from a mental illness at the time when he committed the offences. A family law client had been murdered by her husband at the County Court more or less in the solicitor’s presence and he had not coped well. There was a psychiatrist’s report. The solicitor was remorseful and his remediation was well advanced. He had paid back all the stolen monies. He was working in a business which provided services to body corporates, and his employer was supportive. On his return to practice, he intended to confine himself to body corporate law.
In these circumstances, the Institute contended that an appropriate disposition for the disciplinary charges arising out of the same facts as the criminal charges was: Continue reading “Law Institute seeks 50 year ban for 62 year old solicitor”
Update, 7 July 2008: Watch the video of Tampoe slagging off his client here.
Original post: Lawyers and their regulators should care about the Corby case, because at the relevant time, a lot of people loved Schapelle and Schapelle does not now much like her lawyers. One of them has hit back, calling the Corbys “the biggest pile of trash I have ever come across in my life”. People will think this is normal, or at least the tip of the iceberg. And much confusion seems to be going around about Mr Tampoe’s fabrication of a defence for Corby. For giving this interview, and saying this, I condemn Mr Tampoe, who is no longer a solicitor, with all my fibre. What I question below is whether the media have got their reportage of his claim to have completely fabricated the defence right — if he means what I imagine he means, I say — so what? Whether or not the media have got it right, I reckon his comments might well harm his former client. They could have been personally deeply hurtful, they could affect her treatment in jail, they could affect any claim for clemency she might in the future make, and they could affect the result of the prisoner exchange treaty negotiations underway between the Australian and Indonesian governments, or the speed with which they progress. Continue reading “Robyn Tampoe, Schapelle Corby’s solicitor”
Legal Services Commissioner v BH  VCAT 687 is a case with terrible facts. A man died as a result of a crime. The family hired the respondent solicitor to act for them in crimes compensation applications. He lost the file some time into the second year of the retainer, but did not tell his clients. Late in the third year of the retainer, the Victims of Crime Assistance Tribunal struck out the claims for want of prosecution, but the solicitor hid the fact. Over a period of 6 months beginning a year later during which the 4th anniversary of the retainer fell, the solicitor made up a whole string of complete lies, telling his clients that VOCAT had made offers of compensation, but that they should be rejected, and that they should attend the fictitious trial. The Commissioner urged the suspension or cancellation of the solicitor’s practising certificate, but the Victorian Civil and Administrative Tribunal (VCAT) declined, instead fining him and imposing conditions on his ongoing practice. Continue reading “Solicitor who blatantly lied to clients for years keeps ticket”
Here’s a 37,000 word long judgment in a professional negligence case against a solicitor which began in early 2000: Rebenta Pty Ltd v Wise  NSWSC 1332. It does not discuss many issues of law. The reason one might want to look at it is that it is one of those rare cases where a dispute about whether there was one ongoing retainer or several more discrete retainers of a solicitor. The solicitor won after a four and a half week trial.
In The Prothonotary of the Supreme Court of New South Wales v. Sukkar  NSWCA 341, the NSW Court of Appeal engaged in a surprising degree of soul searching before deciding to strike an ecstasy importer cum solicitor off the roll of practitioners. The fact that he gave false evidence in his trial did not assist him. The decision is an interesting illustration of the distinction between a finding of want of good fame and character and a finding of professional misconduct where the conduct in question is unconnected with legal practice. The Court of Appeal’s decision in the criminal appeal is reported at Regina v Sukkar  NSWCCA 54. The importation of 124 kilograms of ecstasy earnt the solicitor 14 years in jail. In relation to the appropriateness of a finding of misconduct where the conduct in question is unconnected with legal practice, Basten J said in separate reasons from the majority: Continue reading “Two new cases from NSW”
Here’s a decision from the NSW Court of Appeal, apparently exercising original jurisdiction, in which a former partner of Marsdens in Campbellfield was struck off the roll by consent for receiving secret commissions of $180,000 amongst other things, including deceiving the investigation into that conduct: Prothonotary of the Supreme Court of NSW v Alcorn  NSWCA 288. The analysis of whether the solicitor was a fit and proper person was as follows: Continue reading “Former Marsdens partner struck off the roll of solicitors in NSW”