Commissioner’s obligation to charge dishonesty if he intends to allege it

Relatively recently, I posted on the question of whether a Bureau de Spank desiring to rely on a practitioner’s dishonesty or other form of conscious wrongdoing must expressly allege it in the charge, and discussed Walter v Council of Queensland Law Society Incorporated (1988) 77 ALR 228 at 234; [1988] HCA 8.  Now, in Legal Services Commissioner v Madden (No 2) [2008] QCA 301 the Queensland Court of Appeal has had a go, and reversed a decision of the Court’s Chief Justice sitting on the Legal Practice Tribunal.  The solicitor had previously been disciplined in relation to his trust account.  He was charged with gross delay in litigation which resulted in applications by the other side to compel the achievement of various interlocutory steps.  He dealt with those applications without advising his client, agreed on his client’s behalf to pay costs, withdrew money to pay those costs from monies held in trust on account of fees and disbursements, and then charged the client fees for his work in fixing up his own mistake.  He also acted for both husband and wife in the preparation of a pre-nup, apparently stuffing it up, and then later acted in a matrimonial dispute for the husband alone, described as a particularly obvious conflict of duties.

The Chief Justice made findings of dishonesty in the absence of any allegation of dishonesty in the charge.  One might say, in fact, that he went out of his way to do so.  First he sought comment in relation to whether on the agreed facts, the Tribunal was free to draw inferences that dishonesty actuated the solicitor’s conduct, and invited the Commissioner to amend the charge so as to allow exploration of that issue.  His Honour adjourned the hearing to give the Commissioner time to think about that. On the return of the hearing, the Commissioner declined the invitation to amend.  So the Tribunal put out a document specifying, as a matter of procedural fairness, the inferences it was considering drawing, and invited argument.  The solicitor swore an affidavit responding to the Tribunal’s document.  The Commissioner’s counsel cross-examined the solicitor, but did not put it to him that he had acted dishonestly. The Tribunal then concluded that the solicitor had acted dishonestly, and decided to strike him off rather than go with the fine and reprimand recommended by the Commissioner.  Ooffa!

‘Wrong way. Go back!’ said the Court of Appeal.  It started with a general proposition:

’54 It is … a well recognised rule of practice in civil proceedings that, although the word “dishonesty” is not necessarily required, any charge of dishonesty must be made in clear terms.  In a well known passage in Belmont Finance Corporation Ltd v Williams Furniture Ltd & Ors [1979] Ch 250 at 268  Buckley LJ said: Continue reading “Commissioner’s obligation to charge dishonesty if he intends to allege it”

Disciplinary charges and intentional wrongdoing

Update, 4 December 2009: see now Legal Services Commissioner v Madden (No 2) [2008] QCA 301.  What the Queensland Court of Appeal said there about Walter’s Case, the subject of this post, is reproduced at the end of the post.

Original post: Does a lawyer’s Bureau de Spank have to say in a charge in a disciplinary prosecution that the norm allegedly transgressed was transgressed deliberately or recklessly, if that’s what they desire to prove?  In the old days, deliberate or reckless transgression was what distinguished professional misconduct from unsatisfactory conduct, the lesser form of disciplinary offence.  Nowadays, it is only a ‘useful guide’ in distinguishing the two.  So a finding of misconduct might, theoretically, be made in respect of conduct by a person ignorant of the norm transgressed, or who simply made a mistake about a relevant fact. And so there is a particular reason now why it is desirable to know whether dishonesty is alleged, making it more important than ever to be informed by the charge if the Bureau is going to contend at the hearing that the solicitor intentionally did wrong, or was dishonest.

Back to 1988 and a unanimous High Court decision of the Mason Court which did not make it to the CLRs and which I read for the first time only recently: Walter v Queensland Law Society [1998] HCA 8; (1988) 77 ALR 228; 62 ALJR 153.  J R S Forbes’s Justice in Tribunals (2nd ed., 2006) suggests at p. 132 that it stands for the proposition that if a professional regulator wants to establish dishonesty or wilful wrongdoing it should say so, also citing Melling v O’Reilly, Appeal 6/91 Misconduct Tribunal, Criminal Justice Commission (Qld), 9 December 1991. Continue reading “Disciplinary charges and intentional wrongdoing”

Admission of allegations relevant in distinguishing between misconduct and unsatisfactory conduct

In Legal Services Commissioner v PT [2009] VCAT 1603, Senior Member Preuss decided that a failure to respond to a demand by the Commissioner for information in relation to a disciplinary complaint was unsatisfactory professional conduct rather than the more serious professional conduct, for several reasons including that ‘he [the respondent solicitor] admitted the factual circumstances alleged and he did not oppose the orders which I sought to make’.  That is not a factor which has often expressly been taken into account in making the distinction, as far as I am aware.

Doctors, psychologists, sex and former patients

In Re a Psychologist [2009] 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”

Double jeopardy and disciplinary proceedings

Coke-Wallis v Institute of Chartered Accountants In England and Wales [2009] EWCA Civ 730 considered the application of principles of res judicata and autrefois acquit (the criminal version of the same principle, an aspect of double jeopardy) to disciplinary ‘prosecutions’.  It did so in the context of the disciplining of accountants.  The relevant scheme made a conviction conclusive evidence of an act likely to bring the accountant, and the profession, into disrepute. The conviction itself, and the conduct of which it was conclusive evidence were each able to justify disciplinary sanction. Mr Coke-Wallis was convicted of a crime but the disciplinary prosecution brought on that basis failed unexpectedly.  So the regulator charged him again, by reference to the conduct which was the subject of the conviction.  The English Court of Appeal held that the principles of res judicata, or autrefois acquit (which it seemed to assume applied to disciplinary proceedings) were not infringed, because the two charges were separate and distinct. That left open the question that though there was no legal bar to the second prosecution, nevertheless it constituted an abuse of process.  After analysis, no abuse was found.  English solicitors Shepherd + Wedderburn have kindly prepared a little case note.  Justice Gillard’s decision on a similar problem in Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 is the subject of this post.

The Institute does not always seem to get everything perfect.  Take for example, the Queen’s Bench Division’s description of another prosecution, in Gorlov, R (on the application of) v The Institute Of Chartered Accountants In England And Wales [2001] EWHC Admin 220, justifying an exceptional award of costs against a professional disciplinarian: Continue reading “Double jeopardy and disciplinary proceedings”

VCAT explores definition of professional misconduct at common law unconnected with legal practice

In Legal Services Commissioner v RAP [2009] 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”

Commissioner’s unexplained delay reduces penalty for serious misconduct

Speaking of the need for speed as Justice Heydon and I were on this blog yesterday, there are two other instances worthy of reporting.

First, the High Court has recently considered the need for speed in criminal proceedings, and were not nearly as excited about it as in commercial litigation. This time, they rolled the court below for saying that enough delay was enough and staying a criminal prosecution that had hung around for too long, resulting in the loss of exculpatory evidence.  The decision in R v Edwards [2009] HCA 20 might have application by analogy in disciplinary cases. It is blogged about at Quis Custodiet Ipsos Custodes, and there is a short note in the latest Law Institute Journal.

Secondly, delay by the Legal Services Commissioner has had a consequence in a serious disciplinary prosecution.  Parliament requires the Bureau de Spank to conduct their investigations ‘as expeditiously as possible’, and to give the complainant progress reports at least 6 monthly: s. 4.4.12, Legal Profession Act, 2004.  If the Commissioner complies with these injunctions, the degree of expedition which is possible is not always great.  In fact, sometimes the rate at which investigations progress is astonishing.  So glacial can progress be that the possibility that climate change sceptics might actually have some kernel of truth buried away beneath all of their hot air (-not) begins to nag at you.  There is a letter in the latest Law Institute Journal complaining about the Commissioner’s April 2009 response to a solicitor’s September 2008 letter (August 2009, p. 10).

An unexplained period of apparent inactivity of 18 months was taken into account in favour of the lawyer prosecuted for misconduct in Legal Services Commissioner v ER [2009] VCAT 1445.  This is a factor which might be brought to bear in many a plea in a disciplinary prosecution.  What Judge Ross’s tribunal said on this issue is: Continue reading “Commissioner’s unexplained delay reduces penalty for serious misconduct”

Another remedial disposition of a disciplinary hearing

A solicitor was found guilty of professional misconduct in early 2006 for failing to respond to the Commissioner.  Then he was found guilty again for a similar thing in December last year and fined $1,500.  And then again just recently, by Senior Member Preuss, a decision maker who seems new to the Legal Practice List: Legal Services Commissioner v RJ [2009] VCAT 1130.  At the most recent hearing on 1 June, the solicitor still had not provided a response to the complaint in issue in the December 2008 hearing.  The complaint in issue in the most recent hearing, to that point unresponded to by the solicitor, was lodged 20 months ago, and related to alleged delays in the administration of a deceased estate, a matter of interest to the Commissioner. Que faire? Senior Member Preuss decided against a further fine, and instead exercised the power given to her under s. 4.4.19(i) of the Legal Profession Act, 2004, which says:

‘The Tribunal may make the following orders: … (i) an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a specified person.’

There is a trend emerging.  See this previous post.  But since the 1 June 2009 decision, the solicitor has been back before a differently constituted Tribunal in relation to his non-compliance with the order made in December last year, at which a different advocate appeared for the Commissioner.  Vice-President Ross fined the solicitor $750: Legal Services Commissioner v RJ [2009] VCAT 1080.  What Senior Member Preuss said in June 2009 was: Continue reading “Another remedial disposition of a disciplinary hearing”

Schapelle Corby’s former lawyer struck off

Robin Tampoe, the former Gold Coast lawyer hired as one of Schapelle Corby’s lawyers by Ron Bakir, has been struck off the roll of solicitors by Queensland’s Legal Practice Tribunal. The decision is here.  Removal from the roll is the ultimate sanction in the world of professional discipline, though in circumstances where it is not apparent that Mr Tampoe intended in the future to practise law anyway, it is interesting that there does not seem to have been any push for a substantial fine.

Mr Tampoe did not contest the charge of professional misconduct comprised of disclosing on a national breakfast television show confidential information obtained during his retainer about criminal convictions of members of the Corby Family.  Nor did he contest the unsatisfactory conduct comprised of commentating on his own defence strategies and calling his client’s family the biggest pile of trash he had ever come across in his life. That conduct was characterised as ‘scandalous, offensive and/or likely to bring the profession into disrepute’.  You can still watch some of the conduct in question on Channel 9’s website. Continue reading “Schapelle Corby’s former lawyer struck off”

Solicitor prosecuted for breach of rule in Browne v Dunne

Bizarre man.  A Queensland solicitor has been found guilty of professional misconduct for not obeying the rule in Browne v Dunne (well, amongst other things): Legal Services Commissioner v MPD [2009] LPT 08. Here are the reasons:

‘[18] in July 2004, [Mr Dryland] retained the respondent to resist an application for an apprehended violence order.  [19] Mr Dryland’s case involved a denial of the incident of violence alleged against him.  [20] During the hearing, the respondent, who acted as advocate, failed to put his client’s case when cross-examining.  [21] The Court made an apprehended violence order against Mr Dryland.  [22] It is not alleged that there was a connection between a failure to comply with the rule of practice in Browne v Dunn (1893) 6 R 67 and the outcome of the hearing. Rather, the undisputed case is merely that there was a failure to cross-examine appropriately.’

Beak bribe boast bars barro

Legal Services Commissioner v JDG [2008] 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”

Solicitor gets three year break for multiple conflict findings

In Legal Services Commissioner v DJMH [2008] VCAT 2301, Deputy President McNamara’s tribunal ordered the solicitor not to practice before 1 July 2011 for multiple findings of acting in the face of a conflict.  It is unfortunate that the reasons for decision do not allow an understanding of what was alleged.  It had something to do with conflicts of duties in lending transactions described as ‘very serious indeed’.  The gravamen of the charges, according to the Deputy President was that the solicitor: Continue reading “Solicitor gets three year break for multiple conflict findings”

The practising certificate suspension challenge that went wrong

Update, 8 November 2008: When I wrote this post, the Court of Appeal had authoritatively answered another of the questions posed below, about the penalty privileges, but I had not yet read the case, CT v Medical Practitioners Board [2008] VSCA 157.  Now I have, and I have posted here about it.

Original post: WPE v Law Institute of Victoria [2008] VCAT 1277 shows that you’ve got to be careful when challenging a decision to cancel or suspend your practising certificate because if the Law Institute wants to sic you, they can seek to establish misconduct against you in the merits review proceedings, and if they get up, VCAT has the same suite of powers as it would following a disciplinary prosecution: s. 2.4.37(3) Legal Profession Act, 2004.

Sometimes, rather than engage in litigation, it is better to play the game, take an early long service leave, help some orphans, have a moment on the road to Damascus, and send in a well thought out application for a new certificate at a well judged time in the future. Saves a lot of costs and maybe a few orphans,  lets you have a holiday at the same time, and means there’s never a hearing into the conduct which gave rise to the suspension and/or cancellation. Spend half the money you would have spent on lawyers on a public relations consultant and a lobbyist and you’re doing even better. Other times it’s better to avoid merits review — the obvious remedy specifically provided for in the Legal Profession Act, 2004 — and go for judicial review proper (a course which we now know since Zarah G-W’s cases is kosher; c.f. Perkins v Victorian Bar Inc [2007] VSC 70), especially where the decision making process leading up to the suspension or cancellation is dubious.  But sometimes, if a disciplinary charge seems imminent, the question of costs referred to below might recommend getting in early with an application for review of a practising certificate decision which might prevent the laying of disciplinary proceedings proper and lead to adjudication of the issues in a more costs friendly regime.  There is much to weigh up in choosing one’s approach when challenging a practising certificate decision.

How these hybrid administrative law and quasi-criminal proceedings are supposed to pan out has been a bit of a mystery to date.  They are a new concept.  Maybe they are unique — who knows?  Anyway, there was certainly no analogue under the Legal Practice Act, 1996.  Who bears the burden of proof?  Who should go first?  Does the privilege against penalties protect the lawyer?  Is it an inquisitorial or adversarial proceeding?  Should the matters the Law Institute will argue should found disciplinary findings be the subject of properly particularised charges?  What about costs?  Can the Law Institute apply for disciplinary findings at all, or is it a jurisdiction which must be invoked by VCAT?  Judge Ross provided answers to a couple of these questions only in this case. Continue reading “The practising certificate suspension challenge that went wrong”

Issac’s holiday; plea bargaining in disciplinary charges examined

Issac’s style of legal letter writing is legendary. There are some quite extensive private collections out there. I recall one letter said to have been penned by the man himself which began ‘Dear Sir, you are a petulant lunatic,’ and after some substantive words continued ‘You are a very small cog in a very big wheel and it seems that it will long stay that way.’

I have long been a fan of his extremely colourful and yet less-is-more webpage, which has said, for as long as I can remember, in yellow and red text surrounded by blue fire ‘We at Issac [B] and Co make a firm commitment to a flexible, approach to law’.  Such heterodox ebullience can only be tolerated so long in the dark suited depressed salaryman world of the Melbourne legal fraternity, and the other day, the sombre might of the law came down on the iconoclast for what the humourless powers that be characterised as too much flexibility. Continue reading “Issac’s holiday; plea bargaining in disciplinary charges examined”

Lawyers and the criminal law

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”

The right to silence in disciplinary and striking off hearings

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. Continue reading “The right to silence in disciplinary and striking off hearings”

Latest word on burden of proof in professional discipline ‘prosecutions’

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: Continue reading “Latest word on burden of proof in professional discipline ‘prosecutions’”

Kylie’s one-time lawyer goes down, with a ‘disgraceful and dishonourable’ finding

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. Continue reading “Kylie’s one-time lawyer goes down, with a ‘disgraceful and dishonourable’ finding”

Solicitor litigants’ entitlement to costs

Solicitors who are parties to litigation and don’t hire other solicitors to represent them are the only people who are generally entitled to claim legal costs from the losing party even though they don’t have to pay lawyers anything. Engaging in litigation involving themselves is therefore a profitable activity if they win. The principle dates back to London Scottish Benefit Society v Chorley (1884) 13 QBD 872. The Supreme Courts of the land are grumbling about the anamlous nature of the exception, but reluctantly applying it. The most recent case is Freehills, in the matter of New Tel Limited (in liq) (No 4) [2008] FCA 1085.

The leading Australian case is Guss v Veenhuizen (No 2) (1976) 136 CLR 47. The most recent High Court authority to touch on the question is Cachia v Hanes (1994) 179 CLR 403, though that was a case about a claim for costs of a self-represented consulting engineer who was successful in litigation, and the Court there doubted, in dicta, the cogency of the Guss Case‘s reasoning. A judge of the The Full Court of the Supreme Court of Western Australia refused to apply the exception in Dobree v Hoffman (1996) 18 WAR 36, but in the Freehills Case, McKerracher J of the Federal Court sitting in Perth decided to refer it directly to the Full Court of the Federal Court, without formally determining the case, commenting only that he would consider himself bound by Guss’s Case. Other cases to apply the exception include: Continue reading “Solicitor litigants’ entitlement to costs”