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)  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”
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, 10 June 2009: Mr Tampoe has been struck off the roll of solicitors.
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 WP  VCAT 983 was a guilty plea. A sole practitioner and ex-cop shared offices with a Turkish conveyancer named Dervish. The solicitor practised as a sole practitioner under the name “Thomasz and Dervish”, even though Mr Dervish’s only connection with the legal practice was that he shared premises with it. The solicitor allowed the conveyancer to become a signatory to his office account (i.e. not his trust account), he said, because utilities bills were made out to both of them. Over a period of one and a half years, Dervish put more than $750,000 of the conveyancing business’s clients’ funds through the solicitor’s office account. Dervish misappropriated about $180,000. The solicitor said though he was aware that the solicitor from whom he had bought the practice, who had also shared premises with Dervish, had had an issue with Dervish in which a substantial sum of money went missing, he never noticed these transactions. He pleaded guilty to misconduct under the Legal Practice Act, 1996 constituted by a reckless failure to comply with this practice rule:
“A practitioner must ensure that each part of the practitioner’s legal practice is, at all times, carried on or effectively supervised by a legal practitioner.”
Vice-President Ross adopted the solicitor’s suggestion as to an appropriate disposition, making the following orders:
Continue reading “Solicitor reprimanded for letting conveyancer steal monies from his office account”
Update, 26 June 2008: The managing partner of the controversial NSW personal injury practice referred to below was fined $10,000 by the Administrative Decisions Tribunal’s Legal Services List for advertising in contravention of conduct rules despite a prior warning from the Legal Services Commissioner. One wonders whether any enquiry was entered into about how much business was generated by the advertising. If not, the fine of $10,000 may in fact attract further breaches of the law as a cost effective means of buying your way out of the prohibition on advertising.
The Australian reports that there are calls for national unification of the over-complicated and increasingly divergent costs disclosure regimes around the country.
Original article: Front page article in The Melbourne Times: ‘Case for Change: Putting the Cost of Justice on Trial’. It’s all about a pack of convicted crims who have set up an electronic vehicle for the dissemination of jailhouse savvy, the wonderfully named ‘Crimassist‘. They tend towards the view that legal fees are a bit on the high side. You can bet your bottom dollar that the unqualified practice boffin at the Law Institute is watching keenly despite the anonymous website proprietors’ brilliant anti-conviction technique of plastering the site with explanations that none of it is legal advice. Then there’s a long Sydney Morning Herald article about a prominent Sydney personal injuries practice which is either so seriously on the nose that it’s surprising that their practising certificates haven’t been suspended, or, as they say, victims of a terrible vendetta by embittered former employees who are controlling and manipulating their former clients. If nothing else, it must be said that the firm is very generous: when one of its clients complained of overcharging, it flicked him $100,000 and later said it was just a commercial goodwill gesture, and no admission at all of overcharging. Then Victoria’s Attorney-General has lashed out at barristers’ fees out of the blue, prompting a fairly strong response from the likes of Richter and Burnside QCs. Continue reading “Lawyers’ fees are hot news all of a sudden”
Update, 13 June 2008: In Legal Services Commissioner v GT  VCAT 982, the solicitor failed to respond to a Bureau demand for 8 months. The complaint about which the Commissioner sought information was of not attending to client affairs, just like the complaint which, amongst others, gave rise to two misconduct findings and two ‘standards breaches’ about 10 years ago. He got off with a light fine: $500, and costs agreed at about $1,500 on the basis that he was:
’employed by The Micah Law Centre Incorporated, which was conducted by All Saints Anglican Church at Greensborough.
8 He said that he was overwhelmed by the amount of work that he was required to perform. He said that he worked six days each week, and sometimes seven days. He said that he suffered from a “severe bronchial viral infection” for ten weeks prior to December 2007. During that period he struggled to attend to his work, but was required to do so because there was no other person to attend to his files. He added that he became physically and emotionally exhausted, and that his work had severely impacted upon his marriage.’
and that ‘he is without employment, and … he has not applied to renew his practising certificate as from 1 July 2008. He also said that he is taking “time out for rest and recuperation”, and to re-build his relationship with his wife.’
Original post: This post is about recent s. 4.4.11(1)(a) prosecutions of 8 solicitors. Section 4.4.11(1)(a) of the Legal Profession Act, 2004 says that if the Bureau de Spank asks for a full written explanation of the conduct the subject of a complaint (or an investigation of the Commissioner’s own volition), or compels the production of apposite documents, the solicitor must cough up within the time specified in the demand, which may not be fewer than 14 days (but is routinely expressed as ‘within 16 days’ though within 16 days of what is not specified). Its predecessor was s. 149 of the Legal Practice Act, 1996. So many people are getting prosecuted that it was getting too boring to blog. But just when I was about to ignore them, VCAT started getting tough, and actually cancelled a couple of blokes’ practising certificates and said it would have cancelled another’s but for the fact that he was retiring anyway. Continue reading “Suddenly, solicitors are losing their practising certificates for not cooperating with the Bureau de Spank”
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”
In JLL v Law Institute of Victoria Limited  VCAT 456, a Box Hill solicitor who had paid only $5,000 of the $55,000 odd he owed under orders of the Legal Profession Tribunal was given a practising certificate by VCAT, overturning a decision of the Law Institute not to give him one on the basis that he was not a fit and proper person. Judge Bowman said the Institute had been wrong to rely on past misconduct which had already been considered by the Legal Profession Tribunal, and in respect of which the solicitor should be deemed to have ‘done his time’, so long as he entered into a repayment plan. Continue reading “Once you’ve done your time, prior misconduct not an indicator of fitness to practise”
This year, I acted for a man who was so pissed off with a used car salesman, that he set up a webpage to recount his experiences. Say for the exercise the business was called Jack Maggs and Daughters Used Cars, and that its website was www.jackmaggs.com.au. My client purchased www.jackmaggs.com and went to town, in an indignant but truthful kind of a way. A suit for defamation followed. I pleaded the defence of truth, and particularised all the wrongdoing in detail. There it sat, on the public record, available to be inspected by the public. A confidential settlement was arrived at. The website is no longer there, but my client had by then made his point. Legal Blog Watch’s post ‘Who Needs a Lawsuit for Excess Fees When You’ve Got the Internet?‘ has alerted me to this website, which must strike terror into the hearts of many a law firm. It is apparent from the site that the firm has responded in the media, and the disgruntled client has responded with vigour on the blog, and on and on it goes.
The blogosphere is part of this whole trend. Consider the opprobrium which Reed Smith, a big international firm, has earned itself — rightly or wrongly — when it allegedly estimated its fees at US$50,000 in ‘a routine employment discrimination case’ and then charged its not-for-profit client 20 times that amount. See for example this post and this one, from Law.com and Legal Blog Watch respectively.
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”
In the last post, a solicitor ignored the Bureau de Spank for 3 months, a default explicable by personal circumstances and depression during the relevant period. In Legal Services Commissioner v JEH  VCAT 2181 (27 September 2007), a Warragul solicitor ignored the Commissioner for almost 6 months. The reasons are broad-brush in their approach to the nature of the plea, but it sounds like the excuses were more diffuse and less tied down to the relevant period of the default than those in the previous case, so Member Howell made a finding of misconduct. The reasons’ characterisation of the self-represented plea was:
‘7 [the solicitor] gave evidence about events of a stressful nature that have arisen in his practice, and in his personal life, during the last 15 years. I have no reason to doubt his evidence, and his evidence caused me to have considerable sympathy for him, but the events about which he gave evidence do not excuse him from providing to the Commissioner a full written explanation of his conduct.’
To add to the confusion about the difference betweeen misconduct and unsatisfactory professional conduct under the new Act, however, exactly the same penalty was meted out as in the previous case: a $1,000 fine and costs, fixed at $2,352, but without the reprimand.
The solicitor might have pointed to s. 4.2.8 of the Legal Profession Act, 2004 in the context of the fact that the Commissioner did not even publish the complaint to him for a month after receiving it, and said something about the pot calling the kettle black, but unrepresented though he was, I infer from the reasons that he restrained himself, probably quite sensibly. That section says: Continue reading “Misconduct constituted by ignoring the Bureau”
The definitions of the greater and lesser disciplinary offences under the Legal Practice Act, 1996 and the new Legal Profession Act, 2004 are different. Under the old act, the one was distinguished from the other by the absence or presence or wilful contravention of norms, or recklessness as to whether conduct would contravene norms. No longer. But in Legal Services Commissioner v SM  VCAT 2117, Member Butcher held that intent is still a useful guide in distinguishing between the two. In that case, a 47 year old sole practitioner sought to explain a 3 month delay in responding to a demand by the Legal Services Commissioner for a written explanation of conduct a former client had complained about, and succeded in having his conduct characterised as the lesser rather than the greater species of disciplinary offence. He was fined $1,000 and ordered to pay costs of $2,165. How the costs were calculated is once again intriguing, since a salaried employee of the Commissioner appeared on her behalf. The plea went like this: Continue reading “How to distinguish between unsatisfactory professional conduct and professional misconduct under the new Act”
A Morwell solicitor has been ordered to pay a fine of $3,000 and costs of almost $2,500 for ignoring the Legal Services Commissioner’s demands under the Legal Profession Act, 2004 power resident in her to compel written explanations of conduct the subject of a complaint and to compel the production of documents — in this case, the file in relation to the matter which was the subject of the complaint. The case is Legal Services Commissioner v NT  VCAT 1987. I was down at the Tribunal that day for a matter in which I was briefed in the Legal Practice List. When that was over, I popped in to watch this matter at random. The solicitor had not showed up, and the advocate was leading a winsome witness from the Commissioner’s office through her evidence. Turns out that the advocate was a staff member of the Commissioner’s office. The Commissioner is absolutely to be commended for keeping costs down in this way. If the police can prosecute complex crimes in the Magistrates’ Court, there is no reason why the Bureau should not have an in-house advocate — or a member of the Bar on retainer — to do simple prosecutions. How the costs of $2,500 odd were arrived at is a different and interesting question, but I cannot comment on that since it does not appear from the reasons. Continue reading “Morwell solicitor to pay $5,500 for ignoring Bureau de Spank”
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”
A man hired a firm. Then he hired a new solicitor. He had not paid the fees of counsel retained by the first firm, for which the first firm was responsible for paying to the barrister. The first firm handed over its files to the new solicitor upon receiving an undertaking from the second solicitor that he would pay the counsel’s fees. The new solicitor failed to do so. So the first firm (i) sued him in a court for what amounted to specific performance of the undertaking, and (ii) complained about the failure to meet the undertaking to the NSW Law Society (this was back in 2001). Nine months later, the Society charged the new solicitor with professional misconduct.
The hearing of the court case was listed for 17 January 2002. The new solicitor who was the respondent to the disciplinary charge hired a barrister to represent him at the trial of the civil court case. Through that barrister, the new solicitor negotiated a settlement with the first firm a day or two before the trial. The terms of that settlement got the barrister who negotiated it into trouble: in Council of the New South Wales Bar Association v DKLR  NSWADT 201, NSW’s equivalent of VCAT’s Legal Practice List held the barrister guilty of unsatisfactory professional conduct. The settlement purported to settle not only the civil action, but also to dispose at the same time of the complaint. Continue reading “Danger lurks in settling a disciplinary complaint against a lawyer”
A barrister purported to witness the signature of a wife on a guarantee at the request of his good friend the husband. But he did not witness her signature. Worse, he certified that he had explained the document to her and that she had appeared to understand it. A familiar story. As it happens, the wife suffered no loss, but she says that though she signed the guarantee, she did so under duress. Unbeknownst to the barrister, the couple’s relationship was heading for the Family Court.
The barrister cooperated fully from the outset and admitted his wrongdoing, but the investigation and hearing of the plea still ran up costs of over $5,000. The case is Legal Services Commissioner v MPRT  VCAT 1986, not yet available on the web. The prosecutrix did not submit that suspension was appropriate. The barrister was reprimanded, fined $5,000 with a stay of 3 months, and ordered to pay the Commissioner’s costs
I was already a fan of the first edition of Judge Stephen Walmsley SC, Alister Abadee, and Ben Zipser‘s excellent Professional Liability in Australia, published by Thomson, and had been waiting for the new edition with interest. I got myself a copy the other day. It’s good, and there are substantial additions since the first edition, including a lot on expert evidence, a new bit on professional discipline, analysis of the Financial Services Reform Act, 2001, analysis of the cases on the civil liability acts and a good analysis of proportionate liability.
It is a text which delves into all of the legislation which clusters around professional liability these days and grapples with it, a thankless task for an Australian text writer compelled to read and understand all of the states’ and territories’ regimes and then synthesise them. So the availability of compensation in professional discipline regimes is treated properly, as is the effect of professional standards legislation, which caps liability for scheme mebers. The research is wide-ranging and thorough: a VCAT decision is cited. It is written from a practical perspective rather than a theoretical perspective. There is not the over-reliance on English authority which sometimes characterises texts in this area. The writing tends to take positions rather than carrying on at great length about parallel or divergent lines of authorities without suggesting which is to be preferred. One suspects that bad decisions have simply been ignored in the hope that they will be forgotten. If only more text writers would operate in this fashion.
Professional negligence is one of those areas of law in which everyone claims to be a specialist. There are, for example, 387 barristers at the Victorian Bar who claim on their web profile to practise in professional negligence. Then there are undoubtedly many others, like me, who haven’t listed their practice areas using the scheme which allows for searching like that.
Thomson has kindly offered a 10% discount for readers of this blog if you go to their bookshop at 160 William St, Melbourne. Alternatively, the book can be purchased online, for $220 inclusive of postage and handling.
Continue reading “2nd edition of Professional Liability in Australia reviewed”
In Legal Services Commissioner v. RDS  VCAT 1835, a ‘leading, senior and respected member of the profession’ defrauded both his client and the revenue of three quarters of a million dollars. He had been sentenced to 3 years’ imprisonment, suspended for 3 years, having pleaded guilty in the criminal court. He cooperated with the authorities, voluntarily handed in his practising certificate, pleaded guilty to misconduct at common law in the charge brought in VCAT by the Legal Services Commissioner, and conceded through his counsel that a substantial period of suspension from practice was warranted. He paid the revenue the money after he was caught. His daughter was ill at the time of the offence. Apparently he has given a lot of money to charity. Much was made of this. Perhaps too much; the sentencing remarks as hagiography form of literature sometimes makes me uneasy. Maybe society’s denunciation of this crime took place in the sentencing remarks of the judge in the criminal case, but there was little by way of denunciation in these reasons. Anyway, the solicitor’s practising certificate was suspended until mid-2013, justified by general deterrence since the solicitor was in Israel, contemplating relocation there and not intending to practise again. A Full Tribunal with Judge Bowman presiding said at :
‘Whether or not [the solicitor] is likely to offend again, and we would be of the view that he is highly unlikely so to do, principles of general deterrence must be borne in mind. There is also the question of the damage that is done to the standing and reputation of the legal profession in the eyes of the public if someone who could be described as a leading, senior and experienced member of the profession engages in fraudulent activity of this kind.’
It seems this was a plea, that there was no contest and full cooperation. The hearing could not have gone longer than an hour or two. It is interesting then that the Commissioner was awarded costs of almost $6,000.
In Legal Services Commissioner v MG  VCAT 1491, the lawyer failed to respond to letters demanding a written response to a complaint by another lawyer. The Commissioner wrote on 18 January 2007, 16 February 2007, 23 March 2007 and 1 April 2007. In other words, a complaint, quite possibly lodged last year, has languished uninvestigated for 8 months. The lawyer proffered no explanation for his breaches of the Act, so that Member Butcher decided, quite appropriately, that this persistent silence by the lawyer amounted to professional misconduct rather than unsatisfactory professional conduct. Though the dichotomy between wilful and innocent breaches of the Act which used to distinguish unsatisfactory conduct from misconduct under the old Act has been dispensed with, Mr Butcher still found those concepts of assistance in deciding whether this was the lesser or the more serious of the two conduct offences.
The fine was $1,500 and the costs $2,500. In the period to the end of the financial year before the one just gone, the going tariff seemed to be $500 and $1,000 in costs, as I noted in an earlier post.
MG gets the prize for first misconduct ‘conviction’ under the Legal Profession Act, 2004 (so far as I know), but not the first ‘conviction’; another solicitor was convicted of unsatisfactory conduct on a similar charge a week or two ago.
22 July Update: what may be the first ever legal blog, and without doubt one of the best, Overlawyered has a link to the arbitrator’s ruling, and links to some old posts dealing with the interlocutory stages of the case. And here’s Law.com’s article.
Houston plaintiff lawyer John O’Quinn has been ordered to repay clients $40 million in legal fees after he was found to have charged his clients for bar association fees, overheads, and flowers as part of a ‘general expenses fee’ of 1.5% of the settlement. Ironically, his former clients ganged up on him. In a class action. They wanted all the fees he charged them back — estimated at $0.66 billion:
‘A Texas Supreme Court case from 1999 opened O’Quinn up to the possibility of having to pay back all the collected legal fees. That case, Burrow v. Arce, held that if a lawyer breaks his fiduciary duty to a client by putting his own interest above the client’s, he can lose part or all of his fee — even if the lawyer did a good job.’
I’ve noted that case before. Scary. Not that he got away without penalty, exactly:
‘The order says that O’Quinn, through three legal entities under which he has practiced law, must pay back [AU$12] million he improperly charged clients and a [AU$28.5] million penalty because he broke his contract with them.