Posted on

Staying disciplinary proceedings as abuses of process

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

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

Posted on

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

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

Posted on

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

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

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

Posted on

Daming He’s experience of the legal regulators

The unsuccessful complaint to the Legal Ombudsman, referred by her to the Victorian Bar, took more than 5 months to complete. Then the Law Institute complaint went on for about 2 months. The Legal Profession Tribunal made a decision 10 months later, the Full Legal Profession Tribunal 3 months later again. The Court of Appeal process took two and a quarter years. Continue reading “Daming He’s experience of the legal regulators”

Posted on

The subject matter of Daming He’s complaint

Update: 17 January 2008 VCAT has re-heard this case, and has made different findings of fact from some of those recounted below. See He v  A & Co Pty Ltd [2008] VCAT 3.

Original post

(This is part 2 of the post about He v A & Co Pty Ltd [2006] VSCA 150; [2006] VSCA 235. Part 1 is here.)

Mr He had a dispute with the insurer of the negligent driver who caused the collision which damaged his car. The insurer accepted its driver was at fault. The dispute was only about how much compensation Mr He was legally entitled to. Whatever a court would order the negligent driver to pay, the insurer would pay Mr He, at least in theory. Most “crash and bash cases”, as lawyers call them never get to court. His did. The insurer said his car was only worth $800 at the time of the accident, and since repairs would cost $4,000, they would take his car and sell it for scrap, and pay him its value. They said it was an economic write off. Continue reading “The subject matter of Daming He’s complaint”

Posted on

Dob-in rule lurks in Victorian solicitors’ practice rules

A newish conduct rule compels solicitors to report every dishonest act by another practitioner, and every act which is prejudicial to the administration of justice or which would diminish public confidence in its administration. This is not just my fancy; the Law Institute itself says that the rule requires dobbing in and is not only about self-reporting. Relevantly, rule 30 of the Professional Conduct and Practice Rules 2005 says (and this is not a quote): Continue reading “Dob-in rule lurks in Victorian solicitors’ practice rules”

Posted on

Misconduct constituted by barrister’s misleading mediation statements

In Legal Services Commissioner v M [2006] LPT 012, a leading Brisbane barrister was fined $20,000 (his fees of $9,100 plus $10,900 penalty) for engaging in fraudulent misrepresentation on the instructions of his client in a mediation in which the insurer was induced to pay the barrister’s cancer-riddled plaintiff client over $1 million on a claim based on a near-normal life expectancy. He was found guilty of professional misconduct, and publicly reprimanded (I wonder whether a solicitor was sitting blithely by and escaped prosecution). Frankly, I reckon he was lucky to get away with a fine and reprimand given that he contested the charge by reference to the “startling” contention, described by the Tribunal:

“[25] The respondent argues that his conduct in continuing to rely on the Evidex reports without disclosing the cancer facts was not tantamount to some representation that he was not aware of facts that could deleteriously impact on longevity.  His case characterizes the compromise negotiations as “commercial”, conducted on a tacit, common assumption that, in deciding whether to settle, the parties would rely exclusively on their own resources and information.  There would not, it is said, have been a reasonable expectation that influential information communicated during the negotiations would not knowingly be false.”

But the content of what must surely be the pre-eminent professional non-client duty – not to mislead — is not well-known, and litigation is so obese with toleration of falsehoods, that I have some limited sympathy for the confusion the barrister claims to have fallen into, having researched the issue. Because, contrary to the idiotic utterances of some regulators, legal ethics are not intuitive.  There is no “gut feel” test. Legal ethics frequently involve a duty not to volunteer the truth. Continue reading “Misconduct constituted by barrister’s misleading mediation statements”

Posted on

No appearing on behalf of others in VCAT when your practising certificate’s suspended

The Victorian Civil and Administrative Tribunal (Amendment No. 17) Rules 2006 will introduce a new class of people prohibited from representing others in VCAT: lawyers whose practising certificates are suspended or who have been struck off the role of practitioners. No doubt some bright spark had her practising certificate suspended and decided to continue practising by appearing for others in VCAT on the pretext that you don’t have to be a lawyer to do so (in fact, if you are a lawyer, your client has to seek permission to have you represent them: see s. 62 of the VCAT Act, 1998). The new rule 4.24 will say:

“Classes of persons disqualified from being professional advocate

(1) For the purposes of section 62(8) of the Act, a person is disqualified from being a professional advocate if—

(a) the person, being or having been a legal practitioner, has been the subject of disciplinary proceedings under the law of Victoria, another State, a Territory or the Commonwealth and has been found guilty in those proceedings of professional misconduct (by whatever name called) or of another breach of professional standards, whereby the person is not currently permitted to practise”.

Posted on

Victoria Marles hits the media

After a low profile year media-wise, the Legal Services Commissioner hit The Sunday Age today with a few statistics about year one of the new regime:

  • 1200 files inherited from the Legal Ombudsman, the Law Institute’s Professional Standards department, and the Victorian Bar Ethics Committee;
  • 2000 disciplinary complaints, pecuniary loss disputes and costs disputes lodged with her (an average of a bit less than 10 per day her office is open by my estimate);
  • 1930 of them (97%) about solicitors;
  • 70 (3%) about barristers;
  • 1100 (55%) involving a disciplinary complaint;
  • 213 pecuniary loss and/or costs disputes referred to VCAT;
  • only 6 solicitors prosecuted for misconduct.

Interestingly, the journalist’s investigative powers do not seem to have extended to uncovering the fact that the Commissioner has referred many disciplinary investigations back to Professional Standards and to the Bar, or if they did, it was not an interesting enough snippet of information. (Nor did the journo ask the Commissioner why she thought the Premier had asked the Government Solicitor, until recently CEO of the Law Institute, rather than her office to investigate the secret dossier about Clayton Utz’s role in the Rolah McCabe case “leaked” to the Sunday Age. But I guess it wasn’t that kind of article.)

The choice of cases for inclusion in the article as examples is interesting: three of them involved wins for the solicitor and the only win for a client reported was an order cutting a whopping $52.25 off the disputed bill. Not exactly lawyer bashing is it?

Posted on

The barrister and the trust monies saga ends in 6 month holiday

Update: 14 October 2007  The Court of Appeal refused leave to appeal, and the High Court refused special leave to appeal too, on 5 October 2007.

In Victorian Bar Inc v DAP, [2006] VCAT 2293 Judge Bowman, Tony Southall QC and T Harper suspended the barrister’s practising certificate for 6 months and ordered him to pay costs. He had been found guilty of misconduct constituted by breach of a prohibition in the Legal Practice Act, 1996 on barristers receiving trust monies (otherwise than through their clerks) (s. 178). Breach of the provision was also amenable of being prosecuted as a crime, punishable by up to 2 years’ imprisonment. That that was so was considered to be a measure of the seriousness with which Parliament viewed the offence. Continue reading “The barrister and the trust monies saga ends in 6 month holiday”

Posted on

Chairman, Full Legal Profession Tribunal criticised for abusing solicitor in misconduct prosecution

In B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 (Ormiston, Charles and Batt JJA), the majority criticised the Chairman of the Full Legal Profession Tribunal for retorting to the solicitor’s submission that “These proceedings are a full time occupation for me” with “Occupation or obsession, Mr [G]?”. They said it was taken, with some justification, as a term of abuse. But they found that, and some other comments, raised no case of apparent bias such that the Chairman should have excused himself. But the majority said at [62] that: Continue reading “Chairman, Full Legal Profession Tribunal criticised for abusing solicitor in misconduct prosecution”

Posted on

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”

Posted on

The great delegation debacle: B (A solicitor) v Victorian Lawyers RPA Ltd

B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 (Ormiston, Charles and Batt JJA)

The Law Institute of Victoria Limited used to be named Victorian Lawyers RPA Ltd. It, and the Victorian Bar, were the only two RPAs (Recognised Professional Associations) set up under the Legal Practice Act, 1996, which allowed for an unlimited number of RPAs. Under s. 313 of that Act, it was entitled to delegate in writing powers and functions to employees. If it did not do so, its board (styled “the Council”) would have had to make every decision.

The Law Institute charged two solicitors with misconduct. Six months later, it sought leave to withdrew the charges, on the basis that its “failure to follow strict process” had resulted in the charge laid being a nullity. The Tribunal allowed the Law Institute to do so, refused to dismiss the charges, and refused to order costs.

The Law Institute’s Council minuted a recommendation that its powers under s. 151, the provision requiring the RPA to take certain courses at the end of a disciplinary investigation, and giving it certain discretions, be delegated to its CEO, Ian Dunn. At the end of the minutes, the word “confirmed” was typed, and they were signed by the Chair.

Pursuant to s. 151, Dunn signed new charges against the same solicitors, purportedly as delegate of the Law Institute. The Court of Appeal found that the Legal Profession Tribunal had erred in finding it had jurisdiction. It found that a written minute of an oral recommendation to delegate a power was not a written instrument of delegation. Because the person who signed the charge had no authority to do so, the Tribunal’s jurisdiction was not properly invoked, and it had no jurisdiction. The Court of Appeal ordered the charges dismissed.

For the peak lawyers’ body in the State practising under the business name “Professional Standards” it was an embarrassing lapse which threw the world of professional discipline into chaos for months (Ormiston JA observed at [3] that he found it “surprising that a body made up of qualified and experienced lawyers should take a course as was here adopted without there having been some explicit authority which would justify their actions”.) Because the procedural defect did not apply only to the particular delegation in question, huge numbers of decisions stood amenable of being set aside, or ignored (since an order made by a statutory Tribunal without jurisdiction need not be obeyed). Urgent retrospective legislation had to be rushed through parliament.

The architects of this most exquisitely technical of victories were Terry O’Conner and barristers he retained, Rod Garrett QC and Bob Miller.
Continue reading “The great delegation debacle: B (A solicitor) v Victorian Lawyers RPA Ltd”

Posted on

“VCAT may make orders of a transitional nature” read down

K v Legal Services Board [2006] VCAT 2303; K v Legal Services Board No. 2 [2006] VCAT 2362 (Bowman J)

A solicitor lied to a County Court judge about holding a practising certificate and was told in 2001 by the Full Legal Profession Tribunal not to bother applying for a practising certificate until 2011 and only if he had complied with two previous orders of the Tribunal. It ordered the solicitor to be referred to the Supreme Court with a recommendation that his name be struck off the roll of practitioners. The Law Institute duly applied to the Supreme Court declined to strike him off, finding that inadequate notice of the Tribunal hearing had been given to the solicitor. The solicitor did not then appeal the Full Tribunal’s order. Three and a half years later, the solicitor applied under s. 2.4.9 of the Legal Profession Act, 2004 for a practising certificate, by which time the Legal Practice Act, 1996 had been repealed and the Legal Profession Tribunal abolished. He said the Supreme Court had ruled that the Full Legal Profession Tribunal’s decision had been defective, and as the successor to that Tribunal, VCAT must be able to “remedy” the Full Legal Profession Tribunal’s defective decision. Bowman disagreed, suggesting that the only remedy available to the solicitor might be to use “the provisions of the Interpretation of Legislation Act, 1984 in relation to repealed legislation” to bring an appeal under the now-repealed Legal Practice Act, 1996 (as to which, see below). Continue reading ““VCAT may make orders of a transitional nature” read down”

Posted on

Sole practitioner gets 3.5 years’ jail for $1M trust deficiency

In R v. Gabriel W [2006] VSC 397, a solicitor pleaded guilty to 13 crimes: 9 thefts, 3 counts of obtaining financial advantage by deception, and one trust account deficiency. He received more than $1 million in trust moneys from clients and gambled it away and appears to have been sentenced on the trust account charge to 2 years’ jail. In total, the solicitor was jailed for just short of 6 years, with a non-parole period just short of three and a half years. Continue reading “Sole practitioner gets 3.5 years’ jail for $1M trust deficiency”

Posted on

Roisin Annesley’s Victorian Barristers’ practice guide

The Bar has produced a practice guide. It is a great achievement and stands as a beacon for the Law Institute’s future efforts at promulgating knowledge of the practice rules. The Bar actually has something called the Professional Standards Education Committee. Written by Roisin Annesley, it was launched by Victoria Marles, the Legal Services Commissioner on 18 October 2006, and distributed free to every member of the Bar. Annesley has done a lot of work as Counsel Assisting the Legal Profession Tribunal (and continues to do occasional work assisting the Legal Practice List at VCAT). A doyen of professional discipline, Paul Lacava SC, and a judge who has excoriated Professional Standards, Justice Gillard, are credited with substantial involvement. It has chapters on: Continue reading “Roisin Annesley’s Victorian Barristers’ practice guide”

Posted on

A complaint for every 6 solicitors last year in England

Here is an article from that most excellent of newspapers, England’s The Guardian, which notes that:

  • the Law Society received 17,074 complaints, one for every six solicitors in England and Wales last year;
  • that was up 14% on 2002;
  • a third of people think they receive poor service from their solicitor;
  • a quarter of those surveyed think their solicitor doesn’t listen to their opinion;
  • a third don’t feel they are told enough about how much they will be charged;
  • more than half the people surveyed said they received no pre-estimate of fees at all; and
  • only about a quarter said they got one in writing.

Costs disputes in England apparently progress through firms’ internal dispute resolution mechanisms, to the Consumer Complaints Service at the Law Society, and then, if the punter is so minded, for review by the Legal Ombudsman. The complaint form used is interesting. It seeks the details of the complainant and the subject of the complaint and says “Please tell us the name and address of the solicitor you are complaining about and briefly state your complaint. (We will contact you later for more details.)” next to a box the size of a postage stamp. That is a sensible approach. I have seen hundreds of complaints. Though Victoria’s regulators were required until recently to give reasonable assistance to complainants in formulating complaints, I do not believe they ever did so. I have seen a case where a man requested assistance and it was flatly denied.

Posted on

Excellent paper on lawyers’ discipline by Stitt QC and Lindsay SC

The New South Wales Law Society distinguishes itself amongst the Australian law societies with its in depth ethics resources. The Bar Association too is good in that regard in that state. Here is an excellent paper by R.R. Stitt QC and G.C. Lindsay SC entitled “Disciplinary Proceedings Affecting Barristers”. It’s a bit old now (June 1997, revised January 1999) but, really, not much changes in the world of professional discipline. I now acknowledge this paper as a source of various future posts. There is a Victorian equivalent, by Dr Ian Freckleton (available here until 1 February 2007, filed under 5 April 2006).

Posted on

Another unrepresented lawyer bites the dust in WA

The lessons against self-representation in discipline cases are coming almost too thick and fast for me to digest them. Here is The West Australian‘s short article on the striking off recently of Vijitha De Alwis, a solicitor who played a part in a legal saga involving an attempt to deport a non-citizen Briton convicted of crimes, Mr Taylor. The Full Bench of the Supreme Court of Western Australia struck De Alwis off the roll of practitioners on 29 September 2006 in Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 following a report by the Legal Practitioners Disciplinary Tribunal. It is a case about receiving trust monies without holding a trust account, like the Victorian case in this post, but it is as much a case about a self-represented person shooting himself in the foot by:

  • serial non-compliance with rules and orders;
  • repeated bias applications (he said the Legal Practitioners Discipline Tribunal “descended to the dust of the Arena and blinded itself”); and
  • repeated ill-got-up adjournment applications on health grounds (one was based on a medical certificate in the following terms: “This gentleman suffers from numerous medical problems and is currently unfit to stand trial or an inquiry”; on another occasion “He said that he had medical advice to the effect that, if he continued to handle his case he ‘might end up having a severe Heart Attack or a massive Stroke that will be fatal’).

One of his problems was that there was ample evidence of him appearing in courts as advocate (or attempting to) at around the same times as he said he was unable to face trial in the proceedings against him. Another was that his written submissions as to why he was too ill to make written submissions disproved what they sought to argue (see [100]). The Full Court said:

“111 … the practitioner’s unfitness for practice is amply demonstrated, in addition, by the manner in which he has conducted himself in these proceedings. His affidavits have been replete with argumentative material, often including allegations of gross misconduct against judicial officers, practitioners and court staff, none of which appear to have any foundation. Moreover, as will be apparent, he has repeatedly failed to comply with time limits and directions imposed by the Court.” Continue reading “Another unrepresented lawyer bites the dust in WA”

Posted on

The South Australian take on the purpose of disciplinary proceedings

Here is what the then Chief Justice of South Australia, Doyle CJ, had to say in Craig v Medical Board of South Australia (2001) 79 SASR 545 at [41] to [48] about the purpose of disciplinary proceedings, referred to with approval by the Full Court of the Supreme Court of South Australia in Papps v Medical Board of South Australia [2006] SASC 234 (the subject of the last two posts):

“The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of
proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession. Continue reading “The South Australian take on the purpose of disciplinary proceedings”