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Misconduct in acting in face of duty and associate’s interest conflict

Legal Services Commissioner v JAF [2006] VCAT 581 (Cullity, Shattock, Hannebury) Acting for vendor and purchaser; conflict between duty and interest (of solicitor’s associate)

The Full Tribunal were not impressed with this solicitor who acted for the vendor and the purchaser which was a trust of which his wife was a beneficiary, but did the rule they relied on extend to prohibit acting in the face of a conflict between duty and the interest of an associate? Continue reading “Misconduct in acting in face of duty and associate’s interest conflict”

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Justice Gillard says: prosecute the same offence as many times as you like

Update: This decision was reversed on appeal: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301.

Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 (Gillard J)

Justice Gillard said doctors get no res judicata and allowed the doctors’ regulator to fix a bungled prosecution following a complaint by deciding to investigate the matter already decided under its power to investigate of its own volition. Continue reading “Justice Gillard says: prosecute the same offence as many times as you like”

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Justice Gillard gives the Law Institute a bloody belting

SPB v Law Institute of Victoria [2005] VSC 509 (Gillard J, 12 December 2005) s. 151(3)(c)

Solicitors who read the back pages of the RPA News (dubbed the “sports pages”) well know the schadenfreude associated with the decisions of professional regulators. Rarely does one have such an enhanced opportunity for guilty pleasure in the public excoriation of a regulator as in this decision, however. His Honour railed especially about the adverse finding made on the papers without interviewing the former client or having her confirm her allegations by statutory declaration.

Continue reading “Justice Gillard gives the Law Institute a bloody belting”

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A duty not to tempt witnesses to breach likely confidentiality obligations?

Update, 22 December 2009: I came across this article recently: ‘Using Information: Witnesses Under Obligations of Confidence’ (2002) 22(11) Proctor 16.

Original post:

AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464; Bernard Murphy “Witnesses and Confidential Information” Litigation Lawyers’ Section Newsletter, March 2006

Melbourne class action litigator Bernard Murphy was found by the NSW Supreme Court to have engaged in the tort of inducing breach of contract by acting with a reckless disregard as to whether asking questions of a “smoking gun” ex-employee witness was likely to involve a breach of the witness’s confidentiality obligations to GIO. [Update, Jan 2007: compare this case.]
Continue reading “A duty not to tempt witnesses to breach likely confidentiality obligations?”

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Colourful barrister runs rings around the Bar’s prosecutor, for a while anyway

Update, August 2006: the end of the saga is to reported at this post. 

Original post: In Victorian Bar v DAP (Nos. 1 to 4) (Bowman, Southall QC, Harper) [2006] VCAT 294, the Bar got itself into a tangle in the prosecution of a barrister for what sounds like the relatively minor offence of taking monies on account of fees in advance without holding a trust account. The complainant refused to give evidence and VCAT refused to arrest him. But it is not only an entertaining series of decisions: Judge Bowman took a firm line in relation to prosecutorial fairness.

Continue reading “Colourful barrister runs rings around the Bar’s prosecutor, for a while anyway”

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A very generous approach to a Hungerfords damages claim tacked onto a misconduct prosecution

Law Institute v KTBH [2006] VCAT 350 (Senior Member Howell)

There were separate disciplinary and negligence proceedings against the solicitor over the same facts. At the end of the disciplinary hearing, and on the basis of the prosecutrix’s submissions, Mr Howell decided to determine the negligence case and get the whole thing over and done with. He found there had been a delay by the solicitor in getting a woman compensation. Though VCAT was not empowered to order interest on the woman’s claim, he gave her Hungerfords damages, that is, damages in the nature of interest, and calculated the damages by reference to the penalty interest rate. This note is critical of that decision.

Continue reading “A very generous approach to a Hungerfords damages claim tacked onto a misconduct prosecution”

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The Law Institute exercised jurisdiction it didn’t have on receiving a pecuniary loss dispute resolution request from a bankrupt

Said Georges’ Case [2006] VCAT 414

Upon bankruptcy certain causes of action vest in the trustee in bankruptcy, and others do not: see ss. 58(1) and 116(2) Bankruptcy Act, 1966. This dispute vested in the trustee upon the client’s bankruptcy, but the trustee wrote the client a letter consenting to “the bankrupt’s pursuit of the dispute with [the solicitor] by lodging the appropriate applications to the Legal Profession Tribunal”. Mr Butcher found that though the trustee probably had the power to engage the bankrupt client to pursue the claim for the benefit of the estate, but “the letter does not indicate to me that such was the intention of the trustee”, and dismissed the dispute.

Evidently, this was a matter overlooked by the Law Institute which blithely exercised jurisdiction it did not have, to the detriment not only of the taxpayer’s pocket but of the solicitor’s.

Bernard Sheehy was for the solicitor, and Alan Hebb for the Tribunal.

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Non-disclosure of own negligence founds unsatisfactory conduct conviction

Law Institute of Victoria v PJR [2006] VCAT 293 (see the associated pecuniary loss dispute decision here)

The Law Institute prosecuted a solicitor for misconduct constituted by simply missing a time limit. That failed, as did most of the other charges. But he was convicted of unsatisfactory conduct in not telling his client for two years that he had missed a crucial time limit, giving rise to a conflict between duty and self-interest. After 3 days of hearings, the solicitor was fined $1,000 and ordered to contribute only a fraction of the Law Insitute’s costs.

Continue reading “Non-disclosure of own negligence founds unsatisfactory conduct conviction”

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Demand for information “within 14 days” complies with s. 149

Law Institute of Victoria v MMM [2006] VCAT 182

Section 149(3) of the Legal Practice Act, 1996 says that a demand by the Law Institute under the power to compel information and documents must be in writing and “must allow at least 14 days to comply”. In a marvellously ambitious move, Rod Randall unsuccessfully challenged the Tribunal’s jurisdiction on the basis that a demand for information “within 14 days” did not allow his client at least 14 days to comply.

Continue reading “Demand for information “within 14 days” complies with s. 149″

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Workcover case trust transfer costs solicitor $10,000

Law Institute v SA [2006] VCAT 442

On 21 March 2006, Mr Butcher found a solicitor guilty of three counts of unsatisfactory conduct (maximum fine of $1,000 and fine of $500 for taking fees out of workers’ compensation settlement, and $500 for admitted breach of the costs disclosure rules under s. 86 of the Legal Practice Act, 1996 respectively) and one of misconduct ($1,000). Costs of $6,740 were ordered in favour of the Law Institute. Accordingly, for failing to comply with costs disclosures, and then taking costs which he was apparently entitled to out of the settlement monies, the solicitor was ordered to pay a total of just less than $10,000. There was a stay of 6 months. Continue reading “Workcover case trust transfer costs solicitor $10,000”

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Bar cops criticism for experienced barrister’s failure to procure a practising certificate

Update, 2 June 2008: Consider also the somewhat similar case of Victorian Lawyers RPA Limited v MAF [1999] VLPT 12.  There, the solicitor practised for about one and a half years without either a practising certificate or professional indemnity insurance.  He blamed his book keeper, a defence which was partially successful.  He was reprimanded, and ordered to pay to the Legal Practitioners Liability Committee, the professional indemnity insurer of Victorian lawyers, the premium he would have had to pay had he done the right thing, along with the practising certificate fee he would have had to pay had he actually applied.Original post: In Victorian Bar v GSL [2006] VCAT 435, Judge Bowman, Peter Jopling and F Harrison of VCAT found a barrister guilty of misconduct and fined him $5,000 for practising without a practising certificate, with costs of $4,500 stayed for 3 months. Continue reading “Bar cops criticism for experienced barrister’s failure to procure a practising certificate”

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Solicitor’s failure to supervise undertaking by firm was unsatisfactory conduct

Law Institute v SHP [2006] VCAT 450

A solicitor was found guilty of unsatisfactory conduct in that he failed to supervise his legal and non-legal staff in relation to an undertaking he signed on behalf of his firm. Charged with misconduct, VCAT instead found him guilty of unsatisfactory conduct (which he admitted) and ordered him to pay a fine of $750 and costs of $9,000 stayed for 3 months. It is suggested in the reasons that although the solicitor’s law clerk knew of the undertaking which was simply enough expressed, and although it was accepted that the solicitor told the clerk to bring it to the attention of an employee solicitor handling a related part of the matter who could be expected to have understood the nature of the undertaking, that was not enough.

Lisa Hannon was for the Law Institute, John Langmead and Erin Gardner for the solicitor.