Posted on

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”

Posted on

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”

Posted on

Some law on the Commissioner’s powers to delegate

The nature of a delegation was described in B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 by counsel and repeated without disapproval by Justices of Appeal Charles and Batt:

‘a delegate acting is not an agent who exercises the [delegator’s] powers but rather, as the new repository of the powers, exercises his own powers as a delegate.’

The same judges explained the purpose of requiring delegations to be in writing:

‘In the circumstances the legislative purpose of permitting a delegation of the functions and powers to be exercised after completion of an investigation, but requiring such a delegation to be in writing, seems to us to be reasonably apparent.  We would accept the appellants’ submissions in this regard, that the requirement of a writing protects the interests of all parties concerned.’

Of course that must be so.  Those who seek to exercise invasive statutory powers, as trust account inspectors do, should carry around the original instruments of delegation with them in their briefcases.  That’s what used to happen in the old days. Continue reading “Some law on the Commissioner’s powers to delegate”

Posted on

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”

Posted on

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”

Posted on

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’”

Posted on

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”

Posted on

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”

Posted on

Zarah wins

Ms Garde-Wilson’s back in business. In fact she never went out of business, since following the non-renewal of her practising certificate, she held a deemed practising certificate pursuant to the Legal Profession Act, 2004, s. 2.4.5(3) pending her VCAT merits review application. The assertion that she had ceased to be a fit and proper person seems fundamentally to have been about her contempt of the Supreme Court of Victoria in refusing to answer questions on oath, and certain criminal charges which were pending against her. The criminal charges went away, and the Board obviously subsequently formed the view that the unusual circumstances of the contempt conviction were not such as to demonstrate her unfitness to engage in legal practice, and so gave her her practising certificate back. These things are determined at the date of a decision, and so the fact that the Board determined now that Ms Garde-Wilson was a fit and proper person does not necessarily suggest that its decision back then was wrong.

I suspect that Justice Bell commencing his decision in Garde-Wilson v Legal Services Board [2007] VSC 225:

‘The plaintiff, a young and intelligent solicitor, was working hard in a firm specialising in criminal law,’

must not have harmed her cause. So too Justice Harper’s reasons for not imposing any sentence on her upon finding her guilty of contempt of court, which began:

‘Zarah Garde-Wilson, you are a solicitor who, on the evidence available to me, is intelligent, hard working and determined to represent your clients to the best of your ability. These are valuable attributes in any legal practitioner. Another such attribute is that combination of learning, technical legal skills and common sense which, appropriately mixed, results in sound judgment. None of us get the combination exactly right all the time.’ (R v Garde-Wilson [2005] VSC 452)

The Age article alerted me to a Zarah decision I had missed, about the detail of which I will fill you in on soon. Here it is: Garde-Wilson v Legal Services Board [2008] VSCA 43. The Court of Appeal, led by Justice of Appeal Dodds-Streeton, overturned Justice Bell’s decision mentioned above, which had dismissed Ms Garde-Wilson’s application for judicial review of the Board’s decision to suspend her practising certificate. Justice Bell had said that Ms Garde-Wilson had a perfectly adequate alternative remedy in the merits review option in VCAT, and that is a good reason why judicial review should not be availed of. Not so, said the Court of Appeal.

Posted on

When will a professional discipline proceeding be stayed pending overlapping criminal charges?

Post updated 7 April 2013: See now ML v Australian Securities and Investments Commission [2013] NSWSC 283 (application to disbar liquidator not stayed pending related criminal proceedings which were ‘on the cards’: suggested that a secrecy regime could be imposed in respect of the disciplinary proceedings so as to protect the liquidator in the criminal proceedings).

Post updated 1 March 2013: See also Re AWB Limited [2008] VSC 473.

Original post: Dedicated readers will already have been following the saga of the misconduct prosecution of Kylie Minogue’s one-time lawyer. Casual readers can lap it all up here. Deputy President Dwyer’s reasons for refusing to stay the disciplinary proceedings have hit the internet: Legal Services Commissioner v MB [2008] VCAT 1341. For some reason, the lawyer adduced into evidence a letter from the Australian Crime Commission which said that there was no overlap between the subject matter of the disciplinary charges and the subject matter of the Australian Crime Commission’s investigation, ‘pulling the rug’, as Deputy President Dwyer put it, from the lawyer’s own case. Apart from some newspaper articles suggesting that up to 50 people might be prosecuted as a result of ‘Project Wickenby’, there was not a lot of evidence that the solicitor was going to be prosecuted imminently or otherwise. So it is not an especially interesting decision, legally. It is helpful to have a VCAT decision which rehearses the authorities on the question of stays pending criminal proceedings in their application to disciplinary proceedings, though. Continue reading “When will a professional discipline proceeding be stayed pending overlapping criminal charges?”

Posted on

Law Institute seeks 50 year ban for 62 year old solicitor

In Law Institute of Victoria v DSS [2008] 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”

Posted on

Kylie’s one-time lawyer before VCAT’s Legal Practice List

Update, 18 July 2008: Make that a $200,000, not $20,000, loan from rock impressario Michael Gudinski. I like the way he gave evidence to VCAT’s Legal Practice List by mobile phone from a US Billy Joel concert. Leonie Wood’s report for The Age is here.

Update, 15 July 2008: Apparently the Law Institute’s trust account inspector Ron Hall thumped the table while under cross-examination by the lawyer’s counsel. What drama! The Age‘s report is here. Mr Hall’s evidence provides a fascinating insight into the way trust account inspectors employed by the Law Institute think. Mr Hall said at one stage, he thought ‘right, I have enough here to put a practitioner up for alleged misconduct or unsatisfactory conduct’. Inspectors hold statutory office as individuals, and their job is to investigate compliance with the trust account regime, and to report their results to the Legal Services Board. The Legal Services Commissioner is charged with bringing prosecutions for misconduct or unsatisfactory conduct. Many trust account inspectors are employees of the Law Institute, and the Board delegates its functions in relation to trust accounts to the Institute. The Commissioner outsources the investigation of allegations of unsatisfactory conduct and misconduct to the Institute too. This is under the new simpler, more transparent, new and improved no-self-regulation-here! regime set up at such expense of paper and ink by the Legal Profession Act, 2004. According to The Age:

‘Mr Hall was asked if, during his investigation, he acted “at the express behest of the Australian Crime Commission”. He first said “yes”, adding he had been subpoenaed by the ACC. Asked again by VCAT deputy president Mark Dwyer, Mr Hall said the LIV investigation was his own work. But then he revealed that ACC officers gave him one of their documents.’

Update, 12 July 2008: The lawyer failed in his bid to have the Supreme Court prevent the Legal Profession Tribunal continuing to hear the disciplinary charges against him. And The Age reports on one of the transactions under scrutiny, a loan by Michael Gudinski to his then lawyer, of $20,000, said by the Legal Services Commissioner to be inadequately documented, and a breach of professional standards.Original post: The lawyer towards the centre of the regulators’ tax probe Project Wickenby, once Kylie Minogue’s and other celebrities’ lawyer, is again in the news as his VCAT Legal Practice List prosecution continues in his absence overseas. He has appealed Deputy President Dwyer’s refusal to adjourn the disciplinary hearing on the basis it would prejudice the hearing of what the solicitor claims are imminent criminal charges and the appeal will be heard in the Supreme Court on Friday morning. His barrister says he has no instructions in relation to the disciplinary matters. The Commissioner alleges the solicitor provided no cooperation with the investigation. I am not aware of Deputy President Dwyer sitting in the Legal Practice List before. He was the head of Freehills’s Environment and Planning Group and was appointed DP on 1 April 2007.

As far as I can see from Austlii, all of his decisions written reasons for which have been published on Austlii have involved local councils and I infer that they have all been planning matters. There is one exception: a real property list matter. A web profile of Mr Dwyer before his appointment says: Continue reading “Kylie’s one-time lawyer before VCAT’s Legal Practice List”

Posted on

Robyn Tampoe, Schapelle Corby’s 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”

Posted on

Solicitor reprimanded for letting conveyancer steal monies from his office account

Legal Services Commissioner v WP [2008] 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”

Posted on

Lawyers’ fees are hot news all of a sudden

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”

Posted on

Lawyer to gangland figures not guilty of alleged crimes

The Crown entered a nolle prosequi on Tuesday on the charges of giving false evidence against Melbourne’s best known female criminal lawyer, Z G-W. In other words, they dropped the charges before trial for want of a reasonable prospect of conviction. The key witness was unable to remember crucial evidence which the Crown obviously figured he would remember. The most interesting fact to emerge from this latest development in the saga is that one of the bits of allegedly false evidence was that spirits had told the solicitor the details of Lewis Caine’s murder. She said that spirits were talking to her. It will be interesting to see what the Legal Practice Board and VCAT make of all this. The solicitor’s VCAT proceeding is a merits review under the VCAT Act, 1998 of the Board’s decision not to renew the solicitor’s practising certificate. Parties to such proceedings may not refuse to answer questions on the basis of the privilege against self-incrimination: ss. 80(3), 105 of the VCAT Act, 1998 which are reproduced below.

I wonder whether anything would stop the Board from calling the solicitor as its own witness and just asking her whether she lied on oath, or, if she were to give evidence, cross-examining her about this. If she did, she would presumably be obliged to say so honestly, though her answers could not be used to prosecute her again, only to inform VCAT in its decision about whether she is a fit and proper person to hold a practising certifiate. In ascertaining whether a person is of good fame and character, or otherwise a fit and proper person to hold a practising certificate, the stipes are entitled to take into account not only criminal convictions but criminal charges, even where the charge resulted in an acquittal: Frugtniet v Board of Examiners [2002] VSC 140, a decision of Justice Pagone. Continue reading “Lawyer to gangland figures not guilty of alleged crimes”

Posted on

What happens when complainant lodges complaint with wrong regulator and it gets transferred

In Byrne v Marles [2008] VSCA 78, the subject of this earlier post, another issue arose. Justice Nettle confirmed that a complaint made to anyone other than the Commissioner is invalid as a trigger for the operation of the Legal Profession Act, 2004, but that if it finds its way to the Commissioner otherwise than by the complainant re-lodging it with her, and the complainant says he’s happy for the complaint to continue as a complaint to the Commissioner, then that counts as a deemed lodging by the complainant of a complaint with the correct regulator. Continue reading “What happens when complainant lodges complaint with wrong regulator and it gets transferred”

Posted on

More cases

I only just caught up with the fact that the Court of Appeal has overturned Justice Gillard’s decision in Kabourakis v Medical Board of Victoria [2005] VSC 493, the subject of an earlier post. See [2006] VSC 301.

VCAT’s Vice President Harbison, sitting in the Legal Practice List for the first time I am aware of, has contributed what appears to be a most interesting addition to the authorities about whether solicitors engage in trade and commerce for the purposes of the Fair Trading Act, 1999 (and, by analogy, of the Trade Practices Act, 1974), and whether solicitors may ever be sued under the Fair Trading Act, 1999. As to which, see this earlier post. The decision is Walsh v PJCC&A Pty [2008] VCAT 962 which I will certainly be posting a detailed analysis of.

Then a NSW decision has illustrated again the problem of sloppy regulators failing to consider whether what purports to be a complaint received by them is in fact a complaint as defined by the Act which regulates them (an allegation in both of the cases noted here). This time it was NSW’s Legal Services Commissioner, Steve Mark, getting bashed up by the NSW Administrative Appeals Tribunal’s Legal Services Division in Legal Services Commissioner v SG [2008] NSWADT 48:

’64 As stated, Mr Mark determined that a complaint had been made of deliberate charging of grossly excessive amounts of costs, when no such complaint had been made.

65 Without any further evidence or effort to obtain a valid expert opinion, the LSC instituted the complaint and brought this matter before the Tribunal on the equivocal opinion expressed by Mr McIntyre. Samantha Gulliver investigated the complaint on behalf of Mr Mark, however what, if anything, resulted from such investigation was not placed before the Tribunal. Continue reading “More cases”

Posted on

It’s ok for solicitors to try to resolve complaints directly with the complainants

I have always been a bit chary about allowing lawyers for whom I act to communicate directly with complainants, thinking it often more desirable for communications to be principally with the Legal Services Commissioner once the complaint process was initiated. Turns out it was a rare moment of over-anxiety on my part. In Legal Services Commissioner v JFB [2008] VCAT 842, a prosecution for failing to cooperate with a demand by the Commissioner for a written explanation in response to a complaint, Member Butcher said:

‘5. Since the application has been made the [solicitor] has provided some material to the Legal Services Commissioner and it is the view of the Commissioner that this does not constitute a full written explanation. By way of plea, Counsel on behalf of the [solicitor] outlined the circumstances in relation to the complaint and appraised the Tribunal of the [solicitor’s] endeavours to resolve the complaint through the complainant rather than by communication with the Legal Services Commission. This is not an uncommon course of action, however it ignores the statutory requirement that members of the legal profession respond to the Commissioner when required to do so. It may well be that matters which are the subject of complaint can be resolved between the legal practitioner and the client or indeed other person who has made the complaint and it would never be said that this should not be attempted, however this does not take away from the requirement and the duty to respond to the Commissioner.’ (my emphasis)