How to distinguish between unsatisfactory professional conduct and professional misconduct under the new Act

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 [2007] 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”

Rule against charging for storing old client files

Update, 15 January 2008: Senior Member Howell decided costs and penalty on 17 December 2007: [2007] VCAT 2465.  The Commissioner sought an injunction to restrain the solicitor from repeating the conduct.  Unnecessary, said Mr Howell, who refused to make any such order.  Now that the solicitor has had the law clarified, as he was entitled to do, it is inconceivable that he will fall foul of it again. Similarly, Mr Howell declined to reprimand the solicitor.  But he did slot him for costs agreed by the parties at $6,700.

Original post: On 12 October 2007, Senior Member Howell found a solicitor guilty of the lesser disciplinary offence of unsatisfactory professional conduct, in the case of Legal Services Commissioner v JR [2007] VCAT 2180. The solicitor’s practice had charged $55 in response to a request by solicitors for an executor for the deceased’s will which was held by the solicitor. The Legal Services Commissioner prosecuted him for breach of rule 37 of the Victorian Solicitors’ Professional Conduct and Practice Rules 2003, which is reproduced below, and says you can only charge storage or retrieval fees by express agreement with a client. Costs and penalty remain to be determined in another hearing. Mr Howell said: Continue reading “Rule against charging for storing old client files”

Danger lurks in settling a disciplinary complaint against a lawyer

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 [2007] 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”

Tariff up for not responding to demand for information by Bureau de Spank

In Legal Services Commissioner v MG [2007] 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.

Confirmed: your client can privately prosecute you for misconduct

Acting President Bowman handed down a decision on Friday in Cedric Naylor’s Case [2007] VCAT 958 approving the existing practice of VCAT, and before it the Legal Profession Tribunal, of entertaining professional misconduct allegations against lawyers by their clients as part of applications to set aside costs agreements. Entertaining them, that is, outside the disciplinary investigation and prosecution procedures in Part 5 of the old Legal Practice Act, 1996, and regardless of whether those who otherwise prosecute disciplinary charges would have brought a charge.  Under the old Act, a costs agreement could be set aside upon proof by the client of (i) dishonesty in the solicitor, or (ii) misconduct or unprofessional conduct in the retainer, or (iii) a want of fairness and reasonableness of the agreement. Judge Bowman  ruled that it was not necessary for the solicitor to be found guilty of misconduct or unsatisfactory conduct in the ordinary way, by a prosecution by a legal regulator under the disciplinary provisionso of the Act before the client could rely on the second ground, but he did say that if misconduct is made out in an old Act case, then no disciplinary consequences such as a suspension of a practising certificate can follow in that hearing.  But, armed with the result in the s. 103 application, there seems to be nothing to stop the client sending the reasons in to the regulator and requesting investigation of the conduct already determined to be misconduct by the body which would hear any charge flowing from the investigation. And so, of course, there seems to be nothing to stop the client from threatening to do so in little spats over fees.

Continue reading “Confirmed: your client can privately prosecute you for misconduct”

Can you be prosecuted for mere negligence?

There is no doubt that mere negligence cannot constitute misconduct in the traditional concept of that expression: Myers v Elman [1940] AC 282 at 288; Re Hodgekiss (1959) 62 SR(NSW) 340 at 351; Re Veron (1966) 84 WN (Pt 1) (NSW) 136 at 143 (CA); Re Miles (1966) 84 WN (Pt1) (NSW) 163 at 173 (CA); Pillai v Messiter (No 2) (1989) 16 NSWLR 197. Gross negligence, or a pattern of simple negligence, may amount to misconduct. And to say that mere negligence cannot constitute misconduct is not to say that things characterisable as negligence and things characterisable as professional misconduct are mutually exclusive. Delay is a different kettle of fish: that can certainly be misconduct. This post looks at some modern definitions of unsatisfactory professional conduct and cites authorities for the blindingly common sense proposition that mere negligence without more ought not found any disciplinary charge against a lawyer. Continue reading “Can you be prosecuted for mere negligence?”

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”.

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”

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”

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”