I have previously reported Justice Finkelstein’s views about the obligations of those who prosecute proceedings for a penalty (‘‘I would hold that a regulatory body that brings a civil proceeding to recover a penalty is under an obligation similar to that owed by a prosecutor to an accused.’). Barristers who are briefed by the Legal Services Commissioner in disciplinary proceedings have the same obligations as barristers briefed to prosecute criminal proceedings. But until tonight I was unaware that VCAT’s predecessor, the Legal Profession Tribunal, had actually indicated that the regulator himself (as opposed to his lawyers) owe obligations. In Victorian Lawyers RPA Ltd v Kaine  VLPT 16, Senior Member Howell, Victoria’s most experienced decision maker in legal disciplinary matters, said of the Law Institute (which was for a while formally named ‘Victorian Lawyers RPA Ltd’) that it owed:
‘the obligations normally owed by a prosecutor, such as the obligation to bring to the attention of the Tribunal or to the attention of the practitioner any evidence that might be favourable to the practitioner’.
In Forster v. Legal Services Board  VSCA 73, Kyrou AJA, with whom Weinberg and Harper JJA agreed, restated briefly the law which requires lawyers to be absolutely honest in their dealings with Courts:
‘161 In Meek v Fleming, Holroyd Pearce LJ agreed with the proposition that while a lawyer must not knowingly mislead the Court as to the facts or the law, he or she may put such matters as he or she believes will best advance the client’s case. A party need not reveal something to the discredit of that party. However, this does not mean that the party can by implication falsely pretend that a particular state of affairs exists, and knowing that the court has been misled with respect to a material matter, foster and confirm the misrepresentation through answers given by the party. A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the Court and thereby breach his or her duty to the Court. Once a misleading impression has been created, even if innocently, the lawyer has an obligation to correct that impression as soon as he or she becomes aware of the true position. That obligation continues until judgment is given. Continue reading “VSCA restates practitioners’ duty of honesty to Court”
Update, 22 September 2011: Here is the penalty decision. The Complaints Committee argued for a report to the Supreme Court recommending striking off, but the Tribunal found that was not necessary and imposed a $20,000 on top of a costs order of about $18,000. But for the fact that the former solicitor was, at the time of the decision, a Registrar of the Family Court, the Tribunal would have considered a suspension, but as the job did not require a practising certificate, such an order would have no practical effect.
Original post: Western Australia’s State Administrative Tribunal has put out a substantial decision about misleading the court by silence: Legal Profession Complaints Committee and SMV WASAT 118. Something tells me I won’t get around to blogging it properly any time soon, so here is the link and the Tribunal’s own summary:
‘The Legal Profession Complaints Committee made a number of allegations against a legal practitioner, Ms Sally Vanderfeen, of professional misconduct in connection with obtaining and attempting to implement consent orders in the family court for the purposes of defeating a claim to specific performance by a third party in relation to one of the properties the subject of the consent orders.
The conduct essentially concerned failure to notify the Court or the third party of the orders and of the practitioner’s client’s interest in the property pursuant to those orders. The Complaints Committee also made an allegation that the practitioner had misled the Committee in the context of the Committee’s enquires into the relevant events.
Ms Vanderfeen acknowledged that aspects of her conduct involved ‘serious errors of judgment’, but denied that her conduct was designed to defeat the third party’s claims. The Tribunal reviewed the documentary records of relevant events and concluded that they established that Ms Vanderfeen’s actions were motivated by an intention to improve the prospects that the third party would not pursue a claim for specific performance, and that the Complaints Committee’s allegations in relation to those matters were established.’
A judge of the Supreme Court of NSW has reiterated that litigation is not a game, and foreshadowed the possibility of a personal costs order against lawyers for a respondent who took improper advantage of their opponent’s ignorance of a provision in the Corporations Act, 2001. The provision terminates proceedings for winding up in insolvency 6 months after their issue, unless a court otherwise orders. They took advantage by agreeing to proposed consent orders providing for an interlocutory timetable pursuant to which the proceedings would be brought to a premature end before trial, without pointing that pitfall out to the other side. Justice Richard White’s comments in In the matter of Fratelli’s Fresh Pasta Pty Ltd NSWSC 576 at  to  follow below. Note that his Honour expressly drew upon s. 56 of the Civil Procedure Act, 2005 (NSW), which provides:
(4) Each of the following persons must not, by their conduct, cause a party to a civil dispute or civil proceedings to be put in breach of a duty identified in subsection (3) or (3A) [to further the overriding purpose and to take reasonable steps to resolve or narrow the issues in dispute]:
(a) any solicitor or barrister representing the party in the dispute or proceedings …
Without first formally demanding payment of a debt, creditors served a bankruptcy notice. The debtors were insolvency practitioners and there was no suggestion that they were insolvent. Federal Magistrate Raphael set aside the notice on the basis it was an abuse of process, issued with a purpose not of making the respondents bankrupt but of embarrassing them. His Honour said:
‘The proper purpose of seeking a sequestration order against the estate of a debtor is so that a debtor, who is unable to pay his debts as and when they fall due, should have his affairs controlled for the benefit of all his creditors and not just specific ones. Allied to this purpose is the prevention of the debtor incurring further obligations which he will not be able to meet. It is a public purpose. The bankruptcy process is not to be used for private ends.’
On appeal, the decision was confirmed by the Federal Court’s Justice Marshall. In Lord v Rankine FMCA 668, at  –  (despite the numbering below) his Honour said:
Joseph Vella purchased a knife and a black beanie and then turned up to his estranged wife’s door two days later in their company. In his quiver he also sported a baseball bat. He bashed her head in with the bat and then slit her throat with the knife. Charged with murder, he admitted the acts, but his defence was that he had gone to the wife’s home to tell her that he would take the kids on New Year’s Eve so she could go out, but that she had provocatively told him that he would never see his kids again, whereupon — what’s a bloke to do? — he laid into her, though not with the intention of finishing her off. He was jailed, but appealed to the Court of Appeal and then sought leave unsuccessfully to the High Court. His appeals raised aspects of his counsel’s conduct of his defence, apparently the same ones focussed on in the disciplinary complaints referred to below against his counsel.
Appeals exhausted, Mr Vella turned his attentions to his lawyers. He lodged a disciplinary complaint about the prosecutor. The Western Australian disciplinary body did not lodge a prosecution as a result and Mr Vella sought a review of that decision. He failed: Vella and Mactaggart WASAT 28. Interestingly, the prosecutor represented himself before the disciplinary tribunal. Mr Vella lodged a disciplinary complaint about his own counsel. Again, the disciplinary body did not lodge a prosecution in response, and Mr Vella sought a review of that decision. Again he failed: Vella and Bowden WASAT 56. This time, the barrister retained solicitors and counsel to represent him. Mr Vella also lodged a complaint alleging overcharging, which gave rise to a taxation. Continue reading “Counsel’s discretion as to trial tactics”
Unilateral communication with a judge’s associate is a dangerous practice. Unless it relates purely to procedural matters (and who knows exactly what the limits of that are), any communication with the Court, especially with a judge’s associate should be copied to the other side, or the other side should immediately be informed of it. In these days of email, what can be the harm in copying the other side in every case? If you don’t want to do so, you probably should not be communicating with the court. Apart from the fact that it is improper to communicate unilaterally with the Court, it might give rise to an apprehended bias-based application that the judge recuse her or himself. In John Holland Rail Pty Ltd v Comcare FCAFC 34, such an application failed, but the unanimous Full Court pithily stated the law:
‘In accordance with section 42 of the Civil Procedure Act 2010, I [name of legal practitioner or if not legally represented, name of party] certify to the Court that, in relation to the document [identify document to which certification relates] filed on behalf of [specify party], on the factual and legal material available to me at present:
(a) each allegation of fact in the document has a proper basis;
*(b) each denial in the document has a proper basis;
*(c) there is a proper basis for each non-admission in the document.
*Delete if not applicable.’
I will be interested to learn what a proper basis for a non-admission is.
Justice of Appeal Macfarlan with whom Justice of Appeal Tobias and Acting Justice of Appeal Sackville agreed said this in Serobian v Commonwealth Bank of Australia  NSWCA 181 at :
‘Where, as here in the case of the respondent, a party is represented by competent and experienced lawyers and is opposed by litigants in person, the party and its lawyers have a duty to assist the court to understand and give full and fair consideration to the submissions of the litigants in person. In particular such a party must refer the court to evidence in the proceedings that is relevant to those submissions. This duty is accentuated where, again as here, the party is a substantial institution accustomed to litigating cases involving issues such as are involved in the present case, often against litigants in person.’ Continue reading “Duties of lawyers opposed to the unrepresented”
There is an interesting article by Ian Wheatley at (2008) 16 Journal of Law and Medicine 193. Titled ‘The Criminalisation of Professional Misconduct Under the Health Professions Registration Act 2005 (Vic): How is a Fine of $50,000 Not Punitive?’. It compares the rights of alleged criminals and the maximum sentences in criminal law, with the rights of doctors alleged in disciplinary proceedings to have committed disciplinary wrongs of a similar degree of seriousness, and pours some much-needed acid on the hymn sung by so many Bureaux de Spank that the proceedings are ‘purely protective of the public’ and involve no element of punishment. But what protections actually exist for respondents in professional disciplinary proceedings? It is the purpose of this post to examine three of them.
First, I have posted before about the application of the privilege against penalties to disciplinary proceedings, and about what Justice Finkelstein said in Australian Securities and Investments Commission v Mining Projects Group Limited FCA 1620:
‘I would hold that a regulatory body that brings a civil proceeding to recover a penalty is under an obligation similar to that owed by a prosecutor to an accused.’
Secondly, in addition to this principle, many bodies and statutory officers charged with prosecuting professionals are governed by the governments’ model litigant rules. Victoria’s Legal Services Commissioner is a model litigant, and so is governed by these guidelines (which include an obligation to avoid litigation where possible, to keep the costs of litigation as low as possible, and not to take advantage of respondents to disciplinary charges who lack the resources to litigate the disciplinary claim).
But where a barrister is involved in the prosecution, it is, at least in Victoria, surely the application of the conduct rules in criminal proceedings which comes closest to requiring the kind of conduct which Justice Finkelstein considers to be appropriate. And this is the third thing. The Victorian Bar’s practice rules define ‘criminal proceedings’ as follows:
‘includes disciplinary proceedings, in which context other expressions appropriate to criminal proceedings include corresponding meanings appropriate to disciplinary proceedings and in particular “a serious criminal offence” includes a disciplinary shortcoming which, if proved, involves the serious possibility of suspension or deregistration (or the equivalent).’ Continue reading “Prosecutors’ duties in professional discipline cases”
A warm welcome to the blogosphere for the Queensland Law Society’s Ethics Blog, which is in its first posts, but attracts an impressive callibre of comments. The blog has a post about a recent, rare, decision about those rules about what to do in litigation if you discover your client is lying, or you find that you have inadvertently misled the court: Perpetual Trustee v Cowley QSC 65. The solicitor got it wrong, and copped a personal costs order.
The civil procedure landscape is changing fast. A new Evidence Act. The establishment of the Costs Court. The Federal Court’s rocket docket. The Supreme Court’s Commercial Court. The abolition of the County Court’s Practice Court in favour of a managed list approach. Early neutral evaluation. The increasing use of Associate Justices and Judicial Registrars. The New Courts Act project, which will produce one Act regulating the Supreme, County and Magistrates’ Courts. Now, here comes a big one: the Civil Procedure Bill, 2010. There are similar moves afoot at the federal level: the Civil Procedure Bill, 2010 (Cth).
Here is Corrs Chambers Westgarth’s commentary on the Victorian bill. And here is Allens’s. Lots of room here for a reinvigoration of the law of lawyers’ obligations to the Court. Justice Ipp’s ‘Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly Review 63 ought to form the backbone of commentary to the Act, and ought to be compulsory reading for all those who join litigation departments. This speech of the Federal Court’s Justice Barker in 2009 is also worth a look.
In Lambert & Jackson FamCA 357, a Family Court judge sitting in Sydney made the following orders:
‘1. There be a further listing before me on 24 May 2010… for the purposes of giving Ms Y an opportunity to make submissions as to why I should not send my prima facie findings to the Legal Services Commission (Queensland) for the purpose of him considering whether to initiate and prosecute disciplinary proceedings against Ms Y.
Solicitors and barristers are obliged not to make allegations of criminality, fraud or other serious wrongdoing in ‘court documents’ without an adequate factual foundation. The rule for Victorian barristers is rule 34. This post explores what ‘court documents’ are, what ‘fraud’ means in this context, and what an adequate factual foundation is, in part by looking again at AM v Legal Practitioners Disciplinary Authority NTSC 02, treated in the previous post, a decision of the Full Court of the Supreme Court of the Northern Territory. It also notes a bizarre anomaly between the rules which govern Victorian and other states’ solicitors and between the rules which govern Victorian solicitors and Victorian barristers in this regard. Continue reading “The obligation not to allege ‘fraud’ without an appropriate evidentiary foundation: what is ‘fraud’?”
A Full Court of the Supreme Court of the Northern Territory delivered judgment in AM v Legal Practitioners Disciplinary Authority NTSC 02 a week ago. The Darwin lawyer, AM, lodged a complaint with the NT Law Society alleging that a competitor firm, Cridlands, which used to act for her client, had acted in the face of a conflict of duties. That complaint was dismissed. The Law Society then turned the lens on the author of the complaint and investigated her for making allegations of serious impropriety without a proper evidentiary foundation. She was successfully prosecuted and her appeal failed. The Supreme Court confirmed the decision of the Legal Practitioners Disciplinary Tribunal (here and, in relation to penalty, here), finding the lawyer guilty of professional misconduct. According to the NT News, the lawyer was ordered publicly to apologise to the lawyers about whom the complaint was made, complete professional conduct and ethics courses, and ordered to pay a fine of $19,500. The costs bill is presumably very high.
The duty which was breached was formulated at  as follows:
‘the obligation carried by a legal practitioner is to take care when making serious allegations of impropriety against another on behalf of a client. The obligation arises not only when making allegations or preparing pleadings in a court proceeding but in other situations where the practitioner is protected by privilege and, indeed, in all circumstances, to maintain standards of decency and fairness. The appropriate standard of care is exercised by ensuring that there is evidence upon which allegations might be made and in the light of that evidence by seeking specific instructions in relation to the allegations.’
Justice Pagone’s decision in Griffiths & Beerens Pty Ltd v Duggan VSC 230 came along just at the very moment I needed to find out the answer to a question I have always been unsure about. Say you have documents from one proceeding obtained from the other side on discovery. They are relevant to a related subsequent proceeding. Do you have to discover them? If so, do you have to give inspection of them? If not, would it be a contempt of Court to discover them? Justice Pagone says you should discover away and give inspection subject to anything the second Court might do in the interests of justice, because the implied undertaking yields both to statutory compulsion (e.g. an ATO examination) and also to ‘curial process’ such as discovery and subpoenas. He also said something which, it appears to me, comes close to an assertion that the implied undertaking prima facie does not preclude use of a document obtained in one proceeding in another proceeding, and that what the undertaking is really about is the use of documents obtained in litigation for purposes other than litigation (e.g. publication to the media). Continue reading “The implied undertaking yields to compulsion; relevance to a second proceeding a powerful ‘special circumstance’”
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”
Schadenfreude being a German word, I suppose this must be an example of überschadenfreude. To watch this man digging his own grave made my guts clench up with distress. An advocate turns up more than an hour late to run a criminal trial in a Las Vegas court for a man facing a life sentence. Claiming to be ‘stone cold sober’ things don’t go well, and he implores a judge not to breath test him in court, with the invocation ‘I have only respect and honour for your Honour’. The charm doesn’t work. It is not a happy ending.
In Chen v Chan  VSCA 2, President Maxwell and Justice of Appeal Redlich dismissed an application by the appellant for an order enjoining the respondent’s solicitor and counsel from acting in the appeal. The applicant alleged that there had been wrongdoing by the respondent’s lawyers at the trial. In fact that was one of the grounds of appeal. It is certainly the case that where a lawyer is to be a witness, he ought not continue to act, especially as an advocate. But their Honours held: Continue reading “Application by appellant to remove respondent’s trial counsel from appeal dismissed”
I presented a seminar with Glenn McGowan SC on affidavits and written evidence recently. I wrote a long paper, mainly about the state courts, but incorporating some aspects of Federal Court procedure, which I will send to anyone who asks for a copy, and which will probably end up on the blog replete with useful hyperlinks one day. Meanwhile, here are some handy hints on affidavits which are not always properly understood:
a deponent who makes an affidavit in a work capacity can state their business address instead of their residential address, but the condition of doing so is that they state the name of their firm or employer, if any, and the position they hold: Supreme Court Rule 43.01(3);
in the Supreme Court, you can call for an electronic copy of an affidavit to be emailed to you if served with a hard copy, by invoking Practice Note No. 1 of 2002, (2002) VR 107;
you can call for any document referred to in an affidavit by a notice to produce under Supreme Court Rule 29.10(2), and the rule is interpreted to mean that you can call for production of any document referred to in an exhibit to an affidavit: Williams [I 29.01.345] citing Re Hinchcliffe  1 Ch 117; Continue reading “25 handy hints on affidavits in Victoria”