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WA soli disciplined for recklessly misleading Family 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 [2011] 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.’

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Lawyers’ Civil Procedure Act duty to correct opponents’ misapprehensions

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 [2011] NSWSC 576 at [18] to [26] follow below.  Note that his Honour expressly drew upon s. 56 of the Civil Procedure Act, 2005 (NSW), which provides:

‘(1) The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings.

…

(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 …

(5) The court may take into account any failure to comply with subsection (3), (3A) or (4) in exercising a discretion with respect to costs.’ Continue reading “Lawyers’ Civil Procedure Act duty to correct opponents’ misapprehensions”

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Federal Court sets aside bankruptcy notice used for debt collection against solvent individuals as abuse of process

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 [2011] FMCA 668, at [20] – [34] (despite the numbering below) his Honour said:

Continue reading “Federal Court sets aside bankruptcy notice used for debt collection against solvent individuals as abuse of process”

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Costs of proceedings commenced without a prior letter of demand

In PMCDG Investments Pty Ltd v Monash Gate Project Pty Ltd [2011] VSC 52, Associate Justice Daly accepted a referral from the trial judge, Justice Robson, to decide who should pay the costs of a proceeding the trial of which Justice Robson had presided over. That referral, it seems to me, is an interesting development in itself. Associate Justice Daly was asked to depart from the usual order that the winner get a partial indemnity for their actual legal costs from the losing party, and instead make no order as to costs. It was said that though the plaintiff had succeeded, litigation was not necessary, and that proceedings had been commenced precipitiously. Her Honour did not uphold the submission, but did usefully digest a number of authorities on point: Continue reading “Costs of proceedings commenced without a prior letter of demand”

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Counsel’s discretion as to trial tactics

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 [2011] 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 [2011] 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”

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Another reason not to unilaterally communicate with the Court

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 [2011] FCAFC 34, such an application failed, but the unanimous Full Court pithily stated the law:

Continue reading “Another reason not to unilaterally communicate with the Court”

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Free stuff from ‘Legal Ethics Journal’ (UK)

The table of contents of new issues of Legal Ethics Journal are available online.  Its general editor is Christine Parker from Melbourne University.  Its advisory board features a number of Australians too: Adrian Evans, Monash University, Reid Mortensen, University of Southern Queensland, and Gino Dal Pont, University of Tasmania.  Unlike the rest of the journal, ‘correspondents’ reports’ are free.  Here are some beautifully written examples from Melbourne University’s Linda Haller, who is also the journal’s ‘Ethics in Practice Editor’: one, two, three.  Other correspondents report on England and Wales, China, Canada, and America.  You can sign up for emails with news from the Journal.

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Certification of pleadings in Victorian courts

By virtue of the Supreme Court (Chapter I Amendment No. 21) Rules 2010 and the Civil Procedure Act, 2010 This is what solicitors using the Supreme Court of Victoria are going to have to sign before lodging pleadings as of next year:

‘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.

Date:
*Delete if not applicable.’

I will be interested to learn what a proper basis for a non-admission is.

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The cab rank principle

Brian Walters, a good QC, is running for the Greens in the imminent Victorian election.  His Labor opponent, Bronwyn Pike, has raised the fact that he once took a brief for a brown coal company, while now he is against brown coal as a means of generating energy.  This smear campaign is not one to be expected from a minister in a mature democracy.  Most people have some understanding that barristers (not solicitors) are obliged to take a brief from anyone, pretty much regardless of what they think of them, if the client is prepared to pay their usual fee, and they are available, properly instructed, not conflicted and the brief is within their skillset.  The principle, which acts as a conceptual prophylactic against the ‘disembarkation of fleas’, is called the ‘cab rank rule‘. Victoria’s version is set out below. It is in my opinion not one of those rules which is observed in the breach.  Even if it is not perfectly observed, it has a useful and substantial operation.  Ministers’ understanding of it should be developed; it is a fundamental precept of one of the arms of government (the judiciary).

There are three reasons why Pike’s comments are unfortunate.  First, Education Ministers should presumably try harder than others to avoid displays of ignorance.  Second, her electorate — Carlton, East Melbourne, Parkville — is no doubt teeming with lawyers (not to mention bloggers …). Third, it undermines what respect remains for the legal system. Top Victorian lawyers’ assessments of Ms Pike’s comments have been swingeing.

But one silly comment in the heat of campaigning is one thing.  When the issue is escalated to the Premier and Treasurer, and their responses are as follows, condemnation is called for, hence this post: Continue reading “The cab rank principle”

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Adrian Evans’s new lawyers’ ethics book

Monash University’s prolific Professor Adrian Evans has put out a new book on lawyers’ ethics, published by Cambridge University Press.  In the process of looking it up, I noticed that Adrian is the Co-Chair of the International Bar Association’s Professional Ethics Committee, which sounds like a good gig.  Here’s the blurb (sounds interesting):

‘Legal practitioners operate in an environment of seemingly endless ethical challenges, and against a backdrop of diminishing public opinion about their morality. Based on extensive research, Assessing Lawyers’ Ethics argues that lawyers’ individual ethics can be assessed and measured in realistic frameworks. When this assessment takes place, legal practitioners are more likely to demonstrate better ethical behaviour as a result of their increased awareness of their own choices. This book advocates a variety of peer-administered testing mechanisms that have the potential to reverse damaging behaviours within the legal profession. It provides prototype techniques, questions and assessments that can be modified to suit different legal cultures. These will help the profession regain the initiative in ethical business practice, halt the decline in firms’ reputations and reduce the risk of state-sponsored regulatory intervention.’

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What happens if you root your matrimonial client’s wife?

America’s excellent Professional Responsibility Blog, to which I have added a link in my blogroll, is published by Professor Alberto Bernabe of Chicago.  He has gathered together the answers, in America at least.  In the latest eruption of lust in connection with legal practice, which involved only an attempt, the Indiana Supreme Court just told the attorney to take a break for 90 days.  Despite the fact, that is, that his retainer by the husband was in relation to matrimonial disputes with the wife. The Professor’s latest contribution to the ever-enjoyable debate about sex with clients is here.  The Texans are all angst-riddled about whether to prohibit the practice.  The Professor also recently published another in his series of ‘How Not to Practice Law‘: ‘Ask Client to Pay Fees with Drugs‘.

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“Have a nice day, you piece of shit”

Incomprehensibly, American lawyers are furiously debating whether an advocate saying to an unrepresented grandmother to whom he had been opposed that day on behalf of one of her relatives ‘Have a nice day, you piece of shit’ is conduct warranting discipline.  For example: here,  here, here, and  here.  To be fair, their conduct rules don’t seem to be as fuzzy as ours, and the debate seems to rage around definitions.  But seriously, there’s no nice way to take ‘Have a nice day, you piece of shit’.  It’s qualitatively different from saying to an opponent lawyer ‘You’re full of shit’, or even ‘You’re fucked if that’s your best point buddy’, not that I am condoning such language between lawyers. Continue reading ““Have a nice day, you piece of shit””

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NSW suspends corrupt lawyer after raid on home

An ICAC enquiry resulted in a finding that a senior lawyer at NSW Maritime was corrupt following Operation Vargus: their report is here. That agency oversees marine safety and strategy in all things to do with the sea for the State Government.  Tonette Kelly was moonlighting, working a 100 client, $120,000 a year private conveyancing business while employed full-time. She procured NSW Maritime to purchase professional liability insurance for her, understated her income in her insurance application (so as to lower the premium), engaged other employees of the legal department for reward on her conveyancing files, lied about her activities, and forged a document in her cover up.  She had in fact sought permission from her employer to do about 1 hour’s work a week during work hours, but her moonlighting expanded beyond her employer’s understanding.  Now the NSW Legal Services Commissioner has suspended her practising certificate on the basis of the ICAC findings, and ICAC has suggested the possibility of criminal prosecution for misconduct in public office. NSW Maritime has changed its mind about paying for her defence.

This is tough stuff; damning evidence against Ms Kelly — 4,568 faxes sent from her employer’s fax machine — were seized in a raid on her home.  I have heard of nothing like it by Legal Services Commissioners, and have my doubts about whether, in Victoria, such a matter would be referred to the police so as to allow them to carry out a similar raid.  This involved government corruption, the eradication of which is undoubtedly an important end, especially in NSW, but the social ills generated by lawyers behaving badly, especially in litigation, must be right up there in terms of societal undesirability, worthy too of vigorous investigation. In fact, this is a rare instance of the stipes going up against the big end of town.  The involvement of whistleblowers may explain the curiosity.

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Can a solicitor terminate her retainer if client demands putting of hopeless arguments?

An English case has considered when instructions to put hopeless cases, or advance hopeless claims, may justify a solicitor terminating the retainer: Richard Buxton (Solicitors) v Mills-Owens [2010] EWCA Civ 122.  And here’s a useful case note from Barlow Lyde & Gilbert.  Of course this is the position in England; the position in Australia is not necessarily the same.

The English Court of Appeal also reminded lawyers of their duty to engage in fearless advocacy.  Many barristers get paid handsome sums to speak on their clients’ behalves.  Sometimes it is quite frankly embarrassing arguing points which you do not agree with, and which may not be very good.  Nevertheless, if they are arguable, it’s part of the job, and such arguments must be advanced with as much persuasive conviction as can be mustered.  There is a species of lawyer, a small majority of the general corpus, who expresses embarrassment about their client’s behaviour or contentions behind their back, lawyer to lawyer, wink wink, nudge nudge.  I am speaking of speech which goes beyond making proper concessions.  I regard such conduct with contempt.  The same behaviour may be seen in Court, a little more veiled; Lord Justice Dyson, with whom the other judges agreed, said: Continue reading “Can a solicitor terminate her retainer if client demands putting of hopeless arguments?”

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Duties of lawyers opposed to the unrepresented

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 [2010] NSWCA 181 at [42]:

‘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”

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Prosecutors’ duties in professional discipline cases

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 [2007] 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”

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A new Australian legal ethics blog

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 [2010] QSC 65.  The solicitor got it wrong, and copped a personal costs order.

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Civil Procedure Bill

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.

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Legal professional privilege and disciplinary complaints by non-clients

If you are a solicitor and someone other than your client or former client has lodged a disciplinary complaint against you in Victoria, you should not disclose the subject matter of any communications to which legal professional privilege attaches, or might arguably attach, unless you are instructed to do so by your client or former client. Nor should you give up any document which records such a communication, or disclose any communication which tends to reveal the content of a privileged communication.

That is so even if the Legal Services Commissioner purports to compel the information, for in the case of investigations of non-client complaints, the client’s or former client’s privilege trumps the Commissioner’s powers of compulsion.  If you have already disclosed privileged communications, assuming that the Commissioner had the power to compel you to do so, you should be aware that the disclosed communications may well still be privileged notwithstanding the disclosure to the Commissioner, and so unable to be used against you in a disciplinary prosecution arising from the investigation, and you should probably advise your client or former client.

Until recently, the Commissioner took the view that legal professional privilege was impliedly abrogated in the case of non-client complaints by necessary intendment of the Legal Profession Act, 2004.  Not so.  The reasons why follow below.  These propositions are good law in VCAT’s Legal Practice List, at least.

Remember that it is still the common law which regulates legal professional privilege for the purposes of Legal Services Commissioner investigations and (except to the extent that it adopts the Evidence Act, 2008 in any particular proceding) in VCAT’s Legal Practice List. Continue reading “Legal professional privilege and disciplinary complaints by non-clients”