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Disciplinary prosecution halted because Law Society’s reasons for deciding to prosecute were inadequate

Updates, 3 & 4 February 2019: The NSW Court of Appeal dismissed the Law Society’s appeal in Levitt: [2018] NSWCA 247; meanwhile a decision to like effect was made in AB v Law Society of NSW [2018] NSWSC 1975, the subject of this blog post.

Original post: The NSW Supreme Court has quashed decisions of the NSW Law Society to commence disciplinary proceedings against a Sydney solicitor following complaints that the solicitor advanced allegations of negligence in a costs assessment against two barristers without an adequate factual foundation: SAL v Council of the Law Society of NSW [2017] NSWSC 834, a decision of Wilson J. The Court restrained the Council from continuing the disciplinary prosecution which had been stayed pending the application for judicial review. The Council’s reasons were inadequate in not dealing with exculpatory material advanced by the practitioner during the investigation, and in not disclosing the Council’s path of reasoning in relation to why the conduct was professional misconduct rather than unsatisfactory professional conduct or why it was appropriate to prosecute rather than make an in-house determination such as a reprimand and a compensation order.

The implications of this decision are profound, for many a set of reasons at the conclusion of a disciplinary investigation are likely no better than those which were examined in this case, for the simple reason that no one has ever really sought to take the adequacy of these kinds of reasons to task.  First, those who are subject to current prosecutions might seek prohibition to stop them in their tracks: if you are involved in a disciplinary prosecution, careful study of this decision is advised. Secondly, with the rise in the quality of reasons at the conclusion of a disciplinary prosecution which one presumes the decision will generate, it may be hoped that better decisions about what to prosecute will be made.  Continue reading “Disciplinary prosecution halted because Law Society’s reasons for deciding to prosecute were inadequate”

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Appeals from VCAT on the basis of inadequate reasons

A failure to give reasons is an error of law.[1] Seriously inadequate reasons are corrosive of public confidence in the administration of justice and ought not to be tolerated by an appeal court, since justice must not only be done but be seen to be done. This is the first public policy informing the requirement for reasons by courts and court-like tribunals. As the Supreme Court has observed:

‘To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.’[2]

That is especially so in relation to factual determinations where a right of appeal lies only on a question of law. Even more especially so in a quasi-criminal[3] prosecution with serious consequences for the practitioner in which a disciplinary prosecutor carries the burden of proof as described in Briginshaw v Briginshaw. Continue reading “Appeals from VCAT on the basis of inadequate reasons”

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NSW solicitor who didn’t pay counsel’s fees struck back on

Salvatore Russo, a solicitor of 29 years’ standing, was struck off NSW’s roll of solicitors on 16 April 2016 by NCAT.  He had received payment from his client for counsel’s fees but not paid counsel for years. Then he was high-handed in response to the client’s entreaties when counsel sued the client directly.  The Court of Appeal found a denial of procedural fairness by NCAT.  The Tribunal had telescoped the questions of liability and penalty into one hearing.  It had failed to give Mr Russo sufficient notice of the fact it was considering striking him off despite the fact by the end of the trial, the Commissioner was not seeking such an outcome any more. Now he’s been struck back on by the NSW Court of Appeal, a fine of $20,000 substituted for his misconduct: Russo v Legal Services Commissioner [2016] NSWCA 306.  (In fact, the striking off never came into operation, because he got a stay along the way.) Continue reading “NSW solicitor who didn’t pay counsel’s fees struck back on”

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Applications to stay disciplinary decisions pending appeal

I had to convince the Legal Services Commissioner to consent to a stay of orders suspending my client pending an appeal he has brought from VCAT the other day.  Happily the Commissioner consented.  For next time, I squirrel away this re-statement by the New South Wales Court of Appeal of the application to this class of case of the law governing applications for stays in civil proceedings pending appeal in Griffin v Council of the Law Society of New South Wales [2016] NSWCA 275.  (I reported on the first instance decision here, and this latest decision reveals that the solicitor has applied for the removal of his appeal to the High Court so it can rule authoritatively on the application of the freedom of political speech to criticism of the third arm of government, the judiciary.) Continue reading “Applications to stay disciplinary decisions pending appeal”

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Does a subrogated claim give rise to a general res judicata if an insured’s loss is partly insured and partly uninsured?

In De Armas v Peters [2015] NSWSC 1050, the Supreme Court of NSW declined to grant leave to appeal from a decision of the Local Court.  The Local Court had allowed a man to sue for the cost of repairs to his car, even though he had previously sued her for car hire costs he incurred while those repairs were being undertaken.  And even though, in that first case, the Local Court had found him to be the negligent driver, not the woman.  Impossible?  There was of course a twist.  The first suit was brought with the involvement of a car hire company from whom the man had hired the car he used while his car was being repaired. No doubt they had told him that the car would be at no cost to him and the cost of the hire would be recovered by the car hire company’s solicitors from the negligent driver.  The second suit was brought by his insurer, having stepped into his shoes through the law of subrogation.  The man’s losses were partly insured and partly uninsured, hence his deal with the car hire company to which he was probably referred by his repairer.  And the woman’s insurer had not taken any defence of abuse of process in either proceeding before she obtained judgment in the first.  You can watch a discussion between AAMI’s solicitor and barrister about the decision on the excellent BenchTV here. Continue reading “Does a subrogated claim give rise to a general res judicata if an insured’s loss is partly insured and partly uninsured?”

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Proving a loss for insurance purposes; inadequacy of reasons as an appeal ground

In Kalloghlian v Chubb Insurance Company of Australia Ltd [2016] NSWSC 902 (the Court’s summary is here), a man said he purchased a Rolex in Syria in 2005.  He insured his things with Chubb against loss anywhere in the world.  The policy was described as ‘Deluxe’.  It specifically insured items  which the insured owned as well as things he possessed.  The insured said he lost the watch on Copacabana Beach in July 2014.  The police declined to take a report.  He had no receipt from its purchase.  He could not remember from which jeweller he had purchased it.  He had lost his passport for the period of the trip to Syria.  Chubb declined the claim.  The insured sued.  The Magistrate dismissed the suit.  The insured appealed. The Supreme Court ordered a new trial.

The decision is hardly ground breaking.  But it is simple.  And it is useful to be reminded about the following:

  1.  An insured may prove a loss by giving oral evidence of the loss.  A lack of documentary or other corroboration is not fatal.  It is just something to be assessed in considering whether the plaintiff has satisfied the Court it is more likely than not that he suffered the loss.
  2. That is so even where it is a condition of cover under the policy that the plaintiff provide various proofs of ownership and of loss.  That is because s. 54 of the Insurance Contracts Act 1984 excuses breaches by the insured of policy conditions where the breach cannot have caused the loss, except to the extent of any prejudice to the insurer.
  3. Even busy decision makers in over-worked jurisdictions have to identify controversies raised by the parties which are necessary to determine in order to find for one party or the other, and explain why they resolved those controversies the way they did.  A failure to do so will result in the decision being set aside.  Robert Sheldon QC’s blog keeps an eye on this area of law.  See here and here and here.  The Court’s summary of the obligation in New South Wales to give adequate reasons is set out in full below.
  4. Where the facts are ascertained sufficiently that there is only one correct decision, the appellate tribunal may substitute its decision.  Where, as here, however, it was necessary to take into account how witnesses presented, the appellate tribunal will remit the case to be re-heard, where necessary (as here) by a new decision maker.

The obligation to give proper reasons, especially where there are contests of oral evidence, is an important one and should be jealously guarded.

Continue reading “Proving a loss for insurance purposes; inadequacy of reasons as an appeal ground”

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The Bureau de Spank’s obligation not to publish about disciplinary orders until lawyers’ appeal rights are spent

Parliament is considering a bill to re-instate the disciplinary register, and to prohibit the Bureau de Spank from trumpeting its successes before the respondent practitioners’ appeal rights are exhausted: Legal Profession Uniform Law Application Amendment Bill 2016 (Vic.).  Cl. 150E of the Bill proposes to prohibit the Legal Services Board from providing to the public information about disciplinary orders made by the VCAT’s Legal Practice List while appeals or appeal rights are live.  The prohibition extends beyond publication on the proposed disciplinary register to disclosure of information to the public more generally.

There is a problem with the Bill though: it focuses its protection of the profession on prohibitions of publications by the Legal Services Board about final orders.  The Board shares a website and premises with the office of the Legal Services Commissioner.  The CEO of the Board is in fact the Legal Services Commissioner, Michael McGarvie, who is also the applicant in all disciplinary prosecutions of lawyers in Victoria.  Yet the CEO, qua Commissioner, is content for his staff to write about cases he is prosecuting, before any orders have been made and while the tribunal is considering what orders to make.  On the homepage of the Board + Commissioner’s website, no less.

If parliament is concerned to ensure that the reputation of practitioners is not to be ruined by accounts of current proceedings by one of the parties to them where the aspect of things might change dramatically upon appeal, or even by bad decisions in such proceedings which are to be appealed, it ought to consider adding the Commissioner to the class of person covered by the prohibition, and to make clear that neither the Board nor the Commissioner ought publish details of disciplinary prosecutions while they are before the disciplinary tribunal.

It is not uncommon for appellate courts — the Supreme Court or the Court of Appeal — to reverse decisions unfavourable to lawyers in disciplinary prosecutions of lawyers in VCAT’s Legal Practice List, or to substitute decisions more favourable to lawyers than those of VCAT or the legal regulators.  So the no publicity pending appeal proposition actually has some important work to do in the real world.  Consider, to name a few, Legal Services Commissioner v McDonald [2015] VSC 237, PLP v McGarvie [2014] VSCA 253, Stirling v Legal Services Commissioner  [2013] VSCA 374, Burgess v Legal Services Commissioner [2013] VSCA 142, Brereton v Legal Services Commissioner [2010] VSC 378, Byrne v Marles [2008] VSCA 78, Quinn v Law Institute of Victoria [2007] VSCA 122, Byrne v Law Institute of Victoria [2005] VSC 509. Consider also non-lawyers: Omant v Nursing and Midwifery Board of Australia [2014] VSC 512, and Towie v Medical Practitioners Board of Victoria [2008] VSCA 157 where the Court found that VCAT’s standard orders in disciplinary hearings were contrary to the privilege against penalties.  It will be observed that some of those decisions were made by very experienced members of VCAT’s Legal Practice List, and several by its Vice-President, a judge.

Continue reading “The Bureau de Spank’s obligation not to publish about disciplinary orders until lawyers’ appeal rights are spent”

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Submissions on penalty in regulatory proceedings like ASIC and disciplinary prosecutions

The Federal Court has given a landmark decision about regulatory prosecutions.  In federal jurisdictions and state jurisdictions which follow the new decision, professional disciplinarians like ASIC and Legal Services Commissioners will no longer be able to enter into plea bargains in the expectation that the court or tribunal hearing them will rubber stamp the agreed outcomes so long as they are ‘within the permissible range’ of penalties.  But nor will disciplinary prosecutors be able to submit what the appropriate penalty ought to be.  Rather, they will be limited to making submissions about the appropriate sentencing principles, and about similar outcomes in similar cases.

The powerful judgment is at odds with a paragraph of dicta in a recent decision of the Victorian Court of Appeal in that it applies the High Court’s decision in Barbaro, a criminal case, to the quasi-criminal realm.  How the case plays out in Victoria remains to be worked out, but if this case goes to the High Court (and both sides have filed special leave applications), all that may change. Certainly the settlement of proceedings by regulators just got more complicated.

There seems to be a discrepancy about fundamental norms of government between the dicta of our Court of Appeal and the ratio of the Federal Court’s decision.  Once that gets resolved, however, each piece of legislation setting up the regulatory regime must be construed against the backdrop of those fundamental norms, and might give rise to different outcomes.  The Federal Court approached the task of working out how Barbaro applies in regulatory prosecutions in an orthodox fashion, i.e. by a process of statutory construction based on a close textual analysis of the legislative scheme as a whole.

The Chief Justice of the Federal Court allocated three judges to hear a preliminary question in the regulatory prosecution at first instance, in which the parties had already agreed on a proposed outcome, the result of a settlement (or, if you will, a plea bargain).  The proceeding was brought against the CFMEU and the judgment’s aim was apparently to sort out once and for all if, and how, the High Court’s decision in Barbaro is to apply in proceedings for a penalty.  The mouthful of a case is reported as Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59, but seems set to be called ‘the CFMEU Case’.

It’s quite a judgment: indignant, keen to cut cant, and argued from first principles in relation to the place of the courts in civil society.  It is a further step in the demolition of the nonsense about disciplinary proceedings being sui generis, fundamentally distinct from criminal prosecutions, and (oh, spare me!) protective and not punitive in a way which means the protection of those against whom punishment is sought need not be extended.  The   punishment of citizens is, and must be seen to be, a job for the courts (except where parliament has expressly provided otherwise); where the State is seeking to punish citizens the label applied to the proceedings is a distraction; and in such cases, the Courts having been tasked with ascertaining the appropriate penalty, they must do so conscientiously themselves, however convenient it might be for them, for regulators, and for the regulated, to cede that task to a regulator which is part of the machinery of the executive arm of government, and to pay lip service to the inquiry conducted by the Court into the appropriateness of a deal done behind closed doors.  So said the Court.

The indignation extends to the many judges and other decision makers who have convinced themselves post-Barbaro that the decision does not apply  to them, often on the basis that criminal proceedings are special and proceedings for a penalty are civil proceedings and nothing like criminal prosecutions.  Distinguishing Barbaro away has been de jour. Continue reading “Submissions on penalty in regulatory proceedings like ASIC and disciplinary prosecutions”

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R v Milat: A Case Study in Cross-Examination

British backpacker Paul Onions got away from Ivan Milat on 25 January 1990, after Milat pulled a gun on him after giving him a lift.  He ran off, zigzagging to avoid being shot to death and managed to hail a passing motorist as Milat’s shot missed him.  The police did not do anything much in response to his report and, tragically, Mr Milat was more successful with at least seven others who were in 1992 found murdered in the Belangolo State Forest.  One had been decapitated. Continue reading “R v Milat: A Case Study in Cross-Examination”

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VCAT rolled for finding solicitor guilty of a charge not levelled against him

Justice Karin Emerton seems to be emerging as one of the Supreme Court’s specialists in what I call the law about lawyers, much of which is found in the Legal Profession Act 2004.  Early on in her judicial career, her Honour was assigned to the hearing of the extraordinary suite of matters between the Legal Services Board and David Forster.  Her Honour’s latest characteristically clear and concise judgment in this area of the law (PS v Legal Services Commissioner [2014] VSC 185) was delivered yesterday, in which she allowed an appeal from a disciplinary decision of VCAT’s Legal Practice List. The Victorian solicitor who was the appellant was represented by another  specialist in the law relating to lawyers, Martin Randall, whom I expect was a leading expert in the area before I was born, and a gentleman to boot.  Her Honour set aside VCAT’s decision because it found the solicitor guilty of conduct he was not charged with.  The Commissioner urged her Honour instead to substitute a more appropriate decision, namely that the solicitor was guilty of the charge as drawn, but her Honour said: Wrong way! Go back. Continue reading “VCAT rolled for finding solicitor guilty of a charge not levelled against him”

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Clyne v NSW Bar Association: the leading case on unfounded allegations

Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 is a unanimous decision of the Dixon Court confirming the striking off of a Sydney barrister, Peter Clyne, for making unfounded and serious allegations on behalf of a husband against the wife’s solicitor in matrimonial litigation for the admitted purpose of getting the wife’s solicitor out of the case.  Those allegations were in fact made in a private prosecution by the husband of the wife’s solicitor for maintenance. Reading the decision, one might think that striking off the rolls was a relatively harsh penalty by today’s standards for the conduct recorded, especially since his client succeeded at committal in having the wife’s solicitor presented for trial.  And also if one believes Mr Clyne’s autobiography where he asserted:

‘Particulars given by the New South Wales Bar Association made it quite clear that it was not part of the charge to say that my advice to prosecute was wrong, or improper.  Indeed, as I have mentioned before, the advice to prosecute Mann was given in writing, by the eminent and respected Sydney QC, Mr Newton, who later became (and still is) a judge of the New South Wales District Court; and no one has ever criticized Mr Newton for his advice.’

But Mr Clyne had done it before and been sternly warned (see CLR 202) and was unrepentant to the moment he was struck off. Further, he was absolutely one out of the box (he will be the subject of a further blog post) and was no doubt regarded as an excrescence on the legal system to be excised at almost any cost.  He went on to irritate the authorities as a professional tax evader and unashamed advocate of tax evasion, writing many books on the subject and others (e.g. Adventures in Tax Avoidance, How Not to Pay Any Taxes, Guilty But Insane) while living a decadent lifestyle which hopped, first class, between hotels in Sydney and his native Vienna.  Like George Herscu, one of the villains in White Industries v Flower & Hart, Clyne spent time in jail, and only avoided spending more time by fleeing America without a passport while on appeal bail.  He seems to have been intelligent and to have had enough charm to be married to a Welsh entomologist who also wrote many rather different books (e.g. Silkworms, All About Ants, and Plants of Prey).  But his autobiography (Outlaw Among Lawyers; the Peter Clyne Story, Cassell Australia, 1981) reveals a thoroughly dishonest if colourful character with very little if any regard for the law. Continue reading “Clyne v NSW Bar Association: the leading case on unfounded allegations”

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The civil and disciplinary consequences of making an allegation of serious wrongdoing without a proper foundation

Friends, I need your help, again.  Certain promises I made to write about and present on the civil and disciplinary consequences of making allegations of serious wrongdoing (e.g. fraud) without a proper foundation are coming home to roost.  I’m looking at:

  • disciplinary sanction of lawyers via Legal Services Commissioner, etc. prosecution;
  • personal costs orders against lawyers;
  • costs consequences for parties (common law in relation to exercise of the unfettered discretion re solicitor-client rather than party-party costs and displacing the presumption that costs follow the event where allegations of fraud are not made out, and Civil Procedure Act 2010 (Vic.)); and
  • what is a ‘proper foundation’?

My miserable situation in this season of sun, frivolity and child-minding is a need to work out what these consequences are so that I can provide learned disquisition.  In the process I have learnt something about Dr Peter Clyne, the protagonist of Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40.  What a wonderful addition to my knowledge of the rogues’ gallery of which I consider myself a connoisseur; I even bought his autobiography on eBay today but his ‘How Not to Pay Your Debts’ is still available.  The Hikers described his conduct during the course of an ‘orgy of litigation’ between his client, the husband, and the wife as ‘irresponsible’, ‘mischievous’, ‘objectionable’, indefensible, ‘inexcusable’, and, rather wonderfully I think, ‘monstrous’.  A unanimous Dixon Court confirmed the good doctor’s striking off.  You can read about his life afterwards, including as a Magistrate in Zambia, here, and possibly less reliably, here.

So here is a general call-out for good authorities on these questions, especially decisions which really assist in understanding what a ‘proper factual foundation’ is, since many authorities relate to allegations which are so obviously unsustainable that they do not really illuminate where the line lies between the merely poor and the truly discreditable argument (Clyne), or proceed on the basis of admissions (AM v Legal Practitioners Disciplinary Authority [2010] NTSC 02), or are fantastically complicated (the case just referred to and Victorian Bar Inc v CEM QC [2006] VCAT 1417).  I would also be very grateful for any detailed commentaries on this aspect of the conduct rules for solicitors and barristers alike, and Australian decisions in relation to costs (since many of those cited by Dal Pont are Canadian or English).

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Baby murderers

Believe it or not, my costs law practice once saw me act for a toddler murderer.  Annie Cossins, a NSW academic, has written a book about Sarah & John Makin which reveals that many a small child has been murdered in Australia: The Baby Farmers (Allen & Unwin, 2013).  The Makins’  back gardens had 12 dead babies buried in them.  She and her husband were tried for murder of one of them before a jury and the case went to the Privy Council on a tendency and coincidence evidence point which is still cited in evidence texts, e.g. Jeremy Gans and Andrew Palmer’s excellent Uniform Evidence (OUP, 2010) at [12.1.4].  Cossins analyses the fairness of the trial, concluding that the judge was out of his depth, and analyses in a layman-friendly way how the evidentiary issues in the case (in which the Makins sat mum) would be dealt with today.  The Makins were wretchedly poor.  One of them was hanged.  There is a chapter entitled ‘Was Sarah Makin Really an Evil, Deadly Woman?’  Interesting stuff; as the blurb says the trial ‘exposed a shocking underworld of desperate mothers, drugged and starving babies, and a black market in the sale and murder of children … only a century ago’.

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How not to plead a contract

Update, 17 January 2013: this colourful judgment of a Master of the Supreme Court of Western Australia is worth a read. For example:

’23 At par 17, the plaintiff pleads that the agreement was entered into between February and November 2007. That is a remarkably long period. It should always be possible to say when a contract came into existence.

24 In a classical analysis, it is when the offer is accepted. Any uncertainty over the date on which the contract became complete and enforceable only arises because of evidentiary uncertainty about when a particular event occurred: there may be doubt, for example, about whether a written acceptance was delivered, or a conversation took place, on Tuesday or Wednesday. But there will still be a short interval of time during which those things are said to have taken place.

25 Even in the sort of case in which a contract emerges from a course of conduct, such as was considered by the Full Court in Marist Brothers Community Inc v The Shire of Harvey (1994) 14 WAR 69, it is always possible to give a definite date by which it can be said that there is an enforceable contract.

26 In neither type of case is it likely that the point at which a contract came into existence cannot be narrowed down any further than to a nine-month period. Nine months is the gestation period for humans, not for contracts. A plea that a contract came into existence in a nine-month period is embarrassing.’

Update, 4 June 2012:  This post prompted quite a few readers privately to email me sharing various frustrations they have.  One pointed me to an article by a Qld silk, Anthony Morris, venting his top 7 pleading frustrations, ‘Seven Deadly Sins of Pleading’, Hearsay, Issue 32, December 2008.  I completely agree with the first 6 and all of the 7th except for the bit which recommends against using automatic cross-references to other paragraphs of the pleading — technology must have moved on since 2008.  I am in heated agreement with him in relation to his second point, and wonder whether any Victorians consider that pleading in numbered paragraphs what might ordinarily be contained within particulars, so as to force (or even entice) the responding party to state their position in relation to that allegation, might not be permitted for some reason.

Original post: One might think that nothing could be more central to commercial litigation practice than to plead an agreement.  Sometimes the line between facts and evidence — one you plead and the other you don’t — can be a bit blurry, but one might think that it would give a lawyer pause before pleading an invoice given pursuant to an agreement as a particular of the agreement itself.  Yet it happens all the time, perhaps none moreso than in the solicitor who sues for fees, representing himself.

Then there seems to be a pathological inability in pleaders to allege a straight written agreement.  It’s always partly implied to give business efficacy to the agreement, but the implied term is never stated and nor are the reasons why the agreement would be inefficacious in a business sense without the implied term.  And often enough, it’s partly oral too, but the thrust of the words spoken so giving rise to the oral terms are not set out.

Speak up if you can better this pleading (bear in mind in order to be valid all the terms of a costs agreement have to be in writing or evidenced in writing) which is paining my Saturday evening, or just send me your favourite examples of the same phenomenon: Continue reading “How not to plead a contract”

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The delicious perils of qua; on suing yourself

Update: I knew that the study of autolitigation would be nicely developed somewhere. Former barrister Malcolm Park brought to my attention his article that was published in (Winter 1992) 81 Bar News 79-80, ‘On Both Sides of the Record’:

‘It is accepted law that a person cannot appear as plaintiff and defendant in the same proceedings. Our wandering reporter, Mal Park, has discovered that even apparently trite law is not of universal application. Sheriffs and even lawyers, like pop stars, may sometimes appear on both sides of the record. Continue reading “The delicious perils of qua; on suing yourself”

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Another Victorian barrister blogs

Welcome to the blogosphere to Andrew Downie.  He is a barrister in Melbourne Chambers, of which I am a member.  Alarmingly, he nominates Williams’ Civil Procedure as his favourite book. He is blogging about commercial law at The Civil Lawyer.  He is tweeting too. I know of another barrister of Melbourne Chambers who will soon, if he ever gets round to it, unleash what will be a quality blog onto the world, and I know of a silk in Melbourne who would like to set up a blog.  Perhaps it’s time for a continuing legal education seminar: ‘How to Blog’.  What do you think?

My list of Victorian barristers with webpages or twitter accounts about the law (who have I missed?) is: Continue reading “Another Victorian barrister blogs”

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Interesting seminar series

Tress Cox are putting on a seminar series I think is interesting.  Big firms typically all put out a case note about the same latest cases, and their clients yawn.  Tress Cox has chosen a different path: a seminar each about 5 landmark — but not necessarily recent — cases, with the catch phrase ‘How Well Do You Know Them?’  Older lawyers (a class which includes most judges) despair of younger lawyers’ enthusiasm for citing the latest case to have considered any particular issue. I can see both camps’ point of view.  It’s nice to know from the latest case that the law is up to date.  On the other hand, it is desirable in the interests of efficiency that reported cases of appellate courts — the cannon of the law — be used when possible, to save everyone reading a new case which says nothing much more than what should be the leading case.  What amazes me is the fact that younger lawyers overlook texts so often, no doubt because they are not part of their LexisNexis subscription.  The five cases are Continue reading “Interesting seminar series”

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Pia and twitter

Pia Warne has been distracting me from blogging recently.  She was born a bit more than a week ago.

But tweeting has also distracted me.  Twitter is a micro-blogging platform.  I had never been there until just before I started tweeting: here is my Twitter page.  Twitter involves following and being followed.  I tweet a short message of up to 140 characters and those 32 individuals who follow me get each message posted in their timeline, along with tweets from everyone else they follow. If anyone they follow retweets one of my tweets, then they get it too.  Similarly, a chronological amalgam of the tweets of those I follow appears in my timeline, along with any tweets of others that have been retweeted by those I follow. Continue reading “Pia and twitter”

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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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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.’