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More on confidentiality and disciplinary hearings

A propos my post about an English solicitor’s revulsion for the reptiles of the press engorging themselves on the protection of the public by the public spanking of lawyers:  ACT’s lawyers are up in arms.  It seems that suddenly, disciplinary hearings are open to the public, with the transfer of lawyers’ discipline hearings to the ACT Civil and Administrative Tribunal.  Just like all the other hearings except for cases about terroists, spooks, nice people spooks think might be terrorists, spice, rapists and paedophiles.  Their Law Society won’t have it.  The Canberra Times editorialised on 27 April 2009 that everyone else suffers the slings and arrows thrown at them by maddies and baddies (as well as the genuinely aggrieved), and why should lawyers be different?

Why indeed?  Well, I often feel for the clients of lawyers, who have their confidences ripped open because someone — say their client’s husband — has decided that the lawyer in whom they confided their secrets as if in a modern day confessional did something wrong.  The identity of clients, and all features of the matter out of which a disciplinary prosecution springs as might identify the lawyer’s client should certainly be more anonymised than it is, at least on the net.  But otherwise? Bah!  Here’s where to go to look up decisions of the new Tribunal.  The Law Society’s response to the editorial was the following letter to the Editor: Continue reading “More on confidentiality and disciplinary hearings”

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Statutory powers of compulsion to be invoked reasonably

Justice Pagone considered the Commissioner of Taxation’s invocation of a power to compel the production of documents and information (s 264(1)(b) of the Income Tax Assessment Act 1936 (Cth)). In this case, the subject of the compulsion was the Law Institute, more used to flinging such powers around itself.  Legal regulators not infrequently list poorly formulated allegations drafted by angry laypeople and then requiring ‘a full written response’ from lawyers.   Sometimes, requiring a ‘full written response’ is specifically contemplated by statute (e.g. s. 4.4.11(1)(a) of the Legal Profession Act, 2004, which is about investigating disciplinary complaints) but sometimes it is not (e.g. s. 7.2.7 of the same Act, which relates to investigations of offences against the Act).  If the response is not ‘full’ in the way the regulators think about ‘fullness’, the respondents risk being convicted of the crime of non-cooperation (seriously: see s. 7.2.7(1)).  His Honour cautioned regulators and said they must use such powers ‘wisely and responsibly’: Continue reading “Statutory powers of compulsion to be invoked reasonably”

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More on Law Institute records and public interest immunity

I have previously posted about Justice Pagone’s rejection of the Law Institute’s blanket invocation of public interest immunity to excuse production of documents required for production under a statutory power of compulsion available to the Tax Man.  Now his Honour has decided the case based on the kind of specific arguments he considered to be necessary: Law Institute of Victoria Limited v Deputy Commissioner of Taxation (No 2) [2009] VSC 179. The documents sought by the Tax Man were divided into 3 categories:

  • The first were documents about the practice history of the solicitor of interest to the Tax Man, which included copy practising certificates, records of when the solicitor held a practising certificate, and of what kind, and change of address forms.
  • Secondly, the Tax Man sought records of audits of the solicitor’s trust accounts;
  • Thirdly, he sought ‘all records in respect of the cessation of [the solicitor’s] registration as a practising lawyer, including documents stating Mr Kephala’s election not to renew his practising certificate, or notification of his ineligibility, or notification of the requirement for investigations to be conducted before it could be renewed.’

His Honour held that the first and third documents were not protected by public interest immunity, but the second was.  The reasons in relation to the audit documents are set out below.  Some of the documents produced by the Institute contained information to persons other than the solicitor in whom the Tax Man is interested.  His Honour also hinted strongly that a responsible regulator ought to advise them that information relating to them was proposed to be produced to the Tax Man, and that the Institute had not done so.  His Honour contrasted that course with that adopted in Federal Commissioner of Taxation v Coombes (No 2) (1998) 160 ALR 456. Continue reading “More on Law Institute records and public interest immunity”

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Rehabilatory orders as professional discipline disposition

In Victoria last year, a deal was struck between the Law Institute and a solicitor whose practising certificate it had cancelled.  A retired solicitor was appointed as a mentor to the solicitor, who was allowed to return to practice subject to the Legal Practice Board’s supervision through the retired solicitor’s agency.  Bitter litigation was brought to an end.  There was a precedent: Legal Services Commissioner v BH [2008] VCAT 686.  And it is not unlikely that that precedent was borne out of important guidance issued by the Court of Appeal in PJQ v Law Institute of Victoria [2007] VSCA 122 per President Maxwell with whom Justices of Appeal Chernov and Nettle agreed:

’31 Critically for present purposes, however, the Tribunal’s protective function is paramount. Thus, where there is a choice of sanctions, it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public.

32 In my opinion, the Tribunal was here faced with just such a choice. Counsel for [Mr Q] had offered the Tribunal an undertaking to have his bills of costs independently assessed. This undertaking was offered apparently without limit of duration. As Buchanan JA and I said when granting a stay of the suspension, the imposition of a continuing obligation of that kind would seem likely to afford considerably greater protection to the public than a period of suspension, unaccompanied by any requirement of training or further education, followed by a resumption of unsupervised practice. Put simply, compliance with the undertaking would ensure that there was no recurrence of the overcharging which occurred here.

33 As I have mentioned, the Tribunal’s otherwise careful reasons for decision make no mention of the proffered undertaking. The Tribunal said that it had considered other options short of suspension but in my view, because of the long-term protection which the undertaking offered the public, that course required separate consideration and evaluation.’

The Bureaux de Spanque Medicales are much better than their legal equivalents at fashioning these kinds of orders (but then there is a dearth of experienced doctors while there is a glut of lawyers, so necessity is the mother of invention).  Anyway, the Queenslanders are onto it.  In Legal Services Commissioner v MPD [2009] LPT 08, the Bureau de Spanque Tropicale heard charges against a solicitor for breach of the rule in Browne v Dunne, and several trust account irregularities which involved no dishonesty.  The solicitor pleaded guilty, and everyone involved thought these lovely orders to be most appropriate: Continue reading “Rehabilatory orders as professional discipline disposition”

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Another case about one of Schapelle Corby’s lawyers

I have previously expressed my disquiet about the Western Australian QC who told the Australian media that Schapelle Corby’s lawyers were trying to bribe the judges hearing her case.  It seems the Bureau de Spanque de l’Australie de l’Ouest had in fact got right onto it, initiating an own motion investigation. The resultant prosecution has only just now, almost four years later, ground to a successful halt, with a 60,000 word decision crafted by WA’s State Administrative Tribunal over the six months during which the decision was reserved.  The case is Legal Practitioners Complaints Committee v Mark T QC [2009] WASAT 42. The QC does not come out of it well. Continue reading “Another case about one of Schapelle Corby’s lawyers”

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A new text on professional discipline

Lovegrove & Lord‘s Kim Lovegrove and barrister Sav Korica have just published a little book called Disciplinary Hearings and Advocacy (Hybrid, 2009). It sells for $39.95. Lovegrove is the Chairman of the Building Practitioners Board, and presides over disciplinary hearings. I suspect that frustration with other decision makers’ decision making (‘there may exist some, particularly those who are not legally trained, who may harbour a misconception about the purpose of disciplinary porceedings in that they may be of the view that their primary mandate is to punish’) and, more particularly, with the attitude adopted by advocates appearing before him (‘Members are often bamboozled about determining whether an advocate is contesting or mitigating’) has driven him to write the book. Continue reading “A new text on professional discipline”

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State Acts’ power to regulate local lawyers’ overseas conduct

In Legal Practitioners Complaints Committee and MT QC [2009] WASAT 42, Judge Eckert’s 3 member tribunal considered the application to the Western Australian Legal Practice Act, 2003 of the laws relating to the power of state governments to make legislation regulating overseas conduct (i.e. ‘the law of extraterritoriality’).  Her Honour is Deputy President of the State Administrative Tribunal, and a judge of Western Australia’s District Court.  The Tribunal held that the Western Australian parliament had the power to make laws providing for the discipline of Western Australian lawyers who did things overseas which infringed the norms of their Australian peers, and that the parliament had in fact done so.  Her Honour also considered the relevance of compliance with overseas norms, and who has the burden of proving those norms.  This is one to store away for when you read it.  The relevant passage is: Continue reading “State Acts’ power to regulate local lawyers’ overseas conduct”

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The Tax Man, the Law Institute, and the public interest

Update, 14 May 2009: Justice Pagone has given a second judgment determining this dispute, which I posted about here.

Original post: Justice Pagone gave judgment in Law Institute of Victoria Limited v Deputy Commissioner of Taxation [2009] VSC 55 on 26 February 2009. His Honour noted, as ‘trite’, that the Tax Man’s power of compulsion, found as it is in a Commonwealth statute, trumps by virtue of s. 109 of the Commonwealth Constitution the obligation in the Legal Profession Act, 2004 (Vic) on the Law Institute to keep information obtained by it in carrying out its functions secret.  And that the Tax Man’s power is subject to public interest immunity.  But his Honour said the immunity needed to be considered document by document, and could not be claimed only by virtue of the characteristics of the person in possession of the information, in this case the Institute.

Three things which seem yet to be discussed at this point in proceedings interest me, in addition to the obvious issue of the future prospects of the Law Institute’s vigorous pursuit of the public interest by the non-provision of information and documents. But unless you’re a lawyer regulation geek, you might want to skip the next few paragraphs and continue reading from there, where the less arcane aspects of the judgment are further summarised. Continue reading “The Tax Man, the Law Institute, and the public interest”

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Ode to Dunalley

I took a holiday in Dunnalley, on the way from Hobart to Port Arthur, just 3 days after the Legal Profession Act, 2007 (Tas) finally came into operation on New Year’s Eve (more at the end of the post). Dunalley’s my kind of place: a tiny fishing village full of geraniums, a few remaining fishing boats, a waterfront cafe cum second hand store, a spectacular beach, a general store with a large collection of hunting magazines, a considerably above average (but not quite excellent) bakery, a post office with a keen cottage gardener at the helm, a superficially picturesque pub, a couple of beautifully situated and almost untouristed wineries, rural drives through countryside akin to my 7 year old imagination of The County when reading Tolkien punctuated by little roadside stalls selling cherries and raspberries worthy of interstate travel, many magpies, and a 40 minute drive from Hobart (and the Jackman + McRoss bakery in particular) and more or less entirely unknown to Google.

But it is the Dunalley Fish Market which made me fall in love with the place, in this era when buying fresh fish caught by fishermen in fishing villages seems inexplicably difficult. Every day or so, I got into our sardine can-like hire car and drove to the end of the road to the ramshackle place which is perched on the side of the bay, and purchased some fresh fish, or a $4 tub of ‘fish pate’, or some smoked octopus, or some excellent fish and chips, or shucked as you wait oysters, or lobsters — live or freshly cooked. One enchantingly laconic individual who commutes from Hobart runs the place. Presumably it is his Elvis posters which interrupt the otherwise marine decor.

If all that appeals to you, go stay at my mate’s inlaws’ quiet and beautiful place, Potter’s Croft, and have my mate Gus and his wife Vanessa take you on one of their incredible guided tours of a giant private property called Bangor with 35 km of spectacular coastline which has been in the same family since white settlement. Continue reading “Ode to Dunalley”

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The practising certificate suspension challenge that went wrong

Update, 8 November 2008: When I wrote this post, the Court of Appeal had authoritatively answered another of the questions posed below, about the penalty privileges, but I had not yet read the case, CT v Medical Practitioners Board [2008] VSCA 157.  Now I have, and I have posted here about it.

Original post: WPE v Law Institute of Victoria [2008] VCAT 1277 shows that you’ve got to be careful when challenging a decision to cancel or suspend your practising certificate because if the Law Institute wants to sic you, they can seek to establish misconduct against you in the merits review proceedings, and if they get up, VCAT has the same suite of powers as it would following a disciplinary prosecution: s. 2.4.37(3) Legal Profession Act, 2004.

Sometimes, rather than engage in litigation, it is better to play the game, take an early long service leave, help some orphans, have a moment on the road to Damascus, and send in a well thought out application for a new certificate at a well judged time in the future. Saves a lot of costs and maybe a few orphans,  lets you have a holiday at the same time, and means there’s never a hearing into the conduct which gave rise to the suspension and/or cancellation. Spend half the money you would have spent on lawyers on a public relations consultant and a lobbyist and you’re doing even better. Other times it’s better to avoid merits review — the obvious remedy specifically provided for in the Legal Profession Act, 2004 — and go for judicial review proper (a course which we now know since Zarah G-W’s cases is kosher; c.f. Perkins v Victorian Bar Inc [2007] VSC 70), especially where the decision making process leading up to the suspension or cancellation is dubious.  But sometimes, if a disciplinary charge seems imminent, the question of costs referred to below might recommend getting in early with an application for review of a practising certificate decision which might prevent the laying of disciplinary proceedings proper and lead to adjudication of the issues in a more costs friendly regime.  There is much to weigh up in choosing one’s approach when challenging a practising certificate decision.

How these hybrid administrative law and quasi-criminal proceedings are supposed to pan out has been a bit of a mystery to date.  They are a new concept.  Maybe they are unique — who knows?  Anyway, there was certainly no analogue under the Legal Practice Act, 1996.  Who bears the burden of proof?  Who should go first?  Does the privilege against penalties protect the lawyer?  Is it an inquisitorial or adversarial proceeding?  Should the matters the Law Institute will argue should found disciplinary findings be the subject of properly particularised charges?  What about costs?  Can the Law Institute apply for disciplinary findings at all, or is it a jurisdiction which must be invoked by VCAT?  Judge Ross provided answers to a couple of these questions only in this case. Continue reading “The practising certificate suspension challenge that went wrong”

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Zarah wins

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

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

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

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

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

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

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Megafirm partner who stole to make budget gets his ticket back after long holiday

The latest application for review of a decision of the Legal Services Board decision not to grant a practising certificate was in the matter of DAP v Law Institute of Victoria [2008] VCAT 688. The 57 year old solicitor and former Melbourne Cricket Club Committee member was a property lawyer at one of Melbourne’s megafirms for about 27 years, many of them as a partner. Over the last nine of those years, he committed various acts of professional misconduct associated with the firm’s trust account. Of course the megafirm was not always a megafirm. The solicitor was for most of his career in one of the firms swallowed up into the megafirm. Justice Betty King, in the solicitor’s criminal prosecution said:

‘6. The [offences] are at the lowest end of the scale of offences of this nature. The total involved was just over $9,000 and it was not money that at any stage was ever to be for your own spending. The money was directed into meeting the targets set by your firm for your department. All firms have become hard-headed businesses, with targets and budgets and six minute units which, I add, is, in my view, driving young lawyers out of the profession at a very rapid rate. You, unfortunately, had commenced practice when it was a profession and unlike its current incarnation. It would, of course, have been preferable to have approached your other partners and indicated that it was not possible to meet the budget that had been set for you and suffered the consequences of not meeting that budget. Instead, you chose this course of conduct, the one of stealing money from those accounts. That has resulted in far worse consequences for you, your wife, your children and the community that you had previously served so well. Continue reading “Megafirm partner who stole to make budget gets his ticket back after long holiday”

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Once you’ve done your time, prior misconduct not an indicator of fitness to practise

In JLL v Law Institute of Victoria Limited [2008] VCAT 456, a Box Hill solicitor who had paid only $5,000 of the $55,000 odd he owed under orders of the Legal Profession Tribunal was given a practising certificate by VCAT, overturning a decision of the Law Institute not to give him one on the basis that he was not a fit and proper person. Judge Bowman said the Institute had been wrong to rely on past misconduct which had already been considered by the Legal Profession Tribunal, and in respect of which the solicitor should be deemed to have ‘done his time’, so long as he entered into a repayment plan. Continue reading “Once you’ve done your time, prior misconduct not an indicator of fitness to practise”

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Application by appellant to remove respondent’s trial counsel from appeal dismissed

In Chen v Chan [2008] 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”

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Stephen Keim SC, Dr Haneef’s barrister

A delegate of John Britton, Queensland’s Legal Services Commissioner, has declined to lay disciplinary charges against Dr Haneef’s lawyer, Stephen Keim QC, despite finding a clear breach of a rule of professional conduct, and that — to my astonishment — Mr Keim gave his client’s record of interview to The Australian without having sought Dr Haneef’s instructions. Continue reading “Stephen Keim SC, Dr Haneef’s barrister”

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The English profession

Update, 12 February 2008: Apparently there’s a lawyers’ phones bugging scandal over in England.  Sounds like a fairly substantial problem to me.  I’ll keep you posted, if I ever find the time.

Original post: Here’s a pithy little article in The Times about 3 English lawyers’ liability cases. Well worth the small effort to read it, though the promise ‘How to Avoid a Professional Negligence Claim’ is, with respect, overarching.

Legal Blog Watch has an article on the increasing power of American firms in the London market. 3,900 lawyers in London are working for US firms, they say.

Here’s The Guardian on the difficulties of eradicating the scourge of the white upper class privately educated former barrister from the judiciary over there. Deputy Premier Hulls should take a sabbatical, and a room at Australia House, and engage in some high powered consultancy.

The Times has an article about the new Chairman of the English Bar, Tim Dutton QC, a professional negligence specialist. The whole article is worth reading. He is thinking about to what extent to market direct access retainers between clients and barristers leaving out the middlemen solicitors on the basis that the junior bar represents the best value in the legal market, and to what extent to keep the main source of work, solicitors, content by preserving the status quo. He is thinking about the discussions about allowing barristers to form partnerships in England. He points out that though the top barristers are amongst the best paid in society, 30% of barristers’ under 3 years’ call earn less than £10,000 ($22,500) on publicly funded work. The article concludes with some key facts about the Bar, which numbers 15,000 barristers:

Continue reading “The English profession”

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ABC Radio National’s Law Report on ‘Lawyers Going AWOL’

Today’s Law Report is a panel discussion set up by its presenter, Damien Carrick, at a recent conference of legal regulators in Brisbane. There is a hypothetical about a sole practitioner who goes off the rails, and there’s discussion about the inexplicable controversy over Dr Haneef’s barrister Stephen Keim SC’s provision of his client’s transcript of interview to the media, and the varying responses of the Queensland Law Society and its Bar Association. There is talk too of Peter Faris. Dr Christine Parker, a Melbourne University academic and co-author with Professor Adrian Evans of Inside Lawyers’ Ethics (Cambridge University Press, 2007), makes the same observation I made on this blog:

‘it’s very strange to me that the Bar should be saying that they’re investigating something; surely they should be making a complaint to the Commissioner, because it’s the Commissioner in Victoria who is supposed to receive complaints and then decide who is going to investigate them, and for them to be saying that publicly seems very odd.’

Mind you, I’m not sure that the Bar is saying that. Seems to me everyone else is talking about an investigation by the Bar. And it’s not clear to me whether the Bar is still considering the issues now that Mr Faris is no longer a member.

Queensland’s rule 60 (and 61 for good measure):

‘Integrity of hearings

60. (a) A barrister must not publish or assist the publishing of material concerning a current proceeding except by supplying only:

(i) copies of pleadings or court documents in their current form, which have been filed and which have been served in accordance with the court’s requirements;

(ii) copies of affidavits or witness statements, which have been read, tendered or verified in open court, clearly marked so as to show any parts which have not been read, tendered or verified or which have been disallowed on objection;

(iii) copies of transcript of evidence given in open court, if permitted by copyright and clearly marked so as to show any corrections agreed by the other parties or directed by the court;

(iv) copies of exhibits admitted in open court and without restriction on access;

(v) answers to unsolicited questions concerning the current proceeding and the answers are limited to information as to the identity of the parties or of any witness already called, the nature of the issues in the case, the nature of the orders made or judgment given including any reasons given by the court and the client’s sintentions as to any further steps in the case;

(vi) copies of submissions used in open Court and available to the parties, provided that where the barrister is engaged in the current proceeding, the barrister does so only with the consent of the client first obtained.

(b) Subject to sub rule (a), a barrister must not publish or take any step towards the publication of any material concerning any current or potential proceeding which –

(i) is inaccurate;

(ii) discloses any confidential information;

(iii) appears to or does express the opinion of the barrister on the merits of the current or potential proceeding or on any issue arising in the proceeding, other than in the course of genuine educational or academic discussion on matters of law.

61. A barrister will not have breached Rule 60 simply by advising the client about whom there has been published a report relating to the case, and who has sought the barrister’s advice in
relation to that report, that the client may take appropriate steps to present the client’s own
position for publication. ‘

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Victorian Legal Services Commissioner’s 2006-2007 annual report

The Legal Services Commissioner’s annual report went online today. You can download the pdf by clicking here. The big news is that she’s put 2 new blokes on the staff, but the blokes to sheila ratio has actually decreased (to 1 in 20).

In the year to 30 June 2007, the Commissioner’s staff of 45 (including 6 part-timers) closed 2550 files. At the end of the disciplinary complaint process, the Commissioner has to decide whether the complaint is made out, unless it was summarily dismissed earlier. The test is whether VCAT would be reasonably likely to find a practitioner guilty of professional misconduct or unsatisfactory professional conduct. 5,089 enquiries gave rise to 1,487 disciplinary complaints, yielding a single instance where the Commissioner thought it was reasonably likely that VCAT would find the practitioner guilty of misconduct, and that was the matter reported in my previous post in which the barrister made a full confession from the outset of the investigation. The three other misconduct prosecutions were for failure to cooperate with the Commissioner’s investigations.

The 1,487 disciplinary complaints also yielded 64 instances where the Commissioner thought it was reasonably likely that VCAT would find the practitioner guilty of the lesser disciplinary offence of unsatisfactory conduct. She has a discretion whether to prosecute in these instances. She exercised that discretion in favour of laying charges just once, when some scamp attempted to charge for storage or retrieval of documents without a written agreement by the client. So 2 charges were laid as a result of the 5,089 enquiries. Additionally, 3 charges were laid because of non-cooperation with investigations. And 28 slaps over the wrist were privately inflicted in the form of reprimands and cautions. So: pity the professional discipline Bar, all hail to an unprecedentedly well behaved profession, and shame on the great unwashed for making all those hurtful allegations which went nowhere and cost the revenue $7 million. Continue reading “Victorian Legal Services Commissioner’s 2006-2007 annual report”