In England, the stern sounding Bar Standards Board brought disciplinary proceedings against a black barrister, Portia O’Connor, the first barrister to become a partner in one of the very modern alternative business structures they allow in old Blighty these days. They succeeded but the decision was overturned on appeal and the appellate tribunal was not complimentary about the procedures of the Board. So the barrister sued the Board for discrimination. The regulator relied on limitation defences. The Supreme Court has just decided that the defences were misconceived: O’Connor v Bar Standards Board  UKSC 78. Should be an interesting case.
Meanwhile, in Kaczmarski v Victorian Legal Services Board  VSC 690 the Board, represented by an external firm of solicitors and experienced counsel, tried unsuccessfully to shut an unrepresented shareholder of an incorporated legal practice out of an appeal against the reappointment of an external manager to the practice. It did so by arguing for an extraordinarily strict and as it turned out quite wrong approach to what it said was an un-extendable 7 day time limit for appealing.
I must say I’m puzzled what all the fuss was about, in view of s. 155 of the Legal Profession Uniform Law Application Act 2014. That section makes clear that nothing in the LPUL limits or restricts the Supreme Court’s administrative law jurisdiction, so that the reappointment of the external manager might have been challenged by judicial review, for which order 56 of the Supreme Court’s rules provides a 60 day extendable time limit, or under the Administrative Law Act 1978 which provides a 30 day time limit. But neither side seems to have made argument by reference to it. The bases on which the decision might have been challenged, and the relief available might well have been different between the three avenues of challenge, of course. Continue reading “Supreme Courts tell legal regulators their limitation defences are bollocks”
In Dennis v Council of the Law Society of New South Wales  NSWSC 1487, the Law Society suspended a sole practitioner’s practising certificate with immediate effect and appointed a manager to his practice. He had not responded to commands by a trust investigator to produce documents and answer questions in relation to a disciplinary complaint. The Society said that he had failed to do so wilfully and without reasonable excuse, and this, it said, made it necessary to abolish the man’s livelihood.
Hoeben CJ at CL found that the commands were invalid in law, and there had been no failure at all to comply with them. But even if the Society’s interpretation of the provisions of the Legal Profession Act 2004 (NSW) in question had been correct so that there had been a failure to comply with them, his Honour said, this would still not have been an appropriate occasion on which to exercise the ’emergency powers’ which the Law Society exercised. It simply was not ‘necessary’ for the protection of the public to shut down a sole practice like that. Especially since, prima facie, the appropriate place for the complainant to raise the practitioner’s conduct was in the proceedings in the Supreme Court of Victoria which were the backdrop to the conduct complained of and which were pending at the time of the complaint. And more especially still where the practitioner had cited the commercial sensitivity to that litigation of confidential information sought by the Law Society and had suggested that the investigation be paused pending the imminent completion of those proceedings.
Given that the complaint in which the practitioner was said wilfully to have failed to obey the stipes’ commands was the complaint of a non-client, I will be interested to learn what it is about NSW law which means that the solicitor could be obliged to deliver up privileged information even if the commander had the power to issue the commands. The Victorian Bureau de Spank has no such powers: B v Auckland District Law Society  UKPC 38, a decision of the Privy Council and Legal Services Commissioner v Shulsinger  VCAT 965. Continue reading “New South Wales Law Society misconceivedly suspends sole practitioner’s PC peremptorily”