I had to review the penalties for rudeness by lawyers recently, and what I found is that the usual penalty is a reprimand, even for very rude recidivists. That is not surprising, since a reprimand is a serious professional sanction, not to be equated with a slap over the wrist: Peeke v Medical Board of Victoria  VicSC 7 at p. 6 (Marks J); Medical Practitioners Board of Victoria v Swieca  VCAT 419 at  (a tribunal of three presided over by Deputy President Dwyer). This principle has been reiterated in A Practitioner v The Medical Board of Western Australia  WASC 198 at , in LSC v Moore  VCAT 742 at  (Member Butcher) and in LSC v Long  VCAT 1164 at  (Deputy President Macnamara) and in LSC v Sapountzis  VCAT 1124 (Member Butcher). Most recently, see VLSC v VH at  et seq per Vice President Hampel  VCAT 1498. Continue reading “The tariff for rudeness: a reprimand”
I only learnt in the last few years that Melbourne is one of the world’s great Jewish cities, with a globally significant series of communities of orthodox adherents. One of those orthodox communities has delivered up an interesting case. In Victorian Legal Services Commissioner v AL  VCAT 439, VCAT’s Acting President recently found a well known Melbourne solicitor guilty of two counts of professional misconduct, constituted by breaches of each limb of r. 30.1.2 of the solicitors’ professional conduct rules.
The rule prohibited conduct calculated to, or likely to a material degree to be, prejudicial to the administration of justice, or to diminish public confidence in the administration of justice, or adversely to prejudice a practitioner’s ability to practise according to these rules.
The practitioner’s disciplinary offence was first to state privately to his client’s father his disappointment after an orthodox Jew sitting watching someone else’s case in court had gone out of his way from the well of the court to assist police in the middle of a bail hearing in a criminal prosecution of the practitioner’s client. His second offence was committed when the man, whom I will refer to as the complainant since he lodged the disciplinary complaint which led to the practitioner’s disciplinary prosecution, rang the practitioner and asked him about comments to similar effect which the man had heard the practitioner had made, taping the call. The practitioner expressed directly to the man similar sentiments, expressly invoking the Jewish principle of ‘mesirah’ by which Jews who cooperated with secular authorities against fellow Jews in times and places where Jews enjoyed imperfect protection were ostracized. Jewish authorities have repeatedly said that the principle has no operation in modern day Australia in relation to criminal matters.
The Age has reported, in an article prominently featuring the practitioner, that victims of Jewish abusers have been pressured not to cooperate with police. It reported the Legal Services Commissioner as saying that ‘there was a general principle that made it impermissible for a lawyer to tell a witness they could not inform police about a matter because of a religious or community rule.’ I do not mean to criticise the Commissioner in this regard, because The Age sought his comments prior to the Commissioner’s receipt of the complaint, and the Commissioner was presumably simply responding to a general question about lawyers’ obligations towards witnesses in their cases. But what VCAT’s decision demonstrates is that the practitioner’s comments occurred after the conduct in question which the practitioner believed to have involved false statements based on misinformation, and were directed to a person who was not a witness and who, as far as the practitioner was aware, was simply someone who stood up in the well of the court and interfered in his client’s case. Given that, as far as the practitioner is said to have known, the man who stood up in court had no further role to play in the case or in his client’s drama more generally, it is hard to see how the practitioner could be said to have intended to pressure the man as a victim of a Jewish abuser not to cooperate further with the police in the future in bringing the abusers to justice, as seems to have been the implication. Continue reading “VCAT finds practitioner guilty of conduct prejudicing administration of justice”
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  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”
The irresponsible advancement in litigation of allegations of fraud undoubtedly triggers the jurisdiction to award indemnity costs and even to make personal costs orders: White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169, approved on appeal at (1999) 87 FCR 134, discussed in this post.
But what about responsibly advanced, but ultimately unsuccessful, allegations of fraud? In a leading case, Woodward J said:
‘It is sometimes said that [special] costs can be awarded where charges of fraud have been made and not sustained; but in all the cases I have considered, there has been some further factor which has influenced the exercise of the court’s discretion: for example, the allegations of fraud have been made knowing them to be false, or they have been irrelevant to the issues between the parties’.
That statement has been followed subsequently and, in my view, very likely represents the law in Australia.
Nevertheless, it is possible to find statements made, apparently without consideration of Woodward J’s observation, in cases and commentaries which appear to say that the mere failure of a fraud allegation justifies departure from the usual rules of thumb in to costs. Professor Gino Dal Pont’s outstanding Law of Costs speaks of ‘the “rule” that a party alleging but failing to prove fraud is deprived of costs even if successful in the action generally’ without citing Australian authority, before suggesting that it is too broadly formulated.
Conduct rules often require lawyers in Australia to make allegations of criminality, fraud and other serious misconduct only after having warned their clients of the consequences of doing so and obtained specific instructions to go ahead and make the allegations (e.g. Victorian Bar Conduct Rules, r. 34). Quite what such an advice ought to contain is, I suspect, not immediately apparent to most lawyers. Conceivably, uncertainty about the content of this obligation, and fear about costs consequences even in the absence of misconduct on the part of those responsibly advancing fraud allegations, are matters which contribute to allegations of fraud being made so rarely. It would be helpful if the law in relation to the consequences of failing in a responsibly advanced serious allegation were clarified and more widely disseminated throughout the profession. Continue reading “The costs consequences of failing to prove a responsibly advanced allegation of fraud”
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;  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  NTSC 02), or are fantastically complicated (the case just referred to and Victorian Bar Inc v CEM QC  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).
Ireland v Trilby Misso  QSC 127 is a sorry tale which did not end well for the solicitors who were found to have repudiated their retainer by terminating without good cause, ordered to hand over their file to Mr Ireland’s new solicitors, ordered to pay costs, and referred to the Legal Services Commissioner. The decision is interesting because it looks at the consequences of terminating a no-win no-fee retainer and also considers the relevance to a civil dispute of the conduct rules governing ownership of files on a change of solicitor. Continue reading “Qld solicitors referred to Legal Services Commissioner for demanding outrageous sum as condition for handing over file on their wrongful termination of no-win no-fee retainer”
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.
Solicitors and barristers are obliged not to make allegations of criminality, fraud or other serious wrongdoing in ‘court documents’ without an adequate factual foundation. The rule for Victorian barristers is rule 34. This post explores what ‘court documents’ are, what ‘fraud’ means in this context, and what an adequate factual foundation is, in part by looking again at AM v Legal Practitioners Disciplinary Authority  NTSC 02, treated in the previous post, a decision of the Full Court of the Supreme Court of the Northern Territory. It also notes a bizarre anomaly between the rules which govern Victorian and other states’ solicitors and between the rules which govern Victorian solicitors and Victorian barristers in this regard. Continue reading “The obligation not to allege ‘fraud’ without an appropriate evidentiary foundation: what is ‘fraud’?”
In the 2007-08 financial year, the Legal Services Commissioner (aka the Bureau de Spank on this blog) received 2033 complaints (801 civil complaints, and 1584 disciplinary complaints). That’s one for every 7 of the 13,837 lawyers who worked in Victoria as at the end of March 2008. 17% of them were characterised as mixed civil and disciplinary complaints. One in 12 complaints was referred to the Law Institute for investigation. Comparatively few prosecutions were brought. In fact in only 1 in 25 complaints was the trigger for a prosecution arrived at, and a small fraction of those were or will be prosecuted. Only 32 reprimands or cautions were issued by the Commissioner. I take all this from the latest annual reports of the Commissioner (see my posts on the two previous annual reports here and here) and the Legal Service Board. It makes me realise that mine is a skewed perspective, and that solicitors hire barristers to represent them in the complaints which are more complicated, more serious, or more anxiety-provoking. Accordingly, much of what follows must be taken as advice in relation to the more serious end of the complaints spectrum.
Most of my clients want to avoid, above everything else, prosecution in VCAT. Fair enough too. All other outcomes remain hidden from public scrutiny. Successfully defending a prosecution is a hollow victory: the allegations against you still get published in the reasons on Austlii, and the prospect of a costs order in your favour is virtually nil: Clause 46D, Schedule 1, Victorian Civil & Administrative Tribunal Act 1998. It is the lawyers who do not do a good job of responding to the complaint who get prosecuted, rather than those who do the worst things. There is of course a limit to that proposition: do something bad enough (especially in relation to trust accounts) and you will be prosecuted, assuming that the Commissioner thinks she can prove it, regardless of how cooperative you are in the investigation. The Commissioner has recently published guidelines in relation to her prosecutorial discretion: here and here. Some of the factors she considers are:
- whether the practitioner acknowledges his or her error and/or has shown remorse;
- whether the practitioner made a mistake and is unlikely to repeat the conduct;
- whether the practitioner cooperated during the investigation;
- whether a guilty finding may entitle the complainant or others who may have been adversely affected to compensation.
Not doing a good job during the investigation phase manifests in two ways:
- failing to take legitimate and forensically useful technical points; and
- (where there are none) failing to realise that demonstrating a current understanding of the relevant law, admitting the error, expressing contrition, and taking the rap is always a better policy than being uncooperative.
In Walsh v PJCC&A Pty  VCAT 962, beneficiaries of an estate were critical of the testator’s lawyers before death. They became his executors after his death, and appointed the firm they worked for as their solicitors. The beneficiaries sued the firm, and its solicitor-executors for unconscionable conduct and misleading or deceptive conduct. Their beef was the level of fees charged by the firm in the context of the executors having left all of the work of the administration of the estate to the firm as their solicitors, and yet having scooped up the 3% executors commission provided for in the will. Judge Harbison summarily dismissed the whole case principally on the basis that when they engage in professional work, lawyers do not engage in trade or commerce, as required by both causes of action under the Fair Trading Act, 1999. The trade or commerce requirement was a jurisdictional issue, she said, for the applicants to establish at the outset of the case, not something for the respondents to establish the absence of. It was permissible, and quite possible, to determine the question by reference to the particulars of dispute so long as they were articulated sufficiently.
Interestingly, despite numerous strike out applications, a professional negligence claim against solicitors pleaded as a misleading and deceptive conduct case has survived in Western Australia, though it is not clear that anyone has taken the point that lawyers do not engage in trade or commerce in that case: Alpine Holdings Pty Ltd v Feinauer  WASCA 85.
Update, 21 December 2017: An English costs judge has made a decision about whether clients can demand, as of right, further copies of lawyers’ documents already received by the client (e.g. file copies of letters from lawyer to client). He said no, not even if they want them to work out whether to seek taxation of costs. The decision does not say, of course, that the Court would not order production in any case, but rather simply says that clients have no entitlement to them, even if they offer to pay for the copies. The case is Green v SGI Legal LLP  EWHC B27 (Costs). A note about it is here.
Original post: This post is like a case book(let) rather than a text. It sets out the raw materials which bear upon the question of who as between solicitor and client owns (in the sense of is entitled to the original of) what documents typically found in a solicitor’s file. It is very long, and largely unsummarised: a resource to go back to rather than something to trawl through now. It is the product of reading Wentworth v De Montfort (1988) 15 NSWLR 348 (the subject of this separate companion post), the leading case on the question in NSW, and the cases which have considered it since. One day, hopefully, I will do a shorter post summarising the principles.
The state of the law is a scandal. For a start, it is ridiculously uncertain. To the extent it is certain, it is ridiculously difficult to interpret. These deficiencies give rise to abuse. An appropriate law would be that every client ought to be entitled to inspect the whole of a solicitor’s file, and ought to be able to have the whole of the original. Even smart institutional clients do not stipulate for this when negotiating retainers. Presently, the law (or an interpretation of it which is universally tolerated in Victoria) allows solicitors to take bits out of the file and give the client only what remains, so as to leave them with an incomplete whole, a thing without internal integrity, nothing but one part of the jigsaw of the past, an aid rather than a map for the reconstruction of past events. It is little known that the lien will trump an obligation in the solicitor to discover the file to the client (though the solicitor must discover the file to others). In fact, the solicitor is obliged to give discovery but not to allow inspection: Hammerstone Pty Ltd v Lewis  2 Qd R 267, a case I have caused to be put into play successfully twice, once in the Magistrates’ Court and once in VCAT’s Legal Practice List.
Solicitors’ Professional Conduct and Practice Rules, 2005 (‘7. Ownership of Clients’ Documents – Termination of Engagement’) provides Continue reading “Ownership of documents on a solicitor’s file”
Update, 15 January 2008: Senior Member Howell decided costs and penalty on 17 December 2007:  VCAT 2465. The Commissioner sought an injunction to restrain the solicitor from repeating the conduct. Unnecessary, said Mr Howell, who refused to make any such order. Now that the solicitor has had the law clarified, as he was entitled to do, it is inconceivable that he will fall foul of it again. Similarly, Mr Howell declined to reprimand the solicitor. But he did slot him for costs agreed by the parties at $6,700.
Original post: On 12 October 2007, Senior Member Howell found a solicitor guilty of the lesser disciplinary offence of unsatisfactory professional conduct, in the case of Legal Services Commissioner v JR  VCAT 2180. The solicitor’s practice had charged $55 in response to a request by solicitors for an executor for the deceased’s will which was held by the solicitor. The Legal Services Commissioner prosecuted him for breach of rule 37 of the Victorian Solicitors’ Professional Conduct and Practice Rules 2003, which is reproduced below, and says you can only charge storage or retrieval fees by express agreement with a client. Costs and penalty remain to be determined in another hearing. Mr Howell said: Continue reading “Rule against charging for storing old client files”
Via Freivogel on Conflicts: The New York County Lawyers’ Association has published an ethics opinion on the propriety of hiring investigators to communicate with counterparties in ways which would be unethical for the lawyer hiring them. Prima facie improper with only very limited exceptions, they say. Unless what is contemplated is pre-litigation, it seems to me that an unaddressed question is the operation of what the Americans call “the rule against communicating with a represented opponent” (rule 4.2 in the quote below). On that topic, Freivogel cites this case:
Use of lying investigator with hidden recording device to interview adversary’s employees causes violation of Rules 4.2 and 8.4(c) and exclusion of evidence. Midwest Motor Sports d/b/a Elliott Power Sports, Inc. v. Arctic Cat Sales, Inc., 347 F.3d 693 (8th Cir. 2003). Continue reading “Contracting out the dirty work”
A newish conduct rule compels solicitors to report every dishonest act by another practitioner, and every act which is prejudicial to the administration of justice or which would diminish public confidence in its administration. This is not just my fancy; the Law Institute itself says that the rule requires dobbing in and is not only about self-reporting. Relevantly, rule 30 of the Professional Conduct and Practice Rules 2005 says (and this is not a quote): Continue reading “Dob-in rule lurks in Victorian solicitors’ practice rules”