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Songs about trials: part 1

Part 1 in a new series: Songs About Trials (leave your favourites in the comments please).  First up, Bob Dylan’s ‘The Lonesome Death of Hattie Carroll‘ from ‘The Times They Are A-Changin’.  Seems Dylan is in fact a rich source of trial songs.

‘William Zanzinger killed poor Hattie Carroll
With a cane that he twirled around his diamond ring finger
At a Baltimore hotel society gath’rin’.
And the cops were called in and his weapon took from him
As they rode him in custody down to the station
And booked William Zanzinger for first-degree murder.
But you who philosophize disgrace and criticize all fears,
Take the rag away from your face.
Now ain’t the time for your tears. Continue reading “Songs about trials: part 1”

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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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Michael Brereton banned for 5 years and to pay $145,000 in costs

It’s all happening down at VCAT.  I reported on Michael Brereton’s disciplinary trial in absentia and the finding that the charges were made out here.  Now, Deputy President Dwyer has handed down his tribunal’s orders with reasons: Legal Services Commissioner v Brereton [2008] VCAT 273. Mr Brereton did not have a practising certificate at the time of the trial, not having applied for the renewal of his old one, so cancelling his practising certificate was not an option.  The only orders the Tribunal made were orders banning Mr Brereton from applying for a practising certificate for 5 years, and telling him not to even think about applying for trust money rights until mid-2018, when he will be 62. After 5 years, he can apply for a practising certificate, but the legal regulator will have to be satisfied that he is a fit and proper person to hold a practising certificate at that time. He was ordered to pay costs of $145,000.  Below, I comment on three aspects of the case: costs, the openness with which the analogy with criminal sentencing is embraced, and defects in the presentation of character evidence. Meanwhile, here’s an article from April on Operation Wickenby, an investigation into Mr Brereton amongst others, which I missed. Continue reading “Michael Brereton banned for 5 years and to pay $145,000 in costs”

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New writing about the law in Melbourne

A Melbourne lawyer has written a book about a landmark Melbourne case. Michelle Schwarz’s A Question of Power; The Geoff Clark Case has just been published by Morrie Schwarz’s Black Inc which also publishes The Monthly and Quarterly Essay. Judging by the ‘top articles this month’ panel, there is a huge thirst out there for knowledge about limitation periods. One of the Clark decisions is a landmark in that area of the law: Stingel v Clark [2006] HCA 37.

I bought the book yesterday and have started reading it. It’s promising. It features slabs of Robert Richter’s cross-examination. It is a book about a trial of a kind which I have not seen too many examples of in recent times. Schwarz is doing a Readings talk with ABC Radio National’s Damien Carrick of the Law Report tomorrow evening at the Hawthorn store. The blurb says: Continue reading “New writing about the law in Melbourne”

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That dang national model law on the legal profession

I have spared you the endless articles on the glacial progress towards national uniformity.  Quite a long time ago now, upon the release of the Sallman Report which gave rise eventually to the Legal Profession Bill, I had lunch with the Legal Ombudsman and she predicted that it would be some time yet before any new law would come into force.  And so it was — years. The Legal Profession Act, 2004‘s commencement was only just achieved in 2005.  But now the buzz about needing to do something about the harmonisation which got derailed has ramped up.  People are talking about rewriting the whole thing and using raw power to make the states pass the same laws.  People like the Attorney-General. Continue reading “That dang national model law on the legal profession”

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Issac’s holiday; plea bargaining in disciplinary charges examined

Issac’s style of legal letter writing is legendary. There are some quite extensive private collections out there. I recall one letter said to have been penned by the man himself which began ‘Dear Sir, you are a petulant lunatic,’ and after some substantive words continued ‘You are a very small cog in a very big wheel and it seems that it will long stay that way.’

I have long been a fan of his extremely colourful and yet less-is-more webpage, which has said, for as long as I can remember, in yellow and red text surrounded by blue fire ‘We at Issac [B] and Co make a firm commitment to a flexible, approach to law’.  Such heterodox ebullience can only be tolerated so long in the dark suited depressed salaryman world of the Melbourne legal fraternity, and the other day, the sombre might of the law came down on the iconoclast for what the humourless powers that be characterised as too much flexibility. Continue reading “Issac’s holiday; plea bargaining in disciplinary charges examined”

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All taxations after 9 May 2007 are conducted under the amended Legal Profession Act, 2004

On 25 July 2008, the Supreme Court’s newish Taxing Master Wood decided a question about the transitional effect of amendments to the provisions about lawyer-client taxations (now called ‘reviews’) under the Legal Profession Act, 2004.  The decision is Law Institute of Victoria v RK.  In relation to such taxations of costs, the Act was amended in important ways on 9 May 2007.  In this particular case, the facts were that the costs agreement predated the amendments, as did the doing of the work, but the giving of the bill and the application for taxation post-dated them.  Master Wood decided that the amended Act would govern all lawyer-client taxations held after the amendments took effect, including this one.  He expressed his distaste for the Law Institute’s opportunistic attempt to wriggle out of a costs agreement it had negotiated with a lawyer, describing its behaviour as ‘unjust’. Continue reading “All taxations after 9 May 2007 are conducted under the amended Legal Profession Act, 2004”

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Costs of insurance loss adjusters

A costs judge of the English High Court handed down a decision about the recoverability in insurance litigation of insurance loss adjusters’ fees.  An interesting article from CMS Cameron McKenna about the case is reproduced below. In an effort to find a link to an online version of the case, I found this webpage of Paramount Costs Consultants, with notes about English cases about costs. Here’s the article in full: Continue reading “Costs of insurance loss adjusters”

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Latest Family Court lawyer’s conflict case

Bracewell & Southall [2008] FamCA 687, a 13 August 2008 decision of Justice Bennett of the Family Court sitting in Melbourne is the latest on lawyers’ conflicts of duties in the context of family law — a whole relatively separate sphere of analysis of lawyers’ conflicts.  It seems to me that injunctions restraining lawyers from acting on the third ‘administration of justice’ limb are becoming more common.  This is an example of the trend.  Solicitors who acted for the Department of Human Services in a child protection application against a woman were restrained from subsequently acting for her husband in matrimonial proceedings involving issues in relation to a different child borne not to the husband but to another man. The conclusion read: Continue reading “Latest Family Court lawyer’s conflict case”

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Applications to set aside costs agreements

This post has been sitting around as a draft waiting to be finished.  There is little chance of that for a long time.  So here is my incomplete annotation to s. 103 of the Legal Practice Act, 1996.  That is the provision which gives VCAT (formerly the Legal Profession Tribunal) jurisdiction to set aside costs agreements on a statutory basis peculiar to that species of contracts.  All costs agreements in all matters in which first instructions were taken prior to 12 December 2005, regardless of when the costs agreements were entered into, may be argued to be governed by the old Act.  So there is some life left in the old s. 103 yet. Continue reading “Applications to set aside costs agreements”

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Nicholson v B&S — the first important Victorian decision about setting aside costs agreements

Nicholson v B&S [2000] VLPT 28 was the first decision to deal in detail with the principles which govern the extremely wide discretions granted by s. 103 of the old Legal Practice Act, 1996. Registrar Howell cancelled a costs agreement, and ordered that one of the bills the client challenged — the only one she had really jumped up and down about — be taxed by the Taxing Master of the Supreme Court.  Mr Howell did so in the following circumstances: Continue reading “Nicholson v B&S — the first important Victorian decision about setting aside costs agreements”

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Some law on the Commissioner’s powers to delegate

The nature of a delegation was described in B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 by counsel and repeated without disapproval by Justices of Appeal Charles and Batt:

‘a delegate acting is not an agent who exercises the [delegator’s] powers but rather, as the new repository of the powers, exercises his own powers as a delegate.’

The same judges explained the purpose of requiring delegations to be in writing:

‘In the circumstances the legislative purpose of permitting a delegation of the functions and powers to be exercised after completion of an investigation, but requiring such a delegation to be in writing, seems to us to be reasonably apparent.  We would accept the appellants’ submissions in this regard, that the requirement of a writing protects the interests of all parties concerned.’

Of course that must be so.  Those who seek to exercise invasive statutory powers, as trust account inspectors do, should carry around the original instruments of delegation with them in their briefcases.  That’s what used to happen in the old days. Continue reading “Some law on the Commissioner’s powers to delegate”

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Lawyers and the criminal law

Reproduced below is a blog post about ‘bill padding’ from the US site, Legal Blog Watch. That is where lawyers say work took them longer than it really did, and so charge commensurately more, or even make up the fact that they did work, and charge for it. Sometimes I read articles like this and wonder whether lawyers don’t think they live in a different world where, if they commit crimes, what will happen to them is that they will be dealt with by professional discipline. They think that, or course, because it’s more or less true, unless you get caught stealing from your trust account.  But the criminality of time sheet crime should not be allowed to be buried under anodyne euphemisms. ‘Bill padding’ sounds kind of cute, a necessary evil. It is a kind of newspeak. Time to do away with it. Let’s call it ‘rapacity fraud’.  It is tolerated by the profession in this sense.  There are generalised allegations of widespread bill padding.  Talk privately to costs consultants and they will tell you all about it.   But I have never heard of a firm which has even basic anti-fraud procedures to detect the practice.

My point kind of makes itself when the author says ‘allegations of bill padding … drew … strong criticism about the practice from legal ethics experts’.  Experts say fraud is bad?  Well shit Sherlock!  The 9th commandment does kind of feature relatively prominently in most systems of law.  We’re going to have the case one day when someone actually subpoenas a firm’s electronic billing system and its metadata, and diaries, analyses when the billing entries were made, and cross-examines lawyers on how they could have billed 180 units in a day and still made it to the client function at 6 p.m., or why, having billed relatively consistently every day, they would suddenly remember on the 30th of the month some comparatively vaguely described units they had forgotten to record mid-month, or why given that they had used a precedent for similar documents three times previously in the same month, they decided to draft the document from scratch, only to end up with — you guessed it — the same document as the precedent.  Now, that article: Continue reading “Lawyers and the criminal law”

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Shortest Supreme Court proceeding in history?

Yesterday, ‘after 5 p.m.’ as he put it in his letter of capitulation, a solicitor was served with originating process out of the Supreme Court of Victoria.  At 5.18 p.m., a letter agreeing to give the relief sought, without condition (including in relation to costs) was received. Tomorrow, the proceeding will be disposed of by consent, with costs. Anyone got a better story about swift justice?

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Hope springs eternal in the debtor’s breast

Professor Reinhardt educated me about litigation, twice, once at law school and then in my Masters.  He had a fondness for the ingenuity of debtors and used to say ‘Hope springs eternal in the debtor’s breast’, a corruption of an Alexander Pope poem, very often. (His second most favourite phrase was ‘sticks out like a dog’s proverbials’.) Anyway, this post, the subject matter of which is a debtor’s exquisitely technical argument about that most arcane of orders, order 63 of the Supreme Court Rules, is dedicated to Professor Reinhardt.  But for those who like to know the take-home message without savouring the nice arguments which produced it, it is this: however you got before the Taxing Master, his orders operate as a final judgment which may themselves be enforced, but before you go out executing on them, you have to get them authenticated: Scott v Evia Pty Ltd [2008] VSC 324, a decision of Justice Hansen. Continue reading “Hope springs eternal in the debtor’s breast”

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The right to silence in disciplinary and striking off hearings

I have previously posted about the QC who took his computer into work at the DPP only to lose his career when the tech found child pornography on it. It was a bizarre story, and of course there was a twist which has become clear from the disciplinary decision in Council of the NSW Bar Association v PJPP [2008] NSWCA 135: the QC thought he had the porn sequestered on a removable hard drive (the F drive), which he removed before taking it into work, but some had crept out into the rest of the computer. This post looks at the discussion of what inferences, if any, it was proper to draw from the QC’s exercise of the right to silence at the investigation stage, and from his failure to give evidence at his disciplinary hearing. Continue reading “The right to silence in disciplinary and striking off hearings”

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Latest word on burden of proof in professional discipline ‘prosecutions’

In this post, I just reproduce what Deputy President Dwyer said recently about the burden of proof, right to silence, and inferences which may be drawn from the fact of the exercise by a solicitor of the right to silence. He said it in the context of a hard-fought hearing into the conduct of Kylie’s one-time lawyer, Michael Brereton, reported on in the previous post. Interestingly, the Tribunal was not critical of the solicitor’s decision not to give evidence, but asserted that it was free to draw adverse inferences against the solicitor under the rule in Jones v Dunkel, and did so with gusto, drawing support from Woods v Legal Ombudsman [2004] VSCA 247, and Golem v Transport Accident Commission [No2] [2002] VCAT 736.)

What Mr Dwyer said was: Continue reading “Latest word on burden of proof in professional discipline ‘prosecutions’”