Tuesday, May 8, 2012

It’s ok for solicitors to try to resolve complaints directly with the complainants


-----Original Message-----
From: Nicholas N Chin [mailto:nnchin09@tpg.com.au]
Sent: Tuesday, 8 May 2012 1:02 PM
To: 'lpcc@lpbwa.com'
Subject: It's ok for solicitors to try to resolve complaints directly with the complainants

The LPCC of Western Australia in relation to VR87 OF 2012 and in SAT’s decision in [2012] WASAT77. 

A copy of this has been sent to SAT at its website for its information and as a suggestion only from Nicholas N Chin:  

http://lawyerslawyer.net/2008/05/27/its-ok-for-solicitors-to-try-to-resolve-complaints-directly-with-the-complainants/

It’s ok for solicitors to try to resolve complaints directly with the complainants

May 27th, 2008 · Comments (0)

I have always been a bit chary about allowing lawyers for whom I act to communicate directly with complainants, thinking it often more desirable for communications to be principally with the Legal Services Commissioner once the complaint process was initiated. Turns out it was a rare moment of over-anxiety on my part. In Legal Services Commissioner v JFB [2008] VCAT 842, a prosecution for failing to cooperate with a demand by the Commissioner for a written explanation in response to a complaint, Member Butcher said:
’5. Since the application has been made the [solicitor] has provided some material to the Legal Services Commissioner and it is the view of the Commissioner that this does not constitute a full written explanation. By way of plea, Counsel on behalf of the [solicitor] outlined the circumstances in relation to the complaint and appraised the Tribunal of the [solicitor's] endeavours to resolve the complaint through the complainant rather than by communication with the Legal Services Commission. This is not an uncommon course of action, however it ignores the statutory requirement that members of the legal profession respond to the Commissioner when required to do so. It may well be that matters which are the subject of complaint can be resolved between the legal practitioner and the client or indeed other person who has made the complaint and it would never be said that this should not be attempted, however this does not take away from the requirement and the duty to respond to the Commissioner.’ (my emphasis)

27 comments:

  1. 1) Truth is sometimes stranger than fiction. Let not fiction blurs the truth.
    2) Look at the decision of the Honourable SAT Panel in VR87 of 2009 delivered in [2012)WASAT77 - To warrant the striking off the roll, the following questions must be answered:
    2.1. Where is the misappropriation of assets or moneys belonging to the clients?
    2.1. Where is the elements of wilful misconduct present in those nine counts of professional misconduct?

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    1. LOOK AT: http://decisions.justice.wa.gov.au/SAT/SATdcsn.nsf/PDFJudgments-WebVw/2012WASAT0077/$FILE/2012WASAT0077.pdf
      1. There is a finding that Mr Ni Kok Chin, between about
      July 2004 and March 2005, is guilty of professional
      misconduct contrary to the Legal Profession Act
      2008 (WA) by:
      (i) acting for his son and for the vendor in the
      purchase and sale of a business when the interests
      of all parties, including his own interests, would
      be in conflict and when he was a likely witness in
      relation to a dispute relating to that purchase and
      sale; and
      (ii) making a proposal to another practitioner that he
      avail himself of costs in relation to work that that
      practitioner did not perform, at the expense of the
      defendant in the case.

      Delete
    2. 2. There is a finding that Mr Ni Kok Chin, on or before
      January 2005, is guilty of professional misconduct
      contrary to the Legal Profession Act 2008 (WA) by
      failing to treat a professional colleague with the utmost
      fairness and courtesy and by making allegations of
      improper conduct against fellow practitioners without a
      reasonable or proper basis for doing so.

      Delete
    3. 3. There is a finding that Mr Ni Kok Chin, between
      May 2006 and August 2006, is guilty of professional
      misconduct contrary to the Legal Profession Act
      2008 (WA) by making allegations that another
      practitioner had resorted to underhand tactics in falsifying
      a court document and by accusing that practitioner of
      deliberately misleading an officer of the court.

      Delete
    4. 4. There is a finding that Mr Ni Kok Chin, between about
      July 2004 and August 2004, is guilty of professional
      misconduct contrary to the Legal Profession Act
      2008 (WA) by:
      (i) failing in a substantial way to reach or maintain a
      reasonable standard of competence and diligence
      in drafting a will and a trust deed on behalf of
      a client;
      (ii) inserting additional provisions into a costs
      agreement with his client without his client's
      consent;
      (iii) charging his client fees for work which were
      excessive;
      (iv) using intemperate and offensive language in a
      letter to his client; and
      (v) attempting to subvert the jurisdiction of the Legal
      Profession Complaints Committee.
      The Tribunal found that a further allegation of
      professional misconduct made against Mr Chin for failing
      to carry out his client's instructions in the preparation of a
      will and a trust deed was not made out.

      Delete
    5. 5. There is a finding that Mr Ni Kok Chin, on or about
      13 February 2006, is guilty of professional misconduct
      contrary to the Legal Profession Act 2008 (WA) by
      writing to a judicial officer seeking legal advice in
      relation to proceedings in which he was retained and in
      which the judicial officer concerned had delivered a
      judgment and, in any event, communicating directly with
      a judicial officer in relation to proceedings in which he
      was retained without first advising or notifying the
      solicitors for the other party.

      Delete
    6. 6. There is a finding that Mr Ni Kok Chin, in February 2005
      and thereafter, is guilty of unsatisfactory professional
      conduct contrary to the Legal Profession Act 2008 (WA)
      by seeking to receive remuneration from a client which
      varies in accordance with the amount that may be
      recovered, in addition to costs obtained from the
      opposing party

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    7. 7. There is a finding that Mr Ni Kok Chin is guilty of:
      (i) professional misconduct contrary to the
      Legal Profession Act 2008 (WA) by giving legal
      advice to and representing two parties, between
      14 March 2005 and 31 August 2005, in relation to
      criminal charges against each of them in
      circumstances where the interests of each accused
      were, or were potentially, in conflict; and
      (ii) unsatisfactory professional conduct contrary to the
      Legal Profession Act 2008 (WA) by providing to
      the Legal Profession Complaints Committee, on
      12 June 2006, an inaccurate and misleading
      response to the Committee in relation to this
      matter.

      Delete
    8. 8. There is a finding that Mr Ni Kok Chin, on or about
      19 April 2006, is guilty of professional misconduct
      contrary to the Legal Profession Act 2008 (WA) by
      making allegations of improper conduct against a
      third party, Mr Ross Merrick, without a reasonable or
      proper basis for doing so

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    9. 9. There is a finding that Mr Ni Kok Chin, between
      February 2005 and February 2006, is guilty of
      professional misconduct contrary to the Legal Profession
      Act 2008 (WA) by:
      (i) not maintaining a trust account within the
      meaning of s 137 of the Legal Practice Act
      2003 (WA) and failing to deposit trust monies to
      the credit of a trust account as required; and
      (ii) failing to render an account in respect of legal
      services and failing to provide notices in
      accordance with s 231 and s 232 of the
      Legal Practice Act 2003 (WA).

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  2. It was summarised in the biggest Victorian lawyers’ discipline case in recent years, Victorian Bar Inc v CEM QC [2006] VCAT 1417, and the relevant passage is a much easier way to work out what ‘reckless’ means in this context than a consideration of Zaitman’s Case which does not give up its essence easily. The whole passage is set out below, but the take home point is that:

    ‘in order to establish recklessness, it is necessary to show that [the lawyer] appreciated the risk that their conduct in a particular instance might possibly amount to a breach of the rule, and knowing that risk, proceeded, intending to take that risk. In circumstances where [the lawyer] holds a bona fide belief that their conduct does not amount to a contravention of the rule, it cannot be reckless for [him or her] to proceed.’
    See: http://lawyerslawyer.net/2011/08/13/what-exactly-is-a-reckless-contravention-of-a-conduct-rule/#more-2521

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    1. WILFUL MISCONDUCT OF A LAWYER IS A RECKLESS MISCONDUCT. THIS IS A MENS REA ELEMENT FOR WHICH THE PROSECUTION IN SAT VR 87 OF 2009 MUST PROVE BEYOND REASONABLE DOUBT AND NOT ON THE BALANCE OF PROBABILITY:
      Senior Member Howell decided ...in Legal Services Commissioner v RMB[2010] VCAT 51 that there is a mens rea element to professional discipline offences under the Legal Profession Act, 2004, in that there is a defence of ‘honest and reasonable mistake’. That fascinates me, since under the previous Act, misconduct and unsatisfactory conduct was often delineated by the presence or absence of knowledge that the conduct engaged in breached a norm of conduct. Conduct in ignorance of its wrongfulness was punishable as unsatisfactory conduct. Now, though, there is no knowledge element built into the definitions of the 2004 Act, and there seems to be no particular reason why the concept of honest and reasonable mistake which has been imported from the criminal law, might not apply equally to cases of professional misconduct and unsatisfactory professional conduct. The facts were that solicitor interviewed a witness in the presence of her client and others. The witness complained before trial to the Legal Services Commissioner:
      “I’m writing to inform you about a meeting I went to with Mr Aldo Decorrado, [the solicitor], and Mr. Lagana where in the room and I was on my own, when I went to this meeting I felt I was trapped, intimidated and was very frightened as they wanted me to sign documentation which I didn’t want to sign, I felt that I was forced to sign these documentation they asking me questions in which I did not know what they were talking about and I just kept saying that I didn’t remember and they were putting words in my mouth and every time I did speak I was told rudely to be quiet by [the solicitor].
      WHERE IS THAT ELEMENT OF MENS REA FOR PROFESSIONAL MISCONDUCT IN THE CASE OF VR87 OF 2009 AS CONTAINED IN THE JUDGEMENT OF THE HONOURABLE SAT PANEL DELIVERED 24.4.2012 IN [2012]WASAT77.

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  3. If a solicitor, having addressed the possibility of a contravention decides bona fide (albeit on what turns out to have been a mistaken view of the facts) that which he is doing or is about to do does not amount to a contravention, then such contravention as follows cannot in the circumstances be said to be ‘wilful’ – but nor can it be called reckless, on the basis of the foregoing.
    See: http://lawyerslawyer.net/2011/08/13/what-exactly-is-a-reckless-contravention-of-a-conduct-rule/#more-2521

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    1. A LAWYER AS A TRUSTEE SHOULD NOT HAVE A CLAUSE IN THE TRUST DEED WHICH EXEMPTS HIM FROM FRAUD OR ACTING DISHONESTLY OR BY WILFUL MISCONDUCT:
      As Bramwell LJ put it in Lewis v Great Western Railway (1877) 3 QBD 195, at p 206:
      “Wilful misconduct’ means misconduct to which the will is a
      party, something opposed to accident or negligence; the
      misconduct, not the conduct, must be wilful.”
      Millett LJ summarised his view .....which excluded liability for anything other than fraud: 24 “exempts the trustee from liability for loss or damage to the trust property no matter how indolent, imprudent, lacking in diligence,negligent or wilful he may have been, so long as he has not acted dishonestly.”

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  4. 135 In our view in order to establish recklessness it must be proved that a counsel appreciated a risk that his or her conduct in a particular instance might possibly amount to a breach of a rule yet proceeded with the conduct. That mental element to be proved by the Bar is an essential element of recklessness.’

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    1. THE LPCC IN VR 87 OF 2009 BEFORE THE HONOURABLE SAT PANEL ON 11th, 12th and 13th October, 2011 DID NOT PROVE THE MENTAL ELEMENT IN THE "SUPPOSED MISCONDUCT" OF THE PRACTITIONER MR. CHIN. THE LPCC DID NOT SHOW THAT MR. CHIN DID APPRECIATE A RISK THAT HIS CONDUCT IN ALL THE NINE PARTICULAR INSTANCES MIGHT POSSIBLE AMOUNT TO A BREACH OF A RULE AND YET PROCEEDED WITH THE CONDUCT. THIS MENTAL ELEMENT IS AN ESSENTIAL ELEMENT OF RECKLESSNESS. THERE IS NO BREACH OF THE RULE WHEN THERE IS NO LIABILITY FOR LOSS OR DAMAGE TO THE TRUST PROPERTY NO MATTER HOW INDOLENT, IMPRUDENT, LACKING IN DILIGENCE, NEGLIGENT, OR WILFUL HE MAY HAVE BEEN SO LONG AS MR. CHIN HAD NOT ACTED DISHONESTLY.

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  5. ‘Would fraud be dishonesty employed for a financial or material gain? I think of fraud as a subset within dishonesty.’
    The sort of conduct that amounts to unsatisfactory professional conduct is where the lawyer has failed to meet professional standards. Professional misconduct, on the other hand, is behaviour involving fraud, dishonesty, breach of trust or conflict of interest. The aim of an investigation is to see whether it can be proved that such conduct took place.’
    See: http://lawyerslawyer.net/2011/07/26/legal-services-commissioners-website-explains-difference-between-professional-misconduct-and-unsatisfactory-professional-conduct/#more-2506

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  6. Romer J held that an act or omission to do an act on the part of a director was wilful where the person who acts or omits to act, knows what he is doing and intends to do what he is doing, but if that act or omission amounts to a breach of that person’s duty, and therefore to negligence, he is not guilty of wilful neglect or default unless he knows that he is committing , and intends to commit, a breach of his duty, or is recklessly careless in the sense of not caring whether his act or omission is or is not a breach of his duty. See: Spread Trustee Company Limited (Appellant) v Sarah Ann Hutcheson & Others (Respondent)[2011] UKPC 13 Privy Council Appeal No 0007 of 2010 at http://www.jcpc.gov.uk/decided-cases/docs/JCPC_2010_0007_Judgment.pdf

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    1. PROFESSIONAL MISCONDUCT AS PROVIDED BY S. 408 OF THE LEGAL PROFESSION ACT 2008 (WA) HAS TWO ELEMENTS:
      1) CONSISTENT FAILURE TO REACH THE STANDARD AND
      2) NOT A FIT AND PROPER PERSON TO BE A LAWYER.
      3) FIT AND PROPER PERSON IS TO BE REFERENCED TO SUITABILITY MATTERS FOR THE PURPOSE OF ADMISSION AS A BARRISTER AND SOLICITOR.
      S. 403.Professional misconduct
      (1)For the purposes of this Act —
      professional misconduct includes —
      (a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
      (b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
      (2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

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    2. HOW A LAWYER CAN BE GUILTY OF UNSATISFACTORY OR PROFESSIONAL MISCONDUCT:
      404 .Conduct capable of constituting unsatisfactory professional conduct or professional misconduct
      Without limiting section 402 or 403, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct —
      (a) conduct consisting of a contravention of this Act or a previous Act;
      (b)charging of excessive legal costs in connection with the practice of law;
      (c) conduct in respect of which there is a conviction for (i)a serious offence; or
      (ii)a tax offence; or
      (iii) an offence involving dishonesty;
      (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration;
      (e)conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act;
      (f) conduct of an Australian legal practitioner consisting of a failure to comply with an order of the Complaints Committee, or the State Administrative Tribunal or Supreme Court exercising jurisdiction under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act, a previous Act or a corresponding law);
      (g) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.

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    3. THE COMMON LAW WITH REGARD TO THE FINDINGS OF PROFESSIONAL MISCONDUCT AND UNSATISFACTORY MUST BE READ INTO THE DEFINITION OF DISCIPLINARY ACTIONS TO BE TAKEN AGAINST A LEGAL PRACTITIONER AS PROVIDED BY THE LEGAL PROFESSION ACT, 2008 (WA)DEFINED IN:
      451.Definitions
      In this Division —
      disciplinary action means —
      a) the making of an order by a court or tribunal for or following a finding of unsatisfactory professional conduct or professional misconduct by an Australian legal practitioner under this Act or a corresponding law; or
      b) any one of the following actions taken under this Act or under a corresponding law, following a finding by a court or tribunal of professional misconduct by an Australian legal practitioner —
      i) removal of the name of the practitioner from an Australian roll;
      ii)the suspension or cancellation of the Australian practising certificate of the practitioner;
      iii)the refusal to grant or renew an Australian practising certificate to the practitioner;
      iv) the appointment of a receiver of all or any of the practitioner’s property or the appointment of a manager of the practitioner’s practice;
      Register means the Register of Disciplinary Action referred to in section 452.

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    4. THE JURISDICTION OF SAT IN LEGAL PROFESSION ACT 2008 - SECT 438:
      438.Jurisdiction of State Administrative Tribunal
      1)The State Administrative Tribunal has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct .
      2)If, after it has completed a hearing in relation to a referral under this Part in respect of an Australian legal practitioner, the State Administrative Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct , the Tribunal may —
      a)make and transmit a report on the finding to the Supreme Court (full bench); or
      b)make any one or more of the orders specified in section 439, 440 and 441.
      3)If the State Administrative Tribunal transmits a report in respect of a legal practitioner to the Supreme Court (full bench) under subsection (2)(a), the Tribunal may, pending the determination of the Supreme Court (full bench), make the following orders —
      a) an order that the Australian legal practitioner’s local practising certificate be suspended for a specified period;
      b) an order that specified conditions be imposed on an Australian legal practitioner’s local practising certificate restricting the entitlement of an Australian legal practitioner to practise for a specified period.
      4)Where appropriate, a report forwarded under subsection (2)(a) may include either or both of the following —
      a)a record of the evidence taken at the hearing;
      b)a recommendation that the name of the practitioner be removed from the local roll.

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  7. A lawyer is a trustee for his client and you cannot have a clause to commit fraud or gross negligence on his own client designed for the purpose of protecting that lawyer:
    "But it is settled in the law of Scotland that such a clause is ineffectual to protect a trustee against the consequences of culpa lata, or gross negligence on his part, or of any conduct which is inconsistent with bona fides. I think it is equally clear that the clause will afford no protection to trustees, who from motives however laudable in themselves, act in plain violation of the duty which they owe to the individuals beneficially entitled to the funds which they administer”.

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    1. n law, misappropriation is the intentional, illegal use of the property or funds of another person for one's own use or other unauthorized purpose, particularly by a public official, a trustee of a trust, an executor or administrator of a dead person's estate or by any person with a responsibility to care for and protect another's assets (a fiduciary duty). It is a felony, a crime punishable by a prison sentence.
      Misappropriation does not occur in instances where the capital was obtained for a service rendered.
      In scientific research, misappropriation is a type of research misconduct. An investigator, scholar or reviewer can obtain novel ideas during the process of the exchange of ideas amongst colleagues and peers. However, improper use of such information could constitute fraud. This can include plagiarism of work or to make use of any information in breach of any duty of confidentiality associated with the review of manuscripts or grant applications.See:http://en.wikipedia.org/wiki/Misappropriation

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  8. A LAWYER IS A TRUSTEE FOR HIS CLIENTS. HE IS NOT PROTECTED FROM ACTING IN GROSS NEGLIGENCE AGAINST HIS CLIENT BUT HE HAS HIS IRREDUCIBLE CORE OBLIGATIONS OF A TRUSTEE BEING LIMITED TO ACTING HONESTLY AND IN GOOD FAITH FOR HIS CLIENTS AND TO ACT RECKLESSLY AGAINST HIS CLIENT'S INTERESTS FOR THAT WOULD CONSTITUTE WILFUL MISCONDUCT:
    T60. It was submitted on behalf of the respondent that Millett LJ was wrong in Armitage v Nurse (at p 253H) to identify the irreducible core obligations of a trustee as being limited to acting honestly and in good faith and as not extending to acting without gross negligence. ....However, he took the view that it was not necessary to consider the argument disputing the ability of a trustee exemption clause to exclude liability for equitable fraud or unconscionable behaviour on the facts of Armitage v Nurse because no such conduct was pleaded. In putting that question to one side Millett LJ was drawing a clear distinction between the fiduciary duties owed by the trustee on the one hand and the duty of care owed by the trustee on the other. Millett LJ added at pp 253H to 254A that, in any event, if such conduct had been alleged, the clause excluding liability for gross negligence would not be effective to relieve the trustee from liability because in such situations the trustee “would be acting recklessly in the proper sense of the term”. Such subjective recklessness would amount to wilful misconduct.

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  9. Sir Thomas Bingham, Master of the Rolls in Bolton v The Law Society [1994] 1 WLR 512 at page. 518 states:
    "Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation."

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    1. The character and scope of the investigation to be made on a prayer for disbarment, before sanction is given to it, must depend upon the character of the acts of misconduct charged, the place of their commission, and the nature of the proof relied upon to establish them: Selling v. Radford, 243 U.S. 46 (1917) at http://supreme.justia.com/cases/federal/us/243/46/

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