-----Original Message-----
From: Nicholas N Chin [mailto:nnchin09@tpg.com.au]
Sent:Monday, 14
May 2012 6:39
PM
To: 'lpcc@lpbwa.com '
Subject: COMMENTS OF NICHOLAS N CHIN ONSAT
DECISION IN VR87 OF 2009 DELIVERED ON 24.4.2012 IN [2012]WASAT77
From: Nicholas N Chin [mailto:nnchin09@tpg.com.au]
Sent:
To: '
Subject: COMMENTS OF NICHOLAS N CHIN ON
Nicholas N Chin
387, Alexander Drive
DIANELLA WA 6059
Phone: 08 92757440
Email: nnchin1@gmail.com;
The Chief Executive Officer of SAT
For the attention of:
the Honourable Members of the SAT Panel which decided the
decision in [2012]WASAT77 dated 24.4.2012 found at: http://decisions.justice.wa.gov.au/SAT/SATdcsn.nsf/PDFJudgments-WebVw/2012WASAT0077/$FILE/2012WASAT0077.pdf
State Administrative Tribunal
Fourth Floor
12 St Georges TerracePerth
Fourth Floor
12 St Georges Terrace
Fax: (08) 9325 5099
The Legal Profession Complaints Committee
2nd Floor Colonial Building St George's
PERTH
Dear Sir
Re: VR87 OF 2009: LPCC V CHIN
I am apprehensive of the fact that the LPCC and the SAT
Panel may be on the wrong tracks again…. I am writing these 27 comments
AS APPENDED BELOW, pending the issue of the written submission by the LPCC
within 21 days after the date of the above judgment, which expires on the 15th
day of May, 2012. At the expiration of another 21 days after the date of
the LPCC submission, it is my turn then to make a written submission that is
limited to the Penalty Issue only. By then, it would be too late for me
to express my views that I am not guilty of any professional misconduct but
only unsatisfactory conduct, absent any wilful misconduct or misappropriation
of funds or dishonesty on my part which impinges on the issue of fitness to
practice and the removal from the roll. I am just in time to seek the
Honourable Members to review their Jurisdictional Errors implicit in those
Comments. I ask for forgiveness to interfere in the due process as my
only purpose is to avoid any prolongation of these proceedings and I do wish to
have this unending dispute settled as soon as possible in terms of the public
good to be achieved.
Yours faithfully
NICHOLAS N CHIN
27 COMMENTS TO ARTICLE BY BARRISTER STEPHEN WARNE FOUND AT http://wwwnicholasnchin.blogspot.com.au/2012/05/its-ok-for-solicitors-to-try-to-resolve.html?showComment=1336910733700
THAT IT IS OKAY FOR NICHOLAS N CHIN TO ENTER INTO AN ARRANGEMENT TO SETTLE THE
COMPLAINT WITH MRS. A. NALINI MATTHIAS AS THIS WOULD NOT BE SUBVERTING THE JURISDICITON
OF THE LPCC at: http://lawyerslawyer.net/2008/05/27/its-ok-for-solicitors-to-try-to-resolve-complaints-directly-with-the-complainants/
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 are the elements of wilful misconduct present in those nine counts of professional misconduct?
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 are the elements of wilful misconduct present in those nine counts of professional misconduct?
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.
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.
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.
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.
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.
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.
(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.
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.
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.
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
opposing party
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.
(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.
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
making allegations of improper conduct against a third party, Mr Ross Merrick, without a reasonable or proper basis for doing so
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).
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).
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
‘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
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.
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.
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
See: http://lawyerslawyer.net/2011/08/13/what-exactly-is-a-reckless-contravention-of-a-conduct-rule/#more-2521
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.”
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.”
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.’
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.
‘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
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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”.
"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”.
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
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
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.
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.
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."
"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."
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/
Gandhi's words of wisdom: "The seven deadly sins are wealth without work, pleasure without conscience, knowledge without character, business without morality, science without humanity, worship without sacrifice and politics without principle."
ReplyDeleteTo give an example, on the present learning of the High Court (the judges of which may also, from time to time, be found in the same Law Courts elevators), a decision made in breach of the rules of procedural fairness is no decision at all. It does not contravene its authorising statute – it has simply never happened. On the other hand, where a decision maker commits that rare creature – the non-jurisdictional error of law – questions of unlawfulness do arise but they generally have no consequences. If the decision is not invalid, and leaving to one side for now the difficulty for the prevailing theory constituted by the fact that certiorari may be granted for non-jurisdictional error of law patent of the face of the record, a court has no jurisdiction to set it aside even if it is otherwise unlawful. Under the current vision, therefore, the lawfulness of administrative action is a redundant inquiry – it either does not matter because the decision is invalid and cannot be unlawful because it does not exist or the decision is valid in which cases its lawfulness is irrelevant to any power the Court has.
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