What does ‘pro bono’ mean? Are ‘semi-pro bono’ costs agreements legally efficacious?

The Australian Professional Liability Blog Inbox x The Australian Professional Liability Blog via google.com 30 Apr (1 day ago) to me The Australian Professional Liability Blog What does ‘pro bono’ mean? Are ‘semi-pro bono’ costs agreements legally efficacious? Posted: 29 Apr 2014 01:10 AM PDT Hidden away in Trkulja v Efron [2014] VSCA 76, at footnote 49, is a little dictum of the Chief Justice and Justice of Appeal Santamaria which explains their Honours’ understanding of the term ‘pro bono’: ‘In current legal practice, the expression ‘pro bono basis’ is understood to refer to the basis where a practitioner offers his or her services on a voluntary basis without any entitlement to or expectation of remuneration.’ Practitioners should, it seems to me, think carefully before describing themselves as acting ‘pro bono’ when their retainers provide for them to be paid out of the proceeds of a costs order made in favour of their client in litigation to be paid by their client’s opponent in the litigation. There has been uncertainty in relation to the efficacy of a retainer which says ‘I will charge you $300 per hour but will seek to recover it from you only if you obtain an order that the other party pay your costs, and then I will only seek to recover my fees to the extent of the other side’s liability under the costs order’ or any variation of that concept. The issue was that the indemnity principle requires total party-party costs to be no more than the liability of the person seeking the costs order to their own lawyers for costs. If the liability depends on the making of a costs order, until the order is made, the liability is nil, so that the indemnity principle precludes the making of the order in the first place (so the argument goes). The latest important decision to endorse this reasoning, albeit in dicta, was King v King [2012] QCA 81. Now if there is a principle which is properly described as ‘flexible’, it is the indemnity principle in costs law and it is a matter of surprise to me that the uncertainty has persisted so long given the obvious desirability from the perspective of access to justice to sanctioning such arrangements. Happily, the Supreme Court of Queensland recently gave a decision this year which decided as a matter of ratio that an otherwise orthodox hourly rates costs agreement which included the following special condition was efficacious and did not offend against the indemnity principle: ‘No fees will be payable by you unless an order is made by the Supreme Court of Queensland in your favour for the payment of costs and those costs are recovered by us from other parties and any fees charged shall be limited to the amount of costs so recovered.’ The decision is LM Investment Management Limited (Administrators Appointed) v The Members of the LM Managed Performance Fund [2014] QSC 54. It distinguishes King v King. These ‘semi-pro bono’ costs agreements may be ‘conditional costs agreements’, in respect of which the Legal Profession Act 2004 (Vic.) provides additional formal requirements for validity of which commercial lawyers engaged in this kind of pro bono activity ought be wary. It is not clear to me whether the exception to the costs disclosure obligations whenever ‘the client will not be required to pay the legal costs or they will not otherwise be recovered by the law practice’ (s. 3.4.12(1)(d)) would apply in that circumstance. On one analysis, the entitlement to party-party costs is the client’s, not the solicitor’s. The party-party costs are ‘paid’ to the solicitor by the client in satisfaction of the client’s liability for fees even if the client’s opponent in the litigation pays the fees to the solicitor and the solicitor then appropriates them from trust in satisfaction of his or her bill. Prudence suggests — as the text writers love to say — that disclosure be given to clients who retain solicitors on what I call the ‘semi-pro-bono basis’. Another label for this concept might be ‘no costs recovery-no fee’ retainers. Reviews of decisions of the Costs Court’s Judicial Registrar Posted: 28 Apr 2014 06:05 PM PDT The Costs Judge recently clarified the procedure for seeking review of a decision of a Judicial Registrar on a preliminary point of law in a taxation of costs in the Costs Court. Essentially, his Honour said, the procedure in r. 63.56.2, mutatis mutandis, will generally be appropriate, including the 14 day time limit referred to in it. In relation to this kind of decision of a Judicial Registrar, the review goes straight to the Costs Judge, unlike in the case of rulings upon items in a bill of costs during the taxation proper, where there is a bizarre requirement for the Judicial Registrar to reconsider her own decision before it may be appealed to the Costs Judge. Much of the decision making in relation to preliminary legal points in taxations other than party-party taxations is done in Victoria by the Costs Judge (Associate Justice Wood) and by the Judicial Registrar (Gourlay JR). Section 17HA of the Supreme Court Act 1986 provides: ‘Subject to the [Supreme Court's Civil Procedure] Rules, a party who objects to a determination made by a judicial registrar in accordance with this Division … may apply to the Costs Court constituted by a Costs Judge for a review of that determination.’ There are in the Rules no rules associated with such an appeal. There are only rules associated with another species of appeal, namely where in the taxation proper, the Judicial Registrar makes a ruling in relation to an item in a bill of costs: r. 63.56.2. So the Court must devise its own procedure: r. 1.15(1)(b); s. 17D(4) of the Supreme Court Act 1986. The Costs Judge recently found that a decision of the Judicial Registrar of the kind described by s. 17HA and not described by r. 63.56.2: ‘can be reviewed if written reasons have been given by the judicial registrar (63.56.4.(2))’. His Honour continued: ‘the application shall be made by notice (63.56.4(3)) and the notice should state specifically and concisely the grounds of objection to the order and the order sought in its place (63.56.4(4)(b)). The time limit of 14 days to file and serve the application should apply and the time runs from the making of the order or provision of the reasons, whichever is the later (63.56.4(5)). On review, unless the Costs Judge orders otherwise, further evidence cannot be received and no new ground of objection not stated in the notice can be received (63.56.4(6)). On review, the Costs Judge may exercise all the powers and discretions of the Costs Court and can set aside confirm or vary the judicial registrar’s decision and make such further orders as may be necessary (63.56.4(7)).’

VCAT rolled for finding solicitor guilty of a charge not levelled against him

The Australian Professional Liability Blog Inbox x The Australian Professional Liability Blog via google.com 05:03 (6 hours ago) to me The Australian Professional Liability Blog VCAT rolled for finding solicitor guilty of a charge not levelled against him Posted: 29 Apr 2014 09:57 PM PDT 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 [2014] 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.The solicitor referred two clients to money lenders and they borrowed money from them. The loans were unsecured and were made in the expectation that they would be repaid from settlement monies to be received by the clients from Workcover settlements. The solicitor signed a document which said: ‘We … hereby acknowledge the irrevocable authority dated Tuesday, July 15, 2008, and signed by [name of client] our client and will account to you for the monies being $8500.00. Total amount owing is for Loan Number 261 for $4250.00 and Loan Number 273 for a further $4250.00. Payment will be made by 30th September 2008 via cheque.’ The settlement did not go ahead and neither the clients nor the solicitor repaid the loans. The Commissioner charged him with professional misconduct of the kind described in s. 4.4.3(1)(a) (‘unsatisfactory professional conduct … where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’). The charge was that the solicitor engaged in misconduct when he: ‘gave an undertaking to JP CreditLine by letter dated 15 July 2008 regarding the repayment of monies loaned by JP CreditLine to his client, compliance with which required the action of a third party (WorkCover) where this third party was not a party to the undertaking and whose action the Respondent could not guarantee.’ VCAT found the solicitor guilty of professional misconduct by failing to honour his undertaking in breach of conduct rule 27.1 which says: ‘The practitioner who, in the course of providing legal services to a client, and for the purposes of the client’s matter communicates with a third party orally, or in writing, in terms which, expressly, or by necessary implication, constitute an undertaking on the part of the practitioner to ensure the performance of some action or obligation, must honour the undertaking given strictly in accordance with its terms, and within the time promised (if any) or within a reasonable time.’ I observe that misconduct of that kind might more naturally be charged as misconduct in the sense specified in s. 4.4.4(a) (‘conduct consisting of a contravention of this Act, the regulations or the legal profession rules’). Her Honour found by reference to Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 that VCAT’s decision was characterised by jurisdictional error such that it exceeded its powers and that the error vitiated the decision and invalidated it. By reference to XYZ v State Trustees [2006] VSC 444; (2006) 25 VAR 402 her Honour found that the course urged on her by the Commissioner was inappropriate: ’25 The Commissioner concedes that the Tribunal’s order should not have been ‘worded’ inconsistently with the charges that were brought. However, he submits that the signing of the Responses can be ‘equated in seriousness’ with a breach of undertaking and that the Court should simply vary the Tribunal’s order ‘so as to be consistent with the charges that are found proven’. 26 This, as I understand it, would involve the Court varying the Tribunal’s order so that the applicant is found guilty of charges of professional misconduct by reason of having given undertakings that should not have been given, rather than by reason of failing to honour the undertakings. 27 I reject the Commissioner’s submission and the proposed ‘fix’. The Tribunal’s error cannot be remedied by the Court varying the Tribunal’s order under s 148(7)(a) of the VCAT Act to reflect a finding of guilt that the Tribunal did not in fact make. Such a variation of the Tribunal’s order is not permissible having regard to the way in which the Tribunal approached its task. Nor, in my view, should the Court exercise its power under s 148(7)(b) to make an order that the Tribunal could have made in the proceeding and find the applicant guilty of the charges on the basis of the factual findings made by the Tribunal. In XYZ v State Trustees Ltd Cavanough J observed that, generally speaking, it would not be appropriate to substitute a new decision for the Tribunal’s decision unless it were the only decision open to the Tribunal as a matter of law. I am not persuaded that this is the case. 28 The Tribunal’s reasoning was based on the promises in the Responses constituting undertakings that were not honoured by the applicant. The form of professional misconduct found by the Tribunal involved a breach of r 27.1 of the Rules, which deals with the need for practitioners to honour undertakings strictly in accordance with their terms. The Tribunal reviewed at length the authorities on the subject of broken undertakings and concluded that ‘breach by a solicitor of an undertaking is “a matter of the greatest concern”’. It based its decision that the applicant’s conduct constituted professional misconduct on the finding that, although the applicant’s breaches were not trifling, ‘[the solicitor]’s failure is not the worst type of breach undertaking.’ 29 Whether signing the Responses is as serious as a breach of an undertaking and whether it constituted professional misconduct is a matter for the Tribunal, not the Court on appeal under s 148 of the VCAT Act. It was for the Tribunal to determine what was given by the applicant and whether the giving in the circumstances alleged constituted professional misconduct. The Tribunal has not considered this question. 30 Leave to appeal is granted, the appeal is treated as having been instituted and heard instanter and the appeal is allowed. The Tribunal’s order must be set aside and the proceeding remitted to the Tribunal to be heard and determined according to law. 31 The Tribunal considering the charges afresh should be differently constituted, given the (unnecessary but damaging) findings made by the learned member concerning breaches of undertakings.’ (footnotes omitted) It will be interesting to see whether the Commissioner persists in characterising the practitioner’s statement as a personal undertaking and whether VCAT finds, the second time around, that they were. The practitioner’s contention that he made no undertaking was a ground of appeal which Justice Emerton found it unnecessary to consider.

"Redeemed in Lawful Money, pursuant to Title 12USC411, John Smith; dba JOHN SMITH"

http://sovereignwarriors.ning.com/profiles/blog/show?id=6194679%3ABlogPost%3A84329&xgs=1&xg_source=msg_share_post I redeemed $1000 in Lawful Money today! Posted by Jaro on July 5, 2011 at 6:30pm Send Message View Blog I took a check endorsed "Redeemed in Lawful Money, pursuant to Title 12USC411, John Smith; dba JOHN SMITH" to cash/redeem at Bank of America today. The teller kid wanted to throw some FRN's at me right away, so I told him I want lawful money and talk to the supervisor. I gave the sup. copy of 12USC411 and he went to check it out. Later he told me that he was there 20 years and never seen that. I guess this country is FULL of ignorant sheeple, which is why it's in such a trouble now. I also told him that I want him to acknowledge that what he's giving me is lawful money. When he came back 15 minutes later, he said that he'll cash it but can't acknowledge anything, regarding the lawful money part. I asked him if he's refusing to redeem in LM, and he said the same thing. So they accepted my 'redeemed in LM' endorsement, but wouldn't acknowledge that what they're giving me is lawful money, and gave me regular FRN's, obviously in lieu of LM. But since they're the banking experts, their acceptance of that endorsement is a prima facie evidence that I redeemed that check/FRNs in lawful money. In other words, I got now $1000 worth of Lawful money, which I believe is NON-TAXABLE. I'll just have to send the IRS an affidavit at the end of the year, stating that I redeemed all my payments/checks in lawful money, in order to claim tax exempt status. And this is the rubber stamp I'll be getting to stamp all my lawful money with, since carrying around regular FRN's is evidence that you're a law merchant, Matrix slave, since FRN's aren't real money, only obligations (IOU's) of United States. Sovereigns have lawful/real money, corporate slaves use FRN's. So anyone now can redeem their FRN's/paychecks in lawful money, and become REAL SOVEREIGN, since sovereigns have real/lawful money. You'll just have to assert that status with claim of right or affidavit declaring your use of lawful money, since lawful money is in PRIVATE (common law), where the corporate gov'ts of the Matrix have NO AUTHORITY!

SCNSW’s Nine Commandments of Interlocutory Applications in a Civil Procedure Act world

The Australian Professional Liability Blog Inbox x The Australian Professional Liability Blog via google.com 05:03 (3 hours ago) to me The Australian Professional Liability Blog SCNSW’s Nine Commandments of Interlocutory Applications in a Civil Procedure Act world Posted: 20 Apr 2014 10:45 PM PDT In Tugrul v Tarrants Financial Consultants Pty Limited [No 5] [2014] NSWSC 437, Kunc J, deciding the fifth interlocutory matter in a proceeding, gave a warning to the profession about the need to try hard to resolve interlocutory skirmishes including picking up the telephone. It was a little reminiscent of the Victorian Court of Appeal’s fulmination in Yara Australia Pty Ltd v Oswal [2013] VSCA 337. An applicant for security for costs against individual opponents was ordered to pay the costs of the unsuccessful application forthwith and on an indemnity basis. His Honour’s Nine Commandments were: How do these dicta and the requirements of ss 56 and 59 of the CP Act translate into practice when interlocutory issues arise, including such matters as amendments, strike outs, discovery and security for costs? Assuming compliance by the practitioner with the relevant professional conduct rules, nine points may be made by way of general, practical guidance. Nevertheless, the variety of circumstances confronted in practice means that what follows cannot be exhaustive. First, it must be emphasised that s 56 of the CP Act and its related provisions are not just pious exhortations to be acknowledged and then ignored. They have real consequences for the clients and lawyers in this Court and are to be applied rigorously in the conduct of all litigation, great or small. Second, solicitors and barristers are members of a profession. It is of the essence of a profession that relations between its members are characterised by civility, trust and mutual respect. The Court sees far too much correspondence between lawyers that bears none of those qualities. They must never be abandoned at the behest of clients or in the misguided belief that that is what successful representation of a client requires. Third, many interlocutory issues can be solved or at least better understood by a simple telephone call. It has been suggested that some lawyers no longer speak to their opponents on the telephone for fear of being “verballed” in an affidavit. If that is true, then it is a retrograde development which the CP Act gives legislative authority to the profession to reverse. Fourth, if one party requires information or an explanation from another, then the request should be reasonable and focused. A clear justification for the request should be given. Fifth, faced with a reasonable request, the recipient should not automatically respond with an unthinking denial of legal entitlement to the information. The obligation to facilitate the overriding purpose will sometimes require information or an explanation to be given to which the party may not be “legally” entitled. Furthermore, if it is information which would be required to be produced in response to a subpoena or notice to produce then it is contrary to the s 56 obligations of a party and that party’s lawyers to resist providing it unless and until the Court’s process is invoked. If there is concern for the confidence of such material then an undertaking of the kind considered in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 (which would apply if the information were provided under compulsion) should be sought and given. Sixth, the filing of a motion should be regarded as a last resort. It will inevitably add to costs, and delay the progress of the matter to hearing. Seventh, no motion should be filed without the putative respondent being given final, written notice of the relief to be sought, the reason for it and a reasonable opportunity to respond. The Court sees far too many examples of deadlines of a day or less being set in correspondence. My own view, as a rule of thumb, is that three clear business days is reasonable to allow for a response on any matter of substance. If the recipient requires more time to obtain instructions, then they should send a prompt request with an explanation to that effect and an indication of when a proper reply will be provided. In relation to challenges to pleadings it was once the practice for opposing counsel to confer before a strike out motion was filed. To the extent that practice has been lost, it should resurrected. Eighth, once a motion is filed, the parties are obliged to ensure that only the real or essential issues are litigated. This calls for discrimination in both the preparation of evidence and argument. As to the former, real thought must be given to the precise evidence required. The practice of exhibiting “everything” or “the file” to provide an evidentiary cornucopia from which only a few morsels are ultimately selected to be referred to in argument is completely unacceptable. Where it becomes apparent that an application or argument is unsustainable, it should be abandoned, and that abandonment notified to the other parties, at the earliest opportunity. Ninth, where delay or unnecessary expense has been caused by conduct which is contrary to the obligations of parties and their lawyers under s 56 and its related provisions, parties and lawyers should not be in any doubt that in appropriate cases the Court will exercise its power in relation to costs (see s 56(5) of the CP Act) to provide some measure of justice in response to such conduct.