SUMMARY JUDGMENT IN DISCIPLINARY PROSECUTION OF A LAWYER?

The Australian Professional Liability Blog 05:02 (10 hours ago) to me The Australian Professional Liability Blog Summary judgment in a disciplinary prosecution? Posted: 21 May 2015 04:31 PM PDT I wrote about the test case on the application of penalties privilege to disciplinary prosecutions of solicitors brought by the Legal Services Commissioner here. Now the Commissioner has made another novel application in the same case, which usefully provides some law on the appropriateness of prosecution applications for summary judgment in disciplinary prosecutions (Legal Services Commissioner v LJS [2015] VCAT 649). The answer, according to VCAT’s President, Justice Garde? Not very appropriate, certainly not in this case, despite the complete non-involvement of the respondent solicitor, because: ‘9. … First, the jurisdiction of the Tribunal under s 4.4.15 of the Act is a protective jurisdiction. A disbarring order or suspension is not punitive in character. In Legal Services Commissioner v Brereton6 the Court of Appeal noted that legislation such as the Act creates ‘civil norms governing the conduct of legal practitioners, the aim of which is the protection of the public and not the denunciation of the practitioner’.7 In Law Society (SA) v Murphy8 Doyle CJ described the purpose of the jurisdiction: The Court acts to protect the public and the administration of justice by preventing a person from acting as a legal practitioner […] a profession that plays an important part in the administration of justice and in which the public is entitled to place great trust. 10. Clyne v Bar Association (NSW) also highlights the dual nature of these orders that both protect the public from disadvantage and exploitation, and the profession from the loss of status and privilege that might follow should such abuses go without remedy.9 Numerous subsequent cases have adopted these objectives.10 The Tribunal would not be properly discharging its protective duties to the public, the legal profession and the administration of justice generally if it were simply to conclude, in the circumstances of this matter, that the respondent was guilty of professional misconduct as charged without hearing or receiving any evidence. 11 Secondly, a number of the charges are dependent on what was said in conversations, or on behaviour alleged of the respondent which is said to amount to professional misconduct. In order to assess the significance and seriousness of the allegations made against the respondent, it is necessary for the Commissioner to provide the Tribunal with evidence and material as to what is said to have taken place. 12 Thirdly, the findings and reasons of the Tribunal as they relate to the alleged professional misconduct of the respondent, and the gravity of that misconduct if proven, are of fundamental importance to the making of final orders which may significantly affect the respondent and his ability to practice.11 13 In making final orders affecting the respondent’s ability to practice, the Tribunal is required to take into account any evidence going as to rehabilitation, remorse, participation in the conduct of the investigation and hearing, delay, the respondent’s financial and family situation, the respondent’s behaviour and candour, any explanation for the respondent’s behaviour, the benefits of any further training, and any conditions that should be imposed.12 The Tribunal cannot properly discharge these responsibilities if an order is summarily made under s 78, with the result that evidence and information that may be in the possession of the Commissioner is not provided to the Tribunal. 14 Fourthly, the orders that are sought from the Tribunal are discretionary in character. In order to properly exercise its discretionary powers, the Tribunal requires evidence from the Commissioner that will assist the Tribunal in forming a view as to the orders that ought to be made, and why they should be made. 15 In the circumstances of this case, it is appropriate that the proceeding progress to final hearing rather than being dealt with under s 78(2) of the VCAT Act. Given the continuing absence of the respondent, it appears likely that the final hearing will be conducted on an unopposed basis.13′ (footnotes omitted)

LAWYERS AND CONTINGENCY FEES?

http://indaily.com.au/ispy AWill allowing lawyers to charge contingency fees increase access to justice, or create a more litigious society? Comment | A debate is looming about freeing up restrictions on the ways lawyers can charge their clients, and the answers aren’t simple, argues Morry Bailes. There is a conversation that we will all be having in the not too distant future regarding the charging of contingency fees by lawyers. Presently it is unlawful for a lawyer to charge a client a percentage of their damages. Damages are the monies awarded to a claimant in a successful civil action to compensate for their loss. The current rules only permit traditional charging, usually on a per hour rate basis. Limited conditional fee agreements are allowed involving some uplift on the usual hourly rate in the event of success, but not a straight contingency. That is still unlawful. In the dying days of the Rudd/Gillard government, then Assistant Treasurer David Bradbury ordered the Federal Productivity Commission to commence a public inquiry into access to justice in Australia. In September last year its final report was delivered to the government who tabled it in December making it available to the public. A copy can be found at here. As you might imagine the report is detailed and voluminous, however what it says about contingency fees makes for interesting reading. The commission labels the contingency style fee agreement as “damages-based” billing. This is what it has to say: The Commission is unconvinced that any perverse incentives inherent in damages-based billing are more pronounced than those embodied in conditional billing. Rather, damages-based billing has the potential to provide several advantages, including better aligning the interests of lawyers and their clients by removing incentives to over service. There is an important caveat to this claim — in order for incentives to be aligned, clients need to be fully informed about the merits, and likely costs, of pursuing their claim. The Commission considers that the prohibition on damages-based billing should be removed, subject to consumer protections such as comprehensive disclosure requirements and percentage limits on a sliding scale to prevent lawyers earning windfall profits on high value claims. So, in a nutshell, the Productivity Commission supports contingency fees arrangements. And why wouldn’t it? It comprises a bunch of economists to whom a percentage fee arrangement is easily understood and makes perfect economic and commercial sense. It allows a potential claimant access to the civil justice system that he, she or it may not otherwise enjoy, because payment of fees is contingent on success and the receipt of damages. It leads to efficient prosecution of a claim because, unlike with hourly rates, there is no incentive for a lawyer to dawdle. It is an option available to claimants in Canada, the UK and states of the USA. So why not Australia? There are two fundamental reasons why we have not gone down the contingency fee path. Both are ethical considerations. Firstly, contingencies ought to be used where there is risk associated with a claim. The risk is shared by lawyer and client and, like any sharing of risk, there is the potential for reward. A contingency may often yield to the lawyer a sum above what a fee based purely on an hourly rate may yield. On the other hand, the client gets in to the justice system when they otherwise may not be able to afford to. The ethical dilemma is when to introduce a contingency arrangement. To do so in a matter where there is little or no risk may be unethical. Where you draw the line is one of perception. The second difficulty is when to advise a client to settle rather than litigate a claim. Invested in the outcome of a matter, a lawyer may be tempted to settle early in order to avoid the risk of litigation resulting in the claimant receiving a lesser result but the lawyer still receiving the contingency. In states of America the contingency therefore slides upward the closer the matter gets to litigation, to reward the lawyer for the increasing risk. All members of the legal profession are bound by conduct rules; we are an ethical profession which is highly regulated. At present the gap in this area is being filled by largely unregulated litigation funders who expose themselves to the litigious risks and take, in effect, a contingency-style payment from the ultimate award of damages. Almost without exception all large class actions in Australia have been funded by litigation funders in this way, often on both sides. What litigation funders usually do not do is fund individual claims, which is where lawyers may need to fill the breach. Consequential amendments to conduct rules to ensure client protection and maintain ethical standards, as suggested by the Productivity Commission, may be necessary. Professor Dal Pont of the University of Tasmania Law School, who is a leading voice on the subject of legal ethics, has recently opined that the ethical challenges relating to introducing contingency fee arrangements in Australia can be overcome largely because the same ethical dilemmas exist now and are handled successfully by the profession. The conversation that we as a society and as a community must have is whether contingency fee arrangements may alter the fabric of this place. Some see such arrangements as providing access to justice. The Productivity Commission refers to those in need as the “missing middle”; well off enough to be ineligible for legal aid or legal assistance but insufficiently well off to pay for a legal action. Contingency fee arrangements are a way to get them into the civil justice system, along with poorer claimants who do not receive a grant of legal aid to pursue a civil damages claims. Against that is a concern that unmeritorious claims may be prosecuted too frequently with settlements reached by defendants for reasons of expediency. Will contingency fees provide access to justice or stoke the fires of an unnecessarily litigious society? This is the substance of the pending conversation, and the recommendations of the Productivity Commission make it inevitable that we have it. If contingency fee arrangements are to appear on Australia’s legal landscape there is a great deal more work that needs to be done. Should the contingency be capped or uncapped, and controlled by market forces? Should we, as a matter of policy, exclude such areas as family law and criminal law? All of these issues need to be addressed, but the threshold question of whether to accede to the Productivity Commission’s recommendations must be settled first. Morry Bailes is managing partner at Tindall Gask Bentley Lawyers, Member of the Executive of the Law Council of Australia and immediate past President of the Law Society of SA. The opinions expressed in this column are his own. His column appears in InDaily on every second Thursday.