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Lessons from disciplinary proceedings

Lessons from disciplinary proceedings

By Michael McCagh


We learn about ethical obligations at law school but even experienced lawyers can conduct themselves in a manner that is ethically questionable. Here are four tips highlighted by recent proceedings.

1. Don’t lie on your CV

In Legal Services Commissioner v Grosser [2014] VCAT 1553 a solicitor made false representations on his resume, including academic qualifications and experience, and facilitated a false reference when applying for jobs. This constituted misconduct. The solicitor was struck off the roll, banned from working at any law practice, received a $6000 fine and had to pay the costs of the proceedings.

Lesson: Don’t lie on your resume. If you get a job because of a padded resume, you’ll be unlikely to keep it when your performance doesn’t match your “credentials”. Plus, you’ll be surprised how many lawyers have either worked in the place you say you have, or know someone who has. The internet makes searching your history easier.

2. Obtain proper instructions

In Victorian Legal Services Commissioner v Anderson [2015] VCAT 1157 a solicitor was acting for a taxi driver who was the defendant to a tort claim. However, the solicitor did not receive instructions from the defendant taxi driver. Rather, he received instructions from a club that assists taxi drivers to defend claims. On the club’s instructions, the solicitor went on to concede the plaintiff’s claim that there was an agency arrangement, which meant that despite not being the driver and having sold the car to another taxi driver prior to the incident, the defendant was found to be liable for an accident. The solicitor was given a reprimand and a fine of $20,000, and was required to pay the costs of the proceeding.

Lesson: Identify who your client is. In litigious matters, check which person is listed on the court documents. Some circumstances will require you to keep another person informed, but if you are acting for someone, they should be instructing you.

3. Be courteous to clients

In Legal Services Commissioner v Lynch [2015] VCAT 772 a solicitor acted for a client he knew personally. Among other breaches, he sent disrespectful emails to his client including threats to cease acting. On finding that this constituted professional misconduct, VCAT noted that this is why lawyers should not represent people they know personally. The solicitor received a 12-month suspension from practising and an order that he pay the costs of the proceeding.
Lesson: Clients may not take your comments as intended, so err on the side of courtesy. Email is no longer an informal means of communication. Further, word of mouth is a powerful tool, so if you are rude to a client, in addition to losing that client, you might be losing others.

4. Be courteous to other lawyers

In Legal Services Commissioner v Paric [2015] VCAT 703 a solicitor sent emails to another solicitor that alleged he was aggressive and failing to communicate, and questioned his fitness to practise. In other emails, the solicitor emailed her client making allegations about the other solicitor, copying in that solicitor’s client. These emails were all discourteous and constituted unsatisfactory professional conduct. The solicitor received a reprimand, a $1000 fine and a costs order.

Lesson: Aside from unnecessarily risking your practising certificate, being rude doesn’t help your client’s case, and definitely doesn’t help your reputation. The best lawyers are often the most courteous. If you are unreasonable to an opponent, you can expect the same back next time you meet.

Michael McCagh, Trainee Lawyer, Victorian Government Solicitor’s Office

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