Unit Coordinator: Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
  • Page:
    3
  • Words:
    1955

Unit Title:

Unit Coordinator:

I INTRODUCTION

Kevin Parmenter, an Australian Legal Practitioner based in New South Wales was contracted by Pamela Campbell when she was setting up a business with some of her friends. Kevin specialized in criminal law, but took the initiative of acting for them in registering the business and coming up with the agreement setting out their ownership and profit sharing agreement. In October last year, Pamela had an accident and could not work. The files related to the setting up of business, conveyance and personal injury matter were not very clear and Kevin avoided any discussion connected to the costs. Pamela ended the relationship with him in February and has some accusations against his lawyer. Kevin has avoided any appointment with his client and asked him to get another lawyer.

After getting another lawyer, the bills were inflated. The lawyer also found the insurance company acting for the other driver had compensated for her injuries to Kevin in April and Pamela was never told. Pamela also paid for the repairs to her unit which would have been done by Kevin. Additionally, Kevin spent some time in Fiji and he was also found to have conducted himself unprofessionally and was struck from the roll of practitioners for that country. This was due to that he fraudulently used funds from his trust account, and when seeking to be admitted in New South Wales, he never disclosed this.

II INVESTIGATIONS

Under Section 527, an investigation was conducted into each compliant referred to it. At the same time, the complainant maybe required to give further information about the complaint and verify the complaint and any additional information by statutory declaration: s507. The investigations complied with section 591 of the LPA 20041, which dictates that, fairness must be applied in the entire investigations of the complaints. Complaints and investigations were dealt with efficiently and expeditiously as is practicable under section 592.

III BREACHES

First of all, before he was admitted into the legal fraternity in New South Wales, Kevin had spent some time in Fiji where he was found guilty of professional misconduct and struck from the roll of practitioners for that country. He had fraudulently used funds from his trust account. On further scrutiny, it was clear that he never disclosed this as he wanted admission as a lawyer. This was a professional misconduct as it is required under section 66(2) or 67 (2). Failure to notify a conviction or charges with any serious offence is connoted a as a breach of statutory conditions of a practicing certificate and this is an offence under the LPA 20042. As it is the case in between Janus and Queensland Law Society3, where he was not admitted fro he was struck from the roll of using trust money.

The applicant or a holder must provide a written statement declaring why he/she is fit to hold a practicing certificate. Moreover, the Act requires that, an application for admission is required to disclose, in the application any matter that might be relevant to the Admitting Authority. This therefore means that, Kevin breached the statutory obligation of the Admitting Authority. Most importantly, one is required to disclose a criminal charge even if the charges were withdrawn. The fact that his character was brought to question at a given time was an enough point for his need to disclose to the Admitting Authority. This is attributed to the fact that, the Act dictates of the suitability matter in relation to whether the individual is found guilty of an offence in Australia or a foreign country. Kevin had a duty attached to Pamela.4

There was unsatisfactory professional conduct in this case. First, Kevin failed to meet the client even when she sought a meeting and exaggerations in the bills. According to section 496 legal profession Act 20045, this is a conduct by an Australian Legal practitioner which falls short of the standard of competence and diligence that member of public is entitled to expect from a reasonably competent Australian legal practitioner6. In this scenario, the practitioner failed to maintain a reasonable standard of competence and diligence. Kevin failed to maintain the integrity and reputation of the legal profession by avoiding communication with Pamela and also did not avoid offensive and proactive language or conduct. He even conned the client her money which was paid for the injuries she had incurred.

There was a breach of rules 32-36 which deals with the relations with third parties. Kevin was supposed to act with honesty, fairness and courtesy7. He was supposed to transact lawfully ad competently the business he was undertaking for his clients in a manner that is consistent with public interest. Kevin should have disclosed all the costs to clients as it is demanded by section 309. In the same case, he was supposed to address the basis which the legal costs was calculated, with the inclusion of the fixed costs provision and any other legal cost. As it was the case between QLS v Roche, the solicitor was not supposed to change the arrangements for charging fees without advising and consulting the client8. The client was to be given a chance to negotiate a cost agreement with the law practice. There was supposed to be a full disclosure of time costing due to fiduciary relationship, however, the client was not aware of any implications as it was the case between ASIC v Citigroup Global Markets Australia9. According to the Act the cost disclosure must be before commencing any work for the client. This must be in written form. It is criminal offence for a legal practitioner who is acting on behalf of a client to swindle him/her that money. In this scenario, Kevin was given money connected to personal injuries of his client and he never forwarded it to her. This was a fraudulent act which is never acceptable in the legal fraternity.

IV ACTIONS OPEN TO COMMISSIONERS

Under the Act, complaints correlated to a lawyer are either civil, disciplinary or both. Civil are those which are connected to cost disputes and disciplinary complaints re those connected to unsatisfactory professional conduct10. In this case, Kevin is a victim of both complaints. Under section 78 of the LPA 200411, division 8, the commissioner is obligated to suspend local practicing certificate in the public interest. A case between Barristers Board v Young, this would even result to sanction of disbarment of striking off12. Kevin is not fit to conduct legal practices because serious professional misconduct he has been found with. Additionally, the commissioner may cancel or suspend the practicing certificate awaiting Kevin to explain specific conducts most importantly, because he has been found not fit to hold such a position.

Under section 577 of the LPA 200413, the Legal Service Commissioner keeps the Register of Disciplinary Action which is taken against the solicitors and barristers in New South Wales14. In the same case, under the legal Services Commissioner forwards the findings to the tribunal which decided the fate of the practitioner. At the same time, the commissioner and the tribunal can order compensation to Pamela if the practitioner is found guilty if unsatisfactory professional conduct or professional misconduct. At the same time, in case the client has suffered a loss as a result of the conduct then compensation is inevitable. As for the point of Kevin not giving Pamela her personal injuries dues, then the commissioner will have to order compensation of the same since the payments are already due.

However, even after all these investigations; the practitioner will be given a chance to respond to the claims.

V PENALTIES

When the tribunal is sees the possibility that a practitioner is guilty of unsatisfactorily professional conduct or professional misconduct, and then he will be referred to the Legal Services Division of Administrative Decisions Tribunal under section 537(2).15 However, if the practitioner is only guilty of unsatisfactory professional conduct, then he may be reprimanded, ordered to make compensation or have his certificate be imposed some conditions as it dictated by section 540(2)16

VI CLAIMANT ACTIONS

Pamela has suffered a lot in the hand of her lawyer. One action that she is supposed to take is by following up the compensation of her personal accident compensation. Since it was paid to her lawyer then she is entitle to get the amount compensated. This will not affect the decision by the tribunal and the commissioner because theirs is to order the compensation of the same amount.

VII CONCLUSION

It is clear that Kevin has been breached the legal Professional Act 2004. First, breach of statutory conditions of a practicing certificate and this is an offence under the LPA 2004. Secondly, it was totally a professional misconduct by receiving money belonging to a client and failing to forward it to the same client. Moreover, failing to declare the amount of money he is charging his client before he began the contract was also unprofessional. Kevin is not fit to be a legal practitioner because his conduct is wanting. This being the case, there are high chances that his certificate is going to be suspended. Additionally, he is supposed to make a total compensation of the amount that is due to Pamela as the personal accident compensation.

The practitioner failed to maintain a reasonable standard of competence and diligence and thus he requires to be punished. Kevin failed to maintain the integrity and reputation of the legal profession by avoiding communication with Pamela and also did not avoid offensive and proactive language or conduct. This being the case, his practice certificate should be reviewed or revoked for he is not fit to conduct such practices when he is not honest. There may be many other clients who maybe in the process of being swindled by the practitioner and therefore he should be barred from holding positions with public interest.

VIII BIBLIOGRAPHY

(A) Articles/Books/Reports

Gibb, F. & Spence, A. ̳Solicitors fire first shot in high Street battle with no-frills, one stop service, The Australian (Sydney), 28 May. 2010, p. 38

Susskind, R. The End of Lawyers? Rethinking the Nature of Legal Services (Oxford, Oxford University Press) 2008.

(B) Legislation

Legal Profession Act 2004 (NSW) section 540(2)

Legal Profession Act 2004 (NSW) section 527

Legal Profession Act 2004 (NSW) section 591

Legal Profession Act 2004 (NSW) section 592

Legal Profession Act 2004 (NSW) section 66(2)

Legal Profession Act 2004 (NSW) section 67 (2)

Legal Profession Act 2004 (NSW) section 496

Legal Profession Act 2004 (NSW) section 309

Legal Profession Act 2004 (NSW) section 78

Legal Profession Act 2004 (NSW) section 577

Legal Profession Act 2004 (NSW) section 537(2)

Legal Profession Act 2004 (NSW) section 540(2)

ASIC v Citigroup Global Markets Australia Pty Ltd No 4. 28 January 2007

Barristers Board v Young No. 556. 6 December 2000

Clyne v NSW Bar Association (1960) 104 CLR 186 at 200

Clyne v New South Wales Bar Association (1968) 104 CLR 186 at 252

Janus v Queensland Law Society Inc [2001] QCA 180

1
Legal Profession Act 2004 (NSW)

3
Janus v Queensland Law Society Inc [2001] QCA 180

4
Clyne v NSW Bar Association (1960) 104 CLR 186 at 200

6
Susskind, R. The End of Lawyers? Rethinking the Nature of Legal Services (Oxford, Oxford University Press) 2008.

7
Clyne v New South Wales Bar Association (1968) 104 CLR 186 at 252

8
Queensland Law Society V Roche. No. 469. 29 March 2003.

9
ASIC v Citigroup Global Markets Australia Pty Ltd No 4. 28 January 2007.

10 GIBB, F. & SPENCE, A. ̳Solicitors fire first shot in high Street battle with no-frills, one-stop service‘, The Australian (Sydney), 28 May. 2010, p. 38.

12
Barristers Board v Young No. 556. 6 December 2000

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