LP - Wk 4 - Professional discipline QUESTION AND ANSWER ALREADY PASSED

LP - Wk 4 - Professional discipline QUESTION AND ANSWER ALREADY PASSED There are a number of levels of formal regulation of lawyers in Qld: 1 - the courts 2 - QCAT and the Legal Practice Commission 3 - the Legal Services Commission 4 - the Professional associations - The courts The Supreme Court is primarily responsible for the supervision and discipline of the profession. The superior court in each state has an inherent jurisdiction to discipline the lawyers who practise before it. This is a function of the court's duty to administer the law in the interests of justice and of its authority to admit lawyers to practise: Myers v Elman [1940] AC 282. - The existence of the Queensland Civil and Administrative Tribunal (QCAT) and the Legal Practice Committee (LPC) as disciplinary tribunals with statutory powers to exercise discipline does not preclude the inherent jurisdiction of the Supreme Court to discipline solicitors as officers of the court: Legal Profession Act 2007 (Qld) s 13. However, the Court of Appeal also hears appeals from the QCAT and LPC. The Supreme Court is the primary superior court responsible for the discipline of lawyers because it admits them to practice. However, lawyers have a duty to all of the courts they appear in and a corollary of that duty is a power in those courts to discipline the lawyers who practise before them. - In Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 a law firm argued that the Federal Court had no power to discipline it because the Federal Court did not admit solicitors to practise law and did not have power to order a 'striking off', The Full Court of the Federal Court rejected that argument, holding (at 231-4) that the fact that the court did not maintain a roll of practitioners or have the power to strike lawyers off was irrelevant to the exercise of appropriate discipline. It could still discipline a lawyer who acted in breach of his or her duty to the court. Thus, even though practitioners are admitted as officers of the Supreme Court, the duties they owe to other courts in which they practise justifies those courts exercising some disciplinary powers over them. These courts are more limited in the sanctions they can impose for breach of professional standards, and cannot, for example, order a lawyer to be disbarred or struck off, or suspended from practice. The remedy sought in Caboolture Park was an indemnity from the law firm for expenses incurred in the conduct of litigation that, it was alleged, the firm had advised be brought against White Industries, even though the claim had no prospects of success. The Supreme Court has inherent jurisdiction over lawyers. • this is a function of its duty to administer the law: *Myers v Elman+ • the existence of specialised tribunals does not preclude this: s 13 LPA • Federal Court etc has more limited powers: *Caboolture Park+ • wasted costs orders: *Flower & Hart]; [Cowley] - Myers v Elman - A solicitor's duty advising his client on discovery is to investigate the position carefully and to ensure so far as is possible that full and proper disclosure of all relevant documents is made. He has overall responsibility for the process and should not leave it all to his client. The House considered and set out the court's powers to disallow an award of costs, or to award them to be paid by the solicitor personally: "The court's jurisdiction to make a wasted costs order against a solicitor is founded on breach of the duty owed by the solicitor to the court to perform his duty as an officer of the court in promoting within his own sphere the cause of justice." and "The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, White industries v flower and hart The time has passed when obstructionist and delaying tactics on the part of parties to proceedings in the court can be countenanced by the court ... It is not proper ... to adopt a positive or assertive obstructionist or delaying strategy which is not in the interests of justice and inhibits the court from