Jurisdiction of Practice and Legal Service Commissioner - Essay Example

Student Name: Tutor: Title: Ethics-Report from a Legal Service Commissioner Course: Introduction The legal profession and practice of law in New South Wales are governed by two pieces of legislation which are created and subsequently amended by the Government, together with a non-penal but binding code of conduct that is a creation of the Law Society of New South Wales. The Legal Professional Act 2004 started working on October 1st 2005 and is in charge of regulating in New South Wales region. The Act has the objective of administering justice and protection of clients and the public in general against law malpracticesi. The Act also defines regulation of legal practice across Territory and State borders. The Legal Profession Regulation 2005 ideally augments the 2004 Act. Issues covered include practice structures, trust money and costs, advertising, Practising Certificate and admission requirementsii. Kevin verses Pamela cases study provides important lesson with regard to practicing law in Australia and following the duly process of admission. It is evident that Kevin contravenes important regulations that have been clearly stated in the Legal Professional Act 2004 with regard to admission and law practice in Australia. Jurisdiction of practice According to Division 4 of the Legal Act, a legal practitioner in Australia has to engage legal practice principally or solely with reference to his legal practice during the issuance of the certificate for that particular timeiii. Kevin is criminal lawyer specializing in criminal law but he takes over Pamela’s case that could have best been handled by a lawyer with commercial law background. Kevin should have instead recommended a colleague who understood Pamela’s needs well. Pamela has to deal with very cost repairs to her unit which had would have been footed by the previous owner had Kevin conduct adequate searches during the time of purchases. Since he is a lawyer practicing criminal law, some of these details might have evaded him. Kevin breaches the conduct of practice by engaging in something that he was not licensed to do during the time of admission. He represented himself as a criminal law practitioner. Unqualified law practice is outlawed under section 14 and 15 of the Legal Professional Act 2004. It exposes the public to huge levels of risk that include poor representation and legal advice, deception as well as absence of recourse to assistance instead something goes wrong. Kevin was not aware of the repair costly that Pamela incurred unfairly. Kevin tricked Pamela with regard to cost and later presented an inflated bill after she engaged another lawyer to follow up the matter. A holder of practising certificate should not contravene the condition under which the certificate is subject. There is a maximum penalty of 100 penalty units recommended for this offenseiv. Kevin contravenes the reason for issuance of his certificate when he engages in commercial law about setting up businesses instead of practising criminal lawv. The files regarding putting up the business, the personal injury matter and conveyance are very sketchy indicating that Pamela was poorly represented. Suitability matters Kevin circumvents suitability matters as defined in 2004 Act. A person convicted of an offence in a foreign country or in Australia has to provide this information detailing the nature of the offence, the age of the person at the time, and the length of time that the offence was committedvi. Section 11 discusses convictions whether the person was found guilty or there was an acceptance of an individual’s guilty plea. This is regardless of whether or not a conviction is recorded. In the case of Kevin, he spent time in Fiji was he found guilty of professional misconduct and his name struck out from the records of practitioners in that country since he had inappropriately spent funds from his trust accountvii. In this regard, this is not a person who should have been allowed to practice or issued with a practicing certificate in Australian legal profession. He engaged in gross legal misconduct and intentionally concealed this information while applying from admission in Australia legal profession. It should have been prudent for Kevin to disclose this information instead of leaving the Legal Service Commissioner to stumble on this information only by chance since Kevin’s former clients raised the alarmviii. Suitability matters establish whether the person seeking admission is presently in good frame of character and fame. It is apparent that Kevin was not in good frame of character and fame when he was registered to practice his legal profession in Australia. This is because he had previously been found guilty of misconduct in Fiji and he concealed this information while seeking registration. The Act requires a person to disclose whether he had practiced law in a foreign country. Kevin practiced law in Fiji and was struck out from the list of practitioners in that country. The Act requires that the person to disclose whether his name was removed from a local roll and whether it has been restoredix. Kevin name according to reports from Fiji was not restored in the local call of Fiji. This means that Kevin was guilty of misconduct and he did not appeal against this decision. Kevin did not pass the suitability test if his case in Fiji is anything to go by and the fact that he concealed this information from the Admission Board. A person is admitted to practice law in Australia if the Admission Board observes that the matters declared by the person will not in any way affect the assessment by the Board on the suitability of the person to be admitted Legal professional Act 2004x. This requirement was glossed over when Kevin did not disclose his previous engagement in law in Fiji and further cancellation of his certificate. Disclosure of the information by Kevin could have provided the opportunity for the Board of Admission to further probe the events leading to such as decisionxi. May be Kevil would not have been admitted to the Bar had he disclosed this information. His impropriety and unprofessional conduct has been conspicuously seen in the way he dealt with Pamela as his client. The conviction against Kevin’s law practice in Fiji was not quashed. Ethical misconduct Pamela Campbell trusted Kevin Parmenter since they were together in university and she wanted to start a business. Pamela needed legal representation in the transaction. First, Kevin failed to disclose to Pamela that he was a criminal lawyer who could not handle well her case. The greed of money made Kevin accept her case. He represented Pamela in a conveyance during the purchase of her unit. This is outside Kevin’s jurisdiction considering what he was licensed to practicexii. Kevin also engages in litigation case when Pamela is involved in a car accident and he further gets involved with her personally. He did not disclose the amount settled to Pamela and Pamela did not learn of it until later when she contracted a new lawyer. Having a sexual relationship with a client is misconduct. Kevin takes advantage of the injured Pamela. Kevin unprofessional terminates his contract with Pamela and files an inflated bill for services rendered. Kevin has the obligation of disclosing the legal costs to his clients but he waits until the last minute to invoice the costs. Law practitioners owe the duty to disclose to their clientsxiii. Conclusion It is unfortunate that such an incident had to happen to Pamela before Legal Service Commissioner Office learnt of it. Kevin started practicing law in Australia on the wrong footing after being inappropriately admitted since he concealed background information about his law practice and deregistration in Fiji. Had the Admission Board learnt of this activities is likely that a practicing certificate would not have been issued to Kevin. Despite proper legislation on law practice in New South Wales, unsuspecting clients are still falling victims of rogue lawyers who knowingly engage in professional misconduct and impropriety. Creating public awareness on the requirement by law is important in cultivating responsibility and sensitivity among the citizens who may not have a legal background. Footnotes Read More