PROFESSIONAL CONDUCT
Order Description
use IRAC methodology and AGLC writing style PLEASE DO NOT USE WORDS LIKE this, it.
CRITERIA
There is no specific allocation of marks to individual criteria. The mark awarded reflects the overall quality of the written assignment taking into account all
criteria. Content demonstrates Identification of issues raised by the conduct of the legal practitioner; Knowledge of the complaints and disciplinary procedures
available under the legislation; Knowledge of the range of options open to the LSC in dealing with the complaint; Knowledge of the relevant legislation, rules of
conduct and case law; Knowledge and understanding of possible penalties; and Knowledge of other options and remedies available to the complainant.
Structure demonstrates Clear introduction and conclusion; and Careful organisation (e.g. use of headings )
Expression, style and presentation demonstrates Recognition of nature of audience; Recognition of purpose of the task i.e. to provide a legal opinion and advice to
Legal Services; Commissioner for action on Complaint; Written in plain English, in a style which is clear, fluent and concise; and Careful proofreading. Citation
Accurate Citation of sources following the AGLC. Students must provide footnotes. There is no need to provide a reference list. Word Length Within the stated
word length
As per the Law School Essential Guide: “Students are liable to a penalty if they exceed the maximum word length stipulated for an assignment even if only by a few
words. The penalty is 5% of the total marks allocated to an assignment for every increment, or part thereof, over the word length.
The increment is one-tenth of the maximum word length. For example, consider an assignment with a maximum word length of 2000 words and the student wrote 2,300 words
and would receive 15 out of 20 if no penalty were applied. The student has exceeded the word length by more than one increment – the first increment is exhausted at
2,200 words. Therefore, the penalty would be 10 percent. The student would receive 13 out of 20 for the assignment.”
The word count excludes all footnotes unless some footnotes go beyond providing references as per AGLC, and instead contain discussion. There is no need to provide a
BIBLIOGRAPHY.
The word count must be stated on the front cover of the assignment.
SUBMISSION:
Assignments must be submitted electronically via Moodle and TurnItIn. You are required to submit documents in PDF format. However, please note that you should use the
following link to convert Word documents to PDF http://software.une.edu.au/une-only/PDF_Writer/, or use the Macintosh “save as PDF”. Scanned PDF documents are not able
to be read by markers using online marking technologies and are not acceptable.
Late penalty:
A penalty of 5% of the total marks allocated to an assignment will automatically be deducted for each day or part thereof that an assignment is not received past the
due date and time. To give an example, an assignment that would receive 15/20 will only receive 13/20 if it is 2 days late.
Assignments received more than 14 days past the due date (which have not received an extension) will not be marked and will receive the mark of zero and be returned
directly to the student.
For other information regarding extensions and other information see ‘The Essential Guide for Studying Law Units’ which can be accessed via the unit Moodle site under
Unit Materials.
WRITTEN ASSIGNMENT
Your task:
You are an Investigator in the Office of the Legal Services Commissioner, South Wales in Sydney.Your job involves investigating complaints made against legal
practitioners by applying the relevant legislation and rules that regulate solicitors in New South Wales. You are therefore required to write a report for the Legal
Services Commissioner about Alistair Fletcher’s conduct which is the subject of a complaint made by Kirsty Mitchell. Your report should address the following:
Has Kirsty’s claim been submitted in accordance with the requirements of the legislation/rules? Has Alistair breached the legislation and/or rules regulating legal
practitioners in New South Wales? [Assume the Legal Profession Uniform Law and rules apply] What courses of action are open to the Legal Services Commissioner and
what penalties might apply? Are there any other potential actions (and remedies) that Kirsty might pursue independently? Justify how you treat this matter and
the advice you provide to the Legal Services Commissioner by referring to the relevant legislation and/rules, and cases if appropriate.
Complaint: Mitchell and Fletcher
After receiving a bundle of files, one name stands out, and that is the file about Alistair Mitchell, a 35 year old solicitor who works for one of Sydney’s major law
firms that specialises in corporate law. You immediately see your supervisor and advise that you went to University with Alistair and that he was in some of your
classes. You are concerned that by handing this particular file, there may be a claim of bias against the LSC. However, your supervisor advises that it is not
actually you who makes the decision about what happens to Alistair, as you are only recommending potential actions. The responsibility lies with a more senior person
and even the LSC himself. You are simply performing an administrative role. So you start reading the claim that has been submitted by Kirsty.
You note that Kirsty reports that she has known Alistair for many years – she too met him at University. She then contacted him to help her set up her first video
store. She now has seven stores scattered across the Sydney suburbs and Alistair’s involvement now consists of chasing small debts – which amounts to about 3000
debts every 3 months. Kirsty was initially surprised at Alistair being interested in what he referred to as ‘menial’ work, but recently she discovered why he
continued. She has only now been advised by disgruntled customers that his method of chasing the debts is to send out letters to the debtors that listed the debt at
up to 3 times the original amount – even though she only received the amount of the original debt. Also, these letters looked like court documents that demanded
urgent attention and warned recipients that if the debt was not paid in full then they would be liable for substantial court costs. Kirsty states that she has
probably lost customers because of this practice, but she has no way of identifying if this is so. She doesn’t think that what he is doing is right.
There are other matters that also concern her. She has separated from her husband and Alistair has been acting for her in that matter. She now regrets asking him to
help her and also for her actions during that time. She said that she actually started to find Alistair quite attractive when she left her husband, and had a sexual
relationship with Alistair. However, this ended badly.
She claims, and has evidence, of comments he made about the relationship on his facebook page. She said that he didn’t actually mention her name, but that her friends
were able to work out that he was talking about her. Initially his comments were quite flattering of her. Although she did find him quite unusual at time. She said
that one day she received 60 text messages from him asking her to wear something sexy to dinner that evening. Since then things deteriorated after she challenged him
regarding issues relating to some property transactions that he was engaged to undertake for her and in which he made some mistakes. He then made comments like the
following – ‘this so called bitch of mine is now questioning my legal expertise about property settlements’; and ‘I am meeting her this Friday at the café near her
Penrith Video Store, and I am going to warn her that I can make life very unpleasant for her, especially if I disclose our sexual relationship.’
In terms of the property settlements, Kirsty maintains that after the divorce she had Alistair act for her in the sale of a house and the purchase of a unit. All
seemed fine and he in fact sent her a letter to confirm that the settlements had been completed. However, since then she has been notified that she is liable to pay a
penalty of $1400 because her solicitor submitted incorrect documents. She has paid the fine, but she is annoyed at Alistair’s behaviour.
She also states that although she has paid the costs associated with all of her dealings with Alistair, she said that Alistair never discussed costs with her. And she
now believes that she has been overcharged.
She also advises that Alistair boasted to her that he loves the fact that he has lots of money at his disposal. He told her on many occasions that he withdraws money
from the trust account to use for gambling, and returns it later. He said that the only person that knows about this is one of the secretaries who apparently has a
crush on him and has promised she will not tell the firm about these activities.
The only other matter relates to Kirsty’s request for her files to be sent to another solicitor. The new firm of solicitors sent through an authority from Kirsty and
even though Alistair signed an Undertaking that he would forward the files within 1 week, he delayed handing them over for a period of 6 weeks.
Kirsty said that she has notified Alistair of her claim and sent him a copy, and that he has told her that he isn’t worried – as his firm is ‘going to go into bat for
him’. In this respect you notice that the file contains some supporting material that Alistair’s firm have supplied, and amongst those documents is Alistair’s
Academic Transcript. You are surprised at the fact that Alistair received all D’s and C’s, and yet you know that he only passed most of his classes. Also, you
remember that he and another fellow were caught colluding in their Jurisprudence class. Further, the firm documents include a timesheet that shows that he did
disclose costs to Kirsty, but there is a note from the firm’s accounts department that suggest that this timesheet was only provided recently, after the date of
Kirsty’s claim.
In terms of the collusion matter, you contact the LPAB and confirm that this was never disclosed.
