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Criminal lawyer hit with steep fine for failing client
A criminal lawyer was publicly reprimanded for failing to give adequate advice to a client and pushing an “inappropriate case theory”.
Naomi Neilson
West Australian lawyer Anthony Gerard Elliott agreed to pay a fine of $12,500 and costs of $7,500 for one charge of professional misconduct and two charges of unsatisfactory professional conduct arising out of his dealings with a client accused of sexual assault.
The Western Australian State Administrative Tribunal (WASAT) was told Elliott failed to provide advice to the client on whether he should give evidence on his defence until the second day of the trial.
The advice Elliott eventually did give was not to give evidence, which WASAT found was “insufficient to impress upon [the client] the importance of that election and all its attended benefits and risks”.
Elliott did not adequately inform the client that without his evidence, there would be nothing to contradict the complainant’s evidence.
The conduct was “inadequate” because it did not allow the client “the opportunity to make an informed decision, namely, briefly and during an adjournment, without the benefit of prior advice from the respondent, or advice from the respondent’s instructing solicitor”.
One of the charges of unsatisfactory professional conduct relates to Elliott’s advancement of an “inappropriate case theory”.
WASAT found this to be speculative and “inconsistent with the position put in opening that every element of the offence would be disputed”.
According to the other charge, Elliott made a concession the complainant had been sexually assaulted in his closing submissions, which “had the effect of bolstering the complainant’s credibility”.
He did so without instructions and without foreshadowing this point in his opening submissions.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
