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Tasmanian lawyer forced to fight ‘serious’, baseless claims
A Tasmanian lawyer was unnecessarily dragged through court by resentful former clients who accused him of providing negligent advice, ignoring instructions, and not acting in their best interests.
Naomi Neilson
The lawyer, who was not named in the judgment, requested the Tasmanian Legal Profession Disciplinary Tribunal grant him costs on a special order indemnity basis after having to defend himself against several serious accusations that were “lacking in substance”.
Deputy chair David Wallace, along with two tribunal members, said the lawyer was “required to incur expense of representation by solicitors and counsel [because of proceedings] that should not have been brought by the complainants to the tribunal”.
The lawyer was retained by the complainants in mid-2011 for a dispute against a project manager and the builder of their house.
One of the many accusations he faced was his supposed failure to take appropriate legal action against the project manager or, in the alternative, a failure to follow the complainant’s instructions.
The tribunal said the evidence instead showed the lawyer “cautiously and competently dealt with the many issues evolving in the dispute”.
The lawyer was also accused of creating false file notes, providing counsel with “false and misleading information”, indicating a mediation would be meaningful when it was not, and providing negligent advice.
The most serious allegation was a claim the lawyer “made decisions and took actions” that were not in the client’s best interests “and which advantaged the project manager” in the proceedings.
“The allegations are very serious,” the tribunal said.
“No other information than that before the [Legal Profession Board] in respect of these assertions was before the tribunal. We are satisfied the complaint was untenable. There was no real prospect of it succeeding.”
Other than one of the complaints, the tribunal said there were “strong factors” that were in favour of a costs order on a special indemnity.
In particular, this arose over the allegations of deceit and dishonesty, lying to counsel, and the “unjustified belief” that the lawyer had been deliberately assisting the opposing party project manage”.
“It is desirable to fashion a costs order to allow the practitioner to recover a substantial proportion of costs expended by him to his lawyers, less than full indemnity, to be taxed on one basis in respect of all the complaints [excluding one],” the tribunal said.
The amount of costs required to be paid was to be determined on a solicitor-client basis.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
