Why do you need a lawyer? On some level this is a basic and obvious question, but there is a lot more to the answer than first meets the eye. Although it seems like a pretty obvious question, there are in fact a number of advantages of having a lawyer.
1. Lawyers have knowledge and experience
A lawyer usually has special knowledge and experience acquired from their qualifications and their years of legal practice. A lawyer knows the law, should know the procedures, and will be able to prepare documents and handle your case in the most effective way. By engaging a lawyer, you are taking advantage of the knowledge and skills that he or she possesses, which should benefit your case enormously.
Lawyers know what points and arguments are most relevant and effective, and which ones are less so. Experienced lawyers know of the temperament and expectations of particular judges, and are able to tailor their approach accordingly. Lawyers can effectively advise you of the advantages and disadvantages of a proposed course of action.
In contrast, relying on the advices of people who are not legally qualified is a very dangerous thing to do, even if such people mean well. There are a lot of myths in the community about the legal system and how it works. By speaking with a lawyer, you can find out whether what you have heard is in fact true, and if not your understanding of your matter will become more accurate and realistic.
2. Lawyers can help prevent disputes
One of the popular and enduring myths about lawyers is that they create and promote conflict. In reality, lawyers issue try to prevent conflict and attempt to resolve conflict without the need for final judicial determination. Disputes can and often are resolved through the sending of constructive correspondence, negotiation and participation in alternative dispute resolution.
By protecting your rights and interests, getting the agreement into writing and ensuring that everything is legally sound, a lawyer can significantly reduce the likelihood of having a costly dispute arise in the first place. And even if a dispute does eventuate, the number of uncertainties and the risks of a seriously bad outcome are substantially less the earlier a lawyer is retained.
3. The other party will take you more seriously
Because lay people representing themselves are at such a disadvantage, the lawyers for the other party(ies) might be less likely to put forward decent offers to settle the case, which can result in you settling for less than you otherwise would. Without the benefit of legal advice, you are unlikely to know whether an offer you receive is reasonable, or whether you are likely to get a better outcome by rejecting it.
Even if you know the offers the other side have been prepared to put forward are inadequate, you may be less likely to settle your case because the other side know that you will struggle to prove your case as a self-represented litigant, which means more time, stress and risk.
4. Lawyers take the stress out the situation
Having someone on your side who is handling the situation for you can be rather reassuring, and reduces the stress you are feeling about your case. It saves you from having to read every piece of correspondence that comes in about your matter, feeling like you are in it alone or having to think about it constantly.
5. Lawyers save you time
For most people, time is valuable. By doing most of the work for you, the lawyer allows you to have the time to live your life. As a result, that you can spend time with your family and friends, and not have to take substantial time off work.
6. Lawyers are not emotionally involved
Because your lawyers are not you, there is a benefit of detachment that exists that allows your lawyer to view your case objectively and provide you with sound advice and recommendations. There’s an old legal truism that “he who acts for himself has a fool for a client”. This applies even to lawyers who represent themselves, because a self-represented litigant is usually too emotionally involved to see things objectively and make rational judgments. This is particularly the case in family law, where emotions are heightened.
7. If you win, you can get your costs
In civil litigation, the general rule is that the loser usually pays the winner’s costs. So if you win, you get (partly) compensated for the legal bills you have paid with a costs order in your favour. In contrast, if you are self-represented you are only entitled to claim for disbursements such as filing fees, and therefore cannot be compensated for your time and effort.
8. Lawyers have insurance
In Australia, all lawyers are required to have professional indemnity insurance. If your lawyer makes a critical error which costs you a lot of money, you can sue your lawyer for this. In contrast, if you mess up your own case you only have yourself to blame and therefore are not entitled to any compensation.
Of course, all this is not to say that you need a lawyer in every legal dispute you ever have. If for instance you have a dispute over a small sum in a tribunal where costs cannot be awarded, you would probably best be served by representing yourself. But in most other cases, the benefits of having a lawyer in a legal dispute far outweigh the costs.
Michael James Quinn has the dubious honour of being the first solicitor in Queensland legal history to be struck off twice.
Normally when a lawyer is removed from the roll (‘struck off’) that effectively ends their legal career, as they are permanently ineligible to obtain a practising certificate which would enable them to practice law again. In this case, the unusual history of the matter led to the practitioner being struck off twice.
From 1 April 2009, Michael James Quinn practised as sole practitioner in the firm Q5 Law Proprietary Limited until 4 May 2012 when his practising certificate was cancelled.
In 2015, Quinn was first struck off by the Queensland Civil and Administrative Tribunal (QCAT) after failing to appear and contest 64 charges arising from the trust account of Q5 Law Proprietary Limited.
In 2016, Quinn successfully appealed this decision because QCAT had failed to satisfy itself that the charges had been proven pursuant to section 453 of the Legal Profession Act 2007. The Court of Appeal set aside the QCAT orders and ordered a re-hearing.
On 12 October 2017 Quinn was convicted after trial by a District Court jury of one count of fraud with a circumstance of aggravation contrary to section 408C of the Criminal Code for trust account defalcations of Q5 Law Proprietary Limited. He was sentenced to 12 months imprisonment, with immediate suspension and an operational period of two years.
The Legal Services Commissioner applied to QCAT for another order that Quinn be struck off for the trust account defalcations conviction as well as unlawful drawing of trust moneys, retention of trust moneys in a general account contrary and a failure to keep records as required by the Legal Profession Act 2007.
Section 408C of the Criminal Code provides that:
“(1) A person who dishonestly
(a) applies to his or her own use or to the use of any person
(i) property belonging to another; or
(ii) property belonging to the person, or which is in the person’s possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or
(b) obtains property from any person; or
(c) induces any person to deliver property to any person; or
(d) gains a benefit or advantage, pecuniary or otherwise, for any person; or
(e) causes a detriment, pecuniary or otherwise, to any person; or
(f) induces any person to do any act which the person is lawfully entitled to abstain from doing; or
(g) induces any person to abstain from doing any act which that person is lawfully entitled to do; or
(h) makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment;
commits the crime of fraud.”
Section 419 of the Legal Profession Act 2007 states as follows:
419 Meaning of professional misconduct
(1)”Professional misconduct” includes
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
Section 452 of the Legal Profession Act 2007 states as follows:
“Starting proceeding before a disciplinary body
(1) The commissioner may apply—
(a) to the tribunal for an order against an Australian legal practitioner in relation to a complaint against the legal practitioner or an investigation matter.”
Section 453 of the Legal Profession Act 2007 states as follows:
The disciplinary body must hear and decide each allegation stated in the discipline application.”
Section 456 of the Legal Profession Act 2007 relevantly provides as follows:
“456 Decisions of tribunal about an Australian legal practitioner
(1) If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.
(2) The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—
(a) an order recommending that the name of the Australian legal practitioner be removed from the local roll;
(b) an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;
(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period.”
The charges and the facts supporting them were expressly admitted by Quinn.
As QCAT Member Justice Daubney noted, Quinn’s conduct clearly amounted to professional misconduct because it involved both a substantial and a consistent failure over a period of 16 months to keep reasonable standards of competence and diligence, and also justified a finding that the practitioner is not a fit and proper person to engage in legal practice. This was notwithstanding the fact that no client of Quinn’s had suffered any loss.
Justice Daubney then made the following observations:
“It is trite to observe that the clients of solicitors must be able to expect absolute probity from solicitors in relation to dealings with moneys held in trust. Various terms have been used to describe the level of that probity. Those terms have elevated the extent of that probity to levels such as it being a sacred trust. Whatever words one uses, the inherent relationship between a solicitor and their client must be founded on trust, and a necessary practical manifestation of that trust must be the absolute probity with which solicitors both theoretically and in practice approach their dealings with moneys that have been entrusted to them by or on behalf of clients.”
Due to the relative currency of Quinn’s conviction, the serious nature of the offending and the fact that that offending occurred in the course of his conduct of a legal practice, Justice Daubney determined that the appropriate sanction was removal from the roll.
Justice Daubney consequently ordered that Quinn’s name again be removed from the roll and that he pay the Commissioner’s costs.
This case is one of many that shows that trust account defalcations are a serious matter, and in cases where there are numerous or serious defalcations a solicitor can be struck off for them, even when their own clients are not left worse off.
Quinn’s win in the Court of Appeal, in which he managed to have an order that he be removed from the roll overturned, was a temporary victory. A subsequent fraud conviction in relation to some of the same trust accounting issues for which he had been struck off at first instance ensured that he would be struck off again.
There are many aspects to the solicitor-barrister relationship. In some ways the relationship is symbiotic: solicitors need barristers when a case requires specialist advice or is going to trial, and barristers need solicitors to refer work to them. It is certainly in the interests of solicitors to have good relations with at least some barristers and vice versa. However, many (but not all) barristers consider themselves to be the more senior arm of the profession, to the chagrin of solicitors.
When a barrister is instructed by the solicitor, the two act as a team in preparing for and presenting the client’s case. The solicitor’s role is to obtain the client’s instructions, sort the facts in a digestible format for the barrister and to gather the relevant information and evidence in preparation for hearing. The barrister on the other hand provides advice and performs the advocacy work in court. When the solicitor and barrister work well together, that is to the benefit of the client, whose chances of a favourable outcome are increased.
However, two Discipline Applications brought against solicitors in the Queensland Civil and Administrative Tribunal (QCAT) in 2013 show that disputes can arise between solicitors and barristers that can have serious consequences for the legal practitioner found to have acted unethically.
Continue reading “When the Solicitor-Barrister relationship turns sour”