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The facts of the Jones case are as follows; a complaint has been filed against Solicitor Jones that questions a number of the solicitor's actions. The complaint alleges that Jones breached a number ethical considerations and that he should be held responsible for those breaches. The complaint states that Jones made a serious error in calculating the value of the client's business that he was representing and that the error resulted in the potential buyer of the firm withdrawing his offer of purchase. The fact is that Jones did make the miscalculation, and furthermore, that Jones withheld knowledge of the error from the client until he was forced to admit to the error in court. Jones' duty of fiduciary was to admit to the mistake as soon as he became aware of it and then to correct the mistake before it got out of hand. Instead, he did the exact opposite; hiding the mistake from his client, his client's wife and the court. He also breached his responsibility when it came to acting with care and competence regarding the valuation of the business. The valuation of the business was a primary concern to both Jones' client and to the purchaser of the business that Jones should have taken more care to be circumspect in his calculations; that fact that he was not careful shows a gross incompetence. Information was also withheld from the client (and the client's wife) regarding the retainer which Jones had accepted as part of the previous business negotiations in which he represented the client. Jones had accepted the retainer to serve as client's counsel in the business matter, not in the ongoing litigation that was actually being instigated and instructed by the client's wife (with the client's knowledge and approval). The fact that Jones had little expertise in pursuing a writ on the matter; having never conducted such actions in the past, also played a role.
Accordingly, Jones continued his representation of the client even though he had misgivings as to the legality of the retainer regarding the new case. Before accepting the wife as a client, Jones had the responsibility to advise the client that he had little if any expertise in the matter, and that he would need a new agreement and retainer before any further steps could be taken. Jones further accepted instructions from the client's wife after learning that the client had signed a power of attorney but he did not inform her of the original mistake either. In fact, Jones continued the litigation process even though the miscalculation was his fault entirely. Jones withheld information about the mistake from the court as well which was flaunting his duty to the court. His duty to the court was to conduct court proceedings with candour and honesty, yet Jones further exacerbated the situation by deliberately withhold the process and methodology he had used to determine the valuation of the company (incorrectly as it was) from the court and the defendant. Conflicting valuations were a primary component of the case. Finally, the client for the continued litigation was the original client's wife, yet on the court docket and according to Jones the original client was also the client whom he was representing, not the client's wife. The complaint alleges that the case on which the solicitor was working would have had much different results if Jones had not committed the breaches for which he is accused.
There are several issues in the complaint that need to be addressed. The first issue pertains to the assumption that Jones was in fact a qualified solicitor. Jones qualified as a solicitor in 2005 and accordingly had been working with a small firm with two partners.
Even though the background information on Jones determined that he oftentimes worked with little or no supervision, he was a qualified solicitor based on Part 5, Division 5 (2) of the Legal Profession Act 2008 that states "In determining whether a person has the required experience regard can only be had to a period of supervised legal practice that the regulations permit to be taken into account for the purposes of this section" (p. 54).
The second issue is that Jones miscalculated the value of his client's business and that the miscalculation resulted in a terminated sale of the business. Mistakes and miscalculations have always been and will always be present in human interactions and transactions. A solicitor, however, should take care and caution in making calculations that can harm his or her client in any manner. After all, that is one reason why Division 9 -- Interstate legal practitioners 68. (1) states that a legal practitioner (a) is covered by professional indemnity insurance that -- (i) covers legal practice in this jurisdiction. The issue concerning this portion of the complaint is that not only did Jones make an error in judgment (and in calculation) but he compounded the matter by keeping the error entirely to himself.
The biggest issue at hand seems to be whether solicitor Jones can be found to have conducted unsatisfactory professional conduct or professional misconduct when he miscalculated and then kept quiet about his miscalculation. Additionally, Jones also kept mum about his real client; his reticence in forthrightness is an issue that must be dealt with in a manner of gravity and seriousness.
It seems as if the complaint against Solicitor Jones is with merit and will need to be addressed in a forthright and expedient manner. The trust that the public places in solicitors needs to be upheld in the highest regard. Solicitors that do not respond with unimpeachable behavior to situations with which they are commonly faced can be detrimental and bring harm to the perception demanded of those individuals in this arena. Whereas if an aggressive response is made to this situation in an efficient and effective manner, the opportunity to reinforce a perception of integrity, honesty, and trustworthiness presents itself to the legal community. It is suggested that there is enough evidence to the complaint that further action should be taken regarding treatment of solicitor Jones and his behavior. It is further suggested that Jones flaunted a number of rules of behavior including his continuing duty to advise (before and after receiving a waiver), his duty to act with care and competence both as a solicitor and as a fiduciary, and his duty to the court to conduct himself and the proceedings in an honest manner throughout.
There are a number of ways that Jones can be dealt with. Since he has seemingly admitted to the infractions including the miscalculations and the poor behavior regarding the statutes of duty; the simplest manner for dealing with him is to allow mediation. Mediation of complaints according to Division 5 (417) allows the complainant and the Australian legal practitioner to whom the complaint relates that they enter into a process of mediation (p. 295). This would be the simplest method for dealing with solicitor Jones.
It seems as if Jone's behavior is at best unsatisfactory professional conduct, and at worst professional misconduct, and both of those would demand more than just the mediation manner of treatment. According to Division 2 -- Key Concepts (402) unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. To say that Jones breached this particular code of conduct may be an understatement at best.
Professional misconduct, on the other hand, is defined as unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and…[continue]
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