EFFECTIVELY LAWYERING REQUIRES YOU TO USE THE CORRECT TOOLS CORRECTLY: FINE LINES BETWEEN USING YOUR TOOLS TO PROVIDE HEROIC ADVOCACY OR TO KILL CREDIBILITY AND MAKE THE LEGAL PROFESSION LOOKS BAD.

The View From Up North: The Wisdom Of Calling The Law Society A ‘Turd’ By STEVE DYKSTRA 1 Comment / 27 Shares / Jun 24, 2015 at 11:38 AM Canada View From Up North Big Trouble in Little China is one of my favourite movies. It’s campy and it’s goofy. The good guy, Jack Burton, has a high opinion of himself, but constantly does stupid things meant to save the day, which usually have the opposite effect. He definitely has it within himself to be a hero, if only he made better decisions. ***Spoiler Alert*** At the climax of BTLC, Jack stares down the bad guy, David Lo Pan. He grabs his trusty knife, takes what he thinks is careful aim, and throws it at Lo Pan. He misses by a mile. Lo Pan picks up the knife. Now it’s his turn. Lo Pan is an ancient super baddie, so Jack is cooked like cabbage, right? Lo Pan whips the knife at the hero, but he miraculously snatches the knife out of midair and with a flick of the wrist whips it back at Lo Pan. The knife lodges in the bad guy’s forehead, killing him. Jack turns to the stunned heroine. She is speechless. Jack actually got it right. “It’s all in the reflexes,” he says, coolly. The lesson: Jack had the only tool he needed to beat the bad guy. He simply needed to trust himself and use it correctly. That’s the theme for today’s column: in order to win, the hero must use the correct tool, correctly. Meet Paul Robson. He’s a Toronto-based lawyer who’s had quite a run lately. In May 2014, he was disbarred by the Law Society of Upper Canada for intentionally concealing $1.4 million from his creditors before his bankruptcy discharge. Earlier this year, an appeal panel overturned the disbarment, allowing Robson to keep his license to practice law. That’s where things turned really nasty. Robson wanted reimbursement for his legal costs—$750,000. In the course of fighting for his costs, he sent this to the appeal panel: “You as [a self-regulatory organization] currently operate as a turd,” he wrote on January 28, 2015. “A stinking steaming giant hypocritically confliected [sic] turd at the intersection of Queen and Uniisity [sic].” In a series of other messages, he also apparently referred to the appeal division as “f*ckers”, sent a video of a cat playing dead (which supposedly represented how the Law Society deals with the issue of access to justice), and accused the Law Society of being an accessory to murder. That’s a lot of stuff. Let’s dissect it. First off — holy smokes, it costs a lot to defend a disciplinary matter. How does a guy who just declared bankruptcy pay off a $750k legal bill? Also, most lawyers are dedicated to ethical practice, but if anyone needs a little more incentive, the financial cost of facing discipline should provide an extra nudge to toe the line. Second, I’m a little disappointed with the spelling mistakes. Unlike Charles Barkley, lawyers are role models. Surely Robson had to know his correspondence was going to make it to the public, and that young lawyers might read it. I don’t want younger lawyers to think sloppy spelling is okay. To be fair, maybe his iPhone “auto-corrected” conflicted into “confliected” and University into “Uniisity”. Stupid machines. On the other hand, a lot of lawyers I know read things two or three times before sending, just to prevent an overzealous auto-correct from making them look careless. For any younger lawyers reading this, that’s a pretty good habit to get into. Third, Robson just went through an insanely expensive pair of disciplinary hearings. Now he’s calling the Law Society a turd (which he spelled correctly, by the way) and a bunch of f*ckers? Shouldn’t he be a little worried about another disciplinary hearing for conduct unbecoming a lawyer? I would be. Did I mention disciplinary hearings are insanely expensive? The best part of this — Robson has turned the whole thing into a crusade. He thinks the Law Society should not discipline its members. That should be done by a completely independent body. I happen to agree with him on that. But, I won’t be calling the Law Society a turd to get my point across. Nor will I be accusing the Law Society of accessory to murder. From what I can deduce, here is the reason for that accusation: if the Law Society took the time and money it spent on disciplinary hearings and put it towards access to justice, more poor people would be able to obtain a lawyer in times of crisis. He cites the horrible case of Zahra Abdille, a woman who was murdered, along with her two sons, by her husband. In that case, Abdille had been fighting for custody of her children and wanted to get an emergency court order. She didn’t qualify for legal aid and apparently couldn’t afford a lawyer. This is a tragic case, obviously, and access to justice is a prime concern for many lawyers, but accusing the Law Society of accessory to murder because Zahra Abdillie didn’t qualify for legal aid is several steps beyond unreasonable, in my opinion. There is also another serious flaw in Robson’s argument. If the government set up an independent body to administer lawyer discipline wouldn’t it merely move the Law Society’s discipline budget to the new sheriff? It certainly wouldn’t give the Law Society the same budget and tell it to put the money formerly earmarked for discipline towards access to justice. Sadly, that’s not how the world turns. I’m sure Robson genuinely cares about access to justice. I’m sure he believes that it is an inherent confliect (sorry, conflict) for the Law Society (which is run by lawyers) to mete out lawyer discipline. He has certainly stuck his neck out to make both those points. He might even be considered heroic in some circles. But, it’s all in the reflexes. If you want to slay the bad guy, you’ve got to do it the right way. Robson has the right tool set, obviously. He has a law degree and the ability to advocate. He has a forum (the Toronto Star, no less). But, calling your colleagues vulgar names simply makes the profession look bad. That’s akin to throwing the knife at your fellow good guys. What hero does that? A key requirement of change is convincing enough people of its merits. I firmly believe his tactics will turn off lawyers and other key people who are interested in improving access to justice. They won’t line up to support him; they’ll back away from him. If he truly wants change, that’s another errant throw of the knife. Additionally, accusing the Law Society of accessory to murder makes him look like a crank. With the possible exception of The Donald (next POTUS, yay!), cranks don’t get support. Okay, earnest confession. I really wanted to get a Jack Burton quote into my column. I may have tortured it a little bit. Sorry. But, the point still remains: effectively lawyering requires you to use the correct tools, correctly. There is a fine line between using your tools to provide heroic advocacy and using your tools in a way that kills credibility and makes the legal profession look bad.

CHIN V THIES: WHY REGISTRAR SUE WILDE OF THE FREMANTLE COURT IN FR 417 OF 2007 ACTED WITHOUT JURISDICTION AND THIS TAINTED THE DECISION OF MAGISTRATE MUSK IN FR 944 OF 2007:

GIST OF THE AFFIDAVIT OF NICHOLAS N CHIN DATED 20.6.2015 FILED WITH THE MAGISTRATE COURT AT FREMANTLE IN FR 417 OF 2007 As per the request letter of the return dated the same day, I am required to file an Affidavit in Support of the said Form 23 Application (the request). For the purpose of complying with the request, I am swearing this Affidavit to restore the return for the court's contemplated action. 3. The Consent-Vitiated Duress Judgment of Registrar Wilde in FR417 of 2017 dated 7.6.2007 (the CVDJ) is precipitated upon the following facts: 3.1. As per Annexure NNC1 found at page 70 my Affidavit dated, filed and served 23.7.2008 in RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 (7 November 2008): 3.1.1. Item 15 is my description of my Consent-Vitiating Duress Response to Registrar Wilde (the CVDR) alerting her to the Consent Vitiating Duress Agreement dated 8.2.2007 entered into between my son Paul Chung Kiong Chin and the First Defendant (the CVDA). 3.1.2. Item 16 is my Notice of my CVDR to the CVDA as encoded in my letter dated 31.03.2007 addressed to Registrar Wilde and copied to the First Defendant. It portrays not a commercial pressure but economic duress that was being exerted upon us by the First Defendant as per Daniel v Drew [2005] EWCA Civ 507, [2005] WTLR 807. It is contrary to the findings of Commissioner Herron in Chin v Thies [2008] WADC 71 that resulted from my appeal against Magistrate Musk Decision in FR944 of 2007 (Economic Duress and Not Commercial Pressure). 3.1.3. Items 17A, 17B, 17F & 17G explains Paul medical condition which renders him vulnerable to threats of the Economic Duress and that I as the father of Paul is also vulnerable as I am fearful of the repercussions of the Econmic Duress on Paul's mental well-being (Paul's Vulnerability). 3.1.3 The Economic Duress and Not Commercial Pressure together with Paul's Vulnerability do not empower Registrar Wilde to deliver the CVDJ as she had acted without jurisdiction or her CVDJ is a CORAM NON JUDICE or as if no judge is sitting to deliver that judgment on the ground that the jurisdictional facts of the CVDJ or the conditions for her jurisdiction are missing as per Martin CJ in STEWART -v- CITY OF BELMONT [2013] WASC 366 at para. 54: (CVDJ is a Nullity). 3.2. As per ANNEXURE NNC2 found at page 74 of my Affidavit referred to in sub-para 3.1 above: Items 20 to items 37 refer to events ranging from 12.4.2007 to 17.5.2007 during the period of 68 days deliberation when Registrar Wilde was supposed to be considering the CVDR and the CVDA when she reaches her NON CORAM JUDICE decision in the CVDJ on 7.6.2007. Any reasonable judge would have arrived at the decision that the First Defendant was operating an Equitable Fraud upon the Court thereby rendering the CVDJ a Nullity (the Missing Jurisdictional Facts of the CVDJ). 4. The CVDJ is a Nullity and is also of an Inferior Tribunal and it has no validity and need not be appealed against by the Applicant as it is a CORAM NON-JUDICE as per the judgment in Ho v Loneragan [2013] WASCA 20 at 32 which states: "32 It has long been held that a judicial order of a superior court, even if made in excess of jurisdiction, is at most voidable and has effect unless and until it is set aside...The position in relation to inferior courts or tribunals, however, is different. In Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, Dixon J, ... emphasised: [T]he clear distinction [which] must be maintained between want of jurisdiction and the manner of its exercise... But, if there be want of jurisdiction, .. the matter is coram non judice. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable (389)." 5. The CORAM NON JUDICE Order of Registrar Wilde in FR417 of 2007 in its train nullifies Magistrate Musk Order in FR944/2007, Commissioner Herron's Order in Chin v Thies [2008] WADC 71 dated 20.5.2008. Alas, its ramifications resulted in the Miscarriage of Justice to me which culminates in the undesirable effect of the Full Court of the Supreme Court of WA sitting in LPD 2 of 2012 on the 12.12.2012 irresponsibly arriving at an unenforceable and null decision that is insuperable for me to appeal i.e. it took away my human right to legal practice for no crimes ever committed by a duly and properly admitted barrister and solicitor in the Supreme Court of Western Australia on 19.12.2003. I have provided my answers to every false accusations made against me for which I have exhausted all my energies and is recuperating.

CASE OF A BIPOLAR LAWYER

The Australian Professional Liability Blog A case about a bipolar lawyer Posted: 14 Jun 2015 07:48 AM PDT My practice has had me thinking a lot recently about the professional discipline of the mentally ill. The legal profession has caught up with the medical profession by coming up with good policies which make clear that where mental illness can be managed in such a way as to protect clients and others to whom lawyers owe duties, it should be encouraged and supported. For example, see the Legal Services Board’s policy. The Board’s CEO, the Legal Services Commissioner Michael McGarvie, has been talking about the policy in recent weeks, and so has a Federal Court judge been talking about his own long standing clinical depression. This post looks at what might be a sad case of a mentally ill lawyer who defended himself, and got me thinking about how mental illness is treated when it emerges in the course of investigation of disciplinary complaints. If mental illness is not relevant to the test for professional misconduct, as the Commissioner argues and at least one text asserts, I wonder whether the Commissioner should be given a discretion not to prosecute where he finds it reasonably likely that VCAT would make a finding of professional misconduct, but the practitioner does not presently hold a practising certificate and their conduct is at least in part explained by mental illness. Under the legislation as interpreted by the policy, lawyers must notify mental illnesses which are characterised by significant disturbance of thought, mood, perception or memory that, without management, are likely to continue to adversely affect the lawyer’s capacity to engage in legal practice. How a lawyer under medical care would be without management might be a difficult thing for the lawyer to know. But a disclosure is likely to lead to a health assessment by a psychiatrist nominated by the Board the result of which is at the Board’s expense, inadmissible in evidence and strictly confidential, which seems pretty reasonable. In LSC v PJ [2015] VCAT 772, the practitioner said he suffered from bipolar disorder. He had engaged in extraordinary conduct, writing letters which ranted in a way most atypical of a lawyer in full health. He threatened his client without the faintest legal foundation to charge interest on arrears of fees of $7,100 at 15 times the permissible rate, which is to say $6,428 per annum. VCAT described the threat as ‘laughable’. He disclosed without prejudice communications inappropriately, leading VCAT to comment that ‘It is … hard to understand how a solicitor with 13 years’ experience practising in the area of employment law (plus over a decade of other relevant experience prior to that) could disclose a without prejudice offer made in the course of the conduct of the proceeding it related to.’ The practitioner was banned from practice for a year, ordered to pay the Commissioner’s costs of the plea, and ordered to undergo a mental health assessment to determine whether he is fit for practice prior to the issue of any future practising certificate. Presumably the ‘mental health assessment’ is a ‘health assessment’ of the kind referred to in Division 3 of Part 2.5 of the Legal Profession Act 2004. The order was made with the practitioner’s consent, but it is interesting that the Commissioner wished to have the Tribunal require the Board to conduct such an investigation at the Board’s expense regardless of the evidence given as to the practitioner’s state of health at the time of any application, since the Board must consider in every application for grant of a certificate whether the applicant is fit for practice, which includes whether he suffers any ‘material mental impairment’. The relevance of the practitioner’s mental illness was dealt with in the following way: In his application for renewal of his practising certificate in May 2013 [which was not proceeded with], Mr L disclosed that he suffers from bipolar disorder. Mr Snow suggested this could explain, or contribute to, his intemperate conduct. Mr L said it is controlled by medication under the supervision of a psychiatrist and his general practitioner. While saying he felt generally well, Mr L did not, deny that the condition could have some effect. No medical evidence was led about this, however. In the circumstances, and given Mr L’s agreement, I will impose the requirement that Mr L obtain a mental health assessment before being issued with a practising certificate in the future. In terms of specific deterrence, I am concerned that Mr L did not have full insight into the significance of his conduct the subject of all three charges, as described above. As noted, to some extent, he still seeks to justify the language he used in his correspondence to his client. Also, his submissions in relation to charges 2 and 3 did not demonstrate a full understanding of why the interest he charged was so excessive, and why it was wrong to disclose the without prejudice offer made. General deterrence applies here as well, given that the conduct comprised breaches of such fundamental duties of practitioners. Certainly, Mr L’s conduct harms the reputation of the profession and public confidence in it. But for the fact that the orders proposed for the Commissioner were consented to by the practitioner, one might say that there is a tension in the reasoning. If the practitioner was so mentally unwell that he must undergo a health assessment regardless of how many years after his psychiatrist thinks his condition was stabilised he applies for a practising certificate again, one might think that the mental illness substantially was sufficiently severe as to explain the ranting language, grandiose claims, inexplicable lapses and self-destructive lack of insight displayed at the hearing, and greatly ameliorated its wrongness. It is often said that conduct influenced by mental illness is not a good vehicle for general deterrence. Having read the decision, I wondered what would have been the outcome had a psychiatric report been commissioned and tendered, and had the practitioner not represented himself. It is quite possible that every opportunity for that to occur was sensitively provided and not availed of. Where such opportunities are not taken up, and the practitioner is competent to make those decisions, even if not as rationally as a person in more perfect health might, that is a decision which a prosecutor and a disciplinary Tribunal must respect. But if that did occur, it does not stop me from feeling a degree of sympathy for this unwell person who defended himself in what must have been a lonely and difficult prosecution. It will be interesting in light of s. 4.4.30 of the Legal Profession Act 2004 to see if this decision ends up on the disciplinary register. Now that it has been published on Austlii for the whole world to read, the practitioner might regard any successful application under that provision to be of little moment.