Can you be prosecuted for mere negligence?

There is no doubt that mere negligence cannot constitute misconduct in the traditional concept of that expression: Myers v Elman [1940] AC 282 at 288; Re Hodgekiss (1959) 62 SR(NSW) 340 at 351; Re Veron (1966) 84 WN (Pt 1) (NSW) 136 at 143 (CA); Re Miles (1966) 84 WN (Pt1) (NSW) 163 at 173 (CA); Pillai v Messiter (No 2) (1989) 16 NSWLR 197. Gross negligence, or a pattern of simple negligence, may amount to misconduct. And to say that mere negligence cannot constitute misconduct is not to say that things characterisable as negligence and things characterisable as professional misconduct are mutually exclusive. Delay is a different kettle of fish: that can certainly be misconduct. This post looks at some modern definitions of unsatisfactory professional conduct and cites authorities for the blindingly common sense proposition that mere negligence without more ought not found any disciplinary charge against a lawyer.

But s. 4.4.2 of the Legal Profession Act, 2004, like its NSW counterpart, s. 495 of the Legal Practice Act, 2004 (NSW), and its predecessor, s. 137 of the Legal Practice Act, 1996, defines the lesser disciplinary offence of “unsatisfactory conduct” as including:

“conduct … occuring in connection with the practice of law which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner”.

The NSW Legal Services Commissioner states in a fact sheet that:

“The [Administrative Decisions] Tribunal and superior courts have determined that negligence is a form of unsatisfactory professional conduct or professional misconduct only when it goes beyond ‘mere carelessness’ or ‘mere negligence’. For example:

  • A legal practitioner who does not know that a contract for the sale of land must be stamped before it can be registered shows a lack of professional competence and diligence. This could lead to disciplinary action.
  • A practitioner might know that a contract needs to be stamped but make a simple mistake when calculating the amount of stamp duty due. This would probably be ‘mere negligence’ — not a breach of the Act leading to disciplinary action.”

Solicitors may draw some comfort from the WA State Administrative Tribunal’s decision in Legal Practitioners Complaints Committee v Lacarenza [2006] WASAT 177 where Judge Chaney considered a case based not on any dishonesty, but on an alleged string of defects in the represenation of a man in a matrimonial property settlement case.

The Western Australians, iconoclastic as always, have three concepts of professional wrongdoing rather than the more common “misconduct / unsatisfactory conduct” dichotomy. You can be pinged in WA for “illegal conduct”, “unprofessional conduct” or “neglect, or undue delay, in the course of the practice of the law”.  Judge Chaney said at [8] to [11]:

“‘neglect’ must necessarily involve a failure to act or an omission of some form on the part of a practitioner, and must be something more than mere negligence.

The coupling of ‘neglect’ and ‘undue delay’ in the same subparagraph … suggests that there will often be an overlap between the two concepts.

… the inquiry in the context of an allegation of neglect in the course of the practice of the law is not concerned with mere negligence, but requires consideration of whether an omission is of sufficient seriousness to warrant professional disciplinary action.”

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