How to distinguish between unsatisfactory professional conduct and professional misconduct under the new Act

The definitions of the greater and lesser disciplinary offences under the Legal Practice Act, 1996 and the new Legal Profession Act, 2004 are different.  Under the old act, the one was distinguished from the other by the absence or presence or wilful contravention of norms, or recklessness as to whether conduct would contravene norms. No longer. But in Legal Services Commissioner v SM [2007] VCAT 2117, Member Butcher held that intent is still a useful guide in distinguishing between the two.  In that case, a 47 year old sole practitioner sought to explain a 3 month delay in responding to a demand by the Legal Services Commissioner for a written explanation of conduct a former client had complained about, and succeded in having his conduct characterised as the lesser rather than the greater species of disciplinary offence. He was fined $1,000 and ordered to pay costs of $2,165. How the costs were calculated is once again intriguing, since a salaried employee of the Commissioner appeared on her behalf.  The plea went like this:

‘The personal life of [the solicitor] has been put to the Tribunal as having had considerable difficulties over the last year.  Difficulties with a son and with a subsequent diagnosis which has gone towards explaining that son’s conduct, the effect on [the solicitor] and his family and the additional stress brought about by this on top of a long working week as a sole practitioner has resulted in what has now been diagnosed as a case of depression on [the solicitor’s] part.  [He] has now sought assistance from his treating physician and from Mr Geoff Gronow [the Law Institute of Victoria’s Members’ Advocate] as mentor.  However, I note that it appears that this has only come about as a result of some encouragement from Counsel over the last few days.  Be that as it may, this has produced a situation which has resulted in a report from Dr Edwards who states that he has been [the solicitor’s] doctor for about 23 years.  Whilst Dr Edwards does not appear to have any qualifications in psychiatry, I accept that being in a situation where doctor patient relationship has existed for that period of time the doctor would be in a good position to assess his patient in terms of the question of whether the patient was suffering from depression.  The doctor has recommended psychological counselling and it has been submitted on behalf of [the solicitor] that he accepts that matters will not now right themselves.’

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