Misconduct constituted by ignoring the Bureau

In the last post, a solicitor ignored the Bureau de Spank for 3 months, a default explicable by personal circumstances and depression during the relevant period.  In Legal Services Commissioner v JEH [2007] VCAT 2181 (27 September 2007), a Warragul solicitor ignored the Commissioner for almost 6 months. The reasons are broad-brush in their approach to the nature of the plea, but it sounds like the excuses were more diffuse and less tied down to the relevant period of the default than those in the previous case, so Member Howell made a finding of misconduct. The reasons’ characterisation of the self-represented plea was:

‘7    [the solicitor] gave evidence about events of a stressful nature that have arisen in his practice, and in his personal life, during the last 15 years.  I have no reason to doubt his evidence, and his evidence caused me to have considerable sympathy for him, but the events about which he gave evidence do not excuse him from providing to the Commissioner a full written explanation of his conduct.’

To add to the confusion about the difference betweeen misconduct and unsatisfactory professional conduct under the new Act, however, exactly the same penalty was meted out as in the previous case: a $1,000 fine and costs, fixed at $2,352, but without the reprimand.

The solicitor might have pointed to s. 4.2.8 of the Legal Profession Act, 2004 in the context of the fact that the Commissioner did not even publish the complaint to him for a month after receiving it, and said something about the pot calling the kettle black, but unrepresented though he was, I infer from the reasons that he restrained himself, probably quite sensibly.  That section says:

4.2.8    Notification

(1)    The Commissioner must give a law practice or an Australian legal practitioner written notice of a complaint made about the practice or practitioner as soon as practicable after the complaint is made.’

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