Once you’ve done your time, prior misconduct not an indicator of fitness to practise

In JLL v Law Institute of Victoria Limited [2008] VCAT 456, a Box Hill solicitor who had paid only $5,000 of the $55,000 odd he owed under orders of the Legal Profession Tribunal was given a practising certificate by VCAT, overturning a decision of the Law Institute not to give him one on the basis that he was not a fit and proper person. Judge Bowman said the Institute had been wrong to rely on past misconduct which had already been considered by the Legal Profession Tribunal, and in respect of which the solicitor should be deemed to have ‘done his time’, so long as he entered into a repayment plan.

The solicitor’s practising certificate had been suspended until late 2006 (see below). His application for renewal was not received until April 2007. In the months after that while waiting for the application to be processed, he operated a conveyancing company, and did legal work on behalf of his existing clients competently and without complaint. He did work on the transfer of a lease of business premises which was clearly legal work he was not entitled to engage in because he did not have a current practising certificate, and wrote a letter on which he signed his name above the words “Barrister and Solicitor”. He cheerfully admitted to the crime of unqualified practice, in other words. It was a one-off breach. He had maintained outside his premises a sign which said “Walsh Spriggs [L] Lawyers”, even though the firm which once traded under that name no longer existed, and he was not qualified to practise. Judge Bowman said he should not have done so.

Acting for himself, he did not dispute many of the allegations levelled by the Institute, which had refused his application for the renewal of his suspended certificate on the basis that he was not a fit and proper person to practise law. He offered to confine himself to certain limited areas of practice ‘such as the handling of deceased estate, commercial matters not involving litigation, and the like’, but Judge Bowman said that a practising certificate with such vague restrictions would be unworkable. He proposed a plan for repayment of the monies outstanding, and Judge Bowman left it to the parties to work out a suitable plan. His Honour also said that the practising certificate would have the condition that the solicitor not be entitled to operate a trust account. What is interesting about the ruling are these paragraphs:

‘[Counsel for the Law Institute] submitted that the material placed before me by [the solicitor] was inadequate. No explanation had been forthcoming concerning the various offences committed by [the solicitor] which resulted in the suspension of his certificate. Not only was there no explanation of this, but there was no material, such as medical or other reports, which would indicate that his situation or approach had altered for the better. [Counsel for the Law Institute] submitted that an analysis of matters such as these is required in order for the Tribunal to be satisfied that [the solicitor] is a fit and proper person to hold a practising certificate.

Certainly the Tribunal must be satisfied that [the solicitor] is such a fit and proper person. However, it seems to me that, in fairness, some caution should be taken lest [the solicitor] be effectively dealt with twice for the same offences. The Legal Profession Tribunal heard the charges against him, imposed fines and costs, and suspended his practising certificate for a period of 12 months. He could apply for his certificate again at the expiration of the period of suspension. In other words, the Legal Profession Tribunal considered the material that was before it and imposed penalties accordingly. There seems to me to be a real limit upon the extent to which I can revisit the circumstances surrounding those offences and the penalties that were imposed. Obviously I am required to consider whether or not [the solicitor] is a fit and proper person within the meaning of the Act, but some balance should also be struck so as to ensure that there is not any unfair duplication of penalty.’

The nature of the wrongdoing which gave rise to the indebtedness under Tribunal orders of about $55,000 is not referred to in the reasons, however the orders include the following:

9 May 2003

  • Unsatisfactory conduct for not responding to a s. 149 Legal Practice Act, 1996 demand for information from the Bureau de Spank: fine $800, costs $750.

27 June 2003

  • Unsatisfactory conduct for not responding to a s. 149 Legal Practice Act, 1996 demand for information from the Bureau de Spank: fine $600, costs $500.

2 June 2004

  • Misconduct at common law (failed to comply with instructions, failed to communicate with client, failed to institute proceedings, falsely informed client that proceedings had been issued): fine $12,000, costs $7,640.
  • Misconduct by contravention of rule 3 Professional Conduct and Practice Rules 2000 (delay): reprimand.
  • Misconduct by contravention of rule 12 Professional Conduct and Practice Rules 2000 (failed to communicate with client): reprimand.

16 September 2004

  • Unsatisfactory conduct for not responding to a s. 149 Legal Practice Act, 1996 demand for information from the Bureau de Spank: fine $1,000, costs $1,000.

23 September 2004

  • ’13 charges of misconduct relating to the wrongful appropriation of clients’ monies and two charges of unsatisfactory conduct relating to failure to comply with requests of and undertakings to the Law Institute of Victoria Ltd’: compensation: $13,744, costs $14,303, practising certificate suspended for one year, severely reprimanded.

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