Suddenly, solicitors are losing their practising certificates for not cooperating with the Bureau de Spank

Update, 13 June 2008: In Legal Services Commissioner v GT [2008] VCAT 982, the solicitor failed to respond to a Bureau demand for 8 months. The complaint about which the Commissioner sought information was of not attending to client affairs, just like the complaint which, amongst others, gave rise to two misconduct findings and two ‘standards breaches’ about 10 years ago.  He got off with a light fine: $500, and costs agreed at about $1,500 on the basis that he was:

’employed by The Micah Law Centre Incorporated, which was conducted by All Saints Anglican Church at Greensborough.

8 He said that he was overwhelmed by the amount of work that he was required to perform.  He said that he worked six days each week, and sometimes seven days.  He said that he suffered from a “severe bronchial viral infection” for ten weeks prior to December 2007.  During that period he struggled to attend to his work, but was required to do so because there was no other person to attend to his files.  He added that he became physically and emotionally exhausted, and that his work had severely impacted upon his marriage.’

and that ‘he is without employment, and … he has not applied to renew his practising certificate as from 1 July 2008.  He also said that he is taking “time out for rest and recuperation”, and to re-build his relationship with his wife.’

Original post: This post is about recent s. 4.4.11(1)(a) prosecutions of 8 solicitors. Section 4.4.11(1)(a) of the Legal Profession Act, 2004 says that if the Bureau de Spank asks for a full written explanation of the conduct the subject of a complaint (or an investigation of the Commissioner’s own volition), or compels the production of apposite documents, the solicitor must cough up within the time specified in the demand, which may not be fewer than 14 days (but is routinely expressed as ‘within 16 days’ though within 16 days of what is not specified). Its predecessor was s. 149 of the Legal Practice Act, 1996. So many people are getting prosecuted that it was getting too boring to blog. But just when I was about to ignore them, VCAT started getting tough, and actually cancelled a couple of blokes’ practising certificates and said it would have cancelled another’s but for the fact that he was retiring anyway.

In Legal Services Commissioner v SM [2008] VCAT 841, the solicitor had failed to respond to demands for information in relation to three separate complaints, in each case for periods between 9 months and well over a year. The first time his misconduct prosecution came around, he did not show. Tenderly, VCAT adjourned the hearing and sent a new notice. Next time the solicitor did not show up again, without explanation. Member Butcher cancelled the solicitor’s practising certificate in his absence, and ordered him to pay the Commissioner’s costs of $4,600. The order in relation to the practising certificate is very odd, and looks to contain an error:

‘8 A local practising certificate is not to be granted to the respondent legal practitioner before 1 September 2008. If by 30 May 2008 the respondent legal practitioner provides to the Legal Services Commissioner full written explanations in relation to complaints made by [the 3 complainants] and provides to the Legal Services Commissioner his file in relation to the subject matter of the complaint made by [one of the complainants], he is to be eligible to be granted a local practising certificate as from 1 July 2008.’

In Legal Services Commissioner v NT [2008] VCAT 843 and 844, the solicitor’s practising certificate was also cancelled because of his failure to comply with two orders made last year when he was prosecuted for failing to cooperate with the Commissioner’s investigation (which I posted about here). He too failed to turn up for this latest hearing, or for the hearing of a fresh charge of failing to cooperate with the investigation of another complaint for which he was fined only $1,000 in recognition that his main source of income was presumably being taken away from him in the cancellation of his practising certificate from 1 June 2008. He got told not to reapply for a practising certificate for a year unless he complied with the 2007 orders by the end of May this year, in which case he could have a go at getting it back on 1 September 2008. He was ordered to pay the Commissioner’s costs of the two separate applications of $3,300. All four decisions may be found here.
Legal Services Commissioner v SA [2008] VCAT 690) is also slightly more interesting than usual in that the solicitor was on his sixth prosecution for the same offence within 5 years, and narrowly avoided losing his ticket. This time, he had failed to respond for almost 6 months. Member Butcher commented:

‘6 Had it not been for the fact that Mr [A] is dismantling his practice and making the transition to the role of employee solicitor, I would seriously have considered ordering the suspension of Mr [A’s] practising certificate not by way of punishment but by way of protection of the public. I am of the view that the closing of his practice and the move to being an employee solicitor where he will of necessity be under supervision, serves this purpose.’

Despite the recidivism, he copped a fine of only $1,000 (and costs of $2,183), because he is in precarious financial circumstances, fending off bankruptcy proceedings, and has kids to feed. Mr Butcher noted that he was familiar with the personal circumstances of Mr A. He might have been referring to these circumstances which he noted on 28 April 2006 in Legal Services Commissioner v SA [2006] VCAT 742:

’11 … upon receipt of envelopes marked “personal and confidential” addressed to him from the Professional Standards department of the Law Institute, he would become nervous and often not read those items of correspondence but would pass them on to Mr [T].

12 Mr [T] gave evidence that at one stage there was a pile of unopened letters from Professional Standards, however I take note that the period referred to by Mr [T] was prior to the period relating to these charges.

13 What is clear is that Mr [A] for whatever reason has not been dealing personally with these requirements made by the Law Institute and this is the difficulty he faces. Whatever was done within his office, the offence is still the failure to comply with the requirement of the Law Institute. It is not possible to shift responsibility to other members of staff and rely upon that as a defence to a failure to comply. The responsibility to comply is a personal one imposed upon every legal practitioner to whom such a requirement is addressed…’

In Legal Services Commissioner v DH [2008] VCAT 839, the solicitor’s excuses for ignoring the Bureau for a year commencing May 2007 were that his uncle died in July 2007 and had required the solicitor’s care beforehand, and the solicitor found his other job as an accountant tricky to juggle with being a solicitor. Misconduct was established and the solicitor was fined $2,500 and ordered to pay $1,500 in costs. VCAT figured that maybe the solicitor should say no to new matters for a while:

‘9 The situation in which Mr [H] found himself, quite apart from the personal distress, is one of where he says that looking after his uncle took a considerable amount of his time and now that his uncle has died he as the executor of the estate is still very busy dealing with his late uncle’s estate. This gives rise to a situation which, whilst the motives cannot be criticised, is a conflict of interest. In allocating time between personal commitments, family commitments and commitments of a non-professional nature, a member of the profession must not allow those to impinge upon the requirements to devote time to the practice of law. Time is to be devoted to the interests of clients and also to the requirements of the regulatory body. This is a responsibility of every member of the profession. …10 Mr [H] has also told me that he does not turn away any work. The short answer is, it may be necessary to do so in order to practice under a well regulated environment. The commitment of every legal professional is not only to attend to the affairs of clients but also to comply with requirements made by the regulatory body.’

In Legal Services Commissioner v VB [2008] VCAT 689, a 60 year old sole practitioner in practice for 37 years unblemished by anything other than a reprimand in 2004, took five and a half months to respond to a Bureau missive. He admitted the facts alleged against him, but said that it was the lesser disciplinary offence of unsatisfactory professional conduct rather than professional misconduct. He offered no good reason for the delay. One interesting aspect was that the delay was in an investigation by the Commissioner of her own motion following the receipt of a trust account inpsector, so it could not be said that any client’s complaint had been delayed. Irrelevant, Member Butcher said. Member Butcher was prepared to draw this inference in the solicitor’s favour ‘Mr [B] practises at Hastings and I would expect that a member of the legal profession practising in a location such as Hastings would be a significant member of the local community.’ I want a list of all the ‘locations such as Hastings’! The charge of misconduct was made out, but the penalty was a reprimand, a lighter penalty than has accompanied many a finding of unsatisfactory professional conduct. Costs were agreed between the parties at $1,586.

In Legal Services Commissioner v BH [2008] VCAT 687, the solicitor failed to respond to a Bureau demand to deliver up all he knew about a complaint for 18 months. He provided a response on the morning of the hearing. Oblique allusions to his personal and financial situation were made known, better spelt out in the sister decision of the same day, separately posted about here. Member Butcher observed that the fact that the solictor was ‘not enjoying great success’ was not a defence, and on the basis of the solicitor’s admission of the facts, and concession that they amounted to misconduct, the charge of misconduct was made out, and he was ordered to pay a fine of $1,500 and costs in the unopposed amount of about $1,700. The substantive charge was heard the same day (see this post), bringing the total of the fines and costs ordered to be paid by the solicitor to a smidge under $19,000.

In Legal Services Commissioner v LJS [2008] VCAT 685, the delay was 7 months. Charges of misconduct of exactly the same kind were made out twice in 2004 resulting in fines of $600 each, and once earlier this year resulting in a fine of $2,000. The three 2008 matters may be found here. In both matters this year, the solicitor said by way of explanation that he had endured ‘pressures in his practice including the resignation of a key staff member’ and problems of a personal nature. He alsosaid that he found it necessary to ‘devote a great deal of time to a soil excavation business that he conducts in Queensland, and a house construction business that he conducts in Victoria’. Senior Member Howell observed ‘I can only conclude that those commitments were self imposed. They do not absolve Mr. [S] from meeting his obligations to clients of his practice, including his obligation to deal with the complaint made by his client in this matter.’ He copped a fine of $2,000 and a costs order in the sum of $1,250.

In Legal Services Commissioner v SAC [2008] VCAT 576, the delay was 6 months but came only after a period of cooperation in the investigation of the complaint for its first 6 months. The matters put by way of mitigation (if any) are not recorded in the reasons. The solicitor was fined $1,000 and ordered to pay $1,400 or so in costs. Neither contrition nor ultimate compliance before the hearing were considered especially relevant by Member Butcher:

‘Ultimate compliance is no more than the responsibility which is imposed upon members of the legal profession under the Legal Profession Act 2004 and in fact the breach of the Act is not constituted by whether or not ultimately the compliance took place but the failure to comply within the appropriate time. It is quite clear that in this case there was a considerable delay. I have not been appraised of any reason why there was not an immediate response other than that Mr C was busy with his practice both by a requirement to attend at court and also the time taken in restructuring his practice.’

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