Rehabilatory orders as professional discipline disposition

In Victoria last year, a deal was struck between the Law Institute and a solicitor whose practising certificate it had cancelled.  A retired solicitor was appointed as a mentor to the solicitor, who was allowed to return to practice subject to the Legal Practice Board’s supervision through the retired solicitor’s agency.  Bitter litigation was brought to an end.  There was a precedent: Legal Services Commissioner v BH [2008] VCAT 686.  And it is not unlikely that that precedent was borne out of important guidance issued by the Court of Appeal in PJQ v Law Institute of Victoria [2007] VSCA 122 per President Maxwell with whom Justices of Appeal Chernov and Nettle agreed:

’31 Critically for present purposes, however, the Tribunal’s protective function is paramount. Thus, where there is a choice of sanctions, it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public.

32 In my opinion, the Tribunal was here faced with just such a choice. Counsel for [Mr Q] had offered the Tribunal an undertaking to have his bills of costs independently assessed. This undertaking was offered apparently without limit of duration. As Buchanan JA and I said when granting a stay of the suspension, the imposition of a continuing obligation of that kind would seem likely to afford considerably greater protection to the public than a period of suspension, unaccompanied by any requirement of training or further education, followed by a resumption of unsupervised practice. Put simply, compliance with the undertaking would ensure that there was no recurrence of the overcharging which occurred here.

33 As I have mentioned, the Tribunal’s otherwise careful reasons for decision make no mention of the proffered undertaking. The Tribunal said that it had considered other options short of suspension but in my view, because of the long-term protection which the undertaking offered the public, that course required separate consideration and evaluation.’

The Bureaux de Spanque Medicales are much better than their legal equivalents at fashioning these kinds of orders (but then there is a dearth of experienced doctors while there is a glut of lawyers, so necessity is the mother of invention).  Anyway, the Queenslanders are onto it.  In Legal Services Commissioner v MPD [2009] LPT 08, the Bureau de Spanque Tropicale heard charges against a solicitor for breach of the rule in Browne v Dunne, and several trust account irregularities which involved no dishonesty.  The solicitor pleaded guilty, and everyone involved thought these lovely orders to be most appropriate:

‘[The solicitor:]
1. be publicly reprimanded for professional misconduct;
2. engage Peter Lynch to provide a six month practice management coaching program and thereafter to provide a report to the Legal Services Commissioner confirming the respondent’s participation in the training required under that program;
3. pay the Legal Services Commissioner’s costs fixed at $2,500.’

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