VCAT explores definition of professional misconduct at common law unconnected with legal practice

In Legal Services Commissioner v RAP [2009] VCAT 1200, the Bureau failed to establish a charge of professional misconduct at common law against a solicitor in respect of conduct which occurred otherwise than in the course of, and unconnected with, legal practice.  (Another charge, not the subject of this post, succeeded.) The allegation was that he:

‘deliberately misled a person with whom he had entered into a commercial transaction, thereby behaving in a manner that would reasonably be regarded as disgraceful or dishonourable by fellow practitioners of good repute and competency’.

The solicitor had negotiated in late 2005 with a car dealer for the purchase of a $1.4 million [sic.] car. He was not acting for anyone; he was to be the purchaser.  There had been a trial of a Supreme Court dispute over whether the solicitor had contracted to purchase the car, and it was on the back of Justice Hargreaves’ findings in that case (RAP v Sportiva Macchina International Pty Ltd [2006] VSC 321), which were scathing of the solicitor, that the Commissioner laid her charges.

In the Supreme Court, the solicitor had admitted in cross-examination to lying to the car dealer about the imminence of his achievement of finance.  Ultimately, he could not obtain finance, resulting in him seeking to avoid the alleged contract.  By lying, he kept open his position as potential purchaser for some weeks, and the car dealer did not otherwise market the car.

At [98] Judge Ross’s tribunal identified 3 categories of conduct otherwise than in the course of legal practice and unconnected with legal practice in respect of which most of the findings of unprofessional conduct at common law have been made:

  1. Criminal convictions;
  2. Less than perfect candour and good faith as a litigant;
  3. Other misconduct. (This is a rather unhelpful last category for a taxonomy, but content can be given to it: the examples given are abject failure to pay tax over a long period, and conduct charged as criminal and which could be seen to be reprehensible notwithstanding the frustration of prosecution, or acquittal on technical grounds).

At [126], Judge Ross’s tribunal concluded that ‘generally speaking, two factors form the basis for the disciplinary action in these [three categories of] cases’.  The tribunal continued:

127 The first is that the fact of conviction would damage the reputation and standing of the profession in the eyes of the public if the practitioner were allowed to remain in practice [footnote: Eg. Law Society of South Australia v Rodda (2002) 83 SASR 541 at [25] per Doyle CJ, Williams and Besanko JJ delivering concurring judgements [sic.]; NSW Bar Association v Hamman [1993] NSWCA 404 at [87]; New South Wales Bar Association v Bryson [2003] NSWADT 19 at [69]; Prothonotory of the Supreme Court of NSW v Pangallo (1993) 67 A Crim R 77.]

128 The second is that the conduct in question manifests the presence or absence of qualities which are incompatible with, or essential for, legal practice.  In this context the legal profession has long required the highest standards of honesty and integrity.  In [NSW Bar Association v Cummins
(2001) 52 NSWLR 279] his Honour Spigelman CJ explained why this is so, at p 284:

“There are four interrelated interests involved.  Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers.  Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues.  The judiciary must have confidence in those who appear before the courts.  The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice.  Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.”

Having considered the law, the tribunal applied it to the facts in this prosecution in the following way:

‘We now turn to [the solicitor’s] conduct.  [The solicitor] lied in the context of a private commercial transaction.  But it is not suggested that he has engaged in criminal conduct.  Nor did the conduct occur in the context of litigation.  His conduct may amount to a civil wrong – it may be said to be misleading or deceptive conduct in the context of the Fair Trading Act 1999 (Vic).  But even if that were the case there is no evidence of any loss suffered by [the car dealer] consequent upon [the solicitor’s] conduct.  The fact that [the car dealer] was a former client of [the solicitor] is an aggravating factor, and we have taken it into account.  But while [the solicitor’s] conduct was reprehensible we are not persuaded that it amounts to misconduct at common law.  On the basis of our overview of the decided cases it seems to us that [the solicitor’s] conduct is significantly less serious than the type of conduct which has warranted disciplinary action.’

The decision sets a high hurdle for prosecutors who wish to establish misconduct in respect of conduct unconnected with legal practice.  After all, a solicitor committed to writing addressed to a former client two out and out lies, apparently actuated exclusively by avarice with a view to obtaining an illegitimate personal advantage.

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