Under the Legal Practice Act, 1996, the distinction between what was then called ‘misconduct’ and what was then called ‘unsatisfactory conduct’ of the kind constituted by a breach of a conduct rule or of a provision of the Act, depended on whether the breach was wilful or reckless, in which case it was misconduct, or not, in which case it might amount to unsatisfactory conduct. That distinction was abandoned in the Legal Profession Act, 2004, but continues to be used by VCAT’s Legal Practice List as a guide to determining whether a breach of the rules or the Act amounts to the more or less serious of the categories of disciplinary wrongdoing, now known as ‘professional misconduct’ and ‘unsatisfactory professional conduct’. The meaning of ‘reckless’ in this context has long been governed by an unreported decision of JD Phillips J, Zaitman and Law Institute of Victoria, Supreme Court of Victoria, 9 December 2004.
It was summarised in the biggest Victorian lawyers’ discipline case in recent years, Victorian Bar Inc v CEM QC  VCAT 1417, and the relevant passage is a much easier way to work out what ‘reckless’ means in this context than a consideration of Zaitman’s Case which does not give up its essence easily. The whole passage is set out below, but the take home point is that:
‘in order to establish recklessness, it is necessary to show that [the lawyer] appreciated the risk that their conduct in a particular instance might possibly amount to a breach of the rule, and knowing that risk, proceeded, intending to take that risk. In circumstances where [the lawyer] holds a bona fide belief that their conduct does not amount to a contravention of the rule, it cannot be reckless for [him or her] to proceed.’
MISCONDUCT : “WILFUL OR RECKLESS CONTRAVENTION”
113 Each of the charges prosecuted before us alleges that, in the Federal Magistrates Court proceeding before Bryant CFM which had been determined on 1 October 2003, counsel had “wilfully or recklessly … contravened” a particular rule of the Victorian Bar Rules of Conduct (“the Rules of Conduct”).
114 Thereby each charge alleges misconduct as defined by section 137 of the 1996 Act.
115 Section 137, so far as is relevant to this prosecution, defines “misconduct” as follows:
(a) misconduct by a legal practitioner or firm in the course of engaging in legal practice, including –
(i) wilful or reckless contravention of this Act, the regulations or practice rules that apply to the practitioner or firm or any other Act that relates to legal practice.
116 Section 161 provides that a legal practitioner or firm charged only with misconduct may be found guilty instead of unsatisfactory conduct.
117 Section 137, so far as is relevant to this prosecution, defines “unsatisfactory conduct” as follows:
(b) contravention of this Act, the regulations or practice rules that apply to the practitioner or firm or any other Act that relates to legal practice, not amounting to misconduct;
118 The interpretation of the meaning of “wilful or reckless contravention” in relation to “misconduct” was considered in the judgment of Mr Justice J D Phillips in Aaron Zaitman and Law Institute of Victoria delivered 9 December 2004 (unreported) and has been followed by the Tribunal from the date of its delivery.
119 In short compass Zaitman, a solicitor of some years experience in commercial matters, acted for both parties in loan transactions in a conflict of interest situation.
120 Zaitman was charged with misconduct by breach of the Practice Rules.
121 He professed ignorance of the requirements of the rules. His Honour held practitioners were bound as a matter of professional duty to keep themselves abreast of the rules and it would be counter-productive to allow a claim of ignorance of the rules to constitute a defence to a charge of misconduct.
122 In the course of his judgment his Honour discussed the mental element relevant to a charge of wilful or reckless misconduct.
123 In this case we are not concerned with wilful contravention of the rules. The Bar do not suggest such finding be made against [the respondent QC].
124 We consider the “Memorandum of Contention” provided to us by the Bar once the issue was raised for consideration accurately summarises his Honour’s judgment in relation to the meaning of “reckless”:
a. that the definition required that the contravention itself – not merely the conduct said to constitute the contravention – be wilful or reckless (pp 50-51);
b. that a contravention should be held to be wilful in the case of a practitioner who “knows that it is a contravention of the Act (or the rules or regulations, as the case may be) for him to do or to fail to do some particular thing, intentionally to do that thing or fail or omit to do it” (p 51); and
c. that “the word ‘reckless’ should be taken as requiring no more than that the solicitor be shown to have acted, not in the knowledge just described, but with reckless indifference, not caring whether what he does, or fails or omits to do (as the case may be) is a contravention of the Act, the rules or the regulations” (p 51).
3. As to the concept of recklessness, his Honour elaborated as follows (p 52):
It is implicit in what I have just said that, while the solicitor, who does not knowingly act in contravention, must be shown to have foreseen that what he was doing might amount to a relevant contravention, there is no need to go further and establish that the solicitor foresaw the contravention as “probable”; it is enough that he foresaw it as “possible” and then went ahead without checking. … [I]t will be enough if the solicitor … is shown to have been aware of the possibility that what he was doing or failing to do might be a contravention and then to have proceeded with reckless indifference as to whether it was so or not.
125 In final submissions to us (7.44) the Bar referred to the above passage and submitted:
What JD Phillips J meant, in other places in his judgment, by “reckless indifference” should be seen in the light of this passage. It is not confined to a situation where the practitioner is cavalier about his or her obligations under the rules. It extends to a situation in which the warning lights are visible but the practitioner does not check. When an obligation arises to check, and what constitutes sufficient checking, will depend upon the circumstances.
126 In paragraph 7.45 the Bar enumerated a number of circumstances culminating in a submission in paragraph 7.46 “In these circumstances it is submitted that the Respondent did not do enough to check whether she was on a safe course apropos the Bar Rules”.
127 We agree that as a general proposition [the respondent QC] did not do enough to check before making very serious allegations against [a solicitor for the QC’s client’s opponent in litigation] Joseph.
128 In Zaitman’s case that was a very relevant fact, however, on the facts of the case before us, particularly as they crystallized at a late stage of the hearing, the facts differed quite markedly in material respects.
129 [The QC’s counsel] presented their final submissions before [the Bar’s counsel]. At the conclusion of those submissions [the Bar’s counsel] sought an adjournment for the purpose of finalising the Bar’s final submissions.
130 [The Bar’s counsel] said (T 1669 L 3-11):
It will be no secret that one of the critical issues that we wish to consider before finalising our submission is the extent to which on particular allegations the evidence sustains wilfulness or recklessness or merely a breach of the Bar rules, or neither. And the Tribunal will also understand that it has been impossible to address those sorts of questions without first hearing and then considering the specific justifications and responses which the two respondents have given.
131 [The Bar’s counsel] commenced his submissions the following morning. He said (T 1674 L 12-23):
In all cases the Tribunal will find and will already be well aware there is an objective requirement of reasonableness written into the rules. In some cases that is supported by an (indistinct) the barrister in fact had a particular belief. In cases of that kind what the barrister’s belief was is a question of fact for determination by the Tribunal but that will necessarily be heavily influenced, if not governed, by the evidence that the barristers themselves have given in this case. We don’t, on our submissions, contend that the barristers’ beliefs in this case were other than what they have stated them to be to the Tribunal. [Tribunal underlining]
132 We mention the above matters to refer further to the judgment of J.D. Phillips J in Zaitman’s case where his Honour further elaborated on the meaning of reckless:
[T]he word ‘reckless’ should be taken as requiring no more than that the solicitor be shown to have acted, not in the knowledge just described, but with reckless indifference, not caring whether what he does or fails or omits to do (as the case may be) is a contravention of the Act, the rules or the regulations. The solicitor must, I think, have appreciated the possibility that his conduct (whether it be act or omission) might amount a breach of the Act, the rules or the regulations; for otherwise it is difficult to say that he acted with the necessary reckless indifference. To put it another way, the solicitor must, I think be shown to have known of the risk and intended to take that risk.
Then at P 53 his Honour said:
If a solicitor, having addressed the possibility of a contravention decides bona fide (albeit on what turns out to have been a mistaken view of the facts) that which he is doing or is about to do does not amount to a contravention, then such contravention as follows cannot in the circumstances be said to be ‘wilful’ – but nor can it be called reckless, on the basis of the foregoing.
133 It would seem to follow that the above passage makes it clear that in order to establish recklessness, it is necessary to show that counsel appreciated the risk that their conduct in a particular instance might possibly amount to a breach of the rule, and knowing that risk, proceeded, intending to take that risk. In circumstances where counsel holds a bona fide belief that their conduct does not amount to a contravention of the rule, it cannot be reckless for counsel to proceed.
134 We repeat that the Bar having taken time to consider the “specific justifications and responses which the two Respondents have given” in relation to the issue of wilfulness or recklessness stated “we don’t … contend that the barrister’s beliefs in this case were other than what they have stated them to be to the Tribunal”.
135 In our view in order to establish recklessness it must be proved that a counsel appreciated a risk that his or her conduct in a particular instance might possibly amount to a breach of a rule yet proceeded with the conduct. That mental element to be proved by the Bar is an essential element of recklessness.’
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