I have previously reported Justice Finkelstein’s views about the obligations of those who prosecute proceedings for a penalty (‘‘I would hold that a regulatory body that brings a civil proceeding to recover a penalty is under an obligation similar to that owed by a prosecutor to an accused.’). Barristers who are briefed by the Legal Services Commissioner in disciplinary proceedings have the same obligations as barristers briefed to prosecute criminal proceedings. But until tonight I was unaware that VCAT’s predecessor, the Legal Profession Tribunal, had actually indicated that the regulator himself (as opposed to his lawyers) owe obligations. In Victorian Lawyers RPA Ltd v Kaine [2001] VLPT 16, Senior Member Howell, Victoria’s most experienced decision maker in legal disciplinary matters, said of the Law Institute (which was for a while formally named ‘Victorian Lawyers RPA Ltd’) that it owed:
‘the obligations normally owed by a prosecutor, such as the obligation to bring to the attention of the Tribunal or to the attention of the practitioner any evidence that might be favourable to the practitioner’.
Continue reading “Legal Services Commissioner’s obligations of fairness”