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Legal Services Commissioner’s obligations of fairness

June 29th, 2013 · No Comments

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’.

This is what he said, more fully:

The role of an RPA in disciplinary proceedings:

Mr. Senathirajah of counsel, who appeared for Victorian Lawyers RPA Limited, described the role of an RPA in the present proceedings as involving in general terms the investigation of a complaint by Mr. Milder, the formation of a view as to whether there was a reasonable likelihood that the Tribunal would find Mr. Kaine guilty of misconduct and, being satisfied that the Tribunal would make such a finding, to bring a charge before the Tribunal and to present evidence in support of the charge. In substance, Mr. Senathirajah contended that, having formed the view that there was a reasonable likelihood that the Tribunal would make a finding of misconduct, Victorian Lawyers RPA Limited was obliged to bring a charge of misconduct before the Tribunal and to assist the Tribunal to hear and determine the charge. Mr. Senathirajah contended that Victorian Lawyers RPA Limited had done nothing more than carry out its statutory obligations, and that no special circumstances had arisen.

I do not see the role of an RPA during the hearing of disciplinary proceedings to be to assist the Tribunal. The Tribunal welcomes assistance, but I see the role of an RPA in disciplinary proceedings to be that of a prosecutor. Of course, that role assumes 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.’

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Tags: Discipline · duties regarding witnesses · duty to court · Ethics · Legal Services Commissioner · litigation ethics · Professional regulation · prosecutors' duties