Update, 17 October 2014: K-R v Council of the Law Society of New South Wales [2014] NSWCATOD 115 provides an example of poor decision making when a disciplinary investigation was resolved by a reprimand imposed by the NSW Law Society instead of by disciplinary prosecution in NCAT (NSW’s VCAT). The Council got the law wrong, and got another thing wrong too. Even if the law was as the Council wrongly believed, the practitioner’s construction of the law was not so unreasonable as to justify a finding that her conduct, engaged in in the belief that her construction was right, amounted even to unsatisfactory professional conduct. It would just have been a mistake which did not warrant discipline and the Council should not have arrived at the state of satisfaction which triggers the power to reprimand. That is, the Council should not have been satisfied in the circumstances that there is a reasonable likelihood that the practitioner would be found by the disciplinary tribunal to have engaged in unsatisfactory professional conduct if prosecuted. Sometimes — not always — I get the impression from Australian Bureaux de Spanque that most breaches of the Act or conduct rules automatically equate to unsatisfactory professional conduct. Of course that is not so. Sometimes I get the impression that there is a regulatory position that breach of the trust accounting rules automatically equates to professional misconduct. This decision demonstrates that that is not so.
In the last paragraph of the reasons, members Chesterman, Riordan and Hayes observed that the whole idea of disciplining practitioners based on satisfaction of a reasonable likelihood that a prosecution would be successful was ‘unsatisfactory’:
‘In conclusion, we wish to draw attention to an aspect of section 540 that we regard as unsatisfactory. In its present form, it can produce the outcome that a legal practitioner is reprimanded (or is subjected to one or more of the other lesser penalties listed in subsection (2)) even though it has not been affirmatively shown that he or she engaged in unsatisfactory professional conduct. The lower threshold set out in subsection (1) – that of a ‘reasonable likelihood’ of such a finding – applies both when the Legal Services Commissioner or a Council chooses to invoke the section and when administrative review of an adverse decision is sought by the legal practitioner concerned. By contrast, if the matter proceeds by way of a disciplinary application to NCAT (which is now the relevant tribunal), an order by way of penalty will only be made if unsatisfactory professional conduct is proved to NCAT’s satisfaction.’
There are two differences between the NSW provision analysed by this decision and the current Victorian provision. First, the practitioner’s consent is not a condition of the Bureau de Spanque up North imposing a reprimand. Secondly, there is a specific statutory right to obtain review of decisions such as this.
Under the Legal Profession Uniform Law to come into force in Victoria and NSW next year, the Bureaux de Spanque will have to make a determination that there has been unsatisfactory professional conduct — none of this ‘satisfied that there is a reasonable likelihood’ nonsense. It is to be hoped that skilled legal decision makers will be assigned to this quasi judicial task. Once such a determination has been made, however, the Bureaux will have the power to award fines of up to $25,000 or impose other sanctions chosen from a statutory smorgasbord. Given that fines of $25,000 or more are rare in Victoria and NSW alike, this essentially means, in practical terms, that for most lesser disciplinary complaints, ultimate decision making power is being transferred from public tribunals to employed decision makers operating in private. I should not be taken to be suggesting that that is necessarily a bad thing. But it is something which should be discussed.
Of course, many times it may not be possible for a decision maker in the new regime safely to make a determination on the papers without admissions from the respondent. In those cases, it may well be that the Bureaux would have no choice but to lodge a prosecution or take no further action, even if the practitioner were prepared to consent to the making of a reprimand.
Original post, 17 June 2014: Following a disciplinary investigation, Victoria’s Legal Services Commissioner must form an opinion as to the likelihood of VCAT finding the lawyer guilty of conduct warranting discipline. If he is satisfied that there is a reasonable likelihood of VCAT finding the lawyer guilty of something, his options depend on what that something is. If it’s professional misconduct, then he must prosecute. If it’s unsatisfactory professional conduct, he can take no further action, or he can prosecute. And then there’s the in between bit: in the case of suspected unsatisfactory professional conduct he can also, with the lawyer’s consent, reprimand the lawyer, caution the lawyer, and require the lawyer to pay compensation to the complainant. See Legal Profession Act 2004, s. 4.4.13.
Continue reading “To accept a reprimand or not to accept a reprimand?”
