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To accept a reprimand or not to accept a reprimand?

June 17th, 2014 · No Comments

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 consentreprimand the lawyer, caution the lawyer, and require the lawyer to pay compensation to the complainant.  See Legal Profession Act 2004, s. 4.4.13.

My clients frequently have to make a decision about whether to consent to a reprimand or take their chances.  The way the choice is presented to them, they usually conceive of it as a choice between (i) public prosecution in an environment where it is very difficult to get a costs order against the Commissioner if they succeed and have to pay the Commissioner’s costs of the disciplinary prosecution (including those of the Commissioner’s employed solicitors) on County Court scale if they lose and (ii) a private reprimand.

I make 7 points about all this in the balance of this post.

1.  The take no further action option is only available where the Commissioner is satisfied that the practitioner is generally competent and diligent and ‘there has been no substantiated complaint’ within the 5 years prior to the decision.  The Commissioner takes ‘substantiated complaint’ to include any complaint at the end of the investigation of which the Commissioner is satisfied that there is a reasonable likelihood of VCAT finding the lawyer guilty of conduct warranting discipline, even if the result of reaching that state of mind is that he takes no further action.  The Supreme Court has agreed in relation to a similar provision: Styant-Brown v Legal Ombudsman [2001] VSC 164 (Beach J, accepting the argument of a Mr Nettle QC).

So there’s your first reason not to be too supine in your acquiescence to an attractive sounding offer of resolving the whole affair on the basis of a private reprimand.

2. The Commissioner in my experience does not usually say ‘I have decided to prosecute you unless you consent to a reprimand’ but rather invites practitioners to indicate whether they would be prepared to consent to a reprimand in default of which he will have to consider prosecuting.  If I were being investigated by the Commissioner, I think I would in certain circumstances require him to tell me whether he had reached the requisite state of satisfaction before advising whether I consented to a caution, reprimand or compensation direction.  Otherwise, my willingness to accept a reprimand might be one of the matters that the Commissioner takes into account in reaching that state of satisfaction.

It is worth keeping in mind that even at this stage of investigation, good argument may convince the Commissioner that the appropriate course is to take no further action and lawyers would be well advised to take advice from someone who knows how s. 3.4.13 is implemented in practice as to the likelihood of a prosecution (as opposed to taking no further action). Sometimes it is worth it for a well-advised lawyer to take a punt on the Commissioner deciding not to prosecute, but more often, I see prosecutions and look with incredulity at the unadvised practitioner’s failure to avoid, by taking a reprimand offered to them, the prosecution now consuming their lives.

Of course, refusal to consent to a reprimand may also be interpreted as a lack of insight into the disciplinary offending and/or a lack of remorse, which might be taken into account in deciding to prosecute.  Any communication of a refusal to consent to a reprimand, etc. ought to be at pains to avoid this impression if that is possible given the facts and the honestly held states of mind of the lawyer.  One might, for example, refuse to consent on the basis that there has been an inadequate investigation to date such that the Commissioner could not yet properly have arrived in his mind at the state of satisfaction which is the trigger for the reprimand, or on the basis of a reasonably arguable view of the applicable law, rather than on the basis of a denial of the conduct.

3.  Disciplinary tribunals have accepted into evidence letters of the Commissioner and his predecessors communicating the fact that they have been satisfied that there is a reasonable likelihood that if he or they prosecuted the solicitor there is a reasonable likelihood that they would be found guilty of conduct warranting discipline.  These are relied on in the disposition phase of the hearing as ‘priors’.  Presumably this is on the basis that the Commissioner’s opinion is evidence that there is a ‘reasonable likelihood’ of conviction tends to prove that the conduct which would be the subject of the conviction in fact occurred and, in where a reprimand was administered, the solicitor’s consent to that course is an admission which also tends to prove that fact.  I know of no authority where any challenge to the adduction of such evidence has been resolved; no one seems to have thought to challenge the admissibility of such correspondence in cases such as Mancini v Legal Practitioners Conduct Board [2014] SASCFC 31 at [15] – [18], and in a disciplinary prosecution of a solicitor the subject of an unreported decision from 2008 in  J189/2008 & J98/2008 of Ross J sitting in VCAT in which reasons were given (see [26] of the reasons).

Subject to resolution of the admissibility of this kind of evidence, there’s your second reason not to be too charmed by the prospect of a no-costs slap over the wrist in a letter (at least if you think there is any prospect of you being prosecuted again).  These kind of outcomes have a habit of building up giving lawyers a false sense of optimism about the likely disposition of recurrent complaints until such time as the Commissioner thinks that enough is enough and brings a prosecution in which the penalty sought is justified not only by the findings in the prosecution itself, but also by the previous instances of unsatisfactory professional conduct which were never tested.

4.  The Commissioner’s reaching of a state of satisfaction that it is reasonably likely that VCAT would find the lawyer guilty of conduct warranting discipline is a ‘decision’ in the sense that it is amenable to judicial review even if the result of reaching that state of mind is that the Commissioner takes no further action: SPB v Law Institute of Victoria [2005] VSC 509, the subject of my post ‘Justice Gillard Gives the Law Institute a Bloody Belting’.  And there’s your third reason to think carefully about the question which is the title of this post: the review is going to be harder if you have consented to the reprimand (though it does not seem unarguable to me that review may be sought of the ‘decision’ that VCAT is reasonably likely to find the lawyer guilty of unsatisfactory professional conduct, especially if the reprimand is consented to on a basis which does not admit certain of the factual premises giving rise to it).

5.  Oddly, the reaching of this kind of state of satisfaction in the Commissioner’s mind is not within s. 4.4.25’s definition of ‘disciplinary action’ for the purposes of the publicly available disciplinary record (see s. 4.4.26).  If s. 4.4.13 decisions not involving prosecution are sufficiently reliable to be brought to bear as priors in disciplinary prosecutions, the parliament ought to consider making them available to the public via the disciplinary register.

6.  There is an extraordinary pressure on lawyers in Victoria to consent to reprimands when offered the option and it is very important for the Commissioner to act fairly at this stage of an investigation.  Because if he did not do so, difficult cases might be brought to an end which will not attract too much flak from the complainant, not have to suffer the glare of judicial scrutiny, and be acceptable to the practitioner, without the kind of rigorous investigation and analysis which ought to underpin what is, in the two important respects referred to above, a serious stain on a practitioner’s professional record.  The time might come when those with litigious disputes with lawyers subpoena these kinds of disciplinary outcomes and use them as tendency evidence or to attack the credit of a solicitor: if they’re admissible in the quasi-criminal sphere of disciplinary prosecution, why not also in a taxation?

7.  Don’t get me wrong.  It will often be by far the most sensible thing to do to consent to a reprimand, knowing the consequences.  But it is equally important to demand precision in relation to precisely what conduct is the subject of the reprimand, and one should be vigilant to ensure that that subject matter is in fact something which has been complained about or the subject of a properly commenced own-motion investigation.

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Tags: Discipline · Evidence