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The Bureau de Spank’s obligation not to publish about disciplinary orders until lawyers’ appeal rights are spent

June 19th, 2016 · No Comments

Parliament is considering a bill to re-instate the disciplinary register, and to prohibit the Bureau de Spank from trumpeting its successes before the respondent practitioners’ appeal rights are exhausted: Legal Profession Uniform Law Application Amendment Bill 2016 (Vic.).  Cl. 150E of the Bill proposes to prohibit the Legal Services Board from providing to the public information about disciplinary orders made by the VCAT’s Legal Practice List while appeals or appeal rights are live.  The prohibition extends beyond publication on the proposed disciplinary register to disclosure of information to the public more generally.

There is a problem with the Bill though: it focuses its protection of the profession on prohibitions of publications by the Legal Services Board about final orders.  The Board shares a website and premises with the office of the Legal Services Commissioner.  The CEO of the Board is in fact the Legal Services Commissioner, Michael McGarvie, who is also the applicant in all disciplinary prosecutions of lawyers in Victoria.  Yet the CEO, qua Commissioner, is content for his staff to write about cases he is prosecuting, before any orders have been made and while the tribunal is considering what orders to make.  On the homepage of the Board + Commissioner’s website, no less.

If parliament is concerned to ensure that the reputation of practitioners is not to be ruined by accounts of current proceedings by one of the parties to them where the aspect of things might change dramatically upon appeal, or even by bad decisions in such proceedings which are to be appealed, it ought to consider adding the Commissioner to the class of person covered by the prohibition, and to make clear that neither the Board nor the Commissioner ought publish details of disciplinary prosecutions while they are before the disciplinary tribunal.

It is not uncommon for appellate courts — the Supreme Court or the Court of Appeal — to reverse decisions unfavourable to lawyers in disciplinary prosecutions of lawyers in VCAT’s Legal Practice List, or to substitute decisions more favourable to lawyers than those of VCAT or the legal regulators.  So the no publicity pending appeal proposition actually has some important work to do in the real world.  Consider, to name a few, Legal Services Commissioner v McDonald [2015] VSC 237PLP v McGarvie [2014] VSCA 253Stirling v Legal Services Commissioner  [2013] VSCA 374Burgess v Legal Services Commissioner [2013] VSCA 142Brereton v Legal Services Commissioner [2010] VSC 378Byrne v Marles [2008] VSCA 78, Quinn v Law Institute of Victoria [2007] VSCA 122Byrne v Law Institute of Victoria [2005] VSC 509. Consider also non-lawyers: Omant v Nursing and Midwifery Board of Australia [2014] VSC 512, and Towie v Medical Practitioners Board of Victoria [2008] VSCA 157 where the Court found that VCAT’s standard orders in disciplinary hearings were contrary to the privilege against penalties.  It will be observed that some of those decisions were made by very experienced members of VCAT’s Legal Practice List, and several by its Vice-President, a judge.

Now, it must be said that the Commissioner has been writing about current cases recently in circumstances where the Legal Profession Act 2004, which contained similar prohibitions to those now passing through parliament by a special amendment, has been repealed, and where the Legal Profession Uniform Law as enacted did not contain the same prohibition on publications.  But Mr McGarvie has been writing about cases in which he seeks to have practitioners disciplined for conduct which pre-dates the commencement of the Legal Profession Uniform Law on 1 July 2015, in respect of which complaints were made but not finalised prior to its commencement.  The transitional provisions say that such a complaint ‘is to continue to be dealt with in accordance with the provisions of the [Legal Profession Act 2004].’  And s. 4.4.29 of the 2004 Act says that ‘Information about disciplinary action taken against [lawyers] must not be published or made available by the Board until [any appeal rights are spent].’

So, in one case, the Commissioner commenced a proceeding under the 2004 Act, and, after 1 July 2015, asked VCAT to exercise 2004 Act jurisdiction and to find the practitioner guilty of misconduct as defined by the 2004 Act.  And then he published a piece on the front page of the Legal Services Commissioner + Board website about his opponent, following a pause in the hearing and a finding of misconduct, but before the Tribunal made any disciplinary orders or indeed any final orders at all.  Nothing appeared on the disciplinary register, but I can tell you that a lot more people read the front page of the website of the Legal Services Commissioner + Board than trawl through the disciplinary register.

Presumably the CEO of the Board, wearing his Commissioner hat, would not, on the Legal Services Commissioner + Board website publish something which parliament had prohibited the Board from disclosing to the public.  So I suppose the justification for the publications is either that (a) notwithstanding the transitional provision, s. 4.4.29 has no ongoing operation, or (b) it is ok to write on the front page of the website about disciplinary prosecutions while the case is still before the tribunal, since the only prohibition in the legislation is on disclosing information about the prosecution after VCAT has made orders and before the High Court has had the final say.

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Tags: appeals · Discipline · Legal Profession Act · Legal Profession Uniform Law · Legal Services Commissioner · Legal writing · litigation ethics · National Profession Uniform Law · Professional regulation · prosecutors' duties · regulators' duties · VCAT