Bog-ordinary, disciplinary, civil penalty, criminal

In the Legal Profession Uniform Law (Vic), there are simple prohibitions, prohibitions breach of which are punishable by civil penalties, and criminal offences punishable by fines and jail.  The civil penalty provisions are new to the LPUL compared with the previous legislation.  What does it all mean?

Breach of any provision (whether it provides for a criminal offence or a civil penalty) is capable of amounting to misconduct or unsatisfactory professional conduct: s. 298(a).

The Law, as interpreted by the Victorian Legal Services Commissioner, seems to contemplate the possibility that breach of a civil penalty provision might be prosecuted in a disciplinary prosecution for a fine by her, then sued on in a court by the Legal Services Board for the civil penalty, and then be prosecuted by the DPP as a crime.  (Prohibitions in the LPUL are never said to be both criminal offences and civil penalty provisions, but sometimes the same conduct might amount to a criminal offence, e.g. creating a trust account deficiency without a reasonable excuse (5 years in the slammer), and failing to deal with trust money in accordance with the LPUL (civil penalty of up to $7,929).)

It seems odd that breach of a civil penalty provision in respect of which a Supreme Court judge may not hand out a civil penalty of more than $7,929 might be prosecuted as an unsatisfactory professional conduct prosecution in a disciplinary tribunal constituted by a sessional member  who is free to dish out a fine of up to $100,000 for the same conduct.  Indeed it would be odd if a disciplinary fine of $8,500 were issued for breach of a civil penalty provision specifying a civil penalty of up to $7,929.

You might think that is where s. 452(3) of the LPUL comes in.  It says ‘Proceedings in relation to a civil penalty provision are to be dealt with in accordance with this Division.’  ‘In accordance with this Division’ means, in Victoria, in a court in a proceeding brought by the Legal Services Board (see s. 10 of the Legal Profession Uniform Law Application Act 2014 (Vic.))

If that provision were taken to mean what it says, then there would be a two-tiered system:

(a) an ersatz criminal / disciplinary prosecution rebranded a ‘civil penalty proceeding’ and conducted according to the rules of civil procedure, where at least you get a tenured decision maker, the privilege against self-incrimination, and maybe also the rules of evidence (hopefully s. 4(1) of the Evidence Act 2008 is the kind of ‘jurisdictional legislation’ contemplated by the LPUL’s s. 301(3)); and

(b) a real criminal prosecution.

There are provisions about the interrelationship of the two.  You can have a criminal prosecution after a civil penalty proceeding but not vice-versa, and a criminal proceeding stays a civil penalty proceeding.  Evidence of the defendant in the civil penalty proceeding is inadmissible in the subsequent criminal proceeding. Interestingly, however, there are no similar provisions about the inter-relationship of disciplinary prosecutions on the one hand and civil penalty proceedings and criminal proceedings on the other hand.

I’m seeing disciplinary prosecutions in VCAT by the Victorian Legal Services Commissioner alleging s. 298(a) misconduct constituted by breach of civil penalty provisions.  Watch this space and let me know if you have any comments.


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