Russo v Legal Services Commissioner  NSWCA 306 was the subject of my previous post. The Court engaged in a comparatively sophisticated review of disciplinary outcomes in like cases. The purposes of this post is to reproduce that review and comment on the variables which ought to be taken into account in any proper survey of past outcomes.
To survey penalties in like cases has always been an important part of sentencing and should be an important part in imposing disciplinary sanctions. Barbaro (2014) 253 CLR 58;  HCA 2 and Cth v Director, Fair Work Building Industry Inspectorate  HCA 46; (2015) 326 ALR 476 do not suggest to the contrary. They say that the purpose of a survey of like sanctions is to promote consistency in penalties but not the establishment of a range of available sanctions deviation from which is appellable. Buchanan JA observed in R v Macneil-Brown  VSCA 190, (2008) 20 VR 677 at :
‘counsel can best assist a sentencing judge, not by advancing what they consider to be sentences at the lower or upper limits of a sound sentencing discretion, but by making submissions as to the existence and nature of aggravating and mitigating circumstances and providing some guide to the manner in which other judges have approached like cases by supplying sentencing statistics and citing passages from decided cases which bear upon aspects of the instant case.’
I would submit that any survey of fines as a disciplinary sanction must take into account, as an important aspect of the analysis, the financial situation of the person or persons liable to pay it. The specific deterrence of a fine will vary greatly from one practitioner to another. Practitioners who struggle, for personal reasons, are more likely to get themselves into trouble in the first place, and to exacerbate it by less than perfect intercourse with the Legal Services Commissioner. Their financial situations often deteriorate too. Specific deterrence may be achieved by imposition of a fine much smaller than would be imposed on a flourishing practitioner raking it in. General deterrence will also be achieved if the Tribunal is transparent in taking account of financial circumstance. In such a case, the Tribunal might indicate the kind of fine which might have been imposed had the practitioner enjoyed an average post-tax income.
Furthermore, the costs burden borne by the practitioner ought also to be taken into consideration. Costs and fine are inter-related in this way: Environment Protection Authority v Barnes  NSWCCA 246 at  (Kirby J speaking for the Court) applied by analogy in LSC v Bechara  NSWADT 313. The extraordinary costs practitioners are liable to in Victoria following disciplinary prosecutions would very often be more than adequate to achieve specific and general deterrence. If you are prosecuted and reprimanded, made the subject of an editorial on the front page of the Commissioner’s website, and have to cough up $40,000 in unrecoverable solicitor-client costs reasonably incurred and costs liability to the Legal Services Commissioner, that is going to make you think just as hard about doing it again as any comparatively trivial fine you might cop.
Finally, one must be astute to inflation. In my experience, people tend to exaggerate the effect of inflation when considering older fines. Here is a calculator which assists in measuring in today’s dollars a fine imposed some years ago.
For some reason, notwithstanding that NSW is now a part of the legal profession uniform law, the other participant in which is Victoria, no Victorian fines were part of the survey. That strikes me as unusual, since there is a whole statutory office the purpose of which is to promote interstate uniformity in the application of the Uniform Law: the Commissioner for Uniform Legal Services Regulation. Russo’s Case was decided under the old legislation which the LPUL replaced, and which legislation in fact governed the prosecution was one of the issues on appeal. Interestingly, apparently because it was thought that there were no relevant differences between the two regimes, that question was not decided.
This is what the NSWCA said about its survey of fines, and about the appropriate fine in this case: Continue reading “NSWCA surveys fines in NSW lawyers’ discipline decisions over a decade”