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Disciplinary charges and intentional wrongdoing

Update, 4 December 2009: see now Legal Services Commissioner v Madden (No 2) [2008] QCA 301.  What the Queensland Court of Appeal said there about Walter’s Case, the subject of this post, is reproduced at the end of the post.

Original post: Does a lawyer’s Bureau de Spank have to say in a charge in a disciplinary prosecution that the norm allegedly transgressed was transgressed deliberately or recklessly, if that’s what they desire to prove?  In the old days, deliberate or reckless transgression was what distinguished professional misconduct from unsatisfactory conduct, the lesser form of disciplinary offence.  Nowadays, it is only a ‘useful guide’ in distinguishing the two.  So a finding of misconduct might, theoretically, be made in respect of conduct by a person ignorant of the norm transgressed, or who simply made a mistake about a relevant fact. And so there is a particular reason now why it is desirable to know whether dishonesty is alleged, making it more important than ever to be informed by the charge if the Bureau is going to contend at the hearing that the solicitor intentionally did wrong, or was dishonest.

Back to 1988 and a unanimous High Court decision of the Mason Court which did not make it to the CLRs and which I read for the first time only recently: Walter v Queensland Law Society [1998] HCA 8; (1988) 77 ALR 228; 62 ALJR 153.  J R S Forbes’s Justice in Tribunals (2nd ed., 2006) suggests at p. 132 that it stands for the proposition that if a professional regulator wants to establish dishonesty or wilful wrongdoing it should say so, also citing Melling v O’Reilly, Appeal 6/91 Misconduct Tribunal, Criminal Justice Commission (Qld), 9 December 1991. Continue reading “Disciplinary charges and intentional wrongdoing”

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Doctors, psychologists, sex and former patients

In Re a Psychologist [2009] TASSC 70, the Supreme Court of Tasmania quashed a decision of the Psychologists Registration Board of Tasmania to suspend a psychologist for 6 months for entering into a sexual relationship with a former patient fewer than 2 years after the end of the therapeutic relationship.  In fact he married her.  A couple of newspaper articles are here and here.

The Supreme Court quashed the decision because the Board switched from considering these allegations as a breach of a code of conduct to considering them as an allegation of professional misconduct at common law without adequately bringing the switch to the unrepresented psychologist’s attention.  Also because the reasons were inadequate.  Justice Blow engaged in a mini-review of recent cases about health professionals and sex with former patients: Continue reading “Doctors, psychologists, sex and former patients”

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Double jeopardy and disciplinary proceedings

Coke-Wallis v Institute of Chartered Accountants In England and Wales [2009] EWCA Civ 730 considered the application of principles of res judicata and autrefois acquit (the criminal version of the same principle, an aspect of double jeopardy) to disciplinary ‘prosecutions’.  It did so in the context of the disciplining of accountants.  The relevant scheme made a conviction conclusive evidence of an act likely to bring the accountant, and the profession, into disrepute. The conviction itself, and the conduct of which it was conclusive evidence were each able to justify disciplinary sanction. Mr Coke-Wallis was convicted of a crime but the disciplinary prosecution brought on that basis failed unexpectedly.  So the regulator charged him again, by reference to the conduct which was the subject of the conviction.  The English Court of Appeal held that the principles of res judicata, or autrefois acquit (which it seemed to assume applied to disciplinary proceedings) were not infringed, because the two charges were separate and distinct. That left open the question that though there was no legal bar to the second prosecution, nevertheless it constituted an abuse of process.  After analysis, no abuse was found.  English solicitors Shepherd + Wedderburn have kindly prepared a little case note.  Justice Gillard’s decision on a similar problem in Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 is the subject of this post.

The Institute does not always seem to get everything perfect.  Take for example, the Queen’s Bench Division’s description of another prosecution, in Gorlov, R (on the application of) v The Institute Of Chartered Accountants In England And Wales [2001] EWHC Admin 220, justifying an exceptional award of costs against a professional disciplinarian: Continue reading “Double jeopardy and disciplinary proceedings”

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Commissioner’s unexplained delay reduces penalty for serious misconduct

Speaking of the need for speed as Justice Heydon and I were on this blog yesterday, there are two other instances worthy of reporting.

First, the High Court has recently considered the need for speed in criminal proceedings, and were not nearly as excited about it as in commercial litigation. This time, they rolled the court below for saying that enough delay was enough and staying a criminal prosecution that had hung around for too long, resulting in the loss of exculpatory evidence.  The decision in R v Edwards [2009] HCA 20 might have application by analogy in disciplinary cases. It is blogged about at Quis Custodiet Ipsos Custodes, and there is a short note in the latest Law Institute Journal.

Secondly, delay by the Legal Services Commissioner has had a consequence in a serious disciplinary prosecution.  Parliament requires the Bureau de Spank to conduct their investigations ‘as expeditiously as possible’, and to give the complainant progress reports at least 6 monthly: s. 4.4.12, Legal Profession Act, 2004.  If the Commissioner complies with these injunctions, the degree of expedition which is possible is not always great.  In fact, sometimes the rate at which investigations progress is astonishing.  So glacial can progress be that the possibility that climate change sceptics might actually have some kernel of truth buried away beneath all of their hot air (-not) begins to nag at you.  There is a letter in the latest Law Institute Journal complaining about the Commissioner’s April 2009 response to a solicitor’s September 2008 letter (August 2009, p. 10).

An unexplained period of apparent inactivity of 18 months was taken into account in favour of the lawyer prosecuted for misconduct in Legal Services Commissioner v ER [2009] VCAT 1445.  This is a factor which might be brought to bear in many a plea in a disciplinary prosecution.  What Judge Ross’s tribunal said on this issue is: Continue reading “Commissioner’s unexplained delay reduces penalty for serious misconduct”

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Briginshaw and the uniform evidence law

Qantas Airways Limited v Gama [2008] FCAFC 69 discusses the interrelationship of the uniform evidence legislation and the High Court’s decision in Briginshaw v Briginshaw (1938) 60 CLR 336.  The relevant bit is in the separate decision of Justice Branson, with whom Justices French (now of the High Court) and Jacobsen agreed at [110].  Briginshaw informs the interpretation of s. 140.  There is detailed explanation of how the three factors which must be taken into consideration in applying s. 140 work in practice.  The case considered allegations that Qantas engaged in racial discrimination against one of its workers.  A useful point clearly made by the decision is that Briginshaw is relevant to allegations, not to causes of action.  So it is only the inherently unlikely and/or very serious allegation which attracts more careful scrutiny.  Other factual allegations which must be proved to establish the cause of action attract only routine scrutiny. Continue reading “Briginshaw and the uniform evidence law”

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A new text on professional discipline

Lovegrove & Lord‘s Kim Lovegrove and barrister Sav Korica have just published a little book called Disciplinary Hearings and Advocacy (Hybrid, 2009). It sells for $39.95. Lovegrove is the Chairman of the Building Practitioners Board, and presides over disciplinary hearings. I suspect that frustration with other decision makers’ decision making (‘there may exist some, particularly those who are not legally trained, who may harbour a misconception about the purpose of disciplinary porceedings in that they may be of the view that their primary mandate is to punish’) and, more particularly, with the attitude adopted by advocates appearing before him (‘Members are often bamboozled about determining whether an advocate is contesting or mitigating’) has driven him to write the book. Continue reading “A new text on professional discipline”

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Inferences arising from failure to call a witness for fear of what they would say

Even though I can remember little about them, I know that two of my favourite books are the 18 year old Francoise Sagan’s Bonjour Tristesse and Helen Garner’s The Children’s Bach.  They are both short.  A book is a good book when you can finish it in one bath.  Entertaining as Justice Owen’s judgment writing style was in The Bell Group Ltd v Westpac Banking Corporation [No 9] [2008] WASC 239, it is not a short decision.  Much is probably buried away in there, unlikely to be read in this drought, for want of sufficient rainy days. So here is his Honour’s handy exposition of the rule in Jones v Dunkel, which commences at paragraph 999: Continue reading “Inferences arising from failure to call a witness for fear of what they would say”

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Jones v Dunkel inferences in disciplinary hearings not bound by the rules of evidence

In Legal Practitioners Complaints Committee and MT QC [2009] WASAT 42, Judge Eckert’s 3 member tribunal considered the application of the rule in Jones v Dunkel to disciplinary prosecutions in tribunals (like VCAT) which are not bound by the rules of evidence.  The practitioner sought to have inferences drawn against the prosecutor from the fact that Schapelle Corby, whom he said might have been considered to be a critical witness for the prosecution, did not give any evidence.  The inferences sought was that nothing Ms Corby would have said would have assisted the prosecution’s case that Mr T QC was Ms Corby’s barrister or prospective barrister.  Her Honour applied the evidentiary presumptions, but in a relaxed fashion, allowing argument as to whether there was an explanation for the non-testimony of the kind which would render inoperable the presumption:

Continue reading “Jones v Dunkel inferences in disciplinary hearings not bound by the rules of evidence”

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State Acts’ power to regulate local lawyers’ overseas conduct

In Legal Practitioners Complaints Committee and MT QC [2009] WASAT 42, Judge Eckert’s 3 member tribunal considered the application to the Western Australian Legal Practice Act, 2003 of the laws relating to the power of state governments to make legislation regulating overseas conduct (i.e. ‘the law of extraterritoriality’).  Her Honour is Deputy President of the State Administrative Tribunal, and a judge of Western Australia’s District Court.  The Tribunal held that the Western Australian parliament had the power to make laws providing for the discipline of Western Australian lawyers who did things overseas which infringed the norms of their Australian peers, and that the parliament had in fact done so.  Her Honour also considered the relevance of compliance with overseas norms, and who has the burden of proving those norms.  This is one to store away for when you read it.  The relevant passage is: Continue reading “State Acts’ power to regulate local lawyers’ overseas conduct”

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Adjournments

In Brimbank Automotive Pty Ltd v Murphy [2009] VSC 26, Justice Kaye today neatly summarised the Victorian law in relation to applications to adjourn trials, in a thoroughly orthodox manner. All these kind of decisions say much the same thing, but with different emphases in relation to when a decision maker is entitled to say ‘Enough’s enough you goose. You’ve had your chances. I don’t care if you’re not ready for trial. We’re starting. Move it.’ The Readers’ Digest edition of KJ’s version — which makes no attempts to break free from The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 — is:

‘a court should not refuse an application for an adjournment, where to do so would cause injustice to the party making the application, unless the grant of the adjournment would occasion irreparable prejudice to the other side, such prejudice not being capable of being remedied by an appropriate order as to costs or otherwise. … The exercise by the court of its discretion in such a case is not the occasion to punish a party, or its practitioners, for oversight, mistake or tardiness. Rather, the overriding requirement is that the court must do justice between the parties.’

Then his Honour upheld a Magistrate’s refusal to grant an adjournment application on the day of trial, but on the basis that it was unsupported by any evidence, truly an exceptional case. The full passage is as follows: Continue reading “Adjournments”

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Byrne v Marles reversed by legislation

I wrote about Byrne v Marles [2008] VSCA 78 here, and suggested reversal by legislation as a possible outcome.  The government slipped the Professional Standards and Legal Profession Act Amendment Act, 2008 through pretty quietly.  Two new sub-sections in the Legal Profession Act, 2004 add to the existing parent sections that nothing within them gives lawyers a right to be heard in relation to how a complaint is to be dealt with, or whether it should be summarily dismissed.  The relevant sections including their additions are set out below, and apply to complaints received by the Commissioner after 11 December 2008. I suggest that regardless of whether the Commissioner has an obligation to invite lawyers to do so, they should often take up these issues at the outset to ensure that there is in fact a valid disciplinary complaint, that its boundaries are clear and not exceeded, and that the Commissioner does not otherwise act without power.

Continue reading “Byrne v Marles reversed by legislation”

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Da Fink reckons the Bureau should act with the fairness of Crown prosecutors

In Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620, Justice Ray Finkelstein, aka da Fink, sowed a seed for future courts to take up and declare that regulatory authorities bringing civil penalty proceedings should have the same duties as criminal prosecutors. Having cited the authority to say that they do not, his Honour said:

’35 A lay person might be forgiven for thinking that in the present context the distinction between civil and criminal proceedings is somewhat artificial and that in both kinds of proceedings the regulatory authority or prosecutor (as the case may be) is under a duty to ensure that the decider of facts (judge or jury) is best placed to arrive at the proper and just result.’

Then, with the judicial equivalent of biting sarcasm:

‘Perhaps the reason courts have rejected this approach is that in a criminal proceeding a conviction may result in imprisonment whereas in a civil penalty proceeding the worst that can happen is that the defendant’s career is ruined or his life is wrecked.’

Continue reading “Da Fink reckons the Bureau should act with the fairness of Crown prosecutors”

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The practising certificate suspension challenge that went wrong

Update, 8 November 2008: When I wrote this post, the Court of Appeal had authoritatively answered another of the questions posed below, about the penalty privileges, but I had not yet read the case, CT v Medical Practitioners Board [2008] VSCA 157.  Now I have, and I have posted here about it.

Original post: WPE v Law Institute of Victoria [2008] VCAT 1277 shows that you’ve got to be careful when challenging a decision to cancel or suspend your practising certificate because if the Law Institute wants to sic you, they can seek to establish misconduct against you in the merits review proceedings, and if they get up, VCAT has the same suite of powers as it would following a disciplinary prosecution: s. 2.4.37(3) Legal Profession Act, 2004.

Sometimes, rather than engage in litigation, it is better to play the game, take an early long service leave, help some orphans, have a moment on the road to Damascus, and send in a well thought out application for a new certificate at a well judged time in the future. Saves a lot of costs and maybe a few orphans,  lets you have a holiday at the same time, and means there’s never a hearing into the conduct which gave rise to the suspension and/or cancellation. Spend half the money you would have spent on lawyers on a public relations consultant and a lobbyist and you’re doing even better. Other times it’s better to avoid merits review — the obvious remedy specifically provided for in the Legal Profession Act, 2004 — and go for judicial review proper (a course which we now know since Zarah G-W’s cases is kosher; c.f. Perkins v Victorian Bar Inc [2007] VSC 70), especially where the decision making process leading up to the suspension or cancellation is dubious.  But sometimes, if a disciplinary charge seems imminent, the question of costs referred to below might recommend getting in early with an application for review of a practising certificate decision which might prevent the laying of disciplinary proceedings proper and lead to adjudication of the issues in a more costs friendly regime.  There is much to weigh up in choosing one’s approach when challenging a practising certificate decision.

How these hybrid administrative law and quasi-criminal proceedings are supposed to pan out has been a bit of a mystery to date.  They are a new concept.  Maybe they are unique — who knows?  Anyway, there was certainly no analogue under the Legal Practice Act, 1996.  Who bears the burden of proof?  Who should go first?  Does the privilege against penalties protect the lawyer?  Is it an inquisitorial or adversarial proceeding?  Should the matters the Law Institute will argue should found disciplinary findings be the subject of properly particularised charges?  What about costs?  Can the Law Institute apply for disciplinary findings at all, or is it a jurisdiction which must be invoked by VCAT?  Judge Ross provided answers to a couple of these questions only in this case. Continue reading “The practising certificate suspension challenge that went wrong”

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Issac’s holiday; plea bargaining in disciplinary charges examined

Issac’s style of legal letter writing is legendary. There are some quite extensive private collections out there. I recall one letter said to have been penned by the man himself which began ‘Dear Sir, you are a petulant lunatic,’ and after some substantive words continued ‘You are a very small cog in a very big wheel and it seems that it will long stay that way.’

I have long been a fan of his extremely colourful and yet less-is-more webpage, which has said, for as long as I can remember, in yellow and red text surrounded by blue fire ‘We at Issac [B] and Co make a firm commitment to a flexible, approach to law’.  Such heterodox ebullience can only be tolerated so long in the dark suited depressed salaryman world of the Melbourne legal fraternity, and the other day, the sombre might of the law came down on the iconoclast for what the humourless powers that be characterised as too much flexibility. Continue reading “Issac’s holiday; plea bargaining in disciplinary charges examined”

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The right to silence in disciplinary and striking off hearings

I have previously posted about the QC who took his computer into work at the DPP only to lose his career when the tech found child pornography on it. It was a bizarre story, and of course there was a twist which has become clear from the disciplinary decision in Council of the NSW Bar Association v PJPP [2008] NSWCA 135: the QC thought he had the porn sequestered on a removable hard drive (the F drive), which he removed before taking it into work, but some had crept out into the rest of the computer. This post looks at the discussion of what inferences, if any, it was proper to draw from the QC’s exercise of the right to silence at the investigation stage, and from his failure to give evidence at his disciplinary hearing. Continue reading “The right to silence in disciplinary and striking off hearings”

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Latest word on burden of proof in professional discipline ‘prosecutions’

In this post, I just reproduce what Deputy President Dwyer said recently about the burden of proof, right to silence, and inferences which may be drawn from the fact of the exercise by a solicitor of the right to silence. He said it in the context of a hard-fought hearing into the conduct of Kylie’s one-time lawyer, Michael Brereton, reported on in the previous post. Interestingly, the Tribunal was not critical of the solicitor’s decision not to give evidence, but asserted that it was free to draw adverse inferences against the solicitor under the rule in Jones v Dunkel, and did so with gusto, drawing support from Woods v Legal Ombudsman [2004] VSCA 247, and Golem v Transport Accident Commission [No2] [2002] VCAT 736.)

What Mr Dwyer said was: Continue reading “Latest word on burden of proof in professional discipline ‘prosecutions’”

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When will a professional discipline proceeding be stayed pending overlapping criminal charges?

Post updated 7 April 2013: See now ML v Australian Securities and Investments Commission [2013] NSWSC 283 (application to disbar liquidator not stayed pending related criminal proceedings which were ‘on the cards’: suggested that a secrecy regime could be imposed in respect of the disciplinary proceedings so as to protect the liquidator in the criminal proceedings).

Post updated 1 March 2013: See also Re AWB Limited [2008] VSC 473.

Original post: Dedicated readers will already have been following the saga of the misconduct prosecution of Kylie Minogue’s one-time lawyer. Casual readers can lap it all up here. Deputy President Dwyer’s reasons for refusing to stay the disciplinary proceedings have hit the internet: Legal Services Commissioner v MB [2008] VCAT 1341. For some reason, the lawyer adduced into evidence a letter from the Australian Crime Commission which said that there was no overlap between the subject matter of the disciplinary charges and the subject matter of the Australian Crime Commission’s investigation, ‘pulling the rug’, as Deputy President Dwyer put it, from the lawyer’s own case. Apart from some newspaper articles suggesting that up to 50 people might be prosecuted as a result of ‘Project Wickenby’, there was not a lot of evidence that the solicitor was going to be prosecuted imminently or otherwise. So it is not an especially interesting decision, legally. It is helpful to have a VCAT decision which rehearses the authorities on the question of stays pending criminal proceedings in their application to disciplinary proceedings, though. Continue reading “When will a professional discipline proceeding be stayed pending overlapping criminal charges?”

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Law Institute seeks 50 year ban for 62 year old solicitor

In Law Institute of Victoria v DSS [2008] VCAT 1179, the Institute sought in a misconduct prosecution an order that the solicitor not be allowed to handle trust monies for 50 years. Vice President Judge Ross described the submission as ‘somewhat excessive’.

The solicitor had stolen $75,000 from his clients and out of his trust account, lied to a trust account inspector, removed evidence so as to hinder his investigation, and involved a client in misleading the inspector by dictating a letter full of lies and having her sign it and send it to the inspector with a view to perverting the course of justice. These were ‘manifestly serious’ instances of misconduct. In a criminal prosecution, Justice Lasry had sentenced the solicitor to 18 months’ imprisonment, wholly suspended. The solicitor was suffering from a mental illness at the time when he committed the offences. A family law client had been murdered by her husband at the County Court more or less in the solicitor’s presence and he had not coped well. There was a psychiatrist’s report. The solicitor was remorseful and his remediation was well advanced. He had paid back all the stolen monies. He was working in a business which provided services to body corporates, and his employer was supportive. On his return to practice, he intended to confine himself to body corporate law.

In these circumstances, the Institute contended that an appropriate disposition for the disciplinary charges arising out of the same facts as the criminal charges was: Continue reading “Law Institute seeks 50 year ban for 62 year old solicitor”

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What happens when complainant lodges complaint with wrong regulator and it gets transferred

In Byrne v Marles [2008] VSCA 78, the subject of this earlier post, another issue arose. Justice Nettle confirmed that a complaint made to anyone other than the Commissioner is invalid as a trigger for the operation of the Legal Profession Act, 2004, but that if it finds its way to the Commissioner otherwise than by the complainant re-lodging it with her, and the complainant says he’s happy for the complaint to continue as a complaint to the Commissioner, then that counts as a deemed lodging by the complainant of a complaint with the correct regulator. Continue reading “What happens when complainant lodges complaint with wrong regulator and it gets transferred”

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More cases

I only just caught up with the fact that the Court of Appeal has overturned Justice Gillard’s decision in Kabourakis v Medical Board of Victoria [2005] VSC 493, the subject of an earlier post. See [2006] VSC 301.

VCAT’s Vice President Harbison, sitting in the Legal Practice List for the first time I am aware of, has contributed what appears to be a most interesting addition to the authorities about whether solicitors engage in trade and commerce for the purposes of the Fair Trading Act, 1999 (and, by analogy, of the Trade Practices Act, 1974), and whether solicitors may ever be sued under the Fair Trading Act, 1999. As to which, see this earlier post. The decision is Walsh v PJCC&A Pty [2008] VCAT 962 which I will certainly be posting a detailed analysis of.

Then a NSW decision has illustrated again the problem of sloppy regulators failing to consider whether what purports to be a complaint received by them is in fact a complaint as defined by the Act which regulates them (an allegation in both of the cases noted here). This time it was NSW’s Legal Services Commissioner, Steve Mark, getting bashed up by the NSW Administrative Appeals Tribunal’s Legal Services Division in Legal Services Commissioner v SG [2008] NSWADT 48:

’64 As stated, Mr Mark determined that a complaint had been made of deliberate charging of grossly excessive amounts of costs, when no such complaint had been made.

65 Without any further evidence or effort to obtain a valid expert opinion, the LSC instituted the complaint and brought this matter before the Tribunal on the equivocal opinion expressed by Mr McIntyre. Samantha Gulliver investigated the complaint on behalf of Mr Mark, however what, if anything, resulted from such investigation was not placed before the Tribunal. Continue reading “More cases”