Update, 4 December 2009: see now Legal Services Commissioner v Madden (No 2)  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  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”