Yet more on the obligation on Legal Services Commissioners to plead their case properly and stick to it

Legal Services Commissioner v AL [2016] QCAT 237 is a decision of a disciplinary tribunal presided over by Justice David Thomas, President of QCAT and a Supreme Court judge. It is therefore of high persuasive value, and treats Queensland provisions which are the same as the equivalent Victorian provisions. And it provides what I suggest with respect are the correct answers to the following questions:

  • How negligent do you have to be before you can be found guilty of unsatisfactory professional conduct as defined in provisions which say that the concept includes ‘conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent’ lawyer holding a practising certificate? (Answer at [44] and [27]: substantial and very obvious fallings short of the standard, established by direct inferences from exact proofs.)
  • What must be pleaded specifically in a disciplinary charge? (Answer at [82] – [92]: all states of mind, not only dishonest intents, and all facts to be relied on (‘the charges to be levelled must be fully and adequately set out in the Discipline Application. As a matter of procedural fairness, the Practitioner should not be left in any doubt as to the extent of the allegations that is to be met.’)
  • To what extent is a disciplinary tribunal constrained in its decision making by the allegations specifically made in the charge? (Answer at [96] – [108]: absolutely: if no state of mind is alleged, the prosecution should not be allowed to call evidence as to state of mind; ‘it would be wrong to admit evidence the principal purpose of which is to establish conduct that lies beyond the ambit of the charge’.)
  • Does the mere fact that charges are not allowed on taxation mean that there has been overcharging such as to warrant discipline? (Answer at [76] – [77]: no)

The Tribunal dismissed charges against a solicitor who lodged a caveat pursuant to an equitable mortgage without checking that it satisfied the Statute of Frauds’ writing requirements and against a partner of her firm who took over her files when she was on holidays and billed the client for the work in attempting unsuccessfully to register the caveat.

I move from the specific facts of this QCAT case to general comment (what follows is certainly not veiled reference to the conduct of the Commissioner’s counsel in QCAT). There is a very real reason to insist on the particularization of states of mind in disciplinary tribunals, including particulars of actual and constructive knowledge. These details do not always get left out just because it is thought that disciplinary tribunals are not courts of pleading and such minutiae is not appropriate. Nor do they just get left out because they are thought to be inherent in the allegation, or because of incompetence, or mere mistake. Rather, they get left out because bureaucrats have investigated incompetently and when competent counsel come to plead disciplinary applications based on the investigation, they do not have a sufficient factual foundation to make these allegations, or perhaps are simply too timid.

But sometimes counsel with civil practices, untutored in the art of prosecutorial restraint, and safe in their private belief that the practitioner is in fact much more evil than incompetent investigation established, might fall prey to temptation. Mealy-mouthed, ambiguous allegations might be made which require the practitioner to get into the witness box. Then, all manner of unpleaded allegations as to states of mind and as to completely un-pleaded conduct, justified in relevance as tendency evidence or circumstantial evidence of the pleaded facts, might be cross-examined out of the practitioner and an unpleaded case presented to the disciplinary tribunal in closing. In a tribunal not bound by the rules of evidence, such questioning may be waved through with lip service to the proposition that objections will be dealt with by according appropriate weight to the evidence in the final analysis. Queensland leads the charge against such conduct, and I can’t help thinking it’s because Supreme Court judges seem to get involved in disciplinary decisions more often up there. All power to them. So impressed am I with this latest judgment, I have decided to go on a study tour of the Sunshine Coast in the September school holidays.

Continue reading “Yet more on the obligation on Legal Services Commissioners to plead their case properly and stick to it”

The permissible forensic uses of historical mental illness in professional discipline trials

Professor Dal Pont’s excellent text Lawyers’ Professional Responsibility (5th ed., 2013) suggests at [23.145] that mental illness will rarely provide a defence to a disciplinary prosecution, the purpose of which is protective rather than punitive.  He argues, in part, that the public needs protection just as much from the mentally ill who do bad things as from the mentally flourishing who do wrong.  But that reasoning does not have any application where there is not a temporal proximity between the moment of determining liability and the moment at which the putative wrongdoing occurred. In my experience the glacial pace of disciplinary investigations usually mean that the time for setting sanctions is years after the conduct in question.  Very often, I find myself acting for practitioners whose minds are flourishing much more than at the time of their wrongdoing.

I always thought (or perhaps more accurately, hoped) that Dal Pont was a little pessimistic about the possibility of mental impairment being relevant to the determination of the question of whether unsatisfactory professional conduct or professional misconduct is.  True, there are some decisions broad statements in which support that position, but the authorities are a bit all over the place, and there are so many different kinds of conduct warranting discipline and so many fact scenarios that it seemed to me that the law must be more nuanced than some of those broad statements suggested.

Last year, VCAT’s Legal Practice List last year ruled, contrary to the position advanced by Victoria’s Legal Services Commissioner, that evidence of mental impairment was relevant to the question of whether conduct was professional misconduct or unsatisfactory professional conduct, and heard evidence from a psychologist during the liability phase of the hearing.  The two species of conduct warranting discipline arising from a breach of the rules have traditionally been delineated by enquiring whether the breach was innocent or whether it was deliberate or reckless, so that it clearly incorporates a subjective enquiry. VCAT’s decision to hear the psychological evidence on the question of liability was, as I have learnt in the course of penning this post, consistent with that in New South Wales Bar Association v Butland [2008] NSWADT 120.

Now the Supreme Court of NSW has reviewed the authorities and published a useful decision in the matter of BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 (Adamson J), making clear that mental illness may be relevant to the question of liability, as well as to the question of penalty where it is of course of critical relevance, citing Robinson v The Law Society of New South Wales (Supreme Court of New South Wales, Court of Appeal, unreported, 17 June 1977), a decision I have not come across before. Essentially, Justice Adamson said, it all depends on whether there was a mental element to the kind of conduct warranting discipline which is charged.  Conduct described as a failure to maintain standards of competence and diligence is not something to which the practitioner’s mental impairment is relevant.  In charges which rely on the practitioner having a particular state of mind do require analysis of the degree to which the practitioner’s state of mind was flourishing.  Professional misconduct at common law is determined by what competent and reputable peers would think of the conduct.  What they would think is affected by the degree to which the practitioner’s mind was flourishing at the relevant time.

Unfortunately for the barrister who was the subject of the disciplinary hearing under appeal in this case, all this meant that though the Tribunal and the Court accepted that her conduct was caused by her psychiatric illness, she was nevertheless properly found guilty of unsatisfactory professional conduct constituted by failing to maintain standards of competence and diligence and acting in the face of a conflict between self-interest and duty to her client.  The test for such unsatisfactory professional conduct does not enquire into the mind of the practitioner, the Court found.  Accordingly, the psychiatric causation was legally irrelevant.

See also this sister post, about the disciplinary Tribunal’s and the Supreme Court’s willingness to allow the practitioner to change her plea, once after the liability hearing but before the delivery of reasons and once on the eve of the hearing of the appeal.

Continue reading “The permissible forensic uses of historical mental illness in professional discipline trials”

Liability of directors of incorporated legal practitioners for wrongdoing of fellow directors

Legislation regulating lawyers typically deals with directors of incorporated legal practices like Victoria’s Legal Profession Act 2004’s s. 2.7.11 as follows:

‘Each of the following is capable of constituting unsatisfactory professional conduct or professional misconduct by a legal practitioner director–

(a) unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the incorporated legal practice;

(b) conduct of any other director (not being an Australian legal practitioner) of the incorporated legal practice that adversely affects the provision of legal services by the practice’.

A recent decision from Sydney illustrates how disciplinary tribunals approach applications to discipline innocent co-directors of wrongdoer-directors in incorporated legal practices.  Trusted non-legal practitioner directors do not necessarily need to be supervised in everything they do by legal practitioner directors unless there is a special reason to.

In the NSW case, there was a special reason: the co-director did not renew his practising certificate which lapsed on 30 June 2011.  He had failed (to the innocent co-director’s knowledge) to comply with earlier disciplinary orders requiring that he be mentored.  Contrary to his promises to the by-then-sole-legal-practitioner-director, he caused the firm to incur an unfunded liability to a valuer retained on behalf of a client in litigation.  The valuer was instructed by the wrongdoer director in August 2011.  The Tribunal found the remaining legal practitioner director guilty of unsatisfactory professional conduct, but on the basis that her failure to supervise the by-then non-legal practitioner director caused the firm to incur a debt which it was unlikely to be able to pay if the litigation in respect of which it was incurred did not succeed.  The decision is Council of the Law Society of New South Wales v Loris Hendy [2016] NSWCATOD 20.

One thing which is puzzling is exactly on what basis it was said that a firm contracting personally to pay valuers, and then not paying them because it did not have the money to do so, was said to be conduct warranting discipline which the practitioner had an obligation to prevent by supervision.  After all, had the firm caused the client to contract directly with the valuers, or made clear to them that the firm would not be personally liable, they presumably still would not have been paid.  Presumably the client was always up for the disbursements, whether there was a successful outcome or not, since that is fairly standard.  And so, presumably, if the client had any money, the firm would have sued the client.  And presumably the firm believed on the basis of senior counsel’s advice that the client would succeed in the litigation and that the valuer would get paid out of the favourable costs award, and that, even if that did not occur, the firm would be in a position to meet the valuer’s fees.  Certainly, there was no finding to the contrary.

In the Victorian solicitors’ conduct rules in place from 2005 until recently, r. 26 said:

‘A practitioner who deals with a third party on behalf of a client for the purpose of obtaining some service in respect of the client’s matters, must inform the third party when the service is requested, that the practitioner will accept personal liability for payment of the fees to be charged for the service or, if the practitioner is not to accept personal liability, the practitioner must inform the third party of the arrangements intended to be made for payment of the fees.’

Compare r. 35 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015. To similar effect was r. 35 of the New South Wales Professional Conduct and Practice Rules 2013 (Solicitors’ Rules).  None of those were in force, of course, in NSW in 2011 when the non-legal practitioner director of the firm caused it to incur the fees, and I do not know what the rules which were in force in NSW at that time said.  At any rate, there was no reference to any such conduct rule in the Tribunal’s reasons. Assuming some similar rule was in place, it is notable that the legal practitioner director was not apparently disciplined for allowing the firm to contract the liability, but for not meeting it, or perhaps for allowing it to be contracted in circumstances where there was no guarantee that it could be satisfied if things went pear-shaped.

There are numbers of cases about the misconduct of solicitors who fail to pay counsel’s fees for no particularly good reason.  I have listed them at the end of this post.  It seems to be well established by authority that such conduct is misconduct at common law or pursuant to the generally worded statutory definitions of unsatisfactory professional conduct and professional misconduct. Couldn’t agree more, and long may such cases accumulate.  But this was a bit different.

Continue reading “Liability of directors of incorporated legal practitioners for wrongdoing of fellow directors”

More on solicitors’ obligations to pay counsel’s fees

Council of the Law Society of New South Wales v JAX [2012] NSWADT 283 is a case in which the solicitor was disciplined for paying himself out of fees provided to him by his client for payment of counsel’s fees.  Ultimately he went bankrupt and did not pay the fees. See also this earlier post on this subject.  The decision also represents yet another admonition to pleaders of disciplinary charges to plead dishonesty expressly if they intend to allege it.

There were the following agreed facts: Continue reading “More on solicitors’ obligations to pay counsel’s fees”

Legal Services Commissioner’s website explains difference between professional misconduct and unsatisfactory professional conduct

Update: So far, I have had the following responses to my musing, which seems to excite you all more than I could have imagined:

‘Thats easy, fraud is directly aimed at unlawful appropriation – dishonesty may be indirectly so.’

‘Fraud v dishonesty – my thought: does fraud require there to have been a victim, where dishonesty doesn’t?’

‘Have a look at para. 10 of Brooking’s judgment in Magistrates Court of Victoria at Heidelberg Vic Full Court 2000 Buchanan, Charles and Brooking (on perversity with the mental element and an updated ignoratia lex…….   Huge philosophical literature on all terms, and therefore the differances between them.  Thanks for your blog’ and

‘Would fraud be dishonesty employed for a financial or material gain? I think of fraud as a subset within dishonesty.’

Original post:

Who knew that sitting there on the Legal Services Commissioner’s website is an explanation of his thinking about the difference between unsatisfactory professional conduct and professional misconduct? Not me, but I quote:

‘The sort of conduct that amounts to unsatisfactory professional conduct is where the lawyer has failed to meet professional standards. Professional misconduct, on the other hand, is behaviour involving fraud, dishonesty, breach of trust or conflict of interest. The aim of an investigation is to see whether it can be proved that such conduct took place.’

Very useful to know. I am writing a paper on fraud at the moment, with the aim of covering the whole concept and all of its legal ramifications in one hour.  Being in that frame of mind prompts me to ponder what the difference is between ‘fraud’ and ‘dishonesty’.

Lawyers’ false attestation of documents and fraudulent certificates of advice

Up-updated post, 18 May 2017:  See also LSC v Huggett [2017] NSWCATOD 67, which gathers together additional authorities at [63].

Updated post, 11 March 2016: In The Law Society of New South Wales v Gathercole [2016] NSWCATOD 27, the Tribunal was asked by the applicant to order the removal of the practitioner’s name from the roll for falsely attesting a wife’s signature in her absence on a document presented to the practitioner by the fraudster husband, a bank manager.  Though the Tribunal found that the conduct amounted to ‘professional misconduct of a very high degree’, the practitioner was insightful, remorseful, and had good references.  So they gave him a $5,000 fine instead.

Original post: What’s the going rate by way of penalty for lawyers successfully prosecuted for falsely attesting the execution of documents? As usual in the law of professional discipline, the cases are all over the place — what is analysed below is a collection, not a line of, authorities — but I am unaware of any case in which a lawyer’s practising certificate has been interfered with solely for purporting to sign as witness a document they did not witness the execution of or for falsely giving a certificate that advice about the document was given.  And you would have to say that a fine of a few thousand dollars and a reprimand is the going rate. Justice Kirby, then President of the Court of Appeal, adverting to the Court’s role as fixing the standards to be observed in determinations by disciplinary tribunals, overturned a disciplinary tribunal’s decision to strike off a solicitor who gave a false certificate of advice in relation to a mortgage, exacerbated the wrongdoing by oral representations to the mortgagee’s solicitor and was not frank in the disciplinary investigations.  The Court substituted a fine and a reprimand: Fraser v Council of the Law Society of NSW [1992] NSWCA 1992.

Because of the dishonesty inherent in this species of disciplinary wrong, the cases have traditionally been clear that it amounts to professional misconduct rather than to unsatisfactory professional conduct.  But the New South Wales Court of Appeal’s decision in Xu v Council of the Law Society of NSW [2009] NSWCA 430 bucks the trend and characterised one such instance as unsatisfactory professional conduct.  All of the other cases need be re-evaluated in light of the Court of Appeal’s decision.

Below are my notes of reading the cases, for a disciplinary prosecution in which I recently acted.  I was put onto some of them by readers of this blog, for which many thanks.

Continue reading “Lawyers’ false attestation of documents and fraudulent certificates of advice”

Incompetence as ‘unsatisfactory professional conduct’

A barrister in NSW is being prosecuted for being incompetent in the presentation of a criminal appeal: Council of the NSW Bar Association v DCF [2010] NSWADT 291.  The incompetence of his written submissions are said to amount to unsatisfactory professional conduct.  Section  496 of the Legal Profession Act, 2004 (NSW) says that unsatisfactory professional conduct includes:

‘conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner’.

The barrister admits that his submissions were incompetent, but denies any lack of diligence.  His application for summary dismissal of the charge on the basis that unsatisafactory professional conduct requires both incompetence and a lack of diligence failed.  Either incompetence or a lack of diligence alone may warrant discipline.

Disciplinary penalties for pre-2006 conduct

There are still disciplinary cases coming through the system in respect of conduct which occurred before 12 December 2005, the date on which the Legal Profession Act, 2004 commenced.  Back in those days, the maximum fines the Legal Profession Tribunal could render under the Legal Practice Act, 1996 were $1,000 for unsatisfactory conduct and $5,000 for misconduct (unless the Full Tribunal sat, in which case, a maximum fine of $50,000 was available for misconduct).  Recently, the Legal Services Commissioner accepted, in a disciplinary prosecution, that the penalty for a disciplinary wrong committed before 12 December 2005 ought not to exceed the maximum penalty available at the time. That is so even where the post-12 December 2005 investigation of the pre-12 December 2005 conduct was properly carried out pursuant to the Legal Profession Act, 2004 and where the VCAT proceedings in which the fine is rendered are governed by the 2004 Act.

So, assuming the Commissioner maintains a consistent position, the highest fine he is likely to contend for in any unsatisfactory conduct charge in respect of pre-12 December 2005 conduct is $1,000, making the desirability of prosecuting such conduct, as opposed merely to reprimanding the practitioner, questionable. Continue reading “Disciplinary penalties for pre-2006 conduct”

Honest and reasonable mistake as a defence to disciplinary charges

Senior Member Howell decided last year in Legal Services Commissioner v RMB [2010] VCAT 51 that there is a mens rea element to professional discipline offences under the Legal Profession Act, 2004, in that there is a defence of ‘honest and reasonable mistake’.  That fascinates me, since under the previous Act, misconduct and unsatisfactory conduct was often delineated by the presence or absence of knowledge that the conduct engaged in breached a norm of conduct. Conduct in ignorance of its wrongfulness was punishable as unsatisfactory conduct.  Now, though, there is no knowledge element built into the definitions of the 2004 Act, and there seems to be no particular reason why the concept of honest and reasonable mistake which has been imported from the criminal law, might not apply equally to cases of professional misconduct and unsatisfactory professional conduct. Continue reading “Honest and reasonable mistake as a defence to disciplinary charges”

Previous infractions of same rule not relevant to distinction between professional misconduct and unsatisfactory professional conduct

In Legal Services Commissioner v R-MB [2010] VCAT 182, Senior Member Howell found a repeat offender had failed to comply with a demand from the Legal Services Commissioner for a written explanation of conduct the subject of a complaint.  The Bureau de Spank argued that the infraction should be regarded as professional misconduct rather than unsatisfactory professional conduct, as contended for by the practitioner.  One of the reasons put forward was that the solicitor had previously been found guilty of the same thing.  The Bureau suggested there were authorities in support of this proposition, but did not identify them.  Neither party appears to have brought to Senior Member Howell’s attention an authority decided by another member sitting in VCAT’s Legal Practice List this year which suggested ‘prior offences’, or their absence was irrelevant in the determination of exactly this question.  On that occasion, VCAT said:

’15    I have had some difficulty deciding whether the conduct of the applicant is unsatisfactory professional conduct or professional misconduct. Part of the difficulty has been whether I should take into account the fact that the respondent has had no previous determinations made against him of a disciplinary nature. In my view, that is something that should be taken into account on the matter of penalty but it should not be taken into account as a matter of what charge for which he should be found guilty.

16    I compare this to the hearing of a criminal matter, although it is a disciplinary matter and something entirely different, but the similarity is that a criminal court would not look at prior convictions until it had decided what breach or what act had been committed. In this particular instance, it is appropriate that I should not look at past conduct until I have decided what act has been committed, ie whether it is unsatisfactory professional conduct or professional misconduct.’

Now it’s my turn not to identify the authority, but only because I was in it, and I don’t blog my own cases.

Whether Briginshaw applies depends on the nature of the allegations, not the nature of the proceedings

In Polglaze v The Veterinary Practitioners Board of NSW [2010] NSWCA 4, the NSW Court of Appeal did not seem to be impressed about an appeal reaching them in relation to a finding of unsatisfactory professional  conduct in failing to warn the owner of a dog-patient that a second sedating injection was going to cost her. The fine had been $200. It was not in dispute that the vet had not given the warning. Nevertheless, the vet trotted out as an appeal point the well-worn chestnut of inadequate consideration of the Briginshaw principle that the more serious the allegations, the more persuasive must be the proof of them.  All of the appeal judges dismissed the point summarily.  They all said that given that the non-giving of the warning was not in dispute, there was no evidentiary controversy to which Briginshaw could have operation.  Anyway, Acting Justice of Appeal Handley said, ‘I would not readily accept that the Tribunal, which hears many disciplinary cases against members of the professions, would fail to direct itself in accordance with [the Briginshaw] test.’ Justice of Appeal Beazley agreed.  More interestingly, however, Justice of Appeal Basten said, by way of additional comments at [18]ff:

Continue reading “Whether Briginshaw applies depends on the nature of the allegations, not the nature of the proceedings”

NSW Court of Appeal on difference between ‘professional misconduct’ and ‘unsatisfactory professional conduct’

The distinction between ‘professional misconduct’ and ‘unsatisfactory professional conduct’ is usually elusive.  Guidance from an appellate court in relation to cognate legislation is therefore valuable.  It seems that one instance of ‘incredibly sloppy’ work involving innocent false representations being made to the other side, if it is comprised of a series of closely related bits of conduct in relation to the one matter, is not what is contemplated by the words ‘substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’.  CYX v Council of the Law Society of NSW [2009] NSWCA 430 (previously blogged here) is a decision I regard as indicating an appropriately restrictive approach to identifying ‘professional misconduct’, a finding which should carry with it the opprobrium associated with the worst professional wrongs.  The NSW Court of Appeal overturned a finding by New South Wales’s Administrative Appeals Tribunal’s of professional misconduct. Continue reading “NSW Court of Appeal on difference between ‘professional misconduct’ and ‘unsatisfactory professional conduct’”

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”

Admission of allegations relevant in distinguishing between misconduct and unsatisfactory conduct

In Legal Services Commissioner v PT [2009] VCAT 1603, Senior Member Preuss decided that a failure to respond to a demand by the Commissioner for information in relation to a disciplinary complaint was unsatisfactory professional conduct rather than the more serious professional conduct, for several reasons including that ‘he [the respondent solicitor] admitted the factual circumstances alleged and he did not oppose the orders which I sought to make’.  That is not a factor which has often expressly been taken into account in making the distinction, as far as I am aware.

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’”

Once you’ve done your time, prior misconduct not an indicator of fitness to practise

In JLL v Law Institute of Victoria Limited [2008] VCAT 456, a Box Hill solicitor who had paid only $5,000 of the $55,000 odd he owed under orders of the Legal Profession Tribunal was given a practising certificate by VCAT, overturning a decision of the Law Institute not to give him one on the basis that he was not a fit and proper person. Judge Bowman said the Institute had been wrong to rely on past misconduct which had already been considered by the Legal Profession Tribunal, and in respect of which the solicitor should be deemed to have ‘done his time’, so long as he entered into a repayment plan. Continue reading “Once you’ve done your time, prior misconduct not an indicator of fitness to practise”

Yet another sole practitioner ignores the Bureau (yawn)

In Legal Services Commissioner v RMB [2008] VCAT 170, the Bureau de Spank prosecuted a Fitzroy sole practitioner who had studiously ignored a complaint for nearly 11 months. The solicitor finished up paying just $2,500 including costs. Again, the Commissioner is to be commended for keeping costs low ($1,500) by sending along one of her complaint handlers, Anita Spitzer. The solicitor had no good excuse for her impertinence, but was given a discount for never having been found guilty of a disciplinary offence before (a status no doubt shared by 99% of practitioners), and, no doubt, for admitting the allegations. Continue reading “Yet another sole practitioner ignores the Bureau (yawn)”

Misconduct constituted by ignoring the Bureau

In the last post, a solicitor ignored the Bureau de Spank for 3 months, a default explicable by personal circumstances and depression during the relevant period.  In Legal Services Commissioner v JEH [2007] VCAT 2181 (27 September 2007), a Warragul solicitor ignored the Commissioner for almost 6 months. The reasons are broad-brush in their approach to the nature of the plea, but it sounds like the excuses were more diffuse and less tied down to the relevant period of the default than those in the previous case, so Member Howell made a finding of misconduct. The reasons’ characterisation of the self-represented plea was:

‘7    [the solicitor] gave evidence about events of a stressful nature that have arisen in his practice, and in his personal life, during the last 15 years.  I have no reason to doubt his evidence, and his evidence caused me to have considerable sympathy for him, but the events about which he gave evidence do not excuse him from providing to the Commissioner a full written explanation of his conduct.’

To add to the confusion about the difference betweeen misconduct and unsatisfactory professional conduct under the new Act, however, exactly the same penalty was meted out as in the previous case: a $1,000 fine and costs, fixed at $2,352, but without the reprimand.

The solicitor might have pointed to s. 4.2.8 of the Legal Profession Act, 2004 in the context of the fact that the Commissioner did not even publish the complaint to him for a month after receiving it, and said something about the pot calling the kettle black, but unrepresented though he was, I infer from the reasons that he restrained himself, probably quite sensibly.  That section says: Continue reading “Misconduct constituted by ignoring the Bureau”

How to distinguish between unsatisfactory professional conduct and professional misconduct under the new Act

The definitions of the greater and lesser disciplinary offences under the Legal Practice Act, 1996 and the new Legal Profession Act, 2004 are different.  Under the old act, the one was distinguished from the other by the absence or presence or wilful contravention of norms, or recklessness as to whether conduct would contravene norms. No longer. But in Legal Services Commissioner v SM [2007] VCAT 2117, Member Butcher held that intent is still a useful guide in distinguishing between the two.  In that case, a 47 year old sole practitioner sought to explain a 3 month delay in responding to a demand by the Legal Services Commissioner for a written explanation of conduct a former client had complained about, and succeded in having his conduct characterised as the lesser rather than the greater species of disciplinary offence. He was fined $1,000 and ordered to pay costs of $2,165. How the costs were calculated is once again intriguing, since a salaried employee of the Commissioner appeared on her behalf.  The plea went like this: Continue reading “How to distinguish between unsatisfactory professional conduct and professional misconduct under the new Act”

Rule against charging for storing old client files

Update, 15 January 2008: Senior Member Howell decided costs and penalty on 17 December 2007: [2007] VCAT 2465.  The Commissioner sought an injunction to restrain the solicitor from repeating the conduct.  Unnecessary, said Mr Howell, who refused to make any such order.  Now that the solicitor has had the law clarified, as he was entitled to do, it is inconceivable that he will fall foul of it again. Similarly, Mr Howell declined to reprimand the solicitor.  But he did slot him for costs agreed by the parties at $6,700.

Original post: On 12 October 2007, Senior Member Howell found a solicitor guilty of the lesser disciplinary offence of unsatisfactory professional conduct, in the case of Legal Services Commissioner v JR [2007] VCAT 2180. The solicitor’s practice had charged $55 in response to a request by solicitors for an executor for the deceased’s will which was held by the solicitor. The Legal Services Commissioner prosecuted him for breach of rule 37 of the Victorian Solicitors’ Professional Conduct and Practice Rules 2003, which is reproduced below, and says you can only charge storage or retrieval fees by express agreement with a client. Costs and penalty remain to be determined in another hearing. Mr Howell said: Continue reading “Rule against charging for storing old client files”