Court of Appeal sets aside unduly harsh outcome in gross overcharging prosecution

PJQ v Law Institute of Victoria[2007] VSCA 122 is the part 1 of the last chapter in a story of good tactical plays characteristic of professional discipline specialist Sam Tatarka in the representation of a solicitor charged with gross overcharging, and applying trust monies to pay his fees without the appropriate paperwork. It sounds like a plea bargain was entered into whereby the solicitor pleaded guilty to the charges on the basis that what led to the overcharging was overzealous representation and disorganization rather than dishonesty and in return, the prosecutor — the Law Institute of Victoria — would not make submissions as to penalty. But that is speculation. When it came time for ‘sentencing’, the solicitor offered an undertaking to the Tribunal that any file in which he proposed to charge more than $20,000 would be independently costed by a costs consultant. The Tribunal enquired whether he would submit to such costing by the Law Institute’s costs assessing service. The solicitor said yes.

In Law Institute of Victoria Limited v PJQ [2005] VLPT 8, the Full Legal Profession Tribunal came down hard, accepting the expert opinion of a man without a law degree that appropriate legal costs for a proceeding of the kind in which the solicitor had represented his client were half what he had charged, and suspending the solicitor from practice for 12 months. To the surprise of the President of the Court of Appeal, the Tribunal made no mention of the alternative to suspension represented by the undertaking despite going through the ritualistic ‘no punishment happening here’ recitations (‘Our task does not involve punishment of the legal practitioner. Our task is to provide for the protection of the public, including deterrence of the legal practitioner and the profession generally from like conduct…’; ‘Conscious of the necessity to place the barrier high before depriving a member of the profession of their practising certificate we have given all the circumstances of this case the most careful and repeated consideration.’ etc.).

President Maxwell, with whom Justices Chernov and Nettle agreed, held that the Tribunal’s inexplicable failure to mention in its reasons the undertaking offer suggested that its sentencing discretion had miscarried.  His Honour actually acknowledged with refreshing forthrightness that penalisation is part of sentencing for professional discipline offences, but, by his words, sought to give real meaning to the concept that protection of the public is what professional discipline is all about, by quashing the Full Tribunal’s orders and, on resentencing, making no orders in recognition of the substantial costs already incurred by the solicitor and the partially endured suspension:

’31 … the Tribunal’s protective function is paramount. Thus, where there is a choice of sanctions, it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public.

32 In my opinion, the Tribunal was here faced with just such a choice. Counsel for Quinn had offered the Tribunal an undertaking to have his bills of costs independently assessed. This undertaking was offered apparently without limit of duration. As Buchanan JA and I said when granting a stay of the suspension, the imposition of a continuing obligation of that kind would seem likely to afford considerably greater protection to the public than a period of suspension, unaccompanied by any requirement of training or further education, followed by a resumption of unsupervised practice. Put simply, compliance with the undertaking would ensure that there was no recurrence of the overcharging which occurred here.

33 As I have mentioned, the Tribunal’s otherwise careful reasons for decision make no mention of the proffered undertaking.[4] The Tribunal said that it had considered other options short of suspension but in my view, because of the long-term protection which the undertaking offered the public, that course required separate consideration and evaluation.

34 The Tribunal having given no explanation for rejecting this alternative, I have concluded that its exercise of discretion miscarried. Quinn was entitled to know why the offer of an undertaking was unacceptable. His misconduct was very serious but – contrary to the Institute’s submission – it was not “of the utmost seriousness”. Overcharging by falsely claiming for work not done is much more serious than overcharging because excessive work has been done, as was the case here. With respect to the Tribunal, it is not apparent why Quinn’s conduct was seen to be “so grave that the only course open” was suspension, particularly given the unchallenged evidence about his depressive illness.’

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