Legal Services Commissioner v BH [2008] VCAT 687 is a case with terrible facts. A man died as a result of a crime. The family hired the respondent solicitor to act for them in crimes compensation applications. He lost the file some time into the second year of the retainer, but did not tell his clients. Late in the third year of the retainer, the Victims of Crime Assistance Tribunal struck out the claims for want of prosecution, but the solicitor hid the fact. Over a period of 6 months beginning a year later during which the 4th anniversary of the retainer fell, the solicitor made up a whole string of complete lies, telling his clients that VOCAT had made offers of compensation, but that they should be rejected, and that they should attend the fictitious trial. The Commissioner urged the suspension or cancellation of the solicitor’s practising certificate, but the Victorian Civil and Administrative Tribunal (VCAT) declined, instead fining him and imposing conditions on his ongoing practice.
The solicitor admitted the facts alleged against him, and admitted that they amounted to the kinds of misconduct charged. Ironically, Member Butcher hinted that but for the admissions, the above facts would not necessarily in his view have amounted to misconduct at common law comprised of a substantial or consistent failure to reach or maintain a reasonable of competence and diligence, as charged. The definition of that species of misconduct is
‘conduct in a professional capacity which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency’.
The Legal Services Commissioner urged the suspension or cancellation of the practitioner’s practising certificate, but Member Butcher refused, saying that the protection of the public — the only consideration in disciplinary hearings — did not require it. As Mr Butcher said, ‘There have been before this Tribunal and its predecessor practitioners who have been found guilty of greater transgressions than Mr [H] whose practising certificates have remained intact.’
Instead, Mr Butcher imposed fines totalling $12,000, ordered costs in the sum of $3,700, and ordered that for one year, the solicitor go monthly to professional counselling sessions with Geoff Gronow, the Law Institute Members’ Advocate, and a registered psychologist, each of whom the solicitor was ordered to direct to report to the Legal Services Commissioner. They are to be engaged at the solicitor’s own expense. Member Butcher said:
’13 I have received in a plea in mitigation considerable material in relation to Mr [H]. He is not an inexperienced practitioner. He is a man in his 50s who has been practising for many years. To his credit thus far, there has been no disciplinary matter recorded against his name. His counsel put before the Tribunal a report from Mr [E], a practising psychologist as to some counselling which has taken place with Mr [H]. There has also been placed before the Tribunal a character reference in writing from Mr [N], a legal practitioner and in addition viva voce evidence of a character nature was given by Mr [M] of counsel.
14 It has also been said that Mr [H] is a practitioner who has not enjoyed great financial success and that he has been grappling with the pressures of practice. It is worthy of note that these charges arise from a time when Mr [H] was not a sole practitioner. He is now a sole practitioner. His situation has not improved. The financial situation of Mr [H]’s household is not a great one. It would appear that but for the earnings of his wife there would be severe financial difficulties. As it is, things are not easy. It would appear that the family household earnings are less than the outgoings, there are two children still at school and school fees are being paid in relation to those two children and there is a mortgage on the house. It has been stated that Mr [H] has needed to access his superannuation in order to maintain a living. It is quite clear that there are financial pressures.
15 It has been submitted on behalf of the Legal Services Commissioner that the appropriate disposition is to cancel or suspend Mr [H]’s practising certificate. I have concluded that this is more severe than is necessary. It was submitted on behalf of Mr [H] that removal of his practising certificate would be disproportionate and I must agree with that submission. There have been before this Tribunal and its predecessor practitioners who have been found guilty of greater transgressions than Mr [H] whose practising certificates have remained intact. Having said that it is clear that the duty of this Tribunal is not to punish the legal practitioner but to protect the public. It is in my view possible to protect the public without removing Mr [H]’s practising certificate. I therefore do not intend to do so.
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17 Further, it has been suggested that Mr [H’s] practising certificate be cancelled and that he be only allowed to obtain an employee certificate. There is no present suggestion of a job offer and I am mindful of Mr [H]’s financial and family situation. I do not propose to pursue that course of action.
18 In my view the purpose of protection of the public may be achieved by placing certain requirements on Mr [H]. Whilst the role of the Tribunal is not to punish, I am of the view that it is appropriate that fines be imposed in relation to these charges.’
