Almost 3 months ago, a 71 year old sole practitioner who has practiced for 28 years was charged with knowingly possessing child pornography and knowingly transmitting an image of a child having sex. He has not admitted the charges which remain to be tried. He is of course presumed innocent. Nevertheless, the Legal Services Board (through its delegate the Law Institute of Victoria) peremptorily suspended his practising certificate without notice. The Board’s reasons do not appear clearly from VCAT’s decision. It would be interesting to know why the fact of a charge sufficed to satisfy the Board that the solicitor’s right to practise law should be terminated immediately and without hearing him on the question. The solicitor applied to VCAT for a de novo review of the decision. Senior Member Howell’s decision is FM v Law Institute of Victoria Ltd [2008] VCAT 692. The solicitor has 30 current files and a quarter of a million dollars in his trust account. He desires to retire on 1 July, and said that if he could have his practising certificate back he would undertake not to take on any new matters, and to wind up his affairs by then. In the face of the Board’s vehement opposition, VCAT said he could have his practising certificate back.
The Legal Services Board, through its delegate, opposed the solicitor’s proposal:
’16… the Law Institute strongly opposed the application for review, and was not prepared to accept the proposal.
17 Mr. Barravecchio said that [the solicitor] is charged with criminal offences that are so serious as to render [the solicitor] not a fit and proper person to hold a practising certificate. Because [the solicitor] is not a fit and proper person, contended Mr. Barravecchio, it is in the public interest that his practising certificate be suspended immediately.
18 Mr. Barravecchio further contended that, if the Law Institute had not suspended [the solicitor]’s practising certificate, it would have been seen to be condoning [the solicitor]’s conduct. Furthermore, it would have been seen to be holding out to the profession and to the public that [the solicitor] remained a fit and proper person to hold a practising certificate. In the circumstances of this case, said Mr. Barravecchio, that would be “incongruous”.’
There is a natural tendency to conceive of practising certificate cases as being dichotomous: as if — to have or not to have a practising certificate, that is the question. As this illustration shows, there is a broad spectrum of possibilities between being allowed to practise as principal of a law practice with a trust account and not being allowed to practice at all.
See also this post about another lawyer accused of having child pornography on his computer.
