In Law Institute of Victoria v DSS [2008] VCAT 1179, the Institute sought in a misconduct prosecution an order that the solicitor not be allowed to handle trust monies for 50 years. Vice President Judge Ross described the submission as ‘somewhat excessive’.
The solicitor had stolen $75,000 from his clients and out of his trust account, lied to a trust account inspector, removed evidence so as to hinder his investigation, and involved a client in misleading the inspector by dictating a letter full of lies and having her sign it and send it to the inspector with a view to perverting the course of justice. These were ‘manifestly serious’ instances of misconduct. In a criminal prosecution, Justice Lasry had sentenced the solicitor to 18 months’ imprisonment, wholly suspended. The solicitor was suffering from a mental illness at the time when he committed the offences. A family law client had been murdered by her husband at the County Court more or less in the solicitor’s presence and he had not coped well. There was a psychiatrist’s report. The solicitor was remorseful and his remediation was well advanced. He had paid back all the stolen monies. He was working in a business which provided services to body corporates, and his employer was supportive. On his return to practice, he intended to confine himself to body corporate law.
In these circumstances, the Institute contended that an appropriate disposition for the disciplinary charges arising out of the same facts as the criminal charges was:
- that the matter be referred to the Supreme Court for a decision whether he should be struck off the roll of practitioners;
- that the solicitor should not be entitled to hold a practising certificate until, at the very least, the end of the period of suspended imprisonment;
- thereafter, he should only be able to hold an employee practising certificate for ‘decades’ because ‘it may take Slattery some time to bring his legal knowledge up to date given that he has not practised for a significant period’.
The solicitor admitted misconduct, and conceded that he ought not be entitled in the future to hold trust monies. The only debate was as to the appropriate orders consequent on the finding of misconduct. The Institute’s submissions proved very wide of the mark, Judge Ross accepting nearly all of the solicitor’s counsel’s submissions. In that light, it will be interesting to see how the Tribunal deals with the question of costs, which his Honour went out of his way to reserve liberty to apply in respect of. His Honour:
- considered it unnecessary to refer the matter to the Supreme Court (I must say I rather wonder whether the Supreme Court could have entertained such a reference after Justice Lasry had dealt with the solicitor and not struck him off the roll of practitioners in the Court’s inherent supervisory jurisdiction over its officers: I wonder whether the question was res judicata);
- ordered that the solicitor be entitled at the end of the period of suspended imprisonment (by which time the solicitor would already have been out of practice for 7.5 years) to apply for a full practising certificate with a condition that the solicitor not have a trust account;
- ordered the solicitor to do 5 out of the 10 mandatory continuing professional development units in ethics and professional responsibility in the first year after he got his practising certificate back;
- ordered that the solicitor be entitled to apply for a principal practising certificate entitling him to hold trust monies in 20 years’ time.
The full reasoning of his Honour at [69]ff was as follows:
’69. Contrary to the LIV’s submissions we are not persuaded that, in the circumstances of this case, it is appropriate to refer the practitioner to the Supreme Court. While the practitioner’s misconduct was very serious the mitigating factors to which we have referred tell against such an order.
- In the event that we are not persuaded to refer the legal practitioner to the Supreme Court the LIV submitted that the following limitations would be appropriate if the Tribunal were to permit [the solicitor] to return to legal practice:
- Slattery should not be permitted to hold an employee practising certificate until, at the very least, the end of the operational period of the suspended sentence.
- He should not be permitted to hold a principal practising certificate for a substantial period of time, even decades.
- He should never (or in the alternative, not for a period of 50 years) be permitted to receive or deal with trust money.
- Dealing with the last point first, there is general agreement that it would be appropriate to order that [the solicitor] not be permitted to apply for a practising certificate which would allow him to receive or deal with trust monies. Section 160(2)(vii) requires that we specify a period during which such a limitation would operate.
- Given that [the solicitor] is 62 years of age the 50 year limitation period proposed by the LIV seems somewhat excessive. In our view a period of 20 years would adequately protect the public. Of course after the expiry of that period [the solicitor] would not automatically be entitled to receive or deal with trust monies. The conditions attaching to any practising certificate would be a matter for the LIV and/or the Legal Services Board, subject to a right of review.
- The other limitations proposed by the LIV go to the question of when [the solicitor] may be permitted to apply for a practising certificate and the type of practising certificate he may seek. In this context the LIV points to the incongruity of allowing [the solicitor] to apply for a practising certificate while the operational period of his suspended sentence has not been completed.
- Mr Tatarka submitted that if [the solicitor] was denied the opportunity to apply for a practising certificate until the completion of the operation period of his suspended sentence it would, given his age, have a very significant impact on him. It was also submitted that the existence of the suspended sentence would provide additional protection for the public and a further incentive for [the solicitor] not to re-offend.
- The fact that [the solicitor] is presently undergoing a sentence of 18 months imprisonment, albeit wholly suspended for a period of 2 years from the date of its imposition, is clearly a highly relevant consideration, but it is not decisive.
- We were not referred to any authority in respect of this issue but the High Court’s judgement in Ziems has some relevance. In that case the appellant, a barrister, was convicted of manslaughter and sentenced to two years imprisonment with hard labour. The Supreme Court of New South Wales removed the barrister’s name from the roll on the ground of his conviction and sentence. Upon appeal to the High Court the appeal was allowed and the appellant suspended from practice during the period of his imprisonment. The fact of conviction and sentence, whilst of great importance, was not regarded as decisive. In his judgment Fullager J said:
“The appellant was, at the time of the hearing of the case by the Supreme Court, and he presumably still is, in prison. The ground on which ultimately the Supreme Court decided that he should be disbarred was the incongruity which would be involved in the appellant’s holding the status of a barrister and at the same time serving a sentence of imprisonment. Owen J. said: “if it were permitted, this Court would be holding out the respondent to members of the public as a fit and proper person to act for them in legal matters while he is serving a gaol sentence.” The prima facie ‘incongruity’ may be conceded, though any practical danger to the public might be thought to be reduced by the limitation of activity which normally results from imprisonment. But it is quite consistent with a recognition of the incongruity that suspension during the period of imprisonment should be considered adequate to the occasion.”[16]
- Of course in this case the fact of conviction and sentence is of greater relevance because [the solicitor’s] conviction relates to trust account and other offences which he committed during the course of his legal practice.
- We acknowledge the force of Mr Tatarka’s submission – [the solicitor] will be 64 years of age at the completion of his suspended sentence – but the prospect of a person practising as a legal practitioner during the operational period of a suspended sentence for trust account and other offences is clearly inappropriate.
- The next issue is whether [the solicitor] should be prohibited from applying for a practising certificate until some time after 20 March 2010, that is, whether we should impose, in effect, a further period of suspension from practise [sic.] beyond the operational period of his suspended sentence.
- We are not persuaded that any further period of suspension is appropriate or necessary to protect the public. At the end of the operational period of [the solicitor’s] sentence he will have been suspended from practise [sic.] for 7½ years (ie. 24 September 2002 until 20 March 2010). Having regard to the mitigating factors to which we have referred, and [the solicitor’s] age, no further period of suspension is warranted.
- The LIV also proposed that [the solicitor] should not be allowed to hold a principal practising certificate for a substantial period of time, even decades. In essence it is proposed that [the solicitor] hold an employee practising certificate for a substantial period before he is permitted to hold a principal practising certificate. The basis of this submission seems to be that it may take Slattery some time to bring his legal knowledge up to date given that he has not practised for a significant period.
- We are not persuaded that we should impose these additional conditions, for three reasons:
- A period of supervision is unnecessary given the limitation we have imposed on [the solicitor’s] capacity to receive or deal with trust monies.
- It is not appropriate to make, in effect, a prospective judgement about the currency of [the solicitor’s] legal knowledge and whether he would benefit from a period as an employee solicitor. It is open to [the solicitor] to bring his legal knowledge up to date before applying for a practising certificate and if he did so it would be unnecessary to impose further conditions on his practising certificate.
- [The solicitor] will be 64 years of age when he becomes eligible to apply for a practising certificate. As a practical matter the conditions proposed by the LIV would effectively preclude him from ever holding a principal practising certificate. This would undoubtedly impose further financial hardship.
- We will make an order pursuant to section 160(1)(c)(vii) that [the solicitor] may not apply for a practising certificate until 20 March 2010.
- We now turn to the question of whether we should order that [the solicitor] undertake additional CPD units when he returns to practise [sic.].
- The Continuing Professional Development Rules 2008 provide that in each CPD year (ie. the year beginning 1 April and ending on 31 March in the following year) a legal practitioner must complete at least 10 CPD units and as part of that obligation must complete at least 1 CPD unit in each of the following fields:
- Ethics and professional responsibility
- Professional skills
- Substantive law
- Practice management and business skills
- It seems to us that [the solicitor] would particularly benefit from undertaking further training in ethics and professional responsibility. Hence of the 10 CPD units that [the solicitor] will be obliged to undertake in the first year of his return to practise [sic.] we will order that at least 5 CPD units be in the field of ethics and professional responsibility.’
