In the latest Byrne v Marles ( VSC 210), Justice Beach seems to have found that any particular allegation made by a complainant may properly be characterised as both a civil and a disciplinary complaint. If the Legal Services Commissioner receives a complaint, she must investigate it to the extent it is a disciplinary complaint and must try to settle it to the extent it is a civil complaint. There is no particular difficulty where two allegations are found in one complaint document, and one is characterised as a civil complaint and another is characterised as a disciplinary complaint. In my experience, that is what the Commissioner always does: she chooses between the two alternatives in relation to any one allegation as if they are mutually exclusive.
Since ‘any genuine dispute’ between the complainant and the lawyer complained about is a civil complaint, however, one might think that all disciplinary complaints in which the complainant has a dispute with the lawyer complained about will amount to both a civil and a disciplinary complaint. And since an allegation will be a disciplinary complaint if it is of conduct which ‘falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent’ lawyer, there will be many civil complaints which will also be disciplinary complaints.
In such a circumstance, unless the Commissioner summarily dismisses the whole complaint under s. 4.2.10, she must try to settle it (insofar as it is a civil complaint), and (insofar as it is a disciplinary complaint) she must investigate it.
If Justice Beach’s logic is applied, profound challenges await the Commissioner. They are inherent in the Act’s injunction in relation to one dispute to investigate it in the public interest with a view to prosecuting and penalising the lawyer, while at the same time trying to resolve the dispute between the complainant and the lawyer. Most obviously, what is the Commissioner to do about s. 4.3.5(4)? It says:
‘Evidence of anything said or done in the course of attempting to resolve a civil dispute is not admissible in proceedings before [VCAT] or any other proceedings relating to the subject-matter of the dispute.’
Are there to be two sets of responses, in one of which (in the civil complaint) the lawyer makes socially appropriate concessions, apologises, and agrees to pay money in return for confidentiality, and in the other of which (the disciplinary complaint), the lawyer takes all appropriate technical points and, while being fully frank and open as required by the Act, concedes nothing? And imagine the disquiet the lawyer’s insurer will have knowing that the Commissioner will be able to compel the provision of answers from a practitioner, as if interrogating him, in the disciplinary complaint which will run parallel with the professional negligence claim constituting the civil complaint.
In the original Byrne v Marles  VSCA 78, Mr Byrne had the Court of Appeal declare that the Legal Services Commissioner is obliged to give lawyers an opportunity to be heard in relation to whether the complaint should be characterised as a disciplinary complaint (I posted about it here). The decision has been reversed by legislation in relation to all complaints lodged after 12 December 2008.
Following the Court of Appeal’s decision, the Commissioner resumed her duties. She wrote a letter of the kind that she has been writing in response to Byrne v Marles (see para 1 of the judgment which is the subject of this post). She heard Mr Byrne on the question: he sent in 12 pages of submissions. Then she said:
‘The complaint is a disciplinary complaint as defined in section 4.2.3. of the Legal Profession Act 2004 (‘the Act’) because it is a complaint about conduct which, if established, would amount to unsatisfactory professional conduct or professional misconduct. A civil dispute is defined in section 4.2.2 of the Act.’
Section 4.2.3 defines a ‘disciplinary complaint’ as:
‘a complaint about conduct … to the extent that the conduct, if established, would amount to unsatisfactory professional conduct or professional misconduct.’
The reasons are accordingly not very illuminating, if they may properly be called reasons at all, especially when one of Mr Byrne’s points has been that the non-provision on request of a costs agreement is no more an allegation of conduct warranting discipline as an allegation that a lawyer’s handshake was too limp (my characterisation of his argument, not his). No one could argue with the proposition that it would be more helpful to say ‘Allegation X, if established, would amount to a breach of rule Y of the conduct rules’ or ‘Allegation Z, if established could amount, depending on any extenuating circumstances you may bring to my attention during the course of the investigation, to professional misconduct at common law, in the sense that, unexplained, your conduct would be regarded by your competent and reputable peers as disgraceful and dishonourable.’
Mr Byrne returned to the Supreme Court to complain. It gave him no truck at all. Justice Beach held that there is no mutual exclusivity between a disciplinary complaint and a civil complaint, and said that Mr Byrne’s case was based on such a fallacy. Mr Byrne has long been saying that the allegations (e.g. the non-provision on request of a copy of the costs agreement which regulated his and his former client’s relationship) should be seen for what they are: a costs dispute. Justice Beach said (again, my words, not his), that it may well be a costs dispute, but so too may it also be a disciplinary complaint.
That there is no mutual exclusivity is obvious from s. 4.2.11. The real question is whether the parliament contemplated that a particular allegation could amount to both a civil and a disciplinary complaint, or whether it contemplated a single document raising multiple allegations, some of which might be characterised as civil and some as disciplinary complaints. Though that question is not expressly identified in the judgment, the inescapable conclusion of Justice Beach’s decision is that a single allegation may be both.