Another remedial disposition of a disciplinary hearing

A solicitor was found guilty of professional misconduct in early 2006 for failing to respond to the Commissioner.  Then he was found guilty again for a similar thing in December last year and fined $1,500.  And then again just recently, by Senior Member Preuss, a decision maker who seems new to the Legal Practice List: Legal Services Commissioner v RJ [2009] VCAT 1130.  At the most recent hearing on 1 June, the solicitor still had not provided a response to the complaint in issue in the December 2008 hearing.  The complaint in issue in the most recent hearing, to that point unresponded to by the solicitor, was lodged 20 months ago, and related to alleged delays in the administration of a deceased estate, a matter of interest to the Commissioner. Que faire? Senior Member Preuss decided against a further fine, and instead exercised the power given to her under s. 4.4.19(i) of the Legal Profession Act, 2004, which says:

‘The Tribunal may make the following orders: … (i) an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a specified person.’

There is a trend emerging.  See this previous post.  But since the 1 June 2009 decision, the solicitor has been back before a differently constituted Tribunal in relation to his non-compliance with the order made in December last year, at which a different advocate appeared for the Commissioner.  Vice-President Ross fined the solicitor $750: Legal Services Commissioner v RJ [2009] VCAT 1080.  What Senior Member Preuss said in June 2009 was:

’17 In his oral evidence before the Tribunal which I accept, [the solicitor] gave evidence to the effect that he had a deep seated problem which made him unable to deal with the Commissioner’s requests for an explanation, and that the hearing weighed heavily on his mind and depressed him. Such evidence is relevant in considering the question of penalty.

18  I note that [the solicitor] had been ordered to pay a fine in the earlier proceeding. The fact that he is before the Tribunal in the present case in similar circumstances indicates that the disposal of the charge by fining him has failed to rectify his underlying problem.  Further, whilst he said that he had now resolved to “bite the bullet” and address the need to provide the information sought by the Commissioner, I am not confident he will be able to do so without obtaining professional assistance and support.

19 I proposed that rather than impose a fine, a regime be established which was in the interests of Mr Johnston and the wider community, namely that [the solicitor] seek such assistance as may enable him to deal effectively with his present and earlier failure to comply with the Commissioner’s requests, the Tribunal’s orders made on 15 December 2008 and with other matters arising out of his practice.’

The solicitor does not seem to have argued that in view of the Tribunal’s acceptance of his inability to deal with the Commissioner’s requests, he had in fact done nothing wrong; in fact the reasons indicate that both the Commissioner and the solicitor supported the decision when Senior Member Preuss raised it for consideration.  Perhaps in making that point, I read the reasons too literally, and what was really meant was that it was accepted that the unspecified deep seated problem hindered the solicitor from dealing with the complaint.

The present situation is ridiculous.  Extraordinary waste of senior decision makers’ and the Commissioner’s office’s time is being engendered by these prosecutions while complainants wait months and years even for an initial response to their complaints.  The Commissioner should be given power at the end of the fortnight in which a response is called for to go to the solicitor’s offices and require production there and then of the file.  (In another recent decision, Legal Services Commission v DMT [2009] VCAT 1028, a solicitor who has either not received or obdurately not responded to communications by the Commissioner since two complaints were lodged in 2004 and 2006 in relation to his involvement as a solicitor with deceased estates was fined $2,000 (following two findings of professional misconduct made in his absence).)

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