Pagone J hesitates before making consent order striking QC off Victorian roll

A Victorian QC was jailed this year by a County Court judge for 2 with a minimum of 6 months for possessing child pornography.  Recently, the Legal Services Board applied to the Supreme Court for an order striking him off.  The QC did not appear but communicated his willingess to be struck off by signing consent orders to that effect.  Concisely, Justice Pagone said:

1 This application is brought under s 2.4.42(5) of the Legal Profession Act 2004 (Vic) for the removal from the local roll of [the] QC who has been a member of the legal profession in this State for many years.

2 The basis upon which the application is made is the satisfaction of the Legal Services Board of the matters that it is required to be satisfied about in s 2.4.42. The matter for my consideration is whether [the QC] is, as events and facts are now known, not a fit and proper person to be on the roll.

3 The test can be seen from the three cases to which I have been referred: the Law Society of South Australia v Rodda;[1] the decision of Hansen J in Law Institute of Victoria v Gough;[2] and the more recent decision of Forrest J in Legal Services Board v Bourozikas.[3]

6 The conduct of [the QC] for which he has been found guilty was not conduct committed in the performance of his practice as a lawyer. Many lawyers engage in conduct which is wrongful but does not justify them being struck off the roll. The circumstances in which a lawyer, having committed an offence and has been found guilty of having committed an offence, other than in their conduct in legal practice, which justifies being struck off, is in part a reflection of community standards. However, it is not enough that an offence has been committed. Otherwise, the mere incurring of traffic fines would probably find few lawyers practicing anywhere.

7 The power I am asked to exercise must be exercised cautiously. It is important that lawyers be removed from the roll only when their conduct so reflects upon them adversely in their professional capacity that it is appropriate that they be removed. It is also important that each case be considered on its own facts. The offences for which [the QC] has been convicted reveal a public policy against certain conduct, but it does not follow that in his particular circumstances they inevitably reflect so adversely upon his ability to practice that he must be removed from the roll.[4]

8 The offences are serious by modern community standards. Whether they are sufficient in all circumstances to justify striking from the roll a lawyer I do not need to consider. He has been sentenced for those offences and is being punished for them; the removal of a person from the roll would add to the punishment and is not necessarily always appropriate. For present purposes it is sufficient to say that they are serious, that [the QC] has been found guilty of them, that he has been sentenced to imprisonment, and that he consents to the orders I am asked to make.

9 I have read in some detail the remarks of his Honour Judge Gullaci on 23 April 2009, and there are many facts and circumstances which might tend against my making the orders sought today. I also note from the materials filed the circumstances and helpfulness with which [the QC] dealt with the charges when first put to him when the police officers arrived to search his premises.

10 However, he does not want to be heard against the application. He knows about it and, in the face of serious charges, and a conviction, [the QC] has informed the court by writing to the solicitor for the Board, Ms Rivalland, that he does not want to be heard against the orders that I should make.

11 In those circumstances, and with [the QC] having signed proposed consent orders, I will make the orders sought, although, in light of the submissions made by Mr Hargreaves [an amicus curiae], I shall defer their effect for a period of two weeks from today to give Mr Hargreaves sufficient time to speak to [the QC] in case his current course of action has been made without adequate consideration of legal advice that could have been given to him.

[1] [2002] SASC 274; (2002) 83 SASR 541.

[2] (Unreported, Supreme Court of Victoria, Hansen J, 10 February 1995).

[3] [2009] VSC 382 (Unreported, Forrest J, 3 September 2009).

[4] Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 285-286 (Dixon CJ), 288 (Fullagar J).’

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One Reply to “Pagone J hesitates before making consent order striking QC off Victorian roll”

  1. His Honour Justice Pagone in making the order by consent does not appear to have considered the importance of the court making findings about the nature and extent of the misconduct leading to removal from the roll. His Honour’s position is in contrast to the approach adopted in NSW. Spielgman CJ in NSW Bar Association v Cummins [2001] NSWCA 284 stressed (at [24] onwards) the need to make findings about the misconduct especially given that a practitioner removed from the roll can reapply. In my opinion there is a further reason, not stated in Cummins, for making findings: the profession and the public should be informed about the types of conduct that are incompatible with being a legal practitioner.

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