Senior Member Howell decided last year in Legal Services Commissioner v RMB [2010] VCAT 51 that there is a mens rea element to professional discipline offences under the Legal Profession Act, 2004, in that there is a defence of ‘honest and reasonable mistake’. That fascinates me, since under the previous Act, misconduct and unsatisfactory conduct was often delineated by the presence or absence of knowledge that the conduct engaged in breached a norm of conduct. Conduct in ignorance of its wrongfulness was punishable as unsatisfactory conduct. Now, though, there is no knowledge element built into the definitions of the 2004 Act, and there seems to be no particular reason why the concept of honest and reasonable mistake which has been imported from the criminal law, might not apply equally to cases of professional misconduct and unsatisfactory professional conduct.The facts were that solicitor interviewed a witness in the presence of her client and others. The witness complained before trial to the Legal Services Commissioner:
“I’m writing to inform you about a meeting I went to with Mr Aldo Decorrado, [the solicitor], and Mr. Lagana where in the room and I was on my own, when I went to this meeting I felt I was trapped, intimidated and was very frightened as they wanted me to sign documentation which I didn’t want to sign, I felt that I was forced to sign these documentation they asking me questions in which I did not know what they were talking about and I just kept saying that I didn’t remember and they were putting words in my mouth and every time I did speak I was told rudely to be quiet by [the solicitor].”
Counsel the solicitor retained did not end up calling the complainant as a witness on behalf of the solicitor’s client. Instead, at trial, the witness gave evidence for the other side. His evidence was not the evidence purportedly recorded in the statement taken by the solicitor. He gave evidence that he was intimidated during the meeting with the solicitor. Very embarrassing for the solicitor.
The solicitor was called on to respond before the embarrassment of the trial played out, however. She denied each and every allegation in the witness’s complaint, but said she would give a comprehensive response only once the case was over. It is not entirely clear to me why, if the solicitor’s position was that the complaint was a pack of lies, she could not say so before the trial. Indeed, it is not entirely clear to me why a response denying each and every allegation was not a full and complete answer anyway, but the solicitor seems to have conceded that it was not. The likely answer, I suppose, is that she denied each and every allegation of what she understood to be wrongdoing, but not each and every allegation. She seems to have agreed, for example, that she interviewed the witness in the presence of her client, for example.
A barrister had advised the solicitor that refusing to answer until after the trial was the proper course. The Commissioner prosecuted her for breach of the provision in the Act which requires lawyers to provide a ‘full written explanation’ of their conduct upon demand. He succeeded, because the solicitor did not give as full an explanation as she could have even if she believed that she was obliged not to divulge to the Commissioner details of the controversial witness interview which might prejudice her client at the trial of the case. For example, she failed to answer a letter from the Commissioner which enquired into the relationship between the matter the trial of which the solicitor wanted to have happened before giving a full response, and the matter for which the solicitor was taking the witness’s statement. In the decision in relation to penalty ([2010] VCAT 182), Senior Member Howell found the solicitor guilty of unsatisfactory professional conduct rather than professional misconduct as contended for by the Commissioner, and fined her $1,000. Somehow, the Commissioner’s costs of this little prosecution crept up to more than $9,000, and the solicitor was slugged with them too.
The solicitor defended the prosecution on two bases. One was that she was not guilty of breaching the requirement to provide a full written explanation because she had made an honest and reasonable mistake that she was obliged not to do so. Senior Member Howell decided that honest and reasonable mistake is a defence to a prosecution based on breach of s. 4.4.11 of the Legal Profession Act, 2004 as if it were a provision which gave rise to a criminal offence. As noted, however, the solicitor’s attempt to avail herself of the defence failed, because on the facts, it was not made out.
