Can conduct unconnected with practice constitute misconduct at common law?

Recently, it has been suggested that misconduct unconnected with legal practice (which the High Court has referred to as ‘personal misconduct’) may constitute professional misconduct at common law: New South Wales Bar Association v Cummins [2001] NSWCA 284; Legal Services Commissioner v RAP [2009] VCAT 1200, the subject of this post.  This post considers whether that is correct, in light of A Solicitor v Council of the Law Society of NSW [2004] HCA 1; 216 CLR 253.  The answer to that question does not affect what I suggest may be a separate question, namely whether personal misconduct may warrant disbarment (which is clearly the case), since disbarment is not conditioned on a finding of professional misconduct, but is dependent on a finding of unfitness for practice.  I am interested to hear others’ views.

There is no doubt that conduct unconnected with legal practice may justify a finding that a lawyer is no longer a fit and proper person to practise law, and so justify their disbarment.  The Supreme Courts of the states and territories have an inherent jurisdiction to admit solicitors and strike them off the roll.  In the exercise of that jurisdiction, they may also consider whether conduct amounts to misconduct at common law, and issue disciplinary penalties.  A finding of misconduct at common law is not a condition of disbarment; solicitors with mental illness or other incapacitation may be struck off for the protection of the public though they have done nothing wrong.

Disciplinary tribunals like VCAT consider whether an extended suite of professional wrongs have been made out, which explicitly include certain conduct unconnected with legal practice.  The Legal Profession Act, 2004‘s definition of professional misconduct is an inclusive definition, and the orthodoxy is that the common law concept of misconduct is caught by the definition, so that VCAT may consider both the traditional and the statutory species of professional wrongs.

Because the inherent jurisdiction is usually exercised in disbarment cases as opposed to disciplinary proceedings proper, and because this aspect of the definition of misconduct at common law rarely arises in tribunal hearings by virtue of the availability of statutory professional wrongs which may be charged where conduct unconnected with legal practice is in issue, the question of whether the common law concept of professional misconduct extends beyond conduct in the course of, or in connection with, legal practice does not often arise.  Chief Justice Spigelman tackled the question squarely in New South Wales Bar Association v Cummins [2001] NSWCA 284 at [34] to [66], with whom the other judges agreed.  His Honour concluded that the professional misconduct at common law could be constituted by conduct unrelated to practice, though that conclusion was arguably dicta since the conduct in question — not paying tax on income from professional fees — was sufficiently connected with legal practice as not to require analysis of the case of wholly unconnected conduct.

Cummins was followed by Judge Ross in Legal Services Commissioner v RAP [2009] VCAT 1200.  In that case, the solicitor was found guilty of professional misconduct at common law constituted by engaging in misleading conduct during Supreme Court proceedings in which he was involved as a party (which brought into play his duties as an officer of the Court, providing a connection with legal practice) but not guilty of professional misconduct at common law constituted by lying in a commercial transaction, which was truly unconnected with legal practice.

Both Professor Dal Pont in Lawyers’ Professional Responsibility in Australia and New Zealand, and Halsbury’s Laws of Australia state that professional misconduct at common law may be constituted by personal misconduct.

Judge Ross does not seem to have been referred to A Solicitor v Council of the Law Society of NSW [2004] HCA 1; 216 CLR 253, which post-dated Cummins.  It is apparent that Professor Dal Pont had considered that High Court case, though.  The High Court had to consider a case where a step-father had engaged in aggravated sexual assault on four occasions against his step-children, been convicted, and been sentenced to be on a good behaviour bond for three years. The offending comprised mainly pulling the children’s pants down when they were in their bedrooms. The solicitor had been under considerable life pressure at the time of the offences, recognised their gravity, volunteered his practising certificate, and sought treatment. His children wished him to remain in the family, and their mother married him after the offences had been committed to her knowledge.

While he knew the Law Society was attempting to bring disciplinary proceedings against him in relation to the convictions, he failed to disclose that he had been charged with further aggravated sexual assaults on one of the step-children, of which he was later convicted but acquitted on appeal.

The Court of Appeal struck him off. The High Court’s unanimous judgment reversed the Court of Appeal’s finding of professional misconduct comprised of the assaults of which the solicitor was convicted, saying at [34]:

‘It is true that the conduct involved a form of breach of trust, being the trust reposed in the appellant by the mother of the children (who later forgave, and married, him) and the children themselves. However, the nature of the trust, and the circumstances of the breach, were so remote from anything to do with professional practice that the characterisation of the appellant’s personal misconduct as professional misconduct was erroneous.’

The High Court found that a period of suspension would have been appropriate, and that the solicitor had effectively already served out the appropriate period, so they re-instated him to the roll.

At [21], the Court said:

‘Professional misconduct may not necessarily require a conclusion of unfitness to practise, and removal from the roll. In that regard, it is to be remembered that fitness is to be decided at the time of the hearing. The misconduct, whether or not it amounts to professional misconduct, may have occurred years earlier. At the same time, personal misconduct, even if it does not amount to professional misconduct may demonstrate unfitness, and require an order of removal. The statutory definition in s 127* involves both concepts, and, where it applies, must be given effect according to its terms. However, when the Supreme Court is exercising its inherent jurisdiction, it has the capacity to determine, and act on the basis of, unfitness, where appropriate, without any need to stretch the concept of professional misconduct beyond conduct having some real and substantial connection with professional practice.’ (emphasis added)

It is this passage which makes me wonder whether the outer limits of professional conduct at common law is conduct with some real and substantial connection with legal practice.


*The Court said at [11]: ‘Part 10 of the [Legal Profession Act, 1987 (NSW)] … deals with “Complaints and Discipline”. … The definition of “professional misconduct” in s 127(1) states that for the purposes of Pt 10, it includes, among other matters:

“(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or (b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners.”

The expression “unsatisfactory professional conduct” is defined in s 127(2) for the purposes of Pt 10 as including:

“conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.”’

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