Disciplinary penalties for pre-2006 conduct

There are still disciplinary cases coming through the system in respect of conduct which occurred before 12 December 2005, the date on which the Legal Profession Act, 2004 commenced.  Back in those days, the maximum fines the Legal Profession Tribunal could render under the Legal Practice Act, 1996 were $1,000 for unsatisfactory conduct and $5,000 for misconduct (unless the Full Tribunal sat, in which case, a maximum fine of $50,000 was available for misconduct).  Recently, the Legal Services Commissioner accepted, in a disciplinary prosecution, that the penalty for a disciplinary wrong committed before 12 December 2005 ought not to exceed the maximum penalty available at the time. That is so even where the post-12 December 2005 investigation of the pre-12 December 2005 conduct was properly carried out pursuant to the Legal Profession Act, 2004 and where the VCAT proceedings in which the fine is rendered are governed by the 2004 Act.

So, assuming the Commissioner maintains a consistent position, the highest fine he is likely to contend for in any unsatisfactory conduct charge in respect of pre-12 December 2005 conduct is $1,000, making the desirability of prosecuting such conduct, as opposed merely to reprimanding the practitioner, questionable.

The transitional provisions to the 2004 Act tell the world to treat references in the 1996 Act to the Legal Profession Tribunal as references to VCAT.  But what is a reference in the 1996 Act to the Full Legal Profession Tribunal to be taken to mean?  No one really knows.  In a recent case, though, a 3 person tribunal at VCAT presided over by a senior member who was neither a judge nor a retired judge.  He was insufficiently satisfied that VCAT so constituted was equivalent to the Full Legal Profession Tribunal as to warrant exercising the powers of the Full Legal Profession Tribunal, and so proceeded on the basis that the maximum fine available to it in a professional misconduct charge was $5,000, rather than $50,000.

If prosecuting what is now called professional misconduct consisting of pre-12 December 2005 acts and omissions, the Commissioner will no doubt seek to have VCAT constituted in such manner as to justify it assuming the powers of the Full Legal Profession Tribunal.  Until the question which was worked around in the case I am referring to is resolved by a decision, that probably means that a judicial member will hear the case, even though, back in the day, a Full Legal Profession Tribunal could be presided over by any member of the Tribunal who had engaged in legal practice for 7 years.

The maximum fines provided for in the 2004 Act, which the Commissioner seems likely to contend for only in respect of post-12 December 2005 conduct, are $10,000 for unsatisfactory professional conduct and $50,000 for professional misconduct, regardless of  the constitution of the VCAT tribunal.

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