Depressed serial non-responder not to practise on own account until 2013

Update, 22 October 2010: To similar effect is Legal Services Commissioner v SJO [2010] VCAT 1686.  There, a depressed solicitor in her mid-60s with a string of previous disciplinary findings, was found to have engaged in professional misconduct in practising without a practising certificate.  The solicitor’s is a sorry tale: doctor husband developed psychosis for which he refused to obtain treatment; daughter became addicted to heroin; solicitor contracted breast cancer.  Mind you the Tribunal found that though a mitigating factor, the depression did not excuse the solicitor’s conduct, or explain her professed belief that by virtue of having lodged an application for a practising certificate and not having received a rejection of the application, she was entitled to practise. Somehow or other, this case managed to be heard over 8 days commencing in February. The solicitor was in her mid-60s and on her own account most unlikely to practise in the future. Rejecting the Commissioner’s unusual but not illogical argument that the solicitor should be struck off because of the incongruity in holding the solicitor out as fit to practise as a solicitor during the period in which she was not entitled to apply for a practising certificate, Senior Member Howell extended that period by a year, to 24 February 2015.  Explaining the rejection, the Senior Member said:

‘Protection of the public is a relevant consideration, but the Tribunal has concluded that little, if anything, would be gained by making a recommendation to the Supreme Court that the name of [the solicitor] be removed from the Supreme Court Roll. The Tribunal does not regard it as “incongruous” that the name of a person whose name has been on the Roll for almost 40 years, and who is unlikely to practise in the future for both legal and personal reasons, should be allowed to remain upon the Roll.’

Original post: In Legal Services Commissioner v SWM [2010] VCAT 1543, a depressed former solicitor was told not to apply for a full practising certificate until 2013.  He had previously been found guilty of professional misconduct for not responding to the Legal Services Commissioner’s request for responses to complaints and other instances of inaction where action was called for. 17 times: on 1 November 2007, 7 May 2008, 19 November 2008, 3 February 2009, 28 September 2009, and on 26 November 2009.  On 2 December 2009, the solicitor’s practising certificate was cancelled. He did not apply for a practising certificate on 1 July 2010, when he was permitted to do so again. This time, he was found guilty of four charges of professional misconduct.

The solicitor had an unblemished record to 2006.  Illness struck his family and he became depressed.  Inactivity followed.  Senior Member Howell seems to have accepted that the depression explained the inactivity.  Nevertheless, he ordered that the practising certificate-less former solicitor not apply for a full practising certificate until mid-2013, but allowed him to apply for an employee practising certificate on 1 July 2011.  This post considers the order and alternative orders which might also be appropriate in a jurisdiction whose rationale is, it is said, protection of the public.

In a jurisdiction where protection of the public is the all-important consideration, an alternative order would be to prevent application for further practising certificate until such time as a psychiatrist declared the solicitor sufficiently recovered from his depression to be able to sustain a specified form of practise.  If the solicitor recovers fully earlier than 1 July 2011, why should he not be entitled to practise under a full practising certificate?  His mental health would no doubt be the subject of an inquiry for the purposes of assessing his fitness for practise at that time.  If the solicitor makes no progress, and an order preventing him from making a further application for a practising certificate is justified, why should he be entitled to apply for a practising certificate?  I must confess that I do not really understand why, in cases like this, involving no moral obloquy on the part of the solicitor (for that, as I apprehend it, was the finding: see, e.g. [50]) orders preventing a practitioner from applying for a practising certificate are appropriate, given that the very question for determination in an application for a practising certificate is whether the applicant is fit (which includes medically fit) for practice of the kind the applicant has applied to engage in.  Specific deterrence is one justification put up.  But one can only imagine that an order of this kind would further depress the solicitor and promote recidivism.  General deterrence is another.  But using the mentally ill as vehicles for general deterrence is rightly not generally considered fair.  There is no protection of the public consideration.  The public are protected already by the practitioner not having a practising certificate, and by the fitness for practice test which must be hurdled before a certificate will be granted.

The profession has counsellors available.  The Law Institute is associated with Law Care.  I have dealt with the counsellor, Michael  Clareborough, on a number of occasions.  Law Institute members can get more information here. My clients, not all have gone to see him without a degree of being told to do so,  have said he is good.  That is my impression too.  This is a major advance.  But I wonder whether there is a proactive mechanism whereby people like this solicitor whom the authorities obviously accept to be unwell are contacted and offered assistance.  In my view there should be.  Such succour should be funded by the profession.

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