The sting in calling in aid your mental infirmity in disciplinary proceedings

Legal Profession Complaints Committee v DL [2010] WASAT 133 is one of those cases where psychiatric evidence called in aid of the disciplinary defendant, a solicitor, was used in support of the Tribunal’s decision effectively to strike the solicitor off.  In relation to mental illness, the ‘protective not punitive’ mantra of the law of professional discipline has some bite, and it should.  The ‘sting’ can only ever have operation where the psychiatric problem which gave rise to the impugned conduct is also present at the date of the penalty hearing; the only risk in the plea in mitigation ‘I was unwell in my mind at the time I did these things, but I’m better now’ is in not making out the ‘I’m better now’ bit. The Tribunal concluded:

’53 The courts and this Tribunal have consistently applied the principle that the object of disciplinary proceedings is the protection of the public and the maintenance of proper standards in the legal profession rather than punishment of the practitioner, and that, therefore, the consequences for the practitioner may need to be more severe than they would be if the only object of the proceedings was one of punishment: Re Maraj (a Legal Practitioner) (1995) 15 WAR 12.

54 There are circumstances, particularly when a monetary fine is being contemplated, when the financial and personal circumstances of a practitioner will be relevant. In those circumstances, the Tribunal will be able to express its reasons for imposing whatever is the appropriate fine, having regard to the personal circumstances of the practitioner, in such a way that the effectiveness of the element of deterrence can be maintained. There will be circumstances in which the practitioner’s personal circumstances can be taken into account provided that an appropriate penalty can be imposed which achieves the above central object of protecting the public and the maintenance of proper standards in the legal profession. This is not such a case.

55 It is clear from Dr Tanney’s report and oral evidence that the practitioner has an ‘avoidant ­ obsessive’ personality which leaves him vulnerable when, as yet largely unidentified triggers cause him to suffer mental blocks. It is a part of his personality to procrastinate. Further, the practitioner needs assistance to identify those triggers and to participate in a relapse prevention program. While that would ordinarily involve cognitive therapy or cognitive problem­solving for three to five months, there would then also need to be reinforcing sessions or maintenance sessions, as well as self­monitoring and monitoring by other people who would report to the therapist.

56 Without these steps having already been satisfactorily and substantially completed, the practitioner represents a risk to the public. Dr Tanney cannot at this stage identify all of the triggers which might activate the practitioner’s vulnerability. In the case of Mr B, it was, at least initially, his reaction to something as insignificant as the filing of a document with an incorrect heading.

57 It is with considerable empathy for the practitioner that we reach the conclusion that the only appropriate course is to transmit a report to the Supreme Court (Full Bench) recommending his removal from the role of practitioners, that being a course which was equally available under the 2003 Act. The references provided by the practitioner, and the further background provided by Dr Tanney of the practitioner’s approach to practice, leave us in no doubt that Mr Leask is an inherently good person who has generally been a credit to the legal profession.

58 The circumstances of this case have some parallels with the Legal Profession Complaints Committee and A Practitioner [2010] WASC 13 in which the practitioner’s conduct was associated with mental illness. The statement by the Chief Justice at [26] and [27] is equally applicable to this case:

    • … However, as the dominant objective of the court in cases such as this is the protection of the public and the maintenance of proper standards of legal practice, considerations personal to the practitioner cannot deflect the court from the only reasonable conclusion open on the facts which she has admitted, and that is that her name must be removed from the Roll of Practitioners.

      Those conditions [the psychiatric conditions] create a degree of risk to the public, in the event that the practitioner was permitted to remain in practice, which is unacceptable. However, should those conditions and the symptoms associated with those conditions subside, it is not beyond the realm of possibility that the practitioner might be readmitted (Re Stokes [2008] WASC 269). That prospect might provide some incentive to the practitioner to undertake the treatment regime which has been proposed for her. Only time will tell whether the practitioner’s condition will improve to the point where readmission could be contemplated.’

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