What is the duty of care in tort of a man with florid paranoid schizophrenia?

Some cases are just dead interesting.  Dunnage v Randall [2016] 2 WLR 839, [2015] WLR(D) 287, [2015] EWCA Civ 673 is one of them.  A man sued the estate of his late uncle for compensation for injuries he suffered when his uncle poured petrol on himself and set it alight.  Despite the man’s efforts to prevent this tragedy, his uncle, a sufferer of schizophrenia, died.  The man jumped off a balcony to escape, having suffered burns.  Now you might think it heartless to sue to the disadvantage of the beneficiaries of the uncle’s estate in the circumstances.  But of course there was an insurer to upset the analysis.  The uncle was insured under a household policy against liability for accidentally causing bodily injury.  It was the insurer arguing that the mad have a different duty of care.  The trial judge agreed.  The Court of Appeal reversed.  Lady Justice Rafferty’s leading judgment is stylish.

The permissible forensic uses of historical mental illness in professional discipline trials

Professor Dal Pont’s excellent text Lawyers’ Professional Responsibility (5th ed., 2013) suggests at [23.145] that mental illness will rarely provide a defence to a disciplinary prosecution, the purpose of which is protective rather than punitive.  He argues, in part, that the public needs protection just as much from the mentally ill who do bad things as from the mentally flourishing who do wrong.  But that reasoning does not have any application where there is not a temporal proximity between the moment of determining liability and the moment at which the putative wrongdoing occurred. In my experience the glacial pace of disciplinary investigations usually mean that the time for setting sanctions is years after the conduct in question.  Very often, I find myself acting for practitioners whose minds are flourishing much more than at the time of their wrongdoing.

I always thought (or perhaps more accurately, hoped) that Dal Pont was a little pessimistic about the possibility of mental impairment being relevant to the determination of the question of whether unsatisfactory professional conduct or professional misconduct is.  True, there are some decisions broad statements in which support that position, but the authorities are a bit all over the place, and there are so many different kinds of conduct warranting discipline and so many fact scenarios that it seemed to me that the law must be more nuanced than some of those broad statements suggested.

Last year, VCAT’s Legal Practice List last year ruled, contrary to the position advanced by Victoria’s Legal Services Commissioner, that evidence of mental impairment was relevant to the question of whether conduct was professional misconduct or unsatisfactory professional conduct, and heard evidence from a psychologist during the liability phase of the hearing.  The two species of conduct warranting discipline arising from a breach of the rules have traditionally been delineated by enquiring whether the breach was innocent or whether it was deliberate or reckless, so that it clearly incorporates a subjective enquiry. VCAT’s decision to hear the psychological evidence on the question of liability was, as I have learnt in the course of penning this post, consistent with that in New South Wales Bar Association v Butland [2008] NSWADT 120.

Now the Supreme Court of NSW has reviewed the authorities and published a useful decision in the matter of BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 (Adamson J), making clear that mental illness may be relevant to the question of liability, as well as to the question of penalty where it is of course of critical relevance, citing Robinson v The Law Society of New South Wales (Supreme Court of New South Wales, Court of Appeal, unreported, 17 June 1977), a decision I have not come across before. Essentially, Justice Adamson said, it all depends on whether there was a mental element to the kind of conduct warranting discipline which is charged.  Conduct described as a failure to maintain standards of competence and diligence is not something to which the practitioner’s mental impairment is relevant.  In charges which rely on the practitioner having a particular state of mind do require analysis of the degree to which the practitioner’s state of mind was flourishing.  Professional misconduct at common law is determined by what competent and reputable peers would think of the conduct.  What they would think is affected by the degree to which the practitioner’s mind was flourishing at the relevant time.

Unfortunately for the barrister who was the subject of the disciplinary hearing under appeal in this case, all this meant that though the Tribunal and the Court accepted that her conduct was caused by her psychiatric illness, she was nevertheless properly found guilty of unsatisfactory professional conduct constituted by failing to maintain standards of competence and diligence and acting in the face of a conflict between self-interest and duty to her client.  The test for such unsatisfactory professional conduct does not enquire into the mind of the practitioner, the Court found.  Accordingly, the psychiatric causation was legally irrelevant.

See also this sister post, about the disciplinary Tribunal’s and the Supreme Court’s willingness to allow the practitioner to change her plea, once after the liability hearing but before the delivery of reasons and once on the eve of the hearing of the appeal.

Continue reading “The permissible forensic uses of historical mental illness in professional discipline trials”

Lawyers withdrawing ‘guilty pleas’ in disciplinary prosecutions at first instance and on appeal

BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 is the subject of this sister post about the permissible use of evidence of mental impairment.  Two aspects of it deserve their own separate post.  The respondent barrister changed her plea twice, once after the liability phase of the hearing but before the decision as to liability was given and once the night before the hearing of her appeal in the Supreme Court of NSW.  Each time, she was allowed to do so. Continue reading “Lawyers withdrawing ‘guilty pleas’ in disciplinary prosecutions at first instance and on appeal”

A case about a bipolar lawyer

My practice has had me thinking a lot recently about the professional discipline of the mentally ill.  The legal profession has caught up with the medical profession by coming up with good policies which make clear that where mental illness can be managed in such a way as to protect clients and others to whom lawyers owe duties, managed practice by the mentally ill should be encouraged and supported.  For example, see the Legal Services Board’s policy.  The Board’s CEO, the Legal Services Commissioner Michael McGarvie, has been talking about the policy in recent weeks, and so has a Federal Court judge been talking about his own long standing clinical depression.  This post looks at what might be a sad case of a mentally ill lawyer who defended himself, and got me thinking about how mental illness is treated when it emerges in the course of investigation of disciplinary complaints.

If mental illness is not relevant to the test for professional misconduct, as the Commissioner argues and at least one text asserts, I wonder whether the Commissioner should be given a discretion not to prosecute where he finds it reasonably likely that VCAT would make a finding of professional misconduct, but the practitioner does not presently hold a practising certificate and their conduct is at least in part explained by mental illness. Continue reading “A case about a bipolar lawyer”

The Lawchestra’s second ever concert

The Lawchestra, about which I have troubled you before, is playing again this Sunday after we totally nailed the last concert (photos from the brilliant young photographer and law student Sean R. Ali here). It was thanks to the good work of Robert Dora, the conductor.  Man does he have a hard job.  Orchestras like the Melbourne Symphony Orchestra run themselves and the conductors just add an air of distinguished flamboyance.  But conducting a community orchestra, the conductor really has to work hard to cue people, explain to them without speaking or stopping wagging the baton that they came in a bar early, as well as drag some dynamic contrast out of players more worried about playing the right notes than where to diminuendo.  It’s a high-risk, high-stress job, and Dora the Conductor is great.  So is the gorgeous soloist, Natasha Lin.  You should definitely come: book here.  Even The Age says so. Continue reading “The Lawchestra’s second ever concert”

A last-ditch argument

A South Australian solicitor’s last-ditch argument in his brave but unsuccessful battle to stay on the roll of practitioners was:

‘Mr Prescott contends that this Court should not act on the false testimony finding in the strike off application because, even though his testimony in the 2011 hearing was false, he had deluded himself into believing the truth of that testimony.’

The Supreme Court of South Australia did not fall for it, despite the solicitor having obtained from a Mr Ireland, psychologist, a diagnosis of acute stress disorder which hindered his ability to give reliable testimony.  The reasons are at Legal Practitioners Conduct Board v Prescott [2014] SASCFC 41. The Court said:

‘His demeanour when giving evidence before this Court exuded a sense of self assurance and confidence which was incongruous with his claim that he has been overwhelmed by the disciplinary proceeding he has faced over the last decade.’

Needless to say, the Court also engaged in a great deal of other analysis, ultimately preferring the evidence of the Bureau de Spank’s psychiatrist.

Now if there is a jurisdiction where you would hesitate about running an ‘I was mad; I knew not what I done, Guv’ defence, it is probably South Australia, where they had a Royal Commission about the police’s handling of a solicitor whose car collided with a cyclist who died soon after.  The rabid response of an ill-informed public whipped up by shock jocks and politicians insufficiently unwilling to exercise restraint to the solicitor’s explanation for his conduct after the accident (that he was in a state of post trauamatic stress and was acting more like an automoton than usual) continues to provoke headlines there, many years after the tragedy.

The Lawchestra

Indulge me while I go off message for a second.  Mind you, I am going to tell you about a band that is decidedly heavy with costs lawyers, since Liz Harris is on harp and I’m playing flute, so in my own mind I have a weak but arguable case for relevance.  This Saturday sees the debut performance of the Melbourne Lawyers’ Orchestra, aka the Lawchestra, following in the steps of the several excellent doctors’ orchestras in Victoria (and even an engineers’ orchestra) and lawyers’ orchestras in London, and America. There are a handful of barristers, many solicitors, and some law students, brought together with patience and brill all at once by the rather wonderful conductor Robert Dora. We’ve got it all, mate: harp, bass drum, cor anglais, horn francais, piccolo, bass trombones, and they all get a thrashing. You should come, because it’s going to be a cracker, and also because you might very well get to hear me play in a general pause: book here. Continue reading “The Lawchestra”

WA disciplinary tribunal says it’s misconduct for a doctor passing a crash not to stop and offer assistance

Update: This decision was reversed on appeal: Dekker v Medical Board of Australia [2014] WASCA 216.  The Court of Appeal did not find that there was no duty to assist.  Rather, they found that there was insufficient evidence before the disciplinary tribunal for it to find the existence and acceptance in the profession of such a duty, because the existence of such a duty was never put to the doctor by the tribunal and because the tribunal failed to take into account on the question of liability (as opposed to penalty) all the surrounding circumstances, including that the doctor was in a state of shock.

Original post: Eleven and a half years after a 2002 car accident south of Port Headland a radiologist has been found guilty of the Westralians’ version of professional misconduct (‘improper professional conduct’) but not of conduct which peers would regard as disgraceful or dishonourable, for failing to render medical assistance.  The decision is Medical Board of Australia v Dekker  [2013] WASAT 182.  It makes a bold assertion of general application without identifying or discussing any authority about the factual scenario in question, which must surely occur regularly all over the world and — one would have thought — be much pondered:

’39 It is improper conduct in a professional respect for a medical practitioner who is aware that a motor vehicle accident has or may have occurred in their vicinity and that anyone involved has or may have suffered injury not to make an assessment of the situation, including the nature of any injuries and needs of persons involved, and render assistance, by way of first aid, when the practitioner is physically able to do so, notwithstanding that the practitioner immediately reports the matter to police or other emergency services. It matters not that there is no existing professional relationship between a medical practitioner and the persons involved in the accident. Because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession, and because members of the profession have the knowledge and skills to do so, the failure by a medical practitioner to make an assessment and render assistance when he or she is aware that a motor vehicle accident has or may have occurred in their vicinity and that people have or may have been injured, when the practitioner is physically able to do so, would, notwithstanding that the practitioner reports the matter immediately to police or other emergency services, reasonably be regarded as improper by medical practitioners of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.’

Civil liability in tort has been imposed on a doctor who refused to attend upon an emergency involving a non-patient: Lowns v Woods [1996] Aust Torts Reports 81-376 (NSWCA).  But in that case the then proximity-based test for establishment of a duty of care was satisfied by a number of factors which included that:

  • a request was made for assistance in respect of what the doctor understood to be a medical emergency which he was willing to provide (but only on the condition that the patient be brought by ambulance to his practice);
  • he was specifically told that ‘We need a doctor.  We have already got an ambulance’;
  • he was able to do so: he was at work, available, competent at administering the requisite treatment, and could have done so promptly being only 300 m away from the patient;
  • to attend involved no threat to his person;
  • he was not incapacitated so as to make giving treatment more difficult: he was not drunk, or ill, or tired; and
  • there were statutory provisions which made it misconduct to fail to render assistance to a person in urgent need of medical attention without reasonable excuse.

See Kylie Day’s ‘Medical Negligence – the Duty to Attend Emergencies and the Standard of Care: Lowns v Woods(1996) 18(3) Sydney Law Review 386.

The tortious duty was squarely founded on the fact of a request in a professional context for treatment of the kind in which the doctor practised. Public policy was expressly acknowledged as relevant to the determination of the tortious liability. Since the existence of a professional obligation was a matter that told in favour of the development of a new category of duty of care, civil lawyers ought not be entirely blase about the latest apparent development of the disciplinary law courtesy of the Westralians.

Continue reading “WA disciplinary tribunal says it’s misconduct for a doctor passing a crash not to stop and offer assistance”

More on solicitors’ obligations to pay counsel’s fees

Council of the Law Society of New South Wales v JAX [2012] NSWADT 283 is a case in which the solicitor was disciplined for paying himself out of fees provided to him by his client for payment of counsel’s fees.  Ultimately he went bankrupt and did not pay the fees. See also this earlier post on this subject.  The decision also represents yet another admonition to pleaders of disciplinary charges to plead dishonesty expressly if they intend to allege it.

There were the following agreed facts: Continue reading “More on solicitors’ obligations to pay counsel’s fees”

Solicitor fined $3,500 for forgery

A 27 year old solicitor working in family law twice lied about the existence of a document, and then forged it.  That was just one and a bit years after a harrowing admission application in which the Board of Examiners split on whether she should be admitted, as a result of what VCAT’s Deputy President McNamara referred to as ‘allegations of plagiarism’ at the College of Law, and a want of frankness in their disclosure.  The Board had given the solicitor a stern warning at the end of the hearing.  For the forgery, the solicitor was fined $3,500 and reprimanded, the Commissioner’s submission that a year’s suspension was warranted being dismissed as ‘disproportionate’: Legal Services Commissioner v SJJ, McNamara DP, 14 April 2011.  If followed, this decision suggests once again that interference by VCAT with a practising certificate requires quite profound dishonesty.

As to the fine, it may be that $3,500 was a significant fine for this solicitor: her financial circumstances were described as ‘exiguous’, but she was employed as a solicitor by a respectable Melbourne firm at the time of the penalty hearing, looked set to remain so employed by her supportive employer, and her circumstances seem to have been principally affected by the size of her mortgage.  The general deterrence of a fine of this sum would be enhanced if its appropriateness in the context of the solicitor’s ability to pay it were explained in greater detail.  That way, solicitors weighing up the risks of forging a document against its perceived desirability (yes, that is the theory of general deterrence) would be able to remember back to the report of the case in question and think ‘Well if he was fined $5,000 and had an annual disposable income of $25,000 living in a modest home, I must be looking at a fine of something like $20,000 since my disposable income is four times his, and I live in a home twice as large as my family actually needs.’

Continue reading “Solicitor fined $3,500 for forgery”

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: Continue reading “The sting in calling in aid your mental infirmity in disciplinary proceedings”

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. Continue reading “Depressed serial non-responder not to practise on own account until 2013”

Commissioner’s unexplained delay reduces penalty for serious misconduct

Speaking of the need for speed as Justice Heydon and I were on this blog yesterday, there are two other instances worthy of reporting.

First, the High Court has recently considered the need for speed in criminal proceedings, and were not nearly as excited about it as in commercial litigation. This time, they rolled the court below for saying that enough delay was enough and staying a criminal prosecution that had hung around for too long, resulting in the loss of exculpatory evidence.  The decision in R v Edwards [2009] HCA 20 might have application by analogy in disciplinary cases. It is blogged about at Quis Custodiet Ipsos Custodes, and there is a short note in the latest Law Institute Journal.

Secondly, delay by the Legal Services Commissioner has had a consequence in a serious disciplinary prosecution.  Parliament requires the Bureau de Spank to conduct their investigations ‘as expeditiously as possible’, and to give the complainant progress reports at least 6 monthly: s. 4.4.12, Legal Profession Act, 2004.  If the Commissioner complies with these injunctions, the degree of expedition which is possible is not always great.  In fact, sometimes the rate at which investigations progress is astonishing.  So glacial can progress be that the possibility that climate change sceptics might actually have some kernel of truth buried away beneath all of their hot air (-not) begins to nag at you.  There is a letter in the latest Law Institute Journal complaining about the Commissioner’s April 2009 response to a solicitor’s September 2008 letter (August 2009, p. 10).

An unexplained period of apparent inactivity of 18 months was taken into account in favour of the lawyer prosecuted for misconduct in Legal Services Commissioner v ER [2009] VCAT 1445.  This is a factor which might be brought to bear in many a plea in a disciplinary prosecution.  What Judge Ross’s tribunal said on this issue is: Continue reading “Commissioner’s unexplained delay reduces penalty for serious misconduct”

Another remedial disposition of a disciplinary hearing

A solicitor was found guilty of professional misconduct in early 2006 for failing to respond to the Commissioner.  Then he was found guilty again for a similar thing in December last year and fined $1,500.  And then again just recently, by Senior Member Preuss, a decision maker who seems new to the Legal Practice List: Legal Services Commissioner v RJ [2009] VCAT 1130.  At the most recent hearing on 1 June, the solicitor still had not provided a response to the complaint in issue in the December 2008 hearing.  The complaint in issue in the most recent hearing, to that point unresponded to by the solicitor, was lodged 20 months ago, and related to alleged delays in the administration of a deceased estate, a matter of interest to the Commissioner. Que faire? Senior Member Preuss decided against a further fine, and instead exercised the power given to her under s. 4.4.19(i) of the Legal Profession Act, 2004, which says:

‘The Tribunal may make the following orders: … (i) an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a specified person.’

There is a trend emerging.  See this previous post.  But since the 1 June 2009 decision, the solicitor has been back before a differently constituted Tribunal in relation to his non-compliance with the order made in December last year, at which a different advocate appeared for the Commissioner.  Vice-President Ross fined the solicitor $750: Legal Services Commissioner v RJ [2009] VCAT 1080.  What Senior Member Preuss said in June 2009 was: Continue reading “Another remedial disposition of a disciplinary hearing”

Gambling addiction

Trust monies tempt gamblers.  Sometimes solicitors succumb.  Consider R v. Gabriel W [2006] VSC 397, where $1 million disappeared from a solicitor’s trust account. Justice Teague locked him up, and said in the process:

’16 I have read closely the reports of two psychologists who have examined you. They are Mr Beaton who saw you in 1998, and Mr Newton who saw you in 2006. You told Mr Beaton that you knew that you had to permanently stop the gambling. You told Mr Newton that your gambling did stop in 2001. You also told Mr Newton that all your offences arose out of gambling. You gambled away money belonging to others. More of such money was paid out to try to extricate yourself from the plight in which the gambling had left you. Your addiction to gambling does help to explain why you so wantonly and brazenly disregarded the rights of your clients and of the other victims whom you misled and deceived. It cannot be seen to excuse what you did. At most it can be seen to mildly reduce the importance of the element of general deterrence.’

‘Quis custodiet ipsos custodes?’, the excellent new Melbourne law blog about the criminal law, has a post about R v Grossi [2008] VSCA 51, in which Justice of Appeal Robert Redlich told us what to make of gambling addiction as a sentencing consideration.  I will not reproduce the post — go read it yourself — but I will share with you his Honour’s lowdown (not great news for gambler crims): Continue reading “Gambling addiction”

Nettle JA on sentencing thieving lawyers

R v Maurice B [2008] VSC 254 records the sentencing remarks of Nettle JA apparently sitting in the trial division following a guilty plea by a solicitor who stole a quarter of a million dollars. The solicitor argued the state of his mind was relevant in two ways. First, he said his impaired mental functioning short of psychiatric illness at the time of the offending diminished his moral culpability. Secondly, what appears to have degenerated into a psychiatric illness (depression, anxiety disorder, panic attacks requiring anti-depressants) was a relevant consideration in determining an appropriate sentence.

Based on the psychiatric evidence, Justice of Appeal Nettle gave little truck indeed to the first claim, but did take the mental state of the solicitor by the time he had been through the Legal Profession Tribunal and the criminal charges into account in fashioning an appropriate sentence. In fact, along with the solicitor’s age (67) his mental condition at the time of sentencing was the thing which kept him out of the clink. His Honour conducted a survey of a number of Victorian cases involving thieving solicitors who received suspended sentences of imprisonment and remarked:

‘I doubt that the sentences imposed in at least some of those cases gave due weight to the overriding importance of general deterrence in matters of this kind. For, even allowing that a suspended sentence is a sentence of imprisonment for all purposes, it is manifestly less burdensome than an immediate term of imprisonment. It is also to be remembered that the maximum sentence for the offence of having a deficiency in a trust account has more than doubled since the Legal Professional Practice Act 1958 was first replaced by the Legal Practice Act 1996, from seven years to 15 years’ imprisonment. These days, the idea of a fully suspended sentence in a case of solicitor defalcation will seldom sit easily with the imperative that solicitors who act in fraudulent breach of trust account obligations “must … inevitably suffer severe punishment”.’

The whole of the relevant passage is: Continue reading “Nettle JA on sentencing thieving lawyers”

Law Institute seeks 50 year ban for 62 year old solicitor

In Law Institute of Victoria v DSS [2008] VCAT 1179, the Institute sought in a misconduct prosecution an order that the solicitor not be allowed to handle trust monies for 50 years. Vice President Judge Ross described the submission as ‘somewhat excessive’.

The solicitor had stolen $75,000 from his clients and out of his trust account, lied to a trust account inspector, removed evidence so as to hinder his investigation, and involved a client in misleading the inspector by dictating a letter full of lies and having her sign it and send it to the inspector with a view to perverting the course of justice. These were ‘manifestly serious’ instances of misconduct. In a criminal prosecution, Justice Lasry had sentenced the solicitor to 18 months’ imprisonment, wholly suspended. The solicitor was suffering from a mental illness at the time when he committed the offences. A family law client had been murdered by her husband at the County Court more or less in the solicitor’s presence and he had not coped well. There was a psychiatrist’s report. The solicitor was remorseful and his remediation was well advanced. He had paid back all the stolen monies. He was working in a business which provided services to body corporates, and his employer was supportive. On his return to practice, he intended to confine himself to body corporate law.

In these circumstances, the Institute contended that an appropriate disposition for the disciplinary charges arising out of the same facts as the criminal charges was: Continue reading “Law Institute seeks 50 year ban for 62 year old solicitor”

Solicitor who blatantly lied to clients for years keeps ticket

Legal Services Commissioner v BH [2008] VCAT 687 is a case with terrible facts. A man died as a result of a crime. The family hired the respondent solicitor to act for them in crimes compensation applications. He lost the file some time into the second year of the retainer, but did not tell his clients. Late in the third year of the retainer, the Victims of Crime Assistance Tribunal struck out the claims for want of prosecution, but the solicitor hid the fact. Over a period of 6 months beginning a year later during which the 4th anniversary of the retainer fell, the solicitor made up a whole string of complete lies, telling his clients that VOCAT had made offers of compensation, but that they should be rejected, and that they should attend the fictitious trial. The Commissioner urged the suspension or cancellation of the solicitor’s practising certificate, but the Victorian Civil and Administrative Tribunal (VCAT) declined, instead fining him and imposing conditions on his ongoing practice. Continue reading “Solicitor who blatantly lied to clients for years keeps ticket”

A little fine for ignoring the Bureau de Spank

A decision of Senior Member Howell on 31 August 2007 has only just hit the screens: Legal Services Commissioner v IDE [2007] VCAT 2244.  A solicitor of 32 years’ standing let a file fester in the too hard basket for too long and then ‘buried his head in the sand’ when the Bureau sent over a ‘please explain’. A clinical psychologist’s report said he had a tendency towards denial.  He was remorseful.  He did not self-represent.  On the other hand, he had been found guilty of delay by a Bureau before.  The result: 2 findings of misconduct, a reprimand, a little fine of just $500, plus costs in the order of $2,750, $800 odd of which were costs which the solicitor volunteered to pay the complainant, who had travelled from South Australia. It was said that his demotion from partner of a country firm to employee solicitor was the result of the charge, and so the solicitor had already suffered considerably.  Unfortunately, the reasons do not reveal how long the period in which the Bureau was ignored for was.

How to distinguish between unsatisfactory professional conduct and professional misconduct under the new Act

The definitions of the greater and lesser disciplinary offences under the Legal Practice Act, 1996 and the new Legal Profession Act, 2004 are different.  Under the old act, the one was distinguished from the other by the absence or presence or wilful contravention of norms, or recklessness as to whether conduct would contravene norms. No longer. But in Legal Services Commissioner v SM [2007] VCAT 2117, Member Butcher held that intent is still a useful guide in distinguishing between the two.  In that case, a 47 year old sole practitioner sought to explain a 3 month delay in responding to a demand by the Legal Services Commissioner for a written explanation of conduct a former client had complained about, and succeded in having his conduct characterised as the lesser rather than the greater species of disciplinary offence. He was fined $1,000 and ordered to pay costs of $2,165. How the costs were calculated is once again intriguing, since a salaried employee of the Commissioner appeared on her behalf.  The plea went like this: Continue reading “How to distinguish between unsatisfactory professional conduct and professional misconduct under the new Act”