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Ethics: Fine and punishment

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Cite as: (2007) 81(6) LIJ, p. 84

What should influence the imposition of a fine in disciplinary proceedings?

Where a lawyer is found to have committed professional misconduct or unsatisfactory professional conduct, the disciplinary tribunal or court has within its arsenal a wide variety of possible sanctions.

The most serious of these is striking off or suspension from practice and the consequences of an order of this kind are potentially severe.

A lawyer who is struck off or suspended is denied the right to earn an income from an endeavour which he or she is otherwise qualified to pursue; in essence, the order represents the ultimate restraint on trade.

Despite these ostensibly punitive consequences, both courts and disciplinary tribunals have emphasised that professional disciplinary sanctions have as their object the protection of the public.[1] 

It is common for a finding of misconduct to carry with it a costs order against the disciplined lawyer. Again, though, the intent is not punitive; as with costs orders in the main, here the aim is compensatory.

For findings of professional misconduct or, more likely, unsatisfactory professional conduct, that are insufficiently serious to merit suspension or striking off, a reprimand is a common disciplinary response.

Even though it has been emphasised that being reprimanded, though it does not usually oust any practice rights, remains a serious matter[2] and one that “marks the disgrace of a member of an honourable profession inherent in [the] misconduct”,[3] it has little direct protective value.

Whereas orders for suspension and striking off have been described as “protective orders”, no such description applies to reprimands. Whether because of this, or due to a perception that a reprimand by itself has little substantive effect, it has become common for disciplinary bodies to couple a reprimand with an order that the disciplined lawyer pay a fine. What is interesting in this regard is that fines are rarely associated with striking off orders, and relatively infrequently with orders for suspension.[4] 

As with a reprimand, the fine arguably has little direct protective value. Though ostensibly punitive in effect, the imposition of a fine, it has been said, may have a protective effect in discouraging other lawyers from misconduct, or at least a deterrent effect on the lawyer who has been fined.[5] 

The (albeit limited) research in the field, however, tends towards undermining rather than confirming this point.[6] 

The latter may be implicit in the statutory trend towards increasing the ceiling for fines, which have in any case historically been relatively low (most commonly below $10,000).

Assuming that fines do have a deterrent effect, which in turn fosters the protective ideal, the quantum of a fine should in theory be set by reference to its likely deterrent effect rather than reflecting what punishment is justified for the errant lawyer.

Yet the difficulty in differentiating a deterrent effect from the specific events that have led to the disciplinary proceedings has inclined disciplinary bodies, when setting the quantum of a fine, to adopt an approach akin to sentencing in the criminal law.

The nature of the lawyer’s (mis)conduct affects the quantum of a fine, as does the lawyer’s previous record, contrition (or otherwise) and cooperation (or otherwise) in the disciplinary proceedings.[7] 

The punitive aspect of a fine is, moreover, evident in disciplinary bodies’ willingness to take into account any loss already suffered by the lawyer, and the fact that the lawyer is likely to be liable to meet the costs of the hearing and of the professional body’s investigation, in setting the quantum of any fine.[8] 

It has even been judicially remarked that where disciplinary proceedings instituted against a lawyer are successful, the disciplinary body can take into account any award of exemplary damages against the lawyer in determining any fine (and its quantum), so as to avoid double punishment.[9] 

On the other hand, that disciplinary bodies do not generally take into account the lawyer’s capacity to pay in setting the quantum of any fine highlights a non-punitive aspect. A like notion underscores courts’ unwillingness to refrain from making costs orders against impecunious litigants. The flipside is that any fine imposed on a wealthy lawyer found to have behaved unethically is not upscaled due to the lawyer’s financial capacity to pay a greater fine.[10] 

On this approach, presumably, a fine is less likely to deter some than others. There is also some precedent for a lawyer being deprived of the fees earned through the impugned conduct by way of a fine equating to those fees.[11] 

In this way, the lawyer does not profit from his or her own wrongdoing rather than being punished for it.

The foregoing brief review of the use of the fine as a professional disciplinary sanction reveals a somewhat uncertain jurisprudence. The increasing tendency to use fines in this fashion thus calls for a clearer and more principled exposition of their rationale and function.

GINO DAL PONT is Professor, Faculty of Law, University of Tasmania.

[1] See, for example, Southern Law Society v Westbrook (1910) 10 CLR 609 at 622; Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 252.

[2] Chamberlain v Australian Capital Territory Law Society (1993) 118 ALR 54 at 62.

[3] Law Society of New South Wales v Hinde [2005] NSWADT 199 at [46].

[4] Occasions where suspension has been coupled with a fine usually involve a short (up to 12 months) period of suspension: see, for example, Re Legal Practitioners Act 1898 to 1936 (unreported, CA(NSW), 11 May 1989), Council of the Queensland Law Society Inc v Cummings [2004] QCA 138.

[5] See, for example, New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39 at [124]–[128].

[6] See, for example, Haller, “Disciplinary fines: deterrence or retribution?” (2003) 5 Legal Ethics 152 (who queries by reference to empirical data in Queensland whether fines do indeed have a deterrent effect).

[7] Compare, for example, Law Society of New South Wales v Graham [2005] NSWADT 114 at [22] (good record coupled with contrition justified a fine “at the lower end of the scale”) with Law Society of New South Wales v Konstantinidis (No 2) [2005] NSWADT 76 at [69] (greater fine because of a lack of contrition and previous finding of professional misconduct).

[8] See, for example, Attorney-General v Clough [2002] 1 Qd R 116 at [94]; Re DP and the Legal Practitioners Act 1970 [2005] ACTSC 78 at [5]–[7].

[9] James v Hill [2004] NSWCA 301 at [82].

[10] Law Society of New South Wales v Cornell (No 2) [2006] NSWADT 308 at [72].

[11] Legal Services Commissioner v Mullins [2006] LPT 012 at [35].


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