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Early response essential

Feature Articles

Cite as: (2009) 83(06) LIJ, p.38

Failure by practitioners to respond promptly to a request from the Legal Services Commissioner for an explanation of their conduct can have costly professional and financial repercussions.

By Judge Iain Ross

In the past 12 months there has been a dramatic increase in the number of practitioners charged with misconduct as a result of failing to respond to a request by the Legal Services Commissioner (Commissioner) for documents or a written explanation of their conduct in relation to a disciplinary complaint.

The Legal Profession Act 2004 (the Act) empowers the Commissioner to investigate the conduct of a legal practitioner if there is reason to believe that the conduct amounts to a disciplinary breach. This is so even if no complaint has been made about the practitioner’s conduct.

Section 4.4.11 of the Act provides that an investigating authority (such as the Commissioner) may require a practitioner who is the subject of an investigation to provide a full written explanation of their conduct and any other information or documents. A practitioner may also be required to verify any explanation, information or documents provided, by statutory declaration.

Since 1 July 2008, nine out of every 10 disciplinary applications by the Commissioner have concerned a practitioner’s failure to respond to requests for a written explanation or other information about a disciplinary complaint. Between 1 July 2008 and 31 March 2009, the Commissioner made 42 applications to the Victorian Civil and Administrative Tribunal (VCAT) for orders against legal practitioners. Thirty-eight of those applications related to an alleged failure to respond to such requests.

The ability to undertake investigations into the conduct of legal practitioners is an important part of the regulatory regime established by the Act and hence an important means of protecting the public. By failing to respond appropriately, practitioners adversely affect the Commissioner’s ability to comply with her statutory obligation to conduct an expeditious investigation of these complaints.

The failure to provide the explanations or material sought is usually a contravention of s4.4.11 of the Act and is conduct which is capable of constituting unsatisfactory professional conduct or professional misconduct (see s4.4.4(a)).

Whether a practitioner’s conduct amounts to misconduct or unsatisfactory conduct will usually be a matter of degree.

Appropriate penalties

Sections 4.4.17, 4.4.18 and 4.4.19 of the Act provide that if VCAT finds a legal practitioner guilty of unsatisfactory professional conduct or professional misconduct, it may (relevantly in this context) do one or more of the following:

  • make an order imposing a fine not exceeding $10,000;
  • make an order suspending or cancelling the practitioner’s practising certificate;
  • make an order reprimanding the practitioner;
  • make an order that the practitioner undertake and complete a specified course of further legal education;
  • make an order specifying a period during which the practitioner may not apply for a practising certificate or for a practising certificate with particular conditions; and
  • make any other order that it thinks fit.

VCAT’s powers to discipline legal practitioners for misconduct are primarily protective.1 But its disciplinary orders are also punitive, as Maxwell P observed in Quinn v Law Institute of Victoria Limited:

“The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence – which serve the protection of the public – depend upon the sanctions having punitive effect”.2

His Honour also said that because VCAT’s disciplinary jurisdiction is punitive, in the service of protecting the public, the principles applicable to sentencing apply by analogy.

In sentencing, generally it is necessary to balance just punishment, specific and general deterrence, denunciation, protection of the community, and rehabilitation.3

In cases involving legal practitioners, the nature and gravity of the misconduct is central to the process of determining an appropriate sanction. A range of other factors may also be relevant, including any previous disciplinary findings against the practitioner; remorse; the practitioner’s health; and whether the practitioner has made admissions. Admissions usually result in a saving of public resources and sparing witnesses the inconvenience of attending VCAT to give evidence. An admission may also be indicative of remorse. Such matters are taken into account as mitigating factors.

In the past nine months, 16 practitioners have been found guilty of either misconduct or unsatisfactory conduct as a result of their failure to respond to the Commissioner’s requests. About half of these practitioners faced more than one charge. An analysis of these cases shows:

  • a finding of professional misconduct is the most common result (20 such findings, as opposed to five findings of unsatisfactory professional conduct);
  • a fine of between $500 and $1500 is usually imposed in respect of each finding of misconduct or unsatisfactory conduct); and
  • on average, fines totalling about $1650 were imposed on each practitioner (because they often faced multiple findings of misconduct).

Surprisingly, a number of the practitioners had still failed to respond to the Commissioner’s requests by the time VCAT came to deal with the charge(s) against them. Such conduct often results in the imposition of a larger fine than would have been imposed had the practitioner responded to the Commissioner’s requests before the hearing.

Case studies

Case Study 1

The Commissioner received a complaint relating to a practitioner’s handling of a matter. The Commissioner wrote to the practitioner, advising her of the details of the complaint and that she was required to provide a full written explanation of her conduct within 16 days.

The practitioner did not respond to the Commissioner’s correspondence. Nor did she respond to two subsequent letters from the Commissioner, one of which was sent by registered post. In the correspondence, the Commissioner informed the practitioner that the failure to provide a full written explanation of her conduct may constitute a breach of the Act and may thereby amount to professional misconduct. The practitioner was also directed to give the matter her urgent attention.

As at the date the Commissioner’s application was made to VCAT, the practitioner had failed to provide any written explanation of her conduct and had failed to respond to any of the correspondence. However, before the hearing of the charge, the practitioner provided the Commissioner with the required explanation.

Before VCAT the practitioner admitted the relevant facts and pleaded guilty to a charge of professional misconduct.

The Commissioner had sought the imposition of a $1000 fine. VCAT concluded that such a fine would be excessive having regard to all the circumstances, including the plea and the fact that the practitioner had, albeit belatedly, provided the Commissioner with a satisfactory written explanation of her conduct in relation to the disciplinary complaint.

The practitioner was fined $500.

Case Study 2

The relevant facts in this matter are broadly the same as those in Case Study 1. As in the first matter, the practitioner admitted the relevant facts and pleaded guilty to a charge of professional misconduct. But in this case, despite the institution of the proceedings, the practitioner still failed to provide the Commissioner with the information sought.

The practitioner was fined $1000.

Other relevant factors

A practitioner’s previous disciplinary findings are also relevant in the assessment of an appropriate penalty. The nature of any previous offences and how long ago they occurred are also taken into account.

For example, in one case VCAT had regard to the fact that the practitioner had been found guilty of similar offences on five previous occasions in recent times. A fine of $1500 was imposed and VCAT went on to observe:

“[The practitioner] did not think clearly or act competently in this matter, and I am concerned as to his ability to continue to practise . . . the Commissioner did not seek the suspension of [his] practising certificate. However, if [the practitioner] continues to demonstrate an inability to think clearly and act competently, the Tribunal may find itself with no option but to make an order relating to his practising certificate”.

It is rare for VCAT to suspend or cancel a practitioner’s practising certificate as a result of their failure to respond to a request by the Commissioner for documents or a written explanation of their conduct in relation to a disciplinary complaint. But such orders have been made.

In one case VCAT made an order cancelling the respondent’s practising certificate and providing that he could not be granted a practising certificate for three months. The order also provided that the three-month period would be reduced to one month if the practitioner supplied the explanation and information sought within a specified period.4

While the circumstances in that case were unusual, it illustrates the importance of complying with the Commissioner’s requests. The failure to do so may threaten the right to practise.

Where VCAT has found a practitioner guilty of unsatisfactory professional conduct or professional misconduct, the VCAT Act provides that VCAT must make an order requiring the practitioner to pay the Commissioner’s costs unless satisfied that “exceptional circumstances” exist.5

In practice, cost orders are usually made in favour of the Commissioner in cases where the practitioner is found guilty of misconduct or unsatisfactory conduct. Costs were ordered against each of the 16 practitioners whose cases were decided in the past nine months. The practitioners were ordered to pay costs of between $1327.70 and $3370.80. The average costs order was just over $2000.

Finally, it is also worth noting that it is not uncommon for practitioners to endeavour to resolve a disciplinary complaint directly with the complainant rather than through the Commissioner. Such an approach may be entirely appropriate but it is important to note that even if the complaint is settled, that does not absolve the practitioner of the requirement to respond to the Commissioner’s request.6

The tragedy of these cases is that they can be avoided simply by the practitioner responding to the Commissioner’s requests in a timely way. The failure to do so can be expensive – both in terms of professional reputation and financially.

JUDGE IAIN ROSS AO is a vice president of VCAT and head of its Legal Practice List.

1. Hannebery v Legal Ombudsman [1998] VSCA 142.

2. [2007] VSCA 122 (14 June 2007) at [30].

3. R v Mooney, per Young CJ (unreported, Supreme Court of Victoria Full Court, 21 June 1978), cited in R v Anderson [1981] VR 155; R v Tsiaras [1996] 1 VR 398; and R v Verdins [2007] VSCA 102; Sentencing Act 1991 s5.

4. [2008] VCAT 841 (7 May 2008).

5. Clause 46D, Schedule 1, Victorian Civil & Administrative Tribunal Act 1998.

6. [2008] VCAT 842.


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