In Victorian Legal Services Commissioner v Williams (Legal Practice),1 the Victorian Civil and Administrative Tribunal (VCAT) noted the requisite obligations of a practitioner to uphold their fundamental ethical duties when acting for a client,2 and the consequences of his failure to do so.
Background
The practitioner was found guilty of 14 charges of professional misconduct, six charges of misconduct at common law and one charge of unsatisfactory professional conduct, as brought by the Victorian Legal Services Commissioner (VLSC) in relation to six separate complainants.
Findings of the tribunal scrutinised the seriousness of such behaviour, where the practitioner had:
- caused detriment, distress, confusion and frustration to clients
- was professionally dishonourable, blatantly dishonest and deceitful, and sought to deceive clients, the VLSC, a manager appointed to the practice and the Victoria Police for his personal gain
- engaged in conduct which caused financial loss or disadvantage to clients
- grossly overcharged clients and dishonestly inflated invoices
- mishandled trust money
- disobeyed the lawful instructions or directions of the board of appointed managers
- failed to meet reasonable standards of competence and diligence in representing his clients.3
Findings of misconduct
Over a period of four years, the practitioner had engaged in conduct that was described by the tribunal as “disgraceful and dishonourable”,4 due to a gross neglect of his duties to his clients.
During an in-depth examination of each claim, the tribunal acknowledged that the practitioner showed no insight or remorse, and his conduct was so far removed from ethical standards of the legal profession that it was reprehensible.5
His inability to comprehend the unethical nature of his conduct was evident in, and aggravated by, the ongoing nature of his behaviour over an extended period of time between early 2013 to late 2016.
The complainants were considered to be in a vulnerable state and were grappling with significant losses. The tribunal recognised that the practitioner was out of his depth in terms of the technical skill required to manage these matters.6
Rather than ask for help or refer clients to another firm – which he actively avoided – he continued to juggle files and damage the legal and financial interests of his clients.
He preferenced his “purported status and financial gain above the diligent operation of files and the interests of clients”.7
Considerations by the tribunal
In consideration of whether the practitioner was a fit and proper person to remain on the roll, the tribunal recognised similarity between the facts of the case and those of Quinn, where both offending practitioners had engaged in dishonest conduct motivated by personal gain.8
Reference was made to Dixon J’s discussion in the recent case of Re: Zita, where it was accepted that a practitioner was found unfit to remain on the role if they “pose a direct risk to the public, to the legal fraternity, to the courts, to the system of professional co-operation and trust on which they both depend, and to the administration of justice”.9
Orders
Removal from the Supreme Court Roll was formally recommended.10 The practitioner was reprimanded, and prohibited from applying for a practising certificate for nine years, subject to complex conditions upon reapplication.
As the practitioner did not attend or provide any submissions for the penalty hearing, the tribunal made no judgement concerning his character, personal or financial circumstances, or mental illness, with minimal mitigating factors relevant.
Conclusion
During an extended period of time, the practitioner demonstrated no insight or remorse, no ability to understand the unethical nature of his conduct, and a complete lack of honesty and candour.11
As the practitioner intentionally and dishonestly made the lives of his vulnerable clients more difficult, he demonstrated his inability to comprehend the gravity of his duties and the seriousness of his misconduct.
To this end, solicitors must exercise professional judgement and skill in performing their duties in the administration of justice and when acting for clients.
In accordance with the tribunal’s conclusions, it was acknowledged that the behaviour exhibited by the practitioner toward vulnerable clients, employees, the regulatory authority and even police, was reprehensible in the extreme and was considered utterly contrary to the standards of honesty, integrity and competence ordinarily expected of a person issued with a legal practising certificate.12
Sarah Millar is a Law Clerk in the QLS Ethics and Practice Centre. This article has been approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics and Practice Centre.
Footnotes
1 [2022] VCAT 806.
2 Queensland Law Society, Australian Solicitors Conduct Rules 2012, r4.
3 Williams n1 [150].
4 Ibid [246].
5 Ibid [122].
6 Ibid [152].
7 Ibid.
8 Quinn v Law Institute of Victoria [2007] VSCA 122.
9 Re Zita [2022] VSC 354 [91].
10 Williams n1 [280].
11 Ibid [154].
12 Ibid [160].
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