Advertisement

‘Post-box’ solicitor narrowly escapes being struck off

The conclusions of Justice Dixon in Re Zita (a solicitor)1 provide a valuable reminder to practitioners of their duty to uphold the administration of justice in order to preserve public confidence, which must take precedence during the conduct of complex commercial practice.

Background

Following the judgment of the Banksia Securities Limited proceeding, Justice Dixon ordered that Mr Zita show cause as to whether he was a fit and proper person to remain on the Roll. In that decision, Mr Zita was found to have breached his paramount obligations as a practitioner to his clients and to the court, by acting as a ‘post-box solicitor’.2

An enquiry was ordered to determine whether Mr Zita possessed sufficient “rectitude of character to permit him to be safely accredited to the public as a person”3 who could be entrusted to discharge his obligations as a practitioner.

Issues to be considered

The court raised the following issues of concern with respect to Mr Zita’s conduct:4

  1. He permitted himself to be used as a ‘post-box’, and had abrogated his duties of his client to others.
  2. He allowed a litigation funder to demand unreasonable conditions from the settlement of group members’ claims for its own benefit under threat of damaging the opportunity for members to compromise the proceeding.
  3. He entered into a fee arrangement that involved maintaining no contemporaneous time records and reconstructed bills to support a claim for fees arbitrarily determined, rather than by reference to work actually performed.
  4. He filed an expert report purporting to support a claim for substantial legal costs without reading the report or examining counsel’s invoices.
  5. He promoted a settlement distribution scheme that he had not read, did not understand, and could not competently undertake, and which sought to impose fees on group members that he had not scrutinised.
  6. He encouraged and supported a litigation funder’s campaign of intimidation against a group member (and client) to prevent her from raising, by an appeal, legitimate concerns about claims for costs and funding commission which he knew they had not themselves assessed.

Submissions before the court

Contradictor’s submissions

The Victorian Legal Services Commissioner was appointed as contradictor in the proceeding. They noted that Mr Zita’s conduct had occurred over a long period of time from December 2014 to November 2019, which indicated a clear lack of insight.

Mr Zita’s lack of self-motivation to identify his failings and an inability to fully accept the significance of his conduct was noted to justify striking him from the Roll. A reflection of his views toward appropriate ethical conduct during that time highlighted he was not capable of discharging his responsibilities to the administration of justice.

The Contradictor concluded that such conduct of Mr Zita was of a reprehensible and depraving quality in two proceedings, though he may have lacked the culpability of others.5

Zita’s submissions

Mr Zita accepted that he should have not agreed to take on the case initially, given his inexperience with class actions. Accordingly, he acknowledged that he would not be involved in complex commercial litigation such as the Bolitho6 class action in the future.

While he had contended that he was manipulated and had since suffered great detriment to his public and personal life, the court noted that his personal circumstances would not be taken into account.

Mr Zita raised comparison to Quinn v Law Institute of Victoria7 and Burgess v McGarvie,8 where personal circumstances of the practitioner had been recognised. However, Justice Dixon noted that in those instances the disqualifying conduct was personal rather than professional.

Those factors would not be considered in Mr Zita’s circumstances, given the core feature of his disqualifying conduct was the impact on the integrity of the administration of justice, and the disabling personal characteristics then followed from recognition of the dishonour, rather than as a contribution to the conduct.

Conclusion

While Justice Dixon acknowledged that Mr Zita’s conduct amounted to a “gross dereliction of his obligations to the administration of justice”,9 the circumstances in which he fell short of his professional obligations did not compel that he be struck off.10

The exercise of protective jurisdiction would not require Mr Zita be removed from the Roll, but did require that he be suspended until 30 June 2024, when the Victorian Legal Services Board would then assess the practitioner’s fitness to practice in the context of practising certificate renewal.

Key takeaways

As highlighted in this case, practitioners must be able to maintain independent thought and action and the capacity to assess when ethical conduct is required, when their obligations to the proper administration of justice must take precedence over the ordinary conduct of the commercial aspects of their practice as a solicitor11. This allows for the preservation of public confidence in the administration of justice.

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] VSC 354.
2 Ibid [6].
3 Ibid [107].
4 Ibid [19].
5 Ibid [77].
6 Bolitho v Banksia Securities Ltd (No.4) [2014] VSC 582.
7 [2007] VSCA 122.
8 [2013] VSCA 142.
9 Ibid [75].
10 Ibid[130].
11 Ibid [120].

Share this article

Leave a Reply

Your email address will not be published.

Search by keyword