The Australian Professional Liability Blog: To accept a reprimand or not to accept a reprimand?

The Australian Professional Liability Blog To accept a reprimand or not to accept a reprimand? Posted: 17 Jun 2014 03:27 AM PDT Following a disciplinary investigation, Victoria’s Legal Services Commissioner must form an opinion as to the likelihood of VCAT finding the lawyer guilty of conduct warranting discipline. If he is satisfied that there is a reasonable likelihood of VCAT finding the lawyer guilty of something, his options depend on what that something is. If it’s professional misconduct, then he must prosecute. If it’s unsatisfactory professional conduct, he can take no further action, or he can prosecute. And then there’s the in between bit: in the case of suspected unsatisfactory professional conduct he can also, with the lawyer’s consent, reprimand the lawyer, caution the lawyer, and require the lawyer to pay compensation to the complainant. See Legal Profession Act 2004, s. 4.4.13. My clients frequently have to make a decision about whether to consent to a reprimand or take their chances. The way the choice is presented to them, they usually conceive of it as a choice between (i) public prosecution in an environment where it is very difficult to get a costs order against the Commissioner if they succeed and have to pay the Commissioner’s costs at distinctly commercial rates if they lose and (ii) a private reprimand. I make 7 points about all this (and one request for crowd-sourced assistance) in the balance of this post. I am, more generally, interested to hear others’ experience of navigating these waters between Scylla and Charybdis. 1. The take no further action option is only available where the Commissioner is satisfied that the practitioner is generally competent and diligent and ‘there has been no substantiated complaint’ within the 5 years prior to the decision. The Commissioner takes ‘substantiated complaint’ to include any complaint at the end of the investigation of which the Commissioner is satisfied that there is a reasonable likelihood of VCAT finding the lawyer guilty of conduct warranting discipline, even if the result of reaching that state of mind is that he takes no further action. The Supreme Court has agreed in relation to a similar provision: Styant-Brown v Legal Ombudsman [2001] VSC 164 (Beach J, accepting the argument of a Mr Nettle QC). So there’s your first reason not to be too supine in your acquiescence to an attractive sounding offer of resolving the whole affair on the basis of a private reprimand. 2. The Commissioner in my experience does not usually say ‘I have decided to prosecute you unless you consent to a reprimand’ but rather invites practitioners to indicate whether they would be prepared to consent to a reprimand in default of which he will have to consider prosecuting. If I were being investigated by the Commissioner, I think I would require him to tell me whether he had reached the requisite state of satisfaction before advising whether I consented to a caution, reprimand or compensation direction. Otherwise, my willingness to accept a reprimand might be one of the matters that the Commissioner takes into account in reaching that state of satisfaction. It is worth keeping in mind that even at this stage of investigation, good argument may convince the Commissioner that the appropriate course is to take no further action and lawyers would be well advised to take advice from someone who knows how s. 3.4.13 is implemented in practice as to the likelihood of a prosecution (as opposed to taking no further action). Sometimes it is worth it for a well-advised lawyer to take a punt on the Commissioner deciding not to prosecute. Recently, when a client more or less declined to consent to being reprimanded, the Commissioner decided instead to take no further action despite having advised that a prosecution was under consideration. Of course, refusal to consent to a reprimand may also be interpreted as a lack of insight into the disciplinary offending and/or a lack of remorse, which might be taken into account in deciding to prosecute. Any communication of a refusal to consent to a reprimand, etc. ought to be at pains to avoid this impression if that is possible given the facts and the honestly held states of mind of the lawyer. One might, for example, refuse to consent on the basis that there has been an inadequate investigation to date such that the Commissioner could not yet properly have arrived in his mind at the state of satisfaction which is the trigger for the reprimand, or on the basis of a reasonably arguable view of the applicable law, rather than on the basis of a denial of the conduct. 3. The Commissioner seems to hold the view that letters expressing his satisfaction that VCAT is reasonably likely to find the practitioner guilty of unsatisfactory professional conduct and go on to advise that he nevertheless does not intend to prosecute the putative unsatisfactory professional conduct are admissible to prove in separate and subsequent disciplinary prosecutions, by way of documentary evidence, that the practitioner in fact engaged in that instance of unsatisfactory professional conduct. (If anyone knows of any authority on this question — by which I mean decisions in which the tender of such letters has been objected to and adjudicated on, or analogous authority — then I would be very pleased to hear about it.) At least until such time as such evidence is authoritatively ruled inadmissible (or VCAT, which is inexplicably not bound by the rules of evidence even for quasi-criminal proceedings such as disciplinary prosecutions, indicates an unwillingness to accept such evidence), there’s your second reason not to be too charmed by the prospect of a no-costs slap over the wrist in a letter (at least if you think there is any prospect of you being prosecuted again). These kind of outcomes have a habit of building up giving lawyers a false sense of optimism about the likely disposition of recurrent complaints until such time as the Commissioner thinks that enough is enough and brings a prosecution in which the penalty sought is justified not only by the findings in the prosecution itself, but also by the previous instances of unsatisfactory professional conduct which were never tested. 4. The Commissioner’s reaching of a state of satisfaction that it is reasonably likely that VCAT would find the lawyer guilty of conduct warranting discipline is a ‘decision’ in the sense that it is amenable to judicial review even if the result of reaching that state of mind is that the Commissioner takes no further action: SPB v Law Institute of Victoria [2005] VSC 509, the subject of my post ‘Justice Gillard Gives the Law Institute a Bloody Belting’. And there’s your third reason to think carefully about the question which is the title of this post: the review is going to be harder if you have consented to the reprimand (though it does not seem unarguable to me that review may be sought of the ‘decision’ that VCAT is reasonably likely to find the lawyer guilty of unsatisfactory professional conduct, especially if the reprimand is consented to on a basis which does not admit certain of the factual premises giving rise to it). 5. Oddly, the reaching of this kind of state of satisfaction in the Commissioner’s mind is not within s. 4.4.25′s definition of ‘disciplinary action’ for the purposes of the publicly available disciplinary record (see s. 4.4.26). If s. 4.4.13 decisions not involving prosecution are sufficiently reliable to be brought to bear in disciplinary prosecutions, the parliament ought to consider making them available to the public via the disciplinary register. 6. The costs awarded in disciplinary prosecutions in Victoria seem considerably higher to me on the basis of my impressionistic scan of the decisions around the nation than in some other jurisdictions. The costs rules in the disciplinary tribunal vary from state to state and Victoria’s seem to be at least the equal most severe rules. In some other states, the laws of evidence do apply in disciplinary tribunals as of course they should but do not in Victoria. In some states, there are statutory review mechanisms. In WA, for example, complainants can challenge the LPCC’s ‘decision’ to take no further action in their VCAT equivalent. In NSW, lawyers can challenge certain decisions, e.g. to reprimand them, in their VCAT equivalent. It seems to me that there is an extraordinary pressure on lawyers in Victoria to consent to reprimands when offered the option and it is very important for the Commissioner to act fairly at this stage of an investigation. Because if he did not do so, difficult cases might be brought to an end which will not attract too much flak from the complainant, not have to suffer the glare of judicial scrutiny, and be acceptable to the practitioner, without the kind of rigorous investigation and analysis which ought to underpin what is, in the two important respects referred to above, a serious stain on a practitioner’s professional record. The time might come when those with litigious disputes with lawyers subpoena these kinds of disciplinary outcomes and use them as tendency evidence: if they’re admissible in the quasi-criminal sphere of disciplinary prosecution, why not also in a taxation? 7. Don’t get me wrong. It will often be by far the most sensible thing to do to consent to a reprimand, knowing the consequences. But it is equally important to demand precision in relation to precisely what conduct is the subject of the reprimand, and one should be vigilant to ensure that that subject matter is in fact something which has been complained about or the subject of a properly commenced own-motion investigation.