The Applicant submitted that the misconduct in this case is serious and warrants a significant penalty. Mr Brott has already had his practising certificate cancelled as a consequence of the Tribunal's orders in matters J11, J15 and J16/2005. In these circumstances the Applicant submitted that as a minimum the Tribunal should make an order that Mr Brott may not apply for a practising certificate for a period 'in the order of a significant number of years rather than months'.
The Applicant did not urge the Tribunal to refer Mr Brott to the Supreme Court with a recommendation that his name be struck off the roll of practitioners. But it was submitted that such action may be open and was within the range of appropriate responses to the practitioner's misconduct.
On behalf of Mr Brott it was submitted that the appropriate penalty is an order that he not be permitted to apply for a practising certificate for a period of time. It was submitted that in the circumstances of what Mr Walmsley SC, counsel for Mr Brott, described as 'this singular event' the period of time specified in the order should be approximately three months. As a matter of practicality such an order achieves the result that Mr Brott will serve his penalty concurrently with the penalty he is currently undergoing.
In support of the penalty proposed Mr Walmsley SC submitted that the misconduct in question was constituted by a single event which was set in a context which was 'quite remarkable and complex'. We deal with Mr Walmsley SC's characterisation of Mr Brott's misconduct shortly. The following character witnesses were also called on Mr Brott's behalf:
➢ The Honourable Mr Anthony Graham QC, of the Victorian Bar and a former justice of the Family Court of Australia;
➢ Mr James Andrew John Nixon of the Victorian Bar;
➢ Mr Andrew Dunner, chartered accountant and an official liquidator;
➢ Mr Peter Fox of the Victorian Bar;
➢ Dr John Barry Myers, consultant physician and geriatrician;
➢ Mr Gary Lindsay Storey, a forensic document examiner;
➢ Rabbi Kaminetsky; and
➢ Ms Natalie Maree McAra.
Each of the witnesses has observed Mr Brott in his professional capacity, often over an extended period of time. The evidence supports the following findings:
Mr Brott appeared to have a very good relationship with his clients and was very passionate in defending their interests and in achieving the best results for them. Dr Myers referred to Mr Brott's 'attacking style' and Mr Storey likened him to 'a terrier dog'. The witnesses recalled Mr Brott telephoning them late at night and on weekends to discuss client matters;
He did a significant amount of pro bono work;
Mr Brott is very disorganised; and
He is devoted to his family and regrets the impact of these matters on them.
Mr Graham QC has known Mr Brott in a professional capacity since 1980. Mr Brott briefed him on a number of occasions prior to his appointment as a judge of the Family Court in 1987. He could not recall any ethical issues arising with Mr Brott in any of the matters in which he was briefed. After his appointment to the Family Court, Mr Brott appeared before him on a number of occasions in interlocutory applications. Mr Graham QC recalled that his staff had a high opinion of Mr Brott because he was always courteous and did what he was asked to do. He could not recall ever imposing a personal costs order against Mr Brott.
Mr Graham QC observed that Mr Brott was very passionate towards his clients and that he 'had a lot to offer the profession because the type of passion he has is rare'. He expressed the view that it would be 'a pity if he is lost to the profession'. Mr Graham QC also observed that Mr Brott was very disorganised and he had spoken to him about it and believed he understood the need to be better organised. Mr Graham QC also said that Mr Brott did 'a lot of pro bono work' in that if he believed a client had a worthwhile case but limited means he would do it for nothing and seek the assistance of others on the same basis.
Similar sentiments were expressed by other witnesses. They also referred to Mr Brott's enthusiasm and capacity to think creatively in the interests of his clients.
Mr Brott's partner of 21 years, Ms Natalie McAra, spoke of his commitment to his family and regret for the impact of these matters on them.
We note that Dr Myers, Rabbi Kaminetsky and Messrs Storey, Dunner and Fox knew little if anything of the circumstances which brought Mr Brott before the Tribunal.
We now propose to deal with the matters which are relevant to our assessment of the appropriate penalty in the circumstances of this case. The nature and gravity of the misconduct is central to the process of determining an appropriate sanction. We then deal with specific and general deterrence and other factors which are said to be relevant in the circumstances of this case.
[2]
Mr Brott has been found guilty of misconduct at common law. That finding is based on the fact that Mr Brott prepared and signed a letter which he knew would be used to support an adjournment application in the Family Court and which he knew, at the time he prepared and signed it, was false and misleading. By his conduct Mr Brott made a false and misleading statement to the Family Court and breached his duty of honesty and candour to the court.
It is common ground that such a finding is a very serious matter and goes to the heart of practising as a legal practitioner. But it is submitted on behalf of Mr Brott that while it is a very serious matter it is nowhere near the top level of culpability or seriousness in matters such as this. In support of this contention Mr Walmsley SC relied on what he said was the 'quite remarkable and complex context' in which this singular act of misconduct took place. Four broad points are advanced in this regard.
The first point is that Mr Brott's actions were taken in the interests of his client. This is said to be a mitigating circumstance in assessing the level of culpability, but it is acknowledged that it doesn't excuse Mr Brott's conduct.
In considering this submission it needs to be steadily borne in mind that a legal practitioner's duty to the court is paramount - it overrides any duty owed to the client.[6] As Parker J said in Kyle v Legal Practitioners' Complaints Committee:
[3]
"The duty of counsel not to mislead the court in any respect must be observed without regard to the interests of the counsel or of those whom the counsel represents. No instructions of a client, no degree of concern for the client's interests, can override the duty which counsel owes to the court in this respect. At heart, the justification for this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwavering observance of it by counsel is essential to maintain and justify the confidence which every court rightly and necessarily puts in all counsel who appear before it.[7]
[4]
His Honour Maxwell P (with whom Callaway and Chernov JJA agreed) made a similar observation in Guss v Law Institute of Victoria Ltd:
[5]
"It is difficult to overstate the importance to the administration of justice of the paramount duty of a legal practitioner not to mislead the court. Where there is any conflict, or risk of conflict, between that duty and what the practitioner perceives to be his/her duty to the client, the duty to the court must always prevail."[8]
[6]
In our view it would be incorrect to characterise the fact that Mr Brott's actions were in the interests of his client as a mitigating factor. It would better accord with principle to regard such a fact in a neutral way and to note the absence of any aggravating factor - such as misleading the court in pursuit of the practitioner's self interest.
The second point advanced is that the offending letter should be viewed in the context of what are said to be 'remarkable urgencies and complexities'. These matters are not advanced for the purpose of excusing the misconduct but by way of explanation as to how it came about and to demonstrate the extraordinary pressures Mr Brott was under to serve the best interests of his client despite her worst endeavours. The particular circumstances referred to include:
The client 'was involved in an acrimonious matrimonial dispute'.
Complications arose from the circumstance that previous solicitors held a lien over the client's file, and had the carriage of the sale of valuable matrimonial property, the proceeds from which would not be available until 28 days after the listed commencement of the trial.
There was a requirement to pay for and obtain asset valuations.
As late as 8 September 1997 Mr Brott had received no instructions to commence the preparation for trial and the client was recalcitrant in refusing to give instructions to prepare a case.
By 16 September 1997, it was apparent that 'the auction estimate would be insufficient to provide funds for the trial'.
The negotiations over the terms of the Cost Agreement were protracted from May to October 1997.
The various Directions hearings and compliance checks demonstrate the risk the client ran of proceeding unrepresented if preparation for trial wasn't undertaken.
Practically on the eve of the trial further adjournment appeared very unlikely, in circumstances where Mr Brott had not received instructions for the trial, and had not filed any trial documents, and was without funds to obtain necessary valuations.
As at 3 November 1997, Mr Brott had 'instructions to do anything that was necessary to have the matter adjourned'.
The client had a pre-occupation with a single barrister, Mr Geddes QC, and was unwilling to contemplate other barristers.
The material revealed a difficult professional relationship, in which Mr Brott went to extreme lengths to obtain instructions, including providing his client with a fax machine and a mobile phone. He demonstrated increasing desperation in obtaining instructions from an apparently reluctant client.
Mr Brott encountered considerable difficulty in obtaining proper instructions and in preparing and signing the letter, he was acting on his client's instructions, and in what he believed were her best interests.
It is appropriate to have regard to the context in which the misconduct took place. We acknowledge that the circumstances in which Mr Brott's misconduct occurred were unusual. The problems in obtaining proper instructions placed Mr Brott in a difficult position and these difficulties increased as the trial date drew nearer.
But litigation is often stressful and it is at such times that a practitioner's character and judgment may be tested.
The third point advanced was that while the false and misleading letter was used to support an adjournment application, it was singularly unsuccessful in this regard.
In our view the central point to bear in mind is that Mr Brott prepared and signed a false and misleading letter knowing it would be put before the Family Court in support of an adjournment application. Had the application been successful that fact may have been an aggravating factor; but the absence of success does not detract from the seriousness of the misconduct.
The final point relied on is the fact that in the substantive proceeding the Tribunal found that Mr Brott genuinely held the view that the letter was not false at the time he wrote it because of the rationalisation provided by counsel.
We note that ultimately the Tribunal concluded that that rationalisation did not alter Mr Brott's knowledge of the relevant facts and nor did it alter the fact that the letter was false and misleading. Despite this conclusion Mr Walmsley SC submitted that the earlier finding as to Mr Brott's genuinely held view is mitigatory and favours the view that his culpability for the proven misconduct is less than it might otherwise have been.
We acknowledge the force of this submission and accept that our finding as to Mr Brott's genuinely held view is relevant to our assessment of his culpability and hence to the determination of an appropriate penalty.
Viewed in the context of cases involving a breach of a practitioner's duty to the court the breach in this case was not at the highest end. It was a singular incident which occurred in unusual circumstances and Mr Brott had a genuinely held (though erroneous) view that the letter wasn't false at the time he wrote it. But the fact remains that any breach of a practitioner's duty to the court is very serious and goes to the heart of practising as a legal practitioner.
It is a basic precept of the legal profession that practitioners owe a duty of honesty and candour to the courts. It is the general duty of lawyers not to mislead a court by stating facts which are untrue, or mislead as to the true facts, or conceal facts which ought to be drawn to the attention of the court, or knowingly permit a client to deceive the court[9].
The confidence a legal practitioner commands in judges and other members of the profession must be such that they can rely implicitly on the practitioner's word and behaviour[10]. As Mahoney JA said in Foreman:
[7]
"The administration of justice would proceed more slowly and with greater costs if the courts before whom a solicitor practised felt it necessary to check the accuracy of what the solicitor had said to it... if what the solicitor has done is such that the court will hesitate before acting upon what the solicitor has said, that is... an important matter to be taken into account."
[8]
Similarly, in Council of the Law Society of New South Wales v Solicitor, Sheller JA (with whom Mason P and Giles JA agreed) said that:
[9]
"The solicitor's duty is to be faithful to the oath of office, to the courts, the fellow practitioners and most importantly to the clients... who should be able confidently to expect that the solicitor will honour the obligation and responsibility imposed by the relationship of solicitor and client. The sworn duty is a public duty. The administration of justice depends in large measure on the trust the courts and the public place in those who practise the law."[11]
[10]
This duty has been consistently characterised as being of fundamental importance to the due administration of justice.[12]
In our view the nature and gravity of the misconduct in this case favours an order that Mr Brott may not apply for a practising certificate for a significant number of years.
We now turn to deal with specific and general deterrence.
[11]
Specific deterrence is directed at the particular offender. A consideration in relation to specific deterrence is the extent to which a practitioner displays insight into his wrongdoing such as to demonstrate an appreciation that what was done was wrong and must not recur. In Morris v Psychologists' Registration Board[13] Harper J observed that a practitioner who fails to demonstrate such insight 'ought not, if the public is to be protected, to be allowed to practise'.
Mr Walmsley SC submitted that specific deterrence was not an issue. The following points were advanced in this regard:
[12]
(i) The circumstances which gave rise to the misconduct were unique and unlikely to arise again.
[13]
(ii) The Tribunal should accept that Mr Brott understands his obligations to the court as a consequence of these proceedings.
[14]
(iii) Mr Brott has paid for his misconduct in that he is no longer the solicitor of record in the Joachim matter; there has been protracted disputation with his former client over costs and his bill of costs has been 'dramatically reduced' as a result.
[15]
(iv) Mr Brott was effectively the whistleblower in respect of his own misconduct in that it was his evidence before Brown J which first raised the veracity of the letter of 3 November 1997.
[16]
(v) Mr Brott has a professional habit of seeking recourse to the Law Institute of Victoria (LIV) in relation to ethical matters.
[17]
(vi) The misconduct took place over 11 years ago and Mr Brott has not engaged in similar misconduct since.
[18]
A number of observations may be made about the points advanced on behalf of Mr Brott.
It is convenient to deal first with the proposition that Mr Brott was the whistleblower in respect of his own misconduct. Ms Judd SC, counsel for the Applicant, submitted that this proposition is fanciful and ought to be rejected. We agree. In the proceedings before Brown J Mr Brott was acting in his own interests and was seeking to enforce a costs agreement against Mrs Joachim, his former client. The fact that those proceedings subsequently led to a disciplinary investigation was a consequence of Brown J's letter to the LIV dated 11 April 2005; it was not a result of any action by Mr Brott to bring the matter to the attention of his professional body.
As to whether Mr Brott has engaged in similar misconduct since November 1997 we acknowledge that no similar charges have been laid and we were not informed of any investigation into similar conduct by Mr Brott.
The proposition that Mr Brott has 'paid for his misconduct' seems somewhat premature. The costs dispute between Mr Brott and his former client is still the subject of curial proceedings and Mr Brott presently holds some $300,000.00 in trust on behalf of Mrs Joachim. When the costs dispute is finally determined the money in trust may be used to pay the costs awarded to Mr Brott. In any event the purpose of these proceedings is not to punish Mr Brott; it is to protect the public.
We do not propose to place much weight on Mr Brott's professional habit of seeking recourse to the LIV in relation to ethical matters. While the practice is laudable it would have been more persuasive if accompanied by evidence that Mr Brott had actually complied with the rulings provided.
We now turn to the extent of Mr Brott's insight into his wrongdoing and his remorse. This was a matter of some contention in the proceedings.
At the outset we wish to make it clear that Mr Brott was entitled to contest the charge and his decision to do so is not relevant to the question of penalty. It is not in any sense an aggravating circumstance.
We also accept that there is some force in the submission that it is unlikely that an intelligent legal practitioner such as Mr Brott could go through proceedings such as these without acquiring some appreciation that what he did was wrong. But despite this we are of the view that specific deterrence is an issue in these proceedings, for three reasons.
The first matter in support of the relevance of specific deterrence in this case arises from the evidence called on Mr Brott's behalf. This evidence paints a picture of a practitioner who vigorously defends his clients' interests but in doing so occasionally loses his objectivity. In the course of his evidence Mr Graham QC observed that Mr Brott's passion towards his clients was a weakness as well as a strength because it is important for a legal practitioner to retain a sense of objectivity. Mr Graham QC also observed that Mr Brott sometimes became too passionate and too closely connected with a client. He also thought Mr Brott was somewhat naïve and too trusting, and that these characteristics could be abused by a deceitful client.
Given the nature of the misconduct in this case the evidence gives us cause for some disquiet. Absent the imposition of a significant penalty there is a risk that in the future Mr Brott will again put his clients' interests before his duty to the court.
The second matter concerns the fact that Mr Brott has had a number of disciplinary findings against him, as summarised below.[14]
[19]
Misconduct as defined by s 15(1)(a) Legal Profession Practice Act 1958 (1958 Act), wilful or reckless breach of Rule 6 Solicitor's (Professional Conduct and Practice) Rules
[20]
Misconduct as defined by s 15(1)(a) of the 1958 Act, wilful or reckless breach of Rule 6 Solicitor's (Professional Conduct and Practice) Rules
[21]
Misconduct as defined by s 15(1)(a) of the 1958 Act, wilful or reckless breach of Rule 6 Solicitor's (Professional Conduct and Practice) Rules
[22]
Misconduct as defined by s 15(1)(h) of the 1958 Act
[23]
Reprimand, fine of 10 penalty units and the Law Institute's costs
[24]
Admonished and ordered to pay the Law Institute's costs
[25]
Unsatisfactory conduct as defined by s 137 of the 1996 Act
[26]
Unsatisfactory conduct as defined by s 137 of the 1996 Act
[27]
Unsatisfactory conduct: contravention of ss 182 and 188 of the 1996 Act and the Trust Account Practice Rules.
[28]
Unsatisfactory conduct: permitting or assisting an unqualified person to engage in legal practice in Victoria.
[29]
Common law misconduct and unsatisfactory conduct in relation to the matter of Schaja Ruschinek.
[30]
Cancellation of practising certificate. Cannot reapply for a practising certificate before 4 July 2009. Ordered to pay costs.
[31]
In the September 2008 proceedings Mr Brott pleaded guilty to one charge of misconduct (in matter J15/2005) and three charges of unsatisfactory conduct (in matters J15/2005; J11/2005 and J16/2005). Mr Brott's misconduct in matter J15/2005 occurred in the period between May 2002 and November 2003 and amounted to a serious breach of fiduciary duty. The matter was attended by a significant aggravating factor in that the client in question, now deceased, was an elderly, vulnerable man and Mr Brott knew, or ought to have known, that he lacked the mental capacity to provide competent instructions. The Tribunal decided to cancel Mr Brott's practising certificate, effective from 4 October 2008 and ordered that he may not apply for a practising certificate before 4 July 2009.
In addition to the disciplinary findings set out above there have been a number of internal findings which are not on the public record. Section 151(3)(b) of the 1996 Act allowed the LIV, with the consent of the practitioner, to reprimand or caution a practitioner in circumstances where the LIV was satisfied that there was a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory conduct. The LIV records reveal that the following findings have been made in relation to Mr Brott:
These disciplinary findings[15], over an extended period, speak of Mr Brott's indifference to professional standards and support the imposition of a significant penalty in aid of specific deterrence.
The third matter is the absence of any direct evidence from Mr Brott about the extent of his remorse and insight into his wrongdoing.
We have already noted that Mr Brott would have acquired some appreciation that what he did was wrong simply as a consequence of his participation in these proceedings. But there is no direct evidence of such insight and the evidence from the witnesses called on his behalf does not persuade us that Mr Brott has the requisite insight into his wrongdoing. We do not doubt that he regrets the impact these proceedings have had on his family, but such regret is not the same as insight or remorse. We now turn to consider general deterrence.
The concept of general deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence. Related to general deterrence is the proposition that in deciding an appropriate penalty the Tribunal may have regard to the effect which its order will have on the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors.[16]
Given the fundamental importance of a practitioner's duty to the court general deterrence is the most important consideration in the circumstances of this case. As McMurdo P (with whom Davies JA and Helman J agreed) observed in Council of the Queensland Law Society Inc v Wright:
[40]
"The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners' submissions to the court. This duty of candour and fairness is quintessential to the lawyer's role as officer of the court; the court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but also to reassure the public that such conduct on the part of lawyers will not be tolerated."[17]
[41]
In the context of cases involving breach of a practitioner's duty to the court the breach here was not at the highest end for the reasons canvassed earlier. But any breach of a practitioner's duty is very serious and goes to the heart of practising as a legal practitioner.
Mr Brott's actions cannot simply be characterised as a single error of judgment. It was misleading and incompatible with 'the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner'.[18]
While specific deterrence is a relevant consideration we have given greater weight to general deterrence and the importance of promoting an understanding, in the profession and amongst the public, of the central importance of a legal practitioner's duty of honesty and candour to the courts.
We have also taken into account that as a consequence of the Tribunal's orders in matters J11, J15 and J16/2005 Mr Brott's practising certificate has already been cancelled and he may not apply for a practising certificate before 4 July 2009. But in our view the circumstances in this case warrant an order extending, to a significant extent, the period during which Mr Brott may not apply for a practising certificate.
Having regard to all of the circumstances and the material before us an appropriate penalty is an order that Mr Brott may not apply for a practising certificate before 4 January 2014. The practical effect of this order is to extend the period ordered in matters J11, J15 and J16 of 2005 by four and a half years.
We now turn to the question of costs.
[42]
Section 162 of the 1996 Act provides that costs are in the discretion of the Tribunal but the Tribunal must not make an order for costs against 'an RPA, the Board or the Legal Ombudsman', unless satisfied that special circumstances make it appropriate to do so.
Mr Brott did not resist the making of a costs order in this case but sought an opportunity to discuss the quantum and a payment schedule with the Applicant.
We propose to order that the Respondent is to pay the Applicant's legal costs, including all reserved costs. We will also direct the parties to confer with respect to the quantum of such costs with liberty to apply in the event they are unable to reach agreement.
[9]Rondel v Worsley [1969] 1 AC 191; Saif Ali v Sydney Mitchell & Co[1980] AC 198; Tombling v Universal Bulb Co Ltd[1951] 2 TLR 289; Vernon v Bosley (No 2) [1999] QB 18; Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2)(1997) 18 WAR 190 at 193; Kyle v Legal Practitioners' Complaints Committee[1999] WASCA 115