The respondent having pleaded guilty to charges 1 to 4 and the applicant having withdrawn charges 5 and 6:

1. The respondent is found guilty of four charges of misconduct at common law.
2. The respondent may not apply for a practising certificate before 4 January 2019.
3. The respondent is referred to the Supreme Court with a recommendation that his name be stuck off the roll of practitioners.
4. Costs reserved.

1. Issac Alexander Brott is a 59 year old legal practitioner who was admitted to practice in 1978.
2. At all relevant times, Mr Brott carried on practice as a sole principal of Issac Brott & Co at level 2, 493-495 Little Bourke Street, Melbourne.
3. The events giving rise to the charges brought against Mr Brott all occurred prior to 12 December 2005, the date upon which the Legal Profession Act 2004 ('the new Act') came into operation. Investigation was commenced by the Law Institute of Victoria, which was the Recognised Professional Association within the meaning of the Legal Practice Act 1996 ("the old Act"). From 12 December 2005, the Legal Services Commissioner continued to deal with disciplinary issues raised in the investigation commenced by the Law Institute of Victoria. This was in accordance with Clause 6.3 of Schedule 2 of the new Act.
4. Pursuant to Clause 6.5 of Schedule 2 of the new Act, Division 5 of Part 5 of the old Act applies to a charge brought as a result of an investigation referred to in Clause 6.3 or 6.4 as if a reference in that Division to the Legal Profession Tribunal were a reference to VCAT.
5. For the purposes of hearing and determining the charges brought against Mr Brott, the Tribunal as constituted has the powers conferred upon the Full Tribunal by the old Act.

1. The Legal Services Commissioner brought four charges of misconduct at common law and two charges of statutory misconduct pursuant to Section 137 of the old Act. During the course of the first day of the substantive hearing, discussions were held between counsel for Mr Brott and the legal Services Commissioner and the Tribunal was advised that Mr Brott pleaded guilty to the four charges of misconduct at common law and that the two charges of statutory misconduct were withdrawn.
2. The four charges of misconduct at common law are particularised as follows:

During the period 12 December 2003 to 17 November 2004, in the course of engaging in legal practice, you were guilty of misconduct at common law within the meaning of paragraph (a) of section 137 of the Legal practice Act 1996 by:

1. Purporting to act for John Elias; and
2. Commencing legal proceedings on behalf of John Elias in the form of a Complaint dated 26 March 2004 in proceeding No. S00697530 and in his name

During the period 5 April 2004 to 17 November 2004, in the course of engaging in legal practice, you were guilty of misconduct at common law within the meaning of paragraph (a) of section 137 of the Legal Practice Act 1996 by:

1. Purporting to act for Cliff Hillier; and
2. Commencing legal proceedings on behalf of Cliff Hillier in the form of a Complaint dated 5 April 2004 in proceeding No. S00764281 and in his name

During the period December 2003 to 17 November 2004, in the course of engaging in legal practice, you were guilty of misconduct at common law within the meaning of paragraph (a) of section 137 of the Legal Practice Act 1996 by purporting to act as the legal practitioner for John Elias and commencing legal proceedings in his name without:

1. Clarifying with him precisely what, if any, his instructions were;

1. Permitting him to obtain alternative legal advice or engage his choice of lawyer;
2. Obtaining full instructions from him regarding the damage to the motor vehicle or his insurance cover;
3. Advising him what damages he could recover;
4. Advising him in any way about the nature of the litigation process, the likely cost of it and the likely period of time it would take;
5. Advising him in any way of the consequences to him of embarking upon litigation, especially as to his existing rights and his obligations to his insurer;
6. Advising him of his possible liability for costs and the risk that he could be found liable to pay costs to other parties.

During the period March 2004 to 17 November 2004, in the course of engaging in legal practice, you were guilty of misconduct at common law within the meaning of paragraph (a) of section 137 of the Legal Practice Act 1996 by purporting to act as the legal practitioner for Cliff Hillier and commencing legal proceedings in his name without:

1. Clarifying with him precisely what, if any, his instructions were;

1. Permitting him to obtain alternative legal advice or engage his choice of lawyer;
2. Obtaining full instructions from him regarding the damage to the motor vehicle or his insurance cover;
3. Advising him what damages he could recover;
4. Advising him in any way about the nature of the litigation process, the likely cost of it and the likely period of time it would take;
5. Advising him in any way of the consequences to him of embarking upon litigation, especially as to his existing rights and his obligations to his insurer;
6. Advising him of his possible liability for costs and the risk that he could be found liable to pay costs to other parties.

1. The actual basis for the charges, as set out in the particulars relating to each charge, were admitted with the qualification that letters emanating from the office of Issac Brott & Co were not necessarily signed by Mr Brott. Counsel for the Legal Services Commissioner submitted that this was of no consequence as Mr Brott as the sole principal of the firm was responsible. Counsel for Mr Brott did not take issue with this submission. Having regard to the definition of misconduct in Section 137 of the old Act which we refer to in paragraph 10 below, which includes misconduct by a firm, and having regard to the fact that Mr Brott was at all material times the sole principal of the firm, we agree with the submission of counsel for the Legal Services Commissioner on this point. It was later conceded that some correspondence was signed by Mr Brott.
2. Given Mr Brott's admissions, we find him guilty of four charges of misconduct at common law.
3. Misconduct at common law, also known as misconduct in a professional capacity, is preserved by the opening words of paragraph (a) of the definition of 'misconduct' in Section 137 of the old Act.
4. Misconduct in a professional capacity, often described as misconduct at common law, has been defined consistently for many years as conduct in a professional capacity which would be reasonably regarded as disgraceful or dishonourable by professional brethren (nowadays read 'colleagues') of good repute and competency: see Allison v General Council of Medical Education and Registration[1] where the definition was formulated in a case involving a medical practitioner; Re a Solicitor: ex parte The Law Society[2] where the definition was adopted in a case involving a solicitor; Myers v Elman[3] where the definition was approved by the House of Lords and Grahame v AG of Fiji[4] where the definition was approved by the Privy Council; and Re a Solicitor[5] where the definition applied in Victoria.
5. Implicit in the findings of guilt is a conclusion that Mr Brott has been personally implicated in conduct that would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency[6].

1. The relevant principles in determining penalty were dealt with by the Tribunal in a previous proceeding concerning Mr Brott[7]. We adopt those principles.

1. On behalf of the Legal Services Commissioner it was submitted that
   • The penalties open to the Tribunal are those set out in Section 160 of the Legal Practice Act 1996.
   • In determining an appropriate penalty in this matter, the following considerations ought to be taken into account:

(i) the conduct is extremely serious and goes to the heart of practising as a legal practitioner;

(ii) the respondent is not entitled to any benefit on account of remorse;

(iii) although the conduct occurred during 2003 to 2004, the respondent's attitude to such conduct did not alter during the investigation nor afterwards. It appears that until the first day of the trial he intended to maintain that he had done nothing wrong;

(iv) the respondent has not shown any insight and until the trial continued to put forward a defence to the effect that his conduct was acceptable because he was acting on instructions from his client, pursuant to an authority signed with CRC the repairer, despite enquiry being made early on as to the source of his instructions. There is no evidence of his making any attempt to speak to the persons in whose names he issued proceedings.

• General and specific deterrence are both relevant. General deterrence is relevant because such schemes might well appeal to unscrupulous practitioners as money making schemes, and they are not likely to be easily discovered. In the present instances, had the insurers for the at fault drivers paid without query, the activities would never have been discovered. In such cases, the rights of Mr Elias and Mr Hillier would have been used without their knowledge for the financial benefit of the respondent. The disciplinary system should send a strong message to the profession that such conduct will be dealt with severely.
• Specific deterrence is highly relevant here, in light of the known prior history of the respondent over a long period of time. Further, the public record shows that the respondent has engaged in this type of activity on at least one other occasion, which again only came to light apparently because the defendant to the underlying claim sought an order for costs against the present respondent[8].
• A condign penalty is required to ensure public confidence in the legal profession and to protect the public.
• Insofar as there is some overlap between the charges, it must be recognised that the rule against duplicity does not apply in the strict way that it applies in criminal proceedings[9].
• To the extent that there may be some repetition of the allegations in the charges, this is permissible in disciplinary proceedings so long as the repetition does not ultimately give rise to an increase in the penalties that are imposed[10].
• There should be no concurrency with the penalty imposed in LIV v Brott[11] or Legal Services Commissioner v Brott[12]:

(i) the misconduct is not part of the same course of conduct whether by way of timing or by reason on the nature of the conduct;

(ii) the conduct in the present matter involved a breach of the duties owed to the client as well as the court as opposed to the breaches in J11, J15 and J16, which essentially involved breaches of fiduciary duties to clients;

• The principles of totality which might ordinarily warrant concurrency in certain criminal cases[13] do not call for concurrency in this case. Indeed the persistent refusal of the respondent to acknowledge and abide by proper professional standards, as shown by his long disciplinary history, require that the public be permanently protected from his engaging in legal practice in the future. Accordingly, the applicant seeks an order pursuant to Section 160(1)(c)(iv) that the practitioner be referred to the Court with a recommendation that his name be struck off the roll of practitioners.

1. The submissions as to penalty made on behalf of Mr Brott failed to take the Tribunal to any significant material in mitigation. It was conceded that a letter dated 7 May 2004 signed by Mr Brott and addressed to Ligeti Partners was 'an unfrank truth.'. This letter contained the statement 'We clarify that we have instructions to act on behalf of the plaintiff to commence proceedings.' This was in response to a specific enquiry by Ligeti Partners as to whether Mr Brott had actual instructions from the plaintiff (not Elite Claims Management) to commence proceedings. The Tribunal is at a loss to understand how the statement contained in Mr Brott's letter was anything short of an outright lie deliberately intended to mislead another legal practitioner.
2. It was further conceded on behalf of Mr Brott that:
   • Mr Brott's conduct constituted a serious shortfall in his professional conduct and obligations;
   • Mr Brott's motivation was to generate fees for himself.
3. Reports from two psychiatrists and one psychologist in relation to Mr Brott's mental condition were tendered to the Tribunal. None contained material which could be said to mitigate Mr Brott's actions.
4. It was brought to the Tribunal's attention that Mr Brott was stabbed 19 times during the course of a robbery in 1990 and that one of his children was diagnosed with a brain tumour in 2000. No direct causal link was made between these events and Mr Brott's conduct the subject of the present charges.

1. Mr Brott has had a number of disciplinary findings against him. These are accepted by the Tribunal on the basis that they form part of the reasons for decision in Legal Services Commissioner v Brott[14]. They are summarised as follows:

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

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

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

Misconduct as defined by s 15(1)(h) of the 1958 Act

Reprimand, fine of 10 penalty units and the Law Institute's costs

Admonished and ordered to pay the Law Institute's costs

Unsatisfactory conduct as defined by s 137 of the 1996 Act

Unsatisfactory conduct as defined by s 137 of the 1996 Act

Unsatisfactory conduct: contravention of ss 182 and 188 of the 1996 Act and the Trust Account Practice Rules.

Unsatisfactory conduct: permitting or assisting an unqualified person to engage in legal practice in Victoria.

Common law misconduct and unsatisfactory conduct in relation to the matter of Schaja Ruschinek.

Cancellation of practising certificate. Cannot reapply for a practising certificate before 4 July 2009. Ordered to pay costs.

1. In addition, Mr Brott was found guilty in that proceeding of misconduct at common law. The circumstances from which that charge arose are:

(i) On or about 3 November 1997 Mr Brott prepared and signed a letter addressed to his client Mrs Joachim knowing that it would be put before the Family Court by Mrs Joachim and relied on in support of an adjournment application;

(ii) The letter was false and misleading at the time it was prepared and signed; and

(iii) Mr Brott knew that the letter was false and misleading at the time he prepared and signed it.

1. In that proceeding the following Law Institute of Victoria internal findings were also listed as follows:

21/03/2000 Complaint VLR/99/617 Unsatisfactory conduct Practitioner cautioned;

13/02/2002 Complaint VLR/01/1102 Unsatisfactory conduct Practitioner reprimanded;

29/07/2003 Complaint VLR/02/737 Unsatisfactory conduct Practitioner reprimanded;

17/12/2003 Complaint VLR/03/201 Unsatisfactory conduct Practitioner reprimanded;

21/07/2003 Complaint VLR/03/629 Unsatisfactory conduct Practitioner reprimanded;

17/08/2004 Complaint VLR/03/749 Unsatisfactory conduct Practitioner cautioned;

23/02/2004 Complaint VLR/03/758 Unsatisfactory conduct Practitioner reprimanded.

1. In that proceeding Mr Brott's period of disqualification was extended to 4 January 2014.
2. The Tribunal was advised that Mr Brott is bankrupt.
3. Pursuant to previous orders of the Tribunal[15] Mr Brott's practising certificate has been cancelled and he has been disqualified from applying for a practising certificate before 4 January 2014. The Tribunal takes into account the substance of these decisions.
4. Counsel for Mr Brott submitted that cancellation of Mr Brott's practising certificate was enough to protect the public. We take this to mean the existing cancellation. He made no submission as to an appropriate period of disqualification. But submitted that any period of disqualification from applying for a practising certificate should be wholly or partially concurrent with Mr Brott's present disqualification. Counsel for the Legal Services Commission submitted that there should be no concurrency.
5. Other than the question of referral to the Supreme Court, the only other question is whether the Tribunal should extend the period of Mr Brott's disqualification.
6. In addition to Mr Brott's admissions, the Tribunal is satisfied that the letter of 7 May 2004 to Ligeti Partners and a letter dated 29 April 2004 to Elite Claims Management requesting the provision of backdated signed authorities constitute aggravating circumstances which provide additional grounds for an extension to the period of Mr Brott's disqualification. Even without these additional grounds the Tribunal is satisfied that it is appropriate to extend the period of disqualification. The Tribunal is unable to be satisfied that any grounds exist for such period to be wholly or partially concurrent with the present period of disqualification.
7. The Tribunal is not persuaded that Mr Brott is in any way remorseful nor has he demonstrated any insight into his wrongdoing. In particular, this is illustrated by Mr Brott's response to the publication of the complaints against him, and by his failure to plead guilty until after the commencement of this hearing and the revelation of material to be placed in evidence by the Legal Services Commissioner. However, the fact that Mr Brott has admitted these charges is taken into account as a mitigating factor.
8. Mr Brott's lack of insight into his wrongdoing is further illustrated by his threat to issue proceedings against Mr Elias and Mr Hillier on behalf of factors who Mr Brott claimed had provided the cost of repairs to the motor vehicles involved. One of the factors was a company of which Mr Brott's de-facto wife was a director.
9. Having regard to the above, the Tribunal considers it appropriate to order that Mr Brott may not apply for a practising certificate for a further period of five years after 4 January 2014, that is not before 4 January 2019.

1. Counsel for the Legal Services Commissioner submitted that the Tribunal should refer Mr Brott to the Supreme Court with a recommendation that his name be struck off the roll of practitioners.
2. Counsel on behalf of Mr Brott took the Tribunal to the case of Prothonotary of the Supreme Court of New South Wales v P[16]. In that case the New South Wales Court of Appeal summarised a series of propositions as to the law concerning whether a practitioner should be struck off the Roll. They are as follows:

(1) The onus is on the claimant to show that the opponent is not a fit and proper person. It is a civil onus: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236. However Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 shows the particular standard that must be applied when working out the civil onus of proof.

(2) An order striking off the Roll should only be made when the probability is that the solicitor is permanently unfit to practice: Prothonotary v Richard (NSWCA 31.7.1987 per McHugh JA) and see NSW Bar Association v Maddocks (NSWCA 23.8.1988).

(3) The fact that the opponent has a conviction for a serious offence is not necessarily sufficient reason for an order striking that person off the Roll; see Ziems v Prothonotary [1957] HCA 46; (1957) 97 CLR 279, 283.

(4) The fact of conviction and imprisonment is, however, far from irrelevant and may be regarded as carrying a degree of disgrace itself. See Ziems case at 288.

(5) The Court needs to consider the conduct involved in the conviction and see whether it is of such personally disgraceful character that the opponent should not remain a member of an honourable profession: Re Weare [1893] 2 QB 439, 446; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 (QCA).

(6) The fact that the opponent pleaded guilty to the charge will usually be counted in her favour: NSW Bar Association v Maddocks. Though we do not assume that all pleas of guilty necessarily show remorse, it is significant that in the instant case Keleman DCJ said that it did.

(7) Conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. There may not even have been any criminal conviction with respect to that conduct. This is particularly so where the conduct over a long period shows systematic non-compliance with legal and civic obligations: NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, 289; NSW Bar Association v Somosi [2001] NSWCA 285; (2001) 48 ATR 562.

(8) The concept of good fame and character has a twofold aspect. Fame refers to a person's reputation in the relevant community, character refers to the person's actual nature: McBride v Walton (NSWCA 15.7.1994 per Kirby P); Clearihan v Registrar of Motor Vehicle Dealers (1994) 117 FLR 455, 459.

(9) The attitude of the professional association is that the application is of considerable significance.

(10) The question is present fitness, not fitness as at the time of the crime: Prothonotary v Del Castillo [2001] NSWCA 75 at para 71.

1. The propositions of law are for the consideration of the Supreme Court of Victoria, should the Tribunal refer Mr Brott to the Court. However, a threshold question is whether the Tribunal considers Mr Brott to be permanently unfit to practice. In Victorian Lawyers RPA v Yvonne Grace Young[17] Gillard J observed at paragraphs [19] to [22]:

[19] The authorities going back over many years establish that the power to strike off is not by way of punishment but is protective. The court admits a person as a proper person and he or she must continue to be so and if it is established the person is not a fit and proper person, the court may strike that person's name off the roll.

[20] In New South Wales Bar Association v. Evatt [1968] HCA 20; (1968) 117 C.L.R. 177 at p.183, the High Court said:

"The power of the court to discipline a barrister is however entirely protective and notwithstanding that its exercise may involve a great deprivation of the person disciplined, there is no element of punishment involved."

[21] These observations equally apply to a solicitor. In Re "B" (Solicitor)[1986] VicRp 69; , (1986) V.R. 695 at p.699, Brooking J said:

"For the protective jurisdiction to be invoked, there will almost invariably have been some act or omission of a discreditable kind which is said to demonstrate unfitness and it would be a serious error to suppose that the court's power to strike off the roll is confined to cases of misconduct."

[22] As His Honour pointed out, in the end it is a question whether given all the circumstances, it is proper to permit the person to remain on the roll.

1. Having regard to the need to protect the public and having regard to Mr Brott's pattern of conduct over an extended period the Tribunal considers it appropriate to refer Mr Brott to the Supreme Court.
2. The question of whether Mr Brott is a fit and proper person to remain on the roll of practitioners is one which is determined as at the date of hearing by the Court.
3. Nothing which has been placed before the Tribunal satisfies us that Mr Brott has in any way reformed his ways.
4. The Tribunal therefore is satisfied that there is a reasonable likelihood that the Supreme Court would find that Mr Brott is not a fit and proper person to remain on the roll of practitioners. Accordingly, the Tribunal refers Mr Brott to the Supreme Court with a recommendation that his name be struck off the roll of practitioners.

[1] [1894] 1 QB 750

[2] [1912] 1 KB 302

[3] [1940] AC 282

[4] [1936] 2 All ER 992

[5] [1960] VicRp 96; [1960] VR 617

[6] Legal Services Commissioner v Brott (Legal Practice) [2008] VCAT 2399 per Judge IJK Ross (as he then was), Senior Member Megay and Member Harper at paragraph 4.

[8] Brott v Kersting [2008] VSC 78

[9] Woods v The Legal Ombudsman at [41]

[10] Woods v The Legal Ombudsman at [54], [57], [61].

[11] [2008] VCAT 1998

[12] (Legal Practice) [2008] VCAT 1081

[13] DPP v Grabovac [1998] 1 VR 664

[14] [2008] VCAT 2399 (24 November 2008)

[15] Law Institute of Victoria v Brott (Legal Practice) [2008] VCAT 1998

Legal Services Commissioner v Brott (Legal Practice) [2008] VCAT 2398

[16] [2003] NSWCA 320

[17] Unreported, [2001] VSC 28