Legal Services Commissioner v Burgess (Legal Practice) [2009] VCAT 463

1. The Tribunal finds the respondent guilty of professional misconduct as defined by s.4.4.4(a) of the Legal Profession Act 2004, in that he contravened s.4.4.11(1)(a) of the Act by failing to comply within the time allowed with a requirement made by the Legal Services Commissioner or her delegate that he provide a full written explanation of his conduct in relation to the subject matter of a complaint lodged with the Commissioner.
2. The respondent is to pay a fine of $1,000.00 to the Legal Services Board by 13 May 2009.
3. The respondent is to pay to the Legal Services Commissioner by 13 May 2009 her costs of this application, fixed by the Tribunal at $1,430.60.

Ms P. Antonov of the office of the Legal Services Commissioner.

1. Mr. Burgess is charged by the Legal Services Commissioner with professional misconduct, in that he failed to provide to the Commissioner a full written explanation of his conduct when required to do so.
2. Mr. Burgess admitted the facts alleged by the Commissioner, but he submitted that the facts constituted unsatisfactory professional conduct rather than professional misconduct.

1. On 5 August 2008 the Commissioner received a complaint from Mr. & Mrs. O'Connor concerning the way in which Mr. Burgess had handled a case on their behalf at VCAT. The nature of the complaint is not relevant to the charge, but in general terms the complaint was that Mr. & Mrs. O'Connor had suffered loss because Mr. Burgess did not properly identify the respondent, and that Mr. Burgess failed to respond to enquiries made by Mr. & Mrs. O'Connor.
2. Because of the decision of the Court of Appeal on 16 May 2008 in Byrne v Marles & Law Institute of Victoria Limited [2008] VSCA 78, to the effect that the Commissioner must give a practitioner the opportunity to make a submission as to whether a complaint should be treated as a disciplinary complaint, the Commissioner wrote to Mr. Burgess on 15 August 2008 giving him an opportunity to make such a submission. The letter included details of the complaint. Mr. Burgess did not make a submission.
3. The Commissioner then treated the complaint as a disciplinary complaint, which she was obliged to investigate: s.4.4.7(1) Legal Profession Act 2004. As part of her investigation, the Commissioner had power to require Mr. Burgess to provide a full written explanation of his conduct in relation to the subject matter of the complaint: s.4.4.11(1)(a).
4. The Commissioner delegated the investigation of the complaint to Law Institute of Victoria Limited. The Law Institute wrote letters to Mr. Burgess on 18 September 2008, 13 October 2008, 18 November 2008 and 21 November 2008 making formal requests under s.4.4.11(1)(a) that Mr. Burgess provide a written explanation of his conduct within 16 days. The first letter enclosed a copy of the complaint. Mr. Burgess did not respond in any way.
5. An employee of the Law Institute telephoned Mr. Burgess on 6 October 2008. Mr. Burgess informed her that he would respond the next day, but he did not do so. The same employee telephoned Mr. Burgess' office on 8 October 2008, 10 October 2008 and 13 November 2008 and left messages asking Mr. Burgess to return her calls. Mr. Burgess did not return her calls.
6. On 27 November 2008, the Legal Services Commissioner wrote a letter to Mr. Burgess stating that, unless Mr. Burgess provided an explanation of his conduct within 16 days, she would have no alternative but to bring a charge of professional misconduct against him. Mr. Burgess did not provide an explanation of his conduct.
7. On 23 January 2009, the Commissioner lodged an application to VCAT in which she charged Mr. Burgess with professional misconduct. Mr. Burgess provided an explanation of his conduct to the Commissioner on 28 January 2009.

1. Mr. Burgess said that it always was his intention to provide an explanation of his conduct, but that he was "diverted" by work that needed to be done for other clients.
2. He also said that he separated from his wife in August 2008, which disrupted his personal life.

UNSATISFACTORY PROFESSIONAL CONDUCT OR PROFESSIONAL MISCONDUCT ?

1. Mr. Burgess accepted that he contravened s.4.4.11(1)(a) of the Legal Profession Act 2004 by failing to provide a full written explanation of his conduct, but contended that his conduct amounted to unsatisfactory professional conduct rather than professional misconduct. The contention was based upon his evidence that he always intended to respond. A contravention of the Act is capable of constituting unsatisfactory professional conduct or professional misconduct: s.4.4.4.
2. Whether conduct of the kind described in s.4.4.4(a) of the 2004 Act, namely the contravention of a provision in the Act, amounts to professional misconduct or unsatisfactory professional conduct depends upon the seriousness of the conduct. I have made decisions to that effect in a number of cases, such as Legal Services Commissioner v Spaulding [2008] VCAT 318 @ [13]. The seriousness of the conduct will depend in turn upon all relevant factors brought to the attention of the Tribunal, and to the manner in which similar factors have been treated in previous cases.
3. The first letter of request required Mr. Burgess to provide an explanation of his conduct by 4 October 2008. He did not provide an explanation until 28 January 2009, more than 16 weeks later. That period must be compared with the 16 days properly allowed by the Commissioner.
4. The factors mentioned by Mr. Burgess when he gave evidence might have justified a delay of a few days in complying with the request, but they did not justify a delay of 16 weeks. The reality is that Mr. Burgess recklessly disregarded the requests for an explanation.
5. I find that Mr. Burgess contravened s.4.4.11(1)(a) of the Legal Profession Act 2004 by failing to provide to the Legal Services Commissioner or her delegate a full written explanation of his conduct within the time allowed, and that the contravention was sufficiently serious as to amount to professional misconduct.

1. A person who lodges a complaint about a practitioner is entitled to a prompt response, particularly if the complaint is about delay. The Commissioner is unlikely to have knowledge of the subject matter of the complaint, other than the information set out in the complaint. The Act therefore empowers the Commissioner to seek an explanation from the practitioner. This power has been entrusted to the Commissioner and her predecessors for many years, and almost all practitioners are well aware of its existence.
2. Furthermore it would be unfair, and a denial of procedural fairness, if the Commissioner took action against a practitioner without giving the practitioner an opportunity to explain. A failure to explain promptly, as in this case, hinders the investigation carried out by the Commissioner and, in turn, causes delay in dealing with the complaint.
3. Mr. Burgess is fined $1,000.00, which is to be paid to the Legal Services Board by 13 April 2009. Mr. Burgess also is required to pay by 13 April 2009 the costs of the Commissioner, which I have assessed at $1,430.60.