Victorian Civil and Administrative Tribunal|2009-11-11

Legal Services Commissioner v Churkovich (Legal Practice) [2009] VCAT 2454 (11 November 2009)

Legal Practice List - disciplinary proceeding - unsatisfactory professional conduct or professional misconduct - failure to provide explanation of conduct and produce documents to Legal Services Commissioner - Legal Profession Act 2004 ss 4.4.2, s 4.4.3, s 4.4.11(1)(a), s 4.4.13

Legal Services Commissioner v Churkovich (Legal Practice) [2009] VCAT 2454

The Tribunal finds the respondent guilty of professional misconduct within the meaning of section 4.4.4(a) of the Legal Profession Act 2004 (the Act) in that he contravened the Act in that he failed to respond to a requirement made by the Legal Services Commissioner ('the Commissioner) pursuant to section 4.4.11(1)(b) of the Act that he provide a full written explanation of his conduct regarding a disciplinary complaint made by Ms Jennifer Shaw.
The respondent is to provide a full written explanation of his conduct regarding the disciplinary complaint made by Ms Jennifer Shaw on or before 4pm on 27 November 2009.
The respondent is to pay a fine to the Legal Services Board in the amount of $1000 on or before 4pm on 11 December 2009.
The respondent is to pay to the Acting Legal Services Commissioner on or before 4pm on 11 December 2009 the costs of this application which at this stage total $1,459.60 and will be updated at the hearing.

This application has been brought to the Tribunal by the applicant pursuant to s 4.4.13(2) of the Legal Profession Act 2004 (the Act).
The respondent has practised as a legal practitioner on and off since 1980. I am told that he worked as a legal practitioner from 1980 to 1988 and then there was a period (12 years) when he worked in a commercial field. Since around about 1999 or 2000, he has been practising as a sole practitioner. He completed his legal degree at Monash University and did articles in 1979.
By a letter date 20 March 2009, the applicant was notified of details of a complaint against him. The complaint was made by a Ms Shaw in relation to the estate of her mother. As a result, he was requested by the applicant, pursuant to s 4.4.11(1)(a) of the Act to provide a full written explanation of his conduct. No such explanation was given.
By a registered letter dated 16 April 2009, the applicant again sent a letter to the respondent and noted that no response had been received to the letter of 20 March 2009 and that failure to provide a full written explanation could result in a disciplinary complaint made against him for misconduct pursuant to s 4.4.4(a) of the Act and he was required to give an explanation. I also understand that there has been confirmation of receipt of that letter of 16 April.
On 8 May 2009, Ms Barrowclough on behalf of the applicant, rang the respondent's office and advised him that no response had been received and the respondent advised Ms Barrowclough that he would provide a response that night or in the succeeding days. However, he failed to give such a response.
Again in September 2009, the respondent was notified of this charge against him. To this particular time, the respondent has given no response whatsoever.
Mr Warne, counsel who appeared for the respondent, stated that he had been very recently (within the last 24 hours) provided with a letter of response to the applicant and asked to settle that response. He has no difficulty with a requirement of the orders of this Tribunal that such a response be provided on or before 27 November 2009.
The facts of this case are not really in dispute. What is in dispute is whether the respondent's conduct is unsatisfactory professional conduct pursuant to s 4.4.2 of the Act or professional misconduct pursuant to s 4.4.3 of the Act.
The relevant part of s 4.4.2 of the Act reads as follows :

Unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

Section 4.4.3(a) of the Act states :

(a) unsatisfactory professional conduct of an Australian legal practitioner, where he conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence;

The respondent's explanation as to why he failed to respond when requested is that he did not read the letter of request properly and he thought it related to a costs dispute with Ms Shaw rather than a disciplinary complaint. I find this somewhat extraordinary bearing in mind that the applicant has been a solicitor for many years. I also find that as the letter came from the Legal Services Commissioner, one would have thought it would have been something that the respondent would have paid special attention to. However, I do note that the applicant does deal with civil complaints as well as disciplinary complaints and the applicant stated that he thought the letter dealt with a civil complaint.
There is no question in my mind that if a letter is written to any practitioner from the applicant that letter should be read and be read very carefully. It may involve the practitioner's right to practise. It is not sufficient to give it a cursory glance.
I also note a comment of Judge Ross (as he then was) made in an article in the Law Institute's Journal of June 2009. At p 38, his Honour stated :

The ability to undertake investigations into the conduct of legal practitioners is an important part of the regulatory regime established by the Act and hence an important means of protecting the public. By failing to respond appropriately, practitioners adversely affect the Commissioner's ability to comply with her statutory obligation to conduct an expeditious investigation of these complaints.

In this particular instance, it is clear to me that the respondent's failure to respond has affected the applicant's ability to act expeditiously with a response to Ms Shaw in these matters.
I have had some difficulty deciding whether the conduct of the applicant is unsatisfactory professional conduct or professional misconduct. Part of the difficulty has been whether I should take into account the fact that the respondent has had no previous determinations made against him of a disciplinary nature. In my view, that is something that should be taken into account on the matter of penalty but it should not be taken into account as a matter of what charge for which he should be found guilty.
I compare this to the hearing of a criminal matter, although it is a disciplinary matter and something entirely different, but the similarity is that a criminal court would not look at prior convictions until it had decided what breach or what act had been committed. In this particular instance, it is appropriate that I should not look at past conduct until I have decided what act has been committed, ie whether it is unsatisfactory professional conduct or professional misconduct.
Ms McNamara, on behalf of the applicant, has cited to me a number of cases which indicate that there needs to be a strong and cogent reason for the conduct of the respondent before a finding of unsatisfactory professional conduct is found rather than professional misconduct. Those cases are Blazevic [2009 VCAT 143] a decision of Judge Ross; Weigl [2009 VCAT 460]. However, a matter of Canals [2008 VCAT 576] a decision of Member Butcher, has also been cited to me by Mr Warne who appeared on behalf of the respondent. In paragraph 5 of that decision, Mr Butcher made it clear that ultimate compliance at the time of hearing is not an important consideration. Here, I note that the applicant has still not complied with the request. In my view, while it may not be a matter which is all important in determining things one way or the other, it is certainly something that should be taken into account and I do take into account that the applicant still has not answered the request by the Commissioner.
Under those circumstances and weighing up all the matters that have been put to me which I have referred to, I have come to the conclusion that the respondent is guilty of professional misconduct rather than unsatisfactory professional conduct.
I will make orders in accordance with those orders that have been passed up to me, including a fine of $1000. The fine is not contested by the respondent and in my view that is the lower end of the range and is appropriate in all the circumstances of this proceeding. However, I have been informed by Mr Warne that he wishes to address me on the question of costs which I will permit him to do now.

After giving a decision which I gave about 10 or 15 minutes ago, the applicant has asked for his costs for today. The costs that have been prepared by the applicant come to $1459.60. They are prepared on the basis of County Court Scale "D" and they are also prepared on the basis that an employee solicitor of the applicant was appearing as counsel, viz Ms McNamara, and an employee solicitor of the respondent was acting as instructing solicitor, viz Mr Watson.
Mr Warne on behalf of the respondent argued that the costs should be on County Court Scale "A" because this is a simple matter and he further argued that there should be no allowance for the attendance of an instructing solicitor when both the solicitor appearing as counsel and the instructing solicitor came from the same office.
Both parties agreed on the facts that while this matter was relatively simple, the applicant did not know that until today at 9.05 am when there was a telephone conversation between representatives of the applicant and representatives of the respondent. In my view, that was too late to change course on the way the matter was to be prepared. Clearly, Ms McNamara, who appeared as counsel, prepared on the basis that Mr Watson would be present.
In my experience, in all disciplinary matters in this Tribunal, they can be very important to the people who might suffer as a result of being disciplined. Up until 9:05 am, the applicant was not to know whether the respondent would turn up with counsel or senior counsel. The applicant is entitled, given all these circumstances, to have one solicitor from his office appearing as counsel, and one solicitor from his office appearing as instructor to the solicitor acting as counsel.
I further note that County Court Scale D is appropriate because all disciplinary matters are serious and except in the most exceptional cases I would have thought that County Court Scale D is appropriate.
It was also suggested that the applicant does not really suffer any loss because those that were appearing this morning as counsel and solicitor are employed in his office. However, it seems clear to me, on any principle of accounting, that if those people were not appearing in this Tribunal, they could be gainfully employed doing other things in the applicant's office. Under those circumstances, I think County Court Scale D with solicitor acting as counsel and a solicitor instructing that counsel is appropriate.
The costs given to me add up to $1459.60. That is on the basis of County Court Scale D solicitor acting as counsel with an instructor. It has not been argued before me that it is not a correct figure and under those circumstances, I will allow the costs as sought.

Legal Services Commissioner v Churkovich

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Legal Services Commissioner v Churkovich (Legal Practice) [2009] VCAT 2454 (11 November 2009)

Parties