1. The respondent is found guilty of four charges of professional misconduct and one charge of unsatisfactory professional conduct.
2. The respondent is reprimanded and fined $40,000, to be paid to the Legal Services Board.
3. The respondent is to pay the applicant's costs of $8,102.35.

1. Mr Dwyer has practised in the Northcote area since 1978, a period of 34 years. Although he has now, and in the past, employed solicitors, the practice is identified as one relating to him personally. He practises exclusively in the field of acting for defendants in criminal matters. Approximately eighty percent of his work is funded by Legal Aid. It is a very busy practice.
2. In 2006-7, he acted for a client who was charged with murder. Ultimately, the client pleaded guilty to a charge of manslaughter. The client appealed that decision to the Court of Appeal, and at the same time, made a complaint to the respondent (LSC) about a number of matters concerning Mr Dwyer's conduct of his defence. The LSC investigated the complaint. It determined that VCAT proceedings would only be brought in relation to two of the matters complained about. These concerned possible breaches of trust accounting requirements, in circumstances where it appeared money received from his client had not been deposited into Mr Dwyer's trust account, thus creating a deficiency.
3. When asked by the LSC by letter of 4 January 2008 to respond to queries about when he had received payments for his services from his client, Mr Dwyer relied on his recollection that payments totalling $15,000 had been received on certain dates in 2006-7. When the LSC probed this matter further, Mr Dwyer made a serious mistake: to back up his statement that fees had been received on particular dates, he drafted false invoices in March 2008 supporting his version of events.
4. In doing so, he committed a much more serious breach than the breach he was seeking to cover up. However at this stage, the LSC accepted the invoices on face value, and ceased to pursue this issue after receiving several further letters from Mr Dwyer, the last of which was dated 27 March 2009.
5. There was a delay in the finalisation of the LSC's inquiry while the client's appeal to the Court of Appeal proceeded.
6. The fact of Mr Dwyer having prepared the false invoices in March 2008 (being 15-22 months after the moneys totalling $15,000 were received) only came to light when additional evidence was found by his former client's representative amongst his papers, and handed over to the LSC.
7. When presented with this evidence in September 2011, three and a half years after he had created the false documents, Mr Dwyer gave a full "mea culpa". The matter proceeded before me as a plea of guilty to all five charges brought. There was agreement as to the facts on which the charges were based, and Mr Dwyer accepted that his conduct constituted professional misconduct (charges 1-4) and unsatisfactory professional conduct (charge 5).

1. The charges brought by the LSC are in two categories. The first category comprises first, charges 1 and 2, relating to non-compliance with trust accounting obligations under the Legal Profession Act 2004 (the Act). Secondly, it includes charge 5 (the only charge of unsatisfactory professional conduct) of failing to provide a costs disclosure statement to his client when acting at the committal stage in December 2006, albeit that a costs disclosure statement was given prior to the main trial in the Supreme Court in July 2007.
2. In relation to charges 1, 2 and 5, the LSC's application for order relevantly stated:

Charges pertaining to your representation of Mr Holden

1. On or about 14 March 2006, you accepted instructions to act on behalf of Mr Holden, who was charged with murder.
2. At no time:

(a) as soon as practicable after being retained by Mr Holden; or

(b) prior to the committal proceedings held on 12 and 13 December 2006

did you give Mr Holden a concise written statement setting out any of the matters described in s 3.4.9(1) of the Act.

1. Your conduct thereby breached s 3.4.9(1) of the Act.
2. Between 31 May 2006 and December 2006, you received three payments from Ms Leanne Holden on behalf of Mr Holden, as follows:

(a) on or about 31 May 2006, $5,000 was deposited into your office account...

(b) on or about 25 August 2006, $5,000 was deposited into your office account... and

(c) in or about December 2006, $5,000 in cash was given to you personally....

1. The payments were trust moneys within the meaning of s 3.3.2 of the Act.
2. None of the payments was deposited into the Trust Account of Patrick W Dwyer on or about the date of its receipt.
3. Your conduct in failing to deposit the payments into the Trust Account of Patrick W Dwyer thereby breached s 3.3.13(1) of the Act.
4. Further, your conduct in failing to deposit the payments into your Trust account in breach of s 3.3.13(1) of the Act created a deficiency in your Trust Account in the sum of $5,000 on or about 31 May 2006, a further $5,000 on or about 25 August 2006 and a further $5,000 in December 2006. The deficiency was caused by you without reasonable excuse and thereby breached s 3.3.21(1)(a) of the Act.
5. Charges 1 and 2 are as follows:

You are guilty of professional misconduct within the meaning of s 4.4.4(a) of the Act in that between on or about 31 May 2006, you failed to deposit $15,000 into your Trust account, which conduct breached s 3.3.13(1) of the Act.

You are guilty of professional misconduct within the meaning of s 4.4.4(a) of the Act in that between on or about 31 May 2006 and December 2006, without reasonable excuse, you caused a deficiency in your trust account in the sum of $15,000, thereby breaching s 3.3.21(1)(a) of the Act.

1. It was not alleged that Mr Dwyer had profited, or potentially stood to gain in any way from his failure to deposit these fees into his trust account. Nevertheless, it was accepted, and I find, that his conduct constituted professional misconduct under s 4.4.4(1)(a) of the Act. This provides:

Without limiting s 4.4.2 or 4.4.3, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct -

(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules;

1. In this instance, the money paid clearly comprises trust money being money 'entrusted to the law practice in the course of or in connection with the provision of legal services by the practice' (s 3.3.2). Mr Dwyer was required to deposit this money in his general trust account (s 3.3.13). His failure to do so created a deficiency in his trust account. Having a deficiency without reasonable excuse is a serious offence, with a maximum penalty of 15 years imprisonment.
2. Charge 5 is as follows:

You are guilty of unsatisfactory professional conduct within the meaning of s 4.4.2 of the Act, in that between 14 March 2006 and December 2006, you acted in breach of s 3.4.9(1) of the Act by failing to make any costs disclosure to Mr Holden.

1. The requirement to provide disclosure of specified matters to a client as soon as practicable after a law practice is retained, is a consumer protection measure. Failure to comply with a requirement to make disclosure does not constitute an offence. Nevertheless, where a solicitor has not made disclosure, the client need not pay the solicitor's fee (s 3.4.17(1)). Such fees can, however, be recovered by the solicitor if the solicitor has them assessed by the Costs Court under Division 7 of Part 3.4 of the Act.
2. Section 4.4.2 provides:

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.

1. Failing to comply with the obligation to provide a costs disclosure statement, being a contravention of the Act, it is capable of constituting unsatisfactory professional conduct pursuant to s 4.4.4(a) (quoted above).
2. Again, it was accepted, and I find, that the failure to make a costs disclosure in relation to the committal stage of the defence, constitutes unsatisfactory professional conduct.

1. The second category of charges are those relating to the creation for the first time of the three invoices between 13 and 22 months after the dates he said the fees were received (May 2006 - February 2007). He also stated (falsely) that in 2006-7 he had shown invoices to his client for those amounts (but his client had not requested, or been given, any copy of such invoices). The relevant charges are charge 3 and charge 4.
2. Paragraphs 11-18 of the application for order relevantly state:

1. On 4 January 2008, the then Commissioner wrote to you enclosing a copy of the Complaint made by Mr Holden dated 10 December 2007 ... You were requested to provide a full written explanation of your conduct in accordance with s 4.4.11(1)(a) of the Act.
2. On 14 March 2008 you responded to my letter dated 4 January 2008 .... Under cover of that letter you provided me with three documents entitled 'Account', each singed by you relating to costs and disbursements, purporting to be accounts made on the following dates for the following amounts:

1. On 14 April 2008 I wrote to you requesting further information and on 12 May 2008 ... you replied, stating that on each of the three occasions you received monies from Ms Holden:

(b) the work had been completed and the disbursements had been paid.

1. By letter dated 15 December 2008 ..., you maintained that:

(a) there were three payments of $5,000, $7,000 and $3,000; and

(b) at the time the payments were made, the bills were shown to Ms Holden, and examined by her.

1. By letter dated 27 March 2009 in further correspondence to me ..., you repeated that the three payments were received on 26 May 2006, 13 December 2006 and 14 February 2007.
2. On 25 August 2011 I wrote to you indicating that further information had been received in relation to the payments, in particular a receipt had been located confirming a second payment of $5,000... You were requested to provide a further written explanation of your conduct in accordance with s 4.4.11(1)(b) of the Act.
3. On 30 September 2011, after further consideration of the matter and a conference with you on 22 September 2011, I wrote to you. In that letter, I confirmed the discussions that were had at the conference on 22 September 2011, in particular that you accepted your wrongdoing. Further, I invited you to submit any further written submissions or material that you wished me to consider prior to me making a decision in this matter. ...
4. By letter dated 4 November 2011, you provided your response, accepting, amongst other things, that you embarked on a course of misleading conduct. ...
5. In August 2011, Mr Dwyer was presented with the proof that the second payment was of $5,000, not $7,000, and that it had been made in August 2006, not December 2006. At this point, he accepted that the LSC was now in possession of information which showed his previous statements had been wrong. He then made full admissions and determined to plead guilty to charges relating to these actions.
6. Charges 3 and 4 are as follows:

You are guilty of professional misconduct within the meaning of s 4.4.3(1) of the Act, namely misconduct at common law, in that during the course of an investigation into your professional conduct, on or about 14 march 2008 you created and signed three false documents, namely:

(b) An 'account' dated 13 December 2006 for $7,000, and

(c) An 'account' dated 14 February 2007 for $3,000.

You are guilty of professional misconduct within the meaning of s 4.4.3(1) of the Act, namely misconduct at common law, in that during the course of an investigation into your professional conduct you misled the Commissioner by stating that:

(a) monies were received by you from Mr Holden as follows:

(b) on each of the three occasions you received monies from Ms Holden she was shown a bill relating to those funds: and

(c) the work had been completed and the disbursements had been paid.

1. At common law, misconduct in a professional capacity has been defined consistently as conduct which would reasonably be regarded as disgraceful or dishonourable by fellow professionals of good repute and competency.[1]
2. It is quite clear that the preparation of the false invoices in the answer to enquiries by the regulator of the profession would be regarded as disgraceful and dishonourable by lawyers of good repute and competency.
3. Mr Dwyer accepted that his conduct amounted to professional misconduct, and I so find.

1. The two categories of charges in this case both arise from the same matter, namely, the process by which Mr Dwyer's client was charged for his legal representation in 2006-7. Because they involve dishonesty, the false invoice breaches are more serious than the trust accounting and costs disclosure breaches. The total amount which Mr Dwyer charged over the period 2006-7 ($15,000.00) was not in dispute. The discrepancies arose in relation to the dates of payments, how they were made up, and whether accounts were shown to Ms Holden at the time. There was no suggestion made to me that Mr Dwyer stood at any stage to profit financially from his false statements, or that his client, or any other person could or did suffer as a result.
2. There was a good deal put by way of evidence and submissions that in contrast to the dedicated and effective service Mr Dwyer gave his clients, his aptitude for managing his files and his compliance obligations at that time was poor.
3. Mr Dwyer's practice had become extremely busy. His working day typically began at 7.00 am when he had his first client meetings. It generally involved travelling to multiple suburban or city courts to conduct a number of different matters for different clients each day. Sometimes it was necessary to go through the process of visiting clients held in the cells in order to obtain instructions. When he returned to the office after court, there would be a further succession of client meetings. This was the routine five days a week. He also received calls from clients on weekends. He did not take holidays, other than public holidays. He worked even when he was sick. There was little time for office management.
4. It was said that at the start of 2008, when the LSC asked him to respond to the complaint made by his former client, including questions about the process by which fees were levied, a number of factors had come together to create a situation where the trust account breaches occurred. It was said he was very disorganised when it came to handling paperwork. His failure to organise his files over many years had resulted in their being large piles of papers in his office, not properly filed, and this had begun to overwhelm him. He relied on memory to locate documents, rather than a properly organised file management system. Further, his lease had expired at the end of 2007, and he had to face the prospect of dealing with this accumulation of paper as he moved into new premises at the beginning of 2008. At the same time, his frantic work pace continued but it was exacerbated by the fact that an employee solicitor was taking more and more unplanned leave at short notice, as her pregnancy progressed. This left him having to pick up her workload as well.
5. There was at times a tendency in the evidence and submissions for these circumstances to be invoked in relation to the false invoice charges as well as the trust account and cost disclosure charges. It is important, however, to maintain the distinction between these two categories of charges. It is true that Mr Dwyer's disorganisation created the circumstances in which the dishonesty breaches occurred, but it cannot be a justification for them.
6. It was said by Mr Cash, who appeared for Mr Dwyer, that Mr Dwyer really did believe that the payments of $5,000, $7,000 and $3,000 respectively were received by him in 2006-7, and that remained his belief until presented with the evidence to the contrary in August 2011. The LSC did not take issue with this.
7. Neither the plea nor the summary by the LSC went into great detail as to the circumstances of the LSC's inquiries and Mr Dwyer's responses. It appears that through a combination of embarrassment about being held to account about his failures to comply with trust accounting and cost disclosure requirements, and a desire to do something which would instantly "fix the problem" of having to respond to the LSC's inquiries about them, in circumstances where all the other pressures referred to above were weighing on him, he took the action he did.

1. Ms Sharpe, for the LSC, said she accepted that the compliance breaches (comprising charges 1, 2 and 5) were in this case of a lesser order of seriousness. She said they warranted a fine, rather than any interference with Mr Dwyer's practising certificate.
2. In relation to the false invoice breaches, however, she submitted that a suspension of Mr Dwyer's practising certificate for at least six months was appropriate. She pointed to the fact that false documents were produced on three occasions, and that Mr Dwyer had actively deceived the LSC for well over a year. She said he sought to explain the discrepancies by reference to poor administrative practices, when that was not the case. She noted that the LSC had accepted the false invoices at face value, and had in April 2009 ceased its investigation of the issue they related to. It was only by chance that Mr Dwyer's lie was found out when fresh evidence emerged in August 2011. She rightly emphasised the utmost importance of legal practitioners behaving with honesty .and candour. She referred to cases where practitioners had lost their right to practise as a result of dishonest conduct, including Guss v Law Institute of Victoria[2], Law Society of New South Wales v Foreman[3] and A Solicitor v Law Society of New South Wales.[4]

1. In addition to the matters referred to above relating to Mr Dwyer's practice, evidence and submissions were put on his behalf as follows:
   • Mr Dwyer is motivated by a desire to serve the community. This had started with his work for the Fitzroy Legal Service in the late 70's and continued ever since. His clients are namely under-privileged. Many of his clients suffer mental illness and/or drug, alcohol and gambling addictions. Mr Dwyer is dedicated to helping these vulnerable people. He his generous with his time. On some occasions he continues to act for clients even after there is no longer any money to pay his fees. On occasions he has given money to clients to tide them over with food or rent.
   • A number of the character witnesses commented on his ability to communicate with disadvantaged clients, and the compassion and respect he showed for them: he believes every person deserves the right to have their story heard and to be properly represented.
   • A consequence of this style of practice is that Mr Dwyer has not had a high income. Eighty percent of his work is funded by Legal Aid. As an example of his approach to the way in which he charges his clients, it was said the $15,000.00 worth of fees charged to represent Mr Holden in this case has been quantified by a consultant at $31,000.00 for the purposes of a costs review to be conducted by the Costs Court.
   • He is well regarded by his professional colleagues, other expert professionals involved in the criminal justice system such as doctors and psychologists, the police, members of the OPP, Magistrates and Judges. The overall effect of the evidence was that he made a positive contribution to the criminal justice system by providing appropriate advice and representation to defendants, many of whom had very little idea of how to respond to criminal proceedings brought against them. The evidence of one witness was given in camera, and a non-publication order made in relation to that particular evidence. The evidence given in camera was consistent with that referred to above.
   • He has been a great mentor for young lawyers. He has had 11 articled clerks (now called legal trainees). He sees it as part of his role to train young lawyers to give them the skills to carry out the type of work which benefits the community in the way he himself does. His former articled clerks and employee solicitors hold him in high regard, and there is a sense of commardarie amongst them. He has "rescued" junior practitioners when they are floundering in court, and nobody else has stepped forward to assist clients who would otherwise be disadvantaged.
   • He is deeply ashamed of his actions. He expressed this in his letter to the LSC of 4 November 2011. Also, of the 19 persons who provided character evidence, the majority mentioned this.
   • As a result of his experience, he has significantly altered his style of practising. He now reserves Friday afternoons for administration, instead of seeing clients or appearing for them in court. With the assistance of the Law Institute, he has adopted new and more efficient procedures for the management of his practice. These are detailed in a statement by Mr Reno Nicolazzo, who is employed by Mr Dwyer part time as his bookkeeper and office manager. They include the establishment of trust ledger processes using electronic means which properly document receipts and payments. Regular bank statements are received and the necessary reconciliations are carried out. Client payments are properly identified and receipts issued. Finally, it was said correspondence is now more carefully filed and stored in an offsite storage facility for better access and security. There are now upgraded computer systems with better hardware and software, better training and accountability for staff.
   • It was submitted that Mr Dwyer would be likely to lose his status as a legal aid panel member as a result of the finding of professional misconduct. Given this comprises 80% of this income, this would have a disastrous effect on his practice. Accordingly, it was submitted that this should be taken into account when any additional penalty was imposed by VCAT.
   • His practice employs two full time solicitors (a newly admitted solicitor and a first year solicitor) plus four part time staff. If he was suspended, it would be difficult for a locum to step into his shoes, given the large number of matters on foot at present in the Magistrates, County and Supreme Court. His clients would suffer as a result. To the extent the viability of his practice would be threatened by any suspension (given that the reality is, as one witness put it, "he is the practice") this would obviously adversely affect his two full time staff and four part time staff.
   • It was submitted that delay was a factor - this matter, commencing with the complaints on behalf of Mr Holden and has been hanging over his head for some years. It was submitted that regardless of the cause of the delay, it should serve to reduce the penalty imposed. The following passage from the decision of Maxwell P in RV Merrett, Piggott and Ferrari[5] as quoted by the VCAT Panel in LSC v Coldham and others[6] was relied upon:

The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes a "powerful mitigatory factor". In particular, it focuses attention on issues of rehabilitation and fairness.

• Reference was made to two recent VCAT decisions involving dishonesty, where the solicitor's right to practice was not disturbed. The first is LSC v Johol[7] The second was LSC v Jonathan Wong[8]

1. In relation to the submission that Mr Dwyer could lose his status as a legal aid panel member, I was provided with the Victoria Legal Aid "Section 29A Panel Practitioner manual". Not surprisingly, this indicates that practitioners may be removed from a panel if found guilty of professional misconduct. It was put on behalf of Mr Dwyer that removal was likely to occur. Obviously, it cannot be said one way or the other what action VLA will take. I do, however, bear this in mind as a possible outcome which would seriously affect Mr Dwyer.
2. I do not believe that delay can be regarded as having the significance which Mr Cash contended. As stated, the LSC inquiry which commenced in January 2008, was regarded as having been completed by April 2009. The more serious allegations relating to the false invoices only emerged in August 2011. So these have only been "hanging over his head"[9] since then.
3. Over the intervening period since the matters the subject of the charges brought by the LSC came to light in 2008, Mr Dwyer has taken steps to deal with the compliance issues (charges 1, 2 and 5). I accept that Mr Dwyer has now put his office administration on a proper footing. In the hearing the LSC indicated that trust account compliance is no longer a real concern.
4. In considering the appropriate disposition, I am guided by the decision in Quinn v Law Institute of Victoria[10]

That the Tribunal's disciplinary function is primarily protective was made clear by this Court in Hannebery v Legal Ombudsman. The Court said.

[24] "...[T]he jurisdiction of the Tribunal is to deal with - that is to discipline - a practitioner for misconduct, while it includes a power to punish, is to be regarded as very largely protective. Hence, although the Full Tribunal may impose a fine of up to $50,000, its concerns should ordinarily be not so much to punish as to protect members of the public against professional misconduct.

[30] Nevertheless, the phrase "not so much to punish as to protect" underlines the fact that the Tribunal's disciplinary orders are punitive as well as protective. The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect.

[31] Critically for present purposes, however, the Tribunal's protective function is paramount. Thus, where this is a choice of sanctions, it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public.

1. In this case I was urged by Mr Cash to impose a fine (which he acknowledged could be substantial) rather than a suspension of Mr Dwyer's practising certificate.
2. In normal circumstances, the creation of false documents to deflect an enquiry by the regulator of the profession, would be likely to require an order suspending the practitioner's practising certificate for a period, pursuant to the requirements of general and specific deterrence. The need for honesty on the part of practitioners is obviously a fundamental requirement for the operation of the legal system. Lawyers and the community need to know that the fabrication of documents to deflect such an enquiry will result in suspension or cancellation of the lawyer's practising certificate (even where it relates to an attempt to regularise billings for amounts, which, in aggregate, were properly levied on clients at the time). It was noted that Mr Dwyer had not misled a court, as was the case in Guss and Foreman. Nor did he swear a false affidavit or make a false statutory declaration. I do not believe these distinctions have great significance, however. It is obviously vital that the regulator of the profession be able to rely on the word of practitioners required to provide information to it when carrying out its investigations. The duty of honesty and candour to the LSC is similar to the duty owed to the courts.
3. I believe that the circumstances of this case are, however, very unusual, such that Mr Dwyer's right to practise should not be interfered with.
4. I was impressed by the force of the 19 character references provided. Each of these attested to Mr Dwyer's significant contribution to the community through the conduct of his practice, and the assistance he has provided to disadvantaged members to the community. Law can be a very remunerative profession. Mr Dwyer has, however, chosen a different path. After 30 years of dedicated work, his income remains roughly equivalent to that of a junior level solicitor at the one of the big city firms. I agree with Mr Cash that Mr Dwyer has built up a very substantial reserve of goodwill which he is entitled to call upon now. As part of this, I take into account the evidence given in camera, which comprises a further powerful factor in Mr Dwyer's favour. The benefit which the community has received from the manner in which he has carried out his practice over the last 34 years is not to be underestimated.
5. I am conscious that Mr Dwyer's conduct showed a lack of respect for his client in this particular case: he told the LSC that he had shown his client the accounts in 2006-7, which obviously he had not, since he only fabricated them in March 2008. In effect, he relied on his standing as a solicitor, in asking the LSC to believe his version of events, rather than his client's. This might be said to run contrary to the extensive character evidence and submissions to the extent they included testimonials about his respect for his clients as individuals, regardless of their position in society. It does not, however, undermine the effect of the good work Mr Dwyer has done to the benefit of the community over many years.
6. There are no other relevant prior findings against Mr Dwyer. Further, I am conscious that Mr Dwyer's actions were not done to enrich himself, and did not disadvantage his client. I also take into account the effect of any suspension on his clients and employees.
7. In terms of specific deterrence, I accept the statements as to his shame and remorse in relation to his actions in preparing the false invoices. I am satisfied there is no danger of such conduct being repeated.
8. I stress that in all but the most exceptional cases, the requirement for general deterrence would necessitate that conduct of the type Mr Dwyer engaged in, even though it was not to achieve any financial benefit to himself, would result in the lawyer's practising certificate being suspended. This is because of the paramount goal of protection of the public from dishonesty by lawyers necessitates such a penalty by way of general deterrence.
9. In the unusual circumstances of this case, however, I have concluded that bearing in mind the very substantial credits Mr Dwyer is able to bring to bear (including the matters raised in camera) it is not necessary to impose a penalty which interferes with his right to practise. A substantial fine will be imposed instead. This serves to convey a strong message of denunciation of such conduct, yet also gives appropriate weight to the very significant matters put in mitigation on Mr Dwyer's behalf.
10. Mr Dwyer is reprimanded and fined $40,000.
11. The LSC sought an order for payment of its costs of $8,102.35 pursuant to clause 46D of the Victorian Civil and Administrative Tribunal Act 1998. There being no exceptional circumstances, I will order Mr Dwyer to pay that sum.

1. After the hearing of this matter on 26 April 2012, two unsolicited letters were received by the Tribunal from a person associated with the original complaint to the LSC. Submissions were invited from the LSC and Mr Dwyer's representative as to what the response to these letters should be. Both replied to this invitation (although for some reason there was a three week delay in the LSC's response reaching me). Both parties submitted I should ignore that correspondence. In accordance with those submissions I have taken no account of that correspondence in reaching my decision.
2. Under the Act, the LSC is given responsibility for investigating disciplinary complaints and carrying out disciplinary proceedings. Frequently, it is through complaints received from members of the community, especially lawyers' clients, that the LSC becomes aware of issues of concern about the conduct of lawyers. However, the regime established by the Act is that once a potential concern about the conduct of a lawyer comes to its attention, it is the LSC which has the responsibility of dealing with that issue. In carrying out its functions, the LSC is acting to protect the public as a whole. Complainants, having raised a potential disciplinary issue with the LSC, may participate in proceedings under Division 4 of Part 4.4 of the Act as witnesses if that will assist with the particular case. That is often not necessary for the effective conduct of the disciplinary proceeding, however. Otherwise, clients have the right to pursue civil proceedings against a practitioner. These would be quite separate from disciplinary proceedings brought by the LSC.

[1] Allinson v General Council of Medical Education and Registration [1894] QB 750; Re a solicitor [1960] VicRp 96; [1960] VR 617.

[2] [2006] VSCA 88

[3] [1994] 34 NSWLR 408

[4] [2004] HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310

[5] [2007] VSCA 1; (2007) 14 VR 392, 400 at [34]

[6] [2012] VCAT 74 at [27]

[7] [2011] VCAT 1390

[8] Unreported, VCAT matter no J114 of 2011

[9] The Queen v Talia [2009] VSCA 260 at [22]

[10] [2007] VSCA 122 at [29)-[31]