Legal Services Commissioner v Jackson [2012] VCAT 372 | Case summary

[4]Legal Services Commissioner v Jackson [2012] VCAT 372 | Case summary | Zoe

[6]

On 13 April 2010 at Ballarat Magistrates Court Mr Graeme Jackson pleaded guilty to one charge of making a false document, and six charges of using a false document. On 26 February 1992 he had forged his wife's signature on an application to the ASIC to register a company, which would be the trustee of his family trust. Subsequently, on 3 October 1994, 15 December 1995, 27 February 1997, 24 April 2001 and 6 September 2001, he forged the signature of his wife on tax refund cheques and deposited these in his and his wife's joint bank account. The amounts involved varied between $1,107.15 and $8,473.60. The Magistrates Court imposed a $5,000 fine as an aggregate penalty.
These court findings are the basis for the single disciplinary charge brought by the applicant (LSC) in this matter of professional misconduct at common law (in accordance with section 4.4.3(1)) of the Legal Profession Act (2004) (the Act)). It is alleged that the respondent's conduct in making a false document, and using a false document on six separate occasions, would be reasonably regarded as disgraceful and dishonourable by professional brethren of good repute and competency.
The cheques had been deposited in the bank account relating to the mortgage of the matrimonial home of Mr Jackson and his then wife. There was no allegation that he had misappropriated funds, or that the interests of his wife or anybody else had been adversely affected at the time.
Mr Jackson practised as a family law solicitor in Ballarat from 1976 until 2007, when he went to the Victorian Bar. He is currently unable to practice due to severe health problems. In 2002, he divorced. Subsequently, he remarried. Unfortunately the divorce was a bitter one. Complicating matters was the fact of living in a relatively confined community in Ballarat, and the fact that his former wife had worked as a legal secretary in his practice. The charges brought against him received significant local press coverage.
The LSC submitted that the forging of signatures is an offence involving dishonesty and accordingly, section 4.4.4(c)(iii) applies. The result is that these offences are capable of constituting unsatisfactory professional conduct or professional misconduct. Mr Snow, for the LSC, referred to the three step test in Peters v the Queen [1998] HCA 7; (1998) 192 CLR 493, as quoted in Legal Services Commissioner v Brereton (2001) [VSCA] 241, 19 August 2011. It is plain that these acts of forgery by Mr Jackson were dishonest according to that test.
The LSC submitted that the conduct should be characterised as professional misconduct. It was submitted that the repeated nature of the conduct (seven offences over nine and a half years) elevates it above unsatisfactory professional conduct to professional misconduct.
The LSC alleges professional misconduct at common law. This has been recognised as constituting conduct by professional person in the practice of his profession which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency (see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. This standard has been adopted in Victoria (Re A Solicitor [1960] VicRp 96; [1960] VR 617, at 620 per Dean J).
Mr Jackson pleaded guilty to professional misconduct.
I find his conduct is properly characterised as professional misconduct. It is trite that solicitors hold a position of great trust in the community. Clients, courts and other institutions rely on solicitors being utterly honest in all their dealings. Although these offences occurred in connection with his own domestic affairs, they were transactions of a nature which solicitors routinely carry out for clients (especially at the relevant times, when solicitors more commonly also acted as tax agents). Colleagues of good repute and competency would regard dishonesty of this nature, constituting as it does, breaches of the Crimes Act 1958, as disgraceful and dishonourable in the conduct of their profession.
In terms of disposition, the LSC proposed that Mr Jackson be:
- Reprimanded;
- Fined $5,000.00;
- Ordered to pay costs of $3552.90.
Mr Jackson agreed to these proposed orders.
It is necessary for me to satisfy myself. These are "within the range" (per Law Institute of Victoria v Brott [2008] VCAT 1998). I find that is the case here.
In particular, I find this is not a case where it is necessary to interfere with the respondent's right to practice. The key factor is what disposition best serves the goal of protecting the public (see Quinn v Law Institute of Victoria Ltd [2007] VSCA 122 at paragraphs 29-31).
In this regard, in Mr Jackson's favour, I note that the offences related to his domestic financial affairs, and did not involve any misappropriation of funds. They involved Mr Jackson taking a very ill advised short cut on each occasion. They occurred a long time ago.
There was also the personal pressure on him due to the fact of the breakup of the legal practice he was managing (at the time of ASIC offence) and his wife's debilitating illness. This impacted on him in two ways: she was less able to assist with the practice, but at the same time Mr Jackson was required to care for his five children.
I have taken into account Mr Jackson's plea of guilty, and his cooperation with the LSC in investigating this matter. In addition there were ten character references submitted on his behalf. These were described as "unusually powerful" by the LSC. They tell a story of a life during which Mr Jackson has encountered more than his share of personal difficulties, but out of which Mr Jackson has emerged as a person who has earned the admiration of those he has encountered for his hard work, professionalism as a family lawyer, his contribution to the community and most of all, his care for his children in very difficult circumstances.
In terms of the factors against Mr Jackson, it is obviously important that the profession and the community understand that absolute honesty is expected of lawyers, and if dishonesty occurs, there will be very firm action taken, which conveys strong denunciation of such conduct. This necessarily involves some element of punishment, even though the primary purpose of disciplinary proceedings is to protect the public.
There is also a finding of unprofessional conduct against Mr Jackson in 2009. This related to inappropriate remarks he made to his ex wife and her friend, when their paths crossed at the Ballarat Magistrates Court, and in the context of ongoing bad feeling between them. Apart from that, there are no other matters put against Mr Jackson, arising out of his long career in the contentious area of family law.
In the circumstances, the appropriate disposition is that Mr Jackson be reprimanded and fined $5,000.00. There being no exceptional circumstances, the legislative requirement that Mr Jackson pay the LSC's costs also applies. These amount to $3,552.90.

Legal Services Commissioner v Jackson

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Legal Services Commissioner v Jackson (Legal Practice) [2012] VCAT 372 (2 April 2012)

Parties

Legislation Cited (1)

Cases Cited (1)