1. The respondent is found guilty of two charges of professional misconduct and in respect of each charge is reprimanded.
2. The respondent is to pay the applicant's costs fixed at $17,595.00 to be paid in six monthly instalments of $2,932.50 each, to be paid on the following dates: 1/3/14, 1/4/14, 1/5/14, 1/6/14, 1/7/14, and 1/8/14.

1. In these proceedings the respondent, Ms Macgregor, has pleaded guilty to two amended charges of professional misconduct and I have made findings accordingly. The parties filed a statement of agreed facts, with some stated areas of disagreement. The hearing focussed on the appropriate penalty.
2. Counsel for the Commissioner submitted that Ms Macgregor should be suspended from practice for a period of three months in the interests of general deterrence.
3. Counsel for Ms Macgregor submitted that a reprimand in relation to each charge was sufficient penalty in all the circumstances.
4. Both agreed that Ms Macgregor is liable to pay the Commissioner's costs of the proceedings, there being no exceptional circumstances.[1]

1. Ms Macgregor has been a legal practitioner for 31 years, and for 20 years has been in sole practice in St Kilda. Her areas of legal practice are family law, criminal law and family violence. Most of her paid legal work comes from Legal Aid. She has a small number of private clients and an extensive pro bono and voluntary commitment.
2. Both charges relate to events in 2010.
3. The first charge relates to a short period of time, between 28 June and 22 July 2010, when Ms Macgregor was acting for Mr Norman Elliot, having take initial instructions from him on 21 May 2010.
4. The second charge relates to a statement Ms Macgregor made in a letter to the Commissioner in December 2010 in response to a complaint made by Mr Elliot.
5. In June 2009, Mr Elliot had filed an application in the Family Court under s79A of the Family Law Act 1975. By his application, Mr Elliot sought to set aside final property orders made by the Court over a decade earlier in 1997. Mr Elliot filed his application after his former wife, Gloria, filed her own application for orders in relation to an aspect of the parties' superannuation entitlements, which had been left open by the final property orders.
6. On 21 May 2010, Mr Elliot sought Ms Macgregor's assistance in relation to a telephone mention in the Family Court on 25 May 2010, and then in relation to a preliminary hearing, which took place on 23 July 2010.
7. The purpose of the preliminary hearing in the Family Court was to determine the threshold issue of whether there was a basis pursuant to s 79A to set aside the final property orders made 1 December 1997.[2]
8. Ms Macgregor was away from Australia from 7 June to 27 June 2010. Before she left, Ms Macgregor briefed Counsel to advise, and appear at the preliminary hearing.
9. At a conference on 25 June 2010, Counsel advised Mr Elliot that his section 79A application had no merit and he should try to withdraw it without incurring costs.
10. At the telephone mention, Registrar Field had ordered that Mr Elliot file an amended application by 30 June 2010 and a bullet point summary of argument by 13 July 2010. Neither document was filed during the period of Ms Macgregor's retainer.
11. Shortly prior to the hearing date, the barrister concerned had to withdraw from the appearance and Ms Macgregor briefed a second barrister to appear.
12. At the preliminary hearing, on 23 July 2010, Mr Elliot's application under section 79A was dismissed and he was ordered to pay his former wife's costs fixed at $7,950.00.
13. Mr Elliot terminated Ms Macgregor's retainer on 24 July 2010, made a complaint about her conduct to the Commissioner in September 2010, and in 2011 brought a civil claim against Ms Macgregor, which she has settled by a payment of $20,000.00.

1. Charge 1 is not concerned with the outcome of the preliminary hearing. Rather it is concerned with Ms Macgregor's:
   • failure between 28 June 2010 and 22 July 2010 to use her best endeavours to take steps which would have enabled Mr Elliot to comply with orders to file an amended application and a bullet point summary of argument by the deadlines specified;
   • failure between 28 June 2010 and 22 July 2010 to use her best endeavours to explain to the Court or to the other side the delays and seek an extension of time to do so; and
   • failure between 28 June 2010 and 22 July 2010 to communicate effectively and promptly with Mr Elliot over the period 28 June 2010, when she returned to Australia, and 22 July 2010, the day before the preliminary hearing.
2. In those respects, Ms Macgregor admits she breached rules 1.2 and 39.1 of the Professional Conduct and Practice Rules 2005 (the Rules) which are as follows:

A practitioner must, in the course of engaging in legal practice, use the practitioner's best endeavours to complete legal work as soon as reasonably possible

A practitioner, in the course of engaging in legal practice, must communicate effectively and promptly with clients of the practitioner.

1. Ms Macgregor agrees that Mr Elliot's current wife, Minnie Elliot, sent a number of emails and left a number of telephone messages prior to and during the period after her return to Australia.
2. The emails requested the names of financial planners specialising in family law and superannuation; and, from 16 July onwards stated that the Elliots wished to have the matter, listed for 23 July, postponed to enable them to consider what direction to take.
3. Ms Macgregor's first email response to Mr Elliot was on 21 July 2010.
4. The agreed statement of facts records that Ms Macgregor's recollection is that soon after she returned on 27 June 2010, she spoke with Minnie Elliot who told her that Counsel's advice in conference had been that the only thing that needed to be done was to get a financial planner's advice.[3] There is no file note of that conversation and no agreement that the conversation took place.
5. A breach of the Rules is capable of constituting unsatisfactory professional conduct or professional misconduct, under s 4.4.4(a) of the Legal Profession Act 2004 (the Act). As agreed, I find professional misconduct established.

1. Charge 2, admitted by Ms Macgregor, is a charge of professional misconduct within the meaning of s 4.4.3(1)(a) of the Act in that on 6 December 2010, during the course of an investigation into her professional conduct, Ms Macgregor recklessly made an assertion to the Commissioner and the assertion was misleading. The relevant statement is:

`It is not correct to say that we did not communicate with Marshalls and Dent [Gloria Elliot's solicitors]. We were in constant contact with them indicating that we were trying to obtain instructions to resolve the matter.'

1. Counsel for the Commissioner made it clear, and Counsel for Ms Macgregor stressed, that it is not alleged that Ms Macgregor made the assertion dishonestly, or intentionally, or careless as to its truth.
2. Nor does the Commissioner allege that in making the assertion, Ms Macgregor was in breach of her common law duty of honesty and candour.
3. Rather it is alleged and admitted that Ms Macgregor failed to take sufficient care to ensure she did not mislead the Commissioner, which is a failure akin to negligence. Sufficient care would require, in my view, reading the file records of communications before making the statement.
4. Both parties agree that there was not 'constant contact' between the two firms of the kind described in Ms Macgregor's letter over the relevant period.
5. There remains a factual dispute as to the extent of contact between the two firms during the relevant period. As part of the resolution of the plea and agreed facts, both parties agreed between themselves that:

'it was unnecessary and undesirable for the Tribunal to make factual findings about that dispute in the absence of full evidence and cross-examination'.

1. Whilst it is ultimately a matter for the Tribunal whether a finding is required to be made in relation to a factual issue which is in dispute in order to make the relevant decision, I am satisfied that it is not necessary to resolve that dispute in this case. Both parties agreed that there was not constant contact as asserted, which establishes that the assertion was misleading. I find professional misconduct established.

1. If the Tribunal finds a practitioner guilty of unsatisfactory professional conduct or professional misconduct, section 4.4.16 of the Act provides that the Tribunal may make any orders it thinks fit including the orders specified in sections 4.4.17, 4.4.18 and 4.4.19.
2. The objective of any determination is primarily the protection of the public and the maintenance of professional standards in the eyes of the public. As observed by Warren CJ in Legal Services Board v McGrath[4] the protective power extends:

...beyond protection of the public to include the legal profession as a group, the courts, the justice system and community confidence in that system.

1. Necessarily the available sanctions are punitive in effect. As observed by Maxwell P in Quinn v Law Institute of Victoria[5]

The objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect.

1. Nevertheless, where there is a choice of available sanctions, the Tribunal will choose that sanction which maximises the protection of the public.[6]
2. In determining penalty, the Tribunal considers what may be required to deter the practitioner from re-offending (specific deterrence) or deter other practitioners from engaging in similar conduct (general deterrence).
3. Relevant factors will include the seriousness of the conduct, whether the practitioner has demonstrated insight into and remorse for the offending conduct, whether the practitioner has a history of prior disciplinary findings, evidence of character, any mitigating factors such as medical or psychological issues, or other circumstances that may reduce culpability.
4. Penalties imposed in other cases may be a useful guide to proportionality, but every case necessarily involves a different combination of factors. The nature of the offending conduct, the particular circumstances of the practitioner, the context of the offending and its duration, and the risk of repetition are all factors which will rarely be identical in any two cases.[7] Each case is different.

1. The following matters arise from the plea material submitted on Ms Macgregor's behalf by her Counsel.
2. The findings in this case are the only disciplinary findings against Ms Macgregor in a long career in the law.
3. Her professional history is notable for exemplifying a commitment to the service ideal of the legal profession.
4. A large proportion of her work is for legally-aided clients, paid at Legal Aid rates, despite her experience and seniority in the profession. She commonly reduces or waives her fees for clients who cannot afford to pay.
5. She has provided valuable and valued service in a voluntary capacity at a number of community-based legal services over the course of her career, including the St Kilda Legal Service, the Tenants Union, the HIV/AIDS Legal Centre, and the Salvation Army Drop In Centre in Grey St, St Kilda.
6. She has assisted a number of organisations by involvement in their Boards or committees including the YWCA, Sacred Heart Mission and the Women's House in St Kilda.
7. She has actively served on a number of internal Law Institute of Victoria committees and been the LIV's representative on a number of external committees including the Women's Correctional Services Advisory Committee.
8. She is a member of the Legal Aid Independent Children's Lawyers Panel.
9. Her character references indicate that she is held in high regard by professional colleagues and those for whom she has worked or appeared before, as honest, reliable, competent, and generous with her time and expertise.
10. Her practice is notable for a willingness to take on clients who might be considered to be too challenging for many practitioners. Her Counsel submitted that many of her clients might be described as 'dangerous territory' for a practitioner in terms of the risk of claims, and yet she has only had one disciplinary complaint in 31 years.

1. I am satisfied that specific deterrence is not an important factor in this case.
2. Ms Macgregor pleaded guilty to the amended charges.
3. The plea and matters set out in her witness statement indicate to me that she has both insight into what was wrong about her conduct under both charges, and also remorse.
4. In her witness statement, Ms Macgregor describes a very busy period on her return to Australia after three weeks away, with numerous personal court appearances, and the added distraction of a wound in her foot that had become infected.
5. When she turned her attention to Mr Elliot's matter, she said that she could not work out why he and Minnie were asking for names of financial planners, which appeared to be relevant only to the superannuation application, which had not yet been set down for hearing.
6. She also said that she was expecting to receive Counsel's advice in relation to the s79A preliminary hearing, which was to her the priority. She did not become aware until later in the period that Counsel had told Mr Elliot that he would not provide advice in writing and would waive his fee.
7. She explains in her witness statement what was in her mind during the relevant period.
8. Her view was that the s 79A application had no prospect of success. On 20 July when she was able to speak with Counsel, he confirmed he had given that advice to Mr Elliot in conference.
9. She regarded the best course as being to try to get Mr Elliot out of the mess without an adverse costs order and with a possible negotiated outcome in relation to the super issue.
10. She thought there would be some flexibility in relation to the timetable that the Court had fixed.
11. She acknowledges however that she let too much time pass before communicating with her client and her attempts to contact him were inadequate.
12. In my view, Ms Macgregor's plea of guilty to the first charge reflects an acknowledgement that her conduct might be explained but should not be excused.
13. The Commissioner does not allege that the outcome of the preliminary hearing, including the award of costs against Mr Elliot, is attributable to Ms Macgregor's conduct.
14. I note that Mr Elliot had filed the s 79A application on his own behalf in the previous year, well before he sought her assistance. Given Counsel's view that it had no merit, her options as his legal representative were limited in terms of what could be achieved.
15. There is no doubt, however, that her failure to communicate effectively in the period leading up to the hearing would have caused considerable stress for her client.
16. Whether or not she had any liability to do so, I take into account that Ms Macgregor has settled the civil claim made against her by Mr Elliot for the sum of $20,000.00. That amount is a considerable sum both in the context of the order for costs made against Mr Elliot, and the very modest level of income that Ms Macgregor's practice generates. Ms Macgregor paid the money out of her own pocket.
17. Rough estimates provided at the hearing by Ms Macgregor through her Counsel indicate that the profit after expenses of her firm is around $30,000.00. That estimate is consistent, in my view, with a practice based largely on work at legal aid rates, scale or below scale charging in private matters, and a high proportion of pro bono work undertaken by its principal.
18. The sum paid to Mr Elliot is relevant when assessing any need for specific deterrence based on a lack of insight or remorse, which in any event is low in my view, and the financial impact of any penalty.
19. In relation to both charges but particularly the second charge, Ms Macgregor's witness statement describes an unfortunately common reaction of practitioners to disciplinary complaints - that she did not want to think about it. She states at [42]:

I felt very bad about what had happened. I did not want to think about it. For me, this was the one file in 31 years of practice that I suspect every practitioner has one of in their career, 'the one that got away'. I was worried about the claim for compensation and about not prejudicing my insurance. I did not initially deal appropriately with the complaint or the claim for compensation and instead became very stressed and unable to deal with the problem rationally. I did not make a claim on my professional indemnity insurance as I should have. I did not seek assistance in dealing with this problem from a psychologist or a fellow practitioner. I did not appoint a solicitor to act for me or advise me.

1. In my view, that paragraph recognises and succinctly describes the steps that practitioners should follow; no matter how distressed they may be by a disciplinary complaint made against them.
2. They must think about it, give their attention to it, and take steps to address it and respond appropriately. They should seek help and advice at an early stage, despite any embarrassment. They would be wise to appoint someone to act for them in relation to any disciplinary proceedings. They should notify any claim to their professional indemnity insurer - one of the benefits of doing so will be that a detached assessment is made of the merits of any claim.
3. It is all too common in cases before the Tribunal for charges of professional misconduct to arise from a failure to deal effectively with the disciplinary complaint and the investigation process, rather than the subject matter of the complaint itself.
4. In this case, the second charge, which relates to Ms Macgregor's response to the Commissioner, is the more serious. The charge might have been avoided had Ms Macgregor sought assistance from a colleague or advisor able to bring an independent and unstressed mind to the situation.

1. As Counsel for the Commissioner submitted, it is the second charge that raises the issue of general deterrence in considering penalty in this case. It is a serious matter for a practitioner to make a misleading statement to the Commissioner, whose statutory responsibility to investigate complaints is an integral part of the framework to uphold and maintain professional standards.
2. In this case, one statement in one letter has been found to be misleading. That is enough for the conduct to constitute professional misconduct.
3. It would be more far serious for the statement to be made knowingly and/or intentionally, as in Legal Services Commissioner v Dwyer[8], where the practitioner made things very much worse by creating false documents to back up a statement he made to the Commissioner.
4. In this case, it is not alleged that there has been any dishonesty. If there had been, then some period of suspension might well have been warranted in the interests of general deterrence.
5. My view is that here, general deterrence is served by the fact that the conduct, even though not dishonest, is found to be professional misconduct, and that there will be a reprimand, agreed as appropriate by Counsel for Ms Macgregor in relation to both charges.
6. Further, the denunciation of Ms Macgregor's conduct will be published, as her Counsel noted, on the Internet, which is a widely accessible form of publication. In addition, she will pay costs, agreed at $17,595.00. She has also incurred her own costs of around the same amount.
7. As observed by Member Butcher of this Tribunal in Legal Services Commissioner v Sapounsis [9]

It should be noted that a reprimand is not an insignificant determination in itself. In Peeke v The Medical Board of Victoria, unreported Supreme Court of Victoria 19 January 1994, Marks J expressed the view that a reprimand is not a trivial penalty. His Honour said that although a reprimand may be inappropriate or inadequate in many circumstances, to a professional person a reprimand had the potential for serious adverse consequences. In Medical Practice Board v Swieca [2009] VCAT 419 the Tribunal referred to Peeke and said that a reprimand should not be considered as a slap over the wrist [for the practitioners].

1. I do not consider that a further financial penalty, such as a fine, is warranted in this case, in the interests of either specific or general deterrence.
2. I take into account Ms Macgregor's very modest professional income and the disproportionate effect a fine would have on her, compared to a practitioner in a more lucrative practice. I also take into account the financial impact of the payment she has already made, of $20,000.00 to Mr Elliot in settlement of his civil claim against her.

[1] Section 46D of Schedule 1 to the VCAT Act applies to disciplinary matters under Division 4 or 5 of Part 4.4 of the Act, and provides that where the Tribunal has found a practitioner guilty of unsatisfactory conduct or professional misconduct, it must order the practitioner to pay costs, unless there are exceptional circumstances.

[2] As per paragraph 1 of Orders made by Registrar Field in chambers on 25 May 2010.

[3] Ms Macgregor was later told by Counsel that, for the purposes of the superannuation application [Gloria Elliot's application], he had told Mr Elliot that he could consider getting a second opinion in relation to the value of Mr Elliot's super from one of the superannuation consultants who are routinely used in matrimonial property disputes.

[4] [2010] VSC 266.

[5] [2007] VSCA 122 at [30]

[6] [2007] VSCA 122 at [31]

[7] In Buzzo Holdings Pty Ltd and another v Loison [2007] VSC 31, Kaye J held at paragraphs 26 to 29 that it was inappropriate and erroneous to determine a matter on the basis of what may be a comparable decision; also Chiropractic Board of Australia v Hooper [2013] VCAT 1346 at 31. Principles of parity should not override the need to consider the unique facts and circumstances of the case at hand [Dental Practice Board of Victoria v Dr Hassed [2006] VSC 485 per Hargrave J..

[8] [2012] VCAT 886.

[9] [2010] VCAT 742, at [44]