Victorian Civil and Administrative Tribunal|2007-07-31

Legal Services Commissioner v Nixon (Legal Practice) [2007] VCAT 1695 (31 July 2007)

Legal Practitioner - charge 1; failure to give file to client upon demand, breach of Rule 7.3.1 Professional Conduct and Practice Rules 2003; whether professional misconduct or unsatisfactory professional conduct - charge 2; failure to comply with request for explanation of conduct and deliver file, breach of Legal Practice Act 1994 s.4.4.11; whether professional misconduct or unsatisfactory professional conduct.

Legal Services Commissioner v Nixon (Legal Practice) [2007] VCAT 1695

Files produced to the Tribunal by the legal practitioner pursuant to subpoena are to be delivered to the Legal Services Commissioner for transmission to Mr Derek Murray.
Charge 1 is found proved as unsatisfactory professional conduct. The legal practitioner is ordered to pay a fine of $500 to the Legal Services Board.
Charge 2 is found proved as unsatisfactory professional conduct. The legal practitioner is ordered to pay a find of $500 to the Legal Services Board.
The legal practitioner is to pay to the Legal Services Commissioner its costs of these proceedings which in the exercise of the Tribunal's discretion are fixed in the sum of $1,750.00.

Legal Practitioner, Paul W. Nixon, has been charged with two matters under the Legal Profession Act 2004. The circumstances relate to Mr Nixon having acted for a Mr Derek Murray in relation to the purchase of two properties.
On the 17th of February 2005 other legal practitioners acting on behalf of Mr Murray made a request to Mr Nixon for the making available for collection of the two files in relation to the matters for which Mr Nixon had acted for Mr Murray. It is common ground that Mr Nixon failed to make those files available for collection. Indeed, it is now some two and a half years later and the files have only been produced today pursuant to a subpoena issued for their production to the Tribunal.
The second charge relates to attempts made by the Legal Services Commissioner and indeed prior to the Legal Services Commissioner by the Law Institute acting as the agent of the Legal Services Commissioner to obtain firstly, a full written explanation of the legal practitioner's conduct and secondly the delivery of the files.
In a sense the request for a full written explanation is of little consequence given that the explanation is in effect why the files were not delivered and in fact the delivery of the files is the primary objective, not only of the request made by or on behalf of the client but also the Legal Services Commissioner and the Law Institute of Victoria.
The history of the efforts to obtain the explanation of the files runs from January 2006 when a complaint was made by the client and in February 2006 a letter was sent to the legal practitioner by the Law Institute requesting an explanation and requiring the delivery of the files. The usual 14 days was given for the carrying out of those requirements but the requirements were not fulfilled. Subsequently there were several telephone conversations between the legal practitioner and firstly, Mr Mazaris of the Law Institute and subsequently, Ms Zalewski of the Legal Services Commissioner. Letters were sent, the latest of which was on the 20th of February 2007, none of which were responded to.
It appears that various excuses were made. Initially the legal practitioner told the client that the files were taking some time to photocopy. This failure persists throughout. The particulars which have not been challenged state that the legal practitioner advised Mr Mazaris on the 17th of February that the files would be delivered next Monday. On the 18th of April 2006, again in a telephone conversation with Mr Mazaris, the legal practitioner advised the files would be delivered on the following day. Despite these assurances no delivery was carried out.
While the legal practitioner admits to the facts as alleged, the Tribunal has been asked to determine whether the actions constitute professional misconduct or unsatisfactory conduct.
Both charges have been framed in the context of statutory breach. Charge 1 alleges a contravention of the Professional Conduct and Practice Rules 2003 - Rule 7.3.1(a) and (b). 7.3.1. states:

Upon completion or termination of a practitioner's engagement a practitioner must when requested to do so by the client or former client give to:

(b) another person authorised by the client or former client

Any documents related to the engagement to which the client is entitled subject to 7.3.2

7.3.2 refers to where a lien exists and other qualifications none of which have been raised before me.

In relation to Charge 2 it is alleged that the failure to comply with a request for information is a breach of the Legal Practice Act.
Neither of these have been challenged as being correctly or incorrectly framed, however it has been put that the provision of Section 4.4.4(a) is capable of being read as either professional misconduct or unsatisfactory professional conduct. Section 4.4.4 reads:

Without limiting Section 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;

There were submissions from both the counsel appearing on behalf of the Legal Services Commissioner and counsel appearing on behalf of the legal practitioner in relation to whether these charges should be constituted as professional misconduct or unsatisfactory professional conduct.
Section 4.4.3 of Legal Profession Act 2004 is a definition section. Professional misconduct includes:

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

Sub-section (b) talks about a practitioner not being a fit and proper person. That does not apply.
It should be noted that the definition contained in 4.4.3(i) is a non-exclusive provision. The use of the word includes opens up professional misconduct to the maintenance of the common law misconduct but also is non-exclusive in terms of the question of whether the failure to reach or maintain a reasonable standard of competence and diligence is professional misconduct. I am not satisfied that this provides a proper framework within which the charges presently before me may be constituted as professional misconduct. It is more appropriate to examine 4.4.4(a) and that is that the conduct consisting of a contravention of the Act, the Regulations or the Legal Profession Rules are capable of constituting either unsatisfactory professional conduct or professional misconduct.
It is then necessary to determine whether the charges constitute one or the other. On the one hand it might be said that the charges in the spectrum of charges which are open to be brought against legal practitioners are at the lower end of the scale and should properly be constituted as unsatisfactory professional conduct. On the other hand it has been submitted on behalf of the Legal Services Commissioner that the breach of the Rules and the Act in this particular instance is persistent to the extent that the seriousness is elevated to that of professional misconduct. It is necessary to determine that question in the light of the plea and mitigation which has been put on behalf of the legal practitioner. When I say plea and mitigation, the plea is made not only in terms of the disposition of the Tribunal but also in the question of whether the charge is to be finally determined as professional misconduct or unsatisfactory professional misconduct.
It was put to the Tribunal that whilst the legal practitioner has no excuse for the conduct, there is an explanation. The explanation was given that the legal practitioner has experienced financial difficulties and has finally been rendered bankrupt and that over the past two years the practitioner has noticed within himself a lack of emotional capacity to cope with the pressures of professional practice. It was also stated to the Tribunal that the legal practitioner has consulted a medical practitioner and is about to be referred to a psychologist. Whilst I am to a certain degree unimpressed that there have not been more active steps taken to remedy what is said to be a psychological difficulty being experienced by the legal practitioner, it is clear to me from not only this case but my experience in dealing with matters such as this for a considerable time that there exists a phenomenon whereby legal practitioners experience a block, a psychological block to carrying out what must surely be seen as a very simple task. There is no suggestion before the Tribunal that there is any impropriety on the part of the legal practitioner which would lead him to conceal any matter contained in the files which were to be handed to his former client. That being the case, the matter then comes back to the question of why they were not handed over. The only plausible explanation is this phenomenon to which I have just referred, that is, the psychological block. As I have said, I have experienced more than a few practitioners before me with a similar problem. To this day I do not have a proper clinical explanation of why it exists. What I am able to say is that where it exists, there are other factors where the individuals concerned are under pressure, perhaps of a personal nature, perhaps of a financial nature, perhaps of a professional nature, but under pressure and it would seem to me that that pressure leads them to a certain paralysis of carrying out what can only be regarded as the most simple of actions. How simple can it be to ring up a client and say, your file is ready to be handed over, come and get it? I am satisfied that the legal practitioner here falls into that category, that he has for whatever reason experienced a psychological block.
Having said that, I accept that that is an explanation. However the other side of the argument is it is now some two and a half years since the request for that file was made. I have nothing before me to suggest that there were any consequences flowing from the failure to hand over that file and indeed that to a certain degree is peripheral, however what can be said is that at the back of any of these matters where the regulatory authority seeks to obtain an explanation or obtain possession of files, there is a client who is waiting for that information on those files and it is in the interest not only of the client but also of the practitioner as an individual and the profession generally to observe that requirement that matters such as this be dealt with expeditiously so that the client can get about doing whatever was necessary having regard to the requirement of the files, that investigations be carried out in an expeditious manner by the regulatory authorities and that the whole process may be seen to be in place for the protection of clients.
These are the factors which it is necessary for me to weigh up. As to the persistence, I am satisfied that the persistence in terms of the long-term nature of the breach can be explained by the psychological phenomenon. It has been put that the regulatory bodies extend the time and therefore give more rope for the practitioner to hang themselves by making the offence more serious.
In all the circumstances I prefer to regard this matter as one single instance. Certainly the time is elongated, however, in a sense the elongation of the time proves the cause for the failure to comply. If it were to be some other factor then it may be that the compliance would have occurred, however there is no explanation as to why compliance was not carried out over the course of two and a half years other than one of a psychological block.
The orders that I propose to make are that firstly, the files produced to the Tribunal are to be delivered to the Legal Services Commissioner for transmission to Mr Derek Murray. I note that the files have been ceremoniously handed across and that this order has been complied with, however, for the sake of completeness I shall include that order.
Secondly, in relation to Charge 1, the charge is found proved to be unsatisfactory professional conduct. The legal practitioner is to pay a fine of $500 to the Legal Services Board.
In relation to Charge 2, the charge is found proved to be unsatisfactory professional conduct. The Legal Practitioner is to pay a fine of $500 to the Legal Services Board.

The legal practitioner is to pay for the Legal Services Commissioner its costs of these proceedings which in the exercise of my discretion I fix in the sum of $1,750.

Legal Services Commissioner v Nixon

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Decision date

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Judgment (16 paragraphs)

Legal Services Commissioner v Nixon (Legal Practice) [2007] VCAT 1695 (31 July 2007)

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