1. Mr O'Haire is reprimanded.
2. Mr O'Haire may not be granted a local practising certificate entitling him to operate as a principal of a practice before 1 July 2015, and must demonstrate in any such application that he has completed at least 10 CPD hours in the area of Practice Administration and Business Skills within the previous year.
3. Mr O'Haire may not be granted a local practising certificate authorising him to receive trust monies before 1 July 2017.
4. Mr O'Haire may immediately be granted an employee or corporate local practising certificate on the condition that he complete at least 5 CPD hours in the area of Practice Administration and Business Skills within the first year of any such certificate.
5. Mr O'Haire pay the Commissioner's costs of this application fixed in the amount of $3,460.80 on or before 1 April 2014.

1. On 30 August 2013, the Legal Services Commissioner ('the Commissioner') applied for an order ('the application') against the respondent, Denis Patrick O'Haire ('Mr O'Haire') under Division 4 of Part 4.4 of the Legal Profession Act 2004 (Vic) ('the Act'). The application was made under s 4.4.13(2) of the Act.

1. The Commissioner and Mr O'Haire were in agreement as to the facts, and provided a summary of the relevant facts and events relating to Mr O'Haire's conduct. The summary was in substance as follows:
   1. [Mr O'Haire] was admitted to practice in Victoria on 1 April 1976.

(a) [Mr O'Haire] was a director, within the meaning of section 2.7.2 of [the Act], of the firm Heydon O'Loghlen Lawyers Pty Ltd (the ILP) carrying on practice at Level 6, 451 Bourke Street, Melbourne 3000 in the State of Victoria; and

(b) The ILP was an incorporated legal practice within the meaning of Division 2 of Part 2.7 of the Act.

1. [Mr O'Haire] held a current local practising certificate for the year ending 30 June 2011.

1. On 20 May 2011 the Chief Executive Officer of Professional Standards, a division of the Law Institute of Victoria Ltd (the LIV), itself a delegate of the Legal Services Board, wrote to [Mr O'Haire]. This letter advised [Mr O'Haire] that:

• His current local practising certificate expired on 30 June 2011;

• No practising certificate renewal application had been received from him; and

• If [Mr O'Haire] intended to continue engaging in legal practice in Victoria after 1 July 2011 he must lodge his completed renewal application by 30 June 2011.

1. On 8 September 2011 Professional Standards wrote again to [Mr O'Haire]. This letter advised [Mr O'Haire] that:

• His practising certificate had expired on 30 June 2011;

• It is an offence under section 2.2.2(1) of the Act to engage in legal practice in Victoria without a current practising certificate; and

• If [Mr O'Haire] practised at any time between 1 July 2011 and 30 September 2011 what [Mr O'Haire] needed to do.

1. On 6 October 2011 [Mr O'Haire] submitted an Application for Grant/Variation of local Practising Certificate to the LIV.

1. [Mr O'Haire]'s local practising certificate was renewed as from 27 October 2011.

1. Accordingly, [Mr O'Haire] did not hold a local practising certificate during the period 1 July 2011 - 26 October 2011.

1. On 8 & 9 November 2011 the LIV conducted an investigation into the ILP and published a report dated 5 December 2011 (the LIV Report).

1. The LIV Report (at page 8) accurately records examples of matters in which [Mr O'Haire] engaged in legal practice during the period 1 July 2011 - 26 October 2011.

1. On 28 July 2011, within the period when he did not hold a local practising certificate, [Mr O'Haire] witnessed a statutory declaration made by his colleague James William Tasman Wise (Mr Wise) in [Mr O'Haire]'s capacity as 'An Australian Legal practitioner within the meaning of the Legal Profession Act 2004'.

1. At all material times both [Mr O'Haire] and Mr Wise were directors of the ILP. There was no other director of the ILP.

1. The directors of the ILP are responsible for the conduct of the ILP and liable for any contravention of the Act by the ILP.

1. Mr Wise did not hold a local practising certificate during the period 1 July 2011 - 14 September 2011.

1. Accordingly, in the period 1 July 2011 - 14 September 2011 neither director of the ILP held a local practising certificate.

1. The ILP did not have any legal practitioner directors during the period 1 July 2011 - 14 September 2011 when neither of its only directors, [Mr O'Haire] and Mr Wise, held a local practising certificate.

1. The LIV Report (at page 8) accurately records examples of matters in which the ILP provided legal services during the time when neither [Mr O'Haire] nor Mr Wise held a local practising certificate.

1. The LIV Report (at page 7) accurately records examples of matters in which the ILP received trust money during the time when neither [Mr O'Haire] nor Mr Wise held a local practising certificate.

1. The parties agree that the facts, matters and circumstances set out above disclose breaches by Mr O'Haire of ss 2.2.2(1), 2.2.3(1), 2.7.12(1), 2.7.12(3) and 3.3.71(3) of the Act. The parties also agree that these breaches constitute professional misconduct within the meaning of s 4.4.3(1)(a) of the Act.
2. In accordance with the arrangements between the parties, Mr O'Haire pleaded guilty to the charge of professional misconduct as set out in the Commissioner's application.
3. This charge was as follows:

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that [Mr O'Haire]'s conduct of breaching section 2.2.2(1) of the Act and/or section 2.2.3(1) of the Act and/or section 2.7.12(1) of the Act and/or section 2.7.12(3) of the Act and/or section 3.3.71(3) of and/or section 2.7.12(1) of the Act and/or section 2.7.12(3) of the Act and/or section 3.3.71(3) of the Act involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.

1. There are a number of relevant statutory definitions.
2. Section 4.4.3(1) of the Act defines 'professional misconduct' for the purposes of the Act as:

(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; and

A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.

A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.

An incorporated legal practice contravenes this subsection if it does not have any legal practitioner directors for a period exceeding 7 days.

An incorporated legal practice must not provide legal services in this jurisdiction during any period it is in default of director requirements under this section.

(3) An incorporated legal practice must not receive trust money unless -

(a) at least one legal practitioner director of the practice holds an Australian practising certificate authorising the receipt of trust money; or

(b) a person is holding an appointment under section 2.7.12 in relation to the practice and the person holds an Australian practising certificate authorising the receipt of trust money; or

(c) the money is received during any period during which the practice -

(i) does not have any legal practitioner directors; and

(ii) is not in default of director requirements under section 2.7.12 -

so long as there was, immediately before the start of that period, at least one legal practitioner director of the practice who held an Australian practising certificate authorising the receipt of trust money.

1. On the admitted facts, Mr O'Haire has pleaded guilty to one count of professional misconduct within the meaning of s 4.4.3(1)(a) of the Act. Under Division 4 of the Part 4.4 of the Act, there are a range of orders that can be made. These include the imposition of a reprimand, an order that the practitioner not apply for a local practising certificate before the end of the specified period, and an order that the practitioner undertake and complete a specified course of further legal education.
2. In the recent decision of Stirling v Legal Services Commissioner,[1] the Court of Appeal considered the principles applicable to sanctions in disciplinary proceedings. The Court also considered the link between criminal sentencing and disciplinary proceedings. In imposing a penalty, the Court considered specific and general deterrence, the need to stipulate a penalty for each count or charged conduct, other than in circumstances where a global approach to penalty may be appropriate, as well as factors such as remorse, rehabilitation, delay, character, financial hardship and family situation.
3. In the present instance, my task is simplified by the agreement between the Commissioner and Mr O'Haire as to the appropriate penalties to impose and orders to make. Nonetheless, the Tribunal is not bound by any agreement between the parties, but must consider these issues afresh in the light of the requirements of the Act. I am also assisted by the decision of Member Wentworth in the related matter of Wise v Law Institute of Victoria Limited.[2] Both parties accepted in general terms the findings made by Member Wentworth in this decision.
4. It was not contested that Mr O'Haire had a greater culpability than Mr Wise who was the subject of the proceeding before Member Wentworth. Mr O'Haire had a 70% interest in the firm Heydon O'Loughlen Lawyers Pty Ltd ('Heydon O'Loughlen') which carried on practice at Level 6, 451 Bourke Street, Melbourne. Mr Wise had a 30% interest. Mr O'Haire did not hold a local practising certificate for the period 1 July 2011 - 26 October 2011, approximately one month longer than was the case with Mr Wise. Importantly, it was Mr O'Haire who held a practising certificate entitling the firm to hold trust money. Mr Wise did not. Receipt of trust money by Heydon O'Loughlen was dependent on Mr O'Haire's local practising certificate and capacity to receive trust monies. I was provided with a certificate under s 7.2.5(1) of the Act certifying the periods between his admission to practice in Victoria on 1 April 1976 and 18 September 2013 during which Mr O'Haire held a principal or employee practising certificates.
5. The Commissioner alleged one prior matter against Mr O'Haire. This related to unsatisfactory professional conduct under s 4.4.2 of the Act and occurred in 2011. The matter related to a misrepresentation that Mr O'Haire was the director of the company which owned his firm, which was not the case at the time. Mr Snow drew to my attention the findings of Member Wentworth in Wise v Law Institute of Victoria Limited:[3]

Mr Wise had no experience in the administration of a law practice. Mr O'Haire had been in practice for over thirty years. They were business partners but, according to Mr Wise, Mr O'Haire had sole responsibility for the financial management of the practice and exclusive control over the trust account. Mr Wise's role was to be primary fee earner with responsibility for the care and conduct of client matters. Only Mr O'Haire held a practising certificate authorising the receipt of trust money.

Mr Wise described himself as being 'consciously deferential' to the practical experience of Mr O'Haire and subject to his tutelage and direction. He immersed himself in the legal work of the firm and left the management and financial administration to Mr O'Haire.

1. Mr O'Haire submitted that his failure to comply resulted from burnout. From 2003, he had built the practice that became Heydon O'Loughlen from nothing to a substantial firm. In 2009, the practice was decimated by the departure of four solicitors, who took 50% of the practice turnover with them. The firm had leased a whole floor as its office. When the walk-out occurred, he had attempted to hold the firm together by working seven days a week nonstop. He had to support the firm both in a financial and legal practice sense. At the time when he failed to renew his practising certificate, he was suffering from financial problems and had difficulty with the amount of money required to pay his legal professional indemnity insurance. In addition, his experience since 2008 was that there was a substantial delay in the issue of practising certificates at the end of each financial year. It was not until September or October that practising certificates arrived. He was not alarmed by the delay in receipt of a practising certificate.
2. Mr O'Haire admitted that what he allowed to happen was inappropriate and that he had taken the need to hold a practising certificate far too lightly.
3. He submitted that Heydon O'Loughlen had gone into liquidation with book debts of approximately $1M and $600,000 outstanding. He acknowledged that he had not managed cash flows well. He also acknowledged that he had taken his eye of the ball as he had delegated the renewal of his practising certificate to Mr Wise.
4. The earlier matter relied on by the Commissioner related to an application for credit for a telephone company as he recalled it. He had not responded to a letter from the Law Institute. At that time things had been stressful.
5. Finally, Mr O'Haire referred to the fact that he had practised for 35 years as a practitioner. The conclusion of his legal practice had not been a happy event. He had spent the last 12 months helping family members with their businesses and had not been involved in legal practice. He agreed with the charges and had pleaded guilty. He had been open and shown candour.
6. In the future, Mr O'Haire stated that he did not intend to practice. If he were to engage in legal practice it would only be as an employee of his brother who was as a legal practitioner in Robinvale. He had declined offers of employment as in-house counsel. He sought a stay of 2-3 months on payment of legal costs. No objection was made by counsel for the Commissioner to this course of action.

1. In Stirling v Legal Services Commissioner,[4] the Court of Appeal highlighted the need to take into account a number of factors including:
   • (a) general deterrence;
   • (b) specific deterrence;
   • (c) remorse;
   • (d) rehabilitation;
   • (e) delay;
   • (f) character; and
   • (g) financial hardship and family.
2. As to general deterrence, Mr O'Haire will be precluded from holding a local practising certificate entitling him to operate as the principal of a practice before 1 July 2015, and may not be granted a local practising certificate authorising him to receive trust monies before 1 July 2017. This penalty is sufficient to protect the public and the reputation of the profession.[5] I consider that the consideration of general deterrence has appropriately been taken into account.
3. As to specific deterrence, Mr O'Haire has shown considerable insight into the offence and the general circumstances of the practice which caused it. He has the requisite insight into his wrongdoing.[6]
4. Mr O'Haire expressed his remorse, and admitted the charge brought by the Commissioner. I accept that his remorse is genuine and that he has been embarrassed in his family circumstances and with his professional acquaintances. I accept that he is genuinely ashamed of what took place.
5. As to rehabilitation, the orders to be made provide for compulsory development training that should overcome the lapses in performance and conduct demonstrated by the agreed facts. Mr O'Haire will undertake professional training in the area of Practice Administration and Business Skills which will assist him to overcome any weaknesses and deficiencies in his knowledge and understanding of his professional obligations.
6. There was no delay in the brining of this application. There was no obstruction or delay occasioned by Mr O'Haire.
7. I accept that Mr O'Haire is of good character apart from the lapses admitted in this proceeding. He has co-operated fully with the Commissioner concerning the lapses in 2011, and during this proceeding.
8. I accept that Mr O'Haire has suffered substantial financial hardship as a result of the failure of Heydon O'Loughlen. This was predominantly caused by the departure of four solicitors in 2009, and by poor cash flow management. I accept that Mr O'Haire has suffered significant financial embarrassment after 35 years as a legal practitioner. His brother in Robinvale has offered him employment as a solicitor.

1. I have given consideration to the material that I have been provided with and taken into consideration the relevant factors relating to the imposition of penalty. The penalty agreed between the Commissioner and Mr O'Haire is an appropriate penalty. Orders will be made generally in accordance with the minutes provided by both parties.
2. There will be an order for the payment of costs in accordance with the cost schedule provided by the Commissioner in the amount of $3,460.80. As requested by the parties, payment of costs will be required by 1 April 2014.

[1] [2013] VSCA 374 (Warren CJ, Neave JA & Dixon AJA).

[2] [2012] VCAT 1518.

[4] [2013] VSCA 374 [57]-[88].

[5] Ibid [57]-[59], Quinn v Law Institute of Victoria [2007] VSCA 122 [30] and [35].

[6] Stirling v Legal Services Commissioner [2013] VSCA 374 [60]-[62]; Legal Services Commissioner v Brott [2008] VCAT 2399 [67] (Judge Ross VP); Morris v Psychological Registration Board (Unreported, Supreme Court of Victoria, Harper J, 19 December 1997) 25.