Legal Services Commissioner v Pollard [2008] VCAT 455 | Case summary

Legal Services Commissioner v Pollard [2008] VCAT 455 | Case summary | Zoe

[5]

This is an application for an order brought by the Legal Services Commissioner against the respondent Christopher Pollard, a legal practitioner. The application is brought pursuant to Section 4.4.13(2) of the Legal Profession Act 2004 for an order under Division 4 of Part 4.4.
It is alleged that the legal practitioner, respondent, is guilty of professional misconduct within the meaning of Section 4.4.4(a) of the Legal Profession Act in that he contravened the Act by failing to respond to a requirement pursuant to Section 4.4.11(1)(a) to provide a full written explanation of his conduct the subject of a complaint made by Michael Fetter of Fetter Gdanski legal practitioners in respect of the conduct of the respondent.
The chronology is that the complaint was made by Mr Fetter to the Legal Services Commissioner on 9 May 2007. On 10 May 2007 a letter was sent by the Legal Services Commissioner to the respondent requiring a full written explanation in relation to matters raised in the complaint and the time given for the provision of that full written explanation was 16 days. On 15 May 2007 a telephone conversation took place between the respondent and an officer of the applicant in which conversation the respondent stated that he would send a response. On 29 June 2007 a follow-up letter was sent by the applicant to the respondent giving a further 16 days for the provision of the full written response. A further letter in similar terms was sent on 23 July 2007. On 21 August 2007 a further telephone conversation took place during which the respondent stated that he would respond by the end of the week. On 18 September 2007 a further letter was sent by the applicant to the respondent requiring a full written explanation and giving a further 16 days. As no response was received the application for the order was made on 16 November 2007. A full written response was given on 25 January 2008. These are the facts as alleged and as admitted by the respondent.
In relation to the matter before the Tribunal today, the submission made on behalf of the respondent is that the conduct of the respondent constitutes unsatisfactory professional conduct not professional misconduct as alleged. It is within the power of this Tribunal to read down a charge of professional misconduct to one of unsatisfactory professional conduct.
The personal circumstances of the respondent were set out by Counsel on behalf of the respondent. He is a 44 year old man who practised law in South Australia for some eight years with an unblemished record and who from 1998 onwards has practised in Victoria. Until this present matter his professional record in this state is also unblemished. He is an employee solicitor.
The submission was then made that the respondent has suffered substantial personal difficulties since 2001. I do not wish to traverse the details of these other than in summary. It is fair to say that he has not only suffered serious health problems of his own which have led to ongoing issues but has also had to deal with serious health issues of his two children. He has also had to deal with substantial personal difficulties of a family nature. These difficulties reached a serious point in 2006 with resolution only being achieved mid-2007. The care of his children has throughout the entire time been one of some difficulty. I am satisfied that not only has the respondent practiced law with a hitherto unblemished record but has suffered during the relevant period substantial personal difficulties which I am prepared to accept have led to a situation of stress which may affect his actions in relation to this matter.
On the one hand it is quite clear that there is an obligation to respond and that the act of response is quite often, as in this particular matter, relatively simple. However, one must seek a reason why such a response was not given. I am satisfied that in the matters raised before this Tribunal such a set of circumstances as experienced by the legal practitioner give an insight into the reason for the non-response.
As I have said in previous decisions the previous legislation required that in order for statutory misconduct to be proved it was necessary to prove that the actions of the legal practitioner were either reckless or wilful. Those requirements are no longer in place under the Legal Profession Act 2004. However, they provide a useful insight into whether one should regard a matter as being professional misconduct or unsatisfactory profession conduct. Obviously if a matter is to be found to be misconduct it should be seen as being more serious than unsatisfactory professional conduct. That is to say one should look at the circumstances. The failure to respond to a requirement to provide information made by the Legal Services Commissioner is capable of constituting professional misconduct and the cited matter Lewis Spaulding [2008] VCAT 318 is an example of such a circumstance. However, I find that the personal constraints placed upon the legal practitioner due to his personal circumstances lead me to the conclusion that the appropriate finding is one of unsatisfactory professional conduct.
It has been submitted by both the representative of the Legal Services Commissioner and Counsel on behalf of the respondent that the appropriate disposition is a reprimand without the imposition of a monetary penalty. I am prepared to accept this submission and accordingly the respondent is reprimanded. The further order of the Tribunal is that the respondent is to pay to the Legal Services Commissioner by 14 July 2008 the costs of her application agreed between the parties to be $1,519.00.

Legal Services Commissioner v Pollard

At a glance

Court

Decision date

Source

Judgment (5 paragraphs)

Legal Services Commissioner v Pollard (Legal Practice) [2008] VCAT 455 (12 March 2008)

Parties