The respondent is found guilty of three charges of professional misconduct.

1. The respondent is reprimanded.
2. No local practising certificate be granted to the respondent before 27 April 2017.
3. The respondent must pay the applicant's costs of $5,935.90.

1. This case concerns charges brought by the applicant (LSC) against Mr Spicehandler that he submitted a false resume to support a successful application for employment at the Office of Public Prosecutions (OPP) in Victoria in 2010, and that he practised as a solicitor in 2009/10 without a practising certificate.
2. Mr Spicehandler signed an Agreement as to Facts, prepared pursuant to section 191 of the Evidence Act 2008, and pleaded guilty to three charges of professional misconduct in relation to these matters. The Agreement as to Facts relevantly states as follows.
   1. The respondent was admitted to practice on 8 November 2004 and held an employee practicing certificate from 16 June 2006 until 30 June 2008 ... . The respondent has not held a practicing certificate after 30 June 2008.
   2. On 23 June 2010 the Office of Public Prosecutions ('OPP') advertised a vacancy at the OPP for a senior solicitor in its Proceeds of Crime Directorate. The respondent successfully applied for this role and commenced employment at the OPP on 2 August 2010.
   3. As part of his job application to the OPP, the respondent submitted his résumé ('the résumé'), which listed his only employment history as being that he was currently employed, and had been since November 2004, as a 'Solicitor - Credit Management - Finance Negotiator' at Kings Logistics ... . This fact was false.
   4. Kings Transport and Logistics Pty Ltd (formerly Kings Logistics Pty Ltd, now Kings Healthcare Logistics Pty Ltd ACN 079 267 057) ... confirm that the respondent has never been employed by Kings ... .
   5. From June 2006 until April 2007, when his employment was terminated by Coopers, the respondent was employed as a junior litigation lawyer by Coopers Lawyers in Melbourne. This fact was omitted from the résumé.
   6. From May 2007 until August 2007 the respondent was employed as a legal practitioner by Norman Czarny & Associates in Elwood. This fact was omitted from the résumé.
   7. From August 2007 until June 2008 the respondent was employed as a legal practitioner by Kenworthy Bruce Lawyers in Malvern. This fact was omitted from the résumé.
   8. From May 2009 until June 2009 the respondent practiced as sole practitioner at Dolgin Frost & Associates in Caulfield. This fact was omitted from the résumé.
   9. From 30 November 2009 to 19 May 2010, when his employment was terminated by MSB, the respondent was employed as a debt recovery lawyer by MSB Lawyers in Melbourne ... . This fact was omitted from the résumé.
   10. On 1 August 2010, the day before he began work at the OPP, the respondent completed an OPP 'Personal Details Form'. This form asked: 'Have you been charged or convicted of an offence?' The respondent circled the answer 'No' ... . This answer was false.
   11. On 2 February 2009 the Magistrates' Court of Victoria at Melbourne made an order that the respondent be discharged following his satisfactory completion of a diversion program with respect to a charge that had been brought against the respondent on the information of the Criminal Investigation Unit - South Melbourne ... . The offence with which the respondent had been charged was of using a carriage service to menace contrary to 474.17 of the Criminal Code.
3. The conduct the subject of the charge referred to in paragraph 11 of the Agreement as to Facts was sending threatening text messages to a person at one of his former places of employment.
4. The three charges brought against Mr Spicehandler under the Legal Profession Act 2004 (Act) are as follows:

Misconduct at common law within the meaning of professional misconduct in section 4.4.3(1) of the Act, as the Respondent's conduct in submitting the resume to the OPP which contained a false and incomplete employment history and in submitting a Personal Details Form to the OPP which contained a false denial that the Respondent had been charged with an offence would reasonably be regarded as disgraceful and dishonorable by professional colleagues of good repute and competency.

Further, or in the alternative to Charge 1, professional misconduct within the meaning of section 4.4.3(1)(b) of the Act for engaging in conduct that justifies a finding that the Respondent is not a fit and proper person to engage in legal practice in that the Respondent submitted the résumé to the OPP which contained a false and incomplete employment history and submitted a Personal Details Form to the OPP which contained a false denial that the Respondent had been charged with an offence.

Professional misconduct within the meaning of section 4.4.4(a) of the Act, in that, contrary to section 2.2.2 of the Act, the Respondent engaged in legal practice in circumstances where his practicing certificate was not valid.

1. The LSC was represented by Mr Snow of counsel. Mr Spicehandler appeared on his own behalf. He confirmed he had consciously decided to do so, despite the Tribunal having suggested that it might well be in his interests to obtain legal representation (at the directions hearing on 19 March 2012) and the LSC having done so as well (in communications after the directions hearing and prior to the final hearing). Mr Spicehandler indicated he wished to make submissions in mitigation, and not to give evidence himself. He also sought a non publication order in relation to the proceedings, and the Register of disciplinary action. I deal with this below.

1. Mr Snow submitted that the admitted facts demonstrated dishonest conduct consistent with the analysis of Peters v The Queen[1]. He said this test had been adopted in disciplinary proceedings in Legal Services Commissioner v Michael Richard Brereton[2]. He said the dishonesty entailed by providing the false information to the OPP is clearly inconsistent with the lawyer's fundamental duty of honesty. He said the test for the misconduct at common law - conduct which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency[3] - was clearly satisfied.
2. He further submitted that the same conduct was sufficient to justify a finding that the respondent is not a fit and proper person to engage in legal practice. This is the further or alternative basis on which professional misconduct is defined in the Act (under section 4.4.3(b)).
3. In relation to charge 3, Mr Spicehandler had not held a practicing certificate since June 2008, and so it followed that he had contravened section 2.2.2 of the Act, which provides that a person must not engage in legal practice unless a person is an Australian legal practitioner. That latter term is defined as an Australian lawyer who holds a current local practicing certificate. Practising without a practising certificate is an offence punishable by imprisonment for two years.
4. The LSC sought the following by way of penalty:
   • A reprimand
   • An order that Mr Spicehandler not be able to apply for a practising certificate before the end of five years (i.e. not before 27 April 2017)
   • An order, pursuant to section 4.4.19(n) of the Act - that in the event the practitioner applies for a local practising certificate on or after 27 April 2017, the practitioner will forward to the Legal Services Board or the Legal Services Commissioner an application in the prescribed form accompanied by a medical report from a treating doctor, or at the Board or Commissioner's discretion, a report from a practising psychologist or psychiatrist confirming that the practitioner is a fit and proper person to engage in legal practice.

1. The LSC submitted that a lengthy period without a practising certificate was appropriate therefore, given his conduct and character. The LSC also sought an order for costs of $5,935.90.

1. In his submission, Mr Spicehandler initially described his experience at the firms of Coopers Lawyers in Melbourne, Normal Czarny and Associates in Elwood and Kenworthy Bruce lawyers in Malvern, referred to in paragraphs 5, 6 and 7 respectively of the Agreement as to Facts.
2. In each case, the experience was completely unsatisfactory from his point of view as a employee solicitor. The work he did was mainly in the area of debt recovery. In relation to two of the firms in particular, from which he was dismissed, he said he was not given proper supervision. He said they were "nasty" places to work.
3. The statement of paragraph 8 of the statement of the Agreement as to Facts that he practised as a sole practitioner at Dolgon Frost & Associates in Caulfield from May 2009 until June 2009 was derived from the Legal Service Board's records of "Practitioner Details". However, Mr Spicehandler indicated "he never ended up working there". I have not had regard to the matters in paragraph 8.
4. In relation to Mr Spicehandler's experience as an employee of MSB Lawyers in Melbourne from 13 November 2009 to 29 May 2010, again, he was highly critical of the firm. Again, he indicated he received little supervision (he said the principal was interstate) and the quality of work he did was very poor from a professional perspective. He also raised doubt as to whether he was in fact working as a lawyer. He said the kind of work he did there, which was debt recovery work, was just that of a paralegal.
5. As the Agreement as to Facts demonstrates, Mr Spicehandler did not refer in the resume he submitted to the OPP to any of the positions which he in fact held during the period June 2006 to June 2009, listed at paragraphs 5-9 of the Agreement as to Facts. Instead, Mr Spicehandler fabricated an entry in his resume that he had worked for "Kings Logistics" since 2004, and was still working there at the time he applied to the OPP in mid 2010. He described his position as "Solicitor-Credit Manager-Finance Negotiator". He then listed as "Achievements" a long list of legal tasks relating to debt recovery, insolvency and bankruptcy work including:

• Appearance work at VCAT, Supreme Court and Federal Magistrate's Court at Melbourne seeking sequestration orders;
• Conducting commercial litigation in actions in multiple Australian jurisdictions;
• Liaising with hundreds of clients, briefing barristers, drafting affidavits, writs and other court documentation;
• Providing legal advice in the area of bankruptcy and insolvency.

1. As stated, this was a complete fabrication. Mr Spicehandler never worked for "Kings Logistics" at all.
2. As to why he created a false resume by omitting reference to the places he had worked at, and instead inventing a position as a company that he had not worked at, Mr Spicehandler said he was very keen to obtain employment at the OPP. He wanted to start with a fresh slate.
3. He said he was embarrassed and recognised he should not have done it and it had been a lesson to him.
4. In relation to his false denial to the OPP that he had been charged with an offence, Mr Spicehandler said he misinterpreted the form. He said he had not intended to mislead. He said it was one of many forms on the first day at the OPP.[4] He criticised the layout of the form.
5. Mr Spicehandler's employment at MSB in 2009/10 was relied upon by the LSC in relation to charge 3, engaging in legal practice without holding a valid practicing certificate. Mr Spicehandler held a practicing certificate from 16 June 2006 to 30 June 2008. He had made some subsequent unsuccessful attempts to obtain a practicing certificate. In relation to charge 3, Mr Spicehandler's explanation was that he was trying to advance his legal career.

1. Mr Spicehandler's conduct is completely inconsistent with the legal practitioner's duty of honesty and candour. As Gillard J said in Frugtniet v Board of Examiniers:

There must be no hesitation on the part of any member of the legal profession when confronted with a situation which would involve dishonesty to immediately desist from any dishonest conduct.[5]

1. The omissions and fabrications on the resume he submitted to the OPP were blatant, breathtaking lies.
2. Similarly, practising without a valid practising certificate is dishonest, and deprives the public of the protection that comes with registration. In Mr Spicehandler's submissions he suggested he was not practising as a solicitor at MSB. He suggested he was working as a paralegal instead.
3. I reject that suggestion for the following reasons. Mr Spicehandler signed the Agreement as to Facts, which states he worked there as a debt recovery lawyer. The director of MSB lawyers stated that Mr Spicehandler worked there as a "debt recovery lawyer" from 30 November 2009 to 19 May 2010, when he was dismissed. The tasks Mr Spicehandler described carrying out at MSB lawyers are tasks required to be carried out by lawyers, namely conducting proceedings on behalf of clients in the courts to recover debts.
4. Nor do I accept Mr Spicehandler's explanation that he misinterpreted the Personal Details Form he completed at the OPP. The first question on the form is:

Have you been charged or convicted of an offence? (Yes/No)

1. It is inherently probable that he would "misinterpret" such a question. His evidence was that he was very keen to obtain a position at the OPP, and that he was lucky to achieve it, and that he had been prepared to prepare a false resume in order to achieve that. The fact his false statement on the personal details form is not in the form of a statutory declaration or an affidavit makes little difference in the circumstances.
2. There can be no debate that Mr Spicehandler's untruthfulness in relation to his resume and the non-disclosure of being charged with an offence would be reasonably regarded as disgraceful and dishonourable by professional colleagues of good repute and competency. It is trite that lawyers must be honest above all else. His conduct in this regard constitutes professional misconduct at common law.
3. Charge 2 relates to the same conduct, and is made out as well. This charge was put "further, or in the alternative to Charge 1". It relates to a different aspect of professional misconduct as defined in section 4.4.3 of the Act. It focuses on whether a person is fit and proper to engage in legal practice. The circumstances of this case demonstrate that Mr Spicehandler is not a fit and proper person to engage in legal practice.
4. In relation to charge 3, the provision of the Act which has been breached is a fundamental one, namely requiring a lawyer to hold a practising certificate in order to practise as a lawyer (s 2.2.2). I find Mr Spicehandler's conduct in acting as a lawyer at MSB constitutes professional misconduct under s 4.4.4(a).
5. Mr Spicehandler showed very little insight into the nature of his wrongdoing or remorse. Indeed, his whole conduct is attended by an air of unreality and fantasy. He did say that he was sorry that he had falsified his resume. However, I regard that mainly as an expression of regret that things have gone badly for him.
6. It was clear from his submissions that he does not understand the significance of his wrongdoing. He painted himself as a victim. He suggested he was "compelled" to tell the lies he did in order to obtain the position at the OPP, given the bad experiences he had had in other firms. He does not understand that his breaches of trust undermine the very foundations of what is required to be a legal practitioner. He believes that his personal interest in obtaining a position outweighs the requirement of honesty. The same motivations were at play in relation to his practising without a practicing certificate in 2009/10.
7. I agree with the LSC submission that the circumstances call for a significant period of prohibition of legal practice to be imposed. Nothing which emerged at the hearing suggested any mitigating circumstances.
8. Ms Spicehandler has engaged in quite blatant dishonesty, he shows little insight into the implications of his wrongdoing, or remorse, and there are no mitigating circumstances. Specific and general deterrence are both major factors here. Mr Spicehandler should be reprimanded and prevented from practising for five years.
9. I do not believe, however, that there is a proper basis for imposing the conditions sought by the LSC requiring a medical report confirming he is a fit and proper person to engage in legal practice be obtained before he again applies for a practising certificate. The conclusion that Mr Spicerhandler is not a fit and proper person to practise is based on his dishonesty, not on any grounds relating to health.
10. I received no evidence or submissions relating to Mr Spicehandler's health. Whilst it is true that his lack of insight into how morally reprehensible his conduct was, was unusual, I have no basis from the evidence, nor from the submissions or from Mr Spicehandler's conduct or demeanour during the hearing, to conclude that he suffers from any kind of mental illness.
11. I do not believe it would be appropriate for me now to require an expert opinion be obtained from a treating doctor, psychologist or psychiatrist in five years time, in effect, as to whether Mr Spicehandler is a fit and proper person to practise.
12. In considering any application for a practising certificate made by Mr Spicehandler in five years time, the LSC (or its successor) will be able to consider, in the light of this decision, and his subsequent conduct, whether he should be granted a practising certificate, and on what basis.
13. Turning to costs, no exceptional circumstances exist pursuant to section 46B of schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 (VCAT Act) justifying a departure from the general position that the respondent must pay the LSC's legal costs of this hearing. Accordingly, I will order that those costs, in the sum of $5,935.90 be paid by Mr Spicehandler to the LSC.

Request for non publication of the outcome of this hearing

for non-publication in register of disciplinary action and not to be otherwise published.

It is my preference that the decision and outcome made at this Tribunal remain off the public record due to reasons of personal privacy.

1. I have taken this to be an application under both s 101(3) of the VCAT Act and s 4.4.31 of the Act for the suppression of his name and/or the outcome of this case and reasons for decision.
2. It was clear from Mr Spicehandler's submissions that the reason he sought this order was to avoid the embarrassment and odium to himself that would follow from publication of the outcome of this case, and the reasons for decision. The LSC opposed this request.
3. Nothing was put to me which would justify any departure from the general practice, which is that VCAT's proceedings are conducted in open hearing, and its orders and reasons for decision are made publicly available.
4. There are powerful policy considerations in terms of the principle of open justice supporting this procedure. Also, the publication of the name of offending practitioners is an important component of the element of deterrence, which serves to protect the public.
5. Indeed, the circumstances of this particular case, involving blatant untruthfulness and attempts to avoid disclosure of Mr Spicehandler's true activities, suggest it is even more important for the outcome and decision to be made publicly available.

[1] [1998] HCA 7; (1998) 192 CLR 493

[2] [2011] VSCA 241 at [74]

[3] Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763. This standard has been adopted in Victoria in Re A Solicitor (1960) VR617 at 620 per Dean J

[4] He said that he in fact completed the form on 2 August 2010, not 1 August, as stated in paragraph 10 of the Agreement as to Facts.

[5] [2005] VSC 352 at [27]