Plaintiff v Defendant

1 On 27 May 2013, the Victorian Civil and Administrative Tribunal ("VCAT") delivered judgment ("the Primary Judgment")[1] and made orders, which included a recommendation to this court that the name of the defendant ("PFM")[2] be removed from the local roll of practitioners. The plaintiff, the Legal Services Commissioner ("the Commissioner"), now applies to the court to have PFM's name removed, under the inherent jurisdiction of the court.

2 PFM was found guilty of a number of charges under the Legal Profession Act 2004 (Vic) ("the Act") concerning "professional misconduct"[3].

3 At the commencement of the hearing before me, counsel who appeared on behalf of PFM indicated that the application for removal was opposed. During the course of the hearing, and after evidence had been given by PFM's treating psychiatrist, the court was informed that PFM consented to his removal from the roll of practitioners. Notwithstanding the matter then proceeded by consent, it is still necessary for the court to determine whether the recommendation of VCAT ought to be acted upon.

4 The extensive background in relation to this matter is set out in the Primary Judgment. In a careful and thorough judgment, the Senior Member set out the relevant circumstances in detail. It is unnecessary for me to do so again. It is sufficient, given this matter is now proceeding by way of consent, to provide the following overview of the relevant history.[4]

5 The charges essentially arise from the fact that PFM chose to forge his academic transcript to materially alter his results and to use that transcript in employment applications in the period between 2006 and 2009. This was done to enhance significantly his prospects of employment. Two of the applications made during that time were successful.

6 This unfortunate conduct was compounded by further conduct of PFM after investigations commenced. During the course of those investigations, PFM made false and misleading statements to the Commissioner and the Law Institute of Victoria ("the Law Institute"). Such conduct included making false statutory declarations and false statements.

7 The hearing before VCAT was originally conducted on 12 October 2012. The hearing was a plea. The case was reopened subsequently to allow the Commissioner to put on further evidence as to the conduct of PFM.[5] Further hearings were conducted on 7 December 2012, 22 February 2013, and 29 April 2013.

8 The events giving rise to the hearing before VCAT were as follows:

(1) Upon completion of his university degrees in 2003 and a period of travel, PFM completed his articles and spent a period as a solicitor at a law firm ("Law Firm 1").

(2) The charges concerned PFM's conduct in securing or seeking to secure employment as a solicitor with:

(a) a law firm at which he worked between 2006 and 2008 ("Law Firm 2");

(b) a law firm to which he applied while still employed by Law Firm 2 ("Law Firm 3");

(c) a company seeking to employ a solicitor ("Legal Employer 4");

(d) another company ("Legal Employer 5"), to which PFM made a successful application and where he commenced work as a solicitor in 2009.

(3) In applying to Law Firm 2, PFM forged the transcript of his academic results and increased the majority of the results of both his law and commerce degree to a significant extent.[6]

(4) In 2008, PFM applied to Law Firm 3, again falsifying his academic transcript and also containing a curriculum vitae which included like false representations. His application to Law Firm 3 was not pursued after Law Firm 3 became suspicious and requested the original transcript of his academic results.

(5) Law Firm 3 informed Law Firm 2 that it had received a false academic transcript from PFM. Subsequently, PFM resigned from Law Firm 2.

(6) In 2009, PFM asked a former colleague of Law Firm 2 to act as his referee. In so doing, PFM falsely stated to his former colleague that he remained employed at Law Firm 2.

(7) In 2009, in seeking further employment, PFM told a recruitment agency that he was still employed at Law Firm 2. PFM again provided a curriculum vitae with false representations as to his academic results. Upon Legal Employer 4 learning of false representations made by PFM, it withdrew an offer of employment that it had previously made.

(8) Also in 2009, PFM instructed another recruitment agency, yet again providing false academic results as part of his curriculum vitae. PFM also, again, represented falsely that he was still employed at Law Firm 2. Notwithstanding that Legal Employer 5 was advised that PFM was no longer an employee of Law Firm 2, it remained under the impression the falsely represented academic results were accurate. It offered PFM employment and he started working with Legal Employer 5 in 2009.

9 Law Firm 2 complained to the Commissioner in April 2009. This was followed by an investigation for an extensive period of time, albeit that it was intermittent. As part of the investigation process, PFM confirmed certain matters and provided statutory declarations to verify these matters. They included the following:

(1) In a statutory declaration made 14 July 2009, PFM admitted he was desperate to leave Law Firm 1 and to work for Law Firm 2, and made a conscious decision to misrepresent his academic results in order to achieve that outcome. PFM stated that he had been subjected to harassment at Law Firm 1 and so his judgment was clouded at the time. PFM expressed remorse and apologised to the Law Institute, the Commissioner and Law Firm 2. Amongst other things, PFM gave an assurance that the experience had ensured that he would act with honesty and candour in the future in his practice as a lawyer.

(2) In a statutory declaration made 23 September 2009, PFM falsely stated that the curriculum vitae used and provided to Legal Employer 5 had not contained false information concerning his academic results. The falsity of this statutory declaration was not discovered by the Commissioner until May 2011. Subsequently, 21 months after providing the statutory declaration, PFM admitted this statutory declaration was false.

(3) A statutory declaration made 8 December 2010 verified as true and correct an attached letter authored by PFM of the same date. In that letter, amongst other things, PFM stated he was unable to provide any response to the Commissioner for various reasons that were held by the Senior Member to be untrue, or at least misleading.[7] Further, the letter dated 8 December 2010 attached a curriculum vitae said to have been provided to Legal Employer 5 for a more senior position with that employer. This curriculum vitae did not contain false representations as to his academic results. It was a different curriculum vitae to that which had been provided to Legal Employer 5, which, as noted above,[8] did contain representations of false academic results.

10 In summary, in relation to the different versions of the curriculum vitae, there was a version provided with a statutory declaration of 23 September 2009; a version provided with a statutory declaration of 8 December 2010 relating to his letter, and a version containing the false representations as to his academic results. It is only the last of the 3 versions that was actually used by PFM in applying for employment as set out above.

11 In addition, PFM falsely denied specific allegations when put to him in 2010.[9]

12 As stated by the Senior Member,[10] the "most significant and clear cut aspects... where PFM misled the regulators during the investigation", were:

(1) The false statements in his statutory declaration of 23 September 2009.

(2) His purported inability to respond to the Commissioner's request for information about his application to Law Firm 3 in his letter of 8 December 2010 (verified by his statutory declaration of the same date) when in fact, he had recently obtained his application material from the relevant recruitment agency.

(3) His provision of a second incorrect version of his curriculum vitae provided to Legal Employer 5 in the same letter of 8 December 2010.

13 Ultimately, by letter dated 4 July 2011, PFM made admissions in relation to a number of material matters. Further, in late 2011, he ceased to practice as a lawyer and surrendered his practising certificate.

14 In addition to the matters set out above, for the period from mid 2009 to mid 2011, PFM made statements of regret and contrition.

15 The first such statement was a letter dated 15 June 2009, which included a statement to the effect that he had done a great deal of soul searching in relation to his actions. He also stated that, as a person of "strong will and a proud disposition", the experience had been very difficult but nonetheless a therapeutic experience and he could "honestly say [he had] grown because of it".

16 Secondly, in a letter dated 4 June 2010, PFM again referred to a great deal of soul searching and regret. He also again suggested he had grown from the experience.

17 Thirdly, in a letter dated 4 July 2011, PFM confirmed that "the practitioner who is now writing this letter is a vastly different person compared to the one at the start of this complaint".[11]

18 However, as found by VCAT,[12] each of the statements contained in these letters were followed by further acts seeking to cover up the extent of PFM's wrongdoing, or any information adverse to him.

19 PFM, who was represented by senior counsel before VCAT, pleaded guilty to 6 charges made against him. Those charges were as follows:[13]

(1) 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 [PFM] was not a fit and proper person to engage in legal practice because:

(a) he provided [Recruitment Agency 1] for the purpose of making a job [application] to [Law Firm 2] with forged academic transcript knowing that it was false and a curriculum vitae which made the marks representations[14] knowing that it was false; and

(b) by making an application for employment with [Law Firm 2] which included providing the false academic transcript and stating the marks representations, he dishonestly obtained employment with [Recruitment Agency 1] and thereby a financial advantage by a deception.

(2) Charge 3 [made] the same allegations, but in relation to PFM's application through Recruitment Agency 2 for a position at Law Firm 3.

(3) Charge 6 [made] the equivalent allegations in relation to the applications through Recruitment Agency 1 for a position at Legal Employer 4. The difference [was] that the CV not only contained the marks representations but also the false statement that PFM was a current employee of Law Firm 2. Also, charge 6 [did] not allege that the forged transcript was provided to Legal Employer 4, only the CV containing the marks representations.

(4) Charge 8 contain[ed] the equivalent allegations in relation to PFM's application through Recruitment Agency 3 for a position of Legal Employer 5. Again, it alleg[ed] that a CV containing the marks representations and a statement that PFM was a current employee of Law Firm 2 was provided to Recruitment Agency 3, and in turn, passed onto Legal Employer 5. That is, like charge 6, charge 8 [did] not allege provision of the forged transcript itself.

(5) Charge 5:

Professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in asking [his former colleague at Law Firm 2] to act as his referee where he falsely stated to [that former colleague] that he remained employed by [Law Firm 2] and, further, he asked [his former colleague] to state, in acting as his referee, that he remained employed by [Law Firm 2] knowing this was false.

(6) Charge 10:

Professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, for engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable by dishonestly making during the investigation a statutory declaration on 23 September 2009 which was false and which he knew was false.

20 Having referred to a number of authorities in which it is made plain that the character of a legal practitioner is a fundamental consideration in determining whether or not a practitioner can be considered a fit and proper person to practise in the legal profession, the Senior Member said as follows:[15]

... the course of conduct which PFM has engaged in runs adversely to him. His reliance on the forged transcript and misrepresentations as to the marks he achieved continued over a period of years. They comprised systematic dishonesty, rather than a momentary or aberrant lapse.

The aim of the dishonest conduct was for PFM to obtain a personal benefit. He used a forged academic transcript and made the marks representations in order to obtain employment as a solicitor (and of course, remuneration) by deception.

PFM's conduct after the commencement of the investigation reinforces the conclusion that his character is such that he is currently not a fit and proper person, and that it is likely he is unfit to practise permanently, or at least, for the indefinite future, because he is not a person of honesty.

22 The Senior Member also noted that although there was no issue about PFM's knowledge and ability to perform as a solicitor when dealing with clients and colleagues, such matters were quite separate to considerations of honesty, which are fundamental to whether or not a person is fit and proper to continue in practice.[17]

23 Having made these findings, the following sanctions were imposed:

(1) PFM was prevented from applying for a practising certificate for a period of 7 years from the date of the order, namely 27 May 2013.[18]

(2) If PFM was able to apply for a local practising certificate on or after 27 May 2020, he was required to provide with his application to the Legal Services Board, a medical report from his then treating psychologist or psychiatrist, or, if he did not have a treating psychologist or psychiatrist, from a medico-legal psychologist or psychiatrist, advising on his mental health and his capacity to engage in legal practice.[19]

(3) Except with the approval of the Legal Services Board, PFM was prohibited from carrying out any of the functions of a "lay associate", for a "legal practitioner"[20] or "law practice", as those terms are defined in the Act.[21]

PFM was also ordered to pay the costs of the Commissioner, fixed in the sum of $25,000.[22] There was no appeal from the Primary Judgment.

24 As will be apparent from the second sanction set out above, there were serious issues in relation to the mental wellbeing of PFM. These issues remain. PFM suffers from severe depression. Again, extensive details in relation to this are set out in the Primary Judgment and it is unnecessary to fully recount all matters considered by the Senior Member.[23] However, the mental illness of PFM is relevant for present purposes; in particular, his present state of health and that for the foreseeable future is relevant to the question of whether he is a fit and proper person.

25 PFM's treating psychiatrist gave evidence that removal of PFM from the roll of practitioners and any publication of PFM's name in relation to this proceeding or the proceeding before VCAT could have severe consequences for his mental health.

26 As to the latter matter, I propose to say nothing further about it as that will be the subject of a hearing before me on 25 July 2014. As to the former matter, ultimately little, if anything, turned on this. It is plain that the psychiatrist, understandably,[24] believed that the removal of PFM from the roll of practitioners would create a further obstacle in relation to PFM being able to practise as a legal practitioner after 27 May 2020. However, it was common ground between the parties that no further obstacle would be created in this regard. In short, the court was informed that, in the event PFM made any applications in the future, precisely the same matters would be considered in determining whether or not PFM should be able to obtain a practising certificate as would be considered in determining whether or not his name should be allowed to be reinstated on the roll of practitioners.

27 Under cross-examination, the treating psychiatrist accepted that, if this was explained to PFM, then PFM "may be able to cope" with removal from the roll of practitioners. In short, the psychiatrist could not be certain such an event would have the adverse causal effect on PFM's mental health that he had previously anticipated.

28 Significantly, the treating psychiatrist also gave evidence that PFM's current mental state was such that he would not be a fit or proper person to conduct himself as a legal practitioner. Further, the psychiatrist accepted that the present state of PFM's mental health was unlikely to improve "for as far as the eye can see". In those circumstances, the psychiatrist ultimately accepted that, by reason of the state of the mental health of PFM alone, he was not a fit or proper person to remain on the roll of practitioners and would not be a fit or proper person for the foreseeable future.

29 Finally, on the question of the extent to which the mental health of PFM was relevant to the conduct the subject of the charges, the Senior Member made the following finding:[25]

I find that in terms of the Verdins[26] principle, PFM's mental health status did not have any effect relevant to the determination of penalty in relation to Charges 1, 3, 5, 6 and 8. In relation to Charge 10, any effect is only marginal at best.

30 Based on the relevant authorities, the following may be stated:

(1) The term "fit and proper person" is used to give "the widest scope for judgment and indeed for rejection".[27]

(2) "Fit" with respect to an office involves 3 things: honesty, knowledge and ability.[28]

(3) To be a fit and proper lawyer, a person must have qualities of character necessary to discharge the grave responsibilities of a legal practitioner.[29]

(4) A legal practitioner assumes duties to the courts, fellow practitioners and clients; at the heart of those duties is a commitment to honesty and, when required, open candour and frankness irrespective of self-interest or embarrassment.[30]

(5) The entire administration of justice in a community governed by the rule of law depends on honest working legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour.[31]

(6) Any attempt by a lawyer to mislead her or his professional body must be considered an extremely serious breach of duty.[32]

(7) Lack of insight into wrongdoing committed by a legal practitioner is a serious matter to take into account in determining the appropriateness and nature of any sanction.[33]

(8) If a practitioner has been prevented from applying for a practising certificate for a significant period of time because of wrongful conduct, that fact alone might justify the practitioner's name being removed from the roll of practitioners.[34]

(9) If it is brought to the court's attention that a legal practitioner may not be a fit and proper person to practice, the court has a positive duty to reconsider the suitability of that practitioner's name appearing on the roll of practitioners.[35]

G. PFM must be removed from the roll of practitioners

31 It is abundantly clear that, by reason of the nature and severity of the charges proved, the length of time over which the offending conduct occurred, the lack of genuine remorse (at least, for an extended period of time) and the current mental state of PFM, it is appropriate that his name be removed from the roll of practitioners.

32 In making this decision, I have taken into account the possible deleterious effect such a course may have on PFM's wellbeing. Based on the evidence given by his treating psychiatrist,[36] it seems likely that any adverse effect ought to be able to be kept to a minimum. In any event, given the length of time for which PFM is prevented from obtaining a practising certificate and the seriousness of the conduct the subject of the charges, it would be entirely inappropriate not to remove PFM from the roll of practitioners.

33 The order of the court will be that the name of the solicitor be removed from the roll of practitioners kept by the court.

[1] [2013] VCAT 827 (Senior Member Smithers).

[2] PFM is a pseudonym. The proceeding is presently the subject of an order preventing publication of the name of PFM or any other publication to the extent that it might tend to identify PFM. This order was made by consent of the parties at an interlocutory hearing and prior to the introduction of the Open Courts Act 2013 (Vic). Whether the confidentiality regime put in place by this order ought to remain will be the subject of a hearing on 25 July 2014.

[3] Professional misconduct is defined for the purposes of the Act in s 4.4.3(1) as follows:

For the purposes of this Act -

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; and

(b) conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

See also ss 4.4.3(2), 4.4.4, 4.4.6.

[4] Evidence before the court also related to PFM's personal details from his childhood onwards. I have read the matters relied upon. It is unnecessary to set such details out in the judgment.

[5] PFM was involved in a web-based business at the time, which was not disclosed by PFM to VCAT (or his counsel). This evidence was relevant to his ability to meet any fine or costs award, and also relevant to evidence as to his mental state.

[14] In the Primary Judgment, [8], "the marks representations" are defined as "statements in his curriculum vitae which contained general references to the exaggerated results in the forged academic transcript".

[17] At [134]. See also par 30 below.

[20] The definition in the Act is "Australian legal practitioner": s 1.2.3(a).

[22] The evidence before the court was that PFM is paying these costs in accordance with an instalment plan as proposed by the Commissioner.

[23] At [60]-[64], [71]-[84], [99]-[117].

[24] His evidence was that the same understanding was also held by PFM.

[26] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA), a case concerned with the extent to which impaired mental functioning, whether temporary or permanent, is relevant to sentencing.

[27] Hughes and Vale Pty Ltd v The State of New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, 156.7 (Dixon CJ, McTiernan and Webb JJ). See also Legal Services Board v McGrath (No 2) (2010) 29 VR 325, 329-330 [12]-[13] (Warren CJ).

[29] Legal Services Commissioner v Nguyen [2013] VSC 443, [25] (Macaulay J); Frugtniet v Board of Examiners [2005] VSC 332, [29] (Gillard J); Frugtniet v Board of Examiners [2002] VSC 140, [10] (Pagone J).

[32] Law Society of the Australian Capital Territory v Burns (2012) 6 ACTLR 282, 294-295 [42], [44] (Refshauge, Penfold and Burns JJ).

[33] Legal Services Commissioner v Nguyen [2013] VSC 443, [37] (Macaulay J); Hannebery v Legal Ombudsman [1998] VSCA 142, [22] (Tadgell JA, with whom Phillips and Chernov JJA agreed).

[34] Law Institute of Victoria v Gough (Supreme Court of Victoria, unreported, Hansen J, 10 February 1995), 23.5.

[35] Legal Services Commissioner v Rushford [2012] VSC 632 [15] (Bell J); Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609, 612.3 (Griffith CJ), 619.7 (O'Connor J).