The Victorian Bar Incorporated v Himmelhoch [1999] VSC 222

5. The relief sought pursuant to the reference is:

"That the court deal with the reference from the Legal Profession Tribunal and determine whether the defendant's name should be struck off the roll of practitioners" and that the defendant pay the costs of the proceeding".

9. The procedure followed is prescribed by Rule 14 of Chapter II of the rules of court in civil proceedings.

12. The defendant was admitted to legal practice by the Supreme Court on 2 March 1981 pursuant to the Legal Profession Practice Act 1958. He has until recently held a Practising Certificate issued under Division 4 of Part 2 of the Act entitling him to engage in legal practice in Victoria. On 18 November 1982 the defendant signed the Roll of Counsel and has practised solely as a barrister since 1982.

15. The plaintiff is an accredited recognised professional association (RPA) for the purposes of the Act and has power to investigate a complaint of misconduct against a legal practitioner. It must bring a charge in the Tribunal against the legal practitioner if satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of misconduct (s.151(2)).

18. In February 1998 the Ethics Committee of the Victorian Bar began to investigate a complaint of misconduct against the defendant, made in writing by Mr Lord. After investigation of the complaint in March 1998 the Victorian Bar brought a charge against the defendant pursuant to s.151(2) of the Act. Relevantly, the defendant was charged with misconduct within the meaning of s.137(b) of the Act in that he stalked the said Lord or alternatively subjected the said Lord to harassment between 20 December 1997 and 19 February 1998 by demanding in writing that the said Lord repay a fictitious debt.

21. On 2 June 1998 the charge concerning Mr Lord came on for hearing before the Full Tribunal of the Legal Profession Tribunal and the defendant pleaded guilty. The Full Tribunal found the defendant guilty and counsel for the defendant made a plea on his behalf. The defendant admitted that the alleged debt was a fictitious debt.

24. On 2 June the Full Tribunal ordered that the defendant's practising certificate be suspended until 31 December 1998, that he must not apply for a practising certificate under the Act until after 31 December 1998, and that he surrender his practising certificate within 14 days to the Victorian Bar. The Tribunal further ordered that the defendant not be permitted to accept any brief until 1 January 2000 except from a legal practitioner. The defendant was ordered to pay costs of the proceeding fixed at $17,5000 to the Victorian Bar.

27. In July1998, Mr Lord informed the Ethics Committee that the defendant had again demanded from him payment of the debt which the defendant had admitted during the Tribunal hearing in June was a fictitious debt. The Ethics Committee conducted a further investigation at the conclusion of which it determined there was a reasonable likelihood that the Legal Profession Tribunal would find the defendant guilty of misconduct or unsatisfactory conduct in reel to the demand made by him to Mr Lord. The Victorian Bar brought a second set of charges dated 20 October 1998 against the defendant. Relevantly, Charge 7 alleged that between 20 December 1997 and 22 February 1998 the defendant was guilty of misconduct in sending a written demand to Lord for payment of an alleged debt of $6,500, the demand being made in respect of a fictitious debt.

30. On 23 November 1998 the Full Tribunal of the Legal Profession Tribunal heard the second set of charges. Charges 1 to 6 were either withdrawn or dismissed by the Tribunal. The defendant pleaded guilty to Charge 7 after counsel for the defendant called a psychiatrist to satisfy the Tribunal that the defendant was fit to plead to the charge. The defendant had been diagnosed as significantly depressed over the last three months with sleep and appetite disturbance, marked anxiety and disabling inertia.

33. The Tribunal being satisfied as to the defendant's fitness to plead proceeded to hear a plea. On 27 November 1998 the Tribunal convicted the defendant and ordered that the defendant's practising certificate be cancelled and that he must not apply for any practising certificate under the Act until 1 July 1999.

36. Pursuant to s.160(2)(b) of the Act the Tribunal referred the defendant to the Supreme Court for the court to determine whether the defendant's name should be struck off the roll of practitioners. The Tribunal did not make a recommendation to the Supreme Court pursuant to s.160(1)(c)(iv) of the Act.

39. The Tribunal further ordered the defendant to pay $5,000 to the Victorian Bar Inc as its costs of the proceeding.

42. In the Tribunal's reasons for decision the Tribunal referred to a number of mitigating factors relied upon by the defendant in the two proceedings. The first concerned a condition of Adult Attention Deficit Disorder in the defendant exacerbated by an anxiety and depressive disorder. The defendant was given appropriate psychiatric treatment but had not responded well and, indeed, his condition deteriorated between the first Tribunal hearing and the second. The second concerned the dire financial consequences following the orders made by the Tribunal. The third concerned remorse shown by the defendant in proffering an apology in writing to Mr Lord.

45. The Tribunal took a serious view of the defendant's conduct and the uncertainty of his future psychiatric health before imposing the penalty it did.

48. The Tribunal was required by s.160(2)(b) to refer the defendant to this court for the court to determine whether the defendant's name should be struck off the roll of practitioners having made an order cancelling the defendant's practising certificate.

51. The Full Tribunal is empowered by s.160(1)(c)(iv) to make a recommendation to the Supreme Court that the practitioner's name be struck off the roll of practitioners if the Tribunal finds the legal practitioner guilty of misconduct. I infer that the Tribunal declined to make a recommendation either, because it was not satisfied that the seriousness of the defendant's conduct required it to do so or, because of the mitigating factors to which reference has been made or, both.

54. The Act confers upon the Supreme Court jurisdiction to admit a person to legal practice in Victoria (s.6). A person admitted to legal practice becomes a barrister and solicitor of the Supreme Court and an officer of the Supreme Court until death or, until their name is removed from the Register of Legal Practitioners.

57. When a person is admitted to legal practice in Victoria the Court of Appeal makes an order that the person's name be placed on the Register and the name is not removed from the Register unless a judge of the court makes an order that the name be struck off the Register.

60. The most common ground for striking a name off the Register is that the person has been guilty of such grave professional misconduct as shows him not to be a fit and proper person to practice as a barrister and solicitor of the Supreme Court. Clyne v. The New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186. Personal misconduct as distinct from professional misconduct may be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practice as a barrister and solicitor of the court. Ziems v. The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279. Mental incapacity may be a ground for disbarring because it may show that the person labouring under a defect of reason is not a fit and proper person to practice as a barrister and solicitor of the court. Re B (a solicitor) [1986] VicRp 69; (1986) VR 695 at 699-702.

63. Although the statutory power of the court to strike a practitioner off the roll recognised by s.33 of the Legal Profession Practice Act 1958 has been repealed by the Act, the power to strike off is an incident of the power to admit, and within the inherent power of the court (Re B, supra). It is arguable that s.172 of the Act preserves the inherent power of the Supreme Court to strike a practitioner off the roll as a disciplinary measure. The Act introduced a regulatory regime through independent tribunals which hear charges of a disciplinary nature and may impose penalties for unsatisfactory conduct (s.159) and penalties for misconduct (s.160).

66. Should the Full Tribunal make a recommendation to the Supreme Court that the practitioner's name be struck off the roll of practitioners the Supreme Court must implement the recommendation unless satisfied that the Tribunal made an error of law in finding the practitioner guilty of misconduct (s.160(a)(c)(iv) and s.160(3)).

69. No such recommendation was made by the Tribunal in the case of the defendant. The referral of the defendant to the Supreme Court was purely formal, to comply with s.160(2)(b).

72. Mr O'Bryan of counsel who appeared for the plaintiff stated at the outset that the plaintiff was not inviting the court to strike the defendant's name from the roll of practitioners. I am of the opinion that the circumstances of the charge of misconduct to which the defendant pleaded guilty before the Tribunal on 24 November 1998 do not show sufficiently grave personal misconduct to warrant removal of the defendant's name from the roll of practitioners. There were mitigating circumstances for his misconduct which should be taken into account.

75. I am conscious that the court is concerned to protect the public and the legal profession when the court is exercising the statutory jurisdiction conferred by s.160 of the Act. But, at the same time it is a grave step to find a person is not a fit and proper person to practise the law and to remove that person's name from the roll of practitioners.

78. The penalties imposed by the Tribunal in 1988 were appropriate in my opinion and have effectively disbarred the defendant from legal practice for 12 months with financial consequences.

81. After 1 July 1999 the defendant will not be able to resume legal practice until he satisfies the relevant RPA that he should be granted a practising certificate.

84. Having inquired into whether the court should exercise its power to strike off the roll of practitioners the defendant's name and finding that it is unnecessary to do so the following orders will be made.

1. The relief sought in paragraphs 1 and 2 of the Originating Motion is granted.

2. The defendant's name should not be struck off the roll of practitioners.