The Tribunal finds the respondent, John Mingos, guilty of:

• two charges of misconduct at common law within the inclusive definition of professional misconduct 4.4.3 (1) of the Legal Profession Act 2004 (Vic) (the Act), in that Mr Mingos engaged in conduct that would be regarded by lawyers of good repute and competence as dishonourable or disgraceful; and
• one charge of professional misconduct within the meaning of section 4.4.3 (1) (a) in that Mr Mingos engaged in a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.

1. Mr Mingos is reprimanded.
2. Mr Mingos's local practising certificate is cancelled with effect from 14 June 2016, no local practising certificate may be issued to him before 14 June 2017, and a practising certificate entitling him to act as a principal of a practice may not be granted to him before 14 June 2019.
3. Mr Mingos is to pay the Victorian Legal Services Commissioner's costs of the proceeding fixed as agreed by the parties in the amount of $20,605, such costs to be paid in five equal monthly instalments of $4,121 on or before each of the following dates: 31 May 2016, 31 July 2016, 31 August 2016 and 30 September 2016. If any instalment of the costs owing in accordance with this order is not paid within 14 days after its due date, the entire remaining debt becomes due and payable.

1. Mr Mingos has pleaded guilty to three charges; two of misconduct at common law and one of professional misconduct. The charges arise from the following events.
2. On 1 November 2012, Mr Mingos failed to appear at the hearing of charges at Ringwood Magistrates' Court brought against his client Mr Lee, and failed to arrange for anyone else to appear on Mr Lee's behalf. As a result, the court issued a warrant of arrest against Mr Lee for failing to appear in court.
3. During late October 2012, Mr Lee had twice asked Mr Mingos about the date of the contested hearing. On each occasion Mr Mingos said he did not know the date. Mr Lee then instructed new solicitors who, on 31 October 2012, sent Mr Mingos an authorisation to act signed by Mr Lee and asked Mr Mingos to promptly deliver all the relevant documents to them. Mr Mingos did not respond. They repeated the request on 15 November, stressing the urgency and Mr Lee's concern that the Court appearance date had passed.
4. On about 19 November 2012, Mr Lee's new solicitors inquired about the hearing date with the Court and were told that a warrant had been issued for Mr Lee's arrest. They lodged a complaint on Mr Lee's behalf to the Commissioner about Mr Mingos's conduct in failing to attend the hearing. They accompanied Mr Lee to the Court on 5 December 2012 and applied for bail. Mr Lee was required to be fingerprinted and have his photograph taken by police before he was permitted to return home. He was found not guilty of the charges at a later hearing.
5. Mr Mingos did not send his file to the new solicitors until mid-December 2012.
6. His failure to attend the hearing, or arrange for anyone else to attend, is serious enough and is the basis of one charge of professional misconduct, in that he engaged in a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.
7. Far more serious is the course Mr Mingos then embarked on.
8. In letters to Mr Lee's new solicitors and to the Commissioner, Mr Mingos maintained a fiction that the Advice of Hearing (the hearing notice) that he received from the Court stated 21 November 2012 as the hearing date, and not 1 November 2012.
9. In fact, the hearing notice Mr Mingos received, well before the hearing, had the correct date on it. The date had also been set at the conclusion of a Summary of Case Conference he had attended in August.
10. Further, at some time before he sent his file to Mr Lee's new solicitors, Mr Mingos made a handwritten amendment to the hearing notice in his file, crossing out the '1' in the date of hearing, and writing '21' next to it, so that the date appeared as 21 November 2012, rather than 1 November 2012.
11. Mr Mingos maintained the fiction during the Commissioner's investigation of Mr Lee's complaint. When asked to provide his response to the issues raised, Mr Mingos wrote in a letter dated 22 February 2013 that:

In due course, I received a Notice of Hearing which listed the matter for 21 November 2012. Apparently Mr Lee received a Notice of Hearing which specified another date, namely 1 November 2012.

At that point in time I was making enquiries with both the Court and the Informant about the misinformation contained in the two notice of Hearing. Although strange, I was not so surprised as earlier that year, exactly the same situation transpired and the matter was corrected.

1. In fact, Mr Mingos made no such inquiries.
2. Further, on 14 May 2013 the Commissioner wrote to Mr Mingos enclosing a copy of the hearing notice with the handwritten amendment from Mr Mingos' file, and asking Mr Mingos to 'confirm whether this is how you received the document from the Court?'
3. By email on 28 May 2013, Mr Mingos replied:

Yes, to the best of my knowledge, that is how I received the advice Notice from the Court.

1. Mr Mingos has pleaded guilty to two charges of misconduct at common law in that he engaged in conduct that would be regarded by lawyers of good repute as dishonourable or disgraceful.
2. One charge arises from his conduct in:
   • amending the hearing notice he had received to show the hearing date as 21 November 2012 rather than 1 November 2012;
   • providing the 7 December letter containing the false statement about the hearing notice to Mr Lee's new solicitors; and
   • including the hand amended hearing notice in the file he provided to Mr Lee's new solicitors in order to mislead his former client and his former client's new solicitor.
3. The second charge arises from his conduct in:
   • amending the hearing notice;
   • providing the 22 February 2013 letter to the Commissioner; and
   • providing the 28 May 2013 email to the Commissioner.
4. Mr Mingos having pleaded guilty, I made findings accordingly. Counsel then made submissions on penalty.
5. In this case, the parties agreed that a global penalty was appropriate, but disagreed as to the appropriate penalty.
6. Counsel for the Commissioner submitted that the appropriate order was to cancel Mr Mingos's practising certificate for a period of one year. Counsel for Mr Mingos submitted that suspension of Mr Mingos's practising certificate, followed by a further period of at least six months of practice as an employee only, was appropriate and sufficient.
7. For the reasons that follow I consider the appropriate penalty to be that Mr Mingos's practising certificate be cancelled for one year, and that for a further two years any practising certificate be as an employee solicitor only.

1. If the Tribunal finds a practitioner guilty of unsatisfactory professional conduct or professional misconduct, section 4.4.16 of the Legal Profession Act 2004 (the Act) provides that the Tribunal may make any orders it thinks fit including the orders specified in sections 4.4.17, 4.4.18 and 4.4.19.
2. The available orders include reprimand, fine, additional professional education, conditions of supervision, inspection or reporting, an order that the practitioner's practising certificate be suspended or cancelled and an order recommending to the Supreme Court that the practitioner's name be removed from the roll. [1]
3. The objective of any determination is primarily the protection of the public and the maintenance of professional standards in the eyes of the public (protection of the reputation of the profession). The focus of the Tribunal will be on protection, not punishment.[2] As observed in Quinn v Law Institute of Victoria Ltd[3]:

Nevertheless, the phrase "not so much to punish as to protect" underlines the fact that the tribunal's disciplinary orders are punitive as well as protective. The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect.

Critically for present purposes, however, the Tribunal's protective function is paramount. Thus, where there is a choice of sanctions, it is to be expected that the tribunal will choose that sanction which maximises the protection of the public.

1. With that protective focus in mind, the Tribunal considers a range of factors in determining penalty including the nature and seriousness of the conduct, any plea of guilty, the relative importance in the case of specific deterrence and general deterrence, past disciplinary history, evidence of character, and other mitigating factors such as medical or psychological evidence.
2. Penalties imposed in other cases may be a useful guide to proportionality, and parity is important, but every case necessarily involves a different combination of factors. Each case is different.

1. Mr Mingos has been found guilty of one charge of professional misconduct, which relates to his failure to attend his clients hearing, or arrange for anyone else to attend.
2. Because of Mr Mingos's failure, his client was subject to the humiliating experience of arrest, including being fingerprinted and photographed and was required to apply through his new solicitor for bail.
3. While that conduct is serious enough, I agree with the characterisation by counsel for the Commissioner that it pales into insignificance when compared with what happened next.
4. The conduct giving rise to the two findings of misconduct at common law is dishonest conduct of an egregious nature. Mr Mingos amended a court document to give the impression that he had received a notice of hearing from the court with a later date. In essence, he dishonestly falsified a court document to excuse his conduct in failing to be at court to represent his client.
5. He then maintained the fiction that he had been given the wrong date by the court to his former client, and to a fellow practitioner. In his letter dated 7 December 2012, provided with his file to his former clients new solicitors, Mr Mingos dishonestly stated:

Please note that the reason no-one was in attendance at Ringwood Court on 1/11/12 is that our Advice of Hearing from the Court stated 21/11/12 as the hearing date, as opposed to the advice to the client which stated 1/11/12.

1. The file contained the Court document Mr Mingos has himself amended.
2. Further, he maintained the fiction to the Commissioner during the Commissioner's investigation, by dishonestly stating, on 22 February 2013, that he had received a hearing notice from the Court which listed the matter for 21 November 2012:

In due course, I received a Notice of Hearing which listed the matter for 21 November 2012. Apparently, Mr Lee received a notice of hearing which specified another date, namely, 1 November 2012...

At that point in time I was making enquiries with both the Court and the Informant about the misinformation contained in the two Notices of Hearing. Although strange, I was not so surprised as earlier that year, exactly the same situation transpired and the matter was corrected.

1. By giving that response, Mr Mingos lied to the Commissioner.
2. Further, when in May 2013 the Commissioner sent him a copy of the hearing notice with the hand amendment, and specifically asked him to confirm whether that is how he received the document from the court he responded, dishonestly:

Yes, to the best of my knowledge, that is how I received the advice Notice from the court.

1. Mr Mingos did not make any statement himself at the hearing. On his behalf, his counsel said that Mr Mingos very much regrets the course of conduct, is ashamed of himself and remorseful; and is determined never to engage in such conduct again. Counsel said that Mr Mingos acknowledges that he has abused the privilege given to him and has asked his counsel to apologise to the client and to the Commissioner.
2. His counsel said that Mr Mingos can offer no explanation or excuse for his conduct and says he has no recall of altering the court document.
3. There are some mitigating circumstances which I discuss later, but the absence of an explanation from the practitioner as to how and why such serious conduct occurred makes it difficult to evaluate whether or not Mr Mingos has any insight into the conduct, which is relevant to considering what may be required in the interests of specific deterrence; and whether he has the required qualities to be regarded as a fit and proper person to practise.

1. Mr Mingos also has a prior history of disciplinary findings, which increases the importance of specific deterrence and is of concern in the context of a practitioner who has been in practice since 1982.
2. There are two previous decisions of this Tribunal, in 2013 and 2014, four internal findings of the Commissioner between 2011 and 2013, and two matters in 1999 and 1984.
3. As conceded by counsel for the Commissioner, the internal findings do not have the weight of Tribunal findings, and the earlier matters are decades ago. Nevertheless, this is not a case of a solicitor with an unblemished record, engaging in a 'one-off' failure of personal obligations.
4. The Tribunal findings of 2013 and 2014 relate to conduct of a different character: a series of trust account and timeliness failings on Mr Mingos's part over the period 2009 - 2012.
5. On 14 August 2013, the Tribunal found Mr Mingos guilty of six charges of professional misconduct and two charges of unsatisfactory professional conduct.[4] Having made those findings, the Tribunal ordered that Mr Mingos's practising certificate be suspended for a period of one month and that for a period of 18 months thereafter any practising certificate was to include the condition that he be entitled to practice as an employee solicitor only. He was also ordered to undertake additional CPD units and, as is usual in disciplinary cases, ordered to pay the Commissioner's costs.
6. On 27 August 2014, in J5/2014 (unreported) the Tribunal found Mr Mingos guilty of two charges of professional misconduct and one charge of unsatisfactory professional conduct. He was reprimanded, ordered to pay a fine of $5000 and ordered to pay the Commissioner's costs.
7. There is some overlap in the period of time over which the conduct occurred, with the conduct in this case. Unlike the conduct the subject of the previous Tribunal decisions, however, the charges of misconduct at common law in this case involve repeated dishonest actions rather than inaction arising from disorganisation.
8. Here there has been a repetition or continuation of a dishonest cover-up by Mr Mingos of his original failure to attend his client's hearing. In this context, it is relevant in my view that one count of misconduct at common law relates to his actions in December 2012 in making the statement to his former client's new solicitors, and the other count relates to his statements to the Commissioner in February and May 2013. In other words, he engaged in a dishonest course of conduct over a period of six months. This is a concerning development in his disciplinary history

1. General deterrence is very important here.
2. The findings of misconduct at common law reflect the fact that lawyers of good repute and competence would regard the conduct to do with the court document as dishonourable or disgraceful. In simple terms it is shocking conduct - dishonest and breathtakingly foolish at the same time. It has no place in the legal profession.
3. There is, clearly, a need to signal to other members of the profession that adverse consequences will follow such conduct, and thereby deter them from the same conduct, in the interests of maintaining professional standards and public confidence in the profession.[5]
4. Interference with Mr Mingos' practising certificate is warranted in the interests of general deterrence, as is recognised by the submission on his behalf as to appropriate penalty.
5. Mr Mingos is entitled to credit for the fact that he pleaded guilty, although though he did so at a very late stage, after the Commissioner had obtained evidence from the Magistrates' Court and an expert handwriting report and a matter of days before the hearing. Nevertheless hearing time and witness time and costs were saved by his plea.
6. I am satisfied that Mr Mingos is remorseful and understands that the conduct is serious, as indicated by the plea.
7. I am not able to agree, however, with the submission by counsel on his behalf that the plea demonstrates a measure of insight. Insight, as opposed to remorse, is demonstrated by evidence of an understanding of what has occurred and how it occurred, as opposed to regret that it has occurred. Without any statement by Mr Mingos or an explanation for the conduct able to be given by counsel on his behalf, I am not able to be satisfied that Mr Mingos has any reflective understanding of what went wrong and what might be done to prevent it happening in the future.

1. As noted above, there are some mitigating factors in this case.
2. Although the evidence was not entirely satisfactory, the report of Bernard J Healey, clinical psychologist, provides some evidence that in the period 2010 - 2012, a period of severe stress in his life, Mr Mingos suffered from depression and symptoms of variable concentration and drive.
3. Mr Healey referred to psychiatric reports not in evidence before me. Counsel informed me that there was a dispute about their conclusions and the parties did not agree to them being put before me, although they were apparently before the Tribunal in the 2013 case. That is unsatisfactory and hampered my ability to evaluate Mr Healey's report to the extent it relied upon those psychiatric reports. In the circumstances, and given that he was not required to attend for cross-examination, I accept Mr Healey's statement, on the basis of the reports he read, that Mr Mingos had been deeply depressed following series of personal difficulties. I note also that Senior Member Smithers accepted that Mr Mingos has suffered from depression and anxiety, and, as I do, that those are matters to be taken into account in accordance with decisions such as R v Verdins.[6]
4. The stresses included the breakdown of his marriage and the strain of litigation to which he had been joined as a third party and in respect of which orders were made against him. According to his counsel the litigation, which concerned the collapse of a mortgage originating company Mr Mingos was involved in, was both stressful and expensive - the collapse of the company cost him nearly 2 million dollars. As his counsel conceded, none of this excuses what Mr Mingos did but I agree that it provides some helpful context.
5. According to Mr Healey's report, Mr Mingos has made a good recovery from depression assisted by the medical treatment he has received.
6. While it may be accepted that the depression and symptoms described by Mr Healy would impact on Mr Mingos's ability to manage the organisational requirements of sole practice, and may well have contributed to his failure to attend the hearing on 1 November 2012, there was no evidence before me or submission made to me that his depression had caused the dishonest conduct in this case, which is of a quite different character to the cases that come before the Tribunal where depression has caused a practitioner to become disorganised or fail to attend to his or her professional obligations. Nevertheless, such an illness is a mitigating factor and I take it into account.

1. Counsel for the Commissioner referred me to two decisions of the Tribunal relating to falsified documents: Legal Services Commissioner v Dwyer[7] and Legal Services Commissioner v El-Hissi.[8]
2. Mr Dwyer, in the course of an investigation into alleged trust account breaches, drafted false tax invoices to support the version of events he had given the Commissioner. He pleaded guilty to a charge of misconduct at common law and to other charges relating to trust accounting and costs disclosure breaches.
3. The Tribunal reprimanded him, fined him $40,000 and ordered him to pay the Commissioner's costs. Counsel for the Commissioner had requested that Mr Dwyer's practising certificate be suspended. Counsel for Mr Dwyer submitted that a fine be imposed rather than suspension.
4. At paragraphs [40] - [47], Senior Member Smithers set out the reasons why he decided not to impose a period of suspension in what he described as the unusual circumstances of that case. The Senior Member observed at [40]-[42]:
   1. In normal circumstances, the creation of false documents to deflect an enquiry by the regulator of the profession, would be likely to require an order suspending the practitioner's practising certificate for a period, pursuant to the requirements of general and specific deterrence. The need for honesty on the part of practitioners is obviously a fundamental requirement for the operation of the legal system. Lawyers and the community need to know that the fabrication of documents to deflect such an enquiry will result in suspension or cancellation of the lawyer's practising certificate (even where it relates to an attempt to regularise billings for amounts, which, in aggregate, were properly levied on clients at the time). It was noted that Mr Dwyer had not misled a court, as was the case in Guss and Foreman. Nor did he swear a false affidavit or make a false statutory declaration. I do not believe these distinctions have great significance, however. It is obviously vital that the regulator of the profession be able to rely on the word of practitioners required to provide information to it when carrying out its investigations. The duty of honesty and candour to the LSC is similar to the duty owed to the courts.
   2. I believe that the circumstances of this case are, however, very unusual, such that Mr Dwyer's right to practise should not be interfered with.
   3. I was impressed by the force of the 19 character references provided. Each of these attested to Mr Dwyer's significant contribution to the community through the conduct of his practice, and the assistance he has provided to disadvantaged members to the community. Law can be a very remunerative profession. Mr Dwyer has, however, chosen a different path. After 30 years of dedicated work, his income remains roughly equivalent to that of a junior level solicitor at the one of the big city firms. I agree with Mr Cash that Mr Dwyer has built up a very substantial reserve of goodwill which he is entitled to call upon now. As part of this, I take into account the evidence given in camera, which comprises a further powerful factor in Mr Dwyer's favour. The benefit which the community has received from the manner in which he has carried out his practice over the last 34 years is not to be underestimated.
5. I agree with the Senior Member's observations about the likely consequences, in normal circumstances, of a legal practitioner creating false documents, and the reasons why those consequences are likely to follow.
6. As counsel for the Commissioner submitted before me, there are a number of differences between Mr Dwyer's case and Mr Mingos's. Unlike Mr Mingos, Mr Dwyer had no prior disciplinary findings against him. He made full admissions when presented with the evidence by the Commissioner - in contrast to Mr Mingos who maintained the lie in May 2013 when asked by the Commissioner to confirm whether or not the document was as he had received it from the court.
7. Mr El-Hissi was found guilty of 10 charges of professional misconduct relating amongst other matters, to falsely executing and attesting to mortgage documents and, compounding this by making false statements in response to initial enquiries by the Law Institute of Victoria. Mr El-Hissi was reprimanded and his practising certificate cancelled for nine months.
8. As counsel for the Commissioner submitted, there are a number of differences between Mr El-Hissi case and Mr Mingos's. Mr El-Hissi was in his 20s at the time. The Tribunal accepted that he had come under relentless pressure from family members involved in the transaction. He had no prior disciplinary history.
9. I make the observation that parity alone would appear to require a significantly longer period of cancellation for Mr Mingos in circumstances where he has a prior disciplinary history, is an experienced practitioner, only made admissions at a late stage, and has no stated or apparent excuse for his conduct.

1. The dishonest conduct and Mr Mingos' inability to explain it also raises the question of whether Mr Mingos is fit and proper to practice,[9] which is in turn relevant to considering whether Mr Mingos's practising certificate should be cancelled, as the Commissioner asks, or suspended, as Mr Mingos asks, and for how long.
2. The question of whether a practitioner is fit and proper is to be decided as at the time of hearing.[10]
3. As at the hearing, the evidence included that, since Mr George Liberogiannis took over Mr Mingos's practice in June 2013, employing Mr Mingos as a solicitor in the merged practice, there have been no further matters requiring investigation by the Commissioner. Working as an employee appears to have had a protective effect.
4. Mr Liberogiannis provided a letter to the Tribunal in which he made positive statements about Mr Mingos, including that in their professional dealings over many years Mr Liberogiannis has always found him to have acted professionally in a cordial, cooperative, knowledgeable and trustworthy manner. He said he had no hesitation in assisting Mr Mingos when requested in June 2013, following a number of personal and professional problems that affected his running of the legal practice. He described Mr Mingos's practice as a large successful general legal practice with a number of employees which expanded into mortgage originating services.
5. Mr Liberogiannis said that despite Mr Mingos's problems he commands strong loyalty from his clients who hold him in high esteem for his integrity and understanding. He said he has witnessed personally the distress and anguish this proceeding has caused Mr Mingos and how he has sought to obtain proper help and advice in regards to his personal and professional life. He believes that Mr Mingos's difficult times are behind him and that he will not repeat the conduct which led to this proceeding, and previous ones. He said he will continue to employ him until such time as he obtains his principal's practising certificate.
6. Mr Liberogiannis's character statement is a testament to the regard in which he holds Mr Mingos and his confidence in Mr Mingos's future ability to practice without incident, and I take it into account.
7. I note however that no other character statements have been provided. This makes it more difficult, in my view, to reach a concluded view as to Mr Mingos's character, general honesty, and understanding of his professional obligations.
8. It also makes it more difficult to be confident that Mr Mingos would be fit to practise as a principal immediately after any cancellation or suspension.

1. In all the circumstances, this is not a case, in my view, where a period of suspension followed by automatic return to practice is appropriate, even with the six month period as an employee proposed by counsel for Mr Mingos. Rather, it is in my view an appropriate case for cancellation of Mr Mingos's practising certificate - not only in the interests of general deterrence but also to ensure that he must reapply for a practising certificate after the period comes to an end and satisfy the Board that he is fit and proper to practise at that time.
2. I consider the appropriate period of cancellation to be 12 months. While the Tribunal is not bound by the submissions made by the parties and must make its own decision, the period of cancellation sought by the Commissioner properly reflects, in my view, the requirements of specific and general deterrence.
3. In determining the appropriate period to be 12 months I have taken into account Mr Mingos' plea of guilty and the mitigating circumstances referred to -without which it is likely that the period of cancellation would have been greater.
4. The Commissioner did not ask for an order that any practising certificate then issued be for practise only as an employee but I consider that this is a case warranting a specific order that Mr Mingos not practise as a principal for a period of two years after he returns to practise. I am not satisfied that Mr Mingos is fit for sole practice. I do not rule it out but, in my view, it is appropriate, to make a specific order in the interests of protecting the public.
5. In the interests of providing time for Mr Mingos to hand over his current files to Mr Liberogiannis I have deferred the order for cancellation taking effect until 14 June 2016.

[2] See the observations in Hannebery v Legal Ombudsman [1998] VSCA 142 at [22] (Tadgell JA with Phillips and Chernov JJA agreeing).

[3] [2007] VSCA 122 at paras 30 - 31.

[4] Legal Services Commissioner v Mingos (Legal Practice) [2013] VCAT 1773.

[5] Per Ross J, in Brott v Legal Services Commissioner [2008] VCAT 2399 at [67]

[6] [2007] VSCA 102 and [2007] VSCA 102; (2007) 16 VR 269.

[7] (Legal Practice) [2012] VCAT 886.

[8] (Legal Practice) [2013 VCAT 325.

[9] For discussion of the requirement, and what it means to be a fit and proper person see Legal Services Board v McGrath [2010] VSC 266; (2010) 29 VR 325; Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) CLR 127 at 156-157, cited in McGrath at 330; Legal Practitioners Conduct Board v Clisby [2012] SASFC 43.

[10] ibid at [9], citing A Solicitor v Law Society (NSW) [2004] HCA 1; (2004) 216 CLR 253 at 268 [21].