Issues:

• What really is involved in the concept of professional misconduct?
• Is there a concept of strict or vicarious liability operating between partners?
• How is willful conduct important, and what are the limited areas it operates?

Desired Outcomes:

• An understanding of the subjective nature of misconduct when the objective criteria are applied.
• The wide criteria that can apply to catch improper conduct inside and outside practice.

1. Misconduct/unsatisfactory professional conduct

Professional misconduct normally refers to gross misconduct that goes against the legal profession itself, whilst unprofessional conduct is conduct not suitable for someone of a profession, or of the legal profession, but is not necessarily a misuse of the power that comes with being part of that profession.

(a) Inclusive

These statutory definitions (because they are defined to ‘include’ certain conduct) are not inconsistent with the concept of ‘professional misconduct’ developed at common law.

Professional misconduct includes Legal Profession Act 2004, s 497:

• Unsatisfactory professional conduct involving a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence (s.497(1)(a) LPA);
• Any conduct that would justify a finding of not being a fit and proper person to engage in legal practice (s.497(1) (b) LPA);
• Contravening a condition of your practising certificate (s.73 LPA);
• Misleading an investigator or Council or failing to comply with requirements under section 660 in relation to complaint investigations (s.676 LPA).

Other conduct that is capable of being both professional misconduct and unsatisfactory professional conduct includes:

• Contravention of the act, regulations and rules (s.498(1)(a) LPA);
• Charging excessive costs (s.498(1)(b) LPA);
• Being found guilty (convicted)
o of a serious offence (s.498(1)(c)(i) LPA); an indictable offence, whether or not it may be dealt with summarily: s4. There is no definition of 'indictable offence' in the LPA 2004. However, s2l(l) of the Interpretation Act 1987 [NSW] provides that indictable offence means an offence for which proceedings may be taken on indictment, whether or not proceedings for the offence may also be taken summarily. 
- of a tax offence (s.498(1)(c)(ii) LPA); 
- of an offence involving dishonesty (s.498(1)(c)(iii) LPA);
• Being insolvent (s.498(d) LPA);
• Conduct of a practitioner in becoming disqualified from being involved in the management of any corporation under the corporations act 2001 (s.498(e) LPA);
• Failure to comply with an undertaking to the council, tribunal or commissioner (s.608 LPA).

Conviction - defined in s11(1) of the LPA 2004,to include a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded.

Unsatisfactory Professional Conduct includes Legal Profession Act 2004, s 496:

• Conduct which falls short of the standard of competence and diligence expected by a member of the public (s.496 LPA).
• Other conduct that is capable of being unsatisfactory professional conduct includes:
• Contravention of the Act, regulations or rules (s.498(1)(a) LPA);
• Charging excessive costs (s.498(1)(b) LPA);

Is typically repeated failure to meet timetables, consistent failure to reply to correspondence

(b) Common law

“The case law has helped develop the general definitions of what is considered to be serious and less serious professional conduct”.  Although the legislation will be the principal guidance in determining matters of discipline it will be the cases which continue to guide the profession in the areas of misconduct.

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750*

Peer Test - professional misconduct on the part of a barrister consists in behaviour on the part of the barrister which would reasonably be regarded as disgraceful and dishonourable by his or her professional brethren of good repute and competency.

Qidwai v Brown [1984] 1 NSWLR 100*

Priestley JA defined professional misconduct as conduct: "in such breach of standards accepted by the medical profession in this State as would reasonably incur strong reprobation of fellow practitioners of good repute and competence”

Kennedy v The Council of the Incorporated Law Institute of NSW(1939) 13 ALJ 563

A charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong doing just a grave impropriety affecting his personal character.

Failure to understand and apply the precepts of honesty and fair dealing

Re R [1927]

‘Unprofessional conduct’ is not necessarily limited to conduct which is ‘disgraceful or dishonourable’, in the ordinary sense of those terms.

Re Veron (1966)

Professional Misconduct could be defined as being conduct which is infamous conduct in any professional respect.

Clyne v NSW Bar Association (1960)

Conduct can be categorised as that which is less serious, breach of rules which are mostly conventional in character, such as advertising restrictions or retainer rules, which would only warrant being struck off if there is a clear deliberate flaunting of the rules. And those which are more serious, such rules which a breach of would go against the generally accepted standard of common decency and common fairness.

A barrister was acting for a Mr Jacombe. Mr Jacombe was going through an acrimonious separation from his wife and they had been involved in what the High Court described as an ‘orgy of litigation’, some twenty different proceedings. Mrs Jacombe was being represented by a solicitor, Mr Mann. Mr Jacombe was looking for a way to frustrate his wife’s legal action so Clyne came up with the idea of bringing a private prosecution against the wife’s solicitor, Mann. Clyne admitted in open court that this was done to intimidate Mr Mann into withdrawing from acting for his client, Mrs Jacombe. In his opening address in that action against Mann, Clyne made a savage attack against Mann, alleging fraud, blackmail and perjury. He had no evidence of any of this. He also alleged that Mr Mann was guilty of maintenance, which at the time in NSW was an obscure but indictable offence

2. Conduct otherwise than in connection with the practice of law, s 497

(a) Ignorance alone can be sufficient

Law Society of New South Wales v Bolster*

The more he sought to extricate himself by advancing an ‘innocent’ explanation or justification, the more he entangled himself in a failure to appreciate elementary but critically important obligations of a solicitor to a client.

Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 at 757

Acting in ignorance of the law may of itself, in some circumstances, constitute misconduct.

It is no answer to a charge of professional misconduct in relation to transactions with his clients’ money that the solicitor did not appreciate that what he was doing constituted misconduct.

(b) Gross overcharging of costs

Veghelyi v Law Society of New South Wales (unreported)
Solicitors are informed or are in a position to inform themselves of what work may be required and what are fair and reasonable charges. They are in that sense in a position of advantage and trust is placed in them. Clients are entitled to be protected against the abuse of that advantage. It is, I am inclined to think, the fact that an advantage has been misused which may in a particular case warrant what the solicitor does being categorised as professional misconduct.

(c) Wilfulness

There is no doubt that mere negligence cannot constitute misconduct in the traditional concept of that expression: Myers v Elman, Re Hodgekiss, Re Veron.  Gross negligence, or a pattern of simple negligence, may amount to misconduct. And to say that mere negligence cannot constitute misconduct is not to say that things characterisable as negligence and things characterisable as professional misconduct are mutually exclusive.

Wilfulness – in 1898 Act “wilfulness” (Re Hodgekiss) was statutory misconduct.  Ditto 1987 Act as s61.  Hodgekiss was useful for statutory prof misconduct; also for determining the question of seriousness of the conduct.  ‘Wilful’ does not have to be deliberate – can also be reckless carelessness.

Hodgekiss is useful today to distinguish between wilful conduct (mens rea) and forgetfulness (no mens rea).  Mens rea is an important criteria in determining whether a breach of an undertaking is prof misconduct.  Wilfulness is important for determining if the breach is de minimis or something more

Re Hodgekiss [1962] SR (NSW) 340*
Conduct is regarded as ‘wilful’ in this context if it is done intentionally to commit a breach of duty or with reckless indifference to whether or not the conduct is in breach of a duty.  In this case he did not care where the money was banked.