What To Do and What Not To Do In Advocacy

What To Do and What Not To Do In Advocacy

14 Feb 2018

By Kim Lovegrove RML, FAIB, Senior Lawyer and Mediator, Lovegrove & Cotton

Dos and Don’ts in Advocacy when your reputation and license to practice is on the line

Be it the Disciplinary jurisdiction in the VCAT, the Building Professions Board NSW or any other occupational licensing body for that matter, if as a result of an investigation you are prosecuted and compelled to appear before a disciplinary licensing body, your livelihood and reputation is at stake. The difference between moderate censure and severe censure often boils down to the calibre of the advocacy. So let us look at what is laudable advocacy and compare it with counterproductive advocacy.

The Do’s

Take disciplinary censure very, very seriously; after all, your livelihood is at stake.

Do not be your own advocate – “only a fool has himself for a client.”

Choose your advocate very carefully, get a lawyer who is an expert in disciplinary and occupational licensing advocacy, even if they are expensive. Alas, the best advocates are generally the most expensive advocates. It is a false economy to elect not to use the most revered in the field if this determines whether you keep your licence.

Get fresh on point references from people of good repute.

Once one is the subject of investigation, immediately reflect upon what went wrong. Get advice on how to effect systematic change to ensure that the cause of the professional problem is identified and cured. If one can give evidence that one has identified the problem that led to the professional failure and has put in place systems to ensure that it can ever happen again, this tends to bode well with decision-makers.

Be contrite, genuinely contrite and be respectful.

If guilty, fess up, admit the mistake and do not fight the unwinnable point. Do not contest the incontestable, for it is only the fool that engages in such folly. Nothing will alienate a decision-maker faster than arrogance and the running of silly technical points, particularly when there is evidence of prima facie guilt.

Give evidence of financials and dependants, because if a fine is handed down, one’s financial status may influence the decision maker’s penalty disposition.

Prepare, prepare, prepare; do not underestimate the importance of meticulous preparation and being able to access advocates adept at same.

The Don’ts

In this jurisdiction, where the decision-maker is in the seat of power in that he, she or they can determine whether “you are rubbed” out or not, do not be arrogant in your disposition. This recommendation may seem somewhat trite because it would seem to be axiomatic that arrogance will be poorly perceived but the writer has observed the capacity for respondents to be arrogant more often than one would imagine. Petulance and irreverence, particularly where there is a serious case to answer, will not bode well.

Do not choose an advocate who likes taking esoteric or ‘obfuscational’ points.

Do not choose an advocate who does not specialise in professional misconduct advocacy.

Do not chose an advocate who is arrogant, whose demeanour is such that it will alienate the decision maker. Remember, the advocate doesn’t have the power and neither does the respondent. The decision-maker has all the power and a filibustering, haughty advocate can be entirely counterproductive.

Do not be scared of fessing up if your lawyer advises that there is a prima facie case of guilt against you. If you are guilty, face up to it. Confront and own the guilt, then ensure that your lawyer runs a very good plea in mitigation. With respect to the ingredients that make for a good plea in mitigation, click HERE to access an extract from Kim Lovegrove RML FAIB’s book “Disciplinary Hearings and Advocacy”. To access the order form and brochure for “Disciplinary Hearings and Advocacy”, click HERE. And to find out more about our practitioner advocacy division, click HERE.

Lovegrove & Cotton: Leaders in building practitioner legal representation

Lovegrove & Cotton are experts in construction law and building practitioner legal representation in Melbourne, Sydney, the ACT and Queensland. Kim Lovegrove RML, FAIB is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for nearly fifteen years and has established leading precedence in a number of Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and gravity-laden area, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.