Disciplinary Hearings and Advocacy: A Checklist for a Good Plea in Mitigation

Disciplinary Hearings and Advocacy: A Checklist for a Good Plea in Mitigation

21 Feb 2021

By Lovegrove & Cotton – Construction and Planning Lawyers

The object of disciplinary proceedings is to regulate professional conduct; that is; to regulate the conduct of practitioners and professionals who provide a variety of services to the public.

Whether a professional or a lay advocate, when a practitioner is brought to account in misconduct proceedings, the most critical decision will be the election to plead guilty or to contest.

A registered building practitioner (RBP) must take this decision to plea or not to plea, as it were, very seriously and should weigh up their options very carefully.

An RBP would be well advised to contact a lawyer well versed in regulatory matters to be a good advocate for the RBP.

Checklist for a good plea in mitigation

Should the RBP in conjunction with their solicitor be of the view that the RBP will plead guilty, a good plea in mitigation and a good legal advocate will be able to demonstrate the following ingredients in a plea:

  • Contrition and remorse;
  • Cooperation, and hopefully the prosecutor’s concurrence with the respondent’s contention that there has been cooperation;
  • Intimate knowledge with the facts and the law on point;
  • The availability of apposite fresh references of good repute;
  • Knowledge of priors of lack thereof;
  • If no real or actual harm has been occasioned, submissions verifying that;
  • Evidence as to financials, particularly where there can be heavy fine censure, earnings need to be revealed, outgoings need to be revealed;
  • Evidence as to whether there any dependants, and the impact that an adverse finding will have on them;
  • Evidence that can be produced that verify the changes that have been introduced, systemically, to avoid repeat occurrence,
  • In circumstances where additional education has been obtained to improve skill sets should be adduced;
  • Evidence of any reparation that has been effected.

Should an RBP or an advocate be seeking further information on effective pleas in mitigation or on disciplinary hearings and advocacy in general, the book “Disciplinary Hearings and Advocacy” by Kim Lovegrove and Sav Korica is a must-read.

However, a good legal advocate well versed in this area should always be engaged by an RBP in such circumstances lest the RBP risk finding themselves in an invidious position.