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Disciplinary proceedings against building practitioners are sometimes defended as though they were ordinary commercial litigation. That approach can be a serious mistake.

In commercial litigation, denial, tactical contesting and delay are not unfamiliar practice albeit practices that are not to be commended. 

In disciplinary proceedings, such inclinations may end up causing harm to the respondent’s position and this will particularly be the case if the evidence is strong and the case against one is not realistically defensible, on the facts.

Good disciplinary advocacy requires a skillful and bespoke judgment. The advocate must decide, as early as possible, whether there is a tenable defence. 

If there is, the defence should be advanced properly. 

If there is no realistically tenable defence, the task becomes one of securing the best available outcome through admissions, explanation, mitigation and careful penalty advocacy.

That is the central forensic choice, to be made at the earliest possible juncture.

The First Question: Is the Case Defensible?

The first responsibility of counsel or solicitor-advocate acting for a respondent is to assess the evidence, by adopting a disciplined and realistic approach.

The critical questions are:

• Is there a case to answer?
• Is the evidence sufficiently strong to make denial futile?
• Is there a credible defence on liability?
• If liability is likely to be made out, what course will be most conducive to a proportionate outcome?

Where the evidentiary foundation for the prosecutor is weak, the allegation should be contested firmly and persuasively.

Where the material is compelling, however, reflexive denial is likely to worsen the outcome as it runs the risk of affecting the disposition of the decision maker.  

In those circumstances prudent advocacy will often favour early admissions, a plausible explanation where available, evidence of insight, and a carefully prepared mitigation case.¹

Instincts that Can Harm the Respondent

Some respondents defend disciplinary charges as though they were ordinary civil disputes. They deny everything, contest every point, and maintain positions that cannot survive the evidentiary record.

That approach commonly produces predictable forensic difficulties:

• changing explanations;
• concessions made only when documentary or testimonial evidence makes retreat unavoidable;
• erosion of credibility; and
• loss of the opportunity to demonstrate insight and remorse.

In disciplinary matters this can become more damaging than the original conduct. A respondent who advances an untenable denial may forfeit the opportunity to present as someone who recognises the error.

A practitioner who recognises the error and can provide the decision maker with confidence that they will be able to ‘mend their ways’ is likely to be dealt with more leniently than a practitioner who persists in contesting the indefensible.²

Admission and Mitigation as Advocacy

Where the evidence strongly indicates that liability will be established, effective advocacy may lie not in contesting the inevitable but in limiting the damage.

That may involve:

• timely admissions;
• clear delineation between admitted and disputed matters;
• explanation of surrounding circumstances where legitimately available;
• evidence of prior good character or professional contribution;
• evidence of corrective measures or improved systems, demonstration of remorse; and 
• structured submissions directed to sanction.

This is not capitulation. It is advocacy directed to outcome.

The objective is to reduce the gravity with which the conduct is viewed and to demonstrate that the practitioner understands the error and presents no ongoing regulatory risk.

The Significance of Remorse and Insight

Unlike commercial litigation, disciplinary proceedings involve the exercise of sanctioning discretion.

In determining outcome, tribunals commonly consider matters such as:

• protection of the public;
• maintenance of professional standards;
• general deterrence; and
• the practitioner’s insight, remorse and cooperation; and
• a lack of recidivism.

A practitioner who acknowledges wrongdoing and demonstrates genuine understanding of the conduct is likely to in this writer’s experience, (experience that is forged by more than two decades of practitioner advocacy), be treated differently compared to someone who persists with an untenable denial.

For that reason, the failure to mitigate in circumstances where the evidence is compelling may materially affect the disciplinary outcome, to the practitioner’s detriment.

Plausible Denial Must Be Genuine

There are cases where denial is entirely proper because the facts are disputed, the inferences are contestable, or the legal characterisation of the conduct is wrong.

But plausible deniability can only operate where it is genuinely plausible.

If the documentary record, chronology or admissions make the position unsustainable, continued denial may deepen the difficulty.

In those circumstances, the failure to “fess up” and mitigate may deprive the respondent of the ability to demonstrate insight, remorse and acceptance of responsibility when sanction is determined.³

Inconsistency Often Becomes the Real Problem

A recurring feature of poorly run disciplinary defences is inconsistency.

This typically occurs where a practitioner:

• begins with blanket denial;
• abandons parts of that denial when confronted with evidence; and
• attempts to recast earlier answers as misunderstandings or technical responses.

The proceeding then ceases to be solely about the alleged misconduct. It becomes a case about credibility and candour.

For that reason, disciplinary advocacy must be consistent from the outset. Positions adopted during the investigation stage often shape the entire case and may be impossible to unwind without forensic cost.

The Advocate’s Task

The advocate’s role is not to indulge the client’s sometime, if not occasional, instinct or denial. It is to exercise forensic judgment.

That requires identifying which course the evidence justifies, for example:

• full contest where the allegations by the prosecutor are weak (on fact or on law);
• partial contest with selective admissions; or
• admission and mitigation where liability is effectively established.

The quality of disciplinary advocacy frequently turns on making that judgment early and executing it consistently.

Final Observation

Disciplinary proceedings are not conventional adversarial contests.

One of the advocate’s most important responsibilities is recognising when denial is justified and when it lacks credibility.

Where the evidence indicates that liability is likely, the more effective course may be to mitigate, explain and make the strongest possible submissions on outcome.

Poor disciplinary advocacy often involves fighting the wrong battle or attempting to fight every battle. It is essential to recognise that the decision-maker holds the power. Where the imposition of a disciplinary censure appears likely, the advocate’s task is to persuade the decision-maker to apply the law so that the outcome is not disproportionate in all the circumstances.

Footnotes

1. Kim Lovegrove & Sav Korica, Disciplinary Hearings and Advocacy (2009), Hybrid Publishers.
2. Ibid, chapter on advocacy conduct and respondent participation in disciplinary proceedings.
3. Ibid, analysis of practitioner conduct, credibility and consistency in disciplinary matters.

Author Biography

Justin Cotton

Justin Cotton is Director of Lovegrove & Cotton Construction & Planning Lawyers. He practises in construction law, regulatory compliance and building practitioner advocacy, and has more than two decades of experience advising participants in the building industry.

Justin regularly represents building practitioners, building surveyors and private certifiers in disciplinary proceedings and regulatory investigations, and has extensive experience appearing in tribunals and courts in complex construction and building regulatory disputes.

He is admitted to practise in both Australia and New Zealand and provides cross-jurisdictional advice on construction law and building regulatory matters.

Justin is recognised for his expertise in practitioner advocacy, construction dispute resolution and regulatory compliance within the building industry.

Disclaimer

This publication is intended to provide general commentary on issues relating to disciplinary advocacy and building practitioner regulation. It does not constitute legal advice. Readers should obtain independent legal advice in relation to specific matters.