Articles

The most adverse finding that can be made against a professional or licensed practitioner is a finding of ‘professional misconduct’. Findings of professional misconduct can culminate in high fines and licence cancelation. The term is usually, but not always, defined in statute law. Regardless, there are common threads in the common law and statutory definitions that shed light on conduct that can be said to ‘trip over’ the professional misconduct ‘line’.

This piece, comprising substantial extracts from the book Disciplinary Hearings and Advocacy written by Professor Kim Lovegrove and barrister Sav Korica, explores these common threads.

For something to contravene the threshold of professional misconduct, that conduct would have to possess a high degree of objective seriousness.

In settings such as the legal industry, concepts such as heinous or dishonourable conduct attracting the disapprobation of peers of good repute have been coined.

The handing down of professional misconduct decisions is no precise science; although the penalties and fines handed down by disciplinary tribunals do, however, have some common threads.

In Quinn v Law Institute of Victoria[1] Maxwell P said that:-

The available sanctions are, by their very nature, punitive, and the objectives of specific and general deterrence – which serve the protection of the public – depend upon the sanctions having punitive effect.[2]

As much was said in the case of Hannebury v Legal Ombudsman,[3] when the Court found that a disciplinary decision tribunal’s function is primarily protective.

…the jurisdiction of the Tribunal to deal with – that is to discipline – practitioners for misconduct, while it includes power to punish, it should be regarded as largely protective. Hence, the Full Tribunal may impose a fine of up to $50,000. Its concerns should ordinarily be not so much to punish as top protect members of the public against professional misconduct.[4]

Maxwell P reiterates this point strongly and points out that:-

.. 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.[5]

The protection of the public is the continuing imperative but by nature the “disciplinary jurisdiction is also punitive in the service of protecting the public, the principles of sentencing apply by analogy.”[6]

And if this is so, then it is necessary to balance just punishment; specific and general deterrence; denunciation; the protection of the community; and rehabilitation.

Co-authored by Professor Kim Lovegrove MSE RML, Senior Lawyer, Lovegrove & Cotton – Construction and Planning Lawyers

Footnotes

[1] [2007] VSCA 122 (‘Quinn’).

[2] Ibid, [30].

[3] [1998] VSCA 122.

[4] Ibid, [22].

[5] Quinn, [31].

[6] Ibid, [35].