The price of panic … Stress caught a young lawyer unawares … An innocent mistake compounded by forgery … Bad look for the legal business … Tears at work … Depression and drinking … Time in the wilderness for “self-reflection” … Janek Drevikovsky reports from the Bureau de Spank
The lawyer, Obidapo Olayemi, earned his bread at migration law shop David Harvey Law. He was the first ever grad to be hired by sole principal David Harvey, and the duo shared all the firm’s work.
Olayemi was overworked, drinking heavily and taking anti-depressants. In the circumstances, we feel for him.
In mid-2015, Obidapo was busy with the visa application of one Jongsoo Park. The documents were to be lodged through an online portal. There was a little drop-down menu, where Olayemi had to specify the kind of application being made.
He clicked “Direct Entry Stream” – he should’ve chosen “Temporary Residence Stream”.
An easy mistake, VCAT heard. But fatal to the visa application.
Months later, a letter arrived in Olayemi’s inbox. It said the Park application was refused, because the documents had been submitted under the wrong category.
Olayemi flew into a panic. He realised his mistake would cost the firm big dollars. There was also evidence he was “afraid” of the client, who was anxious to keep his family in Australia.
Instead of fessing up, Olayemi put his drafting skills to work. He trimmed the letter until all mention of his mistake was gone. Then he concocted a new reason for refusal, namely that Mr Park had not met the “English Exemption Salary Threshold”.
The regulation cited as the basis for refusal was completely made up. A copy of the letter was dispatched to Mr Park and, unconvinced, he wrote back to the firm alleging the documents were false.
When David Harvey confronted Olayemi, he admitted everything and was dismissed on the spot.
Mr Park made a claim for professional negligence, which the firm settled with a contribution from Olayemi’s family.
The legal services commissioner brought spanking proceedings before VCAT. The charge, as the senior member was anxious to remind us, was not that Olayemi had clicked the wrong button.
Rather, it was that his forgery and deception amounted to professional misconduct.
There was some confusion about whether to apply the terms of the Legal Profession Uniform Law or the common law. Senior member Elizabeth Wentworth opted for the convenience of fusion, deciding that misconduct under s.297(1) was misconduct at common law.
That Olayemi had altered an official document was an aggravating factor. The senior member thought that Olayemi’s behaviour had brought the profession into disrepute, diminished confidence in the administration of justice, and would be seen as disgraceful by other lawyers.
Professional misconduct it was.
In deciding the poor fellow’s penalty, the tribunal took stock of mitigating factors. The young lawyer had been overworked and Harvey’s supervision, by his own admission, had been lacking.
In the months before the Park case, Olayemi collapsed at work and sometimes found himself crying for no reason. A GP prescribed the antidepressant Lexapro, but the lawyer skipped too many doses for the medicine to help. He began drinking heavily.
After being fired, Olayemi fell into a deep depression. He made it through with the help of his family, and began working at the Department of Veterans’ Affairs, where he has been employed since.
In his evidence, the lawyer said he was on top of his mental health and would be able to prevent a flare-up if he returned to practice. He also pleaded guilty to the charges.
All this, the senior member said, demonstrated true “insight”, and remorse. She concluded Olayemi had punished himself enough, but that some more time in the wilderness was a good idea – for “self-reflection”.
The penalty was an 18 months’ ban and a mandatory, eight-hour ethics course, to be completed after Olayemi returns to practice.
On top of this, he had to cough up $6000 in costs.