Lawyer spankings resume after jurisdictional collapse … NCAT picks-up disciplinary cases where it left off … Helpful legislative amendments to the rescue … Wollongong solicitor ignored missives from the Law Society … Compliance required before trading ticket reissued … Poverty … Despair … Janek Drevikovsky reports
Autore scored a $15,000 fine for his recalcitrance, and will have to bend to the Law Society’s wishes before he can apply for a new trading ticket.
It’s one of the society’s first finalised discipline cases since an almighty jurisdictional snafu last year, which risked invalidating four years’ worth of spankings and forced an emergency amendment to the LPUL.
The spanner in the disciplinary works was Council of the Law Society v DXW, an NCAT case heard by retired Industrial Relations Commissioner Frank Marks.
As we reported last year, Marks decided the Law Society couldn’t bring a discipline case unless the Legal Services Commissioner had either received a complaint or made one himself.
A 2015 instrument of delegation was no help because under its terms, the LSC had to refer a complaint to the society before it could begin prosecuting.
All this was a real headache, because the Law Society has a habit of launching its own NCAT spanking matters, whether or not there is a complaint with the commissioner.
DXW cast doubts over the validity of countless NCAT decisions, brought when the society lacked the standing to do so.
Last November, parliament rushed through the Justice Legislation Amendment Act (No 2) 2019 which, inter alia, gave retrospective force to all the endangered findings.
Attorney General Mark Speakman during the second reading debate said:
“I am advised that 18 affected matters in NCAT have been terminated already in relation to the jurisdictional issue. If the amendment contemplated by the bill passes, the relevant regulatory body will have the discretion to recommence those proceedings within six months, provided that the regulatory body had sought for the proceedings to be terminated in relation to the jurisdictional issue.
In the meantime, the amendment will not affect the validity of any decision made in terminated proceedings unless proceedings are recommenced.”
The amendment also tweaked the LPUL Application Act Schedule 9 s 23, so that the Law Society and Bar Council can launch misconduct cases even without a complaint to or by the Legal Services Commissioner.
Many sighs of relief were breathed, and the Law Society and tribunal got back to their jolly task of dishing out tag-team spankings.
Mr Autore is one of the first to feel the freshly-polished paddle. His sin was to ignore notices sent to him by the Law Society, which required him to answer questions about his legal practice.
At a hearing in early 2019, NCAT considered Mr Autore’s failure to comply with the notices, which are governed by s 371 of the LPUL.
One of the notices, which was sent in early 2017, asked whether he was keeping up with a course of psychiatric treatment ordered by the tribunal in earlier misconduct proceedings.
There was no reply.
His excuse was that he did not know he could fax the Law Society documents, and that he only developed the practice of faxing in early 2017.
At the end of the 2019 hearing, NCAT made two findings of professional misconduct.
After DXW called the whole disciplinary apparatus into question, the proceedings were put on ice. The present judgment picked up where NCAT left off – with the question of sanctions.
As the tribunal noted, Autore should have known better. He has been a solicitor since 1985 and would have been aware of the “gravity” of his ignoring the Law Society’s missives.
Nor is this Mr Autore’s first time at the misconduct rodeo. In fact, he has a “regrettable professional history”, according to the tribunal, with five reprimands to his name (e.g. see here) and one other finding of professional misconduct (for failing to pay a barrister).
The tribunal noted that Autore had received treatment for “moderate” depression in the past. At the time of the relevant misconduct, no such treatment was occurring. No mitigation could that way lie, the members said:
“[W]e consider the solicitor’s explanation of ‘pressure and work demands’ which ‘clouded [his] judgment’ to fall short of, in any way, excusing his conduct.”
The first consequence was a formal reprimand. Then, noting Mr Autore’s ticket had lapsed, the tribunal refused him permission to rejoin the jam roll – unless he first complied with the outstanding notice.
Next came the fine. Autore testified he was no longer working as a lawyer and is undertaking “unspecified voluntary work”. The tribunal was unsympathetic:
“He said he has ‘no savings at all’, although [he] said he is ‘living on’ savings. His assertions were unsupported by evidence; consequently, his purported impecuniousness is unproven.”
He was slapped with a fine of $15,000, and an order to pay the Law Society’s costs.
Rejoice – the great paddles of disciplinary justice are thwacking once more.