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VCAT hands down penalty for barrister over delays, failure to communicate
A Victorian barrister who travelled overseas in the days prior to a hearing without telling his client or instructing solicitor has narrowly dodged a harsher penalty for this conduct.
Naomi Neilson
The Victorian Civil and Administrative Tribunal has determined a penalty for a barrister who engaged in professional misconduct and unsatisfactory professional conduct over delays in completing work, travelling overseas days before a hearing without informing his instructing solicitor and failing to respond to an information request by the regulator.
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The tribunal’s senior member Jonathan Smithers submitted that Matthew Stirling could be open to a costs order in future but in the meantime imposed a disqualification period of two months and handed down a reprimand for conduct that amounted to four counts. The VLSC was seeking six to 12 months and a costs order of over $27,000.
In the judgement, Mr Smithers said he was satisfied that Mr Stirling’s conduct in simply absenting himself at short notice without explanation “comprised his substantial failure to reach or maintain a reasonable standard of competence and diligence”.
“It might be debatable as to the extent this may or may not have disadvantaged client interests in a forensic sense, however, the act itself was unacceptably disrespectful to his client and his instructors and, in all circumstances, warrants disqualification.”
In December 2019, the tribunal found that in a number of instances, Mr Stirling alerted his client or instructing solicitors that he would complete tasks but failed to do so. This included situations where his failures caused his client to be in breach of County Court orders and a failure to inform his client in a timely way of such non-compliances.
Most notably, the tribunal took issue with Mr Stirling’s overseas travel plans, seemingly arranged two days prior to a hearing and without informing his instructing solicitor that he would not appear. Replacement counsel then had to be briefed at short notice.
Included in three charges were allegations of breaches of various rules of professional conduct relating to timely completion of work, promoting or protecting client’s interests, facilitating efficient administration of justice and requirement to do work efficiently.
“I can understand that Mr Stirling’s overall unreliability throughout the period of retainer would have a demoralising and corrosive effect on his instructors and, in particular, on his client for whom this case was obviously of enormous personal significance,” Mr Smithers determined.
“As an experienced commercial barrister, charging commensurately, his conduct was an abrogation of his professional responsibilities.”
While there was power to order compensation for the client, this was not sought by the VLSC and no procedures were put in place for the matter to be dealt with, despite the barrister himself making it clear he was prepared to make these additional costs. While at the time of the hearing Mr Stirling had reported bankruptcy, he said he was prepared to pay fines if they were to be imposed by the tribunal, unaffected by the bankruptcy.
This judgement can be found on Austlii at Victorian Legal Services Commission v Stirling [2020] VCAT 1117.
