07 October 2012


Muggings, celebrities, alleged forgery, property deals, litigation. 'Australian Discipline - The Story of Issac Brott' (forthcoming in 15(2) Legal Ethics) by Linda Haller tells
the story of attempts to improve the regulation of lawyers in Victoria, Australia 1975-2012. It also tells the parallel story of one Victorian solicitor, Issac Brott, who was the subject of multiple complaints about his conduct during that same period of time but against whom professional discipline proved both ineffective and irrelevant. 
Haller comments that
Regulators struggle with ways to deal with lawyer misconduct. Lawyers who steal money from their clients are the easy cases – no one doubts the lawyer should be removed from practice. More difficult are situations in which lawyers are not necessarily dishonest but may have overcharged clients, brought cases that have no chance of success, shown disrespect to judges or other lawyers, or generally lacked insight into their professional obligations. That is the story told here: the story of Issac Brott, a lawyer in practice for 33 years who was constantly in conflict with judges, fellow lawyers and sometimes clients but who, despite the best efforts of legislatures seeking to address issues of incompetence, persisted in his misconduct. What is particularly telling about the story told here is that this particular lawyer was called to account more often by courts and clients than by disciplinary bodies. But he was disciplined - 17 times in total - before he was finally removed from practice. The story ... raises important questions about the place of discipline in the broader regulatory framework for lawyers and how discipline can or should deal with entrenched misconduct or incompetence.
It is important not to demonise Brott. Some of the disputes involving him arose from unusual fee arrangements, such as charges over real estate. Other lawyers, who act only for wealthy, commercial clients, might be less likely to encounter such conflicts because there is always plenty of money in trust to pay their fees. If less affluent clients are to have access to lawyers, fee arrangements such as those used by Brott may be a necessary evil. Brott’s problems did not only arise out of strained economic arrangements. There are also hints in the cases reported here of flamboyant and unusual clients. It is possible that they sometimes behaved less reasonably than clients of large ‘establishment’ law firms. There is also some evidence that Brott became an object of derision within the profession and so an outsider. Perhaps some of his complaints of bias and unfair treatment were justified. Despite the criticism here of the many occasions upon which Brott challenged regulators, judges and clients in the courts, he was of course entitled to assumptions of innocence and procedural justice, and his challenges were sometimes successful. Lawyers like Brott keep regulators honest and on their toes and the system healthy. However, the question remains: why did so many clients, opponents, other lawyers, judges and regulators have to suffer so much over such a long period of time and at such an emotional, reputational and financial cost before he was finally removed from practice?
The following section provides some background to lawyer discipline in Australia and the State of Victoria in particular. The article then takes the reader through the parallel stories of Brott and the system regulating all lawyers practising in Victoria, including Brott. The article then locates the story of Issac Brott among the literature on lawyer discipline and concludes by suggesting some lessons to be learned and recommendations for reform.
She concludes -
This story of Issac Brott and the Victorian statutory regulators offers a powerful example of the factors that can compromise regulatory efficacy. Effective regulation requires good relationships between regulators, clarity of purpose and regulatory reforms introduced in a consultative fashion. There is strong evidence here to suggest that animosity between two regulators fighting for legitimacy – the Law Institute and the Legal Ombudsman – distracted attention from less visible but persistent problems of incompetence, overcharging and abuse of court process within the legal profession. Brott took every step he could to delay and frustrate investigations into his conduct; he ignored requests from regulators for responses to complaints; when that failed, paradoxically, he used the courts to challenge the regulatory process every step of the way, all the way to the High Court if necessary. If nothing else, Brott can take some credit for ensuring a number of loopholes and weaknesses in the disciplinary system were tightened.
Interwoven with the story of regulators, professional bodies, legislators and regulation is the story of Issac Brott and the clients, barristers, opposing lawyers and parties and judges who had to deal with him on a day to day basis. This provides a window into the frustrations of those for whom statutory regulation cannot always provide a satisfactory or timely response, especially where no dishonesty is clearly apparent. The investigation of complaints takes time, and judges were sometimes tempted to try to regulate Brott in more novel, immediate ways. Attempts by a Family Court judge to deny Brott his costs because of his deception of the court were thwarted on appeal. It would take another 11 years, after a laboured disciplinary process, before Brott faced any consequences for that deception.
One of the most important insights that can be drawn from this story is the continued impotence of legislative provisions to deal with lawyers who display inadequate competence or inflate their costs. At the very beginning of these events, in 1978, legislation gave regulators powers to discipline for excessive fees; in 1989 the legislation expanded the definition of misconduct to include ‘repeated standards breaches that showed a serious and continued disregard for proper professional behaviour’. Brott was a strong contender to face such charges as shown by the numerous occasions on which judges made adverse comments about him, ordered him to pay costs personally, set aside his costs agreements, reduced his costs, found conflicts of interest, struck out proceedings he brought as hopeless or not properly prosecuted, and the many, many occasions on which he failed to respond to the regulator’s requests for information.
It remains unclear why a number of statutory initiatives appeared to have little or no impact on how Brott practised law It is also baffling why, when he did come before a disciplinary tribunal, it imposed only reprimands, cautions and fines. Since 1989 the tribunal had the power to issue much more creative, proactive orders, which might deal better with a pattern of incompetence or lack of insight, including orders that the solicitor undertake more education, provide reports, receive management or accounting advice or work under supervision. A mandatory ‘three strikes rule’ is too draconian and inflexible a response given the multiple ways lawyers’ conduct can come under scrutiny. However, the story of Brott suggests the case to require regulators and tribunals to consider different, new responses and more structured steps when dealing with recidivist lawyers is clear. Reprimands and fines had no apparent impact on Brott. There must come a time, after a tribunal has imposed a certain number of reprimands or fines, that it be required to actively consider more proactive responses, such as compulsory education or supervision. Another important lesson to learn from this case is that these various institutions need to talk to each other and share information more often. What became clear in this story is that courts, tribunals and regulators were not always aware of the broad range and volume of action that each of them had separately taken against Brott. Just as this article has limited itself to information available on the public record, much of the relevant information was already in the public domain for those who chose to share it or seek it out. This myopia of those charged with regulating Brott allowed his counsel to sometimes portray him as someone who had learnt from prior discipline, with now a clear understanding of his professional duties. Had disciplinary tribunals looked beyond the narrow confines of disciplinary actions to Brott’s interactions elsewhere in the legal system, they would have seen a very different picture.