In Victorian Legal Services Board v Gobbo [2020] VSC 692 Ms Gobbo has been 'unnamed' from Victoria's roll of legal practitioners.
The Court states
1 The Victorian Legal Services Board made application for the removal of Nicola Gobbo from the roll of practitioners kept by this Court. Ms Gobbo consents to the application. For the reasons that follow I have ordered that her name be removed from the roll of practitioners of the Supreme Court of Victoria. The publication of these reasons was delayed by an application for a pseudonym order by persons mentioned in the agreed facts upon which the application proceeded.
2 On admission to practice in Victoria, all persons sign the Supreme Court roll. The Court has power to remove the name and details of a person admitted to practice from that roll. The power derives from the exercise of the Court’s inherent jurisdiction as well as the power conferred by statute. Section 23(1) of the Legal Profession Uniform Law Application Act 2014 (Vic) provides:
(1) The Supreme Court may order the removal of the name and other particulars of a person from the Supreme Court roll, on – (a) its own motion; or (b) the recommendation of the designated local regulatory authority; or (c) the recommendation of the designated tribunal. ...
Applicable principles
4 In any application of this nature the parties are required to provide fulsome and complete information to the Court so that the information makes clear that “no occasion exists for retaining the name of the [practitioner] on the roll”.
5 The Court is not bound to accept the recommendation of the regulatory authority, but must independently exercise the power on the evidence before it. The Court must give the recommendation appropriate weight. The consent of the practitioner where it is appropriate, as here, is also relevant.
6 The Court must be satisfied that at the time of hearing the practitioner is not a fit and proper person to be a legal practitioner and is likely to remain so for the indefinite future.
7 The purpose of an order removing a practitioner from the roll is described as protective and not punitive. The protective nature of the power is broader than simply protection of the public from misconduct by practitioners. It is to ensure protection of the standing of the legal profession generally, and to strengthen community confidence in the legal system and its institutions including the courts and participants in the justice system both civil and criminal.
8 Warren CJ in Legal Services Board v McGrath, said:
On occasion, the court’s inherent power to discipline members of the legal profession has been mistakenly characterised as simply ‘protective of the public’, an approach which may gain undeserved strength from comments of McHugh J in Rich v Australian Securities and Investment Commission. While the authorities indicate that the disciplinary power in question is entirely protective, that protection extends beyond protection of the public to include the legal profession as a group, the courts, the justice system and community confidence in that system. It is for this reason that striking off may follow where a practitioner’s conduct shows ‘a defect of character incompatible with membership of a self-respecting profession’ or where a conviction carries: such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails.
9 The phrase ‘fit and proper’ is a familiar one giving the widest scope for matters of judgment. It is not solely related to questions of conduct or character but is a holistic inquiry in light of the particular facts and circumstances. In Hughes & Vale Pty Ltd v NSW (No 2), the Court considered the meaning of the phrase, in the context of fitness to hold a particular type of licence, noting:
Fit (or idoneus) with respect to an office is said to involve three things, honesty, knowledge and ability: ”honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and the ability ...that he may intend and execute his office, when need is, diligently, and not for impotency or poverty, neglect it. It is unwise to attempt definition or prescription of the matters for inquiry. What is required will depend upon the given circumstances to be considered.
10 The requirement that a practitioner be likely to remain not a fit and proper person for the indefinite future means that it is not just historical actions that are considered, but also the insight and the capacity to overcome and eradicate behaviour. Removal is a step where conduct is inconsistent with the privileges associated with further practice.
The material before the Court
... 14 The Statement of Agreed Facts details registration as a police informer between 1999 and 2005, during which period Ms Gobbo was practising as a solicitor and then barrister. The agreed facts reference her conduct as a criminal defence barrister representing six individuals.
15 Some of the six individuals are protected by continuing suppression orders in other proceedings. Two persons who are referred to in the Statement of Agreed Facts have made application for pseudonym orders in this proceeding. The purpose of the applications is to ensure that the continuing protection of their identity already in place remains unchanged by the Statement of Agreed Facts relied on here.
... 18 The agreed facts relating to the six clients upon which recommendation of the Board recommended removal from the roll and which form the basis for my decision disclose the following conduct on the part of Ms Gobbo.
A1
19 Between November 2002 and April 2006, acting for A1 in respect of pending criminal charges arising from two Victoria Police operations, known as Operation Landslip and Operation Matchless, she appeared: (a) at a committal mention hearing in relation to charges arising from Operation Landslip; (b) at a bail application relating to bail from charges from Operation Matchless; (c) at a bail application relating to bail from charges from Operation Matchless; (d) at a committal hearing in relation to charges arising from Operation Matchless and Operation Landslip. At that time, the Defendant negotiated a resolution of the pending charges. The client was committed to stand trial; (e) at a case conference in relation to the Matchless charges; (f) at a mention in relation to the Landslip and Matchless charges to adjourn the plea by consent.
20 She met with the client and her instructing solicitor in relation to the pending plea hearing for the Landslip and Matchless charges; and asked her client to collect character references to prepare for his pending plea hearing.
21 Between October 2005 and April 2006, she provided information to Victoria Police about the activities of her client relating to matters other than the Landslip and Matchless matters with which he had been charged. During that time she suggested to Victoria Police that her client was a good candidate to give evidence against another of her clients, Milad Mokbel, told Victoria Police that ‘if her client had no money, he may talk’ and informed Victoria Police that her client had told her about the general location of a clandestine drug laboratory and said that she hoped they would arrest others at the same time that they arrested her client.
22 The information provided by the defendant outlined in the previous paragraph was used by Victoria Police to obtain evidence that resulted in the arrest of her client on further charges arising from Operation Posse in April 2006. On the day of the arrest a member of Victoria Police contacted the defendant and advised her that her client may be arrested that day. That afternoon when arrested her client requested that she be contacted.
23 The defendant attended the police station at which her client was held and spoke with him once before his formal record of interview. The defendant spoke to him a second time later that day after he had been speaking to Victoria Police; and her client made limited admissions to Victoria Police.
24 In April 2006, the defendant appeared for her client at an administrative filling hearing in relation to the Posse charges and again at an administrative mention in relation to the Matchless charges.
Ahec
25 One of others arrested in April 2006 was Mr Frank Ahec (Ahec). When arrested, Ahec asked for Ms Gobbo to attend St Kilda Road Police Station.
26 Ms Gobbo represented Ahec at the administrative filing hearing in relation to the charges laid following his arrest. By 30 October 2006, Ms Gobbo had been retained by Ahec to appear on his behalf to enter a plea in relation to the charges laid following his arrest. Ahec had already instructed Ms Gobbo and her instructing solicitor that he intended to plead guilty to the charges. Pursuant to that brief: (a) In January 2007, she represented him at a mention hearing; (b) In February 2007, she represented him at a committal mention hearing. On his behalf she agreed with the prosecutor on a resolution of the charges; and (c) In May 2007, she represented him at a plea hearing which was adjourned after approximately 45 minutes. Later that month she represented him at the resumption of the plea hearing which lasted under 2 hours.
27 On 30 October 2006, Ms Gobbo reviewed the prosecution brief of evidence that Victoria Police proposed to serve on Ahec to ensure that her status as a police informer was not disclosed by the information in the brief. She did not inform Ahec of that fact.
M. Mokbel
28 In April 2006, Milad Mokbel was charged with offences arising from Operation Posse. Assistance provided to Victoria Police by A1 was used by the police to assist them in the charges against Milad Mokbel.
29 In or about late April 2006, Milad Mokbel requested that Ms Gobbo act for him in relation to the charges. She advised that she could not act for him, and she did not act for him.
30 On 18 September 2007, Milad Mokbel’s solicitor wrote to the OPP to offer to plead guilty on a particular basis.
31 On 30 October 2006, Ms Gobbo reviewed the prosecution brief of evidence that Victoria Police proposed to serve on Milad Mokbel to ensure that her status as a police informer was not disclosed by the information in the brief. She did not inform Milad Mokbel of that fact.
A2
32 In August 2005, A2 was charged with offences relating to the trafficking of MDMA at Craigieburn in August 2005. A2 asked Ms Gobbo to act for him. She had never previously met or acted for A2. She saw him after he had had a formal record of interview with Victoria Police and had been charged and remanded in custody.
33 On 31 August 2005, Ms Gobbo appeared for A2 on a bail application that did not proceed. A2 did not attend court as no gaol order had been made. The application was therefore withdrawn.
34 In about early September 2005, Ms Gobbo was provided by the prosecution with a remand summary for the purpose of A2’s bail application. She formed the view from the contents of the summary that she would have a conflict of interest in acting for A2 in connection with the bail application. She advised A2 that she could not act for him.
35 In April 2006, A2 had a conversation with A1 concerning the pressing of pills. A1 was wearing a listening device while he had this conversation.
36 In June 2006, Ms Gobbo and her handlers at Victoria Police had a conversation about A2, which included discussion of A2’s fears and weaknesses. Shortly thereafter A2 was arrested and charged. After Victoria Police spoke to him, A2 agreed to assist them with their investigations.
37 One week after his arrest, Ms Gobbo represented A2 at an application to vary his bail conditions. The application to vary conditions was not opposed.
K. Khoder
38 On or about 23 December 2005, Ms Gobbo was asked by her handlers for information about Kamel Khoder’s (Khoder) criminal activities.
39 In October 2006, Khoder was charged with 15 counts of making a false document and 18 counts of obtaining a financial advantage by deception, relating to conduct that occurred at Melbourne and Coburg between November 2004 and August 2006. He was released on bail. 40 In August 2007, Khoder met with Ms Gobbo in order to discuss the obtaining a financial advantage by deception charges. Between mid-August and 3 September 2007, she was involved in negotiations for a plea agreement on behalf of Khoder.
41 Khoder met directly with Victoria Police to discuss a possible plea to the charges in or about mid-August 2007. Ms Gobbo was not present.
42 On 3 September 2007, she represented Khoder at a committal hearing. Khoder entered a plea of guilty to the charges upon which he was committed.
A (Tony) Mokbel
43 Between March 2002 and 29 March 2006, Ms Gobbo was retained by Mr Antonius (Tony) Mokbel to appear on his behalf on various occasions, and to give legal advice as junior counsel with various members of Queens’ Counsel. These included: a. On 26 March 2002, appearing for him on a bail application; b. On 12 July 2002, appearing for him on a bail application; c. On 4 September 2002, appearing for him on a successful bail application; d. On or about 15 February 2005, appearing for him at a committal hearing; e. On 29 September, 6 October, and 7 October 2005, appearing for him on an argument in relation to a subpoena in the Supreme Court of Victoria; f. On 7 December 2005, appearing for him on an argument in relation to a subpoena in the Supreme Court of Victoria; and g. Between 1 February 2006 and 29 March 2006, appearing for him in a criminal trial. Tony Mokbel was convicted and sentenced to 12 years imprisonment with a non-parole period of 9 years in absentia.
44 In addition to conduct in representing the six clients, the agreed facts outlined circumstances prior to admission and the disclosure of matters necessary to obtain admission to practice. The affidavit to the Board of Examiners seeking admission disclosed past criminal charges brought in September 1993 of possession and use of drugs and the disposition of those charges. The affidavit did not disclose an ongoing association beyond September 1993 with her housemate who was also charged. Nor did the affidavit disclose further charges brought against her housemate (but not the plaintiff) when a second search warrant was executed at the house in 1995.
Analysis
45 The relationship between lawyer and client is a fiduciary one in which loyalty to the client’s interests, holding the confidence of the client’s information, and the duty to avoid conflicts between the client’s interests on the one hand and either their own or another’s interest on the other hand, are fundamental.
46 Representation of each individual outlined above involved circumstances that would amount to professional misconduct underpinned as it was by failures to disclose confidential information, by disclosure of confidential information to the police without knowledge or consent of the client and by placing herself in positions of conflicts of interest.
47 In considering Ms Gobbo’s conduct, the High Court described it amounted to:
fundamental and appalling breaches of [Ms Gobbo’s] obligations as counsel to her clients and of [Ms Gobbo’s] duties to the Court.
48 The agreed facts before me provide a stark illustration of the duplicitous nature of the conduct. The descriptions of the conduct in the agreed facts are fundamental and appalling breaches of her obligations to those clients. They depart from all three of the principles underpinning fitness for office. The conduct demonstrated partiality and so lacked honesty. It lacked a knowledge of what ought to be done and in executing her duties she did so without the ability to maintain loyalty and confidentiality that the fiduciary relationship demanded above all other interests.
49 As an officer of the Court a practitioner represents to the Court, on each occasion when appearing on behalf of a client, that they are acting in accordance with the oath taken at the time of admission. That oath was that:
I will well and honestly conduct myself in the practice of my profession as a member of the Australian legal profession and as an officer of this honourable Court to the best of my knowledge and ability.
Each appearance in the statement of agreed facts breached the obligation of candour and honesty to the Court. Reliance by a court on the integrity of those who are it’s officers is also fundamental to the proper administration of justice. Repeated breaches in a number of proceedings over such a period of time as is demonstrated by the agreed facts is incapable of being overcome.
50 Although no disciplinary proceeding has been prosecuted by the Board, it was submitted that no benefit is derived from undertaking such proceedings at the Victorian Civil and Administrative Tribunal. Given the extraordinary circumstances that underpin this application and the characterisation by the High Court of the conduct, no benefit would be gained from such a course and no different outcome likely. I accept it is appropriate to grant the application at this time.
51 The content and omissions in the affidavit sworn for the purpose of admission to practice, might not standing alone warrant removal from the roll. However, in light of those omissions and subsequent events, there is a hollow ring to the assurance in that affidavit:
...upon being granted admission to practice my integrity and honesty will not be compromised. In accordance with the trust and privilege vested in me by the Court, I will endeavour to be an upstanding and honourable member of the legal profession.
It demonstrates, as does Ms Gobbo’s consent to the application for removal, that her position is not capable of rehabilitation.
52 There is a public interest in removing a lawyer from the roll once sufficient information is available to support an application. The Royal Commission into the Management of Police Informants has not yet published its findings or recommendations, and presently it is not known whether or not further conduct relevant to the question before me might come to light. However, the present agreed material is itself more than sufficient to grant the application. Nothing more is necessary.
53 There can be no question that by her conduct Ms Gobbo is not a fit and proper person. Her conduct caused prosecutions “corrupted in a manner which debased fundamental premises of the criminal justice system”. Where conduct rocks the foundations of the justice system the protective purpose of the court’s power demands the removal of the privilege of admission to practice. By her consent, Ms Gobbo acknowledges that there is no prospect that in the future she could take any step that might allow her to attain the status of a fit and proper person. As such I am satisfied that she is likely to remain someone not a fit and proper person.
