VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
Legal Practice LIST	vcat reference No. J47/2024
	
CATCHWORDS	
Solicitor – professional misconduct – made an offer on behalf of his client to settle matrimonial property matters which was contingent on the client’s ex-wife’s statement of no complaint to police in respect of an historical rape allegation and assurance to make no further complaint to police in respect of matters prior to separation – agreement as to facts, findings and penalty – Legal Profession Uniform Law s 302, 303.	

APPLICANT	Victorian Legal Services Commissioner	
RESPONDENT	Prakash Raniga	
WHERE HELD	Melbourne	
BEFORE	Senior Member J. Smithers	
date of order	28 October 2024	
date of written reasons	13 December 2024	
date of correction order	18 December 2024	
CITATION	Victorian Legal Services Commissioner v Raniga (Corrected) (Legal Practice) [2024] VCAT 1195	

FINDINGS
The Tribunal finds that Mr Raniga engaged in professional misconduct within the meaning of s 298(b) of the Legal Profession Uniform Law (Victoria) (Uniform Law) in that, on 13 March 2020, he made an offer on behalf of his client to settle matrimonial property matters which was contingent on the client’s ex-wife’s statement of no complaint to police in respect of an historical rape allegation and assurance to make no further complaint to police in respect of matters prior to separation, which conduct amounted to a contravention of rules 5.1.2 and 34.1.3 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.

ORDERS
1	Under s 299(1)(b) and s 302(1) of the Uniform Law, Mr Raniga is reprimanded.
2	Under s 299(1)(e) and s 302(1) of the Uniform Law, Mr Raniga is to complete three (3) continuing professional development units in the area of ethics and professional responsibility additional to the mandatory requirements, within six months of this order.
3	Under s 303(1) of the Uniform Law, Mr Raniga is to pay the applicant’s costs of the proceeding fixed in the sum of $3,000 within 60 days of this order.

ORDERS UNDER THE OPEN COURTS ACT 2013 (VIC)
4	Any report of the whole or part of these proceedings or information derived from this proceeding that might enable the husband or the wife or children in the family law proceeding the subject of the above finding, or the husband or wife the subject of the earlier unrelated complaint notified to Mr Raniga by the applicant on 17 May 2018 (as a result of which no disciplinary action was taken) must not be published or otherwise disclosed.
5	This order applies throughout Australia on the basis that VCAT’s reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia. The privacy of the people referred to in order 4 would be breached if persons living outside Victoria know or come to know their identity.
6	This order operates until the later of the death of all of the people referred to in order 4.

J. Smithers
Senior Member			

Reasons
1	This application concerns a solicitor’s conduct in acting on inappropriate instructions received from his client, the husband in a family law proceeding. Namely, making an offer to settle matrimonial property matters which was contingent on his client’s ex-wife’s statement of no complaint to police in respect of an historical rape allegation and assurance she would make no further complaint to police in respect of matters prior to separation.
2	This conduct was a breach of the solicitor’s ethical obligations because it ‘had a tendency to prevent or defeat the due course of justice or the administration of the law’.
3	The applicant (VLSC) brought this application against the solicitor, Mr Prakash Raniga, on 24 June 2024.
4	Several months later, the Tribunal was advised that the parties had reached agreement on all issues, and on 20 August 2024, orders were made for an amended application and material in support to be filed by 3 October 2024.
5	A Joint Submission as to Determination and Penalty (Joint Submission) was filed dated 1 October 2024. This comprehensively described the relevant facts, law and the basis for the orders jointly sought to be made. The parties sought that the matter be determined on the papers.
6	On 28 October 2024, having considered the Joint Submission, the Tribunal issued an order making the findings and orders set out above.
7	The applicant sought written reasons. These are those reasons.
8	It is appropriate to set out the Joint Submission in full:

JOINT SUBMISSION AS TO DETERMINATION AND PENALTY
Introduction
1	This proceeding is brought by the Applicant against the Respondent pursuant to section 300 of the Legal Profession Uniform Law (Victoria) (Uniform Law). 
2	The parties agree that the Tribunal should find the Charge in the Amended Application for Orders filed 19 August 2024 (Application) proven. 
3	The parties jointly seek the following orders by way of disposal:
(a)	Pursuant to sections 299(1)(b) and 302(1) of the Uniform Law, the Respondent is reprimanded.
(b)	Pursuant to sections 299(1)(e) and 302(1) of the Uniform Law, the Respondent is to complete three (3) continuing professional development units in the area of ethics and professional responsibility additional to the mandatory requirements within six months of the Tribunal’s order.
(c)	Pursuant to section 303(1) of the Uniform Law, the Respondent pay the Applicant’s costs of the proceeding fixed in the sum of $3,000 within 60 days of the Tribunal’s order.
4	The parties seek that the Tribunal conduct the proceeding entirely on the basis of the documents without a hearing, pursuant to section 100(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). 
5	By the Application, the Applicant seeks an order pursuant to the Open Courts Act 2013 (Vic) (Open Courts Act) to prevent the identification of parties to family law proceedings. The Respondent consents to that order being made.
6	The Respondent was admitted to practice in 1984 and has been practicing in Victoria since 1986. Prior to the present proceedings, the Respondent has not been the subject of any finding of unsatisfactory professional conduct or professional misconduct.  The Respondent was relevantly in the past the subject of a complaint which was closed without any disciplinary action (discussed at [26]–[28] below). Since the complaint the subject of the present proceedings, the Respondent has not been the subject of any disciplinary complaint to or initiated by the Applicant.
Agreement and plea
7	The Respondent admits the facts contained in the Application, the Particulars filed therewith (Particulars) and the Annexures.
8	The Respondent admits the contentions in the Particulars as amended at [20]–[22] and [25] and pleads guilty to the Charge in the Application.
The Charge
9	The Charge alleges that the Respondent engaged in:
Professional misconduct within the meaning of section 298(b) of the Uniform Law in that, on 13 March 2020, the Respondent made an offer on behalf of his client to settle matrimonial property matters which were contingent on the client’s ex-wife’s statement of no complaint to police in respect of a historical rape allegation and assurance to make no further complaint to police in respect of matters prior to separation, which conduct amounted to a contravention of rules 5.1.2 and 34.1.3 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Conduct Rules).
10	The Respondent’s client was the respondent husband (the Husband) to family law proceedings brought by his former wife (the Wife). The Wife was represented by another solicitor, Jim Middlemis. On 15 February 2020, an in-principle agreement was reached between the Husband and the Wife at a mediation in respect of a property settlement. Prior to that mediation, the Wife had made a complaint to police about the Husband, alleging that he had raped her in 2013 or 2014. That was not disclosed at the mediation.
11	On 13 March 2020, the Respondent wrote to Mr Middlemis (the First Letter) setting out that the settlement agreed in principle progressing was conditional upon the Wife:
(a)	making a statement of no complaint to the police; and
(b)	giving an assurance that she would make no further complaint about events prior to separation from the Husband.
Relevant provisions
12	Section 298(b) of the Uniform Law provides that a contravention of the Uniform Rules, which includes the Conduct Rules, may amount to professional misconduct.
13	Rule 5.1.2 of the Conduct Rules provides:
5	Standard of conduct—dishonest or disreputable conduct
5.1  	A solicitor must not engage in conduct, in the course of legal practice or otherwise, which— …
5.1.2  	is likely to a material degree to—
(i)  	be prejudicial to, or diminish the public confidence in, the administration of justice, or
(ii)  	bring the profession into disrepute.
14	Rule 34.1.3 of the Conduct Rules provides:
34	Dealing with other persons
34.1  	A solicitor must not in any action or communication associated with representing a client— …
34.1.3  	use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person.
15	In order to be satisfied that the Respondent engaged in professional misconduct within the meaning of section 298(b), the Tribunal must be satisfied that his conduct amounted to contraventions of rules 5.1.2 and 34.1.3.

Proposed findings
The conduct contravenes rule 5.1.2 of the Conduct Rules
16	The parties agree that the conduct the subject of the Charge was likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice.
17	The conduct the subject of the Charge was likely to be prejudicial to any criminal investigation or charges that Victoria Police might have made. The fact that Victoria Police did not charge the Husband with any such offence does not alter that characterisation. 
18	In Williams, the Supreme Court of Tasmania held that Mr Williams had engaged in unsatisfactory professional conduct when he put two settlement offers to his client’s matrimonial property matters contingent upon the withdrawal of complaints to Tasmanian Police. On appeal the Full Court of the Supreme Court of Tasmania held that the conduct should instead be characterised professional misconduct. The conduct in Williams was in one sense more serious because Mr Williams’ client had been charged with perverting the course of justice. In that context, Geason J said at first instance:
The gravity of a charge of perverting the course of justice, cannot be understated, because it strikes at the administration of justice. It is by that process that criminal conduct is punished and controlled. In this instance, the charge arose in the context of allegations of family violence, and it ought not be overlooked that there are inherent difficulties in the prosecution of such matters without such interference, involving vulnerable complainants as it does. Viewed in the context of the practitioner's duty to the Court, and the reasonable expectation of legal practitioners' appreciation of the seriousness of such interference, the conduct has a complexion which might not ordinarily be applied to similar behaviour by a non-legally trained person.
19	Those remarks are instructive here. It is trite that complainants of rape, as was the Wife here, are in a vulnerable position. Making a property settlement contingent upon the withdrawal of allegations of that kind is conduct likely to a material degree both to be prejudicial to and diminish public confidence in the administration of justice. 
The conduct contravenes rule 34.1.3 of the Conduct Rules
20	The parties agree that the conduct the subject of the Charge squarely is described by rule 34.1.3. The trading of a property settlement for the withdrawal of a rape allegation goes beyond legitimate advocacy and is primarily designed to embarrass or frustrate another person. 
21	That is so even where, as was the case here, those are a client’s instructions. It is not sufficient for a legal practitioner to simply put instructions that are of a nature such that the practitioner will contravene rule 34.1.3 by doing so. As Geason J said in Williams at first instance:
… a legal practitioner has a duty to bring to bear his or her own assessment of the consequences of "putting instructions", to advise the client accordingly and in such instances not implement the approach the client might prefer. The application of that "filter" is a core function of a lawyer's professional responsibility, which if not applied amounts to a dereliction of that obligation.
The conduct amounts to professional misconduct
22	The parties agree that the conduct the subject of the Charge is appropriately characterised as professional misconduct rather than unsatisfactory professional conduct.
23	Section 298 of the Uniform Law creates extended categories of conduct that can constitute unsatisfactory professional conduct or professional misconduct, ‘without limitation’, and which do not need to be tied to the definitions of those terms in sections 296 and 297. The Respondent is not charged with professional misconduct within the meaning of section 297(1)(a) of the Uniform Law. But the distinction between unsatisfactory professional conduct on the one hand and professional misconduct as defined in section 297(1)(a) of the Uniform Law on the other is instructive. The conduct the subject of the Charge was a substantial contravention of the relevant Conduct Rules, when regard is had to the Wife’s vulnerable position. 
24	Estcourt J said in his Honour’s judgment on appeal in Williams:
I do not have the slightest doubt that it is professional misconduct for a lawyer to offer to settle a client's dispute with another person on the condition that the other person withdraw a criminal complaint that person has made against the client and which is pending before a court.
25	The Respondent’s client was not the subject of any criminal charge pending before a court. Even so, the parties agree that the conduct the subject of the Charge should be characterised as professional misconduct.
Earlier complaint 
26	Prior to the complaint the subject of the Application, the Applicant previously initiated a complaint about the Respondent’s conduct.  On 17 May 2018, the Applicant notified the Respondent of the earlier complaint, which arose from an unrelated matter where the Respondent acted for a client charged with the unlawful assault of his wife (the Unlawful Assault Client and Affected Family Member, respectively).  The charge therefore arose in the context of alleged family violence and also involved a related intervention order application proceeding.
27	On 19 October 2017, the Respondent had written to the Affected Family Member requesting that she contact the informant to make a statement of ‘no complaint’ as she had indicated in her statement to police that she did not want her husband to be charged.  On the same day, the Respondent provided a copy of the letter to the informant and the Sunshine Case Conference prosecution email address. On 26 May 2018, the Respondent provided a submission to the Applicant that he did not intend to exert undue influence in his letter to the Affected Family Member.
28	On 17 August 2018, the Applicant wrote to the Respondent to notify him that she accepted his submission that the conduct did not amount to unsatisfactory professional conduct or professional misconduct.  The Applicant informed the Respondent that she considered no further investigation was required and had decided to close the complaint under section 277(1)(h) of the Uniform Law. 
29	This earlier complaint became relevant in this proceeding in the course of further submissions made by the Respondent on 25 November 2023, in which he responded to the Applicant notifying him of a revised preliminary view that his conduct amounted to professional misconduct.  The Respondent wrote: 
15.	I submit that on the 13th of March 2020, when I wrote to Mr Middlemis, I must have had vague knowledge of the [earlier] matter and also VLSC had come to the conclusion that by writing to [Affected Family Member]: my conduct did not amount to unsatisfactory professional conduct or professional misconduct.
16.	I am certain that if I had been disciplined for writing to [the Affected Family Member], then I certainly would not have written to Mr Middlemis as I did on the 13th of March 2020 some 2.5 years prior. I believe that I would have advised Mr Middlemis that my client would not be proceeding with the proposed settlement on the basis that [the Wife] and/or her solicitor did not provide material fact at the mediation in contrary to the provisions of Section 79 of the Family Law Act 1975.
Penalty
30	The parties accept that the decision as to penalty is entirely a matter for the Tribunal. In Flynn, the Tribunal summarised the principles where there is an agreed position on penalty as follows:
(a)	The Tribunal’s role is to decide the appropriate characterisation of the conduct and the penalties to be imposed. An agreement by the parties does not displace the Tribunal’s duty.
(b)	It is appropriate for parties to make agreed penalty submissions and there is a public policy benefit for such submissions to be accepted where appropriate.
(c)	It is desirable for the Tribunal to adopt the agreed penalty submission where it is an appropriate outcome.
31	The considerations the Tribunal will take into account when making penalty orders in disciplinary matters are well-settled. The line of authority in Quinn and Stirling is to the effect that the purpose of disciplinary proceedings, and penalty orders therein, is the protection of the public, the protection of the reputation of the legal profession, and the maintenance of professional standards. General deterrence looms large in disciplinary proceedings, as does specific deterrence where relevant.
The Respondent’s circumstances
32	The Respondent demonstrated insight into his conduct during the investigation. In his letter of 20 February 2023, the Respondent wrote:
6.	I accept that the last paragraph of my letter on the 13th of March 2020 as referred to paragraph 3 herein was responded to impulsively and I should have taken more time to consider the instructions from the client before writing the same to Mr Middlemis. I had no intention of exerting undue influence over [the Wife] by writing to her lawyers.
7.	I further accept that regardless of the instructions from the client, I should not have proceeded to advise Mr Middlemis that the proposed settlement in principle would only be honoured if [the Wife] made a statement of no complaint to the police. With the benefit of hindsight, I should have simply advised Mr Middlemis that my client would not be proceeding with the proposed settlement on the basis that [the Wife] and/or her solicitor did not provide material fact at the mediation in contrary [sic] to the provisions of Section 79 of the Family Law Act 1975.
33	The Respondent advised Victoria Legal Aid (VLA) of the present proceedings. By letter of 24 September 2024, VLA notified the Respondent that his law practice’s certifier status with VLA has been suspended and that the Respondent would not be able to act for any new clients until finalisation of the proceedings. 
34	The Respondent estimates that his practice relies on VLA for 50-60% of its files and 35-45% of its revenue. At [36] below the parties jointly submit that the subject of the charge is not of a character that requires an order for removal from the roll or interference with the Respondent’s practicing certificate. However, the issue of the application has resulted in significant interference with the Respondent's ability to practise until the outcome of the proceeding.
35	The Respondent provided character references from Alan Petitt, Stephen Howe, Samuel Rajendran and Ferdinando Butera. The content of those character references was described by the Applicant in her letter of 27 April 2023 in this way:
In addition to your 20 February 2023 submissions, a total of four character references were provided on 27 and 28 February 2023. The character references, in part, submitted that: 
-	your conduct in this matter was out of character;
-	that you have always conducted yourself to the highest ethical and professional standards;
-	that you are of impeccable character;
-	that you are respectful, highly professional and a man with utmost integrity;
-	you have volunteered your time to community organisations over a number of years.
The penalty order is appropriate for the conduct the subject of the Charge
36	The conduct the subject of the Charge is not of the character that requires an order for removal from the roll or interference with the Respondent’s practising certificate. The conduct does not involve any dishonesty, misappropriation of trust money or contempt of court such that orders of that kind would be required. The Respondent’s conduct was not undertaken in bad faith. 
37	The Respondent cooperated with the Applicant’s investigation and has made fulsome admissions that have allowed this matter to proceed by way of a consent position. The Respondent’s cooperation should be recognised by way of a penalty that is not crushing.
38	A reprimand serves to effect general deterrence. A reprimand is:
… a powerful public statement by the authority vested with the power to impose sanctions, and maintain professional standards as to how far short of those standards a practitioner’s conduct has fallen.
39	The reprimand also gives effect to specific deterrence by publicly denouncing the conduct of the Respondent. That aim is furthered by the proposed order that the Respondent engage in further education. 
In Williams, the Supreme Court of Tasmania imposed a reprimand and education orders for like conduct and considered a fine was not necessary. Those orders were not disturbed on appeal when the conduct was instead characterised as professional misconduct. The parties submit that those orders are a useful guide for the Tribunal’s exercise here, as described in OAG. 
Costs
41	The Tribunal must order a lawyer found guilty of professional misconduct or unsatisfactory professional conduct pay the Applicant’s costs unless there are exceptional circumstances.
42	The parties agree that the Applicant’s costs should be fixed in the sum of $3,000 and that the Respondent should be afforded 60 days to pay those costs. 
43	There are no exceptional circumstances arising in the present case that suggest the Tribunal ought depart from the usual course. Accordingly, the Tribunal ought to order that the Respondent pay the Applicant’s costs as agreed within 60 days of the Tribunal’s order.
Order under the Open Courts Act 
44	An order ought be made under section 17 of the Open Courts Act restricting the publication of the name and details of the Husband, the Wife, the Unlawful Assault Client and the Affected Family Member. 
45	Such an order, while a departure from the principle of open justice, is in the interests of justice and so is open to the Tribunal to make by reason of section 18(1)(f)(i). In WEQ, the Court of Appeal noted:
In the context of disciplinary proceedings, the ‘interests of justice’ ground has been relied on by the Tribunal to suppress the identity of complainants or persons who have ‘notified’ the professional regulator of suspected misconduct, and the identity and confidential information of patients or clients of practitioners subject to disciplinary proceedings.
46	The Tribunal described in Psychology Board of Australia v Bonola, referring to WEQ, that it had been:
… (implicitly) recognised by the Court of Appeal that the protection of sensitive or private health information of such persons [notifiers to regulators and clients of regulated practitioners] is justified based on the ‘interests of justice’.
47	An order under section 17 of the Open Courts Act here would be consistent with the principles set out in WEQ which are, relevantly:
(a)	The order is necessary to serve the interests of justice: 
(i)	The Family Law Act creates a presumption of privacy for parties to family law litigation, though that presumption does not operate so as to require the Tribunal to make the order. 
(ii)	Similarly, the Family Violence Protection Act prohibits the publication of proceedings under that Act which would identify the parties to the proceedings, though that prohibition does not operate so as to require the Tribunal to make the order.
(iii)	The interests of justice are served by, as was said in Brereton, ‘maintaining the confidentiality of solicitor-client dealings where they are not relevant to the proceeding and/or the non-disclosure will not affect the administration of justice in the proceeding’. This is especially so where none of the parties to the family law litigation, being the Husband and the Wife, or the parties to the criminal charge and related intervention order proceeding, being the Unlawful Assault Client and the Affected Family Member, were the complainant to the Applicant. 
(b)	There is a sufficient basis for the making of the order: 
(i)	Family Court materials form part of the application and the Tribunal can be comfortably satisfied that the Husband and the Wife were parties to family law litigation.
(ii)	The documents relating to the earlier complaint make reference to the intervention order proceedings to which the Unlawful Assault Client and Affected Family Member were parties.
(c)	The duration and scope of the order can be limited to the Husband, the Wife, the Unlawful Assault Client and the Affected Family Member, to operate until after their deaths, as is the order usually made in health practitioner regulation proceedings.
Consideration 
9	As stated, the Joint Statement is a thorough and comprehensive statement of the relevant facts, law and the rationale for the orders jointly sought to be made. The law is accurately stated, and the rationale provided is sensible.
10	Consistently with the principles set out by the High Court in the Fair Work case, and applied by the Tribunal in the cases referred to above, it was comfortable in making orders in accordance with the agreement reached.
11	It found, consistently with the Williams Full Court Decision, that seeking to impose the condition of withdrawal of the rape allegation amounted to professional misconduct, rather than unprofessional conduct. 
12	This case illustrates how issues concerning the fundamental duties of legal practitioners with regard to the role they play in the administration of justice can arise in the daily conduct of a family law practitioner’s practice.
13	It illustrates the need for practitioners to be mindful of those higher duties, even where the circumstances are such that one can well understand the reason why a client may give such instructions.
14	With regard to penalty, there are a number of factors which Mr Raniga can rely on in mitigation:
•	The fact that in recent years there has been a shift in the way which the community, the courts and regulators regard such conduct – it is now viewed more seriously – as the circumstances of this case demonstrate.
•	The insight demonstrated by Mr Raniga, as shown by his correspondence, his plea of guilty and his full cooperation in this process.
•	The adverse impact on Mr Raniga and his practice. This includes the expense of briefing counsel on two separate occasions in relation to this matter. And also, losing VLA work for the duration of the disciplinary process.
•	The positive character references received on his behalf, as described above.
15	In these circumstances, it is appropriate that Mr Raniga receive a reprimand, and be required to undertake three continuing professional development units in the area of ethics and professional responsibility in addition to the mandatory requirements.
Conclusion
16	For the reasons set out above, Mr Raniga is found to have engaged in professional misconduct, is reprimanded, required to undertake the three additional units of continuing professional development referred to and is to pay costs in the agreed sum of $3,000.
17	Also, for the reasons stated in the Joint Statement, the above order under the Open Courts Act 2013 (Vic) is made, to protect the privacy of litigants in the family law proceedings.

J. Smithers
Senior Member