Dos and Don’ts in Advocacy when your reputation and license to practice is on the line.
Be it the Building Practitioners Board Victoria, the Building Professions Board NSW or any other occupational licensing body for that matter, if as a result of an investigation you are prosecuted and compelled to appear before a disciplinary licensing body, your livelihood and reputation is at stake. The difference between moderate censure and severe censure often boils down to the calibre of the advocacy. So let’s look at what is laudable advocacy and compare it with counterproductive advocacy.
Take disciplinary censure very, very seriously; after all your livelihood is at stake.
Don’t be your own advocate - "only a fool has himself for a client.”
Choose your advocate very carefully, get a lawyer who is an expert in disciplinary and occupational licensing advocacy, even if they are expensive. Alas, the best advocates are generally the most expensive advocates. It's a false economy to elect not to use the best in the field if this determines whether you keep your licence.
Get fresh on point references from people of good repute.
Once investigated, immediately reflect upon what went wrong. Get advice on how to effect systematic change to ensure that the cause of the professional problem is identified and cured. If one can give evidence that one has identified the problem that led to the professional failure and has put in place systems to ensure that it can ever happen again, this tends to bode well with decision-makers.
Be contrite, genuinely contrite and be respectful.
If guilty, fess up, admit the mistake and for God's sake don’t fight the unwinnable point. Don’t contest the incontestable, for it is only the fool that engages in such folly. Nothing will alienate a decision-maker faster than arrogance and the running of silly technical points, particularly when there is evidence of prima facie guilt.
Give evidence of financials and dependants, because if a fine is handed down, one's financial status will influence the decision maker's penalty disposition.
Prepare, prepare , prepare; don’t underestimate the importance of meticulous preparation and being able to access advocates adept at same.
In this jurisdiction, where the decision-maker is in the seat of power in that he, she or they can determine whether “you are rubbed” out or not, don’t be arrogant and don’t be a “smart arse.” Petulance and irreverence, particularly where there is a serious case to answer, will increase the chances of being unceremoniously poleaxed.
Don’t choose an advocate who likes taking silly points.
Don’t choose an advocate who doesn’t specialise in professional misconduct advocacy.
Don’t chose an advocate who is arrogant, whose demeanour is such that it will alienate the decision maker. Remember, the advocate doesn’t have the power and neither does the respondent. The decision-maker has all the power and a filibustering, haughty advocate can be entirely counterproductive.
Don’t be scared of fessing up. If you are guilty, face up to it. Don’t obfuscate. Confront the guilt, own up to it then do a damn good plea in mitigation.
This was written by Professor Kim Lovegrove of Lovegrove Solicitors, a defence counsel and a past Chair of a state practitioner registration and disciplinary board that preside over 24,000 registered building practitioners. He is also the co-author of Disciplinary Hearings and Advocacy.