A Legal Practitioner v The Law Society of Tasmania

[2005] TASSC 28

[2005] TASSC 28

CITATION:              A Legal Practitioner v The Law Society of Tasmania [2005] TASSC 28

PARTIES:  A LEGAL PRACTITIONER
  v
  LAW SOCIETY OF TASMANIA (THE)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 62/2004
DELIVERED ON:  29 April 2005
DELIVERED AT:  Hobart
HEARING DATE:  22 April 2005
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Professions and Trades – Lawyers – Misconduct, unfitness and discipline – Disciplinary proceedings – Statutory tribunals – Tasmania – Serious neglect and undue delay – Whether unprofessional conduct or professional misconduct.

Law Society v Turner (2001) 11 Tas R 1; In re R, A Practitioner of the Supreme Court [1927] SASR 58, referred to.
Legal Profession Act 1993 (Tas), s56.
Aust Dig Professions and Trades [134]

REPRESENTATION:

Counsel:
             Appellant:  S P Estcourt QC
             Respondent:  M E O'Farrell
Solicitors:
             Appellant:  Worsley Darcey & Associates
             Respondent:  Clerk Walker

Judgment  Number:  [2005] TASSC 28
Number of paragraphs:  22

Serial No 28/2005
File No LCA 62/2004

A LEGAL PRACTITIONER v THE LAW SOCIETY OF TASMANIA

REASONS FOR JUDGMENT  UNDERWOOD CJ

29 April 2005

The issue

1. The issue on this appeal is whether the Disciplinary Tribunal, constituted pursuant to the Legal Profession Act 1993 ("the Act"), s66, erred in categorising the appellant's admitted misconduct as "professional misconduct" instead of "unprofessional conduct" and consequently erred in the orders of fine and costs that it made.

The Facts

1. None of the material facts were in issue before the Tribunal.  The appellant was admitted to practice in 1985.  He was a partner in a Launceston firm of solicitors.  In April 2000, the appellant became the managing partner of the firm.  At the same time, he took over the litigation practice of the former managing partner who had resigned.

1. On or about 9 August 2001, he agreed to act for the complainant, Mr McCausland.  The Veterans' Review Board had rejected the complainant's claim for war service entitlements arising out of anxiety.  The complainant asked the appellant to act on his behalf and institute an appeal to the Administrative Appeals Tribunal against the Board's decision.  At the initial consultation on 9 August 2001, the appellant took possession of the complainant's personal file and agreed to make an application for legal aid for an appeal.  The appellant lodged that application the next day, 10 August 2001.

1. On or about 19 November 2001, the Legal Aid Commission granted aid for the appellant to investigate the merits of the proposed appeal and to report back to it.  However, the appellant made no such investigation or report.  Between 19 November 2001 and 18 July 2002, a period of eight months, the appellant did nothing to prosecute the complainant's instructions.  During this eight month period, the appellant lost the complainant's personal file. 

1. On 17 May 2002, the complainant telephoned the appellant's office for the first time after the grant of aid the preceding November.  He was unable to speak to the appellant.  Four days later, he was able to speak to the appellant on the telephone.  The appellant told Mr McCausland that he did not recall the instructions he had been given, but would telephone him later; presumably after looking for the file.  However, again, the appellant did nothing.

1. On 18 July 2002, after several more calls from the complainant to the appellant's office, the complainant saw the appellant.  The appellant told the complainant that he had lost his file, that he would apply again for legal aid and would apply for an extension of time within which to appeal to the Administrative Appeals Tribunal.  But, once again, the appellant did nothing. 

1. Between 18 July 2002 and 9 December 2002, the complainant phoned the appellant's office on 16 occasions, but was always unable to speak to him.  On 17 February 2003, 18 months after the appellant accepted the instructions, the complainant made a complaint to the Law Society.  The Law Society referred the complaint to the appellant, who immediately responded with a full admission of his misconduct and an explanation that it was due to the pressure of work.  By the same letter the appellant offered to act for the complainant on a fresh application for war service benefits free of charge. 

1. Pursuant to the Act, s64, the Council of the Law Society referred the complaint to the Disciplinary Tribunal.  On 6 July 2004, the Disciplinary Tribunal heard the complaint and the majority determined that the conduct I have described amounted to professional misconduct.  A fine of $3,000 was imposed and the appellant ordered to pay the costs of the proceedings.

1. As a result of the appellant's misconduct, the complainant was out of time to appeal to the Administrative Appeals Tribunal and eventually outside the time permitted to apply for an extension of time within which to launch an appeal.  The latter time expired either just before or just after the time that the practitioner saw the complainant in July 2002.  Fortunately for the complainant he was able to make another application for war service entitlements.  It was successful.  The appellant paid the complainant the amount of benefits that he would have received had the appellant made a timely appeal to the Administrative Appeals Tribunal and the Tribunal reversed the original decision not to grant war service entitlements, so the complainant was not out of pocket because of the appellant's inactivity.

The appeal

1. The notice of appeal asserts that error attended the making of the orders of fine and costs in that the Tribunal erroneously found that the appellant's conduct amounted to professional misconduct when they should have found that it was the less serious offence of unprofessional conduct.  The Act, s56, provides these definitions:

'professional misconduct' includes conduct on the part of a practitioner which results in ¾  

(a)   a contravention or failure to comply with ¾  

(i)any provision of this Act or any regulations, rules or by-laws made under this Act; or

(ii)any terms and conditions imposed under this Part; or

(b)   fiduciary default; or

(c)   any serious neglect or undue delay; or

(d)   the charging of excessive fees or costs; or

(e)   consistent or substantial failure to reach reasonable standards of competence and diligence;

'unprofessional conduct' includes ¾  

(a)   professional conduct that falls short of a standard of conduct that a member of the public is entitled to expect of a practitioner of good repute and competency; and

(b)   conduct of a kind referred to in paragraphs (c), (d) and (e) of the definition of 'professional misconduct' but of a lesser degree of seriousness."

The legislation

1. On 26 July 2004, the Tribunal, comprising six members, delivered reasons for the orders made at the hearing on 6 July.  In those reasons the Tribunal identified a difficulty that arises out of the statutory definition of professional misconduct.  Paragraph (a)(i) of that definition defines professional misconduct as including conduct which results in:

"a contravention or failure to comply with any provision of this Act or any regulations, rules or by-laws made under this Act."

1. Prima facie, this means that any breach of the Rules of Practice (Statutory Rule 229/1994), however trivial or insignificant, is professional misconduct.  Before the Tribunal the respondent pleaded that the appellant's misconduct amounted to professional misconduct on the basis that there had been a breach of the Rules of Practice, r10(a) and (b), and/or that there had been:

·   serious neglect and undue delay; and/or

·   consistent or substantial failure to reach reasonable standards of competence and diligence.

1. Rules of Practice, r10(a) and (b), provides:

"(1)A practitioner must do his or her best to complete a client's business ¾

(a)   in a competent manner; and

(b)   within a reasonable time."

1. Like all mandatory prescriptions, this aspect of the definition of professional misconduct allows for no quantitative or qualitative assessment of the contravention or failure to comply with the Act or Rules, Regulations or By-laws to evaluate the seriousness of the breach.  Any failure by a practitioner to "do his or her best" to complete a client's business in a competent manner, regardless of degree or manner of departure from the statutory standard, is, by definition, professional misconduct.  The same can be said with respect to a failure by a practitioner to do his or her best to complete business within a reasonable time.  The failure may have been gross and part of a consistent pattern of misconduct, or the failure may have been minor and an isolated event caused by unusual circumstances.  To sharpen this criticism of mandatory prescriptions, devoid of any qualitative or quantitative assessment of what will constitute professional misconduct, I point out by way of example, that an isolated breach or failure to comply with the following Rules of Practice constitutes professional misconduct:

"6 ¾ (3)    An application for approval [by the Society for approval to use a firm name other than one that includes the practitioner's name] is to ¾

(a)be in writing; and

(b)specify the proposed firm name; and

(c)be lodged with the Executive Director."

"10 ¾ (2)  A practitioner must inform a client of all significant developments in that client's matter unless the client has instructed otherwise."

"15  A practitioner must inform a client of any entitlement to apply for legal aid."

"16 ¾ (1)  Subject to any guidelines issued by any scheme relating to legal assistance, a practitioner must inform the administrator of that scheme if the practitioner ¾

(a)forms the view that a client in receipt of legal aid no longer has a reasonable prospect of success; or

(b)is instructed about any significant change in the financial position or other circumstances of a client in receipt of legal aid.

(2)       A practitioner must inform a client of any matter communicated under subrule (1)."

"88    A person who elects to practise solely as a barrister must cause his or her name to be placed on the list under rule 98(d) of persons admitted and electing to practise solely as barristers."

1. With respect to each of those provisions, I would respectfully suggest that generally, an isolated failure to comply, due, perhaps, to mere oversight, is most unlikely to be viewed by reasonable and competent practitioners as unprofessional conduct, let alone professional misconduct.  However, the matter does not arise for judicial determination on this application because the Tribunal suggested to counsel for the Law Society that a finding of serious neglect or undue delay was "in itself more serious than a failure to do his best to complete business within a reasonable time".  Counsel, quite correctly pointed out that the statutory definition "gives no licence" for that approach, but in the end it was accepted by the Law Society that if there was a finding of serious neglect or undue delay, there was no need to consider whether there was also a breach of Rules of Practice, r10(a) and (b). It was further agreed that as serious neglect or undue delay could also be unprofessional conduct, the Tribunal should determine which it was in this case and, if the latter, there would still be no need to consider a breach of r10(a) or (b).

1. Counsel for the appellant conceded that there had been serious neglect and delay.  He submitted, however, that such neglect and delay fell within the definition of unprofessional conduct and did not amount to professional misconduct.  The drafting of the definition of unprofessional conduct is not helpful.  It required the Tribunal to determine whether the "serious neglect and undue delay" of the practitioner was of a "lesser degree of seriousness" than the "serious neglect and undue delay".  The definition is entirely circular.  However, the Court is obliged to give some meaning to the legislative enactment; see Scott v Moses (1957) 75 WN (NSW) 101. It is necessary to take a commonsense approach to a complaint that there has been conduct by a practitioner that resulted in serious neglect and/or undue delay. The conduct must be evaluated to determine its degree of seriousness. Such an evaluation should proceed upon the basis articulated by Crawford J in Law Society v Turner (2001) 11 Tas R 1 at par51:

"In a general sense, professional misconduct should be regarded in this State as a more grave form of misconduct than unprofessional conduct. There may well be an overlap and the same conduct might in some cases amount to both of those things."

1. As his honour said in the same case, the statutory definitions of professional misconduct and unprofessional conduct are inclusionary and therefore the common law definitions of professional misconduct and unprofessional conduct apply in addition to the statutory definitions.  In In re R, A Practitioner of the Supreme Court [1927] SASR 58, the Full Court of South Australia, at 61, said that unprofessional conduct included "conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency", while professional misconduct is something that has been done by the practitioner "which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency".

1. Neglect and delay can be of short duration, but with resultant serious adverse consequences.  It may be of short duration but with no, or few, adverse serious consequences.  It may be isolated conduct and out of character, or it may form part of a general pattern of neglect and delay.  It may relate to a substantial matter or a minor matter.  It may or may not have taken place as a result of unusual circumstances in which the practitioner found himself or herself.  The permutations are virtually endless.  The Tribunal's task is to evaluate the serious neglect and/or delay to determine whether it is professional misconduct or unprofessional conduct.  Such evaluation must be qualitative and quantitative and like all evaluations, must have a standard or standards against which the qualitative and quantitative measurements are made.  That standard can only be that set by the common law, namely, the conduct observed or approved of by members of the legal profession of good repute and competency.  The statutory definition makes all serious neglect or undue delay unprofessional conduct, but it will only become the more serious professional misconduct if it is so bad that practitioners of good repute and competency would reasonably consider that it had reached the stage where it could be described as disgraceful or dishonourable.  I can see no other reasonable basis for construing the two definitions of serious neglect or undue delay.

1. In its reasons for determination, the Tribunal recited the evidence in pars11 – 16.  It noted, at par13, that a lapse of time does not necessarily constitute serious neglect or undue delay and said, at par17:

"Nothing was advanced by Mr Worsley which could, in our view, justify such wanton disregard of a client's instructions and of his interests, nor such consistent failure to communicate with that client.  Much material was put forward as to the respondent's circumstances at the time and his actions after the complaint had been made.  This is all highly relevant to the question of what orders should be made, but we do not see it as particularly relevant to the question of whether the conduct admitted amounts to professional misconduct.  The fact of the matter is that the respondent accepted Mr McCausland's instructions to lodge an appeal to the Administrative Appeals Tribunal and did practically nothing towards that end for more than 18 months, during which period the right of appeal was irretrievably lost."

Was there error?

1. Although the members of the Tribunal were unanimous with respect to the orders that were made, one member wrote a dissenting opinion on the issue of whether the conduct was professional misconduct or unprofessional conduct.  He expressed the view that although there had been serious neglect and undue delay, he was not satisfied that the conduct "had the character or disgrace or dishonour that ordinarily accompanies a finding of professional misconduct".  In my opinion, he was right to so conclude.

1. The Tribunal applied a quantitative evaluation to the conduct, and correctly found that there had been a wanton disregard of the client's instructions and a consistent failure to communicate with that client.  Such conduct must be unprofessional conduct by reason of the statutory definition and hypothetical practitioners of good repute and competency would no doubt opine that such conduct fell short of their standards.  But would they go further and say that the conduct was so far short of their standards that it had the flavour of being disgraceful or dishonourable?  The consequences of the appellant's conduct were serious for they deprived the complainant of the right to take legal proceedings that he would have taken but for the conduct.  Further, the conduct persisted for a period just short of 18 months.  However, that conduct was an isolated event in that it did not form part of a general pattern of serious neglect and delay by the appellant.  It was inexcusable, but as the dissenting member of the Tribunal observed, the conduct did not carry with it the necessary attributes of dishonour or disgracefulness.  It is a question of degree, but overall I have reached the conclusion that the conduct was not stamped with the requisite degree of turpitude or shamefulness that was necessary before it could be correctly characterised as professional misconduct. 

1. Error attended the making of the Tribunal's orders.  I will hear counsel with respect to the final disposition of this appeal.