Council of the Law Society of the Act v Legal Practitioner 2
[2016] ACAT 120
•4 November 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER 2 (Occupational Discipline) [2016] ACAT 120
OR 34 of 2015
Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioner – failure to respond to correspondence – unsatisfactory professional conduct – private reprimand – non-publication order
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 38, 39, 55
Legal Profession Act 2006 ss 386, 387, 423A, 425, 454, Part 4.9
Cases cited:Byrne v Council of the Law Society of theACT [2015] ACAT 19
Council of the Law Society v Legal Practitioner 2 [2016] ACAT 81
Council of the Law Society of the ACT & Legal Practitioner W [2013] ACAT 1
Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68
Tribunal: Presidential Member M-T Daniel
Date of Orders: 4 November 2016
Date of Reasons for Decision: 4 November 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 34/2015
BETWEEN:
COUNCIL OF THE LAW SOCIETY OF THE ACT
Applicant
AND:
LEGAL PRACTITIONER 2
Respondent
TRIBUNAL: Presidential Member M-T Daniel
DATE:4 November 2016
ORDER
Being satisfied that the respondent has engaged in conduct which is unsatisfactory professional conduct, it is ordered:
Grounds 5 to 8 inclusive and Ground 10 of the Second Further Amended Application filed 11 April 2016 are dismissed.
The respondent is privately reprimanded.
The respondent is to pay the applicant’s costs of the proceedings in the sum of $100,000 (one hundred thousand dollars), such payment to be made over four years by equal monthly instalments to be paid on the first of each month commencing 1 December 2016.
The publication of the name of the respondent in relation to these proceedings is prohibited.
There is to be no access by a non-party to the record of the hearings in these proceedings, or to the Tribunal’s file for the proceedings, except by order of the Tribunal.
The parties have liberty to apply to the Tribunal for any further orders necessary to facilitate the private nature of the reprimand.
The hearing listed for 12, 13 and 14 December 2016 is vacated.
………………………………..
Presidential Member M-T Daniel
REASONS FOR DECISION
Background
On 1 September 2015 the Council of the Law Society (Council) filed an application for disciplinary action in relation to the respondent (practitioner). The journey from that filing to this decision has not been straightforward, involving multiple amendments to the application and two interlocutory applications. The application itself was borne out of prior litigation of some complexity, involving other parties, both in this Tribunal and the Supreme Court.[1]
[1] The history of the proceedings in this Tribunal, and the prior litigation, is set out in Byrne v Counvil of the Law Society of theACT [2015] ACAT 19 and Council of the Law Society v Legal Practitioner 2 [2016] ACAT 81 and need not be repeated here
The matter was listed for final hearing on 12 – 14 December 2016. On 27 October 2016 a preliminary conference was held to facilitate settlement or narrowing of the issues in anticipation of the final hearing. The parties having reached an agreement in principle, the matter came before the Tribunal late on 27 October 2016 to consider a proposal for resolution of the matter. The parties filed a written joint submission and Counsel appeared before the Tribunal to make oral submissions.
The parties proposed that the Tribunal finalise the disciplinary application without proceeding to a full hearing, by way of a finding of unsatisfactory professional conduct in relation to one ground, a private reprimand, dismissal of the remaining grounds, and an order for costs.
The legal framework for this decision
Although the joint submission referred to the parties seeking that the Tribunal make orders ‘by consent’, pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), it is well established that in disciplinary proceedings, although resolution of matters by agreement must be encouraged, the Tribunal does not simply issue orders as agreed upon by the parties.
I have previously written in this respect:
As identified in Medical Board of Australia v Martin [2013] QCAT 376 there is a public interest in parties to an occupational discipline matter being able to identify areas of agreement, and seeking to resolve the matter by way of consent orders. However the role of the Tribunal is not to simply issue orders as requested by the parties. In making an order for occupational discipline, even where by consent, the Tribunal must actively consider the facts that are agreed, the characterisation of those facts and the orders proposed as an appropriate response to the matter.[2]
[2] Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68
There is no question that the Tribunal has jurisdiction under the Legal Profession Act 2006 (LPA), and that the proposed orders are within the power of the Tribunal. Counsel’s submissions focused on:
(a)whether it was appropriate that certain grounds of the application should be dismissed;
(b)the facts which were agreed in relation to the remaining ground;
(c)the correct characterisation of those facts;
(d)whether the proposed orders were appropriate in the circumstances; and
(e)what, if any, ancillary orders would be necessary if a private reprimand were to be made.
At the conclusion of the hearing on 27 October 2016 I reserved my decision, and advised the parties I would provide a written decision and issue orders in chambers if I accepted the joint submission, but would arrange for the matter to be relisted if I did not accept the joint submission, or wished to hear further argument or evidence.
Having considered the matter, I have decided that it is appropriate for the proceedings to be resolved on the basis proposed. I am also satisfied that the orders proposed are appropriate. The following are my reasons.
Reduction in grounds pressed
The application initially set out 10 instances or ‘grounds’ on which disciplinary action might be founded. Grounds 1-4 related to an alleged conflict of interest. These grounds were withdrawn with the consent of the Tribunal on 1 April 2016, because the evidence which had by that time been filed demonstrated that those grounds were not sustainable.
Grounds 5, 6 and 9 relate to an alleged failure by the practitioner to advise his client, in the context of Supreme Court litigation, to discover certain accounting documents. Ground 9 in particular refers to a failure to respond to legal correspondence on that topic.
Grounds 7, 8 and 10 relate to an allegedly inappropriate claim of privilege made over certain documents in those Supreme Court proceedings.
In the joint submission of the parties the practitioner admits ground 9. The parties seek that the remaining grounds be dismissed.
The question for the Tribunal is whether the remaining grounds should be the subject of full hearing, despite the agreement reached in relation to the matter. This is a pertinent question given the history of these and the earlier proceedings.
In Byrne v Council of the Law Society of theACT [2015] ACAT 19 the Tribunal ordered the Council to bring these proceedings against the practitioner, because it was satisfied that there was a reasonable likelihood that the Tribunal would make a finding of either professional misconduct or unsatisfactory professional misconduct.[3]
[3] Byrne v Council of the Law Society of theACT [2015] ACAT 19 at [106]
Earlier in these proceedings, the practitioner sought that they be struck out or stayed on the basis that they were an abuse of process. In refusing that application on 21 July 2016[4], the Tribunal stated:
(a)the remaining grounds referred to “important obligations, linked to the role of lawyers in the fair and efficient administration of justice.”[5]
(b)the “history of the matter suggests that rather than dismissal, a full hearing of the allegations is the more appropriate course”[6];
(c)[the abuse of process] hearing did not involve a full hearing of all of the relevant evidence in relation to the amended disciplinary application[7]; and
(d)“In the Tribunal’s view the disciplinary proceedings should proceed to a hearing. This decision should not be taken to suggest anything about the likely outcome of these proceedings, or the level of seriousness of the allegations.”[8]
[4] Council of the Law Society v Legal Practitioner 2 [2016] ACAT 81
[5] at [79]
[6] at [85]
[7] at [85]
[8] at [90]
On 23 September 2016 the practitioner filed his witness statement. In this statement he explains that in relation to the claims of privilege over documents, the practitioner received advice from Counsel. The witness statement also provides the broader factual context to the undiscovered accounting documents.
The recently filed witness statement is important in two respects. First, whilst reliance on Counsel’s advice does not absolve a practitioner of their duties to Court and client, this evidence nonetheless sets out a factual context that provides the possibility of the Tribunal reaching a different finding in relation to grounds 5-8 (inclusive) and ground 10 than that sought by the Council.
Secondly, Counsel submitted that because this information was unknown to the Tribunal when it directed the Council to bring these proceedings, and unknown to the Tribunal when it made the comments summarised at paragraph 15 above, there is no inconsistency between the earlier Tribunal decisions and the outcome now proposed. I accept Counsel’s submission in this respect.
Counsel submitted that making the orders sought without further hearing would serve both to protect the public and to aid in the just, quick and inexpensive disposal of the proceedings, as contemplated by section 6 of the ACAT Act. I accept that there would be little utility in, and no public interest served by, requiring the parties to proceed to a full hearing in relation to all of the grounds, given the proposed outcome in relation to ground 9. I am satisfied that it is appropriate to determine the matter on the basis proposed, which includes dismissing grounds 5-8 and 10, without requiring a full hearing.
Agreed facts
In relation to ground 9, the parties agreed the following expurgated facts as contained in paragraphs 29-37 of the second further amended application:
29. On 22 June 2010, Colquhoun Murphy wrote to P2 stating that parts of the General Ledger were incomplete or missing from the discovered documents.
30. On 6 July 2010, Colquhoun Murphy wrote to P2 noting that no response had been received to their 22 June 2010 letter, ...
31. Between on or about 6 July 2010 and October 2010, the Deputy Registrar of the ACT Supreme Court directed that the defendants provide a response to the 22 June 2010 letter by 10 October 2010 (Deputy Registrar's direction).
32. On 10 October 2010, P2 on behalf of the defendants did not, pursuant to the Deputy Registrar's direction, respond to Colquhoun Murphy with respect to the 22 June 2010 letter.
33. On 27 October 2010, Colquhoun Murphy wrote to P2 noting that the defendants had not complied with the Deputy Registrar's direction and noting that it would shortly make an application under r 1404 of the Court Procedure Rules and seek its costs of the application (27 October 2010 letter).
34. On 17 March 2011, Dibbs Barker, Simon Byrne's then solicitors, wrote to P2:
(a) noting that the defendants had yet to respond to the 22 June 2010 letter in breach of the Deputy Registrar's direction, and had failed to respond to the 27 October 2010 letter, and accordingly remained in default of their discovery obligations; and
(b) putting the defendants on notice that it would apply to the Court for further directions with respect to the defendants' incomplete discovery and for a costs order for that application.
35. On 10 May 2011, Dibbs Barker wrote to P2 noting that the defendants remained in default of their discovery obligations with respect to the matters raised in the 22 June 2010 letter and requested that the defendants urgently provide the missing documents by 12 May 2011 ahead of the upcoming mediation of the Litigation on 18 May 2011.
36. P2 did not respond to Dibbs Barker by 12 May 2011 with respect to the 10 May 2011 letter.
37. On 17 May 2011, the day before the mediation in the matter, P2 responded to the 22 June 2010 letter stating that of the documents sought, relevantly, the Reconciliation report and the General Ledger were provided by RSM Bird Cameron, the accountants of the Company, and not by the Company or any of the non-Company defendants and accordingly by reason of that provenance a complete copy of such documents could not be provided (17 May 2011 letter).
Characterisation
The Council submits, and the practitioner admits, that his conduct as summarised above in relation to ground 9 constitutes unsatisfactory professional conduct.
I agree that the conduct there described amounts to unsatisfactory professional conduct, that is, it is conduct “that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.”[9] While dilatoriness in responding to correspondence in relation to matters of discovery could potentially amount to ‘professional misconduct’. I do not consider that the material before the Tribunal unarguably supports such a characterisation of the conduct in this case.[10]
Other relevant matters
[9] Legal Profession Act 2006 section 386
[10] Such conduct would need to amount to a substantial or consistent failure to meet the required standard of practice, or other behaviour which indicates the practitioner is not a fit and proper person. Section 387 Legal Profession Act 2006
Subjective factors are relevant to the question of what orders should be made as a consequence of the finding of unsatisfactory professional conduct. Counsel drew the Tribunal’s attention to the practitioner’s admission of the relevant conduct prior to final hearing, thus saving the Council and the Tribunal, and thereby the profession and the public, the expense of a full hearing.
It is also relevant that the conduct took place in the context of complex Supreme Court proceedings more than five years ago. Although undeniably upsetting to the complainant involved in that litigation, those proceedings ultimately settled on favourable commercial terms to the complainant.
The parties also noted that the practitioner has been a highly successful partner of a major law firm for 18 years, with no prior disciplinary history. Prior to the complaint and these proceedings he had been an involved and respected member of the profession.
Decision
The purpose of orders made in disciplinary proceedings under the LPA is not to be punitive, but to protect the public. Counsel jointly submitted that a private reprimand would achieve this aim, and would be appropriate and within the range of orders that would be open to be made, bearing in mind that the practitioner has no antecedents and is otherwise of good standing.
The distinction between a private and public reprimand, and the purposes achieved by each, was discussed by the Tribunal in Council of the Law Society of the ACT & Legal Practitioner W [2013] ACAT 1, at paragraphs 76 - 85.
Importantly, a private reprimand can be made under section 425(3)(e) of the LPA only where the Tribunal is satisfied that ‘special circumstances’ exist. The length of practice and lack of prior disciplinary proceedings in relation to the practitioner, and the fact that there was ultimately no adverse impact upon the complainant’s litigation, amount to such special circumstances. The precondition for the making of a private reprimand is satisfied.
I accept Counsels’ submissions that a private reprimand would be an appropriate response to the finding of unsatisfactory professional conduct in this matter. In reaching this conclusion, I take into account the relative seriousness of the failure by the practitioner, the practitioner’s disciplinary history, and the admission made prior to final hearing. I also take into account that the LPA requires that in the ordinary course the practitioner must pay the Council’s costs of these proceedings, and in this case those costs are significant.
Ancillary Orders
Practical issues arise for both the Tribunal and the Council when the Tribunal issues a private reprimand.[11]
[11] See Law Society v W at [86]-[88]
For the Tribunal, due to the requirement of a public hearing in section 38 of the ACAT Act and operation of section 423A of the LPA, disciplinary decisions in relation to legal practitioners are usually the subject of a written decision which is publically available and in due course reveals the identity of the practitioner.
For the Council, an obligation is imposed by Part 4.9 of the LPA to maintain a public register of disciplinary action, naming each legal practitioner who has been the subject of disciplinary action and specifying the action taken. These requirements are on their face inconsistent with the concept of a private reprimand.[12] Section 454 of the LPA makes the requirements of Part 4.9 subject to any order of the Tribunal, but the operation of that provision is unclear.
[12] The fact that these publication requirements do not distinguish between private and public reprimands was identified as an issue in the model provisions produced by the legal profession model laws project at section 4.11.1, the issue was left to individual jurisdictions to manage
In order to maintain the private nature of the reprimand, at least in relation to the Tribunal’s responsibilities for publication and public access to information, I will make orders for non-publication of the practitioner’s name and restricting public access to the file for these proceedings pursuant to section 39 of the ACAT Act. I am satisfied that the interests of justice served by the issuing of a private reprimand as the appropriate order in this case outweigh the right to a public hearing. The publication of these reasons, albeit anonymised, will go some way to meeting the public interest ordinarily served by a public hearing.
Should the Council require further or different orders to maintain the private nature of the reprimand in the context of its obligations under Part 4.9 of the LPA, it may apply to the Tribunal.
………………………………..
Presidential Member M-T Daniel
HEARING DETAILS
FILE NUMBER: | OR 34/2015 |
PARTIES, APPLICANT: | Council of the Law Society of the ACT |
PARTIES, RESPONDENT: | Legal Practitioner 2 |
COUNSEL APPEARING, APPLICANT | Mr Beaumont SC, Ms Withana |
COUNSEL APPEARING, RESPONDENT | Mr Still SC, Mr Walsh SC, Mr Larking |
SOLICITORS FOR APPLICANT | Ms Shaw, Eakin McCaffrey Cox Lawyers |
SOLICITORS FOR RESPONDENT | Mr McCarthy, Bradley Allen Love |
TRIBUNAL MEMBERS: | Presidential Member M-T Daniel |
DATES OF HEARING: | 27 October 2016 |
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