Council of the Law Society of the Act v Legal Practitioner 201920 (David Chen) (Occupational Discipline)
[2020] ACAT 31
•6 May 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER 201920 (David Chen) (Occupational Discipline) [2020] ACAT 31
OR 20/2019
Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioner – solicitor lied to a tribunal about why he was not available for a hearing – repeating lies to client and Law Society – solicitor suffering stress and psychological issues at the time – finding of professional misconduct – public reprimand – practising certificate not to be issued before 30 June 2025
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 65
Legal Profession Act 2006, ss 419, 423A
Cases cited:Council of the Law Society of the ACT v Banderage [2019] ACTFC 1
Council of the Law Society v LP 12 [2019] ACAT 121
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Law Society of the ACT v Powrie (2017) 12 ACTLR 184
Legal Practitioner 201823 (Eunice Ryan) v Council of the Law Society of the Australian Capital Territory [2019] ACAT 97
Legal Practitioner v Council of the Law Society of the ACT[2018] ACTCA 19
New South Wales Bar Association v Cummins [2001] NSWCA 284
List of
Texts/Papers cited: Dal Pont, GE Riley, Frank. Riley Solicitors Manual, (2005, Lexis Nexis Butterworths) (updated June 2019)
Tribunal:Senior Member B Meagher SC
Date of Orders: 6 May 2020
Date of Reasons for Decision: 6 May 2020
AUSTRALIAN CAPITAL TERRITORY)
CIVIL & ADMINISTRATIVE TRIBUNAL) OR 20/2019
BETWEEN:
COUNCIL OF THE LAW SOCIETY OF THE ACT
Applicant
AND:
LEGAL PRACTITIONER 201920
Respondent
TRIBUNAL: Senior Member B Meagher SC
DATE:6 May 2020
ORDER
The Tribunal finds that the conduct of the practitioner set out in the Joint Submission considered globally, amounts to professional misconduct.
The Tribunal orders that:
1.The practitioner is publicly reprimanded.
2.The practitioner is to pay the Council’s legal costs at the rate of 90% of solicitor-client costs and disbursements in full with such costs to be agreed or assessed.
3.From the date of this order, the parties are not to disclose to any third party, save for their legal advisers and the Law Society of the Australian Capital Territory:
(a) the respondent’s name;
(b) any document (or the content of any document) received by the Tribunal in this proceeding (save for any document that exists as a matter of public record); or
(c) the transcript of the proceeding.
until the time in section 423A of the Legal Profession Act 2006 (the Act) elapses unless required to do so in accordance with a lawful direction or requirement.
4.Public access to the Tribunal’s file is prohibited until the time in section 423A of the Act elapses.
5.Pursuant to section 425(3)(c) of the Act a local practicing certificate is not to be granted to the respondent before the 30 June 2025 unless:
(a) The application is for a restricted practicing certificate only.
(b) The respondent has consulted a registered psychologist or psychiatrist for the purposes of treatment for the condition described in the report of Professor Stevens dated 12 February 2020 in this matter.
(c) The person treating the respondent pursuant to (b) has been given a copy of these reasons and a copy of the report of Professor Stevens.
(d) The respondent complies with any treatment proposed by the treating mental health practitioner.
(e) The treating mental health practitioner provides a report that the respondent has complied with the treatment that he or she advised and that the respondent has now recovered from the condition described by Professor Stevens so that from a psychological perspective there is no reason to expect that the respondents conduct will be affected by this psychological condition either at all or provided he continue with treatment as set out.
(f) The report in (e) accompanies any application for the restricted certificate.
(g) He provides proof that he has attended the courses required by the Tribunal in Council of the Law Society v LP 12 [2019] ACAT 121.
(h) That he accepts a condition of the restricted practicing certificate that he be supervised by a senior practitioner in any legal work he undertakes and that he arrange for a senior practitioner to provide him with mentoring and that he continue to comply with any ongoing treatment plan as described in the report.
(i) That any application not be granted to take effect prior to 1 July 2021.
(j) That an unrestricted certificate may be issued by the Council prior to 30 June 2025 if, having regard to the respondent’s conduct after the grant of any restricted practicing certificate, it receives a report from an independent senior ACT legal practitioner who is the holder of an unrestricted practising certificate that he or she has provided mentoring to the respondent in the intervening period and in his or her view the practitioner is now fit to hold such a certificate.
6. Liberty to the parties to apply by notice within 14 days of receipt of these orders in respect of the drafting of order 5 above. In the absence of any application the orders will take effect from 19 May 2020.
………………………………..
Senior Member B Meagher SC
REASONS FOR DECISION
Introduction
1.The applicant (the Council) has brought an application for disciplinary action pursuant to section 419 of the Legal Profession Act 2006 (the Act), against the respondent (practitioner) dated 25 July 2015.[1] The application was amended and its salient allegations, as further amended, are contained in a helpful document described as a ‘Joint Submission’ dated 17 December 2019. In support of the facts that are agreed, the Council relied on an affidavit of Robert Reis, its Professional Standards Manager, dated 9 December 2019. By agreement with the practitioner it excluded from that affidavit and did not read parts of the affidavit and its annexure. The details are in an annexure to these reasons. Exhibit A1 also explains what is now relied on and what is not.
[1] This decision was previously anonymised and cited as Council of The Law Society of The ACT v Legal Practitioner 201920 (Occupational Discipline) [2020] ACAT 31pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.
2.On the question of whether the practitioner was guilty of professional misconduct, the parties agreed that he was. The only issue was what sanctions should be applied. The Tribunal indicated that such a finding, as agreed, was appropriate for the reasons explained in the joint submissions and that such an order or finding would be made. The anonymised joint submission is attached to these reasons.
3.It will be necessary later to refer to the agreed facts in some detail in considering what sanctions should be imposed. In doing so, it will be apparent that the finding of professional misconduct is warranted.
4.Turning to the evidence concerning sanctions, the Council referred to paragraphs in the affidavit of Mr Reis that dealt with two earlier disciplinary matters, tendered as Exhibit A3 and the ACAT decision on penalty Council of the Law Society v LP 12 [2019] ACAT 121.
5.The practitioner relied on nine statements or affidavits. A number of objections were made in a document filed by the Council to parts of this material. The practitioner agreed with the objections and did not read the parts objected to. This included a tenth document being an affidavit of SA[2] dated 19 February 2020.
[2] Names have been anonymised where it might identify the practitioner or for reasons of privacy.
6.A list of what was not read is attached to the reasons as part of an annexure that contains the exclusions from the applicant’s evidence.
7.In addition to the evidence listed in the annexure, the practitioner relied on statements of Murray Maclean dated 16 January 2020; NW dated 11 February 2020 and of SD dated 14 January 2020.
8.The practitioner was briefly examined. Professor Stevens also gave oral evidence and was cross examined. There was no other evidence.
9.The facts that the Tribunal may consider are for the most part uncontested. It is proposed to set out those facts. Reference will be made to some specific contests when explaining the respective submissions.
10.It should be noted that the Tribunal was greatly assisted by two well thought out submissions from both Counsel. The submissions filed on behalf of the respondent were withdrawn and not read but a replacement set was handed up by Mr Archer.[3]
The charges and the agreed facts that support them
[3] As some of the information in them may still identify the practitioner, it is proposed to send a copy of the decision to the parties and to make a suppression order until the time in s423A of the Legal Profession Act 2006 elapses.
11.The practitioner was admitted on 20 December 1996.
12.He has practised as a principal of the firm[4] since 2011 and has been the holder of an unrestricted practicing certificate. It emerged during the hearing that the Council delayed the decision to grant a renewal of his certificate for the year 2019/2020 and he was practising on an interim certificate. He has since withdrawn the application and has ceased to practise as a lawyer. He had the supervision of matters pertaining to the client that had complained.
[4] The name has not been included here.
13.The client had retained the firm and in particular the practitioner to act for him for some years in respect of claims against Comcare. There were three claims, namely a claim concerning his left knee, a claim concerning his right knee and a psychological injury claim. A local counsel had been briefed to act for him in these claims.
14.The matters of concern here started with a prehearing conference with counsel on 14 March 2017 at the firm’s offices. The client, the practitioner and a junior solicitor employed by the firm were present. During that meeting, which had not been scheduled earlier due to unavailability of counsel, the counsel gave the client some pessimistic advice. The client did not agree with it and things became heated. The practitioner was given instructions to withdraw the brief and this occurred. The hearing in the Commonwealth AAT was the next day.
15.The client instructed the practitioner to get another counsel or get the matter adjourned. He was asked if he still had confidence in the firm and the client said he was not sure and needed to get advice.
16.The practitioner approached another barrister who practised in the field, but he wanted substantial funds in trust first. It is not stated in the submissions but, generally, in order to get costs paid by the Commonwealth, success is a prerequisite. The client could not provide such funds. This left the practitioner without counsel and instructions to seek an adjournment. The practitioner emailed the Tribunal seeking to vacate the date for that reason and suggested a directions hearing in the afternoon. This occurred by phone between 2:23pm and 3pm.
17.As is clear from the transcript, it was apparent that the Senior Member was not inclined to grant the adjournment and wanted to know why the practitioner could not run it. The practitioner said he had to take his daughter to a medical appointment and on further questioning said he was not available at all the next day. These statements are admitted to be untrue. All the subsequent conduct flowed from this. He also indicated that his firm may need to resign from the matter as well. The practitioner knew what he said was untrue and the joint submission says that he said it as he hoped to elicit some sympathy from the Tribunal. It did not work and the adjournment was refused.
18.During the directions hearing, it was noted that there was to be concurrent evidence from two psychiatrists who had provided reports for each side.
19.The client’s doctor was on standby and the practitioner asked his junior solicitor to phone that doctor to warn him that the matter may not proceed. He remained on standby.
20.The practitioner emailed his client reporting on what had transpired. He said that he was not available for personal reasons and that the doctor had been put off standby. Those two statements were untrue.
21.Then followed a phone call by the practitioner in which he said he could not appear because he had a long-awaited prearranged appointment for his daughter. The only thing in his diary was the hearing. It is admitted that the statement was false. The practitioner said his junior solicitor could not appear as he was not experienced enough, and the client would have to appear alone and seek an adjournment. He also asked the client to send an email terminating the firm’s retainer. He persuaded the client that this would assist an adjournment. It is admitted that the intention was for strategic reasons to facilitate an adjournment. The client was also told that he could come back to the firm later. It is assumed that was to happen if the case was adjourned.
22.The file note indicated the client was upset and thought the Senior Member was biased against him. The same Senior Member had decided an earlier matter against him. There was more recorded evidence about the client looking for other lawyers. The sacked barrister offered to do it anyway although he still had the same view. He said the practitioner should line up the doctor if that was the case. This seemed to indicate that in the mind of the barrister, the doctor may not be lined up.
23.The practitioner replied that he had been sacked, the firm may also be sacked and that the client would have a better chance of an adjournment if he was unrepresented. The offer was not passed onto the client.
24.The client then terminated the retainer by email.
25.The practitioner then emailed the Registry enclosing a copy of the termination email and asking if the Tribunal wanted the firm to appear as a matter of courtesy. It seems they did not. The practitioner informed the client what he had done and that the client would be on his own.
26.On 15 March the client attended and sought an adjournment, which was opposed. The “client”[5] told the Tribunal that his doctor was now not available. This was news to the Tribunal but after some debate the matter was adjourned for seven days.
[5] By now a former client.
27.The doctor was available and charged for that time.
28.After this, there was some communication between the ‘client’ and the practitioner. The matter was transferred to a new solicitor and then the ‘client’ made the complaint to the Law Society.
29.In his first response to the Law Society on 7 February 2018, the practitioner said that, after the sacking of counsel and the failed adjournment application, a plan was formed to achieve an adjournment by getting the client to terminate the practitioner’s retainer also. He said once that happened the client could come back to him and it could be considered afresh with new counsel. He also expressed surprise about the reference to his excuse about his daughter’s health and said that his daughters were both well and he was not otherwise engaged.
30.Inconsistently with that, having read the transcript, he then wrote to the Tribunal on 28 April 2019[6] saying it was a slip of the tongue and what he meant to refer to was his family or his brother in law.
[6] After he had lost in the Court of Appeal in a matter of LP 12 as to which see later.
31.He then submitted to the Council that the complaint should be dismissed relying on the letter he wrote to the Tribunal.
32.It is possible to see this as an example of the oft repeated comment that the problem about telling a lie is you have to have a good memory.[7] It is also possible to see this as quite bizarre behaviour by an otherwise intelligent person.
[7]“Oh, what a tangled web we weave when first we practise to deceive!” Marmion Walter Scott, Canto VI, stanza XVII.
33.The joint submission then refers to the legislation and the relevant conduct rules. Rule 4.1.2 of the conduct rules requires the practitioner to be honest in all dealings in the course of his practice.
34.Rule 5 refers in the heading to dishonest and disreputable conduct and is also apposite. Rule 19 requires frankness in Court. Rule 43 requires openness and frankness in dealing with the Regulatory Authority.
35.There are five charges and they are admitted.
36.Charge 1 – relates to having “knowingly misled” the Tribunal contrary to rule 19.1[8] on 14 March 2017. The charge relies on the failure to disclose what was really going on when he sent an email at 4.21pm and includes the lie he told his client that his daughter had the medical appointment.
[8] A solicitor must not deceive or knowingly or recklessly mislead the court. It is conceded that court includes Tribunal.
37.Charge 2 – is similar and also refers to the lie told to the client that the psychiatrist had been put off standby.
38.Charge 3 – focusses on the lie he told the Tribunal about his daughter and the later lie he told in 2019 about that being a slip of the tongue.
39.Charge 4 – relies on his telling the client about the daughter excuse.
40.Charge 5 – concerns the response to the Council on 7 February 2018 eschewing the use of his daughter as an excuse and later, on 28 May, telling the Council it was a slip of the tongue when it was not.
41.It is agreed that the charges considered globally constitute professional misconduct. This relies on the later part of section 387(1) of the Act and the common law.[9]
[9] see e.g. Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
42.Reference is made to a number of cases where charges are dealt with globally. One that was overlooked was the decision of Presidential Member McCarthy, Legal Practitioner 201823 (Eunice Ryan) v Council of the Law Society of the Australian Capital Territory [2019] ACAT 97 at [215]-[221]
43.There it was not seen as appropriate, but it would be where the conduct was interwoven as here. In fact, the charges are all aspects of the same initial untruth. The Tribunal agrees with the joint submission that the charges should be dealt with globally.
44.In its submissions on sanctions, the Council referred to a number of cases that explain the importance of honesty and frankness with the Court and the Regulatory Authority.
45.It is proposed to refer to them briefly, so as to explain initially why a finding of professional misconduct is appropriate pursuant to section 65 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).
Cases on honesty and misleading the Court
46.In Law Society of the ACT v Powrie (2017) 12 ACTLR 184 at [88] the Court said:
88. We consider the finding by the ACAT that the practitioner knowingly misled the Magistrates Court in his application for an adjournment of the proceedings before that Court to be the most serious finding (Ground 2A). In Brett v Solicitors Regulation Authority [2014] EWHC 2974 (Admin); [2015] PNLR 2, Lord Thomas CJ said, at [111]:
[M]isleading the court is regarded by the court and must be regarded by any disciplinary tribunal as one of the most serious offences that an advocate or litigator can commit. It is not simply a breach of a rule of a game, but a fundamental affront to a rule designed to safeguard the fairness and justice of proceedings. Such conduct will normally attract an exemplary and deterrent sentence. That is in part because our system for the administration of justice relies so heavily upon the integrity of the profession and the full discharge of the profession’s duties and in part because the privilege of conducting litigation or appearing in court is granted on terms that the rules are observed not merely in their letter but in their spirit. Indeed, the reputation of the system of the administration of justice... and the standing of the profession depends particularly upon the discharge of the duties owed to the court.
47.In Legal Practitioner v Council of the Law Society of the ACT[2018] ACTCA 19 at [72]-[73] the Court said:
72. There are numerous statements which detail the role played and position occupied by a solicitor in the proper administration of justice. It is clear that the system for administration of justice relies heavily upon the integrity of the profession and the discharge of the duties falling upon members of the profession. Members must be able to command the confidence of all the participants in the administration of justice. Elements of that confidence are that the word of the member must be able to be trusted to be true and that the member will not make false statements or create misleading impressions.
73. The conduct engaged in by the appellant, justifies a finding that the appellant is not a fit and proper person to engage in legal practice. This is so whether the conduct is measured directly against the statute or the test derived from conduct which “would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.”(Allinson v General Council of Medical Education and Registration [1894] 1 QB 750).
48.It should be observed that there are two steps to be taken. The first is to decide whether the conduct that includes dishonesty is professional misconduct. The second is whether the practitioner should be struck off the roll. In that case the Court was eliding the two as it was referring to the specific conduct in that case. It will be necessary later to consider what follows here and whether there should be a recommendation by the Tribunal that the practitioner be removed from the roll. As will be seen there are additional matters to consider for that course.
Finding of professional misconduct
49.It is clear from the above that the conduct is professional misconduct and a finding is made that it is.
50.Before leaving the topic of the importance of honesty, a powerful explanation of its importance is that of Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284 at [10]-[20] (approved in Council of the Law Society of the ACT v Banderage [2019] ACTFC 1 at [143]). He said:
There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
51.A fifth interest is that of a regulatory authority such as the Council.
Evidence on sanction
52.The Council identifies two earlier matters in the affidavit by Mr Reis that should be considered.
Prior matters
53.Complaint by V - The first was a matter of a complainant[10] whom I will call V. She was a client in a workplace accident,[11] which was settled at mediation. This matter predated the practitioner’s move to the firm here. The amount of the settlement was $60,000 plus party/party costs. The practitioner negotiated costs at $23,153 without instructions and from the amount of $60,000; $9,114 was deducted being solicitor/client costs and perhaps Medibank repayments. The client said she had expected to get the amount of $60,000 in hand and would not have settled otherwise. The practitioner was dealt with by a resolution of the Council under section 413 of the Act (which precludes a finding of professional misconduct) and issued a public reprimand for failing to obtain instructions on the costs negotiations, failing to provide additional costs disclosure and charging more than the costs agreement allowed. In the second prior matter, known as LP 12, the Tribunal thought this first matter was too remote in time to be relevant. It seems also as far as the information goes to be a miscommunication or lack of it and was certainly not regarded as dishonest. The amounts are not on their face unfair and this matter has little if any weight in determining what an appropriate sanction here is.
[10] The complaint was dated 20 April 2010.
[11] It is assumed that it is a negligence claim not solely a Worker’s Compensation claim as there are special rules about costs for Worker’s Compensation matters.
54.Complaint by S - The second matter arose from a complaint by a client, I will refer to as client S. It gave rise to what became very concerning protracted litigation with enormous costs. The matter arose after the practitioner had started at the current firm. It concerns events in 2011.
55.In essence, the practitioner had acted for the client in a personal injury matter as well as two workers compensation matters. They settled. There was a need to pay a prior firm’s fees and it was hoped that some discount might be obtained from that firm. Although there is some difference between the client’s perspective and that of the practitioner, in general terms at settlement the client was told the costs would be about $47,000. The practitioner went on leave and the client got another principal of the firm to agree that there should be a $5,000 reduction so the fees would be $42,000. The practitioner nonetheless on his return took the extra $5,000. It is not clear what his subjective state of mind was,[12] but he has since accepted that in doing so he acted dishonestly. He has been dealt with in the decision called Council of the Law Society of the ACT v LP 12 (LP 12). The finding on conduct is at [2019] ACAT 68 and on sanction at [2019] ACAT 121.[13] The Council submitted there, as it does here, that a recommendation that the practitioner be removed from the roll be made. The Tribunal was not convinced and instead ordered a public reprimand, compensation of $10,000 and that the practitioner undertakes specific training intended to make him more aware of his ethical responsibilities. No evidence was called there dealing with his mental state. It was submitted that it was wrong to embark on a comparison of seriousness of cases but the Senior Member thought that a passage in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638C,[14] if taken out of context, was inconsistent with many cases where such a comparison was made. In fact, that was a case where the conduct involved sexual misconduct by a doctor with his female patients and that, while there might be worse cases, this one was bad enough.
[12] He was not called at the hearing relating to “guilt” and there was a complicated argument about what was the agreement that failed. It follows form the decision that subjectively he knew what he was doing was wrong.
[13] Exhibit A3
[14] The Tribunal next found that the first two complaints were “relatively minor matters”. We cannot so view these complaints on the Tribunal’s findings and it was not appropriate for the Tribunal to compare them “with many cases that are dealt with in this Tribunal”. The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. The approach of the Tribunal in this case stood the proper principle on its head.
56.In LP 12 the amount of money involved was not large. The fees would have been reasonable but for an agreement to give a discount and there was no deception involved as the client was under no misapprehension that it had happened. It has been conceded to have been dishonest and he has been dealt with for that matter.
57.These two matters are considerably different from what is of concern here.
58.The dishonesty in LP 12 was taking something that he knew he was not entitled to take. Here there were obvious untruths told. The emphasis given to this conduct by the Council is that, given this conduct, the practitioner is inherently unreliable and should not be allowed to remain as a member of a profession where trust is essential.
59.Before moving from the LP 12 case, its history needs to be told. The conduct occurred in 2011. The application to ACAT did not occur until July 2016. A no case submission was made at the first hearing[15] and was entertained. Its outcome led to a review application by the practitioner in the Supreme Court where the practitioner was successful[16] and obtained a costs order. It then went to the Court of Appeal where he was unsuccessful.[17] Costs of the Council were $425,867.66.[18] The practitioner also had to pay substantial amounts to his counsel. He may not have been charged by his own firm for their work. So, over a dispute about $5,000[19] he is out of pocket more than half a million dollars. The impact of these outcomes on the mental condition of the practitioner may well have been significant. Whilst the two cases in the Supreme Court postdate the original conduct here, the conduct occurred after the first hearing in the Tribunal and before the first decision. The first response to the Council conduct occurred after the first Supreme Court decision and the letter to the Tribunal and the Council about the slip of the tongue occurred after the Court of Appeal decision.
[15] On 7 December 2016 and the hearing resumed on 2 March 2017. The initial decision was not made by the Tribunal until 7 July 2017 (see The Council of the Law Society of the Australian Capital Territory v LP 12[2018] ACTCA 60 [13]-[17])
[16] LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27 decided on 23 February 18
[17] The Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60 decided on 6 December 18
[18] Affidavit of the practitioner dated 13 February 2020 at paragraph 59
[19] In fact $2,000 as he repaid $3,000.
60.What seemed to have been overlooked in this expensive and fruitless exercise was what was pointed out by the Court of Appeal[20] at [56] where it said:
We feel obliged to comment on the respondent’s approach to the ACAT proceedings, those before the primary judge and the present proceedings. The respondent has approached all proceedings as if they were criminal proceedings in which he was charged with an offence. An unduly confrontational and aggressive approach has been adopted, which does little credit to him or those representing him. In disciplinary proceedings, the scope of the inquiry will be determined by the nature and scope of the complaint in relation to which the Society seeks an order from the ACAT: see s 419 of the LP Act. It is inappropriate to attempt to confine the scope of the inquiry by semantic or obfuscatory argument. This is a case in point. It involves a simple complaint, which should be addressed on its merits. The respondent claims that he has a “defence on the merits”. He should advance it. Even in the absence of a “defence on the merits”, a confrontational and obstructive approach to disciplinary proceedings, and taking technical issues in an endeavour to bring the complaint to a conclusion otherwise than on the merits, is inappropriate and inconsistent with a practitioner’s obligation to provide reasonable assistance in the conduct of such an inquiry, by reason of their position as officers of the court. In Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 6, Moffitt P, with whom Hope and Mahoney JJA agreed, said: The obligation to inform and assist has always been regarded as resting upon a solicitor or barrister whose conduct is the subject of an inquiry whether by the court or the committee, as appears in the court’s observations on numerous occasions, an example being in Re Vernon; Ex Parte Law Society of New South Wales (1996) 84 WN (Pt 1) 136, at p 141.
[20] per Murrell CJ and Burns J, Charlesworth J agreeing.
61.It should be said that the practitioner was represented by very experienced counsel and his personal involvement in adopting such tactics may well have been influenced by that.[21] In the hearing about sanctions in that case he was represented by different counsel, as he is here, and his approach has been entirely cooperative then and now.
Evidence of the practitioner
[21] He explains his state of mind about this in his affidavit which is described later.
62.In his affidavit, the practitioner reports that he has withdrawn his application for renewal of his practicing certificate so that he is no longer a holder of a certificate as from 10 February 2020. He remains a director of the firm but does not do legal work. He then gives a brief chronology of the salient events that is consistent with the joint submission, apart from some parts not read. He details his involvement with the client in the past and that the client required careful management.
63.At paragraph 22 he says: “Knowing (the client), I would not like to run the hearing myself.” He was also not prepared (as an advocate) to do so. He had never run a Comcare hearing himself. Therefore, he did not think he could discharge his responsibilities as an advocate to present the case in a competent way although his knowledge of the relevant law was good. He had no one else in the firm that could and the thought of running the case himself caused considerable anxiety. None of this was challenged and it rings true.
64.He said what he did about his daughter only after being pressed to give a reason and did it for two reasons:
(a) One was to avoid having to appear himself thus relieving his anxiety; and
(b) The second, because he thought it would not be of advantage to the client for him to run it.
65.Again, this was not challenged and seems plausible. He was not expecting the adjournment to be refused. His decision to give a false reason was on the spur of the moment under pressure and was not planned.
66.He gives some more explanation about what had happened but nothing new. Some of his explanations were inconsistent with the agreed facts and not read.
67.He explains his position in respect of the charges. He accepts them and that they are very serious. He says he is extremely sorry for what he did. He does not believe it reflects his character as he saw himself as proud to be an honest upfront person. Whether that is so or not, it is important that he values such attributes.
68.At paragraph 46, he details some personal information about problems he was experiencing in March 2017. They include that his father who lived in a nursing home in Shanghai, China, was in declining health, had dementia and he feared the worst. His mother had passed. He had applied for a visa to visit his father and eventually did on 23 March 2017. He did not return until 4 April 2017. He was emotionally and psychologically distressed by his father’s health. He felt he had let his parents down as their son and had relied on his elder sister to look after them. He had been back and forth and that had caused some friction with his wife. Additionally, his wife’s brother had serious eye problems and which led to anxiety for the family, especially his wife and her parents. His wife tended to take this out on him. He had helped by taking his brother in law to eye doctors in Canberra and Sydney and was anxious to be available to do so to help his wife.
69.He was busy at work. He had a particular problem with a client that was causing him anxiety. The client had anger management issues and a number of personal injury claims. He was having difficulty in managing the matters as there were Court timetables that were not being met as the injuries had not settled. The client was abusive and would walk in unannounced and abuse staff. He often refused to take advice. The practitioner felt unwell physically and emotionally when he had to deal with that client. He says this was atypical. He wanted to stop acting for the client but felt the firm had invested a lot of time and costs and he felt obliged to see it through.
70.In respect of the LP 12 case, the initial hearing, where the ‘no case’ argument proceeded, was on 3 March and he was very worried about it.[22] The approach was unusual and had been devised by his counsel. He was not sure it was right and was fearful of failure. He was also concerned with its cost effectiveness. It caused the firm financial pressure as it had to pay counsel fees. By 2017 the matter had been hanging over his head for approximately six years. It was distressing. It has devastated him and his family. It has affected his self-confidence and self-worth. The final outcome was not known until after March 2017, but it is understandable that whilst engaged in the process, he was burdened by it. Some aspect of the Council’s submission sought to assert that he was to be seen as being dishonest over a long period of time because of his resistance to owning up to the initial charge. It is not possible to unpick the reasons for delay here but the time between the events and the initial application arguably does not reflect well on those bringing it either. In any event, the practitioner’s evidence on this aspect was not challenged and it is consistent with common experience.
[22] His chronology is inaccurate and has been explained earlier.
71.He also says that he knew he was not feeling right at the time – meaning March 2017. He did not have his usual energy. He always felt tired and sought to be alone. He did not know that he was depressed. There is some issue as to whether he was, but he sees his condition at that time as being included in the period that he later reported to Professor Stevens as between two and three years. The Council submitted that less than three years would date it after March 2017. The practitioner would appear to have made that clearer here. It has been submitted that the Tribunal must treat his evidence generally with caution due to his admitted dishonesty, in addition to his answers in cross examination and his PAI scores with Professor Stevens. These matters will be addressed later.
72.He then details six matters that he was experiencing that make him think now he should have sought help earlier. The counsel’s fees were being met by the firm but would come out of his share. He had not appreciated that initially. He got support from his work colleagues, but he was embarrassed to confide in them as to how he felt. He was not getting much support elsewhere and he was not in control and felt despair.
73.Finally, he points out that he got no tangible benefit from his conduct here and his actions were intended to advance his client’s interests. This is evidently correct although in addition, he was avoiding having the stress and anxiety of running the case himself. It also does not apply to the two charges that are later in time being his email to the Tribunal about the slip of the tongue and his response to the Society. In submissions, it was said that some of his conduct then and his answers in cross examination were designed to make the listener or reader feel less adverse to him so as to mitigate the outcome for him. This will be addressed later.
74.The practitioner then describes his background. He graduated in law at the ANU in 1995. He was admitted in 1996 in the ACT. He worked for another well-known firm in Canberra and became a partner there in 2007. He obtained an LLM in 2006. He joined the current firm in 2010 and became a partner in 2011. He does not reveal his earlier life but that is explained by one of his character witnesses, Mr McLean.
75.The practitioner is 55. He was born in Shanghai in the Peoples Republic of China. Mr McLean is a former Ambassador to Japan and has an AO and an honour bestowed by the Japanese Emperor. He has filled many high-level posts over the years. He met the practitioner in 1989 and has known him continuously ever since. The practitioner worked for the Australian Consulate General in Shanghai as an executive assistant from 1989 to 1992. He is described as being a young recent Chinese (PRC) graduate with excellent English. This was a time where there were tense issues to be resolved between the two countries. The practitioner was trained by his Australian colleagues led by Mr McLean in a very demanding environment. The training included understanding the Australian government’s rule of law, bureaucratic policy and practice and the rigorous need to follow regulatory requirements. He also learned to interpret and manage discussions between senior officials from both countries. Among other things, he had to handle matters being calm, sociable, respectful, clear and courteous.
76.From this background he decided to study law in Australia and become an Australian citizen. He received mentoring form Mr McLean through this.
77.They have stayed in touch and the practitioner has got to know other members of Mr McLean’s family and acted for them as well.
78.It is apparent that the practitioner has been candid with Mr McLean and his wife explaining the charges and the dishonesty involved. It is not completely clear exactly what Mr McLean was told but it is evident that he was told enough to understand what he saw as a disparity between the matters and the man he knew. This has not altered his support for the practitioner. He still sees that the practitioner has strength of character, intellect, integrity and humanity.
79.The Council has provided excerpts from Riley’s Solicitor’s Manual[23] that discusses the role of character witnesses in disciplinary matters. It is for the Tribunal to make its own assessment but knowing objective facts about the background of the practitioner is useful.
[23] Dal Pont, GE Riley, Frank. 2005 “Riley Solicitors Manual Lexis Nexis Butterworths Chatswood, NSW (updated June 2019).
80.The practitioner in his affidavit goes on to list various community activities that he has been involved with, including the Society’s free Legal Advice Bureau, involvement with ACT Safe Shelter for homeless men, his local church and his children’s school. In the LP 12 matter a church official gave evidence emphasising how much he had done for the church and commending him for this work.
81.In respect of the LP 12 matter he has paid the compensation and has courses lined up to complete in four areas starting in April 2020.
82.He is distressed by the legal bill he faces from that case and experiences sleeplessness because of it. The Council’s bill is $425,867.66. He will also have to pay costs he incurred. He will be ordered to pay costs in this matter and that will add to this problem. His means of paying relies on his capacity to earn income.
83.He reflects on the effect of his conduct appropriately.
84.Finally, he suggests a way forward that falls short of being struck off. He has ceased to hold a certificate. He would not apply for another until he had completed the educational courses he has enrolled to do. In twelve months’ time, that would be completed and he would then reapply but only for a restricted certificate. He would then undergo twelve months mentoring by a senior practitioner aimed at addressing managing clients and, practice management to alleviate stress and ethical issues in handling the work.
85.In addition, he would undergo such psychological counselling that his psychologist deems necessary. Any future application for an unrestricted certificate would have to be accompanied by a report from the mentor that he was suitable.
Oral evidence of the practitioner
86.The practitioner was cross examined on his affidavit. He was asked about the costs and whether in addition to the disbursements he had incurred, his firm had also sought costs after the win in the Supreme Court before Elkaim J, which were about $345,000. He was not aware of what they were but did not disagree that they would have included disbursements and solicitor costs. This put into context the statement that the Counsel’s bill was almost twice as high as his own. It was apparent that this statement in his affidavit did not allow for the firm’s costs as his solicitors. It was put to him that what he said was misleading and designed to elicit sympathy. The exchange at page 27 of the transcript was: “You deliberately exaggerated and distorted the truth in giving this evidence, didn’t you?---No, I didn’t.”
87.It was also suggested that he obtained the report of Professor Stevens to help his case here. It was also suggested that he had been dishonest in the LP 12 matter as well as here and the temptation to tell Professor Stevens untrue things that might help his case was overwhelming. He was asked about the time he had been suffering from these symptoms as reported to Professor Stevens and it was suggested that the Tribunal would have difficulty accepting that it was for the period that included these events. The practitioner volunteered that he had seen a Mr Nomchong, apparently a psychologist who was well known to him and had discussed his mental state with him. This was not mentioned to Professor Stevens nor in the affidavit that he filed.
88.He asserted that the reason why he saw Professor Stevens was that he wanted to know what was wrong with him. He said that it had not crossed his mind[24] that he might be struck off when he sought a report from Professor Stevens. It was pointed out to him that he had seen Professor Stevens after the joint submissions had been filed.[25] It is not clear from his answers what time he was referring to where being struck off had not crossed his mind. It is clear that by the time he saw Professor Stevens it had been submitted that he should be struck off. This was in the Council’s submissions on sentence not in the Joint Submission. It was not explored whether the practitioner had seen those or not.
[24] Transcript of proceedings page 30 to 31
[25] They do not address sanctions and the written submissions on sanctions were filed on 7 January prior to him seeing Professor Stevens.
89.It was suggested to him that the real reason was to help him in the case. The final exchange was as follows:
No, well, just listen to my question and answer it, please. I’ll ask you another one. A reason why you went to see Dr Stevens was in the hope that you would get a report which would assist you in these proceedings?---Yes. Yes, probably right. Probably be right that some - in a way, just to explain as to how I did what I - why I did what I did.[26]
[26] Transcript of proceedings 26 February 2020 page 31
90.It was also put that he had tailored his responses to Professor Stevens and that what he had told him was unreliable. That was denied.
The affidavit of his legal partner (here called ZC)
91.He met the practitioner at the legal workshop in 1996. He knew him at his former firm and later at the current firm.
92.He always found the practitioner to be very friendly, diligent in his supervision of junior lawyers and encouraging of them. He had been professional, courteous and an excellent director of the firm. As happens in small firms, he had to take over matters from the practitioner from time to time and the reverse also happened. When this happened, ZC found the file and court work of the practitioner to be of the highest standard.
93.He has observed that the practitioner was professional and courteous to court staff and other practitioners. He receives referrals from other firms and prior clients and has built up a successful practice in workers compensation, medical negligence, migration and employment.
94.His association with the practitioner is almost entirely professional although their children have attended the same school. He is aware that the practitioner is a devout Christian and is extremely active in his church, volunteering for outreach work and other charitable endeavours. He has a passion for assisting others less fortunate and does pro bono work for a body involved in refugee assistance as well as Mancare and the Diocese.
95.He describes the tortuous process of the LP 12 matter. He says it was complicated, costly and stressful. During the three years from 2016 when the application was made to ACAT and the finalisation of the LP 12 matter, he has noticed a visible change in the practitioner both in his demeanour and capacity for work.
96.The practitioner has become increasingly less engaged at work. He keeps to his office and does not socialise with ZC or other staff as he used to. He talks less about activities in his non work life. He seems to have lost interest in them. When he first began at the firm, he was very energised and took on onerous responsibilities as staff partner and for marketing. His enthusiasm for this has waned such that ZC has taken over these roles.
97.In the eight years they have worked together, ZC has always admired the practitioner’s grasp of technical aspects of the law. ZC further observes that his grasp of claims was also quick, and he retained and recalled information well. He was articulate and to the point. More and more this is no longer the case. In relation to the disciplinary matters, he gets bogged down in issues that are less relevant. He dwells on what others may think rather than the substance of the matter. He has been unable to form a clear understanding of the case against him so as to provide coherent instructions causing problems and delays in preparation of the matters.
98.The first assessment for costs received from the Council related only to the matters in the Supreme Court. It was received in May 2019. Later in November the combined amounts of costs of $425,867.60 was notified. It is to be assessed.
99.He has been aware of the practitioner’s concern about his ailing father and his travel to see him before he died.
100.ZC places the decline in the practitioner’s capacity to about mid-2018. He makes other remarks that illustrate the manifestations of this decline.
101.He is ready to help the practitioner get through this. He confirms that the practitioner has withdrawn his application for a practising certificate and is now working in a non-legal capacity in the firm. This has placed a lot of pressure on the firm, but he wants to help the practitioner. He would do so if the practitioner was allowed back into practice.
102.ZC was not cross examined.
Professor Steven’s report of 12 February 2020 and oral evidence
103.Professor Stevens made a diagnosis of a Major Depressive Disorder with moderate to severe symptoms (Single Episode). Professor Stevens said this was supported by psychometric testing.
104.He details external stressors that he has had to deal with. He says he was affected by severe stress and this might account for his behavior. He said the practitioner had told him that he was surprised at what he did and not correcting a false statement and was at a loss to explain it. Professor Stevens says this has exposed a problem with how he deals with stress which needs to be addressed in a medical and psychological way. At present, in the opinion of Professor Stevens he is moderately to severely depressed and this must be addressed through medication and treatment. He recommended obtaining an anti-depressant from a GP and a mental health plan with referral to a clinical psychologist for treatment for depression and help with stress reduction techniques. He will need at least 10 to 12 sessions with the psychologist.
105.Professor Stevens had been given the joint submissions so he was aware of the facts of this matter.
106.Professor Stevens details his presentation. It was favourable. He said that the practitioner appeared to give a credible and consistent history. He was at times tangential and perhaps overfocussed on a need to tell his story. He had some problems with concentration and focus in conversation. The practitioner was emotionally upset at times.
107.Professor Stevens details the family, relationship, educational, occupational, health and psychological history of the practitioner. He notes the social contribution which is described by ZC as well as the practitioner in their affidavits.
108.He deals with stress at the time of the events leading to the complaint. It is described as considerable.
109.He describes the symptoms of depression. The practitioner described them as being over the last 2 ½ to 3 years. He described loss of interest in seeing friends, sleeplessness, guilt, loss of appetite, loss of confidence and self-esteem, difficulties in concentration, fatigue and despair. He has suicidal thoughts but does not plan to do this. He has felt this way for most of the last three years and has not been like that before as he had always been able to bounce back.
110.Using the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM 5) he had seven of nine possible symptoms, of which five are necessary for the diagnosis.
111.He described the test he used referred to as a Personality Assessment Inventory (PAI) test. The Inconsistency T72 test was high and close to invalid. It shows carelessness or confusion in answering. The T46 test for Negative Impression was less than average. If high it would show either an exaggerated or distorted view of self and represent bizarre and unlikely symptoms. The Positive T67 test was high and close to invalid. The test shows an over favourable view of the subject. There were other results that are generally consistent with the opinions expressed by Professor Stevens.
Cross examination
112.Professor Stevens agreed that he saw the practitioner for the purpose of providing a report in this case and not for treatment.
113.He agreed that the current DSM 5 was much the same as DSM 4 had been in discerning what to look for in cases such as this. Both needed five symptoms to diagnose a major depression. Here seven (out of a possible nine) had been identified. He did not agree that reporting more than five was unusual but thought that the position now would not have changed in the last 20 years. He was then asked about the PAI test and he agreed that it can provide markers for identifying malingering or exaggeration. He disagreed with the proposition that the Inconsistency test was one such marker.
114.The exchange at page 37 of the transcript was as follows:
Right. And one of the markers, if I can use that word - and I know that’s a lay word, but would you agree that one of the markers for possible malingering or exaggerating is the inconsistency scale, is that true?‑‑‑I would say - no, I would say the main marker for that as the intention is the Negative Impression Scale, which is two down below it, and on that he was slightly below average. In fact, the interesting thing about the test was that he was high and almost invalid on positive impression, so if anything, he was minimising.
115.There followed argument about only answering the question put.
116.He disagreed that the inconsistency scale was indicative of malingering or exaggeration and other scales were important for that purpose.
117.He had written an article that became Exhibit A3 about malingering in which he had pointed out that there was a need to consider the validity of PAI tests for consistency. In that article he said that reporting seven symptoms as opposed to five or six was unusual. He also said that the inconsistency scale was useful in detecting issues with truthfulness. When faced with these earlier views there was an exchange at page 42 of the transcript, as follows:
Well, that’s because, Professor Stevens, you were putting forward the inconsistency scale as one means of assessing possible malingering or exaggerating, isn’t it?‑‑‑Look, I think you’re arguing from context. It’s - the purpose of the inconsistency scale is to see whether someone is answering consistency and to pick up when someone goes random. That’s the purpose of it. It could go either way, as far as pushing up the other two scales. But there’s four validity scales, each with their own purpose. The one’s that it’s picked up, if you’re looking at negative impression, is negative impression which is exaggeration of symptoms. If you’re looking for minimising of symptoms, it’s a positive impression. Anything that happens with inconsistency would be more a random effect, so it just wouldn’t have that effect.
118.In re-examination[27] he described a three-legged stool that helps him assess reliability, namely: history, presentation and the PAI test.
[27] Transcript of proceedings 26 February 2020 pages 47 to 48
119.He also gave answers about presentation and the time frame of the depressive illness as follows:
At the time of the presentation, what was your opinion as to (the practitioner’s) wellness or unwellness? ‑‑‑I thought he was very stressed. That’s how he came across to me, as highly stressed. Now in diagnostic terms, I gave him a diagnosis of depression, but his appearance was that he was, you know, on a ten point scale - I mean, speaking figuratively - nine out of ten on a stress scale. He was probably not at his best.
Is that a matter that potentially goes to the validity of the tests that are applied?‑‑‑It does, especially on the test of inconsistency, because in part what it’s measuring is his attention or his attending to the items in a consistent way, so the purpose of the actual measure is to see whether he’s paying attention or - I mean, conceivably someone could come to a test and do it when they’re intoxicated. That would affect inconsistency. Or if a person was demented or something like that, it would affect inconsistency.
And your diagnosis, if I can take you therefore to page 4, of a major depressive episode is something that reflects that timeframe that Mr Beaumont put to you, the two to three years?‑‑‑Well, you only need two weeks for a major depressive episode, so yes, it certainly was more set in, you might say.
At what point of time?‑‑‑Well, over the extended period of time he - he reported symptoms of depression. That’s the best way I can say it”.
Other character evidence
120.There is also character evidence from local barristers, a Sydney barrister and a former principal in the firm. In effect they speak well of the respondent including his honesty and find it difficult to reconcile his conduct in this matter and the prior matter with the person they know.
121.The affidavit of ZA is about the client’s matters and his involvement on the day. It does not add much of significance.
Submissions
Submissions of the applicant
122.The applicant says, given the admitted charges, the first question that arises is whether the practitioner is a fit and proper person to remain on the roll.
123.The applicant refers to the general principles applicable to this question set out by the Full Court of the Supreme Court in the Council of the Law Society of the Australian Capital Territory v Davey [2019] ACTSCFC 2 at [13]. The Court in fact quoted from Council of the Law Society of theACT v Bandarage [2019] ACTSCFC 1 at [137] saying:
General Principles to be applied in deciding a statutory application for removal.
Section 431(3) of the LPA gives the Court statutory discretion to remove the name of a local lawyer from the local roll if the Tribunal has recommended that the practitioner’s name should be removed. Under s 425(3) of the LPA, if the Tribunal finds a practitioner guilty of unprofessional misconduct or professional misconduct, the Tribunal may recommend that the practitioner’s name be removed.
As stated above at [134] and below at [147], the Court is not bound by the Tribunal’s recommendation of removal and is required to form its own independent assessment of whether, given the conduct that has been proven, the practitioner is a fit and proper person to practise law: Ziems v Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279; Powrie at [87].
Although it is not our task to determine whether the practitioner’s conduct amounted to unprofessional conduct or professional misconduct within the meaning of the LPA, it is instructive to consider the range of conduct that may be so classified.
Under the LPA, unsatisfactory professional conduct is defined in s 386 as follows:
In this Act:
unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law 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.
Professional misconduct is defined in s 387 of the LPA as follows:
(1)In this Act:
professional misconduct includes –
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
As these definitions are inclusive, recourse may be had to the common law, both for the purpose of understanding the type of conduct that may amount to unsatisfactory professional conduct or professional misconduct and for the purpose of understanding what it means to be “not a fit and proper person” to practise law.
The personal attributes of a practitioner are integral to an assessment of whether the person is a fit and proper person to practise law. When discussing the importance of honesty and integrity to the practice of law, in New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 (Cummins) at [20], Spigelman CJ said:
There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
A willingness to engage in dishonest conduct often compels a finding of unfitness to practise: The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 (Sahade) at [58]. Even if it does not rise above recklessness or neglect, persistent misconduct will ordinarily justify a finding of unfitness to practise: Law Society of South Australia v Murphy [1999] SASC 83. A penalty of suspension is usually inappropriate if there is a finding of unfitness of practice: Attorney-General v Bax [1998] QCA 89; [1999] 2 Qd R 9, 22 (Pincus JA).
Insight into previous wrongdoing is another personal attribute that is important to an assessment of whether a person is a fit and proper person to practise law. A legal practitioner’s failure to appreciate the gravity of misconduct may be indicative of unfitness to practise: Southern Law Society v Westbrook (1910) 10 CLR 609, 626 (Isaacs J); New South Wales Bar Association v Evatt (1968) 117 CLR 177, 184; Re Maidment (1992) 23 ATR 629, 642 (Legoe J); Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, 472 (Giles AJA).
At common law, professional misconduct includes conduct in the pursuit of professional activities that is reasonably regarded by professional colleagues of good repute and competency as disgraceful or dishonourable: Sahade at [54]. In the context of professional disciplinary proceedings, reference may be made to “good fame” in the sense of good reputation. Reputation is relevant to the purposes of disciplinary powers, which include “to maintain public confidence in the integrity and honesty of the profession”: Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 (Parente) at [12] (Basten and Meagher JJA) and [49] (Brereton JA).
A finding of professional misconduct does not, of itself, demand an order removing a practitioner’s name from the roll: A Solicitor v Council of Law Society (NSW) (2004) 216 CLR 253 at [21]; Powrie at [87].
Removal from the roll is reserved for the most serious cases of wrong conduct, where the character and conduct of the practitioner is assessed to be inconsistent with the privileges of further practice; suspension may be adequate in those cases where a legal practitioner has fallen below proper standards, but not to the extent that would indicate that the practitioner lacks the necessary attributes of a person entrusted with the responsibilities of legal practice: Barristers’ Board v Darveniza [2000] QCA 253.
In general, removal is appropriate only where the underlying reason for disqualification is permanent, or at least of indefinite duration: Cummins at [25]–[27]; Parente at [33]. In Parente at [34], Basten and Meagher JJA indicated that, where a practitioner has manifested a serious character flaw that would justify removal, it is for the practitioner to affirmatively satisfy the court that the unfitness was, or is, of limited duration.
124.I have put in bold some important aspects of the above. The summary is instructive.
125.The Council also relied on what was said by the Court in Law Society of the ACT v Powrie [2017] ACTSCFC 4 as follows:
88. We consider the finding by the ACAT that the practitioner knowingly misled the Magistrates Court in his application for an adjournment of the proceedings before that Court to be the most serious finding (Ground 2A). In Brett v Solicitors Regulation Authority [2014] EWHC 2974 (Admin); [2015] PNLR 2, Lord Thomas CJ said, at [111]:
[M]isleading the court is regarded by the court and must be regarded by any disciplinary tribunal as one of the most serious offences that an advocate or litigator can commit. It is not simply a breach of a rule of a game, but a fundamental affront to a rule designed to safeguard the fairness and justice of proceedings. Such conduct will normally attract an exemplary and deterrent sentence. That is in part because our system for the administration of justice relies so heavily upon the integrity of the profession and the full discharge of the profession’s duties and in part because the privilege of conducting litigation or appearing in court is granted on terms that the rules are observed not merely in their letter but in their spirit. Indeed, the reputation of the system of the administration of justice... and the standing of the profession depends particularly upon the discharge of the duties owed to the court.
126.A careful reading of that case reveals that the misleading was part of a wider course of conduct involving avoiding a previously agreed debt and that the practitioner had previously been guilty of the same offence of misleading a court. Nonetheless it spells out that misleading a court is serious.
127.This was further underlined in Legal Practitioner v Council of the Law Society of the ACT [2018] ACTCA 19 at [72]-[73] previously set out at paragraph 47.
128.The Council then asserts that the “fundamental dishonest qualities of the respondent are incompatible with fitness to practise and make his removal from the roll appropriate if not inevitable”. The assertion that he has fundamental dishonest qualities is the real issue.
129.The Council says the conclusion is fortified by enumerating the incidents as they occurred and arriving at five individual incidents over a two-day period. That is one way of looking at it. Another way is treating them globally as a single course of conduct stemming from the initial lie about the daughter, or some intermediate position.
130.Reference is also made to the later response to the Society, the email to the tribunal and the further submission to the Society again arguing that they are individual acts of dishonesty that cumulatively lead to a conclusion that the practitioner in inherently untrustworthy and that is not a temporary position.
131.After quoting the words of Spigelman CJ in Cummins set out at paragraph 50, the conclusion argued is that the four interests, namely clients, fellow practitioners, the public, and the judiciary and his own professional body cannot have confidence in him. If that is a correct conclusion then a recommendation for removal would as is submitted be inevitable.
132.Reference is also made to prior disciplinary history. It is submitted that LP 12 involved dishonesty and because this is a second instance it manifests a serious character flaw and as in Banderage and Powrie striking off must follow. In LP 12 the Tribunal did indicate that the practitioner did not have a real insight into his shortcomings there.
133.In addition, a reprimand and an order for costs is sought. The written submissions sought cancellation of the then current certificate, but events have overtaken this.
Additional oral submissions
134.Apart from taking the Tribunal through the written submissions, it was explained that subjective circumstances referred to in Davey meant insight, regret and the like but not hardship to the practitioner.
135.It was submitted that there was no cogent evidence that the affliction now attributed to the practitioner was in existence at the time of the first instances of dishonesty. The general submission was made that the opinion of Professor Stevens rests on a true history and the Tribunal could not be satisfied he had that. Secondly, the time period in the report was really two and a half to three years, and that if the lower did not extend back to the initial misconduct. The report also refers to three years but the notes of what he was told are limited to the range. It was also submitted that because of some close to invalid scores in the PAI test as well as an unreliable history the diagnosis now made does not rest on a solid foundation.
136.Reference was made to Riley[28] and a passage dealing with stress in which the statement is made that “character is tested not by what one does in good times but in bad.”[29]
[28] Dal Pont, GE Riley, Frank. 2005 “Riley Solicitors Manual Lexis Nexis Butterworths Chatswood, NSW (updated June 2019)
[29] at [33095.10]
137.As an example of the unreliability of the practitioner’s history, the point was made that at the time he saw Professor Stevens he said it had not crossed his mind that he might be struck off. It was submitted that this was unbelievable. It was also submitted that the answer that he was seeing Professor Stevens not to get a report to help him in these proceedings but to find out what was wrong with him was also unbelievable. Counsel made that submission with the caveat that he recognised that the evidence had gone back and forth, and he did not have the transcript.
138.On questioning by the Tribunal, counsel explained that the motive for denying such obvious truths was that he saw it as against his interests to admit this. Reference was also made to the unwillingness to accept that the costs on his side must include the costs that his firm would charge and seek from the Council after the first Supreme Court result. It was conceded that this was less important but still indicative of unreliability.
139.It was also submitted that the evidence did not explain why, whatever the mental state of the practitioner at the time, this explained his conduct. It was submitted that depression was no excuse to lie. Professor Stevens had said that stress was a factor, but it was submitted that the Tribunal could not be satisfied on the balance of probabilities that this explained it.
140.It was common ground that for the Tribunal to make a recommendation that the practitioner be struck off, the applicant had to satisfy it on the balance of probabilities so that the degree of satisfaction was “comfortable” – to use the language of Rich J in Briginshaw v Briginshaw (1930) 60 CLR 336. However, there was an evidential onus on the practitioner to satisfy the Tribunal on the balance of probabilities that any unfitness was or is of limited duration. This was a reference to Council of the New South Wales Law Society v Parente (2019) NSWCA 33 at [33]. This onus arises where the practitioner has manifested a serious character flaw that would justify removal.
141.After some questioning from the Tribunal, about taking a lesser step such as suspension or a temporary ban, it was submitted that it was not appropriate as the evidence does not say that the condition is temporary and it is indefinite. In addition, it was said it cannot be gleaned from the psychological evidence that the mental state is the explanation for the conduct and that its improvement will enable him to return to practice. The unlikelihood of his later communications to the Society and the tribunal being accepted and the disconnect between the conduct of an intelligent man and such unintelligent behaviour was met with the submission that a brazen lie, even if stupid, is still a lie and should be judged accordingly.
142.It was submitted that if something less than a recommendation for removal was to be ordered, then it would need to be a lengthy suspension (or order that no certificate be issued) and be accompanied by conditions that ensure the protection of the public is secured.
Submissions of the practitioner
143.The practitioner accepts the principles as described by the applicant and that the question of fitness to practise arises. The passage in Banderage, previously set out at paragraph 123, is adverted to. It is asserted that he is so fit, notwithstanding his admitted failings here.
144.The practitioner submits that it is necessary for the Tribunal to assess the seriousness of the conduct as removal from the roll is reserved for the most serious cases of misconduct. He refers to the way, in LP 12, Senior Member Lunney dealt with Health Care Complaints Commission v Litchfield (1997) 41 NSWLR at 638C in LP 12, referred to at paragraph 55. The Senior Member said there must be some comparative assessment of the seriousness. As explained earlier, this is obviously right. What the NSW Court of Appeal was saying correctly, with respect, was that just because there are more serious cases, there is a level of misconduct that will require removal from practice. The facts in that case illustrate the point.
145.The practitioner accepted that the conduct was serious and conceded the salient matters in each charge. In respect of the initial lie about his daughter, it was submitted the lie was not planned or premeditated, had no actual effect and should be considered in light of the unusual circumstance of the morning involving the unpleasant disagreement between counsel and his client as well as his poor mental health at that time. The same submission was made in respect of his reiteration of that lie to the client.
146.The written submission asserts that the practitioner was suffering depression at the time relying on Professor Stevens’s report; the issues with his brother in law’s eye appointments; stress in his marital relationship; and the ongoing saga in the LP 12 matter. At that time, it had reached another milestone - the no case submission in the Tribunal. He refers to the health of his father and that he was to fly out in days to be with his father. It was submitted that the practitioner was in a difficult position when he had to seek to adjourn the matter and he was not able to approach the crisis in a structured and appropriate way. What he might have done is examined below. Given counsel’s advice, it was open to him to cease to act if his client did not instruct him to withdraw the claim’. He may have taken that course whilst still assisting the client with adjourning it so as to get another solicitor. In short although this is not expressly put, he could have acted appropriately and achieved the same outcome for his client that eventually occurred. There were a number of non-misleading ways the matter could have been handled with hindsight.
147.To interpolate some findings that are open, it might be added that the lie to the Tribunal and the client as well as the failure to reveal the full facts did not in fact cause any detriment to anyone. They were motivated mainly by a wish to assist the client and had no hint of personal self-gain other than the avoidance of the stress that might accompany running the case. Although not expressly put, it must be taken from the affidavit evidence that the stress, associated with being thrown into the deep end to act as an advocate, when he had no experience in doing so and had not prepared the case as an advocate and felt would not assist his client, is also understandable. It might be argued that the lie to the Tribunal and the lie to the client about the daughter were part of a single course of conduct of misleading the tribunal as was the unrevealed “strategy” of the retainer termination being temporary. However, there was an additional lie about Dr Knox being available which was aimed at the same strategy but is a distinct dishonest act. This is acknowledged by the practitioner. It is acknowledged too that the later responses to the Society and the tribunal are additional acts that are misleading.
148.In respect of the LP 12 matter, it was submitted that, there too, the tribunal had been asked to recommend that the practitioner be struck off, but the tribunal had not seen the conduct as warranting such a course. It was submitted that the conduct there was not such as to lead to a conclusion that the misconduct was persistent. The conduct there was in 2011.
149.It was submitted that the events in the present proceedings were unusual and, given the practitioner’s personal circumstances, the way he handled them do not reveal an underlying character flaw. In addition, the misconduct was not such as to be of a kind that was so serious that striking off is warranted.
150.It was submitted that the practitioner has demonstrated insight by agreeing with joint submissions which contain admissions, which are more serious than is alleged in the application. He has cooperated in the process in mediation as well. He has acknowledged his mental health issues and forgone his current certificate voluntarily. He has a proposed plan for correcting these matters in a way that is submitted, shows insight in his need to change and a way to achieve the objects of the Act. The plan set out in the practitioner’s affidavit is put forward as a way to protect the public and assure the community that the profession remains one where honesty is regarded as essential.
151.In addition, in oral submissions the practitioner’s counsel submitted as follows:
MR ARCHER: Going to the end of our submissions, first, we say that taking the whole of the circumstances into account, including his present presentation, including what we say is demonstrated insight in relation to what he did and the motivation for him doing what he did, and given the ultimate protective nature of the jurisdiction, that the responsibilities of the tribunal are appropriately discharged, not by recommending that his name be removed from the roll, but there be put in place an outcome that gives effect to that concern in relation to community protection, and it’s consistent with the first proposition, but which allows a pathway back to practice that is conditioned on matters that may go to the reasons for him having did what he did, being appropriately addressed or remedied.[30]
(h) That he accepts a condition of the restricted practicing certificate that issues that he be supervised by a senior practitioner in any legal work he undertakes and that he arrange for a senior practitioner to provide him with mentoring and that he continue to comply with any ongoing treatment plan as described in the report.
(i) That any application not be granted to take effect prior to 1 July 2021.
(j) That an unrestricted certificate may be issued by the Council prior to 30 June 2025 if, having regard to the respondent’s conduct after the grant of any restricted practicing certificate, it receives a report from an independent senior ACT legal practitioner who is the holder of an unrestricted practising certificate that he or she has provided mentoring to the respondent in the intervening period and in his or her view the practitioner is now fit to hold such a certificate.
6.Liberty to the parties to apply by notice within 14 days of receipt of these orders in respect of the drafting of order 5 above. In the absence of any application the orders will take effect from 19 May 2020.
………………………..
Senior Member B Meagher SC
HEARING DETAILS
FILE NUMBER:
OR 20/2019
PARTIES, APPLICANT:
Council of the Law Society of the ACT
PARTIES, RESPONDENT:
Legal Practitioner 201920
COUNSEL APPEARING, APPLICANT
Mr N Beaumont SC
COUNSEL APPEARING, RESPONDENT
Mr K Archer
SOLICITORS FOR APPLICANT
McInnis Wilson
SOLICITORS FOR RESPONDENT
Supressed
TRIBUNAL MEMBERS:
Senior Member B Meagher SC
DATES OF HEARING:
26 February 2020
THE CIVIL AND ADMINISTRATIVE TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY
OR 20 of2019
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
Applicant
AND
A LEGAL PRACTITIONER
Respondent
JOINT SUBMISSION
BACKGROUND
ABy Application dated 25 July 2019 (and amended on 4 December 2019) the Applicant brought proceedings against the Respondent under section 419 of the Legal Profession Act 2006 (ACD (the Act).
B.The Respondent has indicated his intention to plead to the charges in the Application.
C.The parties wish to file this Joint Submission with the Tribunal to assist it in determining the matter pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACT).
D.The Joint Submission sets out the parties’ agreed position in respect to the facts, the charges, and the characterisation of the charges. The parties will make separate submissions in relation to the appropriate sanction to be ordered by the Tribunal.
E.The Respondent will file separate evidence and/or submissions in relation to matters in mitigation.
STATEMENT OF FACTS
1.The Respondent was at all material times:
(a)a local legal practitioner as defined in the Act (having been admitted to the legal profession on 20 December 1996);
(b)practising as a principal of the law practice (the firm) (having become a partner in 2011), an incorporated legal practice within the meaning of the Act;
(c)the holder of an unrestricted practising certificate; and
(d)the partner with supervision of NM’s (the client) matters.
2.The client had retained the firm (namely, the Respondent) to act for him for a number of years in connection with claims against Comcare under the Comcare legislation, including:
(a)a claim relating to his left knee;
(b)a claim relating to his right knee; and
(c)a psychological injury claim.
3.ZA of counsel was briefed to act for the client in relation to his claims, including his psychological injury claim.
4.Under cl 3.3 of the retainer executed by the client with the firm dated 3 August 2016, the Respondent was responsible for the work performed on the client’s matter.
The meeting on 14 March 2017
5.The client’s psychological injury claim against Comcare was set down for hearing in the Administrative Appeals Tribunal (the Tribunal) on 15 March 2017.
6.On 14 March 2017 the client met with the Respondent, as the solicitor, a junior solicitor employed by the firm (SA) and ZA. The meeting took place at 9:00am at the offices of the firm. The meeting took place on the day before the hearing due to counsel’s unavailability to meet before that day.
7.During the meeting, ZA gave certain advice to the client about problems with his claim and the need to try and settle the matter. The client was upset by that advice.
8.ZA’s retainer was terminated at, or shortly following, that meeting.
9.Following ZA’s retainer being terminated, the Respondent and the client had the following exchange:
The Respondent - What do you want?
The client - Find another barrister to take over or the hearing adjourned.
The respondent - Do you still have confidence in [the law firm] representing you?
The client - I am not sure. I need to take some advice and speak to some solicitors
10.The Respondent approached Mr R of counsel to see if he would act in the matter on short notice. Mr R wanted funds in· trust prior to accepting instructions and as a result he was not briefed. This left the Respondent in the position of having to try and seek an adjournment from the Tribunal due to the absence of counsel. The Respondent wrote to the Tribunal requesting that the matter be listed urgently for a directions hearing for the purpose of applying for an adjournment due to the absence of counsel.
11.At 1:30pm, the. Respondent sent an email to the Tribunal stating:
Due to an unexpected turn of events this morning, our client has terminated the engagement of ZA as counsel in relation to his matters. Consequently, we are in the process of looking for a new barrister to be involved and to take the matter further.
In the circumstances, we have no option but to advise that we are u nable to proceed with the hearing as scheduled and kindly ask for it to be vacated.
We are available for a directions hearing if the Tribunal deems it fit.
12.The Tribunal convened a directions hearing which took place from 2.23pm to 3.00pm on 14 March 2017. The Respondent appeared at that directions by telephone and asked for the adjournment. The written transcript accurately records what occurred during the hearing. The transcript records that, during the hearing, the Respondent stated that he was not available to appear on 15 March 2017 because:
.. .my family and I need to take my daughter to a medical appointment and that’s been scheduled. So I’m personally not available ...
In response, Senior Member Popple suggested:
I am happy to consider whether there’s a time during tomorrow where we could arrange a longer than usual adjournment to allow you, Mr (the respondent), to take, I think you said your daughter, your daughter to a medical appointment and still be involved in the hearing tomorrow.
In response, the Respondent stated that
‘No, I’m not available at all tomorrow.’
At the conclusion of the hearing he also stated that
‘we might have to sort of say that we’re sorry we have to perhaps resign as well from this matter. ‘
13.During the directions hearing, the Respondent stated that ‘We have the doctors on stand-by Counsel for the other side also noted that ‘..we’re on at 9.15am and that we have concurrent evidence from Dr Lovell and Dr Knox at 11.30am, To which Senior Member Popple responded ‘Indeed.’
14.During the directions hearing Senior Member Popple opined that the hearing would be ‘...relatively simple, as compensation matters go, and noted that the Tribunal would be hearing from two witnesses and hearing from the applicant and that the matter was only listed for one day
15.Ultimately, at the end of the directions hearing, Senior Member Popple rejected the adjournment ·application, citing that the absence of counsel alone·is not a sufficient reason for proceedings to be adjourned.
16.The Respondent’s daughter did not have a medical appointment on 15 March 2017. The Respondent knew this to be the case when he made submissions to the Tribunal on 14 March 2017. The Respondent advised the Tribunal that his daughter had a medical appointment because he thought that would gain more sympathy from the Tribunal. ·The only appointment. entered in the Respondent’s diary for the 15 March 2017 was the client ‘s hearing.
17.The Respondent says that after the meeting with ZA on 14 March 2017 the Respondent arranged for Mr SA to notify Dr Knox that the matter might not be proceeding the following day. It is the Respondent’s understanding that SA notified Dr Knox that the matter might not be proceeding and that was all that was done.
18.At 3:08pm, the Respondent emailed the client informing him:
There was a directions hearing just now. Senior Member Mr Popple refused to vacate the hearing set for tomorrow on the basis that absence of counsel to conduct hearing (sic) is not good enough (sic) and compelling reason to vacate.
Consequently, the hearing will have to proceed. ·
I am not available for personal reasons.
Dr Knox has been put off standby.
What do we do A….(clients first name)
19.Between 3:30pm and 4:00pm the Respondent telephoned the client. The Respondent told him that he could not appear because he had a long-awaited and pre-arranged medical appointment for his daughter. This statement was, as the Respondent knew, false. In truth, as the Respondent knew, his daughter had no such medical appointment, and the Respondent’s diary for 15 March 2017 did not have in it any other engagement apart from the client’s hearing·in the Tribunal. The Respondent also advised the client that SA could not appear because he was not experienced enough to run the hearing by himself. During the conversation the Respondent said that the client would have to appear alone to seek an adjournment and asked him to send an email to the Respondent terminating the firm’s retainer. The Respondent persuaded the client that he would be most likely to get the adjournment if the Respondent was not retained. The Respondent’s intention in saying these things was that that the firm could be terminated for ‘strategic’ reasons to facilitate the adjournment application.
20.During the telephone conversation, the Respondent and the client had the following exchange:
The client I don’t know what to say
The Respondent Ask for the hearing not to proceed because you don’t have counsel.
The client: ·Can I come back to the firm?
The Respondent: Yes, there is nothing stopping you from coming back to the firm
The client: Can I come back to the firm?
The Respondent: Yes, there is nothing stopping you from coming back to the firm
21.The Respondent created a file note during the telephone conversation which recorded the following:
Received email- Very upset and angry
ZA- why changed mind and responsible for the mess
Popple dickhead and always biased against me
Why arranged pre-hearing meeting so late- should have met earlier- ZA· not available
What to do - ask for another adj. - better chance of getting it by himself·.
Won’t be forced to go through hearing - the tribunal cannot do that. Natural justice - cannot proceed to hearing without counsel
Don’t know what to say- ask for the hearing not to proceed because no
Counsel Ok
To do it
Spoke to (other lawyers)- call back
Will let me know what to-do later on. Asking whether can return to the firm
Can come·back to the firm if needed. Other matters ongoing any wayWill call or text later
Hopefully soon as the Tribunal should know asap
22.At 3:12pm, ZA sent the following email to the Respondent:
(First name of the respondent)
Given this development I will come and run the matter as best I can but I do ot withdraw from my assessment.
It is a matter for the client.
You would need to round Dr Knox up. ZA
23.At 3:57pm, the Respondent responded to ZA’s email:
But he has sacked you. From my conversation with him just now, I will not be surprised if he decided to sack us too shortly
If he sacked us, he would have to appear himself. Probably, he would have a better chance of getting an adjournment by himself than if he is represented.
24.The Respondent did not forward ZA’s email to the client or otherwise seek his instructions in relation to the email.
25.At 4:05pm, the client sent the Respondent the following email:
(First name of the respondent)
In respect to this morning’s disagreement at the firm’s Office at 10am with my counsel & Barrister representing me in this matter. (sic) I wish to advise that I no longer wish the firm or Barrister ZA to represent me in this matter scheduled for hearing tomorrow 15th March 2017 at the AA.T.
Regards, the
Client
26.At 4:21pm, the Respondent then wrote the following email to the Registry of the Tribunal:
Dear Registrar
Below is an email from the client terminating the service of the firm
In the circumstance, please advise whether you wish us to appear tomorrow
as a courtesy to the Tribunal. / look forward to hearing from you.
Kind regards
Name of the respondent Director
27.The Respondent forwarded the client’s email to the Registry, with the email at 4:21pm acting as a covering email explaining the situation.
28.At 4:42pm, the Respondent emailed the client stating:
I have notified the tribunal that we have been sacked by you in relation to this matter.
The tribunal has advised us that there will be no need for us to appear in the tribunal tomorrow now.
So you will be on your own and seek the adjournment.
Best of luck
(First name of the respondent)
The Tribunal hearing on 15 March 2017
29.On 15 March 2017 the client appeared at the Tribunal hearing unrepresented. The hearing commenced at 9:16am at the Canberra Registry. Mr P W of counsel appeared for Comcare. The presiding member was Senior Member Popple.
30.The written transcript accurately records what occurred during the hearing.. The transcript records that the client informed the Tribunal of the situation, that is, that both ZA and the firm were no longer his legal representatives. He stated the following to the Tribunal:
The client: I had a very large argument yesterday with my counsel. I’m not an expert, I’m guided by their opinions, and (indistinct) let me down yesterday
The client: They let me down yesterday. Had a large disagreement, and I had no alternative but to terminate. I don’t know what to do
The client: I need to get legal advice what to do. I don’t know what to do.
31.After a short adjournment allowing Mr W to obtain instructions, the hearing resumed at 9:33am. Mr W’s position was that Comcare wished to proceed. Comcare wanted the matter to be brought to a conclusion that day. Mr W wanted to know whether Dr Knox was available.
32.The client responded that Dr Knox was not available and that:
“from the events yesterday, yes, they cancelled him / mean, solicitors- my counsel cancelled him.”
33.The Senior Member then stated:
No, just on the point of Dr Knox:s availability, ‘· say is a little surprising because yesterday in your absence but on your behalf the legal representatives advised that you had dispensed with the services of ZA and they also sought a vacation of this hearing today, and I declined to do that; but there was certainly no mention that Dr Knox this was going to go ahead, and there was certainly no mention that Dr Knox this was not to be available, as had previously - in fact, I think it was confirmed earlier as part of that hearing that Dr Knox would be available with Dr Lovell concurrently.
34.The Senior Member then questioned whether the client was in a position to proceed without legal representation. The client replied that he could not and that he ‘was not well’. He stated that he could not ‘concentrate and read documents’.
35.An exchange between the Senior Member, Mr W and the client ensued in which options were explored as to how the matter could proceed in the circumstances. The Tribunal was very reluctant to adjourn the proceedings· and the client was placed in a very distressing situation wherein the hearing, at one point, looked like it would proceed that day.
36.Ultimately, an adjournment was finally granted for 7 days. This was to enable the client the time to read the key documents in the case, obtain legal advice, and make a decision as to how he wished to proceed and advise the Tribunal before 22 March 2017. The matter was adjourned at 10:28am.
37.On 17 March 2017 Dr Knox rendered a tax invoice in the total sum of $1,147.30, including the following charge:
Court attendance/time reserved: 15 March 2017 - $680.00
Communication between the Respondent and the client after the hearing.
38.On 15 March 2017, the Respondent telephoned the client after the hearing at around 10:30am. The Respondent says that this was done out of his concern for the client’s welfare. The Respondent advised the client to obtain a copy of the transcript. The client made a note of the telephone call.
39.The Respondent further contacted the client on 19 March 2017 and a meeting was scheduled for 20 March 2017 to discuss the matter.
40.The Respondent met with the client on 20 March 2017 at 4.30pm. The client stated that he’ wanted to withdraw the claim and the Respondent advised against this due to the supporting evidence of Dr Knox. The Respondent advised the client what to say to the Tribunal as he had to advise the Tribunal by 22 March 2017 whether he was going to pursue or withdraw his claim. The client made a handwritten note of what the Respondent said to ·advise the Tribunal. The client sent an email to the Tribunal at 6.55pm on 20 March 2017 in the terms recommended by the Respondent. The Respondent has no record of a meeting occurring with the client on 20 March 2017 and has no independent recollection of the meeting but accepts that the client’s recollection is accurate;
41.The client followed the Respondent’s advice and informed the Tribunal that he wished to proceed with the claim. The Respondent advised that Dr Knox was kept on standby and the client needed to continue paying Dr Knox’s fee.
42.Shortly thereafter the client engaged a new solicitor, namely, DP of …. Lawyers. The Respondent facilitated the transfer of his file to Mr P.
43.On or around 5 December 2017, the client made a complaint to the Law Society.
44.The Respondent has made responses to the Applicant and their solicitors regarding his representation of the client and the termination of the retainer.
45.In his first response to the Applicant received on 7 February 2018 the Respondent stated that the client had terminated the retainer with ZA the day before the hearing. This was because the client did not like the advice ZA had given him about his prospects of success. The Respondent ·stated that thereafter a ‘plan’ emerged that the client would terminate the retainer with the firm , and the client appear at the Tribunal unrepresented. It was thought that, ‘strategically’, the Tribunal would be more likely to grant the adjournment if the client had no legal representation. The Respondent also stated the ‘idea’ was that, once the adjournment was granted, the client ‘would come back to me’ and the matter would be considered ‘afresh’ with new counsel briefed.
46.In his first response to the Applicant received on 7 February 2018 the Respondent stated that:
In relation to the matter raised in paragraph 2 on page 5 of his (the client’s) email about a ‘pre-arranged appointment for my daughter: I do not recall I said that to him. I don’t know where this
came from. With God’s blessings, both of my children are healthy and well and I did not remember having to attend an appointment with any doctor on 15 March 2017. In fact my diary for 15 March 2017 did not have in it any other engagement apart from the client’s hearing at the Tribunal.
47.On or about 18 April 2019 the Applicant provided the Respondent with a copy of the transcript for the 14 March 2017 directions hearing.
48.On 28 April 2019 the Respondent signed and sent a letter to the Tribunal which stated as follows:
Having now read the transcript, I write to advise that there appears -to be an error in the transcript. References were made by me to ‘my daughter’ and. ‘her medical appointment’
on 15 March 2017. I wish to advise that it was a slip of tongue on my part due to the heavy pressure environment and was an unintentional mistake. What I meant to say, was ‘my family or my brother in law’ and ‘his medical appointment in Sydney’. I did not become aware of the mistake until when the transcript was perused/reviewed on 24 April 2019.
49.By letter dated 28 May 2019 the Respondent provided a copy of his letter to the Tribunal to the ACT Law Society in support of his submission that · he did not know why he referred to his daughter during the directions .hearing and that the complaint made by the client should be dismissed.
THE LEGISLATION
50.The Act provides a statutory definition of ‘unsatisfactory professional conduct’ and ‘professional misconduct’. Under s.386, ‘unsatisfactory professional conduct’ is defined as including:
conduct of an Australian legal practitioner happening in connection with the practice of law 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.
51.Under s.387, ‘professional misconduct’ is defined as including:
(a)unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
52.Under s.389, various examples of conduct that may amount to ‘unsatisfactory professional conduct’ or ‘professional misconduct’ are provided.
53.The Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (the Rules) impose binding obligations on practitioners pursuant to section 585 of the Act. Further, section 585 of the Act provides that a failure to comply with the Rules can constitute unsatisfactory professional conduct or professional misconduct. The Rules apply in addition to the common law: r 2.2.
54.The following Rules arise for consideration:
55.Rule 4 states:
Other fundamental ethical duties
4.1 A solicitor must also:
4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client;
4.1.2 be honest and courteous in all dealings in the course of legal, practice;
4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible;
4.1.4 avoid any compromise to their integrity and professional independent; and
4.1.5 comply with the Rules and the law.
56.Rule 5 states:
Dishonest and disreputable conduct
5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:
5.2 be prejudicial to, or diminish the public confidence in, the administration of justice; or
5.3 bring the profession into disrepute.
57.Rule 19 states:
Frankness in Court
19.1A solicitor must not deceive or knowingly or recklessly mislead the court.
19.2A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.
19.3A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.
58.Rule 43 states:
Dealing with the regulatory authority
43.1Subject only to his or her duty to the client, a solicitor must be open and frank in his or her dealings with a regulatory authority.
43.2A solicitor must respond within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow) to any requirement of the regulatory authority for comments or information in relation to the solicitor’s conduct or professional behaviour in the course of the regulatory authority investigating conduct which may be unsatisfactory professional conduct or professional misconduct and in doing so the solicitor must furnish in writing a full and accurate account of his or her conduct in relation to the matter.
CHARGES·
Charge 1
59.The Respondent accepts that he knowingly misled the Tribunal contrary to r 19.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and the common law.
Particulars:
(a)On 14 March 2017 the Respondent encouraged, and persuaded, the client to terminate his retainer with the Respondent’s law firm for the purpose of the client attending the Tribunal oh 15 March 2017 unrepresented to secure an adjournment of the hearing listed on that day in order to improve the prospects of that application.
(b)Having done so, at 4:21pm on 14 March 2017 the Respondent sent an email to the Registry of the Tribunal representing that his client had terminated the retainer of the Respondent’s·law firm (see paragraph 26 above). That representation was misleading as to the true circumstances of the termination because it did not give the full story of the termination, that was, it was potentially only temporary in nature and the client may return to the firm the hearing on 15 March 2017.
(c)The termination occurred after the Respondent falsely told the client that he
could not appear on 15 March 2017 because his daughter had a medical appointment which was not true.
(d)The Respondent did nothing to inform the Tribunal of the relevant facts, knowing that his former client would appear on 15 March 2017 to make the application for an adjournment.
(e)By sending the email at 4:21pm on 14 March 2017 the Respondent knowingly misled the Tribunal contrary to r 19.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and the common law.
(f)In the events that occurred, the Respondent telephoned the client following the hearing on 15 March 2017 and a meeting was scheduled for 20 March 2017. On 20 March 2017 the Respondent told the client what he needed to say to the Tribunal before 22 March 2017.
Charge 2
60.The Respondent accepts that he caused the Tribunal to be misled contrary to r 19.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and the common law.
Particulars:
(a)On 14 March 2017 the Respondent encouraged, and persuaded, the client to terminate his retainer with the Respondent’s law firm for the purpose of the client attending the Tribunal on 15 March 2017 unrepresented to secure an adjournment of the hearing listed on that day in order to improve the prospects of that application.
(b)During the telephone conversation on 14 March 2017 (see paragraphs 20 and 21 above) the Respondent told the client to say that he had terminated counsel’s and the firm ‘s services and ask for an adjournment.
(c)The Respondent said that the client could return to the firm after he
obtained the adjournment.
(d)On 14 March 2017 the Respondent advised the Tribunal that Dr Knox was on standby to give evidence on 15 March 2017. On 14 March 2017 at 3.08pm the Respondent sent an email to the client which said that ‘Dr Knox has been put off standby’ (see paragraph 18) notwithstanding that the Respondent was aware that his staff had told Dr Knox only ·”the matter might not be proceeding”. During the hearing on 15 March 2017 the client told the Tribunal that Dr Knox was not available and had been cancelled. Dr Knox rendered a tax invoice including an item for time reserved on 15 March 2017. By advising the client that Dr Knox had been ‘put off standby’ the Respondent caused the client to·mislead the Tribunal as to Dr Knox’s availability during the hearing on 15 March 2017.
(e)On 15 March 2017 the client attended the Tribunal unrepresented and made an adjournment application on the basis of having terminated the retainer with his counsel and solicitor the previous day. That representation to the Tribunal was misleading as the Respondent had advised the client to terminate the retainer of the firm for the purpose of securing the adjournment. That representation was also misleading as to the true circumstances of the termination because it did not give the full story of the termination, that was, it was potentially only temporary in nature and the client may return to the firm after the hearing on 15 March 2017.
(f)In the events that occurred, the Respondent telephoned the client following the hearing on 15 March 2017 and a meeting was scheduled for 20 March 2017. On 20 March 2017 the Respondent told the client what he needed to write to the Tribunal before 22 March 2017.
(g)By advising the client in the terms set out in subparagraphs (a) and (b) above and by advising the client that Dr Knox was put off standby in the terms in subparagraph (d) above, the Respondent knowingly caused the client to mislead the Tribunal contrary to r 19.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and the common law.
Charge 3
61.The Respondent accepts that he knowingly misled the Tribunal contrary to r 19.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and the common law.
Particulars:
(a)The Respondent misled the Tribunal as to the true circumstances regarding his availability to appear at the hearing on 15 March 2017. This was by disclosing to the Tribunal at the pre-hearing directions on 14 March 2017 that he had a long-awaited and pre-arranged medical appointment for his. daughter. This statement was, as the Respondent knew, false. In truth, as the Respondent knew, his daughter had no such medical appointment, and the Respondent’s diary for 15 March 2017 did not have in it any other engagement apart from the client’s hearing in the Tribunal.
(b)On 28 April 2019 the Respondent signed and sent a letter to the Tribunal stating that his statement to the Tribunal about his daughter was a ‘slip of tongue’ and an ‘unintentional mistake’ when, in fact, the statement was not an unintentional mistake but was, instead, knowingly made to attempt to gain the sympathy of the Tribunal.
(c)By advising the Tribunal that his daughter had a medical appointment, which the Respondent knew was false, and by advising the Tribunal that it was an “unintentional mistake” the Respondent knowingly misled the Tribunal contrary to r 19.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and the common law.
Charge 4
62.The Respondent knowingly misled his client contrary to r 4.1.2 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) or the common law.
Particulars
The Respondent misled his client as to the true circumstances regarding his availability to appear at the hearing on 15 March 2017. This was by advising his client on 14 March 2017 that he had to take his daughter to a medical appointment that had been scheduled when, in fact, there was no such medical appointment scheduled, and in truth the Respondent’s diary for 15 March 2017 did not have in it any other-engagement apart from the client’s hearing in the Tribunal.
Charge 6
63.The Respondent did not furnish accurate record of his conduct in relation to the matter to the Law Society contrary to r 43.2 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT)
Particulars
(a)The Respondent in his first response to the Law Society received on 7 February 2018 stated, in relation to being unavailable on 15 March 2017 because he had to take his daughter to a medical appointment, ‘I do not recall I said that to him. I don’t know where this came from.·With God’s blessings,. both of my children are healthy and well and I did not remember having to attend an appointment with any doctor on 15 March 2017.’ when, in fact, he had (untruthfully) advised both the Tribunal, and later the client directly, on 14 March 2017 that he would be unavailable on 15 March 2017 because ‘my family and I need to take my daughter to a medical appointment’. The statement that ‘/ do not recall I said that to him. I don’t know where this came from’ is not a full and accurate response to the Law Society.
(b)In his final response to the Applicant dated 28 May 2019 the Responded stated that he did not know why he referred to his daughter during the AAT hearing and submitted a copy of his letter to the Tribunal dated 28 April 2019 to the Applicant knowing that the letter contained. a false representation, namely, that his statement to the Tribunal about his daughter was a ‘slip of tongue’ and an ‘unintentional mistake’ because, in fact, the statement was not an unintentional mistake but was, instead, knowingly made to attempt to gain .the sympathy of the Tribunal.
(c)By making these responses to the Law Society the Respondent knowingly misled the Law Society contrary to r 43.2 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT).
CHARACTERISATION OF CONDUCT
64.Considered globally,[32] the conduct in the charges constitutes professional misconduct within the meaning of section 387(1) of the Act, being unsatisfactory professional conduct of an Australian legal practitioner that involves a substantial failure to reach or maintain a reasonable standard of competence and diligence and professional misconduct at common law being conduct that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency and is otherwise capable of bringing the legal profession into disrepute.
SANCTION
65.The parties will put separate submissions to the Tribunal on sanction to be determined by the Tribunal.
Signed on behalf of the Applicant Date:
Signed by the Respondent
Date: 17December 2019
[1] The parties submit that the charges can be dealt with globally as has been done in previous cases: Council of the Law Society of the ACT v Legal Practitioner RN [2016] ACAT 122 [40]; Council of the Law Society of the ACT v Legal Practitioner 'P4' (No 2) [2015] ACAT 35 [6]-[7]; and Council of the Law Society of the ACT v Legal Practitioner 201818 [2019] ACAT 12[17]; Law Society of the ACT v Powrie [2017] ACTSCFC 4; 12 ACTLR 184 at [36].
Evidence of the Applicant not relied on
The Complaint –second sentence of paragraph 4 pp 31-69 of the Annexure
A letter from Mr Reis dated 24January 2018 to the Practitioner-second sentence para 5 pp 69-71 of the Annexure
Paragraph 7
The Joint submission has an index and documents attached and they were not relied on as the salient parts were in the Annexure to the Reis affidavit[33]
[33] This is explained to avoid those parts of the file becoming publicly available in the future. The Applicant was arranging to uplift t the affected documents and replace them in accordance with this description
List of evidence of the respondent not read after objection
1Affidavit of the practitioner dated 17/2/20
Para 16 –the whole
Para 30 fourth sentence, the penultimate and last sentences
Para 39 all after the word “standby” in the first sentence
Para 40 Second sentence, fourth sentence from “although it had been…” to the end of the paragraph
Para 46 (f) -the last sentence-noting the end of the previous sentence was allowed but not as a diagnosis
2Affidavit of ZC (his partner rin the current firm) 17/2/20
Para 22b para 24 last sentence
3Affidavit of ZA-the barrister in the case sacked by the complainant-of 17/2/2para 27 fifth and sixth sentences
Para 30 the last sentence should be read as being qualified so that the statement should be read one part was dismissed and for another part a caution was administered
4James Macken letter dated 17/2/20 last paragraph the whole of the second sentence
5Tim Crispin 17/2/20
Last sentences of first and third paragraph on page 2
6Professor Stevens’s report dated 12/2/20
Page 1 last complete para second sentence and last sentence
Page 2 first para “I think… behaviour”
Page 4 second para first sentence;3rd para last sentence
Page 6 3rd para last sentence
7Affidavit of SA –junior solicitor-dated 19 February 2020.
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