Council of the Law Society of the ACT v Legal Practitioner 201933

[2020] ACAT 54

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LEGAL PRACTITIONER 201933 (Occupational Discipline) [2020] ACAT 54

OR 33/2019

Catchwords:               OCCUPATIONAL DISCIPLINE – legal practitioner – failure to act in clients’ interests on a conveyance – failure to advise clients’ rights under contract for sale – breach of client legal privilege – settlement of occupational discipline application on agreed terms – consideration of Tribunal’s power under section 55 of ACTCivil and Administrative Tribunal Act 2008 to make orders in or consistent with agreed terms – meaning of ‘appropriate’ in section 55 – consideration of circumstances where a public reprimand is not necessary – proposed orders varied by deleting public reprimand and by giving further time for practitioner to pay the applicant’s costs

Legislation cited:        ACTCivil and Administrative Tribunal Act 2008 ss 22, 55

Legal Profession Act 2006 ss 386, 413, 425, 433

Subordinate

Legislation cited:        Legal Profession (Solicitors) Conduct Rules 2015 rr 4, 7, 9

Cases cited:Council of the Law Society of the Australian Capital Territory v Legal Practitioner 2 [2016] ACAT 120

Council of the Law Society of the Australian Capital Territory v Legal Practitioner W [2013] ACAT 1
Council of The Law Society of The Australian Capital Territory v Legal Practitioner 201822 (Alveer Singh) [2019] ACAT 27
Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68

Tribunal:  Presidential Member G McCarthy

Date of Orders:  11 March 2020

Date of Reasons for Decision:      15 July 2020

AUSTRALIAN CAPITAL TERRITORY          

CIVIL & ADMINISTRATIVE TRIBUNAL           OR 33/2019

BETWEEN:

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

Applicant

AND:

LEGAL PRACTITIONER 201933

Respondent

TRIBUNAL:Presidential Member McCarthy

DATE:11 March 2020

ORDER

By consent:

1.The respondent is guilty of unsatisfactory professional conduct.

2.The respondent not apply for a local practising certificate for the practice years commencing 1 July 2020, 1 July 2021 and 1 July 2022.

3.The respondent pay the applicant’s costs fixed in the sum of $12,000 within 12 months from the date of these orders.

……………Signed…………..

Presidential Member McCarthy

REASONS FOR DECISION

Background

1.By application dated 4 December 2019, the applicant brought occupational discipline proceedings against the respondent under section 419 of the Legal Profession Act 2006 (the LP Act). At all material times, the respondent was a local legal practitioner, practising as a sole practitioner with an unrestricted practising certificate.

2.In response to the application, on 8 January 2020 the parties filed a Joint Submission with the Tribunal to assist it in determining the matter by consent pursuant to section 55 of the ACTCivil and Administrative Tribunal Act 2008 (the ACAT Act).

3.The Joint Submission set out the parties’ agreed position on the relevant facts, the charges, the characterisation of the charges and an appropriate sanction. The respondent also filed a document entitled “Matters in mitigation” dated 10 January 2020 by which he stated several (mostly personal) circumstances he wished the Tribunal to consider when determining the matter.

4.In the Joint Submission, the respondent agreed with the facts giving rise to the charges against him, as pleaded in paragraphs 1 to 52 of the application. I had no cause to question any of the facts pleaded, and so drew from them to provide a summary of what occurred.

5.In November 2016, the respondent received instructions to act for the vendors on the sale of their residential property in the ACT. On 10 March 2017, the respondent exchanged contracts for the sale of the property with the solicitor for the buyers. The respondent’s clients were anxious to settle as quickly as possible to minimise their mortgage repayments. Settlement was scheduled for Friday, 7 April 2017.

6.The contract provided for the buyers to inspect the property three days prior to settlement to ensure that a list of work and repairs stated in special conditions to the contract (the Work) had been done. The special conditions included the buyers’ right to inspect the air-conditioning and heating systems three days prior to settlement.

7.By email sent on 30 March 2017, the respondent’s clients told the respondent that the gas heating system “is so old it may not pass the emissions test”. They asked if they were “obliged to have a new system installed”. The email was a confidential communication from the respondent’s clients to him for the purpose of seeking his advice. It therefore enjoyed client legal privilege, also known as legal professional privilege, the benefit of which lay with the clients.

8.The respondent did not provide the vendors with the requested advice. Instead he forwarded their email to the solicitor for the buyers who replied that the heating system must be repaired or replaced. The respondent forwarded that advice to his clients.

9.On 1 April 2017, the respondent’s clients asked the respondent if settlement could be rescheduled from Friday, 7 April 2017 to Monday, 10 April 2017 to give them time to complete the Work required to be done under the contract prior to settlement. In his email in reply, the respondent resisted his clients’ request, stating that settlement “cannot be rescheduled”, that they had “had the necessary time to complete the work” and that “the weather is on your side so do the best you can” to have everything done in time, meaning by 3 April 2017 in time for the buyers to inspect the property three days prior to settlement.

10.The respondent’s clients replied that they would not be able to have the Work done in time and asked about the implications of delaying settlement from Friday, 7 April 2017 to Monday, 10 April 2017. The respondent replied later that day, stating “we just must settle on Friday and you must have everything done”. He referred to the “implications” of not doing so, including an increase in conveyancing fees because of the need to re-do the settlement statement and re-book settlement; that the purchaser may not be available at the times his clients would like; and extra costs in terms of lost interest, extra bank charges, extra conveyancing charges and another week of land and water rates. In my view, these were relatively minor holding costs.

11.It was also for the respondent’s clients to decide whether to delay settlement, notwithstanding these costs. Instead, the respondent advised his clients to settle on 7 April 2017, rather than delay by the requested few days, stating:

As I suggested in my email, hire people to finish any outstanding work. It is cheaper to go down this route than to have a delayed settlement which could end up costing you a great deal of money in terms of lost interest, extra bank charges, extra conveyancing charges and possibly another week of rates and Icon charges.

12.The respondent did not mention that his clients were not compelled to settle on 7 April 2017. He did not mention that if his clients did not settle on 7 April 2017 the buyer could issue a ‘Notice to Complete’ under clause 18 of the contract. He did not mention the seven day ‘period of grace’ that his clients would have had to complete (meaning settle) under clause 22 of the contract. In other words, the respondent did not tell his clients that they were able to settle on or well after 10 April 2017 although it may involve some minor rescheduling and holding costs.

13.Despite their best efforts, the respondent’s clients were not able to complete the Work in time for settlement to occur on 7 April 2017.

14.Acting on the advice of the respondent, and with the agreement of the buyer, the respondent’s clients agreed to settle on 7 April 2017 on the basis that $25,000 of the settlement money would be retained in their real estate agent’s trust account to be used, to the extent necessary, to pay for the remaining work to be done under the contract’s special conditions, including repairs to the cooling and heating system. The agreement also provided for the agent, not the sellers, to select the contractors who would be engaged to complete the Work.

15.In the respondent’s letter to the buyer’s solicitor setting out his clients’ agreement for $25,000 of the settlement money to be retained, the respondent did not provide information about the suitability of the amount to be retained, how the funds would be administered (meaning who would approve the tax invoices for work done) or the estimated timeframe for the work to be done. The applicant contended that the respondent did not in some other way advise his clients on these issues. There was no fact stated in the application, the Joint Submission or the respondent’s document entitled “Matters in mitigation” contrary to this contention. I therefore accepted it.

16.By letter dated 15 April 2017 to his clients, the respondent summarised the arrangement regarding expenditure of the $25,000 retained in the agent’s trust account as follows:

The sum of $25,000 has been retained in the agent’s trust account and on presentation of the various invoices the balance of the moneys will be forwarded to you. This aspect of the transaction is between you and the agent who has been advised by both solicitors who have ensured that the legal obligations placed on you by the terms of contract have been fulfilled.

17.The respondent added:

The matter was taken out of your hands given your inability to comply with the contractual obligations. I would advise you that the decisions have been made and no further correspondence will be pursued.

18.On 15 April 2017, the respondent provided his clients with his tax invoice for fees ($1,700 plus GST) and disbursements totalling $2,041. Two years later, the respondent refunded his fees “as a gesture of goodwill.”

19.The respondent’s clients received invoices rendered by Night and Day Locksmiths (Night and Day) and 1oak Property Maintenance (1oak) totalling $10,105.40 for clean-up, repairs and maintenance. This prompted the respondent’s clients to send the respondent an email on 24 April 2017 stating that they had accepted his advice to settle on 7 April 2017, and not ask for a deferred settlement, with reliance on advice that the cost of completing the Work would be “about $2,000”. The respondent’s clients complained that they “have been sidelined in this process” and that decisions had been made “with no communication with them.”

20.On 25 April 2017, the respondent replied to his clients, stating that his role “was completed at settlement” and that the cost of the repairs and maintenance was “a matter for the agent and the contractor they[1] decided to employ in order to complete the tasks you left unfinished.” The respondent continued, in my view, by chastising his clients stating:

… I must say I did pass by on two occasions and was most disappointed to see [you] there and even more so to know that [he] had asked the contractor to allow [him] in the house after my instructions to [him] that to do so would constitute trespass. The property is no longer yours.

I do not know what the final cost will be (it is none of my business) and that is something you are going to have to carry.

[1] The pronoun “they”, in the context of the sentence, appears to be a reference to the real estate agent.

21.On 26 April 2017, the respondent sent an email to the real estate agent authorising payment of two invoices for work done from the funds held by the agent “without recourse to his clients”. The email stated that the respondent was doing so “in my position as the solicitor acting for the sellers”. Referring to paragraphs 41 and 42 of the application and the respondent’s agreement with them as pleaded, the respondent accepted that there was “a need for him to continue to advise his clients on whether the funds were disbursed in accordance with the Special Conditions upon advice from the real estate agent.”

22.On 1 May 2017, the respondent’s clients sent him and the agent an email stating that it was “intolerable” that “final settlement”, which I understood to mean payment of the balance from the $25,000 held by the agent after payment for the Work, was taking so long. They noted that part of the respondent’s “persuasive arguments” for why they should settle on 7 April 2017 was that the work “would be done quickly and that you[2] estimated it would cost around $2,000.”

[2] There is uncertainty as to whether the respondent, the real estate agent or both estimated the cost of work necessary to comply with the special conditions would be “around $2,000”.

23.On 1 May 2017, the respondent sent a reply to his clients, copied to the agent, stating that he had been acting in accordance with their wish to settle as soon as possible. In my view, that response was disingenuous - given their stated wish to delay settlement for a few days in order for them to complete the Work. Why the respondent copied the agent into this private correspondence with his clients is unclear.

24.On 4 May 2017, the respondent sent an email to the agent stating that he had spoken to the solicitor for the buyers seeking confirmation that the special conditions had been “adequately satisfied”. He asked the agent not to release the balance of the deposit money “at this stage”. Why he, rather than the solicitor for the buyers, would ask the agent not to release money to his clients was not explained.

25.On 9 May 2017, the solicitor for the buyers advised the respondent that the buyers requested an additional $10,000 from the money held by the agent to cover the costs, he said, of work not completed to a workmanlike standard. The solicitor for the buyers particularised the work still to be done.

26.On 10 May 2017, the respondent forwarded the buyers’ solicitor’s email to his clients with advice that he was no longer involved in the matter “except in a very peripheral way”. He then stated that it was their responsibility to fulfil the special conditions and that as they had “failed to do so [they] must therefore take the consequences”. The respondent “implored” his clients to agree to the terms of the letter from the buyers’ solicitor – meaning to agree to pay the additional $10,000 to put “this whole matter” behind them.

27.The respondent stated to his clients that they were “free to obtain independent legal advice but this will cost you several thousand dollars” and that in his opinion another solicitor would “come to the same conclusion I have reached, namely that you are at fault and must accept the consequences of your failures”. The respondent concluded:

I will offer to convey your response to [the buyers’ solicitors] but please understand clearly I am accepting no legal responsibility and am not acting in a legal capacity on your behalf … I think you should pay heed to what I ma (sic) recommending.

Please, please accept my advice.

28.On 11 May 2017, the respondent’s clients sent him a reply stating that they would be taking further legal advice and set out their reasons for why they regarded the buyers’ many claims about defects in the property and invoices they wished the respondent’s clients to pay as “absurd.”

29.On 11 May 2017, without advising his clients and without instructions to do so, the respondent forwarded his clients’ email of 11 May 2017 to the solicitor for the buyers. He did so, notwithstanding it being a confidential communication from the respondent’s clients to him.

30.The respondent’s clients obtained independent legal advice and, on or around 22 September 2017, they received $12,069.60 in payment of the balance of the $25,000 that the agent retained at settlement. Assuming the invoices from Night and Day Locksmiths and 1oak were paid, it would seem that the buyers agreed to accept a further $2,825, rather than $10,000, in fulfilment of the special conditions under the contract.

31.The respondent’s conduct led to the applicant laying three charges.

Charge 1

The respondent did not provide clear and timely advice to assist his clients to understand relevant legal issues and to make informed choices about action to be taken during the course of the matter in breach of rule 7.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and/or the common law

Particulars

(a)The respondent inaccurately advised his clients that delaying settlement would cost them ‘a great deal of money’ when in fact it would not.

(b)The respondent did not advise his clients on 7 April 2017:

(i)      that they could delay settlement;

(ii)     that the buyers could issue a Notice to Complete;

(iii)   if the buyers issued a Notice to Complete, the [respondent’s] clients had a seven day grace period in which to settle before they would incur any losses under the contract; and

(iv)   if the buyers issued a Notice to Complete, no enforceable rights were available to the buyers until the expiration of 14 days.

(c)The respondent did not advise his clients regarding the retention of the $25,000 on settlement including the suitability of the amount to be retained (following receipt of advice from the real estate agents) and how the funds would be administered and over what period.

(d)The respondent did not provide clear advice to his clients regarding the proposal by the buyers’ solicitor on 9 May 2017 that the final sum of $10,000 be paid to the buyers from the funds held by the agent.

Any one or more of these particulars may individually, or collectively, amount to a breach of the Rules and/or the common law and constitutes unsatisfactory professional conduct as defined by the Legal Profession Act 2006 (ACT) or professional misconduct as defined by the Legal Profession Act 2006 (ACT) and/or the common law.

Charge 2

The respondent failed to act in the best interests of his clients in breach of rule 4.1.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and/or the common law

Particulars

(a)By letter dated 15 April 2017, the respondent stated that the retention sum arrangement was taken out of [his] clients’ hands due to their inability to comply with the contract and, in consequence, the respondent would not provide any further assistance to them. Contrary to that advice, the respondent approved all disbursements from the retention sum without recourse to his clients.

(b)By email dated 25 April 2017, the respondent sought to discontinue to act for his clients in circumstances where the sum of $25,000 had been retained following settlement and needed to be properly administered. The respondent’s clients required him to continue acting in order to ensure the $25,000 was administered properly.

(c)By email dated 26 April 2017 the respondent approved the payment of the invoices provided by 1oak from the real estate agent’s trust account. He did not seek his clients’ instructions before doing so.

Any one or more of these particulars may individually, or collectively, amount to a breach of the Rules and/or the common law and constitutes unsatisfactory professional conduct as defined by the Legal Profession Act 2006 (ACT) or professional misconduct as defined by the Legal Profession Act 2006 (ACT) and/or the common law.

Charge 3

The respondent disclosed information confidential to his clients in breach of rule 9.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and/or in breach of legal professional privilege at common law

Particulars

(a)The respondent sent an email to Mr Wenning on 30 March 2017 containing information that was confidential to his clients. The respondent was neither permitted nor required to disclose that information.

(b)The respondent sent an email to Mr Wenning on 11 May 2017 containing information that was confidential to his clients. The respondent was neither permitted nor required to disclose that information.

Either or both particulars may individually, or collectively, amount to a breach of the Rules and/or the common law and constitutes unsatisfactory professional conduct as defined by the Legal Profession Act 2006 (ACT) or professional misconduct as defined by the Legal Profession Act 2006 (ACT) and/or the common law.

32.In its application to the Tribunal, the applicant sought a finding that the respondent is guilty of professional misconduct or, in the alternative, unsatisfactory professional conduct and an order that he pay the applicant’s costs

33.In the Joint Submission, the respondent accepted that he was guilty of the matters pleaded and particularised in charges 1, 2 and 3. He and the applicant submitted that, in the case of each charge, the conduct constituted unsatisfactory professional conduct as defined in section 386 of the LP Act.

34.Arising from the Joint Submission, the parties submitted that the appropriate sanction was:

(a)a finding that the respondent is guilty of unsatisfactory professional conduct;

(b)a public reprimand;

(c)an order that the respondent not apply for a local practising certificate for the practice years commencing 1 July 2020, 1 July 2021 and 1 July 2022; and

(d)an order that the respondent pay the applicant’s costs fixed in the sum of $12,000 within six months of the date of the Tribunal’s orders.

35.Arising from the parties’ agreement about guilt and sanction, the task for the Tribunal was to determine whether it could make orders in the proposed terms without holding a hearing. The Tribunal’s power to do so is not at large: it is governed by section 55 of the ACAT Act, which provides:

55 Powers of tribunal if parties reach agreement

(1) This section applies if, at any stage in dealing with an application—

(a)       the parties reach agreement—

(i)about the terms of a tribunal decision in relation to the application; or

(ii)about how to deal with a part of the application or a matter arising out of the application; and

(b)the terms (the agreed terms) of the agreement are reduced to writing, signed by the parties and lodged with the tribunal; and

(c)the tribunal is satisfied that an order or decision in, or consistent with, the agreed terms would be—

(i)  within the powers of the tribunal; and

(ii) appropriate for the tribunal to make.

(2)If the agreed terms are about a tribunal decision in relation to the application, the tribunal may, by order, make a decision in accordance with the agreed terms—

(a)without holding a hearing; or

(b)if a hearing has begun—without completely dealing with the application at the hearing.

(3) …

36.It can be seen that for the Tribunal to “make a decision in or consistent with … agreed terms” under section 55(2), the preconditions in section 55(1)(a), (b) and (c) must be met. In this case, the Joint Submission evidenced that section 55(1)(a)(i) and (b) were met: whether sections 55(1)(c)(i) and (ii) were met were matters for the Tribunal.

37.I accepted the parties’ submission that the four orders making up the proposed sanction are within the powers of the Tribunal pursuant to sections 425(2), 425(3)(e), 425(5)(i) and 433 of the LP Act, respectively: section 55(1)(c)(i) was therefore met. The question was whether each of the proposed orders was “appropriate for the tribunal to make”, to meet section 55(1)(c)(ii).

38.The Macquarie Dictionary (sixth edition) relevantly defines ‘appropriate’ as an adjective to mean “1. suitable or fitting for a particular purpose, person, occasion, etc. 2. belonging or peculiar to one”. It contemplates consideration of the proposed orders referenced, specifically, to the facts and circumstances of the issue or matter to be determined by reference to the orders.

39.In my view, the legislative context in which the orders are to be made is also important.

40.For example, under the Guardianship and Management of Property Act 1991 or the Mental Health Act 2015, among other Acts, the Tribunal performs an executive function and has an important inquisitorial role when determining an application. For this reason, it is difficult to contemplate it being ‘appropriate’ for the Tribunal to make proposed orders simply because they were agreed by the persons or parties involved.

41.Conversely, when determining civil dispute applications under section 22 of the ACAT Act, the Tribunal performs a judicial function and determines an application by reference to the facts and issues raised by the parties. Applications of this kind arise only because the parties are unable to resolve the dispute between themselves. It follows that if the parties at some point after an application has been filed are able to resolve a dispute between themselves, wholly or in part, respect for the parties’ settlement is an important consideration for the tribunal when determining whether the proposed orders are appropriate. There would need to be a legitimate objective reason, for example manifest inequity, manifest injustice, unenforceability or uncertainty (assuming the Tribunal is satisfied that the agreed orders are within power) before the Tribunal should interfere.

42.Applications for occupational discipline involve, in my view, exercise of an executive function but in a judicial manner. For sound policy reasons, applicable legislation routinely permits a regulator of many trades or professions to hear and determine minor occupational discipline matters.[3] Under the applicable legislation, the regulator does not have power to determine more serious matters which must be referred to an independent body. In many cases, including more serious breaches of the LP Act, the Tribunal has that role. It follows that the Tribunal must actively consider the appropriateness of proposed agreed orders, referenced to the facts, law and circumstances of the particular case, when deciding whether to make them. To do otherwise would entail the Tribunal not discharging the function given to it, not to the regulator, when determining the outcome of the disciplinary action.

[3] For example, the Legal Profession Act 2006, section 413, permits the Council of the Law Society of the ACT to hear and determine minor breaches of the Act.

43.This is consistent with the views of the tribunal, per Presidential Member Symons, in Council of The Law Society of The Australian Capital Territory v Legal Practitioner 201822 (Alveer Singh)[4] (Singh) in which the tribunal said:

Although the parties in the joint submission seek orders by consent pursuant to section 55 of the ACAT Act, the parties acknowledged that the tribunal does not simply issue consent orders. As the tribunal stated in another occupational discipline decision, Nursing and Midwifery Board of Australia v Izzard[5]:

As identified in Medical Board of Australia v Martins [2013] QCAT 376 there is a public interest in parties to an occupational discipline matter being able to identify areas of agreement, and seeking to resolve the matter by way of consent orders. However the role of the Tribunal is not to simply issue orders as requested by the parties. In making an order for occupational discipline, even where by consent, the Tribunal must actively consider the facts that are agreed, the characterisation of those facts and the orders proposed as an appropriate response to the matter.[6]

[4] Council of The Law Society of The Australian Capital Territory v Legal Practitioner 201822 (Alveer Singh) [2019] ACAT 27

[5] Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68 at [10]

[6] Council of The Law Society of The Australian Capital Territory v Legal Practitioner 201822 (Alveer Singh) [2019] ACAT 27 at [6]

44.Having regard to the Tribunal’s obligations, I considered the appropriateness of each of the four proposed orders.

45.Regarding the first proposed order, I was comfortably satisfied that the respondent is guilty of unsatisfactory professional conduct. As mentioned, I had no cause to question the respondent’s agreement with each of the relevant facts pleaded in the application giving rise to the three charges. The respondent had direct knowledge of the events and so was able to assess the accuracy or otherwise of the pleaded facts. He was legally represented by Mr Boettcher, who was able to give him independent objective advice about how to respond to the application.

46.When considering the facts giving rise to the charges, I looked to the substance of the respondent’s wrongdoing. I considered whether the respondent’s actions (or some of them) should be seen only as technical breaches. I was satisfied that the breaches should not be seen as ‘technical’. The facts, taken together, led me to conclude that at each step of his dealings with his clients the respondent put his own interests ahead of his clients’ interests to their detriment. He wished settlement to occur, as scheduled, and did not advise his clients of their options under the contract to delay settlement as they wished. Likewise, because he wished to achieve closure of the matter, the respondent advised his clients to accept the agent’s retention of a substantial portion of the settlement monies ($25,000), and for the agent to decide what contractors to engage to perform the outstanding work, without advising them of the risks and uncertainties in them doing so. He took the same path when “imploring” his clients to forego a further $10,000, in addition to the $10,105.40 already given over to cleaning and repairs, from the retention money in order to “put the whole matter behind them”. I gained a strong impression that, in advising his clients to forego a further $10,000, and in his advice generally, the respondent was primarily motivated by his wish to have “the whole matter put behind” him, not his clients. The respondent’s breaches of legal professional privilege, noting that the privilege belonged to his clients not him, were inexcusable.

47.The second, third and fourth proposed orders all concerned penalty. I therefore considered them collectively, when considering whether they were appropriate in this case.

48.I began with consideration of the respondent’s his response to his clients’ complaint to the applicant. I noted that after the complaint was made, the respondent voluntarily refunded his legal fees to his clients in full. I noted also his early acceptance of the charges and his agreement to an appropriate sanction, which avoided further cost, delay and stress for all involved.

49.The third proposed order entailed the respondent being unable to practise, and so a deprivation of income from his practice, for three years. On any view, that is a severe penalty. However, as stated in the document entitled “matters in mitigation” provided by his solicitor, the respondent had decided to retire. This suggested that his acceptance of a penalty preventing him from practising for three years was interconnected with his decision to retire. I noted that, at this time, the respondent is aged in his early 70s.

50.The respondent submitted that, as he had chosen to retire, “there is no need for specific deterrence”. I found this a curious submission, given his agreement to an order that would prevent him from practising for three years. I therefore considered whether this order was necessary, especially if other measures could be taken if the respondent were to reconsider his decision to retire. I concluded that the proposed order was appropriate, even if it did not have any practical consequence for the respondent. There is an important public interest to serve by marking the seriousness of the respondent’s conduct as a deterrent to other practitioners from engaging in the same or similar conduct.

51.I next considered whether there needed to be a public reprimand, having regard to the proposed order that the respondent not apply for a practising certificate for three years and his stated intention to retire. I enquired of the parties as to why, in this circumstance, the public interest demanded a public reprimand. In their reply, the solicitors for the applicant noted (and I accept) that the primary purpose of disciplinary proceedings is to protect the public, not punish the respondent, and that personal and general deterrence are relevant factors when determining an appropriate sanction. The applicant accepted, however, that in circumstances where the respondent was agreeing to the order that he not apply for a practising certificate for three years, a public reprimand was not required to achieve personal deterrence.

52.In Singh, the Tribunal considered relevant considerations, when determining whether a public or private reprimand should be included as part of a sanction where a practitioner is guilty of unsatisfactory professional conduct. In that case, the Tribunal referred to an earlier decision in Council of the Law Society of the Australian Capital Territory v Legal Practitioner W[7] (Legal Practitioner W) in which the Tribunal concluded that the proceedings in themselves can act as a deterrent to the practitioner and that publication of the tribunal’s reasons “will act as an important conduit of information and a deterrent to ACT practitioners. This can occur without the further need for a public reprimand.”

[7] Council of the Law Society of the Australian Capital Territory v Legal Practitioner W [2013] ACAT 1

53.In Legal Practitioner W, the tribunal found that there were “special circumstances” to permit a private reprimand, namely that the practitioner had a 20-year unblemished record in practising law, the breaches were at the lower end of the scale in terms of their seriousness and it was not established that any client had suffered prejudice as a result of the admitted errors and delays.

54.In Singh, the Tribunal also noted another earlier decision, Council of the Law Society of the Australian Capital Territory v Legal Practitioner 2[8] (Legal Practitioner 2), in which the Tribunal found that the pre-condition for making a private reprimand (namely, the existence of special circumstances) was satisfied. In that case, the Tribunal took into account the practitioner’s length of practice (18 years as a successful partner of a major law firm), the lack of prior disciplinary proceedings and that the practitioner’s actions ultimately did not adversely affect the client.

[8] Council of the Law Society of the Australian Capital Territory v Legal Practitioner 2 [2016] ACAT 120

55.As the decisions in Legal Practitioner W and Legal Practitioner 2 demonstrate, protection of the public interest does not always require that the practitioner be ‘named and shamed’, that being a consequence of a public reprimand, especially where there are published reasons that detail what occurred, why it constituted unsatisfactory professional conduct and where the sanctions imposed are a deterrent to other legal practitioners from engaging in such conduct. The seriousness of the conduct is also a relevant consideration. As noted in Singh, where the practitioner is found guilty of professional misconduct, “the basis for a private reprimand disappears.”

56.In this case, the respondent is aged in his early 70’s. It would seem from the matters put forward in mitigation that health reasons may have contributed to his decision to retire, but I accept that his clients’ complaint and the outcome of it was also a material reason. There is no suggestion of any earlier disciplinary proceedings against the respondent. He voluntarily repaid his legal fees to his client in February 2019, although this would seem to have been prompted by the complaint to the applicant made by his former clients in March 2018.

57.By letter dated 6 April 2018, the applicant provided the respondent with a copy of his former clients’ complaint and requested a response. He did so by letter dated 14 April 2018, essentially maintaining that he had done nothing wrong. He even maintained that he had helped his clients in that his actions had “prevented” the buyers from “taking [his clients] to Court” and “probably saved them thousands of dollars”. In my view, his response showed a remarkable lack of insight into his wrongdoing, especially where the applicant had put him on notice in its letter dated 6 April 2018 of its “preliminary decision to further assess and investigate” six stated elements of the complaint. Nevertheless, to his credit although probably with the benefit of legal advice, he did not maintain that position after proceedings were commenced against him in December 2019.

58.I also noted that the respondent’s clients obtained separate legal representation in relation to their liability to pay the further requested amount of $10,000 from the balance remaining of the $25,000 kept by the agent, and that a further amount of $2,825 was paid (assuming payment of the earlier invoices totalling $10,105.40) in settlement of the dispute with the buyers. This suggests that the outcome for the respondent’s clients would not have been better, had they been differently represented after agreeing to the retention of $25,000, even if the outcome would have been worse had they accepted the respondent’s advice to agree to the buyers retaining a further $10,000.

59.Given these various outcomes, in particular that the respondent is unable to practise for at least three years and, in all probability, will not practise again, I was satisfied that the respondent’s conduct did not justify a public reprimand. This whole event is a regrettable way in which the respondent has ended his career. I did not see, in all the circumstances, why the regret should be compounded by a public reprimand. There being no application for a private reprimand, I did not so order.

60.Turning to the appropriateness of the proposed costs order, I took into account that as a consequence of the order that the respondent not apply for a practising certificate for three years from 1 July 2020 and his decision to retire, the respondent would be denied an income from practising law on and from 1 July 2020. I did not know the respondent’s wider financial circumstances, save for a statement in mitigation that his practice generated a gross (presumably annual) revenue of approximately $80,000. This suggested to me that an obligation to pay $12,000 in six months might be onerous. The purpose of disciplinary proceedings is deterrence and protection of the public, not punishment of the practitioner.

61.I enquired of the applicant as to whether 12 months would be a more appropriate period within which the respondent would be required to pay the applicant’s costs. In reply, the applicant stated it was “content” to allow the respondent 12 months within which to pay. I concluded that 12 months to pay was a more appropriate period, although I accept that ‘time to pay’ can be an inherently subjective decision.

………………………………..
Presidential Member G McCarthy

HEARING DETAILS

FILE NUMBER:	OR 33/2019
PARTIES, APPLICANT:	Council of the Law Society of the Australian Capital Territory
PARTIES, RESPONDENT:	Legal Practitioner 201933
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	McInnes Wilson
SOLICITORS FOR RESPONDENT	Boettcher Law
TRIBUNAL MEMBERS:	Presidential Member G McCarthy
DATE OF HEARING:	11 March 2020