COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER G (Geraldine Blanch) (Occupational Discipline) - [2016] ACAT 161

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER G (Geraldine Blanch) (Occupational Discipline) [2016] ACAT 161
OR 17/2013
Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioner –- evidence not sufficient to establish breach of duty to act fairly and with competence and diligence– failure to provide comment or information when required to do so – unsatisfactory professional conduct – fine – reprimand - costs

Legislation: Legal Profession Act 2006 ss 425, 427, 433
Legal Profession (Solicitors) Rules 2007 rr 1.1, 1.2, 39.1, 39.2
Legislation Act 2001 ss 247, 250

Cases Cited:Council of the Law Society v The Legal Practitioner [2010] ACAT 2
Law Society of the ACT v The Legal Practitioner [2011] ACAT 57

Tribunal: President L Crebbin

Date of Orders:  31 December 2016
Date of Reasons for Decision:         31 December 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL          OR 17/2013

BETWEEN:
COUNCIL OF THE LAW SOCIETY OF THE ACT Applicant

AND:
LEGAL PRACTITIONER G
Respondent

TRIBUNAL: President L Crebbin

DATE:31 December 2016
ORDERS

On finding the respondent practitioner guilty of unsatisfactory professional conduct the Tribunal orders:

The respondent practitioner is publicly reprimanded.
The respondent practitioner pay a fine of $2,000 to the applicant Council by 31 March 2017 or such other date as is agreed.
The respondent practitioner pay the applicant Council’s costs in the amount of $8,210 by 31 March 2017 or such other date as is agreed.

..........................................

President L Crebbin

REASONS FOR DECISION

The Council of the Law Society (the Council) received a written complaint about the respondent legal practitioner (the practitioner) on 30 August 2012. The complaint was made by a recently retired partner of a law practice which had previously employed the practitioner. The complainant raised two matters one of which was later resolved.[1]
[1] This decision was previously anonymised and cited as Council of the Law Society of the ACT v Legal Practitioner G [2016] ACAT 161 pursuant 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
The matter that was not resolved was about the practitioner’s failure, approximately two years earlier, to do work necessary to progress a court action for a client (the court action). She was responsible for the conduct of the court action. The court dismissed the action; it appears as a result of that failure.
The Council wrote to the practitioner asking for information and a response to the complaint but she did not respond.
Several further attempts were made by the Council to engage the practitioner and obtain a response from her:
(i)a formal direction to respond was sent on 27 September 2012;
(ii)a further formal direction was sent on 11 October 2012;
(iii)on 24 October 2012 the Professional Standards Director spoke to the practitioner by telephone;
(iv)on 7 December 2012 the practitioner’s then employer wrote to the Council. A response was provided through him about the first matter, but he was unable to say anything about the second matter other than that he was aware the practitioner was working on a response;
(v)on 12 December 2012 the practitioner and her employer met with the Professional Standards Director and the Executive Director of the Council. It was agreed that the Council would make arrangements for her to receive the client file for the court action from her former employer so she could refer to it for the purposes of her response, but she did not at that time contact the relevant person to receive the file;
(vi)on about 5 March 2013 she surrendered her unrestricted practicing certificate;
(vii)on about 19 March 2013 she received the client's file relating to the court action. She returned it on about 9 April 2013;
(viii)on about 19 March 2013 the respondent was issued with a restricted practicing certificate;
(ix)on 15 April 2013 the practitioner sent an email to the Professional Standards Director with an attachment that was said to be her response but the attachment was blank. She did not respond to an email telling her this and asking her to re-send it;
(x)she did not return two telephone calls made to her by the Professional Standards Director and then on 29 April 2013 in a telephone call with him, undertook to re-send the attachment that day. She did not do so;
(xi)on 6 May 2013, when contacted by telephone she undertook to send the response by 12 noon but did not do so.
The practitioner’s restricted practising certificate lapsed on 30 June 2013. She did not apply for its renewal.

Application to ACAT

An application was made to the tribunal for disciplinary action pursuant to section 419 of the Legal Profession Act 2006. An amended application, filed on 30 July 2013, contended first, that the practitioner was guilty of unsatisfactory professional conduct or professional misconduct because her dealings with the client’s court action contravened rules 1.1 and 1.2 of the Legal Profession (Solicitors) Rules 2007 (the Rules) and second, that the practitioner was guilty of unsatisfactory professional conduct or professional misconduct because her failure to provide the Council with a response to the complaint, notwithstanding formal directions that she do so, contravened rules 39.1 and 39.2 of the Rules.
The practitioner had ceased employment by the time the application was filed and no longer had a practicing certificate by the time the amended application was filed. She did not respond to the application or participate in any way in the tribunal’s proceedings.
The application was served by being left at her home address after two earlier attempts. The tribunal sent documents including listing notices and directions to her by registered post, express post and by email. One letter was returned unclaimed. However, there was no indication that the emails, including an email attaching a listing notice for the hearing, were not received. Section 247(1)(d) of the Legislation Act 2001 provides that a document may be served on an individual by emailing it to an email address of the individual. There was no reason to suspect that the emails were not received when sent. I was satisfied that the tribunal documents, including the listing notice for the hearing ,were appropriately served on the respondent in accordance with section 250(3) of the Legislation Act 2001 and that she was aware of the proceedings and the hearing.
The hearing of the amended application proceeded on 15 August 2013 in the absence of the practitioner. Section 44(2)(d) of the ACT Civil and Administrative Tribunal Act 2008 permits this.
The evidence admitted included a folder of documents that constituted what appears to be part only of the client’s file for the court action (Exhibit A1) and affidavits of Robert Reis, Professional Standards Director sworn on 9 July and 15 August 2013 (Exhibits A3 and A5). An affidavit sworn by the complainant on 4 September 2013 was filed with leave after the hearing.

Burden and Standard of Proof

The Council must establish the misconduct alleged against the practitioner. Because disciplinary proceedings have serious consequences for the respondent, the formulation of the civil standard of proof expressed by the members of the High Court in Briginshaw v Briginshaw [1938] HCA 34 applies.
The standard has been helpfully described by a differently constituted tribunal in Council of the Law Society v The Legal Practitioner [2010] ACAT 2 at [12]:
Rich J s test of comfortable satisfaction provides a succinct description of the standard to be applied in such cases. Proof beyond reasonable doubt is not required; but the standard requires more than a mere balancing of the scales. The evidence must be weighed, according to the gravity of the facts to be proved, to the extent that a conclusion is reached about those facts with a feeling of comfortable satisfaction that it is just and correct.

The First Ground

The evidence is not sufficient to establish, to the necessary standard, that the practitioner’s handling of the court action breached rules 1.1 and 1.2 of the Rules and constituted either unsatisfactory professional conduct or professional misconduct.
Rules 1.1 and 1.2 of the Rules provide respectively:
1.1 A practitioner should treat his or her client fairly and in good faith, giving due regard to the client’s position and dependence upon the practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a practitioner.
1.2 A practitioner must act honestly, fairly, and with competence and diligence in the service of a client, and should accept instructions, and a retainer to act for a client, only when the practitioner can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness.
The file for the court action which was tendered and marked “Exhibit A1” is labeled to show that it is Volume 1 of 2. The file was tendered by Mr Reis when he gave oral evidence. He said he had obtained it from the law practice that acquired the complainant’s practice on his retirement. He said he had requested the whole file and that what was tendered was what had been delivered to him. It is a lever arch folder which is full – that is to say, no other documents could have been placed on the file. The file shows that the practitioner did a considerable amount of work on the matter after assuming responsibility for it in about April 2009.
The file shows regular contact with the client by telephone, email and letter and regular contact with the other party and /or representatives, regular contact with the court, research, preparation of court documents, gathering of evidence and attendances at court. The file includes extensive files notes of personal and telephone attendances. The file notes show:
(i)      On 19 March 2010 the practitioner and other party to the action attended court but the matter could not be reached. They agreed to an adjournment to a date to be advised by the court. The practitioner invited the other party to put ‘his best offer”;
(ii)     On 25 March 2010 the other party telephoned the practitioner to say that he had just received notification from the court that the matter was listed for the following day but that he couldn’t make it. The practitioner noted that she hadn’t received any notification and said she would contact the court to seek an adjournment. She did so;
(iii)    On 12 April 2010 she contacted the client and spoke to him about obtaining a statement from a witness;
(iv)   On 16 April 2010 she attended court for a callover. She noted that the matter was adjourned to 21 May 2010;
(v)     On 19 April 2010 she sent a written report to the client and provided some advice about the future conduct of the matter. She spoke to the client by telephone;
(vi)   On 21 April 2010 she received a written offer of settlement from new representatives for the other party;
(vii)   On 23 April 2010 she sent the offer to the client with some brief advice saying that she would talk to the client about it on the following Tuesday;
(viii)    The client telephoned and left a message late in the day on that day;
(ix)   On 27 April 2010 (the following Tuesday) the practitioner telephoned the client and left a message asking him to call her. There is no file note of a later attendance or indicating the client’s instructions about the offer;
(x)     On 21 May 2010 she attended court, but there is no file note about her attendance. The fact of her attendance suggests that she had instructions to proceed with the hearing;
(xi)   She emailed a report about the court attendance to the client on 24 May 2010 telling him that the matter had been set down for a pre-hearing review on 30 July 2010 and for hearing on 24 August 2010. She detailed the timetable that had been set for the filing of evidence. The client’s evidence was to be filed and served by 17 June 2010. She said that a particular barrister had indicated that he could give an advice in the following week and was available to appear at the hearing.
There are no other documents on Exhibit A1 save for a print out of an account ledger which says that it was printed on 8 May 2011. The ledger is a sleeve on the inside front cover on the file. It is a ledger for disbursements only with the last entry relating to a claim for reimbursement of travelling expenses on 21 May 2010. The file itself is full. No other documents could have been placed on it.
Other documents submitted at the hearing included a small number of copies of court records which show that neither party appeared at court on Friday 30 July 2010. The court wrote to both parties by letter dated 30 July 2010. In summary, the letter advised that the case had been adjourned to Friday 6 August 2010 because neither party attended and neither party had complied with the directions made on 21 May 2010 for evidence to be filed. It said that the Magistrate was minded to dismiss the proceedings and that it was listed for submissions as to why the claim should not be dismissed. Exhibit A1 does not contain this letter. There is another court record showing that the claim was dismissed on 6 August 2010. The other party appeared but there was no appearance by or on behalf of the practitioner’s client.
This was the extent of the material tendered at the hearing in support of the first ground.
The material is not sufficient by itself to establish a breach of rules 1.1 and 1.2. It establishes that the practitioner did not to attend to the required work and gives rise to a suspicion of some fault on the part of the practitioner but does not go so far as to enable findings to be made on the balance of probabilities, that the failure to prepare for the hearing and to attend court was because of a failure of the practitioner to act in good faith, or to act diligently and competently.
The client’s file was full, and labeled to indicate that there is another volume. There was no evidence from the client about what further instructions, if any, he gave to the practitioner on receipt of her email of 24 May 2010, or what further contact he had with her about for example, the proposed advice from Counsel, or whether a witness statement could be obtained from the proposed witness discussed in earlier emails etc. Given the regularity of contact between them up to the appearance on 21 May 2010 it is reasonable to assume that there was some contact between the practitioner and the client after the email of 24 May 2016. There is no suggestion that the client complained about the practitioner’s actions, or inactions.
I gave leave for an affidavit from the complainant to be filed and served after the hearing. The complainant was the practitioner’s employer at the relevant time. I am satisfied that the affidavit was served on the practitioner and that she was invited to comment on it. She did not make contact with the tribunal about it.
The affidavit sworn by the complainant on 4 September 2013 arguably includes a number of hearsay statements that are not admissible. In any event, it does not “fill in the gaps” with relevant evidence. It records that on or about November 2010 another practitioner told the complainant of a conversation he had with the client to the effect that the action may have been struck out. It deposes to a later conversation with the practitioner in which she was “vague on being questioned…” and an inability to locate the file. It deposes to the facts set out at paragraphs 16(x) to and including 18 above.
The affidavit annexes at ‘A’ a letter sent by the complainant to the practitioner dated 2 August 2011 in which he writes, in summary, that “we” had spoken to the barrister who was named as the person who was to be briefed, that the barrister confirmed he had spoken to the practitioner and agreed to provide an advice and appear at the hearing, that the barrister had not received a brief to do either thing and that the barrister had telephoned to enquire as to the whereabouts of the brief but had been told that the practitioner was ‘unavailable to speak to him as (she was) out of the office and would not be back for at least a week”.
There is no evidence about the practitioner’s attendance at the practice at relevant times thereafter, or about any arrangements in place to cover periods of absence, or arrangements to respond to telephone calls or correspondence in her absence or of any direct discussion between the complainant and the client.
The complainant deposed that the law practice that acquired his business re-issued proceedings in September 2011 and obtained judgment on behalf of the client.
Ignoring the aspects of hearsay, the affidavit adds to the suspicion of fault on the part of the practitioner, but does not take the evidence overall to a point at which the findings sought by the Council in respect of the first ground can be made “with a feeling of comfortable satisfaction that it is just and correct”.

The Second Ground

The second ground contends that the practitioner is guilty of either unsatisfactory professional conduct or professional misconduct because she was not frank and open in her dealings with the Law Society and did not respond to the Society’s requirement that she provide comment and information about the complaint, in breach of Rules 39.1 and 39.2.
The rules said:
39.1 Subject to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society.
39.2 A practitioner should respond within a reasonable time and in any event within 14 days…to any requirement of the Society for comments or information in relation to the practitioner’s conduct or professional behaviour and in doing so the practitioner should furnish in writing a full and frank account of his or her conduct in relation to this matter.
On the basis of Mr Reis’ affidavit and oral evidence I am satisfied that the practitioner’s failure to respond to the letters of 27 September and 11 October 2012 in the time frame sought, or at all, contravened rule 39.2.
Her failure to respond generally and, in particular, the sending of a blank attachment and failure to keep undertakings to send her response by particular times, contravened rule 39.1.
Contraventions of these rules are serious. The failure to provide a response did not just breach the rules in a technical sense but meant that it was difficult for the Council to discharge its obligation to investigate the complaint. The requirement that practitioners give information when required is integral to the regulatory framework for the legal profession. A failure to respond undermines the process and the regulatory role of the Law Society.
The Council appears to have dealt with the practitioner sympathetically – providing a number of opportunities to respond and meeting with her in an attempt to facilitate the provision of a response. There is no suggestion that her failure to respond was due to wilful or deliberately obstructive behaviour, rather the oral evidence of Mr Reis indicates the practitioner was in a state of considerable personal distress at the time.
Breaches of rule 39 have been considered in a number of disciplinary cases in the ACT - in most cases, practitioners who have breached the rule have been found guilty of unsatisfactory professional conduct. These include matters in which a practitioner altered a letter given to a client and failed to tell the Society of the alteration when first required to provide information for the investigation of a complaint,[2] deliberately or recklessly mislead the Society[3] and matters in which a practitioner refused to have any dealing with the Society.[4] A finding of guilt of professional misconduct was made in a matter involving repeated failures and refusals to respond to the Society in respect of multiple complaints.[5]
[2] [2010] ACAT 69
[3] [2012] ACAT 40
[4] [2005] ACTSC 78
[5] [2013] ACTSC 134 at [32] and [51]

This matter is more akin to those cases in which a breach of rule 39 has been found to constitute unsatisfactory professional conduct.
I find that the practitioner is guilty of unsatisfactory professional conduct.

Penalty

Section 425 of the Legal Profession Act 2006 sets out the orders that the tribunal can make if satisfied that a practitioner is guilty of unsatisfactory professional conduct.
The amended application sought orders that any practising certificate held by the practitioner be either cancelled or suspended, the respondent be publicly reprimanded and fined and that she pay costs.
At the hearing the society indicated that it did not press for a reprimand but did seek that the practitioner be fined and that her practising certificate be cancelled, or that she not be allowed to apply for a practising certificate for a period of 12 months or some other period.
The factors to be considered when determining an appropriate penalty are well established. In Law Society of the ACT v The Legal Practitioner [2011] ACAT 57 they were summarised as follows:
[32]It is well established that the primary objective of the legal profession disciplinary system is to protect the public rather than to punish the practitioner.
[33] The tribunal has previously identified factors relevant to the determination of an appropriate sanction as including the nature of, and the circumstances surrounding, the acts found to constitute unsatisfactory conduct, the level of understanding demonstrated by the practitioner of the unsatisfactory nature of his conduct, the attitude of the practitioner especially whether he demonstrates any remorse or regret for the conduct, the likelihood of a future re-occurrence of unsatisfactory conduct, and any previous adverse findings in relation to the practitioner’s professional conduct.
We add to this list any loss suffered by others as a result of the unsatisfactory conduct and any benefit gained or loss suffered by the practitioner. The factors are to be considered in the context of the protective aim of these proceedings. The relevant authorities are discussed in detail in Riley’s Solicitors Manual at paragraphs [33,065] to [33,105]. (footnotes removed)
I take into account that the practitioner has not been the subject of earlier disciplinary proceedings according to the affidavit of Mr Reis of 9 July 2013. She did not seek to renew her practising certificate after 30 June 2013. The likelihood of a future occurrence of a similar problem is small. While she did not participate in these proceedings, that appeared to be related to an issue of health or impairment rather than of contempt for the process. She had opportunities to defend or explain her conduct but did not seek to do so. As a result there is no evidence about her appreciation of the seriousness of not responding to the Society’s directions, about any remorse, about her financial circumstances which are of relevance to the imposition of a fine, and no evidence that might have assisted her such as medical evidence or testimonials from other practitioners about her character.
I do not think that an order should be made in relation to the practitioner’s practising certificate. She did not renew her certificate after 30 June 2013. If she re-applies for a certificate either in the ACT or in another jurisdiction, she will have to meet the suitability and eligibility requirements set out in the relevant legislation. She will have to make certain disclosures and she is likely to be required to provide evidence that she is fit to practise. Depending on her circumstances at the time, it may be appropriate for consideration to be given to imposing conditions on her practising certificate about for example, a period of supervised legal practice.
There should be a fine and a reprimand. Both can have a general deterrent effect.[6]
5. See the discussions of this in two NSW cases involving repeated instances of failure to provide information to the regulatory body when required to do so - Council of the Law Society of NSW v Treanor [2009] NSWADT 115; Legal Services Commissioner v Tsalidis [2013] NSW ADT 101 at [103] and following
Section 427 sets the maximum amount that can be imposed by way of fine for a finding of unsatisfactory professional conduct at $10,000. As the practitioner has not been the subject of earlier disciplinary proceedings and this matter involves one instance (albeit with repeated failures over a period of time), I am satisfied that a fine of $2000 is appropriate. In reaching this sum I have compared this matter with other proceedings in which a fine has been imposed. I have also taken in to account the amount of costs that the practitioner will be ordered to pay.
Section 433 of the Legal Profession Act 2006 provides that the Tribunal must order that a practitioner who is found guilty of unsatisfactory professional conduct pay the costs of the Council. Section 433(5) provides that an order for costs may be for a stated amount. Costs are usually paid at the Supreme Court scale on a party/party basis. The Council provided an estimate of costs on that basis in the amount of $8,210.

Orders

On finding the practitioner guilty of unsatisfactory professional conduct the Tribunal orders:
(a)The respondent practitioner is publicly reprimanded.
(b)The respondent practitioner pay a fine of $2,000 to the applicant Council by 31 March 2017 or such other date as is agreed.
(c)The respondent practitioner pay the applicant Council’s costs in the amount of $8,210 by 31 March 2017 or such other date as is agreed.

………………………………..
President L Crebbin