Council of the Law Society of the Act v Legal Practitioner (Peter Christensen) (Occupational Discipline) - [2022] ACAT 33

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER (Peter Christensen) (Occupational Discipline) [2022] ACAT 33

OR 4/2021

Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioner –professional misconduct – unacceptable delay in progressing client instructions – repeated failure to respond to client requests for advice – failure to be honest with client by misleading client that court proceedings had been commenced when they had not – need for public reprimand of practitioner to protect clients and the public and to maintain the reputation and standards of the profession – consideration of factors to take into account when determining whether proposed consent orders are appropriate for the purposes of section 55(2) of the ACT Civil and Administrative Tribunal Act 2008 – orders made by consent

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 55
Legal Profession Act 2006 ss 222, 387, 419, 425, 433

Subordinate

Legislation cited: Legal Profession (Solicitors) Conduct Rules 2015 rr 4.1.1, 4.1.2, 4.1.3, 7, 8

Cases cited:Allinson v General Counci1 of Medical Education and Registration [1894] 1QB 750
Council of the Law Society of the ACT v Legal Practitioner ‘P4’ (No. 2) [2015] ACAT 35
Council of the Law Society of the ACT v Legal Practitioner RN [2016] ACAT 122
Council of the Law Society of the ACT v Legal Practitioner 201818 (Chandra Prasad) [2019] ACAT 12
Council of the Law Society of the ACT v Legal Practitioner 201933 [2018] ACAT 101
Council of the Law Society of the ACT v Legal Practitioner 201933 [2020] ACAT 54
The Council of the Law Society of the Australian Capital Territory v Davey [2019] ACTSCFC 2

Tribunal:Presidential Member G McCarthy
Date of Orders:  22 April 2022
Date of Reasons for Decision:      22 April 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 4/2021

BETWEEN:

COUNCIL OF THE LAW SOCIETY OF THE ACT
Applicant

AND:

LEGAL PRACTITIONER 20214
Respondent

TRIBUNAL:Presidential Member G McCarthy

DATE:22 April 2022

ORDER

The Tribunal being satisfied that the respondent is guilty of professional misconduct, the Tribunal orders by consent:

The respondent pay a fine of $12,000, payable in six monthly instalments of $2,000 with the first instalment payment payable on or before 30 April 2022.
The respondent be publicly reprimanded.
The respondent complete courses approved by the Law Society of the ACT in time management for lawyers, costs and trust accounting within six months of him resuming practice as a legal practitioner.
The respondent pay the applicant’s costs calculated on a solicitor own-client basis in accordance with the ACT Supreme Court scale in a sum to be agreed and, if not agreed between the applicant and respondent, as assessed by a cost specialist, namely LegalCost, and the respondent pay 90% of the costs so assessed plus disbursements in full.

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

REASONS FOR DECISION

Introduction

These reasons concern an application for disciplinary action brought by the Council of the Law Society of the Australian Capital Territory (the Council) against the respondent[1] under section 419 of the Legal Profession Act 2006 (the LP Act). The application charged the respondent with breaches of section 222(1) of the LP Act and Rules 4.1.1, 4.1.2, 4.1.3, 7 and 8 of the Legal Profession (Solicitors) Rules 2015 (the Rules). The Tribunal has jurisdiction to hear and determine the application pursuant to section 425 of the LP Act.
[1] This decision was previously anonymised and cited as Council of the Law Society of the ACT v Legal Practitioner 20214 (Occupational discipline) [2022] ACAT 33 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 the decision otherwise remain unchanged from the date of the publication.
In response to the application, the parties reached agreement as to the facts; the respondent accepted that he had breached the identified provisions of the LP Act and the Rules, as charged; and the parties reached agreement regarding characterisation of the respondent’s conduct and sanction. The parties recorded their agreement in a joint written submission signed by their respective legal representatives and lodged with the Tribunal for the purpose of it making orders in accordance with their agreement.
Section 55 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) states the circumstances in which the Tribunal may make orders by agreement. It 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)     …
For the reasons that follow, I was satisfied that the criteria in section 55(1) of the ACAT Act for making orders in accordance with the agreed terms set out in the joint written submission were met. Accordingly, pursuant to section 55(2) of the ACAT Act, I determined that the Tribunal should, by orders, make a decision in accordance with the agreed terms without holding a hearing.

Agreed facts

In the joint submission, the respondent agreed to all of the facts pleaded in the application for disciplinary action. In summary, the relevant facts are as follows.
The respondent is an experienced legal practitioner. He was first admitted in 1988 and to the Supreme Court of the Australian Capital Territory in 1992.
Between January 2013 and June 2020, the respondent practised as a sole practitioner. During this time, the respondent held an unrestricted practising certificate.
In September 2017, the respondent received instructions to act for a person who I will refer to as Mr Brown[2] who had recently separated from his wife who I will refer to as Mrs Brown.[3] Mr Brown and his wife had one child, who was eight years old at the time Mr Brown instructed the respondent. Mr Brown instructed the respondent to assist him in relation to a property settlement with his (then) wife and custody/access arrangements regarding his child.
[2] The name, Brown, bears no resemblance to the person’s real name and is chosen to protect his identity which is irrelevant for the purposes of this application
[3] Again, the name Brown bears no resemblance to the name of Mr Brown’s wife
The disciplinary charges laid against the respondent arose, in summary, from his unacceptable delay in progressing Mr Brown’s instructions, his repeated failure to respond to Mr Brown’s requests for advice and – most significantly – his misleading Mr Brown into believing court proceedings had been commenced against Mrs Brown when they had not.
It is necessary to particularise what occurred in order to identify the facts underpinning each charge; to explain why it is appropriate to characterise the respondent’s conduct as professional misconduct, rather than unsatisfactory professional conduct or simply poor provision of legal services but not so poor as to warrant disciplinary action; and why the agreed sanctions are appropriate. What constitutes unacceptable delay or unacceptable service can mean different things to different people.
In September and October 2017, on instructions from Mr Brown, the respondent corresponded with the solicitor for Mrs Brown regarding property and shared parenting.
On 24 October 2017, Mr Brown wrote to the respondent expressing his frustration that “it’s been nearly 2 months now and there’s been no progress at all in relation to when I can spend time with my son”. He asked the respondent to advise “how we can progress this further”. The respondent did not provide any advice to Mr Brown about the process to follow to obtain parenting orders to enable him to spend time with his son.
Between October and December 2017, Mr Brown and the respondent discussed the matter by email and telephone but matters did not progress.
On 7 January 2018, Mr Brown wrote to the respondent again expressing concern about lack of progress, lack of response from Mrs Brown and asking how he could get access to his son. Mr Brown asked the respondent to “check” with Mrs Brown’s solicitor about getting access to his son and expressed his concern that “this unfortunately seems to be dragging on and on!”. The respondent did not provide any advice to Mr Brown about the process to follow to obtain parenting orders to enable him to spend time with his son.
On 15 March 2018, the respondent wrote to Mrs Brown’s solicitor “proposing a 50/50 split” by way of a property settlement.
Between 15 March 2018 and 4 April 2018, the respondent and Mr Brown exchanged correspondence about, among other things, Mr Brown spending time with his son on his son’s birthday (15 April 2018).[4]
[4] Mrs Brown later agreed to Mr Brown doing so.
On 12 April 2018, Mr Brown sent an email to the respondent asking him to “check” whether he could spend “a day or two” with his son during the school holidays which ran from 13 to 30 April 2018. The respondent did not follow Mr Brown’s instructions to enquire of Mrs Brown’s solicitor about if or when Mr Brown could spend time with his son during the school holidays.
On 28 April 2018, Mr Brown sent an email to the respondent expressing concern that he had not seen his son “at all” since 14 April 2018 and asked if he had any “update” from Mrs Brown’s solicitor regarding settlement. On 11 May 2018, the respondent sent an email to Mrs Brown’s solicitor seeking a response to the property offer and advising that Mr Brown had not had any contact with his son since his son’s birthday.
On 17 May 2018, Mr Brown (by email) asked the respondent if he had “heard” from Mrs Brown’s solicitor and, if not, to advise upon “what steps we can take toward settlement”. The respondent did not provide any advice in response to Mr Brown’s request about how to progress the matter to obtain a property settlement or orders for a property settlement.
On 30 May 2018, Mr Brown sent an email to the respondent asking for a response to his earlier email. On 31 May 2018, the respondent sent another email to Mrs Brown’s solicitor following up about Mr Brown’s position.
By letter dated 11 June 2018, Mrs Brown’s solicitor wrote to the respondent stating that Mr Brown’s son was “showing resistance to spending more time with” Mr Brown and sought the respondent’s input regarding an appropriate psychologist that Mr Brown’s son could see. Mrs Brown’s solicitor also proposed a 55/45 property settlement in Mrs Brown’s favour.
On 16 June 2018, Mr Brown sent an email to the respondent asking him to suggest a child psychologist for his son to see and also queried the proposed settlement. Mr Brown asked the respondent whether he recommended litigation “to recover close to 50-50 settlement or settle for 45%?”.
On 11 July 2018, Mr Brown asked the respondent if there had been a response from Mrs Brown’s solicitor regarding access to his son and also for a response to his email sent on 16 June 2018. Notwithstanding the further enquiry, the respondent did not provide any advice to Mr Brown to assist him to understand the issues regarding the proposed property settlement such as the reasonableness of Mrs Brown’s offer, the likely cost of proceedings and/or whether a 50/50 split was a likely outcome of contested proceedings in order to enable Mr Brown to make an informed choice about appropriate action to take.
On 13, 18 and 23 July 2018, Mr Brown sent further emails to the respondent asking whether the respondent had received any response from Mrs Brown’s solicitor.
On 24 July 2018, the respondent had a telephone discussion with Mr Brown during which Mr Brown instructed the respondent to obtain a final settlement proposal from Mrs Brown’s solicitor. By email sent the same day, Mr Brown confirmed those instructions and requested the respondent to set a deadline by which Mrs Brown’s solicitor should respond. On 2 August 2018, Mr Brown sent another email to the respondent requesting him to write to Mrs Brown’s solicitor proposing a two week deadline to provide a proposed settlement structure.
On 3, 6, 7 and 8 August 2018, Mr Brown sent emails to the respondent seeking an update from the respondent regarding settlement and asking whether he had written to Mrs Brown’s solicitor setting a deadline for Mrs Brown’s solicitor to provide a final settlement proposal.
On 8 August 2018, following a telephone call he received from respondent, Mr Brown sent an email to the respondent stating his view regarding a settlement sum and requesting a copy of the respondent’s response to Mrs Brown’s solicitor regarding property settlement.
On 9 August 2008, Mr Brown sent the respondent a draft offer letter outlining Mr Brown’s proposal regarding a property settlement. On 14 August 2018, the respondent sent an email to Mr Brown in reply stating why he thought the amount Mr Brown was seeking was “a little high”, mathematically, but did not provide any, or sufficient, legal advice about the reasonableness of Mrs Brown’s offer or Mr Brown’s offer or the likely outcomes were the matter to be fully litigated or the costs and risks of litigation to enable Mr Brown to make informed choices about offers made during the course of the property settlement matter.
On 16 August 2018, Mr Brown sent an email to respondent stating that he did not agree with Mrs Brown’s offer and looked forward to receiving the respondent’s thoughts. Mr Brown sent a further email to the respondent instructing him to propose a specified settlement sum that Mrs Brown would pay him and to set a deadline for Mrs Brown’s solicitor to respond. By letter dated 22 August 2018, the respondent wrote to Mrs Brown’s solicitor proposing that Mrs Brown pay Mr Brown the amount sought by Mr Brown, together with other aspects of a proposed settlement, and foreshadowed that Mr Brown would commence proceedings if the matter cannot be resolved within 14 days.
On 13 September 2018, Mrs Brown’s solicitor made a counter-offer that Mrs Brown pay a stated sum that was significantly lower than that sought by Mr Brown. The respondent forwarded the counter-offer to Mr Brown, together with his opinion that the offer “is quite low”. Mr Brown replied, stating that the offer is “ridiculously low” and asked about his options.
On 21 September 2018, Mr Brown instructed the respondent to commence proceedings for the purpose of obtaining a property settlement. The respondent requested Mr Brown to deposit $1,000 into the respondent’s bank account on account of legal fees and disbursements to commence the proceedings.
Mr Brown paid $1,000 into the respondent’s account and instructed the respondent “please commence proceedings”. The money was trust money. The respondent did not transfer the money to a trust account to be held on behalf of Mr Brown.
On 7 November 2018, Mr Brown sent the respondent a completed financial statement kit for the purpose of commencing proceedings and sought the respondent’s advice about it. The respondent did not provide any advice about the kit.
On 19 November 2018, Mr Brown instructed the respondent to finalise the kit so that he could “get a hearing before Christmas” and to recommend a child counsellor in relation to Mr Brown seeking greater access to his son. The respondent did not finalise the kit.
On 3 December 2018, Mr Brown sent an email to the respondent asking him to advise whether he had received a date from the court registrar regarding the property settlement proceedings and whether he had passed on the name of a suggested child counsellor to Mrs Brown’s solicitor. On 10 and 19 December 2018 and 4 January 2019, Mr Brown sent further emails to the respondent seeking a response to the questions asked in his email of 3 December 2018. Notwithstanding these emails, the respondent did not advise Mr Brown that he had not yet commenced proceedings.
On 13 February 2019, Mr Brown sent an email to the respondent seeking advice about how he could get “a legal document” giving him “rights to spend time with [my] son”. The respondent did not provide any advice to Mr Brown about how the process to commence proceedings regarding parenting orders or how to progress the parenting dispute.
On 21 February 2019, the respondent sent an email to Mrs Brown’s solicitor stating that Mr Brown was “not prepared to accept less than his previous offer” but was prepared to give Mrs Brown some of his superannuation entitlement. Per Mr Brown’s request, the respondent also asked Mrs Brown’s solicitor to provide a “dollars and cents” offer.
On 19 March 2019, Mrs Brown’s solicitor made a counter-offer, which the respondent forwarded to Mr Brown with the comment “it seems ok”.
On 19 March 2019, Mr Brown sent a reply to the respondent challenging the amount sought by Mrs Brown and requested the respondent’s advice. Notwithstanding the request, the respondent did not provide Mr Brown with any, or sufficient, advice to assist Mr Brown in understanding Mrs Brown’s offer or the costs and risks of litigation to enable Mr Brown to make informed choices about offers made during the course of the property settlement matter.
By emails sent on 30 April and 6 May 2019, Mr Brown requested updates from the respondent about any information received from Mrs Brown’s solicitor and how the matter could be progressed. Notwithstanding these requests, the respondent did not provide any advice to Mr Brown on how to progress the property settlement matter or inform Mr Brown that the respondent was yet to commence proceedings seeking a property settlement.
On 6 May 2019, the respondent advised Mr Brown that he had spoken with Mrs Brown’s solicitor who had promised figures “very soon” to enable Mr Brown to evaluate Mrs Brown’s offer. On 30 May 2019, Mr Brown instructed the respondent to give Mrs Brown’s solicitor a deadline of 6 June 2019 in which to reply to Mr Brown’s request for a “dollars and cents” offer, as requested on 21 February 2019. On 16 June 2019, Mr Brown sent the respondent a text message asking him to set a deadline for Mrs Brown’s solicitor to respond. Notwithstanding Mr Brown’s repeated instructions, the respondent did not give Mrs Brown’s solicitor a deadline within which to respond to Mr Brown’s request for a “dollars and cents” offer.
Between 24 June and 29 August 2019, on 20 occasions Mr Brown sent emails or text messages to the respondent or left telephone messages on the respondent’s mobile phone requesting an update regarding progress of the matter including progress of the court proceedings and again requesting the respondent to provide a deadline for Mrs Brown’s solicitor to respond. The respondent did not reply.
On 1 September 2019, Mr Brown sent an email to the respondent complaining that it had “been nearly two years and there has been no end in sight in relation to my case”. Mr Brown complained that he was not seeing his son “at all now” and that he was financially worse off. He asked for a meeting with the respondent at the respondent’s earliest convenience.
On 1 September 2019, the respondent sent a reply by email to Mr Brown stating among other things “I think we re-do your affidavit and application to update the finances but also seek orders for time with [Mr Brown’s son]”. At the time of sending the email, the respondent had not prepared any affidavit or application to commence proceedings.

On 4, 8 and 12 September 2019, Mr Brown continued to seek updates from the respondent.
On 12 September 2019, Mr Brown filed a complaint with the Law Society about the respondent’s conduct of his matter. On 13 September 2019, the respondent passed Mr Brown’s file to another law firm. On 13 September 2019, the respondent sent a letter to Mr Brown apologising for his conduct of Mr Brown’s matter, admitting that Mr Brown had received poor service and refunded all the fees ($1,750) that Mr Brown had paid.
On 20 December 2019, consent orders were entered by the Family Court regarding a property settlement between Mr and Mrs Brown.

The legislation

The LP Act and the Rules imposed the following obligations on the respondent that are relevant for the purposes of the charges laid against him.
Section 222(1) of the LP Act provides that “as soon as applicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice”.
Rule 4.1 of the Rules states:
4.1 A solicitor must also:
4.1.1act in the best interests of a client in any matter in which the solicitor represents the client
4.1.2be honest and courteous in all dealings in the course of legal practice;
4.1.3deliver legal services competently, diligently and as promptly as reasonably possible;
4.1.4avoid any compromise to their integrity and professional independence; and
4.1.5comply with these Rules and the law.
Rule 7 of the Rules states:
Rule 7 Communication of advice
7.1A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of the matter, consistent with the terms of the engagement.
7.2A solicitor must inform the client or the instructing solicitor about the eternities to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds to client already has such an understanding of the endings is to commit the client to make incisions about the client’s best interests in relation to the matter.
Rule 8 of the Rules states:
Rule 8 Client instructions
8.1A solicitor must follow a client’s lawful, proper and competent instructions.

The charges

The Council charged the respondent with nine breaches of the LP Act and the Rules. In the joint submission, the respondent accepted he had breached the LP Act and the Rules as charged. That is:
(a)By reason of the matters stated in paragraphs 31 and 32 above, the respondent breached section 222(1)[5] of the LP Act by failing to deposit trust money in the sum of $1,000 into a general trust account (charge 1).
[5] The charge alleged that the respondent breached section 221(1) of the Legal Profession Act 2006. The Tribunal understands this to be typographic error, and that the reference should have been to section 222(1).
(b)By reason of the matters stated in paragraphs 12, 14 and 36 above, the respondent breached rule 7 of the Rules by failing to provide clear and timely advice to Mr Brown (in response to three requests from Mr Brown to do so) to assist Mr Brown to make informed choices about action to be taken during the course of the parenting matter (charge 2).
(c)By reason of the matters stated in paragraphs 19, 22-23, 28, 33, 39 and 40 above, the respondent breached rule 7 of the Rules by failing to provide clear and timely advice (in response to six requests from Mr Brown to do so) to assist Mr Brown to make informed choices about action to be taken during the course of the property settlement matter (charge 3).
(d)By reason of the matters stated in paragraph 17 above, the respondent breached rules 4.1.1, 4.1.3 and 8 of the Rules by failing to follow Mr Brown’s instructions to ascertain from Mrs Brown’s solicitor whether Mr Brown’s son could spend time with Mr Brown during the April 2018 school holidays) and in so doing also failed to deliver legal services competently, diligently and as promptly as reasonably possible and failed to act in Mr Brown’s best interests (charge 4).
(e)By reason of the matters stated in paragraphs 32 and 34 above, the respondent breach of rules 4.1.1, 4.1.3 and 8 of the Rules by failing to follow Mr Brown’s instructions to commence proceedings to obtain a property settlement and in so doing also failed to deliver legal services competently, diligently and as promptly as reasonably possible and failed to act in Mr Brown’s best interests (charge 5).
(f)By reason of the matters stated in paragraphs 41-42 above, the respondent breached rules 4.1.1, 4.1.3 and 8 of the Rules by failing to follow Mr Brown’s instructions to give Mrs Brown’s solicitor a deadline in which to reply to the request for a “dollars and cents” offer and in so doing also failed to deliver legal services competently; diligently and as promptly as reasonably possible and failed to act in Mr Brown’s best interests (charge 6).
(g)By reason of the matters stated in paragraphs 42 and 45 above, the respondent breached rule 4.1.3 of the Rules by failing to deliver legal services competently, diligently and as promptly as reasonably possible by failing to provide any substantive response to Mr Brown’s 22 emails or text messages and/or telephone calls by which he was requesting an update from the respondent as to the status of his matter (charge 7).
(h)By reason of the matters stated in paragraphs 35, 40 and 42 above, the respondent breached rule 4.1.2 of the Rules as he failed to be honest in his dealings with Mr Brown by failing to advise Mr Brown that he had not yet commenced proceedings seeking orders for a property settlement when Mr Brown was under the apprehension that proceedings had been commenced and was seeking updates in relation to when the Court had listed the matter (charge 8).
(i)By reason of the matters stated in paragraph 44 above, the respondent breached rule 4.1.2 of the Rules by deliberately or, in the alternative, recklessly misleading Mr Brown as to the status of the court documents and, in particular, advising Mr Brown that he would redo Mr Brown’s affidavit and application to update the finances when, in truth, no such affidavit or application had been prepared (charge 9).

Characterisation – submissions

In the joint submission, taking his conduct globally, the respondent accepted he is guilty of professional misconduct. That term is defined in section 387(1) of the LP Act as including:
(a)unsatisfactory professional conduct that 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.
‘Professional misconduct’ at common law is defined as conduct which would be reasonably regarded as disgraceful or dishonourable by professional colleagues of good repute and competency.[6]
[6] Allinson v General Counci1 of Medical Education and Registration [1894] 1QB 750
A global finding may be made where there is a continuing course of conduct arising from a single source.[7] Where there are several instances of poor conduct they may, if they have a single theme, be combined so that a single finding of professional misconduct may be made.[8]

Agreed sanction - submissions

[7] Council of the Law Society of the ACT v Legal Practitioner ‘P4’ (No. 2) [2015] ACAT 35 at [5]-[7]
[8] Council of the Law Society of the ACT v Legal Practitioner RN [2016] ACAT 122 at [40] and [44]

The parties submitted that the following sanctions appropriate:[9]
[9] As to the appropriateness of the sanctions, the parties referred to Council of the Law Society of the ACT v Legal Practitioner 201818 (Chandra Prasad) [2019] ACAT 12 as a comparable decision.
(a)A finding pursuant to subsection 425(1) of the LP Act that the respondent is guilty of professional misconduct as defined in section 387(1)(a) of the Act and the common law in relation to the charges globally or, in the alternative, individually.
(b)An order pursuant to subsection 425(5)(a) of the LP Act that the respondent pay a fine of $12,000 in six equal monthly instalments of $2,000 with the first instalment payment falling due on the final day of the month the orders are entered.
(c)An order pursuant to section 425(3)(e) of the LP Act publicly reprimanding the respondent.
(d)An order pursuant to section 425(5)(b) of the LP Act that the respondent complete courses approved by the Law Society of the ACT in time management for lawyers, costs and trust accounting within 6 months of the orders being entered.
(e)An order pursuant to section 433(1) of the LP Act that the respondent pay the Council’s costs calculated on a solicitor own-client basis in accordance with the ACT Supreme Court scale in a sum to be agreed and, if not agreed between the applicant and the respondent, the costs are to be assessed by a cost specialist, namely LegalCost, and the respondent is to pay 90% of the costs so assessed plus disbursements in full.

Affidavit of respondent

The respondent swore an affidavit in which he commented (among other things) on his conduct of Mr Brown’s matter, the circumstances in which it occurred and the counselling he later voluntarily undertook. The affidavit was accepted into evidence without objection and the respondent was not cross-examined. I accept the respondent’s evidence.
The respondent is an experienced practitioner. He has been admitted for approximately 33 years. Over time, he has practised as a sole practitioner, in community legal centres and for government. Relevantly, the respondent was a sole practitioner between January 2013 and June 2020. From about 2015, the respondent operated his practice on a part time basis, working in other legal roles at the same time.
In his affidavit, the respondent explained that he was dealing with some significant personal issues at the time he was working on Mr Brown’s matter, particularly in 2019. The respondent said that those issues help to understand his conduct, but acknowledged that they do not excuse it.
The respondent explained that he was the primary support for his ex-partner who had serious health issues. The respondent explained that he was also supporting his ex-partner in relation to her challenge to a refusal decision by her income protection insurer. The respondent said that his ex-partner died in October 2019 because of her health issues.
In addition, the respondent explained that his father was diagnosed with bowel cancer in early 2019 and underwent surgery in February 2019. The respondent said that these events had a substantial impact on his parents and that he took on additional responsibilities for the support and care of both his parents in 2019 because his siblings were unable to do so.
In or around August 2019, the respondent underwent exploratory surgery after experiencing health problems for a number of months beforehand.
In or around August 2019, the respondent learnt that his part-time employment with a Commonwealth agency was soon to amend for operational reasons. Whilst the respondent had long been aware that this was likely to occur, the decision was very disruptive for him because most of his income came from this employment. Understandably, the respondent was very worried about his future financial circumstances.
The respondent said that he also took on additional responsibilities with his Parish consequent upon unexpected Parish needs.
The respondent said that he had reflected on his conduct in relation to Mr Brown’s matter and now understands that he was not coping with his work because he was not coping with his personal issues at the time. The respondent said that because of his personal issues, he failed to return emails, text messages and phone calls. I presumed this to mean Mr Brown’s emails, text messages and phone calls in addition to communications from other people.
Referring to Mr Brown’s matter, the respondent accepted that he did not properly account for the money ($1,000) that he received from Mr Brown for the court filing fee. He said that the money was always available to pay the filing fee, although acknowledging that that is not the point. He said that he did not properly think about how to account for the money when he had not filed the application to commence proceedings for property orders.
The respondent said that he now recognised that he was not properly engaging with the matter, and was letting it run because he believed that it would settle even when Mr Brown has asked him to commence proceedings. The respondent said that he regretted not stopping periodically to assess whether a negotiated settlement was still the right option for Mr Brown, including when there were changes to the arrangements between Mr Brown and his son.
The respondent acknowledged that as the matter progressed, Mr Brown was able to spend less time with his son because of Mrs Brown’s actions. The respondent acknowledged that Mr Brown wanted more contact with his son and that he (the respondent) should have done more to achieve that outcome. The respondent said he regretted that his conduct contributed to time that Mr Brown lost with his son.
The respondent acknowledged that when Mr Brown instructed him to file an application for property orders he did not do so, and that when Mr Brown asked the respondent whether he had been given a court date, he did not give a clear or direct answer, although contending he did not intend to mislead Mr Brown to believe that an application had been filed. The respondent nevertheless acknowledged that by failing to give Mr Brown a direct answer he failed to be honest with him.
The respondent said that when Mr Brown asked him to transfer his file to another solicitor he recognised that there was a problem with the legal services he had been providing. He immediately apologised and refunded all monies that Mr Brown had paid ($1,750) which included the $1,000 for the filing fee for the application to the Court for property orders which had still not been filed.
The respondent said that after receiving a copy of Mr Brown’s complaint to the Law Society, he contacted the ACT Law Society’s Members’ Adviser Service who gave him two names of people to ask for help. The respondent said that he contacted both named persons but received no response.
The respondent said that in August 2020 he was referred to the legal firm, Mills Oakley, who assisted him in obtaining information from the ACT Law Society about its member-service for counselling. The respondent said he has received counselling at which time he was able to talk about his personal issues, including this disciplinary proceeding. The respondent said his counsellor has been able to help him develop strategies for coping now and in the future.
The respondent said that as a result of this disciplinary proceeding, he is more self-aware that he sometimes tries to help people even when he does not have the time to do so properly.
The respondent that he now understood that he did not have the supports in place that he needed in his practice in 2019, particularly with everything that was happening in his personal life.
The respondent said he has recently accepted a longer-term contract to work in a Commonwealth Department in a non-legal role and that, at this time, he has decided not to practise as a sole practitioner. The respondent explained that he has minimal disposable income, but believed that after receiving a redundancy payment from his previous Commonwealth employment and with his new contract employment with a Commonwealth Department, he will be able to pay his legal expenses, the fine and the Law Society’s legal costs in accordance with the proposed payment plan.

Respondent’s submissions in mitigation

Ms Webster SC, appearing for the respondent, submitted that the proposed orders are “appropriate” for the Tribunal to make. Ms Webster properly noted the Tribunal’s protective jurisdiction. When assessing whether orders are appropriate, she submitted (correctly) that the focus must be on the protection of clients and the public, the maintenance of the reputation and standards of the profession and the avoidance of similar conduct by other practitioners. The focus is not on punishing the practitioner.[10]
[10] The Council of the Law Society of the Australian Capital Territory v Davey [2019] ACTSCFC 2 at [22]
Ms Webster submitted that the respondent has demonstrated appropriate and credible insight into his conduct, and acceptance of his misconduct. She noted that the respondent co-operated fully with the Council’s investigations into his conduct, voluntarily undertook counselling regarding his conduct and has demonstrated remorse and understanding of the gravity of his conduct.
Ms Webster also referred to the respondent’s limited financial circumstances. She pointed out that payment of the proposed fine, the applicant’s legal costs and his own legal costs will leave him with little (if any) further disposable income.

Consideration

In Council of the Law Society of the ACT v Legal Practitioner 201933,[11] with reference to earlier authority, I commented on the tribunal’s role when determining an application for disciplinary action under section 55 of the ACAT Act. In this case, as in most cases, the joint submission evidenced that sections 55(1)(a) and (b) are met. I also accept that the five proposed orders are within power pursuant to the sections of the LP Act to which the parties referred.
[11] Council of the Law Society of the ACT v Legal Practitioner 201933 [2020] ACAT 54 at [42]-[43]
The question, per section 55(1)(c)(ii) of the ACAT Act, was whether the orders are (in each case) “appropriate for the tribunal to make”, meaning “suitable or fitting for a particular purpose”[12] referenced to the facts and circumstances of the issue or matter to be determined.
[12] Council of the Law Society of the ACT v Legal Practitioner 201933 [2020] ACAT 54 at [38]
Regarding the proposed finding (professional misconduct), I had no reason to doubt the correctness of the facts admitted. Both parties were legally represented. I accept that the respondent’s conduct was in breach of the LP Act and the Rules as identified in each of the nine charges. Where the conduct identified in the nine charges formed part of a continuing course of conduct arising from the respondent’s dealings with Mr Brown in relation to Mr Brown’s instructions to obtain a property settlement in a timely manner and to obtain legally enforceable access rights to his son, I am satisfied that the conduct can be treated globally and that a global finding may be made in relation to the respondent’s course of conduct.
Two factors caused me to conclude that the parties’ agreed characterisation of the respondent’s conduct as professional misconduct is appropriate.
First, I took into account the sheer scale of the respondent’s ongoing failure, as detailed in the agreed facts, to act upon Mr Brown’s instructions or to pursue his interests in any material way. The delay over approximately two years was to Mr Brown’s significant detriment. In particular, the delay caused Mr Brown significant frustration and distress and prolonged resolution of access arrangements to his young son who was progressing through formative years of his childhood without access to his father.
Second, as detailed in charges 8 and 9, the respondent not only did not act on Mr Brown’s instructions or advise him in a timely manner, but he misled Mr Brown as to the true state of affairs. In particular, the respondent recklessly, if not deliberately, misled Mr Brown into believing that the respondent had commenced court proceedings against Mrs Brown in relation to a property settlement (by advising Mr Brown in September 2019 that he would re-do Mr Brown’s affidavit and application) when in truth the respondent had not even commenced the proceedings. Put simply, wilful dishonesty to a client, in my view, invariably amounts to professional misconduct.[13]
[13] In Prasad at [12] a differently constituted tribunal came to the same view.

Regarding the first proposed order (a fine), an assessment of an appropriate fine is necessarily subjective. Ms Binstock, appearing for the Council, submitted that the tribunal’s decision in Council of the Law Society of the ACT v Legal Practitioner 201818 (Chandra Prasad) (Prasad)[14] involved facts that are comparable with the facts in this matter. In Prasad, the practitioner was the subject of three disciplinary charges arising from his delay in filing for letters of administration which caused his client financial hardship arising from delay in distributing estate funds, and from the practitioner deliberately misleading his client about the progress of the application. In particular, the practitioner did not tell his clients that he was the cause of the delay.[15]
[14] [2019] ACAT 12
[15] Prasad at [4]
In Prasad, the parties filed a joint written submission for orders to be made by the tribunal pursuant to section 55 of the ACAT Act. The practitioner admitted to the three charges. The parties agreed upon the characterisation of the charges (professional misconduct) and the agreed sanction.
The tribunal found the most serious aspect of the practitioner’s conduct was his deliberate misleading of his clients on several occasions about the progress of the application (or lack of it) for letters of administration. The tribunal concluded “not only was this professional misconduct in our view, but it exacerbated the delay”.[16] In Prasad, the Council stated that while in similar cases involving a practitioner’s delay in progressing a client’s instructions a fine of $5,000 would be proposed, the fine should be increased to $10,000 because “the respondent did not tell his clients that he caused the delay.”[17]
[16] Prasad at [12]
[17] Prasad at [12]
The tribunal did not comment on the reasoning or the agreed fine, stating only that it “finds the terms agreed between the parties are appropriate and makes a decision in accordance with the agreement”.[18] Accordingly, together with five other orders, it ordered that the respondent pay a fine of $10,000.
[18] Prasad at [18]
In my view, decisions involving orders made by consent should be used with much caution as comparators with seemingly similar cases – especially where there is no consideration as to why the tribunal found a proposed order to be appropriate. Also, even if there are sometimes some similarities, the facts and circumstances in one case invariably differ from the facts in another case. Also, many extraneous and unstated facts and circumstances might have led to the agreement about orders to be made by consent.
Had I been asked in this case to determine an appropriate fine by reference to the facts as agreed, I would have imposed a significantly lesser fine. The purpose of disciplinary proceedings is not to punish. It is, in summary, to protect the reputation of the profession and to maintain its standards. Appropriate sanctions need to be determined on the facts in each case. In this case, three factors in particular pointed to the appropriateness of a lesser fine:
(a)The respondent faces a public reprimand (which I agree is appropriate for the reasons discussed below) and a published account of his conduct leading to that public reprimand. That, in my view, will be a very heavy blow as he moves into the later if not final stages of his career after more than 30 years in practice. I accept the respondent’s unchallenged evidence that throughout his career he has always tried to help people. Protection of the profession’s reputation and maintenance of its standards, in this case, is achieved to a large extent by the public reprimand and public disclosure of the reasons for why it was ordered. Put another way, I anticipate that many practitioners (particularly in the ‘small town’ that is Canberra) would be much more concerned about a public reprimand, were they to be the subject of it, than payment of a fine however heavy the fine might be.
(b)It is apparent that the respondent has suffered significantly as a consequence of this disciplinary proceeding and the distress he caused Mr Brown. That he has chosen to cease practising as a legal practitioner, at this time, is consistent with his stated (and unchallenged) regret for his conduct. His actions, as much is his words, demonstrate his remorse and contrition.
(c)By reason of the respondent’s limited financial means, a lesser fine would still constitute a significant financial penalty to him. That he will also need to comply with an order that he pay the applicant’s legal costs, which are likely to be very substantial despite his co-operative response to the Council’s application for disciplinary action, together with his own legal costs, is also a factor to take into account when considering the appropriate quantum of a fine.[19]
[19] See Council of the Law Society of the ACT v Legal Practitioner 201933 [2018] ACAT 101 at [14]
However, for the purposes of section 55 of the ACAT Act, the Tribunal’s task is not to determine the fine it would impose but to determine whether the agreed fine is “appropriate”. That needs to be determined according to all relevant circumstances. Two factors at least, extraneous to my view about the fine I would have imposed, caused me to conclude that it is.
First, at all material times the respondent was legally represented. I am not privy, nor should I be, to the advice that the respondent received regarding the appropriateness of the agreed fine but I should, within reasonable limits, respect his agreement to it. Many factors may have had a bearing on his decision to agree to the proposed fine. For example, to contend at a hearing for a lesser fine would necessarily have entailed the respondent paying the applicant’s legal costs and his own costs of the hearing and preparation for it. Where those costs would almost certainly exceed the fine, and probably significantly exceed it, it is understandable that the respondent agreed to the proposed fine rather than pay those additional legal costs. Also, the respondent might reasonably have preferred to pay the agreed fine than deal with the emotional distress of contending at a hearing for a lesser fine.
Second, at hearing, I shared with Ms Binstock my view that a lesser fine would be appropriate. Ms Binstock did not agree. She submitted that if the Tribunal was not satisfied that the proposed order was “appropriate to make” the Tribunal could not and should not make the order, in which case the application would need to proceed to hearing. She submitted, correctly, that in response to an application under section 55 the Tribunal does not have power to make an order that differs from an agreed order.
Understandably, the respondent was very anxious that the Tribunal make orders in terms of the agreed orders. His legal costs and the Council’s legal costs that the respondent would be obliged to pay if the matter proceeded to hearing were likely to significantly exceed the offset of achieving a lesser fine – if that were achieved.
In my view, these factors had to be weighed in the balance when deciding whether the fine was appropriate. For me to compel the application to proceed to hearing, contrary to both parties’ wishes, was not a step I was prepared to take. Respect for the parties’ agreement and regard for the additional costs that I would necessarily cause the respondent to incur outweighed my view about a lesser fine.
For these reasons, parties in future cases should be cautious about contending that consent orders made in a past case are a good indicator about what orders would be appropriate in a later case.
Regarding the second proposed order (a public reprimand), as Ms Webster noted, the Tribunal exercises a protective jurisdiction. Its focus must be on the protection of clients and the public, maintenance of the reputation and standards of the profession and the avoidance of similar conduct by other practitioners. The focus is not on punishment of the practitioner.
In summary, this case is about the respondent’s unacceptable avoidance, delay and failure to progress Mr Brown’s matter and not being honest with Mr Brown in order to avoid him becoming aware of key aspects of that failure, in this case the failure to commence proceedings when instructed to do so. The avoidance, delay and failure arose from significant other pressures on the respondent, particularly in his personal life.
To some degree, the facts and circumstances in this case are not uncommon. Many practitioners struggle under pressure. All are aware of their professional obligation to act for clients in a timely, diligent and honest manner. I anticipate that many practitioners are aware of other practitioners who are tardy in their conduct of a client’s matter, and who are less than forthcoming with their clients about their lack of diligence.
A decision that an unnamed practitioner had failed to act for a client in a timely, diligent and honest manner would not, in my view, materially affect practitioners’ appreciation of the importance of doing so. Practitioners already know that they must act for clients in such a manner. Protection of clients and the public, maintenance of the reputation and standards of the profession and the avoidance of similar conduct by other practitioners requires consequence for such failures.[20] It follows, in my view, that failures of this kind require the practitioner to be publicly reprimanded. Other practitioners need to appreciate that for failures of this kind and extent they risk, in particular, being named to their professional colleagues.
[20] The Council of the Law Society of the Australian Capital Territory v Davey [2019] ACTSCFC 2 at [22]
Regarding the third proposed order (professional training), I agree that the respondent’s conduct demonstrates the need for him to complete courses in time management, costs and trust accounting. In circumstances where the respondent, at this time, does not propose to resume practice, I suggested to the parties that the respondent’s need to complete these courses should be referenced to the date on which he resumes practice (if that were to occur) rather than the date of the Tribunal’s orders. Ms Binstock agreed, as did Ms Webster. As a consequence, I made an order with that agreed amendment.
Regarding the fourth proposed order (costs), it is necessarily appropriate to order the respondent to pay the Council’s costs in circumstances where section 433(1) of the LP Act mandates that the Tribunal does so – noting that there are no suggested exceptional circumstances that would excuse the Tribunal from making that order.

………………………………..

Presidential Member G McCarthy

Date(s) of hearing:	3 September 2021 & 10 February 2022
Counsel for the Applicant:	Ms K Binstock
Solicitors for the Applicant:	McInnes Wilson Lawyers
Counsel for the Respondent:	Ms C Webster SC, Ms H Wilson
Solicitors for the Respondent:	Mills Oakley