Council of the Law Society of the Australian Capital Territory v A Legal Practitioner

[2010] ACAT 26

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL

TERRITORY v A LEGAL PRACTITIONER (Occupational Discipline)

[2010] ACAT 26

LP 7 of 2008

Catchwords:             OCCUPATIONAL DISCIPLINE - legal practitioner - fiduciary duty to client; signing document when witness not present - obligation to be open and frank with registration body -  obligation to give full and accurate account of conduct to the registration body – duty to treat client fairly and in good faith – duty to act with competence and diligence – unprofessional conduct – professional misconduct – reprimand in private – public hearing and competing interests – suppression order – testimonials from non-lawyers – testimony from lawyers – mitigating factors – substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence

Legislation:ACT Civil and Administrative Tribunal Act 2009 (ACT) ss 38, 39

ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 (ACT) Regulation 30, Rule 7, 24
Legal Profession Act 2006 (ACT) ss 386, 387, 419, 420, 425, 430, 433, 448, 454
Legal Profession (Solicitors) Rules 2007 (ACT) Rules 1.1, 1.2, 1-10, 39.1, 39.2

Case law:Council of NSW Bar Association v Einfeld (2009) NSWCA 255 BC 2009 07813

Council of Q’ld Law Society v Wakeling (2004) QCA 42

Re Demetrious [1993] LPDR 3

Demetrios v Gikas Dry Cleaning Industries Pty Ltd (1991) 22 NSWLR 56

De Pardo v Legal Practitioners Complaints Committee (2000) 170 ALR 709 [2000] FCA 335

Fraser v The Council of the Law Society of New South Wales [1992](CA)(NSW) 7 August 1992, unreported BC9201695           

Law Society of New South Wales v Hinde [2005] NSW ADT          199

Prothonotary of the Supreme Court of New South Wales v Chapman (CA(NSW) 14 December 1992 unreported BC9201419

Re Melvey (1966) 85 WN (pt 1) NSW 289

Tyrell v Bank of London (1862) 10 HL Cas. 26

Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279

Text:   Butterworth, Riley's Solicitors Manual

Tribunal:            Mr C G Chenoweth     Presiding Member

Mr A O’Neill              Senior Member
  Mr G Wright              Member

Date of Orders:  17 May 2010
Date of Reasons for Decision:         17 May 2010

IN THEAUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL                  )  LP 7 of 2008

BETWEEN:  COUNCIL OF THE LAW SOCIETY OF THE

AUSTRALIAN CAPITAL TERRITORY

Applicant

AND:   A LEGAL PRACTITIONER

Respondent

TRIBUNAL: Mr C G Chenoweth     Presiding Member

Mr A O’Neill              Senior Member

Mr G Wright              Member

DATE:  17 May 2010

ORDERS

1. In respect of those breaches of the Rules where the Respondent has been found guilty of unsatisfactory professional conduct and professional misconduct, the Tribunal orders, pursuant to Section 425(3)(e) of the LP Act, that the Respondent is publicly reprimanded. The conduct of the Respondent displayed a lack of understanding of the duties and responsibilities that he owed both to his clients, to the profession and to the Society.

2. Pursuant to Section 425(5)(c) of the LP Act, the Tribunal orders that the Respondent undertake and complete within 12 months of the date of this order and to the satisfaction of the Director of the Legal Workshop attached to the Australian National University a course in ethics conducted by the Legal Workshop.

………………………………..

Mr C G Chenoweth

For the Tribunal

IN THE AUSTRALIAN CAPITAL TERRITORY           )
CIVIL & ADMINISTRATIVE TRIBUNAL  )  LP 9 of 2008  

BETWEEN:               COUNCIL OF THE LAW SOCIETY OF THE
AUSTRALIAN CAPITAL TERRITORY
Applicant

AND:   A LEGAL PRACTITIONER
Respondent

TRIBUNAL:Mr C G Chenoweth    Presiding Member

Mr A O’Neill             Senior Member

Mr G Wright              Member

DATE:17 May 2010

ORDERS

1. The Tribunal has earlier found the Respondent’s conduct in two specified respects

   constituted unsatisfactory professional conduct. The Tribunal refers to its decision

   in LP 7 of 2008 and the Orders made therein. Having regard to the decision in    

   matter LP 7 of 2008 the Tribunal will make no additional orders in this matter.

………………………………..

Mr C G Chenoweth

For the Tribunal

REASONS FOR DECISION

1. An application was made by the Law Society of the Australian Capital Territory ("the Society") under the provisions of the Legal Profession Act 2006 (ACT) (“the LP Act”) to the Legal Practitioners Disciplinary Tribunal constituted by the LP Act. The application was dated 13 November 2008. It alleged that the behaviour of the Respondent constituted both unsatisfactory professional conduct and professional misconduct and warranted the Disciplinary Tribunal making an order under Section 430 of the LP Act. The details of the complaints are set out below.

1. After the application was filed, the ACT Civil and Administrative Tribunal Act 2009 (ACT) (“the ACAT Act”) came into operation. At the same time, the LP Act was amended. Under Section 419 of the LP Act, an application for an order in relation to a complaint by a “relevant council” (which includes the Society) against a legal practitioner is to be heard by the ACT Civil and Administrative Tribunal constituted by the ACAT Act ("the Tribunal").

1. Under Regulation 30(2) of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 (ACT), where an application has been made to the Disciplinary Board but no hearing has been conducted prior to the commencement of the ACAT Act, the application is taken on and after the commencement day of the ACAT Act to be an application to the Tribunal under the LP Act. As a consequence of these provisions, the matter is properly before the Tribunal.

1. In an earlier matter involving the same parties (LP9 of 2008) it was acknowledged by counsel for the Society and counsel for the Respondent that as a result of the amendment to the LP Act following the introduction of the amendments in 2009, the powers of the Tribunal to make an order on the finding of unsatisfactory professional conduct or professional misconduct arises under Section 425 and not Section 430. Nothing turns on this alteration which results from a renumbering of the LP Act.

1. The Respondent is the holder of an unrestricted practicing certificate issued by the Society. He conducts a small legal practice, principally in the area of conveyancing.

2. Mr Buxton of Dibbs Barker appeared for the Society and Mr Clynes of counsel appeared for the Respondent. The Respondent was the only witness. The hearing was held on 3 March 2010.

1. A statement of facts was filed as agreed between counsel, presumably on instructions. When the Respondent gave evidence, he accepted most of the statement of facts but distinguished matters that he claimed were not within his knowledge by saying on a number of occasions “I am not aware of it but I will not dispute it”. He made this objection in respect of paragraphs 5, 6, 7, 20, 21, 22, and 26. These paragraphs therefore are not part of the agreed evidence before the Tribunal. Paragraphs 22 and 26 are matters on which the Tribunal can make a decision, having regard to its view of the evidence. References to the paragraphs of the statement of agreed facts will be referred to by the letters “AF” and the paragraph number, for example AF 10.

1. In matters of professional conduct, the Tribunal must be satisfied of a breach of the rules to a level beyond the balance of probabilities. The general formulation of the required standard is that the Tribunal should be comfortably satisfied, having regard to the seriousness of the matter. In this matter the hearing proceeded on the basis of an agreed statement of facts including admissions by the Respondent on his conduct. There were no substantial issues in dispute relating to the Respondent’s action, which would require the Tribunal to make a decision on disputed facts to the level of satisfaction referred to above.

WITHDRAWN COMPLAINTS

1. At the hearing two complaints in relation to Rules 7 and 24 were withdrawn by the Society. 

BACKGROUND

10.  The Respondent acted for Mr CL, Mrs CL and her mother Mrs CR as vendors of a property in Fraser (Fraser). Mrs CR was a tenant in common in respect of half the property and the other half of the tenancy in common was held as joint tenants by Mr CL and Mrs CL. The contract of sale was signed by the vendors and exchanged on 5 October 2007. The Respondent was instructed in the sale transaction by Mr CL only. He did not see or give advice to Mrs CR or Mrs CL (AF 12). When a sale was arranged, the Respondent witnessed the execution of both the contract and transfer by Mr. CL. He gave the documents to Mr. CL to arrange for the other parties to sign them. They were returned to him signed but not witnessed. The Respondent was not personally instructed by, nor did he seek instructions from, Mrs CL and Mrs CR. He did not see their execution of the contract and the transfer. He signed both documents as if he had been present when they did so. (AF 11, 12 and 15)

11.  Mrs CR had contributed $358,000 to purchase Fraser. The balance was borrowed. Mrs CR instructed other solicitors HR to act for her in the purchase of a property in Melba (Melba). She required the funds from the sale of Fraser to purchase Melba. Fraser was scheduled to settle on 29 November 2007 and the Melba purchase a week later on 7 December 2007. Both settlements were late, with Fraser settling on 3 December 2007 and Melba some time later.

12.  Prior to the Fraser settlement HR sought from the Respondent in his capacity as solicitor for Mrs CR in relation to the sale of Fraser, details of the moneys due to Mrs CR but the information was not then available. When it became available the Respondent refused to release it because he said he was not authorised to do so.  He never sought permission from Mrs CR to do so.  He appears to have ignored the fact that he was acting for Mrs CR in one matter, and that it was in her interests to facilitate the purchase of Melba by providing information promptly to her other solicitors.

13.  When Fraser settled the Respondent paid out the vendors according to the proportions set out on the title without considering the extra $358,000 due to Mrs CR of which he was not aware.

14.  The Respondent did not make any contact with his clients other than Mr CL to ascertain whether this payment was correct. He did not send the money to those other clients, giving all of the cheques (including the agent’s commission) to Mr CL.

BREACH OF RULE 39.1

15. The Legal Profession (Solicitors) Rules 2007 (“The Rules”) are made under the LP Act 2006. Rules 39.1 and 39.2 provide:

39.1Subject only to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society.

39.2A practitioner should respond within a reasonable time and in any event within 14 days (or such extended time as the Society may allow) 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 accurate account of his or her conduct in relation to the matter.

16. The distinction between Rule 39.1 and Rule 39.2 is that the former includes oral communications with the Society and written material not in response to a requirement of the Society for comments or information in relation to the practitioners conduct or professional behaviour. However if material is provided to the Society in response to a requirement of the Society under Rule 39.2 it needs to comply with Rule 39.2 but must also be “open and frank” because the material is still a dealing with the Society that Rule 39.1 covers.

17.  Mr Clynes argued that Rule 39.1 looked to the totality of the interactions between the Respondent and the Society and thus one dealing which was not open and frank may be corrected by a subsequent one that is as, for example, the Respondent’s two letters to the Society. The first letter to the society of 10 January 2008 was false. It was also dismissive of the Society’s enquiry, made allegations of negligence against HR for which the Respondent had no evidence, and acknowledged that the Respondent’s personal feelings against HR had influenced the way he had dealt with that firm.

18.  The second letter of 5 February 2008, written after the Respondent had obtained legal advice, acknowledged that his first letter was not correct, that he had signed as a witness to the signatures of his clients who had not been present, and was more appropriate in its terms.

19. In the Tribunal’s view the words of Rule 39.1 require that each and every dealing between a practitioner and the Society should be open and frank. If Mr Clynes’ submission was adopted it would cause considerable expense and inconvenience to the Society, perhaps requiring it to chase many rabbits down many burrows with a final open and frank confession removing the practitioner from the operation of Rule 39.1. The Tribunal considers that although there may be some overlap a solicitor is required to comply with both rules even if a single action may constitute a breach of both.

20. While the Tribunal in these proceedings is obliged to comply with the rules of evidence, (LP Act Section 420) the obligations imposed on a practitioner by the Rules are statutory in their force. There is no scope for a practitioner to provide only part explanations or adopt an evasive or misleading response to the Society in the hope that facts adverse to him or her may not come to the Society’s attention.

21. To seek to distinguish between the words “open and frank” in Rule 39.1 and “full and accurate” in Rule 39.2 in the circumstances of this case may end in unprofitable semantics. Once the Society had written to the respondent about a serious matter of misconduct there was clearly an obligation to be open and frank and for disclosures to be full and accurate.

22. In the Tribunal’s view it is not appropriate that the same set of facts should be treated as a breach of both rules. For this reason, the Tribunal will deal with the matter under Rule 39.2 and dismiss the complaints made under Rule 39.1.

BREACH OF RULE 39.2

23.  AF 25 constitutes an admission by the Respondent that his letter to the Society of 10 January 2008 did not give a full and accurate account of his conduct in relation to the execution and witnessing of the contract and transfer by Mrs CR and Mrs CL.

24. The Tribunal finds that the Respondent breached Rule 39.2.

25.  AF 25 also constitutes a further admission that he did not give a full and accurate account of his conduct in relation to the distribution of the proportionate share of the net proceeds on the basis that he had not received any instructions to the contrary in circumstances where he did not seek such instructions.

26. The Tribunal finds that the Respondent breached Rule 39.2.

27. AF 10 describes the limited contact between Mrs CR and the Respondent and the small amounts of information conveyed to her. The Respondent’s letter of 10 January 2008, when he writes “At all stages of the sale, all of the Clients were kept informed of progress” is not a full and accurate account of his conduct as required by Rule 39.2.

28. The Tribunal finds that the respondent breached Rule 39.2.

29.  On 20 November HR, Mrs CR’s solicitors for the purchase of Melba, wrote to the Respondent requesting the approximate moneys their mutual client would receive from the sale of Fraser and a copy of the front page of the Contract of Sale. The Respondent faxed a reply saying that the “mortgagee will give us pay out figures only by 28 November [therefore] unable to say what the net funds are”. He did not suggest the need for either firm of solicitors to obtain authority for him to send the payout figures. The Respondent admits that he did not at any time seek instructions from his client Mrs CR to send a settlement statement to HR.

30.  The letter from the Society of 21 December 2007 setting out the grounds of the complaint mentions “f) failing to respond to another solicitor in a timely and professional manner”. The Respondent’s reply to the Society of 10 January 2008 states:

“My Clients had not given me specific instruction to release details of the sale to any other party except to send a copy of the Contract to [HR]. 
It is correct that I received numerous letters and calls from [HR] requesting details of the settlement. I did not comply with these requests as I was not specifically authorised to do so”.

31. What the Respondent wrote is literally true. However Rule 39.2 required the Respondent to respond with “a full and accurate account of his or her conduct in relation to the matter”. The Respondent failed to provide a full account of his conduct in that he did not mention his failure to seek instruction from Mrs CR on this matter even though it was obvious that it was in his client’s interest to do so.

32.  Any competent practitioner would have accepted that, in seeking the pay out figures, HR were acting within the ambit of their instructions when acting for a purchaser.

33. The Tribunal finds that the Respondent breached Rule 39.2 in not disclosing to the Society that he had not sought instructions from his client Mrs CR.

34. These breaches of Rule 39.2 constitute unsatisfactory professional conduct.

BREACH OF RULE 1.1

Rule 1.1 provides:

A practitioner should treat his or her client fairly and in good faith, giving due regard to the client’s position of 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.

35.  The obligation to treat a client fairly and in good faith having regard to the client’s position of dependence on the solicitor is paramount. Both Mrs CL and Mrs CR should have been advised on the contract, the settlement payout and the progress of the sale but neither was; see AFs 9, 10, 13, 14, 16, 17 and 18. The cheques for the net sale proceeds of Fraser were given to Mr CL without any input from Mrs CR or Mrs CL (AF 19). When refusing to inform Mrs CR’s solicitors for the Melba purchase of the payout from the Fraser sale without authorisation, and in not seeking that authority, the respondent did not treat his client fairly. The letters and phone calls the Respondent received from HR made it clear that Mrs CR was dependent on the Respondent for details of the funds she would receive from the Fraser settlement. The Respondent did not treat his client Mrs CR fairly and in good faith.

36. The Tribunal finds that the Respondent breached Rule 1.1 and that this constitutes unsatisfactory professional conduct.

BREACH OF RULE 1.2

Rule 1.2 provides:

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.

37.  A competent and diligent solicitor would have obtained instructions from his client. The Respondent admits he did not obtain instructions from Mrs CR and he asserts that he did not know of the unequal contribution Mrs CR had made. He was not aware of the proper disbursement of the net proceeds of sale from Fraser. He relied upon the Certificate of Title to provide the proportional distribution of the net proceeds of the Fraser settlement without seeking instructions. The Respondent did not keep Mrs CR or Mrs CL informed of the progress of the sale, nor inform them that he proposed to give all of the cheques of the net proceeds of the sale to Mr CL, nor did he obtain any instructions in this regard. The Respondent admitted these facts in AF 9, 10, 14, 16, 17, 18 and 19.

38. The Tribunal finds that the Respondent did not act with competence and diligence in the service of Mrs CR and Mrs CL and breached Rule 1.2. This failure also constitutes unsatisfactory professional conduct.

BREACH OF FIDUCIARY DUTY

39.  The fiduciary duty of a lawyer in respect of a client has been long recognised. In 1862 Lord Westbury LC remarked that the “client is entitled to the full benefit of the best exertions of the solicitor”: Tyrell v Bank of London (1862) 10 HL Cas. 26 at 44. The fiduciary prescriptions are designed to prevent a conflict of interest arising between solicitor and client but additionally promote confidence in the legal system that a solicitor cannot use his or her knowledge and position to take advantage of a client.

40.  The boxed foreword to Rules 1-10 dealing with a solicitor’s relations with his or her client makes it plain that the relationship places heavy obligations on the solicitor. It states that practitioners:

“Should be acutely aware of the fiduciary nature of their relationship with their clients, and always deal with their clients fairly, free of the influence of any interests which may conflict with a client’s best interests”.

41.  When HR requested the amount that their mutual client Mrs CR would receive from the Fraser sale, the Respondent refused to provide the amount because he said he did not have authority.  The Respondent never contacted his client to obtain that authority despite repeated requests from HR for pay out details and HR stressing the inconvenience that their mutual client was suffering. His explanation of 10 January 2008 was that “due to the ill feeling that existed between us [the firms] …. I may have naturally adopted a nonchalant attitude”. In his later letter of 5 February 2008 he says “I none the less felt victim of my own humanity in that I responded indifferently to people who have been rude and intemperate to me”.

42.  It was in Mrs CR’s best interest to have the pay out details but the Respondent, influenced by his ill feeling towards HR, refused to provide the information. The Respondent’s behavior to his client Mrs CR was ill considered and constitutes a breach of his fiduciary duty to her.

43. The Tribunal regards this conduct as disgraceful and there was no evidence of any meaningful apology for the damage that he caused her.

44. The Tribunal finds that this is a further breach of a solicitor’s duty and considers it to be unsatisfactory professional conduct.

CONDUCT CAPABLE OF BRINGING THE LEGAL PROFESSION INTO DISREPUTE

45.  The most serious matter brought by the Society against the Respondent is that he signed as a witness to the signatures of Mrs CR and Mrs CL on the contract and transfer for Fraser when he was not present when Mrs CR and Mrs CL signed the documents. This was admitted by the Respondent in AF 15. The Respondent did not know his clients Mrs CL and Mrs CR personally, much less recognise their signatures. Even if he had known them and recognised their signatures, the potential for fraud, as well as the terms of the documents themselves, require that the witness be present and see the parties sign the document.

46.  The Respondent admits that in the absence of Mrs CR and Mrs CL he signed the contract and transfer of Fraser as witness.

47. Mr Clynes drew a distinction between those cases dealing with the giving of a false certificate and the present case where the Respondent had falsely witnessed a contract and transfer. In the former case the untruth was express, but in the latter case implied. The Tribunal does not accept that this is a valid distinction. The authorities have treated both transgressions as serious breaches. In Demetrios v Gikas Dry Cleaning Industries Pty Ltd (1991) 22 NSWLR 56 at 565, Meagher and Handley JJA characterised such false witnessing as a “material misrepresentation to the solicitor” for the vendor/mortgagee. When Mr Demetrios came before The Legal Service Tribunal of NSW it stated that witnessing a document which was not signed in the solicitor’s presence “is clearly conduct which would be regarded as disgraceful and dishonourable by solicitors of good repute and competency”: Re Demetrious [1993] LPDR 3 at 6. 

48.  In Fraser v The Council of the Law Society of New South Wales [1992](CA)(NSW) 7 August 1992, unreported BC9201695 at p9 Handley JA made the following comments:

It is important that a solicitor asked to “cut some corner” and sign a false certificate which will save some person time trouble or expense should be able to recognise that he (or she) is being asked to commit fraud. A solicitor’s ability to recognise this should enable him (or her) to reject the request. Indeed one would hope that the solicitor would tell the person making such a request that compliance would involve committing fraud. This should not only ensure that the request is promptly withdrawn, it should also contribute in a small way to the maintenance and improvement of ethical standards in the community. A solicitor who cannot even recognise that compliance with a request to sign a false certificate will involve him (or her) in committing fraud is far more likely to sign such a certificate. Such a solicitor is a menace not only to those who rely on certificates given by solicitors but also to the profession itself.

49. The Tribunal adopts these words as applicable in the present case even though the facts do not suggest that Mr CL asked the Respondent to ‘cut corners”. The Respondent’s explanation was that he falsely witnessed the contract and transfer “to make the document look complete”. The witnessing of a memorandum of transfer is not a mere formality. The witness should correctly identify the signatory and know the transfer was signed voluntarily. The correct witnessing of a transfer under the Torrens system of title by registration is a cornerstone of the scheme.

50.  The practice of conveyancing has become deceptively straightforward, akin to an administrative process. It can, however, involve significant issues of law and professional responsibility. The conveyancing practitioner must be alert to recognise such matters when they arise. For most clients the purchase or sale of a house will be one of major financial moment and they depend on the competence, diligence and propriety of their solicitor. 

51.  The main purpose served by disciplinary proceedings is the potential to protect members of the public from misconduct by lawyers (Council of Q’ld Law Society v Wakeling 2004 QCA 42 at 27 per de Jersey CJ). However it is also maintaining public confidence in the profession, the administration of justice and the legal system (Council of NSW Bar Association v Einfeld (2009) NSWCA 255 BC 2009 07813 at [16] per the Court). A secondary aim of professional disciplinary proceedings is as a means to safeguard the reputation of the profession (Ziems v Prothonothary of the Supreme Court of NSW (19457) 97 CLR 279 at 286 per Dixon CJ) and setting an example to other lawyers (De Pardo v Legal Practitioners Complaints Committee (2000) 170 ALR 709 [2000] FCA 335 at [42] per French J).

52. Section 386 of the LP Act defines unsatisfactory professional conduct as including conduct “that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.” Section 387 states that professional misconduct includes circumstances where that professional conduct involves “a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence”. It also includes conduct that would “justify a finding that a practitioner is not a fit and proper person to engage in legal practice”, but conduct of this kind is at the highest level and it is not suggested that it applies in this case.

53. The Tribunal finds that falsely witnessing a contract and memorandum of transfer is a substantial failure to reach a reasonable standard of competence and diligence. It also is a deliberate act that amounts to a false representation to anyone who may rely on it. In all the circumstances it constitutes an act of professional misconduct.

SUPPRESSION OF THE COMPLAINT/REPRIMAND IN PRIVATE

54. Mr Clynes conceded that the Respondent, because of the operation of Section 454 of the LPA, would no longer request both a suppression order and a private reprimand, but would seek that the reprimand be delivered in private.

55. Section 38(1) of the ACAT Act sets out the benchmark that hearings “must be in public” unless a suppression order is made. For the Tribunal to make a suppression order it must be satisfied under Section 39(1) of the ACAT Act “that the right to a public hearing is outweighed by competing interests”.

56. Section 39(5) of the ACAT Act provides:

“(5)   For this section, the right to a public hearing is outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be kept private—

(a)to protect morals, public order or national security in a democratic society; or

(b)because the interest of the private lives of the parties require the privacy; or

(c)to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.”

57. The concerns of the Respondent are that his practice would be substantially and adversely affected as fifty per cent of his clients are from three tightly knit national communities who would quickly spread the news of the Tribunal’s decision.

58.  The claims of the competing interests must be strong to supplant the general rule that hearings must be in public. This is especially the case where the hearings relate to disciplinary proceedings against a legal practitioner, for such proceedings are protective in character. Additionally the public should know how seriously a breach by a practitioner is viewed and, finally, other practitioners should be aware that the false witnessing of documents is professional misconduct.

59.  A reprimand “has the effect of identifying standards, the establishment and maintenance of which protects the public (Prothonotary of the Supreme Court of New South Wales v Chapman (CA(NSW) 14 December 1992 unreported BC 9201419 per Cripps JA with whom Priestly and Clarke JJA concurred). A reprimand is a serious matter and “marks the disgrace of a member of an honorable profession inherent in [the] misconduct’: Law Society of New South Wales v Hinde [2005] NSW ADT 199 at [46] (see Riley’s “Solicitors Manual” para. 33,060).

60. Section 425(e) of the LP Act permits a private reprimand of the Respondent if there are special circumstances. The LP Act does not indicate what those special circumstances might be. The Respondent’s claim to have his reprimand delivered privately is based on the possible loss of reputation and business in his practice. The Tribunal has earlier set out, in relation to the grant of a suppression order under the ACAT Act the reasons why a reprimand of a legal practitioner should be made publicly. The Tribunal stresses that a public reprimand should function as a warning to other practitioners not to offend in a similar way.

61. Mr Buxton submitted that little would be served by having the reprimand delivered in private, as the requirements of Section 448 of the LP Act result in the identity of the Respondent and the details of the disciplinary action forming part of the Register of disciplinary action.

62. It is for the above reasons that the Tribunal declines to deliver the reprimand in private.

MATTERS IN MITIGATION

63. The Tribunal accepts that the Respondent was a highly respected senior public servant in his home country and achieved a great deal. His testimonials from that country all confirm this, but were given before the events that bring the Respondent before the Tribunal occurred. Those given more recently attest to the Respondent’s active role and well appreciated contribution to community activities since coming to Australia. It must be recognised that the testimonials from non-lawyers are of limited value where matters of professional conduct are concerned (Re Melvey (1966) 85 WN (Pt 1) NSW 289). 

64. There are four testimonials from ACT lawyers and three of these make reference to the current proceedings. All four state that the Respondent was courteous, polite and helpful. Only one lawyer who employed the Respondent from July 2002 to February 2006 referred to the false witnessing and expressed the view that it would not be repeated. The Tribunal has taken into account the views of his peers who practice in a similar manner to the Respondent, who have had many dealings with him and who know him best.

65. The Tribunal has also taken into account the Respondent’s age and his acknowledgement that his conduct was wrong. It believes that in the future he will have a proper appreciation of the role and duties of a solicitor.

66. Before making orders in this proceeding the Tribunal would caution the Respondent to take care when referring to other members of the legal profession. In his letter of 10 January 2008 he accuses HR of negligence in one instance and fraud in another. There was a degree of recklessness in that letter that could cause difficulty for the Respondent if he continues in that vein. If he believes that misconduct has occurred the correct action is to lodge a complaint with the Society.

COSTS

67. Section 433(1) of the LP Act requires that if the Tribunal finds an Australian legal practitioner guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal must order the practitioner to pay costs (including the costs of the relevant council and the complainant) unless the Tribunal is satisfied that exceptional circumstances exist.

68. Subsection (5) of Section 433 requires that an order for costs may be for a stated amount, or may be for an unstated amount, but must state the basis on which the amount is to be decided.

69. The Tribunal must therefore re-list the matter to make a decision on costs in accordance with this section. If the parties are able to reach agreement on the question of costs prior to this, then this would assist the Tribunal. Failing this the matter will be re-listed for submissions and decision on this matter.

………………………………..
Mr C G Chenoweth
For the Tribunal

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      LP 08/7

APPLICANT:     COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

RESPONDENT: THE LEGAL PRACTITIONER       

COUNSEL APPEARING:       N/A

SOLICITORS:               APPLICANT:          MR J BUXTON       

RESPONDENT:      MR R CLYNES       

TRIBUNAL MEMBER/S: Mr C G Chenoweth     Presiding Member

Mr A O’Neill              Senior Member

Mr G Wright              Member

DATE/S OF HEARING:          3 March 2010    PLACE: CANBERRA

DATE/S OF DECISION:          17 May 2010  PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: