Council of the Law Society of the Australian Capital Territory v Legal Practitioner 012022 (Gillian Yeend) (No.2) (Occupational Discipline)
[2025] ACAT 15
•23 January 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LEGAL PRACTITIONER 012022 (Gillian Yeend) (No.2) (Occupational Discipline) [2025] ACAT 15
OR 1/2022
Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioner – professional misconduct – protective orders made – removal from roll – costs
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39
Legal Profession Act 2006 ss 6, 423A, 425, 433
Cases cited:Council of the Law Society of NSW v DRM [2021] NSWCATOD 105
Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1
Council of the Law Society of the ACT v Giles [2020] ACTSCFC 1
Council of the Law Society of the ACT v Legal Practitioner 201818 [2019] ACAT 12
Council of the Law Society of the ACT v Legal Practitioner 201822 [2019] ACAT 27
Council of the Law Society of the ACT v Legal Practitioner W [2013] ACAT 1
Council of the NSW Bar Association v Sahade [2007] NSWCA 145
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Law Society (ACT) v Bangura [2024] ACTSCFC 1
Law Society of NSW v Bannister [1993] NSWCA 157
Law Society of NSW v Foreman (1994) 34 NSWLR 408
Law Society of NSW v Jones, unreported, 27 July 1978
Legal Practitioner v Council of the Law Society of the ACT (No 2) [2014] ACTSC 352
Legal Practitioners Conduct Board v Hannaford [2002] SASC 260
Legal Services Commissioner v Smith [2014] QCAT 518
Re DP and the Legal Practitioners Act 1970 [2005] ACTSC 78
Singh v Legal Services Commissioner [2013] QCA 384
Tribunal:Senior Member M Brennan
Senior Member L Beacroft
Date of Orders: 23 January 2025
Date of Reasons for Decision: 23 January 2025
Date of Publication: 11 March 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 1/2022
BETWEEN:
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
Applicant
AND:
LEGAL PRACTITIONER 012022
Respondent
TRIBUNAL:Senior Member M Brennan
Senior Member L Beacroft
DATE:23 January 2025
ORDER
The Tribunal orders that:
1.The Tribunal recommends that the practitioner’s name be removed from the roll of solicitors in New South Wales.
2.The practitioner pay the Council’s party/party costs of the proceedings as agreed or as assessed.
…………………………..
Senior Member M Brennan
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction[1]
[1] This decision was previously anonymised 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 delivery to the parties.
1.On 10 October 2024, this Tribunal published a decision (the part 1 decision) finding that the respondent (the practitioner) had engaged in professional misconduct. In summary, this was due to the practitioner’s transfer of client funds, in breach of trust account regulations, on 50 occasions and in circumstances where the respondent dishonestly misappropriated clients’ moneys knowing that she had no lawful entitlement to do so. The practitioner also failed to report 56 instances involving trust account irregularities to the Law Society of the ACT (the Law Society).
2.The Tribunal additionally found that the practitioner was dishonest in her dealings with the Law Society during its investigation. This included providing invoices to the Law Society which were not the invoices sent to her clients. The Tribunal determined that she had taken this action to conceal her conduct from the Law Society.
3.This decision deals with sanctions and costs pursuant to sections 425 and 433 of the Legal Profession Act 2006 (LP Act) following a hearing on 10 December 2024.
4.The parties agreed to this two stage approach on the first day of the hearing in this matter (the first hearing) so that the practitioner was not required to make submissions about an appropriate penalty until the Tribunal had delivered its findings as to the characterisation of her conduct.[2]
Council’s evidence and submissions
[2] This is in accordance with decisions such as Legal Practitioner v Council of the Law Society of the ACT (No 2) [2014] ACTSC 352
5.The applicant council (the Council) did not file any evidence at this part 2 hearing.
Practitioner’s evidence
6.In addition to an affidavit from the practitioner, affidavits from a current and former colleague, including the practitioner’s employer, were tendered. The practitioner also relied on an assessment undertaken by a clinical psychologist.
7.The practitioner provided details of her current work as an operations and HR manager. She stated that this does not involve any legal work, and she has no access to the firm’s trust accounts nor does she undertake any accounting work for her employer.
8.The practitioner said that her:
failure to manage a trust account during the period to which the charges relate… 2015 and 2018, are a consequence of my naivety, incompetence and lack of diligence in maintaining my professional obligations. During this period I was hopelessly overcommitted in my personal and professional life and did not prioritise my obligations, which I recognise are a fundamental component of private practice.[3]
[3] Affidavit of Gillian Claire Yeend affirmed 25 November 2024 at [22]
9.The practitioner referred to the fact that she had admitted or partially admitted some of the charges brought by the Council. She also noted that she had voluntarily ceased to operate a trust account during the Law Society’s investigation and relinquished her practising certificate in November 2022. This occurred shortly before the first hearing.
10.The practitioner detailed that she accepted “that a finding of dishonesty is a grave conclusion… and I acknowledge that I’m unable to uphold the responsibilities of remaining in practice.” The practitioner undertook not to apply for a practising certificate “into the future” adding “I will not at any time in the future seek to practice as a legal practitioner.”[4]
[4] Affidavit of Gillian Claire Yeend affirmed 25 November 2024 at [51]
11.The practitioner also expressed concerns about the impact of publication of this decision on herself and her family.
12.The evidence filed by a current colleague of the practitioner referred to her high work ethic and that she is a valued member of their firm in a non-legal role. A former colleague of the practitioner who worked for her at her previous firm detailed her hard work for a range of clients, including those accessing Legal Aid. He also referred to the impact of the proceedings on the practitioner.
13.The psychological assessment tendered opined that the practitioner, at the time of the conduct covered by the proceedings, was under significant stress and “unknowingly affected by the executive function impairments associated with Attention Deficit/Hyperactivity Disorder, predominantly inattentive type.”[5]
Council’s submissions
[5] Report of Leesa Morris dated 25 November 2024, page 1
14.The Council submitted that the object of disciplinary proceedings is not punitive but rather to protect the public and the reputation of the legal profession. The Council stressed that deterrence to other practitioners is also a key element of disciplinary proceedings.
15.The Council pressed that where a practitioner has been shown to be unfit to practise and such fitness is permanent or at least of an indefinite duration, the lawyer’s name should be removed from the roll for public protection.
16.The Council referred to the importance of honesty in legal practice and a solicitor’s prescribed obligations in relation to trust funds. It also noted a solicitor’s duties when dealing with the Society to honestly inform and assist an inquiry into their conduct, and that the Tribunal had found that the practitioner had failed to do so in this case.
17.It submitted that any remorse or contrition from the practitioner had occurred belatedly, raising the question of whether such a response was due to the current proceedings. The Council also submitted that the stressors described by the practitioner did not mitigate her wrongdoing, noting again protection of the public is the paramount consideration.
18.The Council sought that the Tribunal make a recommendation that the practitioner’s name be removed from the roll of solicitors in New South Wales.
19.Supplementary submissions were also filed by the Council which responded to evidence filed by the practitioner, lodged after the Council’s initial submissions. These submissions include that character references are of limited assistance unless they deal with the reasons for the lawyer’s misconduct. Further, the Council submitted that medical evidence should be given little, if any weight in relation to sanction, where there is no discernible link between the practitioner’s medical condition and the offending which occurred.
The practitioner’s submissions
20.The practitioner’s starting position was that sanctions are protective and not punitive. The importance of deterring other practitioners from engaging in similar conduct was acknowledged.
21.The practitioner said that she accepts the findings of the Tribunal in the first decision. She submitted that the years in which she practised from 2002 to 2015, when she “was considered of good fame and character” prior to the conduct subject of the complaint, should be taken into account by the Tribunal.
22.The practitioner rejected the Council’s submission that there was no link between the practitioner’s medical condition and the nature of her offending, drawing attention to Ms Morris’ opinion that she:
was clearly under significant amounts of stress during the period of her erroneous accounting transactions she was also unknowingly affected by the executive functioning impairments associated with attention deficit/hyperactivity disorder predominantly inattentive type.[6]
[6] Report of Leesa Morris dated 25 November 2024, page 4
23.The practitioner said her referees pointed to the valuable contribution she had made to the profession prior to relinquishing her practising certificate, and since working in a nonlegal role, which should be taken into account by the Tribunal.
24.The practitioner submitted that her remorse to the charges was evident through her admission of charges 3 to 6 and 8 at an early opportunity in the proceedings. She added that her failure to admit the remainder of the charges was due to the complexity they raised and the legal advice she had received about the proceedings.
25.The practitioner sought an order that she be prohibited from applying for a practising certificate in Australia or overseas for at least ten years. She also sought an order that her name not be published and that access to the proceedings’ file be restricted.
Consideration
26.Section 6 of the LP Act details that one of its key purposes is the protection of consumers of the services of the legal profession and the public generally. Mahoney JA noted in Law Society of NSW v Foreman that:
protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done.[7]
[7] (1994) 34 NSWLR 408, page 441
27.It flows from this that deterrence to other practitioners contemplating engaging in similar conduct is a critical role of disciplinary proceedings.
28.The principal factor in considering an appropriate sanction to protect the public when there has been a finding of misconduct under the LP Act is the nature of the misconduct. Other factors include any findings of prior misconduct; the lawyer’s experience; the lawyer’s attitude and appreciation of wrongdoing; stressors suffered by the lawyer; and testimonials by third parties.[8]
Nature of the misconduct
[8] Council of the Law Society of the ACT v Legal Practitioner 201822 [2019] ACAT 27 at [41]
29.This case involves the practitioner’s dishonesty in the handling of client trust accounts spanning several years. The Tribunal found in the part 1 decision that the practitioner persisted in “a scheme” from May 2016 to December 2018, during which she accessed her clients’ moneys without any entitlement to do so.
30.In Council of the NSW Bar Association v Sahade (Sahade),[9] the NSW Court of Appeal said that a willingness to engage in dishonest conduct in legal practice “will usually give rise to a heightened concern” as to a person’s fitness to practise law.
[9] [2007] NSWCA 145 at [58]
31.In another decision,[10] the NSW Court of Appeal observed that:
reliability and integrity in the handling of trust funds are fundamental prerequisites in determining whether an individual is a fit and proper person to be entrusted with the responsibilities belonging to a solicitor. Members of the public, many of them wholly inexperienced and unskilled in matters of business or of the law, inevitably must put great faith and trust in the honesty of solicitors in the handling of moneys on their behalf. The court must ensure that this trust is not misplaced.
[10] Law Society of NSW v Jones, unreported, 27 July 1978
32.The Full Court of the ACT Supreme Court also examined misuse of trust funds in the decision of Council of the Law Society of the ACT v Giles (Giles).[11] The Court referred to an earlier decision where the Court of Appeal had held “[t]he normal consequence of the misappropriation by a solicitor of the client’s money is that his name be removed from the roll.”[12]
[11] [2020] ACTSCFC 1 from [115]
[12] Law Society of New South Wales v Bannister [1993] NSWCA 157
33.In Council of the Law Society of the ACT v Bandarage (Bandarage),[13] the Full Court of the ACT Supreme Court’s decision included the statement:
generally, removal is appropriate only where the underlying reason for disqualification is permanent, or at least of indefinite duration…where a practitioner has manifested a serious character flaw that would justify removal, it is for the practitioner to affirmatively satisfy the court that the unfitness was, or is, of limited duration.
[13] [2019] ACTSCFC 1 at [148]–[149]
34.This Tribunal also found that the practitioner had been dishonest in her dealings with the Law Society during its investigation of her conduct. It was particularly critical of her action in providing invoices to the Law Society which were not copies of the invoices sent to her clients. The Council learnt this when the practitioner filed an affidavit in November 2022 which annexed invoices showing that trust to office transfers had occurred prior to invoices being sent to her clients. This was not apparent from the invoices the practitioner gave the Law Society during its investigation. Summonses issued to a number of the practitioner’s clients seeking copies of the accounts the practitioner had sent them, provided further evidence of this dishonesty.
35.The requirement for complete candour in dealings with the Law Society was stressed by the ACT Supreme Court when it said:
The Law Society must, and indeed should, if it finds a complaint to have apparent substance, seek an explanation from the solicitor concerned. And if the Law Society lacks the power to do that then the system will not work satisfactorily for the protection of clients generally. So it must be emphasised that the Society has that power, is entitled to exercise it, and in the exercise of that power is further entitled to respect and compliance with it by members of the legal profession to whom it is directed.[14]
[14] Re DP and the Legal Practitioners Act 1970 [2005] ACTSC 78 at [3]
36.As the part 1 decision indicates, the Tribunal considers the practitioner’s conduct to be extremely serious due to the dishonesty demonstrated in her management of trust funds and in her interactions with the Law Society when it investigated her conduct.
Prior findings of misconduct
37.The Tribunal has not been advised of any prior findings of misconduct against the practitioner.
Experience
38.The practitioner was admitted as a solicitor in New South Wales in 2002. She worked as a solicitor in three legal practices before gaining an unrestricted practising certificate in 2006, at which time she set up her own practice with another colleague. From September 2010, the practitioner was employed at a family law practice in Canberra for over 2.5 years. In June 2013, she practised in her own firm again and was the sole director of Yeend & Associates. She voluntarily surrendered her practising certificate in November 2022.
39.At the time the practitioner first withdrew moneys held in trust, in breach of trust account regulations, she had been in practice for approximately 13 years. This conduct continued over three years. At the time the conduct commenced, she had also been a principal in a legal firm twice. This role requires an understanding of and compliance with trust accounting requirements. Additionally, it is evident that part of the practitioner’s education and training, prior to her being admitted and/or receiving an unrestricted practising certificate, included her ethical obligations to clients and the Society.
40.The Tribunal considers that due to the practitioner’s experience she should have had a detailed understanding of her trust account obligations, and those requiring her to deal openly and honestly with the Law Society.
Attitude and appreciation of wrongdoing
41.The practitioner’s contesting of charges 1 and 2 resulted in three days of hearing. Many of the practitioner’s answers to questions during cross-examination at the first hearing were found to be evasive and at other times, implausible. It led the Tribunal to find that she had demonstrated a complete absence of insight into the serious illegality of her conduct by submitting that her conduct could be minimised because it was just a payment timing issue, no clients had complained about the fees, and the sum involved was only $145,045.35.
42.The Tribunal is mindful of the discomfort and stress of disciplinary proceedings for practitioners, particularly when being cross-examined. However, even allowing for this, the Tribunal considered that, at best, the practitioner appeared to be uncooperative at some points during her cross-examination, and to have failed to appreciate the seriousness of her conduct being examined.
43.Further, unlike the case of Mr Prasad,[15] involving a solicitor who was also found to have given an inaccurate statement to the Law Society, the practitioner did not acknowledge her fault, apologise, nor cooperate fully with the Council in its investigations and resolution of the complaint.
[15] Council of the Law Society of the ACT v Legal Practitioner 201818 [2019] ACAT 12 at [14]
44.In the affidavit filed prior to this hearing, the practitioner has demonstrated some insight into the seriousness of her conduct. The affidavit includes a statement in several paragraphs that the practitioner “accepts the findings of the Tribunal.”[16] These findings included that trust to office transfers occurred dishonestly.
[16] Affidavit of Gillian Claire Yeend affirmed 25 November 2024 at [47] and [48]
45.During cross-examination, the Council’s counsel asked the practitioner about statements in Ms Morris’ report. These included apparent quoting from the practitioner where she told the psychologist “I don't accept that I did anything with the intention of dishonesty.”[17]
[17] Transcript of proceedings dated 10 December 2024, page 10, lines 36–44
46.The Council confirmed with the practitioner that Ms Morris had added the text in quotation marks as they were words the practitioner had used. The practitioner’s response to this question was “I presume so”. Later in her evidence she said that she “accepted” that she made this statement to Ms Morris.[18]
[18] Transcript of proceedings dated 10 December 2024, page 10, line 45
47.This statement caused the Tribunal to have some concerns as to whether the practitioner does completely understand and accept the Tribunal’s findings after the first hearing.
48.Other courts have examined the importance that should be placed on expressions of insight. The Queensland Court of Appeal observed, when examining a practitioner’s expressions of remorse and insight a decade after he engaged in the conduct which was the subject of the proceedings, that “[s]uch 11th hour remorse and insight can be given only limited weight in determining whether he is now a fit and proper person … and whether the public need protection from him.”[19]
[19] Singh v Legal Services Commissioner [2013] QCA 384 at [22]
49.This reasoning has been followed in a number of later decisions.[20]
[20] See for example Khosa v Legal Profession Complaints Committee [2017] WASCA 192, where the Supreme Court of Western Australia found “[t]he degree of insight was, on any reasonable view, belated” at [61].
50.For the reasons detailed, the Tribunal considers that the practitioner has a greater appreciation of her wrongdoing than she appeared to have at the time of the first hearing. We note that this acknowledgement has come several years after the Law Society contacted her for information about her practice. The practitioner’s quoted comments from Ms Morris also lead us to not be entirely certain that she has accepted that she had engaged in dishonesty over a significant period.
Testimonials
51.The two affidavits filed highlight the deponents’ level of support for the practitioner and the high regard they have for her.
52.As noted by Basten JA in the NSW Court of Appeal in Sahade:
The relevance of the affidavit material must be understood in a practical way. Tribunals dealing with professional discipline are routinely supplied with character references … On the ultimate issues, the Tribunal must form its own views and is entitled to disregard, or at least give little weight, to the views of others.[21]
[21] [2007] NSWCA 145 at [46]
53.The Tribunal has certainly not disregarded this evidence. However, it is most influenced by the evidence from the practitioner and the entirety of her actions from 2015 to the present time.
Stressors
54.In her affidavit,[22] the practitioner referred to the personal stressors she was managing over an extended period, including running her practices in the ACT and Newcastle and in raising two young children. She also detailed the significant financial stressors she was facing which resulted in her entering voluntary administration in 2020. The Tribunal accepts that the practitioner was managing several significant stressors over an extended period.
[22] Affidavit of Gillian Claire Yeend affirmed 25 November 2024 at [21]–[24] and [33]–[40]
55.In Legal Practitioners Conduct Board v Hannaford, the Full Court of the Supreme Court of South Australia observed:
Many practitioners are subjected to stress in their working lives. This is part of professional life. Practitioners must understand that personal stressors cannot ameliorate the seriousness with which professional obligations are viewed and the need for strict compliance at all times. A practitioner’s professional standards must not be compromised or eroded.[23]
Medical evidence
[23] [2002] SASC 260 at [24]
56.Ms Morris reported that the practitioner suffered an Attention Deficit/Hyperactivity Disorder, predominantly inattentive type. The practitioner submitted that Ms Morris drew a clear link between her conduct and this condition when the psychologist opined:
she was clearly under significant amounts of stress during the period of her erroneous accounting transactions she was also unknowingly affected by the executive functioning impairments associated with attention deficit/hyperactivity disorder…[24]
[24] Report of Leesa Morris dated 25 November 2024, page 1
57.The Council rejected this evidence and submitted that the report should be given little, if any weight in relation to sanction, as it does not explain how the practitioner’s psychological condition was linked to the offending which occurred. Particularly, the Council submitted that the report did not explain how the disorder affected the practitioner’s ability to deal honestly with client monies, with the Law Society, and with the Tribunal.
58.The Tribunal agrees with this submission and consider that Ms Morris’ expressed view that the practitioner’s condition resulted in “silly errors” and “accounting errors” does not appear to appreciate the seriousness of the conduct, subject to the proceedings and the misconduct findings which flowed.
59.While the Tribunal accepts the significant stressors the practitioner was managing and Ms Morris’ diagnosis, it is not satisfied on the balance of probabilities that this explains the practitioner’s conduct over a significant period of time, including providing the Law Society with false invoices.
Deterrence
60.Many earlier decisions in disciplinary matters refer to the importance of providing a deterrence to other practitioners. Presidential Member Symons, for example, referred to a QCAT decision which included:
The primary purpose of disciplinary proceedings is to protect the public. The purpose is furthered, and the public interest is served, if the effect of an order made is to deter other practitioners from engaging in professional misconduct. While the primary aim is not to punish the legal practitioner, a significant consideration in relation to penalty is the deterrent element. Practitioners must appreciate that conduct which is unsatisfactory professional conduct or professional misconduct carries with it a serious risk, and so should be deterred from such conduct.[25]
[25] Legal Services Commissioner v Smith [2014] QCAT 518 at [35], quoted in Council of the Law Society of the ACT v Legal Practitioner 201822 [2019] ACAT 27 at [68]
61.This Tribunal found the practitioner guilty of professional misconduct after the first hearing due to her dishonesty. It considers there needs to be significant deterrence for other practitioners to refrain from engaging in such conduct in management of client trust funds and in their interactions with the Law Society.
Sanction
62.The Tribunal has found that the practitioner’s dishonesty, over an extended period, in the transfers of client funds from her trust to her office accounts and in her communication with the Law Society, was extremely serious.
63.The Council seeks that a recommendation be made that the practitioner’s name be removed from the roll of solicitors in NSW. It referred the Tribunal to the decision of Law Society of NSW v Bannister (Bannister)[26] where members of the Full Court agreed that the “normal consequence of the misappropriation by a solicitor of the client’s money is that his name be removed from the roll.”[27]
[26] [1993] NSWCA 157 at [9]
[27] [1993] NSWCA 157 at [9]
64.The practitioner has submitted that a more appropriate penalty would be an order that she be prevented from applying for a practising certificate for a least ten years. In her affidavit, the practitioner said that “I will not at any time in the future seek to practice as a legal practitioner.”[28]
[28] Affidavit of Gillian Claire Yeend affirmed 25 November 2024 at [51]
65.The Tribunal finds this statement of intent from the practitioner a little confusing, given the order she sought at the hearing of a prohibition order contemplates her reapplying for a practising certificate. This is not considered material. The key question for the Tribunal is the appropriate sanction in light of its findings after the part 1 hearing.
66.The Tribunal notes that in Bandarage, the Court opined that:
In general, removal is appropriate only where the underlying reason for disqualification is permanent, or at least of indefinite duration…where a practitioner has manifested a serious character flaw that would justify removal, it is for the practitioner to affirmatively satisfy the court that the unfitness was, or is, of limited duration.[29]
[29] [2019] ACTSCFC 1 at [149]
67.While the Tribunal does not consider that the reason for the practitioner’s disqualification is necessarily permanent, it is not satisfied that it is of a limited duration. This is because of the length of time the dishonest conduct occurred in relation to her clients and the Law Society.
68.While no criticism is intended in referencing the fact that the practitioner has sought an order that she be prevented from reapplying for a practising certificate for at least ten years, we are not confident from the totality of the evidence when, or if, she will be fit to practise in the future. This includes Ms Morris’ report which does not provide any evidentiary foundation for working out a timeframe for any condition which the respondent has which is causal of dishonesty.
69.The Tribunal agrees with the Court’s approach in Law Society (ACT) v Bangura that “it is probably better in most cases to allow the practitioner to re‑apply at a subsequent time and offer positive evidence of the grounds upon which [they] then claim to be re-admitted.”[30]
Suppression of the practitioner’s name
[30] [2024] ACTSCFC 1 at [64]
70.Section 39(2)(b) of the ACT Civil and Administrative Tribunal Act 2008 provides that:
The tribunal may, by order: give directions prohibiting or restricting the publication of evidence given at the hearing, whether in public or private, or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing.
71.The practitioner has asked that her name not be published and that access to this proceeding’s file be restricted. Several reasons were provided for this, including a potential impact on her and her spouse’s employment and also the effect on her parents and children.
72.The Tribunal fully understands why the practitioner has sought this order and has sympathy about her reasons for so doing. Such considerations arise, however, for the majority of respondents subject to disciplinary proceedings in this tribunal.
73.In Council of the Law Society of NSW v DRM (DRM),[31] referred to by the practitioner, Deputy President Boland reasoned that “such an order will only be made if the circumstances on which a party relies are special or, out of the ordinary.”[32] The Deputy President found in that case that the expert psychiatric evidence supported the practitioner’s application for restricting publication of his name. There was evidence before the Tribunal that the practitioner was severely depressed and anxious, traumatised, was on multiple courses of antidepressants and undergoing repeated hospitalisations, including brain stimulation treatments.
[31] [2021] NSWCATOD 105
[32] [2021] NSWCATOD 105 at [85]
74.The practitioner also relies upon a decision of this tribunal,[33] where a private reprimand was ordered. We have carefully considered this case. Differentiating it from the facts before us, the respondent in that matter was found to have fully cooperated with the Law Society in its investigation. He also admitted all the charges, saving the parties considerable time and expense. A private reprimand being made was also the agreed position by the parties.
[33] Council of the Law Society of the ACT v Legal Practitioner W [2013] ACAT 1
75.The Tribunal agrees with the Council’s submission that in order to make the order sought we must be satisfied that the considerations in favour of the ongoing anonymisation of a proceeding outweigh the protection of the public. Such an order would also have the effect of departing from section 423A of the LP Act, given the practitioner’s identity would be suppressed indefinitely. This section allows publication of a practitioner’s identity when there has been a finding of misconduct and the time for appealing the decision has ended.
76.While the practitioner has given several reasons why she seeks that her name remain unpublished and that the file of these proceedings be restricted, we do not consider that special circumstances have been demonstrated to justify the ongoing suppression of her identity as occurred in the decision of DRM.
Costs
77.Section 433(1) of the LP Act provides:
If the ACAT finds an Australian legal practitioner guilty of unsatisfactory professional conduct or professional misconduct, the ACAT must order the practitioner to pay costs (including costs of the relevant council and the complainant), unless the ACAT is satisfied that exceptional circumstances exist.
78.The practitioner concedes that costs should be payable in a case where such findings are made, however asks the Tribunal to find that exceptional circumstances exist. These exceptional circumstances are the financial hardship she has already suffered, which includes significant legal fees she incurred for the first hearing and a potential loss of her employment.
79.Again, the Tribunal is very sympathetic to these submissions. However, it does not find either consideration to constitute exceptional circumstances. The majority of practitioners responding to disciplinary proceedings have their own legal costs to pay as well as the Council’s if there are findings made against them. Similarly, the loss of a position due to this tribunal’s findings is not an exceptional outcome. Hopefully, it will not be the outcome in this case given the non-legal work in which the practitioner is engaged.
80.Taking all these factors into consideration, the Tribunal makes the following orders pursuant to section 425(3) of the LP Act:
(a)The Tribunal recommends the practitioner’s name is removed from the roll of solicitors in New South Wales.
(b)The practitioner pay the Council’s party/party costs of the proceedings as agreed or as assessed.
……………………………
Senior Member M Brennan
For and on behalf of the Tribunal
Date(s) of hearing: 10 December 2024 Counsel for the Applicant: Mr D Moujalli Solicitors for the Applicant: Thomson Geer Counsel for the Respondent: Ms A Tonkin
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