Council of the Law Society of the Australian Capital Territory v Legal Practitioner 202022 (Necia Wearne) (Occupational Discipline) - [2023] ACAT 6

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LEGAL PRACTITIONER 202022 (Necia Wearne) (Occupational Discipline) [2023] ACAT 6

OR 22/2020

Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioner – employment of a disqualified person – recklessly misleading the Law Society – effect of prior breaches
Legislation cited: Legal Profession Act 2006 ss 425, 433, 589

Subordinate

Legislation cited: Legal Profession (Solicitors) Conduct Rules 2015 r 43

Tribunal:Senior Member D Mulligan

Date of Orders: 16 November 2022
Date of Reasons for Decision: 16 November 2022

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 22/2020

BETWEEN:

COUNCIL OF THE LAW SOCIETY OF THE
AUSTRALIAN CAPITAL TERRITORY
Applicant

AND:

NECIA WEARNE
Respondent

TRIBUNAL:Senior Member D Mulligan

DATE:16 November 2022

FINDINGS

Tribunal finds that the respondent has been guilty of unsatisfactory professional conduct.

ORDER

The Tribunal orders that:

An order publicly reprimanding the respondent.
An order pursuant to subsection 425(5)(a) of the Legal Profession Act 2006 that the respondent pay a fine of $8,000 in 11 equal instalments of $666.67 and a final instalment of $666.63 with the first instalment due by 30 November 2022 and continuing by the end of each month thereafter.
An order pursuant to section 433 of the Legal Profession Act 2006 that the respondent pay the applicant’s costs agreed in the sum of $20,000 in 11 equal instalments of $1,666.67 and a final instalment of $1,666.63 with the first instalment due by 30 November 2022 and continuing by the end of each month thereafter.

Particulars:

Charge 2
(a)The respondent in breach of section 589 of the Legal Profession Act 2006 employed a disqualified person as a lay associate of her firm.

Charge 5
(b)The respondent in breach of rule 43 of the Legal Profession (Solicitors) Conduct Rules 2015 recklessly mislead the applicant in her conversation with the Law Society of the Australian Capital Territory on 16 November 2018.

Charges 1, 3 and 4
(c)Charges 1, 3 and 4 are dismissed.

…………………Signed……………..
Senior Member D Mulligan

REASONS FOR DECISION

The facts of this case

The facts of the case are largely set out in the Joint Submission which was signed by the applicant on 28 June 2022 and by the respondent on 18 July 2022, which according to paragraph four is the “parties’ agreed position in respect of the facts, charges, characterisations and appropriate sanction to be ordered by the Tribunal.”[1]
As a matter of law I am not bound by the Joint Submission, but having reviewed the evidence and submissions I am satisfied it fairly states the facts and I have decided to adopt it, as it was intended, I do.
In paragraph two of the Joint Submission it is stated that:
The Respondent has indicated her intention to plead to Charges 2 and 5 in the Application. The applicant does not press the balance of the charges in the Application.[2]
The applicant’s position in relation to Charges 1, 3 and 4 seems reasonable and I dismiss those three charges.
The Joint Submission does not stand alone. On 28 July 2022, when this matter was heard, I received a number of documents. These are mostly included in exhibit A6; an affidavit sworn on 25 July 2022, by Mr Robert Reis, who is the Professional Standards Manager of the Law Society of the ACT (the Law Society), and exhibit R2 an affidavit sworn on 25 July 2022, by respondent.
The most significant evidence to be drawn from Mr Reis’s affidavit is that Ms Wearne has been the subject of disciplinary action by the applicant on three other occasions, two of which predate Ms Wearne’s breaches in this case and one that post dates it. The disciplinary actions were:
(a)In or around 2014 the applicant brought successfully disciplinary action against Ms Wearne relating to the signing of statutory declaration.[3] Ms Wearne was found guilty of unprofessional conduct, was publicly reprimanded, and ordered to pay the applicant’s costs.
(b)On or about 18 September 2018 a client of Ms Wearne made a complaint pursuant to section 413 of the Legal Profession Act 2006 (the Act), alleging that Ms Wearne had failed to provide adequate costs disclosure in breach of subsection 269(1)(d) of the Act.
According to Mr Reis’s affidavit “there was a reasonable likelihood that the respondent would be found guilty by the ACAT of unsatisfactory professional conduct” had the matter been referred to the Tribunal.
The matter was not referred to ACAT and the applicant resolved to caution Ms Wearne pursuant to subsection 413(2) of the Act.
(c)A further complaint was received by the applicant on 2 April 2019, from one of Ms Wearne’s clients. This complaint post-dates the allegations in the current case and has little impact on how I should view Ms Wearne breaches in the current proceeding.
The allegation related to Ms Wearne’s firm attaching the wrong form to a purported Home Buyers Concession Scheme Application. According to Mr Reis’ affidavit “there was a reasonable likelihood that the respondent would be found guilty by the ACAT of unsatisfactory professional conduct” had the matter been referred to the Tribunal.
The matter was not referred to ACAT as the applicant took the view it could adequately deal with the complaint pursuant to section 413 of the Act.
The applicant imposed a public reprimand and required Ms Wearne to undertake a practice management approved by the Law Society within six months. Ms Wearne complied with that order.
The effect of the two prior breaches committed by the respondent is that she cannot be viewed as a first offender by the Tribunal and cannot expect the same degree of leniency a person first coming before the Tribunal can expect.
The other document of particular importance that was produced on 28 July 2022, is exhibit R2; Ms Wearne’s affidavit in which she sets out matters of a business and personal nature which speak to the significant stress she was under when she employed Mr Mark Slater and was dealing with the applicant about that employment.
Those matters are largely of a personal nature and do not require repetition here.
I am satisfied that Ms Wearne was under significant financial, business, family and personal stress when the relevant events were taking place.
It is clear from Ms Wearne’s affidavit that she knew Mr Slater had been struck off, that she could employ him “in an administrative capacity, that is, in a

non-legal role and that is what I did.”[4]
Ms Wearne also highlighted that Mr Slater was only employed by her for a short period of six weeks and that he did not have access to the trust account.[5]
Ms Wearne conceded that on a small number of occasions (six or seven) Mr Slater exceeded his authority and signed emails which described himself as a paralegal.
I also note that whilst Mr Slater should not have been employed by Ms Wearne, it is not alleged that he caused any loss to any of her clients.
Taking into account Ms Wearne’s prior incidences of unsatisfactory behaviour, the facts of the present case and the mitigating factors emphasised in Ms Wearne’s affidavit I am content to make the order urged by the parties in the Joint Submission:
(a)Charges two and five are found proved.
(b)Charges one, three and four are dismissed.
Neither party was able to draw my attention to any precedents that would help me fix the appropriate penalty.
The proposed penalties contained in the Joint Submission seem reasonable given the nature of the current breaches and Ms Wearne’s two prior disciplinary breaches and accordingly I make the following orders:
(a)A finding that the respondent has been guilty of unsatisfactory professional conduct.
(b)An order publicly reprimanding the respondent.
(c)An order pursuant to subsection 425(5)(a) of the Legal Profession Act 2006 that the respondent pay a fine of $8,000 in 11 equal instalments of $666.67 and a final instalment of $666.63 with the first instalment due by 30 November 2022 and continuing by the end of each month thereafter.
(d)An order pursuant to section 433 of the Legal Profession Act 2006 that the respondent pay the applicant’s costs agreed in the sum of $20,000 in 11 equal instalments of $1,666.67 and a final instalment of $1,666.63 with the first instalment due by 30 November 2022 and continuing by the end of each month thereafter.

………………………Signed…..

Senior Member D Mulligan

Date(s) of hearing:	28 and 29 July 2022
Solicitor for the Applicant:	Ms K Binstock, Thomson Geer Law
Solicitor for the Respondent:	Mr M Fitzgerald, Fitzgerald Naylor Lawyers

ANNEXURE A

Joint Submission

Background

By Application for Disciplinary Action dated 9 December 2020 (the Application) the Applicant brought proceedings against the Respondent under section 419 of the Legal Profession Act 2006 (ACT) (the Act). The Application is listed for hearing on 28 and 29 July 2022.
The Respondent has indicated her intention to plead to Charges 2 and 5 in the Application. The Applicant does not press the balance of the charges in the Application.
The parties wish to file this Joint Submission with the Tribunal to assist ii in determining the matter pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACT).
The Joint Submission sets out the parties' agreed position in respect to the facts, charges, characterisation and appropriate sanction to be ordered by the Tribunal.
The parties note that it is open to the Respondent to file any material and to make submissions in relation to the matters in mitigation that she wishes to put before the Tribunal.

Facts

The Respondent admits the following facts.

The Respondent

The Respondent:
(a)was admitted as a Solicitor of the Supreme Court of New South Wales on 24 August 2007;
(b)was granted restricted practising certificate by the Law Society of New South Wales shortly after her admission;
(c)was employed by the NSW Department of Justice at Law Access from approximately May 2007 until May 2010; and
(d)from May 2010 until January 2014, was employed by ACT Legal Aid.
The Respondent:
(a)held a restricted practising certificate issued by the Law Society of the ACT between 1 July 2010 and 30 June 2013; and
(b)held an unrestricted practising certificate issued by the Law Society of the ACT from 1 July 2013 to present.
In mid-December 2013, the Respondent opened an incorporated legal practice with another legal practitioner and operated that law practice until early December 2015.
On 5 December 2015 the Respondent opened an incorporated legal practice with a different legal practitioner and operated that law practice until early 18 July 2018.
From 25 July 2018 to present, the Respondent opened and trades as NGW Enterprises Pty ACN 627 725 973 Limited trading as Falcon Legal.
At all material times, the Respondent held an unrestricted practicing certificate issued by the Applicant and was the sole legal practitioner director of the incorporated legal practice known as NGW Enterprises Pty Ltd ACN 627 725 973 operating the law practice trading as Falcon Legal.

Mr Mark Slater

The Respondent did not meet, know or have any dealings with Mr Mark Slater until early September 2018, when he initiated contact with her through her then business partner.
Between November 2009 and June 2014, Mr Slater was the principal solicitor of the law practice Mark Slater Family Law. The law practice held a trust account holding monies on behalf of clients. Mr Slater was the authorised person to sign cheques and withdraw monies from the trust account.
In April 2014, Mr Slater made a voluntary disclosure to the Applicant regarding improper use of trust funds.
On 24 July 2014 the Applicant commenced proceedings in the Tribunal seeking declarations that Mr Slater had been guilty of professional misconduct. The grounds of the application before the Tribunal were:
(a)in breach of section 223(1) of the Act, Mr Slater failed to hold trust money in the trust account of the firm exclusively for the person on whose behalf that money was received and disbursed that money without the authority or direction of that person;
(b)in breach of section 230 of the Act, Mr Slater caused deficiencies in his trust account totalling the sum of $63,286.50;
(c)in breach of section 229(1)(b) of the Act Mr Slater withdrew from his trust account during the period 1 April 2013 to 20 June 2014 amounts in payment of legal costs without the authority of his client, without the issue of a tax invoice to the client or, otherwise, within seven days of the date of the invoice as the case may be, being a failure to comply with regulation 62 of the Legal Profession Regulation 2007 (ACT); and
(d)in breach of section 291 of the Act, Mr Slater failed to include or attach to the tax invoices issued to clients written notification of the client's right to have the costs assessed under division 3.2.7 of the Act and the time limits which apply to the taking of such action.
On 5 February 2015 the Tribunal made orders by consent in the disciplinary proceedings brought against Mr Slater. The Tribunal declared that Mr Slater was guilty of professional misconduct in relation to each of the grounds in the application dated 24 July 2014. The Tribunal further recommended that Mr Slater's name be removed from the ACT Roll of Legal Practitioners.
On 3 August 2015 the Full Court of the ACT Supreme Court made an order (by consent) removing Mr Slater's name from the Roll of Legal Practitioners in the ACT. The Full Court handed down its reasons for decision on 18 August 2015: Law Society of the Australian Capital Territory v Slater [2015] ACTSCFC 2.
From 3 August 2015 Mr Slater was a disqualified person as defined in the dictionary to the Legal Profession Act 2006 (ACT). Mr Slater has not been re-admitted to the legal profession since 3 August 2015. The Law Society has not given any law practices approval to employ Mr Slater as required by the Act.

Employment of Mr Slater by the Respondent

On or about 12 July 2018, Mr Slater sent an unsolicited email to the Respondent's then business partner seeking to return to the legal profession initially in an administrative role. In that email, Mr Slater said:
"... my name was removed from the roll of legal practitioners in the ACT in 2015 for misappropriation of client trust funds. I volunteered the conduct which led to my disqualification to the ACT Law Society in 2014."
The Respondent's business partner sent the email to the Respondent.
At around this time, 16 July 2018, the Respondent's law firm was locked out of its premises by its landlord and the incorporated legal practice was placed into voluntary administration.
In early September 2018, the Respondent, who then needed administrative assistance in her new firm, met with Mr Slater.
During the meeting, Mr Slater advised the Respondent that he had been struck off the Roll of Legal Practitioners.
On or around 5 September 2018, the Respondent offered Mr Slater casual employment as an Administrative Assistant with effect from 5 September 2018.
Mr Slater signed an Employment Agreement with Falcon Legal dated 26 September 2018 with effect from 5 September 2018.
Mr Slater's pay rate was based upon the Legal Services classification of clerical/administrative employee level 1 skill set under the Legal Services Award 2010.
The Respondent paid Mr Slater wages in accordance with the Employment Agreement for the period between on or around 5 September 2018 and to, on or around 15 November 2018.
In late October 2018, Mr Slater began pressing the Respondent to increase his hourly rate.
On or around 15 November 2018 the Respondent offered Mr Slater casual employment as a Paralegal with effect from 15 November 2018. Mr Slater accepted that position and signed an Employment Agreement with Falcon Legal dated 15 November 2018.
Mr Slater's pay rate was based upon the Legal Services classification of clerical/administrative employee level 3 skill set under the Legal Services Award 2010.
The Respondent did not change Mr Slater's duties. The Respondent only changed his classification under the Legal Services Award 2010 and his title to paralegal.
The Applicant did not approve the employment of Mr Slater by NGW Enterprises Pty Ltd ACN 627 725 973 (trading as Falcon Legal) either in the capacity of an Administrative Assistant or as a Paralegal.
The Respondent employed Mr Slater under the mistaken belief that she was permitted to do so provided that his Employment Agreement contained an express limitation that he was not permitted to provide legal advice. In forming this mistaken belief, the Respondent did not:
(a)consult the Legal Profession Act 2006 (ACT);
(b)perform any research;
(c)ask the Law Society for guidance; or
(d)ask any other legal practitioners or counsel for guidance.
During the period of his employment, between 5 September 2018 and 26 November 2018, Mr Slater had access to 11 client files, with file numbers as follows:
(a)100834;
(b)100902;
(c)100967;
(d)100939;
(e)100761;
(f)100752;
(g)100612;
(h)100949;
(i)100769;
(j)100731; and
(k)100694.
In relation to those files, Mr Slater performed the following work:
(a)100834
i.      emailed a letter, written by the Respondent, to the lawyers on the other side of the matter on 27 October 2018;
ii.     typed a letter to the lawyers on the other side of the matter from handwritten notes prepared by the Respondent on or around 7 November 2018;
iii.     accepted track changes, as directed by the Respondent, to the draft letter referred to in 36(a)(ii) on or around 8 November 2018; and
iv.     scanned a letter received by the Respondent on or around 16 November 2018.
(b)100902
i.      typed a letter to the client from handwritten notes prepared by the Respondent in October 2018;
ii.     typed amendments, as directed by the Respondent, to the draft letter referred to in 36(b)(i) between around 26 October 2016 and 30 October 2018; and
iii.     emailed the letter referred to in 36(b)(ii) to the client on 30 October 2018 with the sign off "paralegal".
(c)100967
i.      typed a letter to the lawyers on the other side of the matter from handwritten notes prepared by the Respondent on 11 November 2018;
ii.     typed amendments, as directed by the Respondent, to the draft letter referred to in 36(c)(i);
iii.     emailed the letter referred to in 36(c)(ii) to the lawyers on the other side of the matter on 12 November 2018 with the sign off "paralegal";
iv.     took a phone message from the client;
v.     took a phone message from the Police; and
vi.     telephoned the client and relayed a message from the Respondent on 15 November 2018.
(d) 100939
i.      emailed the client questions on 14 October 2018 which were prepared by the Respondent in order to draft the client's Affidavit and invited the client to call the Respondent to discuss;
ii.     received an email from the client on 14 October 2018 containing answers to the questions;
iii.     typed a letter to the Registrar of the Federal Circuit Court of Australia (Canberra Registry) on or about 15 October 2018 from handwritten notes prepared by the Respondent and made amendments, as directed by the Respondent, to the draft letter;
iv.     typed a letter to the client from handwritten notes prepared by the Respondent on 15 October 2018;
v.     typed amendments to draft documents based on the Respondent's notes;
vi.     emailed a draft Application and Affidavits to the client on 15 October 2018;
vii.    emailed the client on 15 October 2018 asking her to attend the Respondent's office to sign the Application and Affidavit;
viii.   collated and printed Court documents in preparation for a meeting between the Respondent and the client on 16 October 2018;
ix.     spoke to the client on 23 October 2018 and took a message for the Respondent and emailed the Respondent to call the client back;
x.     made inquiries of process servers in Sydney on or around 24 October 2018 as directed by the Respondent;
xi.     collating file;
xi.     typed a letter to the client on or about 14 November 2018 from handwritten notes prepared by the Respondent; and
xii.    emailed the letter referred to in paragraph 36(d)(xii) to the client on or about 15 November 2018.
(e)100761 (Graham)
i.      the Respondent asked Mr Slater (in an email directed to [REDACTED]) on 6 September 2018 to review the file for documents which may have been received from the other side, check the disclosure for the other side and see if they complied with all documents requested;
ii.     typed a letter to the client from handwritten notes prepared by the Respondent; and
iii.     collating file.
(f)100752
i.      typed Subpoenas from handwritten notes prepared by the Respondent on or around 5 September 2018;
ii.     typed a letter to the client on or about 17 September 2018 from handwritten notes prepared by the Respondent;
iii.     attended a meeting as the note taker, on 4 October 2018; which the Respondent had with the client;
iv.     typed a letter to the client from handwritten notes prepared by the Respondent on or about 17 October 2018;
v.     emailed a letter to Central West Legal (copied to the solicitors acting on the other side of the matter) on 13 November 2018 with the sign off "paralegal for Necia Wearne Lawyer";
vi.     typed letters to Central West Legal and to Interrelate Contact Centre on or about 15 November 2018 from handwritten notes prepared by the Respondent;
vii.    emailed a letter, written by the Respondent, to Central West Legal on 15 November 2018 (copied to the solicitors acting on the other side of the matter) with the sign off "paralegal for Necia Wearne Lawyer"; and
viii.   collating file.
(g)100612
i.      emailed the Respondent a regulation 72 Notice to be completed;
ii.     typed a letter to the Trustee of Military Superannuation & Benefits Scheme from handwritten notes prepared by the Respondent on or about 7 November 2018; and
iii.     typed amendments, as directed by the Respondent, to the letter at paragraph 36(g)(ii) on or about 8 November 2018.
(h)100949
i.      attended a meeting as a notetaker, which the Respondent had with the client on or about 17 October 2018;
ii.     created a spreadsheet set out by the Respondent on or about 25 October 2018;
iii.     emailed the client, as directed by the Respondent, on 9 November 2018 requesting bank statements;
iv.     typed a letter to the client from handwritten notes prepared by the Respondent on or about 14 November 2018;
xii.    amended the letter, as directed by the Respondent, at 36(h)(iv).
xiii.   emailed the client, as directed by the Respondent, on 14 November 2018 with the sign off "paralegal for Necia Wearne Lawyer"; and
xiv.   emailed the client, as directed by the Respondent, on 16 November 2018.
(i)100769
i.      typed a letter to the Snowy Mountains Council on or about 6 November 2018 from handwritten notes prepared by the Respondent;
ii.     emailed the Snowy Mountains Council, as directed by the Respondent, on 6 November 2018 with the sign off "(paralegal) for Necia Wearne Lawyer";
iii.     took a call from the Snowy Mountains Council on 12 November 2018 regarding the letter sent on 6 November 2018;
iv.     emailed a Notice of Intention to Apply for Probate drafted by the Respondent, to the client, as directed by the Respondent, on 14 November 2018 with the sign off "(Paralegal) for Necia Wearne";
v.     received an email from the client on 14 November 2018 raising a question in relation to the Notice of Intention to Apply for Probate, and
vi.     after Mr Slater's employment was terminated, the general inbox for mail ([REDACTED]) received an email from the Snowy Mountains Council on 22 November 2018 in reply to the email at paragraph 36(i)(ii) with the salutation "Dear Mark".
(j)100731
i.      met with the Respondent on 26 September 2018 to discuss the work to be performed on the file;
ii.     collating the file in September, October and November 2018;
iii.     preparing an index of documents, as directed by the Respondent, in September 2018;
iv. typed and amended a letter to Legal Aid ACT on or about 29 October 2018 in relation to drug testing from handwritten notes prepared by the Respondent; and
v. emailed a letter, written by the Respondent, to Legal Aid ACT, as directed by the Respondent, on 9 November 2018 in relation to drug testing.
(k)100694
i.      reviewing documents on or around 15 September 2018 to ensure that the correct values had been added based on disclosure material, as directed by the Respondent;
ii.     typed a letter to the client from handwritten notes prepared by the Respondent on or about 24 September 2018;
iii.     called three valuers, as directed by the Respondent, on or about 29 October 2018 to ascertain their cost and availability to value a residential property;
iv.     typed a letter to three valuers from handwritten notes prepared by the Respondent on or about 30 October 2018;
v.      emailed a letter, as directed by the Respondent, to Valuers Australia on 30 October 2018;
vi.     emailed a letter, as directed by the Respondent, Lismore City Valuers on 30 October 2018;
vii.    emailed a letter, as directed by the Respondent, to EastPoint Valuers on 30 October 2018;
viii.   collating file; and
ix.     emailed, as directed by the Respondent, Save U Legal on 9 November 2018 attaching a letter in relation to a valuation of a property.

Communication with the ACT Law Society

On 15 November 2018, the Respondent had a telephone conversation with a practitioner from another firm (who had received correspondence from Mr Slater during the course of the work performed above) and who informed her that she required "...permission [from the Law Society] to employ Mr Slater in ANY capacity."
By email on 15 November 2018, sent at 4.29pm, the Respondent emailed the Applicant (Linda Mackay, being the Professional Standards Committee Secretary of the Applicant). In the email, the Respondent said:
"I wish to employ Mark Slater as a paralegal at my firm on a probationary basis. It is my understanding that in order for that to occur the Law Society of the ACT is required to give written permission.
Can you please advise what I need to do and what Mark is required to do to obtain that permission"?
In sending this email the Respondent was expressly seeking the Applicant's advice and assistance. The Respondent was expressly stating that she was seeking permission to employ Mr Slater, recognising that her engagement of him to that date was, as she now realised, in breach of the Legal Profession Act 2006 (ACT).
By email on 16 November 2018, sent at 12.47pm, Ms Mackay advised the Respondent that the employment of Mr Slater would require a decision by the Council and the Respondent should forward a submission regarding the request to Council. The submission should include details of the type of work Mr Slater would be doing and the supervision arrangements. Ms Mackay also advised the Respondent that it would assist the Council to hear Mr Slater's submissions.
By email on 16 November 2018, sent at 1.27pm, the Respondent requested Ms Mackay to call her to discuss the matter.
On 16 November 2018 at approximately 3.30pm Ms Mackay telephoned the Respondent. During this conversation the Respondent said:
(a)she had "put him [Mr Slater] on as an admin person yesterday'' or, alternatively "had employed him yesterday'';
(b)she had given Mr Slater an offer but that the paperwork had not been signed; and
(c)she had not yet paid Mr Slater.
On 16 November 2018, at 4.24pm, Ms Mackay sent the Respondent an email which said:
"Further to our conversation earlier, I note your confirmation that Mark has been working for you since yesterday...."
The Respondent did not respond to the email.
On 16 November 2018, the Respondent, realising then that she could not employ Mr Slater at all, immediately terminated his employment, with immediate effect.
On 11 February 2018, the Respondent made written submissions to the Law Society in relation to her employment of Mr Slater.
On 18 February 2019, the Applicant raised, on its own motion, a complaint against the Respondent.
On or about 19 February 2019, the Applicant and sought a response to the complaint from the Respondent.
On or about 12 March 2019, the Respondent provided a written response to the complaint. In that response, the Respondent advised the applicant that she first employed Mr Slater with effect from 5 September 2018.
On or about 24 September 2020, the Respondent provided a final written response to the complaint.

Charges

The Respondent accepts that she committed the conduct contained in Charge 2 of the Application, i.e. that she breached section 589 of the Act by employing a disqualified person as a lay associate to the law practice.
The Respondent accepts that she committed the conduct contained in Charge 5 of the Application, i.e. that she recklessly misled the Applicant contrary to Rule 43 in her conversation with the Law Society on 16 November 2018.

Agreed Sanction

The parties submit that the following sanction is appropriate:
(a)a finding pursuant to subsection 425(1) of the Act that the Respondent is guilty of unsatisfactory professional conduct as defined in subsection 386 of the Act in relation to Charge 2;
(b)a finding pursuant to subsection 425(1) of the Act that the Respondent is guilty of professional misconduct as defined in subsection 387(1)(a) of the Act and the common law in relation to Charge 5;
(c)an order pursuant to subsection 425(5)(a) of the Act that the Respondent pay a fine of $8,000 within 6 months of the date orders are made by the Tribunal;
(d)an order pursuant to subsection 425(3)(e) of the Act publicly reprimanding the Respondent; and
(e)an order pursuant to section 433(1) of the Act that the Respondent pay the Applicant's costs as agreed or assessed.

[1] The Joint Submission in full is annexed as Annexure 1

[2] Exhibit A1 – The application was filed at ACAT on 10 December 2020

[3] Council of the Law Society of the ACT v Wearne [2015] ACAT 27

[4] Paragraph 9, Exhibit R2

[5] Paragraph 9, Exhibit R2