Council Of the Law Society Of the Australian Capital Territory v Legal Practitioner 202111 (Kai Zhang) (No 2) (Occupational Regulation)

[2024] ACAT 67

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LEGAL PRACTITIONER 202111 (Kai Zhang) (No 2) (Occupational Regulation) [2024] ACAT 67

OR 11/2021

Catchwords:               OCCUPATIONAL REGULATION – legal practitioner – professional misconduct – protective orders made – public reprimand – suspension – ethics training – costs

Legislation cited:        Legal Profession Act 2006 ss 6, 425, 433

Evidence Act 2011 ss 77-79

Subordinate

Legislation cited:        Legal Profession (Solicitors) Conduct Rules 2015

Cases cited:Council of the Law Society of the Australian Capital Territory v Legal Practitioner 201822 (Alveer Singh) [2019] ACAT 27

New South Wales Bar Association v Cummins [2001] NSWCA 284
Council of theLaw Society of the ACT v Bandarage [2019] ACTSCFC 1
Council of the Law Society of the ACT v Legal Practitioner 201920 (David Chen) [2020] ACAT 31
Law Society of NSW v Foreman (1994) 34 NSWLR 408
Legal Practitioner v Council of the Law Society of the ACT [2018] ACTCA 19
Re DP and the Legal Practitioners Act 1970 [2005] ACTSC 78
Council of the Law Society of the ACT v Legal Practitioner 201818 (Chandra Prasad) [2019] ACAT 12
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145
Legal Practitioners Conduct Board v Hannaford [2002] SASC 260
Legal Services Commissioner v Smith [2014] QCAT 518

Tribunal:Senior Member M Brennan

Date of Orders:  25 September 2023

Date of Reasons for Decision:      25 September 2023

Date of Publication:  9 September 2024

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 11/2021

BETWEEN:

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

Applicant

AND:

LEGAL PRACTITIONER 202111

Respondent

TRIBUNAL:Senior Member M Brennan

DATE:25 September 2023

ORDER

The Tribunal orders that:

1.The practitioner is publicly reprimanded.

2.The practitioner’s practising certificate is suspended for 12 months from 28 days after this decision is delivered.

3.The practitioner undertake a course in ethics approved by the Council within 12 months.

4.The practitioner pay the Councils’ party/party costs of the proceedings up to the delivery of the stage 1 decision as agreed or as assessed.

5.The parties have 28 days from the date of this decision to file any written submissions with respect to costs of the stage 2 hearing. A decision on the costs of the stage 2 hearing will be made in chambers.

…………………………..

Senior Member Brennan

REASONS FOR DECISION

Introduction

1.On 9 January 2023, this Tribunal delivered a decision (the part 1 decision) finding that the respondent (the practitioner)[1] had engaged in professional misconduct. In summary, this was due to the practitioner’s 2017 actions in electronically changing the directors and guarantors’ names in documentation (lease documentation) drafted by Bradley Allen Love Lawyers (BAL) without advising BAL, as they had requested. This had significant ramifications for the lessor when it tried to enforce the guarantees. The practitioner was also found to have misled the applicant (the Council) when he was asked about his conduct in 2020.

[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.

2.This decision deals with sanctions pursuant to section 425 of the Legal Profession Act 2006 (the LP Act) following a hearing on 15 June 2023.

Council’s evidence

3.The Council filed an affidavit sworn by Robert Reis, the Professional Standards Director of the Law Society of the ACT (Law Society). Mr Reis detailed two earlier complaints involving the practitioner made in March and November 2019.

4.In examining the first complaint, the Council summarily concluded the complaint against the practitioner. The Council was satisfied that the practitioner had failed to exercise reasonable supervision over the conduct of the complainant’s conveyancing file in breach of the Legal Profession (Solicitors) Conduct Rules 2015 (the Rules). A public reprimand and a fine of $1,500 was issued.

5.In examining the second matter,[2] the Council summarily concluded the complaint against the practitioner. The Council found that the practitioner failed to lodge or cause to be lodged an application within time, which constituted a failure to act competently, diligently and promptly as required by the Rules. The Council also found that the practitioner failed to ensure reasonable supervision of his employed solicitor. A public reprimand and a fine of $1,500 was issued.

Practitioner’s evidence

[2] This was raised by the Council as an own motion complaint against the practitioner after information provided from another legal practitioner

6.In addition to an affidavit from the practitioner (the second affidavit), a number of affidavits from current and former colleagues, including a business partner, his accountant, and a professor from the University of Canberra, were tendered.

7.In his second affidavit, the practitioner expressed how difficult he found the hearing and particularly being cross examined. He considered that he had not sufficiently explained his actions, learnings, and work he had undertaken to develop as a practitioner over the last few years.

8.The practitioner said that when he initially responded to BAL and the Law Society about his conduct, he did not consider that he had done anything wrong and that he was acting in his client’s best interests. He also detailed some personal and financial stressors in 2017. He said that he accepts this Tribunal’s findings that his actions were dishonest. Further, he now understands his responsibilities to the legal profession and to the court.

9.The practitioner also referred to how his practice has changed since 2017, including his hiring of 40 employees and introducing systems so there are multiple solicitors on a matter. This means that a case is reviewed by more than one practitioner. A number of these lawyers have unrestricted practising certificates.

Council’s submissions

10.The Council noted that the primary purpose of disciplinary proceedings is protection of the public from lawyers’ misconduct. The Council submitted that the practitioner’s proven misconduct gives rise to serious concerns as to whether other practitioners, the public and the Law Society can have confidence in him. Further, as dishonesty is serious misconduct, a significant sanction is appropriate.

11.In regard to the practitioner’s attitude and appreciation of his wrongdoing, the Council pointed to: his refusal to concede matters which he should have when being cross examined during the part 1 hearing; his apparent resiling from insight expressed in his first response to the Law Society during the part 1 hearing; and not taking seriously his duty to assist the Tribunal’s inquiry. The Council submitted this demonstrated a failure to understand the seriousness of his conduct.

12.In response to the third-party testimonials tendered, the Council said that only one of the seven affidavits provided any explanation as to why the practitioner misled BAL or the Law Society.[3] In view of this, the Council submitted that such character evidence does not assist in considering the risks of the practitioner repeating such conduct.

[3] Applicant’s submissions on sanctions dated 11 May 2023 at [5.26], referring to Affidavit of Victor Michael Norman Chin affirmed 1 March 2023

13.The Council proposed that a public reprimand and suspension from practice for two years is warranted given: the practitioner’s sustained conduct involving dishonesty; the need to demonstrate the high standards expected of the profession; and the importance of deterrence for other practitioners. The Council also sought its legal costs.

The practitioner’s submissions

14.The practitioner’s starting position was that sanctions are protective and not punitive. In considering deterrence of other practitioners, the practitioner submitted that the Tribunal should take into account the effect and understanding an order would have on the standard of behaviour required by solicitors.

15.The practitioner said that his follow up response to the Law Society in 2021,[4] coupled with his affidavit evidence, demonstrate his insight.[5] He drew attention to the fact that in his second affidavit he admitted his 2017 conduct was dishonest. He also said that this affidavit explained why he had previously been unable to make such admissions about his conduct.

[4] Affidavit of Robert Anthony Reis sworn 11 November 2021, page 437

[5] Respondent’s outline of submissions on sanctions dated 9 June 2023 at [7]

16.The practitioner said that his second affidavit, and that of his business partner,[6] drew attention to cultural matters in response to the Tribunal’s finding after the part 1 hearing that the practitioner was being evasive or failed to answer questions put to him. He further stated that at times during cross examination, he was struggling to recall the events in 2017 in changing the lease documentation and his email to BAL.

[6] Affidavit of Xingli Chen affirmed 1 March 2023 at [14]-[15], [25]

17.The practitioner said that the character references from professional peers who are aware of the Tribunal’s findings, should carry significant weight in considering his fitness to practice. The changes the practitioner detailed had been made to his practice should also be noted.

18.The practitioner submitted the following sanctions were appropriate: a public reprimand; a period of supervised practice for between 6-12 months coupled with a restricted practising certificate for this time; an order that he attend ethics and professional responsibility training approved by the Law Society; and a fine between $7,000-8,000.

19.He agreed that the Council’s costs were payable up until the delivery of the first decision given the terms of section 433 of the LP Act. He said that he may wish to be heard on costs orders to be made for this hearing.

20.In response to the Council’s proposed sanctions, the practitioner submitted that any suspension would have a significant impact on the 40 staff he employs and was not in the public interest. The loss to Mandarin speaking clients if he was unable to practice for a period of time was also said to against the public interest.

Consideration

21.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.

22.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; testimonials by third parties; and the loss suffered by third parties due to the misconduct.[7]

Nature of the misconduct

[7] Council of the Law Society of the Australian Capital Territory v Legal Practitioner 201822(Alveer Singh) [2019] ACAT 27 at [41]

23.This case involves the practitioner’s dishonesty in his dealings with BAL in 2017 and the Law Society in 2020. Spigelman CJ in New South Wales Bar Association v Cummins observed:

There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.[8]

[8] [2001] NSWCA 284 at [10]; approved in Council of the Law Society of the ACT v Bandarage [2019] ACTFC 1 at [143]

24.In a later decision of this tribunal, Senior Member Meagher described the Council, as the regulatory authority of the legal profession, being a fifth interest when reviewing conduct.[9]

[9] Council of the Law Society of the ACT v Legal Practitioner 201920 (David Chen) [2020] ACAT 31 at [50]-[51]

25.In examining the practitioner’s conduct in his interactions with BAL, a useful decision is Mahoney JA’s comments in Law Society of NSW v Foreman.[10] His Honour noted the importance that a solicitor can rely upon the word of another colleague, including that he or she has properly witnessed an affidavit or complied with an undertaking given. He observed:

if such assumptions cannot be made in the ordinary course of dealings between solicitors and each is required in prudence to check the truth of what the other has suggested, the administration of justice would be seriously impeded.[11]

[10] (1994) 34 NSWLR 408

[11] Law Society of NSW v Foreman (1994) 34 NSWLR 408, page 445

26.In a decision of the ACT Court of Appeal, their Honours observed

There are numerous statements which detail the role played and position occupied by a solicitor in the proper administration of justice. It is clear that the system for administration of justice relies heavily upon the integrity of the profession and the discharge of the duties falling upon members of the profession. Members must be able to command the confidence of all the participants in the administration of justice. Elements of that confidence are that the word of the member must be able to be trusted to be true and that the member will not make false statements or create misleading impressions.[12]

[12] Legal Practitioner v Council of the Law Society of the ACT[2018] ACTCA 19 at [72]

27.Complete candour in dealings with the Law Society has also been 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 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.[13]

[13] Re DP and the Legal Practitioners Act 1970 [2005] ACTSC 78 at [3]

28.As the part 1 decision indicates, the Tribunal considers the practitioner’s conduct to be extremely serious due to the dishonesty demonstrated in his dealings with BAL in 2017 and the Law Society in 2020.

Prior findings of misconduct

29.The two prior cases summarised earlier in this decision are clearly very different to the present matter. The earlier complaints centred on the practitioner’s supervision of his employed lawyers’ files, not his honesty. These prior matters and their resolution gave the practitioner some exposure to the Council’s processes in reviewing complaints and the role it has with the profession and wider community.

Experience

30.In 2017, the practitioner had only been admitted as a solicitor in the Supreme Court of the Australian Capital Territory for four years. He had held an unrestricted practising certificate since July 2015.[14] In the practitioner’s second affidavit, he detailed that he was the sole principal running his office at the time of his conduct with BAL and did not seek support from other practitioners.

[14] Affidavit of Robert Anthony Reis sworn 11 November 2021 at [4]

31.While he was clearly a relatively inexperienced practitioner in 2017, it is understood that part of the practitioner’s education and training, prior to being admitted and/or in receiving an unrestricted practising certificate, should have included his ethical obligations to fellow practitioners and the Law Society.

Attitude and appreciation of wrongdoing

32.The practitioner’s initial response when asked about his actions in amending the lease documentation was to say that BAL should have detected the changes made.[15] In his second affidavit, he also said that when he received the Council’s first letter “his gut reaction was that it was absurd and there was no truth in it”.[16]

[15] Affidavit of Robert Anthony Reis sworn 11 November 2021, page 167-8

[16] Affidavit of the respondent affirmed 1 March 2023 at [28]

33.He later described this as a serious error of judgement on his part and that he regrets not being candid with BAL about the lease documentation.[17] As noted by the Council during the hearing, this acknowledgement does not address the later changes the practitioner made to the lease documentation dealing with the carpark licence or to his dishonesty in responding the Law Society in 2020.

[17] Affidavit of the respondent affirmed 14 June 2022 at [8], [17]-[18]

34.In relation to the practitioner’s 2020 response to the Law Society, the Tribunal does not find the practitioner’s explanation for misrepresenting what occurred in 2017 compelling. He firstly referred to the passage of time being a reason for why he could not recall what occurred. The Tribunal notes the lessor’s lawyers wrote to the practitioner in 2020 about the change in directors and guarantors in the lease documentation in 2017. He was ultimately joined in Magistrates Court proceedings in 2020 for the rental payment default.

35.It followed that the practitioner had cause to review his 2017 actions and communication with his client contemporaneously to when the Law Society wrote to him. His initial reference to the passage of time since 2017, impacting his clear recollection of events from three years earlier when answering the Law Society’s queries, clearly appears to be false.

36.Further, in a response to the Law Society in April 2021, the practitioner submitted that, due to the Magistrates Court proceedings, he had difficulties separating his defence in that matter from BAL’s complaint against him when he responded to the Law Society in 2020.[18] He added that he was also concerned with how his 2020 response to the complaint could be used in the Magistrates Court proceedings. While this provides some explanation for his lack of candour, the Tribunal notes the lack of insight it shows into the practitioner’s obligation to be honest with the Law Society.

[18] Affidavit of Robert Anthony Reis sworn 11 November 2021, page 440-2

37.Unlike the case of Mr Prasad,[19] involving a solicitor who was also found to have given an inaccurate statement to the Law Society, the practitioner did not acknowledge his fault, apologise and cooperate fully with the Council in its investigations and resolution of the complaint.

[19] Council of the Law Society of the ACT v Legal Practitioner 201818 (Chandra Prasad) [2019] ACAT 12 at [14]

38.As a colleague of the practitioner’s, and a self-described, “ethnic Chinese … brought up in a traditional Chinese family”, Mr Chin opined in his affidavit that he “sense[d] that [the practitioner] had difficulty expressing his thoughts and feelings about his understanding of this matter … throughout this matter”.[20] He added:

I sense that there was a cultural factor in play … In Chinese culture based on Confucianism, there is a hierarchy of duties. A person’s primary duty is to the family and the inner circle. The duty is lessened the further one gets from the family and inner circle … there is an instinctive tendency to say less rather than more when there is conflict between a person in one’s family or inner circle and a person who is more remote. There is cultural inhibition about volunteering information … when the other party’s interests [are] in conflict with the interest of a person such as a client, to whom there is a primary duty. There are nuanced differences between the Confucian values system and the values expressed in the Legal Profession Act and the Solicitor’s Conduct Rules.[21]

[20] Affidavit of Victor Michael Norman Chin affirmed 1 March 2023 at [31]

[21] Affidavit of Victor Michael Norman Chin affirmed 1 March 2023 at [31]

39.While the Tribunal considered this evidence, given by a very experienced legal practitioner, provided some insight into the practitioner’s conduct, it is considered to be Mr Chin’s view or opinion. It is not considered to be evidence providing an exception to the opinion rule in sections 77-79 of the Evidence Act 2011. It is also considered that the requirements in the LP Act and Rules must prevail in legal practitioners’ dealings with third parties, including the Law Society, whatever a solicitor’s background.

40.The practitioner’s answers to questions during cross examination at the part 1 hearing did not demonstrate his insight into the severity of his conduct in 2017 and 2020. The part 1 decision examined some of the practitioner’s responses and did not consider they were credible in light of the evidence tendered.

41.In his second affidavit, the practitioner attempted to expound some of his answers in cross examination. He said that he did “not sufficiently explain what [he] was trying to say”[22] and started giving longer answers and “getting more upset at [himself] as [his] cross examination went on”.[23]

[22] Affidavit of the respondent affirmed 1 March 2023 at [6]

[23] Affidavit of the respondent affirmed 1 March 2023 at [7]

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 his cross examination, and to have failed to appreciate the seriousness of his conduct being examined and also the proceedings.

43.In his second affidavit and the cross examination thereof at the part 2 hearing, the practitioner has demonstrated some insight into the seriousness of his conduct in 2017 and 2020. The affidavit includes that the practitioner “accepts the Tribunal’s finding that [his] actions were dishonest”.[24] In cross examination during this hearing, the practitioner conceded that, prior to affirming the second affidavit, he had not acknowledged the dishonesty of his conduct. Rather, he had described it as a serious error of judgement.[25]

[24] Affidavit of the respondent affirmed 1 March 2023 at [33]

[25] Transcript of proceedings, 15 June 2023, page 23 lines 6-35

44.The practitioner has given some evidence as to how he might manage the future risk of engaging in actions which led to the misconduct findings. For example, the Tribunal notes the practitioner’s explanation that in 2017 that “he thought [he] had to do everything to protect the best interests of the clients” and appreciates now that he “should not be involved with any further commercial decisions … [and put] boundaries in place”.[26]

[26] Affidavit of the respondent affirmed 1 March 2023 at [37]

45.His evidence of engagement with the Council’s Professional Standards Manager on practice management processes, including ensuring legal advice provided and instructions taken over social media are properly documented, again shows a strategy to minimise some of the additional risks raised by the practitioner’s conduct in this case. This is also considered to be practical evidence of insight.

46.The Queensland Court of Appeal observed, when examining a practitioner’s expressions of insight a decade after he engaged in the conduct which was the subject of the proceedings, that:

Such 11^th 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.[27]

[27] Singh v Legal Services Commissioner [2013] QCA 384 at [22]

This reasoning has been followed in a number of later decisions.[28]

Testimonials

[28] 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]

47.As difficult as it clearly appeared to be for the practitioner to share the details of the Tribunal’s part 1 decision with the colleagues and other acquaintances making affidavits in his support, the Tribunal commends him for doing so. The affidavits as a whole highlight the level of support for the practitioner at this time. They also detail the deponents’ high regard for the practitioner.

48.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.[29]

[29] [2007] NSWCA 145 at [46]

49.The Tribunal has certainly not disregarded this evidence. However, it is most influenced by the evidence from the practitioner and the entirety of his actions from 2017 to the present time.

Stressors

50.In his second affidavit, the practitioner referred to the serious financial pressure he was under in 2017 in starting his business and the tension this had caused in his marriage. He also referred to the pressure of assisting a close relative in a criminal trial in Melbourne.[30] It is noted this evidence does not provide any explanation for the practitioner’s conduct in 2020 when he responded to the Law Society. It is considered such evidence may have had greater weight if the conduct in question had involved financial issues, such a trust account breaches or the practitioner’s neglect of a client’s matter.

[30] Affidavit of the respondent affirmed 1 March 2023 at [21]-[22]

51.Further, in this case the practitioner has said in his second affidavit that in 2017 he did not consider his actions were wrong. This reasoning was due to his primary obligation to his client which he considered prevailed over all else. Hence, the stressors he has highlighted do not appear to have had any bearing on this understanding.

52.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.[31]

The loss suffered by third parties due to the misconduct

[31] [2002] SASC 260 at [24]

53.The practitioner’s conduct in 2017 had significant implications for the lessor when guarantees given under the sublease could not be enforced due to the substitution of Hong Kong based directors. It resulted in proceedings being brought in the ACT Magistrates Court against the practitioner and his client.

Practice considerations

54.The practitioner’s submissions include that any suspension of his right to practice would have a significant impact on his 40 employees. As such, suspension is not in the public interest. He also said that the loss to Mandarin speaking clients if he was unable to practice for a period of time is not in the public interest.

55.The evidence filed by the practitioner includes an affidavit by his business partner, Alexander Wong.[32] Mr Wong detailed that in 2020, he and the practitioner merged their respective legal firms. He detailed having regular professional contact with the practitioner, including managing employee issues and second counselling matters. He added that the practitioner manages the IT and staff retention issues in the firm.

[32] Affidavit of Alexander Wong affirmed 1 March 2023

56.Mr Chin, a senior employee of the practitioner’s, said that the practitioner had a multi-cultural firm of 42 employees “with about half ethnic Chinese and other Asians”.[33]

[33] Affidavit of Victor Michael Norman Chin affirmed 1 March 2023 at [37]

57.In cross examination during this hearing, the practitioner conceded that several of his employees speak Mandarin. This is also represented on his firm’s website, sections of which the Tribunal was taken to during the hearing. The practitioner’s second affidavit details that there are several lawyers in his firm with unrestricted practising certificates. Given this and the practitioner’s business arrangement with Mr Wong, there appear to be options for his firm to continue to employ staff and provide legal services to Mandarin speakers if he was unable to practise for a period of time.

Deterrence

58.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.[34]

[34] Legal Services Commissioner v Smith [2014] QCAT 518 at [35], quoted in Council of the Law Society of the Australian Capital Territory v Legal Practitioner 201822 (Alveer Singh) [2019] ACAT 27 at [68]

59.This Tribunal found the practitioner guilty of professional misconduct after the part 1 hearing due to his dishonesty. It considers there needs to be significant deterrence for other practitioners to refrain from engaging in conduct of misleading fellow practitioners and the Law Society.

Sanction

60.The Tribunal considers the practitioner’s dishonesty in 2017 and 2020 was extremely serious. As detailed, it had significant impacts on a third party. The Tribunal is mindful of the practitioner’s limited legal experience at the time of the misconduct. However, it considers the nature of his conduct in 2017 and 2020 raises such a critical and clear requirement for legal practitioners to be honest, that his inexperience is not a significant factor in assessing sanction in this case.

61.The Tribunal is satisfied that the practitioner has gained insight into why his conduct was so serious and commends him for now appearing to have accessed support and advice from other experienced practitioners. This insight has come late in the piece.

62.As many earlier authorities discussed demonstrate, the importance of the public having full confidence in the legal profession and further, that other practitioners are deterred from engaging in dishonest conduct are important factors in deciding sanction too.

63.Taking all these factors into consideration, the Tribunal makes the following orders pursuant to section 425(3) of the LP Act:

(a)The practitioner is publicly reprimanded.

(b)The practitioner’s practising certificate is suspended for 12 months from 28 days after this decision is delivered.[35]

(c)The practitioner undertake a course in ethics approved by the Council within 12 months.

[35] This will allow the practitioner time to make any necessary arrangements

64.As noted by Senior Member Meagher in Chen, a case which raises some similarities with the present matter, this Tribunal does not consider that the supervision conditions proposed by the practitioner “adequately reflect the disapproval that should be demonstrated as a sign of the standards that the public should expect and that the profession should adhere to”.[36]

[36] Council of the Law Society of the ACT v Legal Practitioner 201920 (David Chen) [2020] ACAT 31 at [182]

65.On careful reflection it is also not considered that supervision of the practitioner’s practice will adequately address the concern raised in this case, being his honesty in dealings with third parties.

Costs

66.The practitioner pay the Council’s party/party costs of the proceedings up to the delivery of the stage 1 decision as agreed or as assessed.

67.The parties have 28 days from this decision’s delivery to file any written submissions with respect to the costs of the stage 2 hearing. A decision on the costs of the stage 2 hearing will be made in chambers.

……………………………

Senior Member M Brennan

Date(s) of hearing:	15 June 2023
Counsel for the Applicant:	Mr D Moujalli
Solicitors for the Applicant:	Thomson Geer
Counsel for the Respondent:	Ms C Webster SC
Solicitors for the Respondent:	Mills Oakley