Fittock v Legal Profession Conduct Commissioner (No 2)

The Full Court of the Supreme Court of South Australia considered an appeal by a legal practitioner against a finding of unprofessional conduct and a penalty imposed by the Legal Practitioners Disciplinary Tribunal. The dispute arose from the practitioner's engagement of a psychologist, Ms Koulos, to provide medico-legal reports for his personal injury clients. The practitioner argued that he was acting as an agent for his clients and was therefore not personally liable for Ms Koulos' fees, particularly in circumstances where the clients were on a "no win no fee" basis and the firm's fee agreement stipulated that disbursements were the client's responsibility.

The central legal issues before the Court were whether the practitioner had engaged in unprofessional conduct by failing to adequately inform Ms Koulos of the payment arrangements for her services, and whether the Tribunal had erred in its imposition of a fine and an order for costs. Specifically, the Court had to determine the practitioner's personal liability for Ms Koulos' fees, considering the terms of the retainer, the firm's standard fee agreement, and the relevant professional conduct rules in force at the time. The Court also considered whether the practitioner's impecuniosity, as an undischarged bankrupt, should have influenced the Tribunal's decision regarding costs.

The Court reasoned that while the practitioner's conduct did not amount to deliberate misconduct or dishonesty, his failure to clearly communicate the payment arrangements to Ms Koulos, particularly in light of Rule 26 of the then-prevailing Rules of Professional Conduct and Practice, constituted unsatisfactory professional conduct. This rule required practitioners to either accept personal liability for fees to third parties or clearly inform them of the payment arrangements. The Court found that the practitioner's reliance on his fee agreement with his clients and his agency argument did not absolve him of this professional obligation. The Court also determined that impecuniosity is not a ground for refusing an order for costs in disciplinary proceedings, although the Commissioner indicated no intention to pursue payment unless the practitioner had the means.

Consequently, the Court set aside the Tribunal's finding of unprofessional conduct and the fine imposed, substituting it with a finding of unsatisfactory conduct. The Court administered a reprimand to the practitioner and upheld the order for the practitioner to pay the Commissioner's costs.