Law Society of South Australia v Rodda

THE LAW SOCIETY OF SOUTH AUSTRALIA v RODDA
[2002] SASC 274
Full Court: Doyle CJ, Williams & Besanko JJ

DOYLE CJ: The Law Society of South Australia has applied by summons for an order that the name of Mr Rodda be struck off the Roll of Legal Practitioners maintained under the Legal Practitioners Act 1981 (SA) (“the LPA”).
The Court is asked to exercise its inherent jurisdiction to make that order. That jurisdiction is expressly preserved by s 89(3) of the LPA.
An application to the Court to have a practitioner’s name struck off the Roll is usually appropriate only after a charge has been laid before the Legal Practitioners Disciplinary Tribunal, and the Tribunal has recommended that disciplinary proceedings be commenced against the practitioner. The laying of a charge under s 82 of the LPA, and the conduct of an enquiry by the Tribunal under that section, will ensure that the issues are properly identified and that all relevant facts are fully investigated.
However, in the present case it was appropriate for the matter to be brought before the Court without following that procedure. The relevant circumstances are adequately established by the affidavits tendered at the hearing. As will appear, the application turns largely on the fact that Mr Rodda has been convicted of certain offences, and in relation to that the Court has the benefit of detailed sentencing remarks. There is no dispute between the Law Society and Mr Rodda about the relevant facts.
Facts
Mr Rodda was admitted to practice in 1992. He is about 52 years of age. He has practised as a sole practitioner since about 1998. His last practising certificate expired at the end of the year 2001.
On 22 February 2001 Mr Rodda was charged on information on four counts of indecently assaulting MT, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for each of these offences is imprisonment for eight years, as the alleged victim was more than 12 years of age. After several remands Mr Rodda indicated that he would plead guilty to certain counts. A fresh information containing three counts was filed, and Mr Rodda then pleaded guilty to two counts in March 2002. On 18 April 2002 the Magistrates Court sentenced Mr Rodda to imprisonment for 18 months. That sentence had been reduced by six months on account of the plea of guilty. The Magistrate suspended the sentence upon Mr Rodda entering into a bond for a period of two years, a condition of the bond being that he be of good behaviour and undergo supervision and treatment.
What follows is taken from the Magistrate’s sentencing remarks.
The offences occurred at Mr Rodda’s office in Adelaide. In early 1999 Mr Rodda struck up a friendship with a group of school girls who regularly waited at a bus stop outside his office. He began to invite them into his office, and to give them confectionary and soft drinks. After a while MT was the only one that continued this contact. She was described by the Magistrate as “lacking in self-esteem and hence very vulnerable.” Things progressed to the stage that Mr Rodda would give MT gifts, and hug her when she left. The first count to which Mr Rodda pleaded guilty was based on an incident between July and September 2000, when Mr Rodda kissed MT on the lips and put his tongue into her mouth. She realised that he was sexually interested in her, but continued to see him, although less often. There was also some correspondence between Mr Rodda and MT. Some of the correspondence from Mr Rodda to MT contained statements which the Magistrate described as “sexual references.” The second count related to an incident between October and December 2000 when Mr Rodda briefly touched MT’s breast on the outside of her clothing. Some time after that the police became involved, but not as a result of a complaint by MT.
The Magistrate accepted a submission that Mr Rodda was not “a sexual predator with a pre-disposition for committing such offences on minors.” The Magistrate received a report from a psychologist, which said that Mr Rodda had acknowledged that his actions were not appropriate. The psychologist said that Mr Rodda had “an immature personality and very poorly developed social skills.” Mr Rodda was receiving treatment from the psychologist. The Magistrate sentenced Mr Rodda on the basis that he had learnt his lesson, would seek appropriate professional help and was unlikely to offend again. He had no significant prior convictions, and was otherwise of good character. The Magistrate noted that it had taken some time for Mr Rodda to plead guilty, and said that he “partially co-operated with the authorities.”
A further report from the same psychologist was tendered to this Court. The report states that Mr Rodda had “come to understand” the possible long term harmful effects of his behaviour on MT. The report refers to “a number of long standing personality deficits that Mr Rodda exhibited.” The report explains how these could affect Mr Rodda’s behaviour. The report says that he had “difficulty with personal boundaries.” The report refers to treatment being received by Mr Rodda and says that he “appears to be beginning to understand the meaning and causes of his behaviour.” The psychologist states that after about two years he was reasonably confident that “more consistent and appropriate social functioning will be the norm.”
Three further matters are established by the affidavit filed by the Law Society.
On 11 October 2001 the Legal Practitioners Conduct Board reprimanded Mr Rodda, after finding “evidence of unprofessional conduct on the part of the practitioner which was relatively minor.” This related to delay in seeking a grant of Probate for a client.
The affidavit also established that although Mr Rodda has not had a practising certificate since 1 January 2002, and despite several clear warnings that he should not hold himself out as a practitioner, on two occasions during February 2002 Mr Rodda appeared before a Judge of this Court on a relatively short application in the criminal jurisdiction. On each occasion he appeared as if he were entitled to practise. On a third occasion he appeared before a different Judge who questioned his right to appear, and Mr Rodda said that he then appeared as a friend of the accused.
On 25 March 2002 Mr Rodda filed an Amended Defence in an action in the Magistrates Court. In the Defence he is described as the solicitor for the defendant. He appears to have signed the Amended Defence.
Practising without a certificate
I find that on the two occasions which Mr Rodda appeared before a Judge of this Court he was guilty of unprofessional conduct in practising the profession of the Law without being entitled to do so. He appeared and participated in the proceedings as if he was a practitioner. He did not disclose to the Judge that he did not have a practising certificate. As I have said, Mr Rodda had been given explicit warnings that he could not practise the law. At the prompting of the Court Mr Rodda filed an affidavit offering an explanation for his behaviour. Mr Rodda says in his affidavit that he acted as he did to assist a prisoner whose needs were pressing, and that Mr Rodda received no financial gain. No further explanation was offered. I am prepared to accept that this is how Mr Rodda saw things, but the explanation is not adequate. Mr Rodda apparently thought that it would take too long to obtain a grant of legal aid. However, there is no indication that the matter was so urgent that it could not be delayed for a short time, to obtain a grant of legal aid. Mr Rodda offers no explanation for his failure to declare his position to the Judge. This is serious misconduct. Mr Rodda’s explanation is indicative of an inadequate understanding of his responsibilities. The same comment applies to the filing of the Amended Defence. His affidavit states that the time had come for the pleading to be filed, and “I must just have signed it and filed it ….” This is a cavalier approach to take, both then and now.
However, I do not consider that this misconduct would, of itself, warrant removal of his name from the Roll of Practitioners. If this was the only matter before the Court it would probably suffice to order that Mr Rodda’s right to practise be suspended for a period of time, to bring home to him the seriousness of his conduct. The casual approach which he has taken to the issue would certainly require something like that. It is clear that he does not appreciate the seriousness of his conduct. I add that I make no finding as to whether Mr Rodda tried to conceal his involvement in legal practice from the officers of the Law Society. Be that as it may, because the other matter before the Court is more serious, I now turn to that.
Before I do so I should make the point that I have made the finding of unprofessional conduct although no charge or allegation to that effect has been formulated by the Law Society in its summons, or in its affidavit. It is desirable that that be done in all cases. In the present case the facts alleged are clear and presented fairly concisely. Counsel for Mr Rodda admitted specifically that Mr Rodda had acted “in capacities only appropriate for a practitioner holding a current practising certificate.” His affidavit confirms that concession. But it is important, to avoid any possible confusion, that if an allegation of unprofessional conduct is made that allegation should be made clearly, and the basis upon which it is made should be identified clearly. In this particular case the failure to do so has not given rise to any uncertainty or any possible prejudice to Mr Rodda. But the risk of that arising is such that, as a matter of good practice, the allegation of unprofessional conduct should always be made in clear and precise terms.
The two offences
I turn now to the two criminal offences and the two convictions. Once again, no charge of unprofessional conduct has been formulated in respect of these convictions. However, the convictions, and the facts upon which they are based, are clearly capable of constituting unprofessional conduct. That term is defined in s 5(1) of the LPA, and the defined meaning includes:
“(a)an offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by Law …”.
Alternatively, the offences and the conduct are clearly capable of leading to the conclusion that Mr Rodda is not a fit and proper person to be a legal practitioner. At the hearing before us it was clear that the Law Society sought the removal of Mr Rodda’s name from the Roll on one or other basis, and I consider that there is no reason why this Court should not proceed on that basis.
The general approach to be taken in a matter like this is well established. I take the liberty of repeating what I said in The Law Society of South Australia v Murphy (1999) 201 LSJS 456 at 460-461:
“In dealing with a charge of unprofessional conduct, the Court acts in the public interest, and not with a view to punishment: New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184; Wentworth v NSW Bar Association (1992) 176 CLR 239 at 250-251. The Court is concerned to protect the public, not to punish a practitioner who has done wrong, although of course the removal of the practitioner’s name from the Roll will operate as a punishment. The Court acts to protect the public and the administration of justice by preventing a person from acting as a legal practitioner, and by demonstrating that the person is, by reason of his or her conduct, not fit to remain a member of a profession that plays an important part in the administration of justice and in which the public is entitled to place great trust.”
A little later in my reasons (at 461) I said:
“By allowing a practitioner to remain on the Roll of Practitioners, the Court holds the practitioner out as a fit and proper person to practise. There is a certain incongruity in allowing a practitioner to remain on the Roll even though it has been demonstrated that the practitioner is not a fit and proper person to remain a practitioner. However, there are decisions indicating that in some circumstances an order suspending a practitioner’s right to practise will be adequate, even though for the time being the practitioner cannot be held out as a fit and proper person to remain a practitioner : see Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 and Re B [1986] VR 695 at 705.”
The ultimate question is whether the material before the Court demonstrates that Mr Rodda is not a fit and proper person to remain a legal practitioner, and the ultimate question cannot be stated any more precisely than that; Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 288 Fullagar J, at 297-298 Kitto J; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441 and 444 Mahoney JA.
In a case concerned with conduct or misconduct by a practitioner in the course of the practice of the Law, attention will naturally focus on the light that conduct or misconduct throws on the practitioner’s competence, understanding of, and adherence to, professional standards. Even in such cases attention is not necessarily confined to these matters. Defects of character may also be revealed that will be relevant to the ultimate question to be considered.
In the present case the Court is concerned with criminal conduct that did not arise in the course of Mr Rodda’s professional practice. The fact that the offences were committed in his office is a mere accident. There is no indication in the material before the Court that Mr Rodda’s status as a practitioner had anything to do with his relationship with MT. The case is one in which a mature man has taken advantage of the immaturity and vulnerability of a young female for his sexual gratification.
In a case like this, where the Court’s concern is with criminal conduct unconnected with the practitioner’s profession, and with the defects of character or personality that are revealed by that conduct, issues of professional competence in the narrow sense do not arise. Nevertheless, the Court must still consider whether the conduct and the convictions affect Mr Rodda’s capacity to act as a practitioner, and how that conduct and those convictions would reflect on the legal profession were Mr Rodda permitted to remain a member of it. Two points were made in Ziems that are worth bearing in mind. First, as Fullagar J said (at 290), professional misconduct will usually have “a much more direct bearing on the question of a man’s fitness to practise” than personal misconduct. And, Kitto J said (at 298), while a conviction may “carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails”, nevertheless, there will be many kinds of convictions “which do not spell unfitness for the Bar …”.
The offences in question do not reflect directly on Mr Rodda’s capacity to act as a practitioner. They do not reveal any lack of competence, or any lack of understanding of the law.
But the offences are of a kind that damage the ability of Mr Rodda to maintain the relationship with other members of the profession that is an essential aspect of being a practitioner. Other practitioners would not readily place trust and confidence in a practitioner who has committed such a serious offence. Another practitioner could not assume that Mr Rodda accepts the high standard of conduct which membership of the legal profession requires. In the words of Dixon CJ in his dissenting judgment in Ziems (at 285-286), Mr Rodda could not “command the confidence and respect” of the Court or of his fellow practitioners.
More significantly, the offences indicate that Mr Rodda lacks qualities that are essential for the conduct of legal practice. The offences involve a serious breach of the law, even though they might be regarded as impulsive and isolated. Mr Rodda took advantage of a vulnerable and immature young woman. That being so, Mr Rodda cannot be regarded as a person in whom clients, especially vulnerable persons, could place their complete trust. Nor could he command the respect of clients.
There is another factor. The reputation and standing of the legal profession in the public eye are important. Public confidence and trust in the legal profession is important to the effective functioning of the profession. That confidence and trust rest in part on the reputation and standing of the profession. The public could not view with respect, and have complete confidence in, a person with such serious and recent convictions. Were the Court to continue to hold Mr Rodda out as a fit and proper person to remain a member of the profession, the standing of the profession as a whole would suffer. The public would rightly doubt the standards of a profession which permitted a person who has recently committed such serious offences to remain one of its members.
In summary, Mr Rodda’s offences damage his ability to maintain professional relationships with other members of the profession. They disclose character defects that affect his capacity and fitness to be a practitioner. The public could not be expected to put complete trust in him. The offences are of a nature and seriousness such that the public would rightly consider that a profession that occupies the position of the legal profession, and maintains the high standards that it does, could not properly continue to regard Mr Rodda as a member of the profession.
For those reasons I am satisfied that the offences amount to professional misconduct. In the alternative, and the result is the same, I am satisfied that the offences are such that Mr Rodda is not a fit and proper person to remain a legal practitioner.
Conclusions
For those reasons, I would order that Mr Rodda’s name be struck off the Roll of Legal Practitioners maintained by the Court.
WILLIAMS J: In my opinion the repeated warnings given to Mr Rodda by officers of the Law Society were such that his conduct in continuing to practise without a practising certificate is to be treated as serious although he may not have been expecting monetary gain from his instructions. Even if this was the only matter of complaint I would regard the conduct as sufficient to require the removal of Mr Rodda’s name from the Roll of Practitioners.
Mr Rodda’s sexual offending against a young female apparently occurred at his place of business but otherwise did not involve the use of his position as a practitioner. Nevertheless the practitioner’s conduct discloses personal failings which demonstrate that Mr Rodda is unfit to be held out as a person of good standing. Mr Rodda’s psychiatric problems are complex and upon my assessment the public interest requires that he be struck off as a legal practitioner.
I agree with the orders proposed by the Chief Justice.
BESANKO J: I agree that an order should be made that Mr Rodda’s name be struck off the Roll of Legal Practitioners maintained by the Court. I agree with the Chief Justice that the commission of the two offences and the circumstances surrounding the commission of the offences are such that the order should be made.
In my opinion, the question whether the order is also warranted on the other ground relied upon by The Law Society, namely, practising without a practising certificate, is finely balanced. The evidence put forward by The Law Society on this ground establishes the following:
1.The practitioner practised without a practising certificate from 1 January 2001 to 13 March 2001. The practitioner appeared before the Council Disciplinary Committee of The Law Society on 13 March 2001 and explained why he had failed to renew his practising certificate. He renewed his practising certificate on that day or the following day.
The matter was referred to the Legal Practitioners Conduct Board, but no action was taken by that body.
2.In January 2002 the Director of Professional Standards of The Law Society became aware that the practitioner did not have a practising certificate for the calendar year 2002.
2.1On 10 January 2002 Ms S R Bishop, a legal officer in the Professional Standards section of The Law Society, and Ms K Lehmann, an administrative assistant at Professional Standards, attended the offices of the practitioner at 33 Pirie Street, Adelaide in the State of South Australia. Ms Bishop advised the practitioner that as he did not have a current practising certificate he should not hold himself out as a practitioner. She pointed out to the practitioner that he did not have professional indemnity insurance. The practitioner told Ms Bishop and Ms Lehmann that he was, “trying not to practise the law”. The practitioner told Ms Bishop and Ms Lehmann that he had only two current clients and arrangements were made for him to write to those clients advising them that they should instruct other solicitors.
2.2On 14 January 2002 Ms Bishop and Ms Lehmann again attended the offices of the practitioner. The practitioner advised them that he was not practising the profession of the law. In their presence he typed a letter to Mr D Milne, the Legal Practitioner’s Registrar. The letter was received by Mr Milne on 14 January 2002. It read:
“I wish formally to advise that since the beginning of this Calendar Year I have not been practising the profession of Law; nor is it my intention to do so in the immediate future.
As I have had no transactions and a zero balance in my trust account since May 2001, I propose closing this account as of today.
My accountant is away interstate until later this month, so I seek approval to have the audit from 30 June 2000 until closure, as the final audit.”
2.3On 29 January 2002 Ms Bishop and Ms Lehmann again attended the offices of the practitioner. They observed that the practitioner had covered over the sign at his offices to remove all reference to himself as a solicitor.
On 6 February 2002, Ms Bishop had a telephone conversation with the practitioner, and she asked him to take steps by 8 February 2002 to transfer two client files which he had advised were still in his possession. Ms Bishop asked the practitioner to contact her by telephone the next day. He did not do so. The practitioner did contact The Law Society by telephone on 25 February 2002. He left a message with Ms Lehmann to the effect that one of the client files had sorted itself out, and the other client had taken the file.
2.4On 4 March 2002 Ms Bishop and Ms D Watkins, Director of Professional Standards, attended the offices of the practitioner. Ms Bishop again told the practitioner that he must cease doing any type of work which created a perception that he was practising including attending in Court.
The Law Society wrote to the practitioner by letter dated 27 March 2002 formally advising him of the requirements of s 21 of the Legal Practitioners Act 1981.
3.Despite these warnings it appears clear that the practitioner continued to practise the profession of the law.
3.1On 1 February 2002 an Application came before a single Judge of this Court concerning the detention of a Mr Marek Wieslaw Mucha. The practitioner appeared for Mr Mucha. He appeared as Mr Mucha’s counsel, and he did not advise the Court that he did not hold a current practising certificate.
3.2The matter came on again before the same Judge on 7 February 2002. Again the practitioner appeared as Mr Mucha’s counsel, and again he did not advise the Court that he did not hold a current practising certificate. As part of the Application, the prosecution called a Dr N P Nambiar. Dr Nambiar was cross-examined by the practitioner.
3.3On 26 March 2002 Mr Mucha’s matter came on before a different Judge of this Court. The practitioner announced his appearance for Mr Mucha. It was at that point that the Judge raised with the practitioner the fact that he did not have a practising certificate. The practitioner then sought to appear as a friend of Mr Mucha.
3.4The Law Society appointed a manager to the practitioner’s practice on 4 April 2002. The manager took possession of certain files. On one file involving a dispute between a Ms Mooney and a Mr White there was an Amended Defence to an action in the Magistrates Court (Civil Division) South Australia. The Amended Defence is signed by the practitioner and dated 25 March 2002. It identifies the practitioner as the solicitor for the defendant.
3.5On 4 June 2002 Ms Sue Pickering from Glenside Hospital contacted Mr Milne enquiring about the practitioner who she said she understood to be deregistered. Mr Milne advised Ms Pickering that the practitioner did not have a current practising certificate and that he had no right to practise as a legal practitioner.
The evidence is unclear as to precisely what conduct the practitioner was engaging in in connection with his visits to the Glenside Hospital, and in those circumstances I would not make a finding against him in relation to those visits.

These were the facts before the Court when The Law Society’s Application came on for hearing on 11 June 2002. At that point, the practitioner had not placed any evidence before the Court other than medical evidence. His counsel made a number of submissions relevant to the allegation that he had knowingly practised the law without a practising certificate.
The Court expressed the view that if it was being asked to act in accordance with the submissions, an affidavit of the practitioner should be filed.
On 20 June 2000 an affidavit of the practitioner was filed.
In relation to Mr Mucha’s matter the practitioner says that he was assisting Mr Mucha in an emergency without any thought of receiving a financial benefit.
In relation to the Amended Defence filed in the matter of Mooney v White the practitioner says,
“In the event, it seems that the moment must have arrived when something had to be put in to the Court on his behalf, and the facts (to my mind) speaking for themselves so strikingly, I must just have signed it and filed it as shown. I wasn’t expecting any payment from him.”
Finally, he gives an explanation as to his relationship with a patient at the Glenside Hospital.
To my mind the affidavit is unsatisfactory in many respects. It contains a great deal of material which is of little, if any, relevance. It does not fully address all of the evidence put forward by The Law Society. At best for Mr Rodda, it suggests a disturbing lack of appreciation by him of his legal and professional obligations.
The circumstances surrounding a breach of s 21 of the Act may vary considerably. Some breaches will be inadvertent and relatively minor. The circumstances surrounding Mr Rodda’s breach, including the clear warnings he was given by The Law Society, give rise to a serious breach of his obligations. However, I am left with a doubt in my mind as to whether the extreme sanction of striking off is warranted, and I think I should resolve that doubt in favour of the practitioner.
For these reasons I agree with the Chief Justice that if this was the only matter before the Court it would probably suffice to order that Mr Rodda’s right to practise be suspended for a period of time. A reasonably substantial period of suspension would have been called for.

[2002] SASC 274

12 August 2002