Law Society of the ACT v Stubbs
[2017] ACTSCFC 3
•9 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
FULL COURT
Case Title: | Law Society of the ACT v Stubbs |
Citation: | [2017] ACTSCFC 3 |
Hearing Date: | 9 August 2017 |
DecisionDate: | 9 August 2017 |
Before: | Murrell CJ, Mossop and Collier JJ |
Decision: | Defendant’s name to be removed from the roll of practitioners. Defendant to pay the plaintiff’s costs. |
Catchwords: | PROFESSIONS AND TRADES – LAWYERS – Complaints and discipline – application to remove practitioner from the roll of practitioners following ACAT recommendation – professional misconduct – unsatisfactory professional conduct – false representations to Law Society – acting contrary to client instructions – misleading the Court – whether defendant is a fit and proper person |
Legislation Cited: | Evidence Act 2011 (ACT) s 91(1) Legal Profession Act2006 (ACT) ss 11(1)(c), 22(1), 431(3), 425(3), 462 |
Cases Cited: | A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1; 216 CLR 253 Council of the Law Society of the ACT v Legal Practitioner [2010] ACAT 46 The Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 50 |
Parties: | Law Society of the ACT (Plaintiff) Stephen Raymond Stubbs (Defendant) |
Representation: | Counsel Mr N Beaumont SC with Ms T Power (Plaintiff) Mr J O’Keefe (Defendant) |
| Solicitors Phelps Reid Lawyers (Plaintiff) John O’Keefe (Defendant) | |
File Number: | SC 543 of 2010 |
THE COURT:
The application
The defendant is admitted as a legal practitioner under the Legal Profession Act2006 (ACT) (LPA).
The Law Society of the Australian Capital Territory (the Law Society) applies pursuant to s 431(3) of the LPA for the defendant’s name to be removed from the local roll of practitioners. The application is not opposed.
Pursuant to s 425(3) of the LPA, on 4 August 2010 the Australian Capital Territory Civil and Administrative Tribunal (the Tribunal) ordered that the defendant’s local practising certificate be cancelled forthwith and recommended that his name be removed from the local roll: Council of the Law Society of the ACT v Legal Practitioner [2010] ACAT 46. The Tribunal proceedings were the subject of unsuccessful appeals to the Supreme Court and the Court of Appeal: Legal Practitioner v Council of the Law Society of the ACT (No 2) [2014] ACTSC 9; Legal Practitioner v Council of the Law Society of the ACT [2015] ACTCA 20.
Following a second set of proceedings, on 23 August 2011 the Tribunal made a second recommendation that the defendant’s name be removed from the local roll: Law Society of the ACT v Legal Practitioner [2011] ACAT 57. These proceedings were the subject of unsuccessful appeals to the Supreme Court and the Court of Appeal: Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 13; Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6.
In a third set of proceedings, on 15 May 2012 the Tribunal made a third recommendation that the defendant’s name be removed from the local roll: Council of the Law Society of the ACT v Legal Practitioner S [2012] ACAT 29. These proceedings were the subject of an unsuccessful appeal to the Supreme Court: The Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 50. An appeal to the Court of Appeal was abandoned.
Pursuant to s 431(3) of the LPA, if the Tribunal makes an order recommending that the name of a local lawyer be removed from the local roll, a copy of the order may be filed in the Supreme Court. The Court may order the removal of the name from the roll. In these proceedings, copies of the three relevant orders have been filed.
The current amended application under s 431(3) of the LPA is supported by affidavits of Robert Anthony Reis, the Professional Standards Manager employed by the Law Society, sworn on 17 August 2010, 27 November 2015, 26 June 2017 and 17 July 2017.
Tribunal proceedings
First Tribunal proceedings
LP 6 of 2008 (Client N)
During an investigation by the Law Society into a complaint made by the defendant’s former client, N, the defendant falsely represented that he had had a personal relationship with N that predated his retainer. He also falsely represented that he had acted for her pro bono when in fact the matter had been funded by Legal Aid.
The Tribunal found that the defendant’s conduct demonstrated dishonesty and a serious lack of integrity and that his attempt to cover up and/or minimise the seriousness of his conduct when dealing with the Law Society was “preposterous”.
10. The Tribunal found that the conduct amounted to unprofessional conduct.
LP 1 of 2009 (Client C – Grounds 1 and 2)
11. Contrary to the instructions of his client, C, the defendant consented to the Supreme Court setting aside a restraining order. Later, he falsely represented to the Law Society that C had been present in court and had instructed him to consent to the setting aside of the order.
12. The Tribunal found that the defendant’s conduct of acting contrary to instructions went to the very heart of the solicitor/client relationship and that falsely representing to the Law Society that instructions had been given showed a lack of candour and frankness in the defendant’s dealings with his professional body. The conduct demonstrated that the defendant could not be trusted by his clients, his colleagues, the public, his professional association or the courts.
13. The Tribunal found that the conduct amounted to professional misconduct.
LP 1 of 2009 (Client C – Ground 3)
14. The defendant attempted to intimidate a potential witness from giving evidence in disciplinary proceedings against him.
15. The Tribunal found that, of itself, the defendant’s attempt to deter the witness from giving evidence in the disciplinary proceedings justified a finding that the defendant was not fit and proper to remain on the roll. The Tribunal regarded this finding as the gravest of all the findings made against the defendant in the first proceedings. The Tribunal stated that the conduct disclosed fundamental flaws in the defendant’s character of “dishonesty, disloyalty and a manifold contempt for his ethical duties to the Society, his clients and the administration of justice.”
16. The Tribunal observed that the defendant continued to deny his misconduct and showed no insight into the serious nature of the conduct, which went to the very heart of the duties and obligations of a legal practitioner.
17. The Tribunal was comfortably satisfied that the appropriate penalty for the matters addressed in the first proceedings was to order that the defendants’ practising certificate be cancelled forthwith and to recommend that his name be removed from the roll of practitioners.
Second Tribunal proceedings.
18. The defendant purported to appear for V at the hearing of a bail application in the Magistrates Court. He had no instructions to do so. When the Law Society investigated the complaint, the defendant misrepresented that, prior to appearing, he had been instructed by V in the cells and that he held a signed Legal Aid application to appear for her.
19. The Tribunal stated that, although the Magistrate was not significantly misled, any misleading of a court was a serious matter.
20. The Tribunal found that the defendant lacked an appreciation of the importance of his professional obligations to the courts and the Law Society. The Tribunal concluded that his actions had involved dishonesty and deliberate deception.
21. The Tribunal found that the conduct amounted to professional misconduct and recommended that the defendant’s name be removed from the roll of local practitioners.
Third Tribunal proceedings
22. The defendant falsely represented to a third party that it had erroneously caused a credit reporting agency to adversely list his client, threatened legal proceedings if the listing was not reversed, and offered a financial inducement of $2000 to have the listing reversed. He also offered an employee of the third party a financial inducement of $500 if she would reverse the credit listing "without telling the boss".
23. The Tribunal found that the defendant failed to appreciate his professional obligations and failed to grasp the serious nature of his misconduct.
24. The Tribunal considered that the offers of financial inducement amounted to professional misconduct and that the other conduct constituted unsatisfactory professional conduct. The Tribunal recommended that the defendant's name be removed from the roll.
Criminal convictions
25. Following a jury trial in December 2016, the defendant was convicted of 14 counts of dishonestly obtaining property by deception. Eleven counts related to dishonestly obtaining a total of $25 620 from a client's mother by telling her that he was not in receipt of a Legal Aid grant. Three counts related to obtaining $4013 in Legal Aid grants in relation to the same matter by telling the ACT Legal Aid Commission that he was not in receipt of private funds for the matter.
26. In March 2017, the defendant was sentenced to three years and one month’s imprisonment.
27. The defendant has appealed against the convictions and sentences. The appeal is to be heard in November 2017.
28. Although the Law Society referred to the convictions and sentences, it does not seek to rely upon them in order to establish that the defendant is not a fit and proper person to be a member of the legal profession.
Consideration
29. The Law Society relies on the Court's statutory jurisdiction to discipline legal practitioners under the LPA. The statutory jurisdiction is separate from the Court's inherent jurisdiction, which is preserved by s 462 of the LPA: Law Society of the Australian Capital Territory v Burns [2012] ACTSC 91 at [8]–[18].
30. In exercising its statutory jurisdiction, the Court does not merely engage in an administrative process but independently decides whether it should accept the Tribunal's recommendation of removal from the roll: Legal Services Commissioner v Rushford [2012] VSC 632; 38 VR 141 at [13].
31. The Court’s disciplinary jurisdiction is protective, not punitive: A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1; 216 CLR 253 at [12] (Solicitor v Law Society of NSW); Council of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150.
32. The issue for the Court is whether the defendant is a fit and proper person to remain on the local roll: Solicitor v Law Society of NSW at [15].
33. Honesty and integrity are essential characteristics in a legal practitioner because clients must feel secure when entrusting their personal affairs to legal practitioners, fellow practitioners must be able to depend on their colleagues, the judiciary must have confidence in legal practitioners, and the public must have confidence in the profession as a whole: New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at [19]–[20]; Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 at [26].
34. The defendant has repeatedly demonstrated serious dishonesty and a fundamental lack of integrity in his dealings with courts, clients, the Law Society, and a third party. He has not demonstrated insight, remorse or contrition in any of the numerous proceedings before the Tribunal or this Court.
35. We accept the Law Society's submission that the findings of the Tribunal demonstrate conclusively that the defendant is not a fit and proper person to be entrusted with the important duties and grave responsibilities associated with being a legal practitioner.
36. Pursuant to s 431(3) of the LPA, we direct that the defendant's name be removed from the roll.
Costs
Submissions
37. In relation to the question of costs, the defendant submits that the Court should make no order for costs on three bases:
(a)the defendant has never filed any material in response to the Law Society’s application;
(b)on 18 July 2017, the defendant gave an indication to the Law Society that the application would not be opposed; and
(c)there was nothing that the defence could have done to minimise the time and resources expended by the Law Society. For example, it was not a case where the defendant could have cooperated by signing consent orders.
In summary the defendant submits that he has not impeded the Law Society’s making of the application and has not submitted at any stage that the orders should not be made.
38. The Law Society submits that the Court should award costs in its favour as it had a statutory duty to bring the proceedings.
Consideration
39. The defendant now submits that he does not oppose the making of the order. However, over a number of years and until very recently, the defendant contested the factual bases relied upon by the Law Society by appealing the decisions of the Tribunal. The most recent appeal was dealt with in March of this year.
40. The defendant has also made a number of successful applications to vacate these proceedings. Again, this shows it is only recently that the defendant has decided to consent to removal from the roll.
41. These proceedings were necessitated by the defendant’s misconduct on numerous occasions. The material that was filed in support of the application is not excessive. It consists of the various decisions of the Tribunal and this Court that may be relevant to the Court exercising its discretion on the application.
42. The Law Society has given an indication of its costs. It will be a matter for the assessor to determine whether those costs are reasonable. It is not apparent to the Court that the Law Society proposes to make an unreasonable claim.
43. The defendant should pay the plaintiff’s costs.
| I certify that the preceding forty-four [43] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop and Justice Collier. Associate: Date: 31 August 2017 |
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