LAW SOCIETY of the ACT v The LEGAL PRACTITIONER (James Millea) (Occupational Discipline)
[2009] ACAT 16
•19 June 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LAW SOCIETY of the ACT v The LEGAL PRACTITIONER (James Millea) (Occupational Discipline) [2009] ACAT 16
LP 6 of 2007
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PROFESSION –Legal Profession (Solicitors) Rules 2007 – rule 1.2 – failure to act honestly, fairly and with competence and diligence in the service of a client – rules 39.1 and 39.2 – failure to respond when required – unsatisfactory professional conduct
Legal Profession Act 2006 (ACT), s425
ACT Civil and Administrative Tribunal Act 2008 (ACT)
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT)
Legal Profession (Solicitors) Rules 2007 (ACT), rules 1.2, 39.1, 39.2
Briginshaw (1938) 60 CLR 336
Tribunal: Mr B Loftus Member, Presiding
Mr A Van Arkel Member
Date of Orders: 29 April 2009
Date of Reasons for Decision: 19 June 2009AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) LP 6 of 2007
BETWEEN:
THE LAW SOCIETY OF THE ACT
Applicant
AND:
THE LEGAL PRACTITIONER
Respondent
TRIBUNAL: Mr B Loftus Member
Mr A Van Arkel Member
DATE: 29 April 2009
ORDER
Being satisfied that James Millea is guilty of unsatisfactory professional conduct the Tribunal orders that:
1) James Millea shall be reprimanded.
2) The reprimand will be made public.
3) The solicitor is to pay the Law Society’s costs on a party-party basis at two thirds of the Supreme Court scale, as agreed between the parties or failing such agreement as taxed by the Supreme Court’s taxing officer in accordance with the rules of that Court.
4) The non-publication order previously made by President Crebbin shall remain in force until expiry of the time for appeal or, if an appeal is made within time, until that appeal has been finally dealt with and subject to the orders of any appeal tribunal or court.
5) The name of the original complainant and any evidence which might tend to identify him are not to be published
…………………………….
Brian Loftus
Member
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) LP 6 of 2007
BETWEEN:
THE LAW SOCIETY OF THE ACT
Applicant
AND:
THE LEGAL PRACTITIONER
Respondent
REASONS FOR DECISION
This matter comes before the Tribunal as a result of a Notice of Complaint dated 3 October 2007. That date is prior to the commencement of the ACT Civil and Administrative Tribunal Act 2008 (ACT), however amendments to the Legal Profession Act 2006 (ACT) and the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT) make it clear that jurisdiction to hear this matter is now with the Tribunal. That was not demurred by the solicitors for both parties, notwithstanding that the original application purported to bring the matter before the Legal Practitioners Disciplinary Tribunal under superseded and amended legislation.
As a result of agreement between counsel for the Law Society and counsel for the solicitor and also as a result of argument before the Tribunal some amendments were made to the application. It is necessary to set out the content of the application to set the background of the matter and to indicate the case which the Law Society alleges. As amended, the crucial content of the application is as follows –
1. The Respondent is and was at all material times a barrister and solicitor of the Supreme Court of the Australian Capital Territory practising under the name and style of Millea Law and was the holder of an unrestricted practising certificate.
2. On or about 5 April 2005 Mr Ricky Tan (“Mr Tan”) instructed the Respondent to act for him in relation to a Domestic Relationship property settlement, proceedings having been commenced by Mr Tan’s former partner against him in the Supreme Court of the Australian Capital Territory (the “proceedings”).
3. In the course of proceedings the Respondent had on
eight[five] occasions failed to appear in Court on behalf of Mr Tan at various directions hearings.a) the directions hearings in the proceedings were those set down for
14 June 2005, 15 August 2005, 14 November 2005, 13 March 2006, 1 May 2006, 21 August 2006and on three other occasions the dates of which will be provided at the hearing;b) at no stage had Mr Tan instructed the Respondent not to appear;
c) Mr Tan was not aware that the Respondent had failed to appear; and
d) the Respondent had not made prior arrangements with the plaintiff’s solicitors, Messrs Colquhoun Murphy, to appear and mention the matter on behalf of this client.
4. The Applicant shall rely upon the letters from Messrs Colquhoun Murphy to the Respondent and dated 21 June 2005, 17 November 2005, 29 March 2006 and 1 May 2006 respectively.
5. As a result of the Respondent not appearing on each of those occasions he:
a) failed to diligently and in a timely manner progress the matter on his client’s behalf;
b) caused the compliance with the orders made at those and earlier directions hearings to be delayed or frustrated; and
c) placed Mr Tan at risk of having adverse cost orders made against him.
6. On or about 25 September 2006 Mr Tan terminated the retainer with the Respondent and in due course instructed another firm of solicitors.
7. Following receipt of Mr Tan’s initial letter of complaint of 8 November 2006, the Professional Standards Director on behalf of the Applicant wrote to the Respondent on 10 November 2006 requesting his comments. Although that letter referred generally to the Legal Profession Rules, it did not specifically set out the express requirements of Rule 41.2 of the Professional Conduct Rules (the “Rules”). The Applicant shall rely upon the whole of the Respondent’s letter dated 10 November 2006.
8. The Applicant, represented by the President and the Professional Standards Director, met in person with the Respondent on 1 December 2006 and provided him with an opportunity, among other things, to explain his conduct in relation to this matter.
9. The Professional Standards Director wrote further to the Respondent on 6 December 2006, noting he had not responded and, on this occasion, expressly setting out the provisions of Rules 41.1 and 41.2 and stating that the Respondent is directed to respond to the Applicant by 14 December 2006.
10. The Respondent again failed to respond by the due date and, in consequence, the Professional Standards Director forwarded a further letter to him dated 18 December 2006 with a direction to respond pursuant to Rule 41.2. This letter pointed out that this was the third occasion upon which he had been asked to respond to Mr Tan’s compliant. The Applicant shall rely upon the whole of the letters dated 6 December 2006 and 18 December 2006 respectively.
11. At all material times the Respondent’s address was Millea Law, GPO Box 2931, Canberra 2006 being the official mail address as advised to the Applicant.
Professional Conduct Rules
12. By s585 of the Legal Profession Act the Rules constitute binding obligations on practitioners.
13. Rule 1.2 provides as follows:
“A practitioner must act honestly, fairly and with competence and diligence in the service of a client, and should accept instructions and retainer to act for a client, only when a practitioner can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness.”
14. Rule
41.1[39.1] provides as follows:“Subject only to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society.”
15. Rule
41.2[39.2] provides as follows:“A practitioner should respond within a reasonable time and in any event within fourteen days (or such extended time as the Society may allow) to any requirement of the Society for comments or information in relation to the practitioner’s conduct or professional behaviour and in doing so the practitioner should furnish in writing a full and accurate account of his or her conduct in relation to the matter.”
Charges
16. The Applicant contends that the conduct of the Respondent in failing on at least
eight[five] (substituted following argument) occasions to appear in Court on behalf of Mr Tan constituted a failure to act:a) with the requisite degree of competence and diligence expected of a practitioner of his experience in the service of his client; and/or
b) with reasonable promptness; and hence
constituted a breach of Rule 1.2
17. The Applicant contends that the Respondent’s failure to:
a) furnish in writing with fourteen days a full and accurate account of his conduct in response to the letters from the Professional Standards Director dated 10 November 2006, 6 December 2006 and 18 December 2006 respectively;
and/orb) give any adequate response to the Applicant when offered the opportunity to do so orally at the meeting with the Applicant’s representatives on 1 December 2006(deleted following argument)constitutes a breach of Rules
41.2[39.2]and in respect to b) above, in addition, a breach of Rule 41.1.18. The Applicant contends that:
a) either one or more of the breaches referred to in paragraphs 16 and 17 above amounts to unsatisfactory professional conduct; and
b) such conduct warrants the Disciplinary Tribunal making one or more orders under
s430[s425] of the Legal Profession Act 2006.The amendments to the renumbering of the rules, in paragraphs 14, 15, 17 and 18 were necessary because of recent amendments to the Professional Conduct Rules which were made following the making of the application. Those amendments were agreed by both sides.
The remaining deletions and amendments came about as a result of discussions between opposing counsel and orders made by the Tribunal during the course of opening arguments.
The application as amended above contains the allegations put by the Law Society and upon which the Law Society proceeded. The solicitors case rested upon two propositions –
a) that the solicitor had made a general arrangement with solicitors on the other side of the domestic relation property dispute to the effect that they would mention the matter on behalf of the solicitor and his client; and
b) that the solicitor had not failed to respond to the letters from the Law Society for the reason that he had not received those letters.
In essence the solicitors counsel dispute paragraphs 3 and 5 of the Law Society’s application and alleged reasonable excuse for failure to respond to the Law Society.
The Law Society tendered and relied upon affidavits of Robert Reis (Professional Standards Director of the Law Society), Robert Dearn (employed solicitor with Messrs Colquhoun Murphy), Sacha Wainwright (formerly a solicitor with Messrs Colquhoun Murphy) and Ricky Tan (formerly a client of the solicitor and the original complainant).
Mr Reis and Mr Dearn were not cross-examined although some of what they said in their affidavits was disputed by the solicitor’s counsel. It is unfortunate, for obvious reasons, that they were not cross-examined. The evidence contained in their affidavit supported the allegations in the Law Society’s application.
Ms Wainwright was cross-examined on the contents of her affidavit, as was Mr Tan. Some reference will be made to this later.
10. Also in evidence were two bundles of documents and three file notes from the solicitor’s file. The first bundle comprised Mr Tan’s original letter of complaint and various letters written by the ACT Law Society to the solicitor and to Mr Tan (with the exception of document H to which objection was taken and allowed) and the solicitor’s response to the Law Society by letter dated 9 March 2007. The second bundle contained file notes, letters and emails from the file of Messrs Colquhoun Murphy which were called upon by the solicitor’s counsel following and inspection by him of the Colquhoun Murphy file. The two bundles are in evidence as exhibits 1 and 2.
11. The solicitor had prepared an affidavit sworn 28 March 2008 but this was not tendered. However, he was cross-examined on it to some extent by counsel for the Law Society.
12. Ms Wainwright, who is now working in Adelaide, was examined by telephone. She stated that there was no general agreement to mention Mr Tan’s matter on behalf of the solicitor except as appeared in the file notes which were part of the bundle of documents. On cross-examination she was not shaken from this understanding. She relied upon the Colquhoun Murphy file and reports by Mr Dearn, who also worked for Colquhoun Murphy. The solicitor on the other hand stated that there was a “general arrangement” to the effect that Colquhoun Murphy would mention the matter on every occasion on which the matter came before the Court and he was not able to attend. He stated that this was done in the interests of saving costs to his client because he was at that time mainly operating out of Sydney. However, there was no documentation presented to the Tribunal which supported that there was a general arrangement.
13. The Tribunal finds that there was no such general arrangement and that there were at least four, possibly five occasions in which the solicitor failed to appear on behalf of his client in the domestic relations dispute in the Supreme Court. Such documentation that does exist tends to support this finding.
14. Mr Tan was cross-examined and it did become apparent that he was a difficult client but this, in the Tribunal’s view, does not excuse repeated failures to attend for his client at directions hearings in the Supreme Court.
15. It is not disputed by the solicitor’s counsel that the solicitor failed to respond to letters from the Law Society dated 10 November 2006, 6 December 2006 and 18 December 2006 promptly. His answer to his failure to respond is that he did not receive the letters until 16 January 2007 when he received them and more fully on 17 January 2007. He states that he became aware of those letters at the end of the Christmas holidays and in early January 2007 and not until then because they had been sent to his Canberra GPO Box. He states that Mr Reis became aware that he had moved to Sydney. Mr Reis denies this in his affidavit and was not cross-examined on that point. The solicitor agreed that he had asked Mr Reis not to send mail to his then present employers in Sydney. He also states that he advised Mr Reis of his private address in Sydney however he can not recall when that advice was given. In this regard he stated in cross-examination –
To be frank, I don’t know that I directed my mind to where the - the Society would write me. In the context of I have a Canberra office that does receive mail, yes. But I’m not sure whether it was that date or another date that I told Robert I was in Sydney and gave him an address. Whether I gave him the address, he knew I was in Sydney most of the time because I told him.
16. The Tribunal does not find this answer convincing and prefers the evidence of Mr Reis given in his affidavit which the solicitor’s counsel stated to be “non-controversial”.
17. Furthermore, the solicitor held an ACT practising certificate and was carrying on some business, albeit not much, in Canberra from an ACT address. It was not only reasonable, but perfectly proper that the Law Society should correspond with him at that address. If he experienced delays in receiving that mail it is the view of the Tribunal that those delays were of his own making. The Tribunal therefore finds that the allegations as set out in the amended application of the Law Society have been made out.
18. The solicitor’s failure to appear on the occasions referred to on behalf of his client constitutes, in the Tribunal’s opinion, a breach of Rule 1.2 of the Professional Conduct Rules of the ACT Law Society. His failure to respond on the occasions referred to and provided for, to account for his conduct to letters from the Law Society constitute, in the Tribunal’s opinion, a breach of Rule 39.2 of the Professional Conduct Rules. Breaches of the rules are regarded as most serious. Indeed, in New South Wales they are regarded as professional misconduct. In the Australian Capital Territory whether they are professional misconduct or the lesser unsatisfactory professional conduct depends upon the circumstances.
19. The Tribunal is “comfortably satisfied” in terms of Briginshaw (1938) 60 CLR 336 that the solicitor’s conduct fell short of the standard of competence and diligence expected of a reasonably competent legal practitioner and that such conduct amounts to unsatisfactory professional conduct as defined in the Legal Profession Act.
The Tribunal’s orders
20. Being satisfied that James Millea is guilty of unsatisfactory professional conduct the Tribunal orders that:
1) James Millea shall be reprimanded.
2) The reprimand will be made public.
3) The solicitor is to pay the Law Society’s costs on a party-party basis at two thirds of the Supreme Court scale, as agreed between the parties or failing such agreement as taxed by the Supreme Court’s taxing officer in accordance with the rules of that Court.
4) The non-publication order previously made by President Crebbin shall remain in force until expiry of the time for appeal or, if an appeal is made within time, until that appeal has been finally dealt with and subject to the orders of any appeal tribunal or court.
5) The name of the original complainant and any evidence which might tend to identify him are not to be published
I certify that the preceding twenty (20) numbered paragraphs
are a true copy of the Reasons for Decision herein of the
ACT Civil & Administrative Tribunal
Associate:
Date: 19 June 2009
PUBLICATION DETAILS
NOT TO BE PUBLISHED UNTIL EXPIRY OF APPEAL PERIOD
To be completed by Tribunal Staff
PART A FILE NO: LP 07/6
APPLICANT: LAW SOCIETY OF THE ACT
RESPONDENT: JAMES MILLEA
COUNSEL APPEARING: APPLICANT: MR J BUXTON
RESPONDENT: MR C WARD
SOLICITORS: APPLICANT: DIBBS ABBOTT
STILLMAN
RESPONDENT:
OTHER: APPLICANT: MR R REIS
RESPONDENT: SELF
TRIBUNAL MEMBER/S: MR B LOFTUS
MR A VAN ARKEL
DATE/S OF HEARING: 29 APRIL 2009 PLACE: CANBERRA
DATE/S OF DECISION: 19 JUNE 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0