LEGAL PRACTITIONER “M” & COUNCIL of the LAW SOCIETY of the ACT (Occupational Discipline)
[2013] ACAT 42
•19 June 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LEGAL PRACTITIONER “M” & COUNCIL OF THE LAW SOCIETY OF THE ACT (Occupational Discipline) [2013] ACAT 42
OR 12/27
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONERS – unsatisfactory professional conduct – a practitioner’s complaint against a practitioner to the Law Society – the meaning of ‘appeal’ to the Tribunal under section 416 of the Legal Profession Act 2006 (LPA) – admission of evidence of event after decision: not appropriate – preconditions for action by Council of the Law Society under section 413 of the LPA: nature investigation required – Briginshaw standard: estimating weight of evidence as to the probability of an outcome – standard of communication between practitioners - caution
List of Legislation: Legal Profession Act 2006, ss 410, 413 and 416, and Part 4.5.
List of Regulations: Legal Profession (Solicitors) Rules 2007, Rules 24 and 26
List of Cases: Briginshaw v Briginshaw [1983] 60 CLR 336
Builders’ Licensing Board v Sperway [1976] HCA 62
Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295
Lander v Council of the law Society of the ACT
[2009] ACTSC 117Legal Professional Complaints Committee v In De Braekt
[2013] WASC 124The Appellants v Council of the Law Society of the ACT
[2011] ACTSC 133
Tribunal: Mr G. Lunney SC – Senior Member
Date of Orders: 19 June 2013
Date of Reasons for Decision: 19 June 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 12/27
BETWEEN:
THE LEGAL PRACTITIONER “M”
Applicant
AND:
THE COUNCIL OF THE LAW SOCIETY OF THE ACT
Respondent
TRIBUNAL: Mr G. Lunney SC – Senior Member
DATE: 19 June 2013
ORDER
The Tribunal Orders that:
1.The decision under review of the Law Society of the ACT is confirmed.
………………………………..
Ms L. Crebbin, General President
For and on behalf of
Mr G. Lunney SC, Senior Member
REASONS FOR DECISION
1.This is an application to the Tribunal dated 28 September 2012. The applicant is a legal practitioner the subject of a complaint to the Law Society of the ACT. The Council of the Society dealt with the matter summarily pursuant to section 413 of the Legal Profession Act 2006 (the Act) and issued a caution to the applicant.
2.Section 416 of the Act permits what is described in the section as an ‘appeal’ by the practitioner to the Tribunal from the decision of the Council of the Society to take action under section 413 in relation to the applicant.
3.The matter first came on for hearing on 4 April 2013.
AN OUTLINE OF THE CIRCUMSTANCES OF THE COMPLAINT
4.The applicant and the complainant are principals of law firms in the Territory. They each represented clients involved in a dispute under the Family Law Act.
5.The two practitioners were attempting to schedule a conciliation conference in those proceedings.
6.By letter dated 14 November 2011, the applicant wrote to the Registrar of the Federal Magistrates Court confirming that she was not available for a conference on a particular date as she would be recovering from surgery.
7.The complainant wrote to the applicant on 17 November 2011 and in the letter referred to the applicant’s ‘health difficulties’. The letter was sent by fax on 17 November 2011.
8.The applicant telephoned the complainant’s office on 18 November 2011 to speak to her about the contents of the letter of 17 November 2011. The complainant was not available. During the telephone call the applicant spoke to two staff members of the complainant’s firm. When the complainant returned to her office, the two staff members complained to her about the content and tone of the applicant’s conversation with them.
9.A letter written by the applicant dated 18 November 2011 to the complainant indicated that it was the applicant’s opinion that it was totally unacceptable to write a letter which referred to her ‘health difficulties’.
10.After some consideration, the complainant telephoned the applicant on the same day in relation to the complaints that had been made to her. In that conversation she raised the possibility of an apology.
11.The applicant rejected that suggestion. While not denying that there had been a conversation, she broadly denied the staff members’ description of the content and tone of the conversation.
12.The complainant made a formal complaint to the Law Society of the ACT on 9 February 2012.
THE COMPLAINT
13.The complainant detailed the events leading up to the telephone conversation of 18 November 2011. The complainant then detailed the description that her two staff had given of the conversation. She described the tone of the conversation as being an angry outburst using inappropriate and distressing language. I attach a copy of the complaint to these reasons for decision as Annexure ‘A’.
14.The complaint also referred to the complainant’s conversation with the applicant on 18 November 2011. She said that not only had the applicant denied the words attributed to her by the staff members, but the applicant asserted that the staff members were lying about the conversation.
ACTION BY THE LAW SOCIETY COUNCIL
15.The Law Society’s Professional Standards Director wrote to the complainant after he received the complaint. His letter of 13 February 2012 set out the procedure followed by the Society in respect of complaints. A copy of the complaint was also sent to the applicant.
16.The applicant sent the Director a response to the complaint by letter dated 26 February 2011.
17.On 29 February 2012, the Director wrote to the applicant telling her that a copy of her response had been sent to the complainant for comment.
18.On 15 March 2012, the complainant wrote to the Director commenting on the applicant’s response. She took issue with much of the response. The Director wrote to the complainant on 16 March 2012 referring to her comments and told her that the matter would be considered by the Complaints Committee.
19.The matter was considered by the Complaints Committee which determined that it should be referred to the Executive of the Council of the Law Society. The Executive seems to have recommended a ‘pastoral visit’ to the applicant. The visit took place.
20.On 18 June 2012, the President gave a report to the Council about the pastoral visit. The Council then determined that it would be appropriate for the complaint to be disposed of summarily pursuant to section 413. The Professional Services Director wrote to the applicant on 20 July 2012 inviting her comments regarding that proposed procedure. The letter concludes by saying that the Council was next meeting on 20 August 2012 and requested submission of any comments by 15 August 2012.
21.The applicant responded to this letter by letter dated 15 August 2012. The letter is a little difficult to understand because it does not directly address the matters referred to in the Law Society’s letter. The applicant requested that the complaint be referred to ACAT or that she be given notice of when it would be dealt with summarily. She seems to have overlooked the reference in the letter to the Council considering the matter at its meeting on 20 August 2012.
22.The Council of the Law Society proceeded to consider the complaint at its meeting on 20 August 2012. I attach as Annexure ‘B’ a copy of the letter expressing the decision of the Council written by the Professional Standards Director to the applicant following the meeting.
PRELIMINARY
23.An initial issue was raised at the hearing. It concerned the nature of the proceedings in the ACAT, and arose out of the use of the word ‘appeal’ in section 416. The question was whether it was an appeal in the strict sense where the issue is whether the original decision was correct; or whether it was an appeal by way of rehearing de novo. If neither, what was the nature of the proceeding?
24.Much judicial time has been spent in jurisdictions with an appellate function to determine the nature of the proceedings that have been brought. The issues generally coalesce into questions of what is the function of the court in the appeal, and what material does it deal with in discharging that function.
25.A case that is frequently referred to in discussions of these issues is Builders’ Licensing Board v Sperway [1976] HCA 62, a decision of the Full Court of the High Court of Australia.
26.The authorities were recently brought together in the administrative review context in a Victorian Court of Appeal Case of Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295. While the decision must be confined to the particular legislation and factual context that existed in it, the following statement of the principles applied in that case has a bearing on the circumstances of the present application.
119. ….The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not ‘open slather’, but nor is it an appeal confined to error.
27.The Court had earlier in its decision said that the admission of evidence of events which had occurred after the relevant decision was made would not be appropriate. This is what may have been at least partly what was meant by the reference to ‘open slather’ in the above quotation.
28.The issue has been directly dealt with by Refshauge J in the ACT Supreme Court in TheAppellants v Council of the Law Society of the ACT [2011] ACTSC 133. There had been an appeal to the ACAT under section 416. There was no challenge to the substantive decision given by the ACAT. The appeal related to an award of costs made against the parties who had initiated the original appeal.
29.His Honour decided that ACAT did not have power under section 416 to make the award of costs that it did in the proceedings. In coming to that conclusion, His Honour examined the nature of the ‘appeal’ to the ACAT under section 416. He held that although the word ‘appeal’ was used, the nature of the proceedings was review by the ACAT of an administrative decision.
30.His Honour said the following.
109.The decision of the [council] is, then, as noted earlier, subject to “appeal” to the ACAT. This, it seems to me, is not an appeal in the sense one uses the term as between courts, but in the sense that administrative review as conducted in the Commonwealth sphere by the Administrative Appeals Tribunal. See my comments above (at [74] and [75]).
110.It is true that, so far as I could see from an inspection of the ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT), by which most other Acts were amended to provide access to the ACAT for review of decisions, the term used in them is “application for review” rather than “appeal” but that may be because of the particular nature of the Legal Profession Act and the wish for national uniformity. I note, too, that most of the other Acts so amended refer to “Occupational Discipline” whereas the Legal Profession Act refers to “Disciplinary Action”. I do not regard this matter as particularly relevant.
111.In my view, the process under s 416 is a review of an administrative decision in the same way as under other similar legislation.
31.In these proceedings, the Tribunal Documents have been admitted into evidence, and further evidence has been admitted consisting of evidence which could have been considered by the Council had its investigation proceeded to that level of detail. On the basis of the authorities referred to above, I am to conduct an administrative review of the decision of the Council of the Law Society of the ACT. In doing so, I shall consider all the evidence that has been given in the hearing to date and substitute my decision for that of the Council if it is appropriate to do so, on the merits. I shall not act only if it is shown that some error occurred affecting the Council’s decision.
SECTION 413
32.Section 413 appears in Part 4.5 of the Act – ‘Decision of Council’. It is one part of Part 4 of the Act the heading to which is – ‘Complaints and Discipline’. Part 4.4 is headed ‘Investigation of Complaints’.
33.Section 410 enables the Council to deal with a complaint after investigation in one of three ways: dismissal; summary disposal; and, referral to ACAT. Section 416 enables the Tribunal only to examine the decision made pursuant to section 413, not the decision under section 410 to deal with the complaint under section 413 by way of summary disposal.
34.Part 4.5 of the Act is reproduced in full as Annexure ‘C’.
35.There are 3 preconditions to action by the Council under section 413.
36.The first of these is that there must have been investigation of the complaint that has been made against the legal applicant.
37.It could be expected that complaints would be dealt with expeditiously. Previous sections in Part 4.4 establish a regime for investigation and ensure that the practitioner has appropriate notice and opportunity to deal with the complaint and present any material that he or she wishes to bring to bear.
38.The nature and extent of any investigation will depend on a very great number of variables. These will include:
a) the gravity of the allegations,
b) the time period the complaint covers,
c) the number of potential witnesses involved,
d) the time and resources available for the investigation,
e) the complexity of the issues involved, and
f) the degree of engagement of the practitioner with the investigation and nature of the practitioner’s response.
39.In these proceedings, the applicant has criticised the investigation process. I do not consider that there is any utility in dealing with the merits of those submissions, since she has now had every opportunity to be represented and to put forward all material that she considers relevant. It is sufficient to say that the Tribunal has had more information regarding the complaint than was before the Council.
40.The second precondition is that the Council must be satisfied that there is a reasonable likelihood that the practitioner will be found guilty by the ACAT of unsatisfactory professional conduct, (but not professional misconduct).
41.This requires the Council to make an estimate of the likelihood of the ACAT taking certain action. The degree of likelihood is a ‘reasonable’ one. Those words appear to import more than a bare likelihood which could be expressed as a 51/49% probability.
42.The High Court in the case of Briginshaw v Briginshaw [1983] 60 CLR 336 is a case frequently quoted in relation to standard of proof. The issue was whether proof of adultery in a divorce case required the criminal standard of proof beyond reasonable doubt. In finding that it did not, Latham CJ and Rich J expressed views relevant to the issue of ‘reasonable likelihood’ used in Section 413.
43.Latham CJ said at P 343.
There is no mathematical scale according to which degrees of certainty of intellectual conviction can be computed or valued. But there are differences in degree of certainty, which are real, and which can be intelligently stated, although it is impossible to draw precise lines, as upon a diagram, and to assign each case to a particular subdivision of certainty. No court should act upon mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue.
44.Rich J said at P 350.
…By sec. 80 of the Marriage Act 1928, which is taken from sec. 29 of the English Act it is provided that:
“upon any petition for dissolution of marriage, it shall be the duty of the court to satisfy itself, so far as it reasonably can, as to the facts alleged."
The phrase "satisfy itself. so far as it reasonably can" obviously reflects the influence of the common expression "reasonable satisfaction."
In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion. But to say this is not to lay it down as a matter of law that such complete and absolute certainty must be reached as is ordinarily described in a criminal charge as "satisfaction beyond reasonable doubt."
45.Based on the views there referred to, and the significance of the probability assessment to the interests of the practitioner, the Tribunal considers that use of the criterion a ‘reasonable likelihood’ does import a relatively high degree of confidence of the assessment of whether ACAT would make an order of the type referred to. This is not a standard of proof capable of precise description mathematically or verbally since it will vary from case to case, however it will generally require a likelihood greater than a simple slight excess of positive considerations over negative.
46.In the present proceedings there was a significant conflict in at least one area of the evidence given. That was as to the precise detail of the conversations between the applicant and the members of staff of the complainant’s firm. It is clear from the general scheme of Part 4 of the Act, that it is the ACAT which is charged with final determination of what conduct the evidence establishes and whether that conduct amounts to professional misconduct, unsatisfactory professional conduct or neither. The Council does not make that determination. It is authorised only to assess the likelihood of the ACAT making one particular determination (and not another).
47.The task of estimating what the ACAT would do is one of estimating the weight of the evidence which would be available to and considered by the ACAT. What the Council is authorised to do is to estimate the probability of an outcome. It is not to embark upon the process itself which would lead to that outcome. A finding by the ACAT would necessarily involve the Tribunal determining what evidence to accept or reject in the case of conflict, and whether an onus of proof had been met.
48.In my view the task of the Council, and therefore the present Tribunal, is to weigh the strength of the evidence with the ultimate object of assessing the probability of outcome. In doing so, it is not necessary to be driven to making the assessments of fact necessary to come to the actual outcome. It is a process of evaluation of evidence to assess its strength and therefore its weight in a legal sense so that the defined probability is determined.
RULE 24
49.Another issue has to be dealt with which arises out of the terms of the decision of the Council. It found the applicant had breach rule 24 of the Legal Profession (Solicitors) Rules 2007. That rule regulates standards to be observed in communications between practitioners.
50.The respondent concedes that the reference to Rule 24 was an error. The applicant now submits that the Tribunal cannot make a decision contrary to her interests.
51.Rule 26 deals with a solicitor’s relations with third parties. This rule as it is expressed is not directly helpful although the note to it gives an indication of what is intended. There is however and authoritative statement by Higgins CJ, Gray and Refshauge JJ in Lander v Council of the law Society of the ACT [2009] ACTSC 117 relating to legal practitioners’ dealing with third parties. The Court said.
[P]ractitioners should, in the course of their practice, conduct their dealings with other members of the community according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers namely, to take all reasonable care to maintain the integrity of the legal profession by ensuring that the practitioner’s communications are courteous and that the practitioner avoids offensive or provocative language or conduct.
52.This passage was quoted with approval by the full bench of the Supreme Court of Western Australia in Legal Professional Complaints Committee v In De Braekt [2013] WASC 124.
53.I therefore conclude that it would be open to the ACAT to make a finding of unprofessional conduct and that the reference to Rule 24 by the Council was an error, but that error does not prevent the Tribunal from considering the issues and making a decision pursuant to section 416.
THE EVIDENCE
54.The complainant and the two staff members from her office gave evidence as did the applicant. Affidavits were firstly filed, and the deponents were cross examined. The Tribunal has available to it very much more information than was available to the Council.
55.It became apparent that there was a significant conflict in the evidence of the staff members on the one hand, and the applicant on the other regarding the content and tone of the telephone conversation.
56.An indication of the extent of the conflict can be gleaned from the following extract taken from the affidavit of the applicant affirmed 15 January 2013 and filed in the proceedings.
9In response to paragraph 7 of the affidavit of [the complainant], sworn on 29 November 2012, I deny that I was out of control at any point in time. I deny having been rude to C, nor was I cross with C. I strenuously deny that I swore at L.
10In response to paragraph 8 of the affidavit of [the complainant], sworn on 29 November 2012, I deny that I was out of control. I deny being angry and I deny speaking over L. I strenuously and absolutely deny having said the words “How dare you fucking write a letter to me like that, tell fucking [the complainant] to ring me”. I deny ever having used that language with [the staff member] or any other person. I disagree that [the staff member] hung up the telephone on me and I say that when I was finished speaking with [the staff member], I terminated the call. I deny that I was angry during my telephone discussion with [the complainant] and I most certainly did not talk over her during our discussion.
57.None of the witnesses who gave evidence were persuaded to depart from the substance of the content of their respective affidavits. All were credible witnesses and it seemed to me that any tribunal of fact would have difficulty in coming to a determination of the content of the conversation that took place on 18 November 2011.
58.The applicant called a number of credible witnesses who supported her in her general contention that she did not use inappropriate language in a professional or personal context.
59.After assessing the evidence both oral and documentary, the Tribunal came to the following view.
59.1.It was common ground that the letter from the complainant to the applicant had been sent by facsimile on 17 November 2011. The applicant had responded by telephoning the complainant’s office on 18 November 2011, speaking to members of her staff. The applicant responded then by sending a facsimile to the complainant and later the complainant spoke to the applicant by telephone.
59.2.There is a strong inference available that the applicant was upset to some extent by the reference to her health in the facsimile letter dated 17 November 2011 from the complainant to her. That evidence opens the possibility of the applicant having an unsettled mood at the time of her phone call to the complainant’s office, possibly amounting to anger.
59.3.The evidence as to the precise content of the telephone call the applicant made to the complainant’s firm is conflicting, without any significant factor arising from cross examination which would indicate that a tribunal of fact would prefer one version over the other. However, there are inferences available from the apparent mood of the applicant, and the depth of the reaction of the employees to the phone call which could at least potentially impact unfavourably on a tribunal’s assessment of the applicant’s evidence.
59.4.The evidence is strong that the two staff members were upset by the tone and content of the telephone conversation each had with the applicant and complained to the complainant at the earliest opportunity. They were experienced employees and the tone and content of the conversations was the cause of their upset.
59.5.The evidence is strong that the complainant after taking some time to consider the matter was sufficiently moved by the degree of reaction of her employees to the telephone conversation with the applicant to cause her to telephone the applicant to request an apology on the same day.
60.The complaint alleges that in that telephone conversation, the applicant accused the complainant’s staff members of lying about the telephone call. This is denied by the applicant who gives a different version of the conversation between herself and the complainant. It is not possible to assess one account of this part of that conversation as being more likely than the other.
61.Assessing the weight of that evidence, the Tribunal considers there to be a reasonable likelihood that based upon it the ACAT would make a finding of unsatisfactory professional conduct, but not one of professional misconduct.
CONCLUSION
62.In submissions there has been no challenge to the finding by the Council in relation to the third criterion in section 413 relating to the competence and diligence of the applicant.
63.The decision of the Council was expressed by issuing a caution to the applicant.
64.Under sections 416(3) and 416(4), the sanction options available to the Tribunal in this appeal are greater than were open to the Council under section 413. The applicant has submitted that no penalty should be imposed since the imposition of a caution has achieved some publicity as a result of an article which appeared in the Law Society’s Journal although the applicant was not directly named in the article. There was no direct evidence that any person had made the connection between the applicant and the article.
65.The Council having determined that summary disposition was appropriate and then having decided that the criteria under section 413(1) had been made out, considered that the issuing of a caution was an appropriate outcome under section 413(2). This Tribunal considers that the suggested link between the listing of the applicant’s matter in the ACAT hearing lists and the article appearing in the Law Society’s Journal is tenuous and is not an appropriate matter to be taken into account in review.
66.The issuing of a caution was an appropriate outcome.
67.The Tribunal therefore confirms the decision of the Council.
………………………………..
Ms L. Crebbin, General President
For and on behalf of
Mr G. Lunney SC, Senior Member
Redacted
ANNEXURE ‘A’
LETTER OF COMPLAINT
Dear Mr Reis,
COMPLAINT- [THE LEGAL PRACTITIONER “M”]
I am a solicitor and a Director of [the complainants’ firm],. I act in a family law matter in which the above named solicitor acts for the other party. The following events have recently occurred which have led me to lodge this complaint:-
1.A Conciliation Conference at the Federal Magistrates Court was scheduled in this matter. The initial conference date was vacated by consent of both parties. In the process of reaching agreement as to the new Conciliation Conference date, [the legal practitioner] on 14 November 2011, in a telephone discussion with my assistant L, advised that she was scheduled to have a medical procedure in December 2011 and that the conference needed to occur prior to that date. In that conversation [the legal practitioner] advised my assistant that, [the legal practitioner] was writing to the Court to seek an earlier date in December be allocated to the conference.
2.A further conference date was allocated by the Court.
3.In a letter dated 17 November 2011 to [the legal practitioner], the writer made reference to the information provided by [the legal practitioner] about her health by using the following phrasing, "whilst we are of course concerned to accommodate your health difficulties, our ability to prepare and participate in the Conciliation Conference will depend upon the provision by your client of the additional material sought of him by way of discovery…".
4.That letter was sent by facsimile by [the legal practitioner] (sic) at 2.14pm on 17 November 2011.
5.At approximately 12.45pm on 18 November 2011 C , one of our assistants, received a telephone call. The caller asked to speak with the writer but was advised that I was not, at that time, available. The caller, who identified herself as [the legal practitioner], asserted "well, she just sent me a letter, so she must still be there. How can she not be there if I just received a letter from her?" At this point C advised that I do not send out my own faxes. C noted that my assistant, L, would have sent the fax if [the legal practitioner] had just received one.
6.At this point [the legal practitioner] interjected and said words to the effect "well the letter she has written me is bullshit". C said "Excuse me, that is not appropriate language" and has reported to me that [the legal practitioner] spoke over the top of her. C then said "I can put you through to L who can discuss this with you".
7.The telephone call was then put through to my assistant L. [the legal practitioner] then said to L words to the effect of "how dare you fucking write a letter to me like that" and "Tell fucking [the complainant] to ring me". While L cannot be certain of the precise wording of these statements, use of the word “Fucking” in both instances was specifically noted by L.
8.When I returned to the office later that afternoon I was advised by both C and L of the telephone conversation with [the legal practitioner]. At 2.23pm I received a fax from [the legal practitioner] about this issue. In that letter dated 18 November 2011 [the legal practitioner] said "it is totally unacceptable to write a letter which refers to my health difficulties yet has no bearing on your request... I have no difficulty if you wish to send a letter asking that our client provides the documents but do not ever mix that with my request to change a date due to my health".
9.After discussing with C and L their experiences of their discussions with [the legal practitioner] I determined to speak with [the legal practitioner]. I intended to seek from her an apology which I then would convey to our staff. In my telephone discussion with [the legal practitioner] she denied the words attributed to her by our staff and went further, asserting to me that both my assistants were 'lying' to be about those matters. [the legal practitioner] asserted that she would 'never use such language'.
10.I was dismayed that not only were two of our staff subject to [the legal practitioner’s] angry outburst and inappropriate and distressing language, but that she concluded the matter by challenging the honesty of the two assistants in question.
11.I have no doubt as to the truthfulness of the reports made to me by L and C and I observed first hand their distress after their discussions with [the legal practitioner]. Both assistants reported being distressed and dismayed by the exchange with [the legal practitioner] and both appeared to continue to be unsettled and shaken when I spoke to them later that afternoon.
My decision to take this step and bring these matters to the attention of the Law Society is made carefully and after further consideration and reflection. I recognise that if [the legal practitioner] was concerned by the content of my letter it was reasonable for [the legal practitioner] to raise those matters with me. I do not accept, however, that it was necessary or appropriate for [the legal practitioner] to express her frustration or anger with members of our staff, let alone for such to be expressed in such unfair and intemperate terms. Working in family law, we have an appreciation of the difficulties of managing our client's experiences, often in very fraught and difficult circumstances. It is unreasonable that our staff should, in addition, be subject to such conduct from other practitioners. I remain disappointed that the fundamental courtesies which one should expect from a legal practitioner were not extended to our staff in this instance.
I look forward to hearing from you.
Yours faithfully,[The Complainants’ Firm]
RedactedANNEXURE ‘B’
Dear [the legal practitioner]
Complaint by [the complainant]
I refer to my letter dated 20 July 2012 and your letter dated 15 August 2012 which were considered by Council at its meeting on Monday, 20 August 2012.
Council resolved that this complaint be summarily concluded by an exercise of its power under section 413 of the Legal Profession Act 2006. In doing so, Council was satisfied that:
a) You breached Rule 24 of the Legal Profession (Solicitors) Rules 2007 in that you failed to act with fairness and courtesy in your dealings with [the complainant's] office in the course of the family law matter you were undertaking for your client. In coming to this decision the Council was satisfied that:
i. You misconstrued the meaning of the alleged offending paragraph in [the complainant’s] letter.
ii. By your own admission you were not " happy with the fact that [the complainant] wrote a letter involving my personal issues with that of our respective clients." - Paragraph 8 of your letter to the Law Society dated 26 February 2012.
iii. Your insistence to two staff members of [the complainants’ firm] that [the complainant] had to be in the office because she had just sent you a letter by facsimile implicitly accused both staff members of lying about [the complaint’s] whereabouts. The· obvious explanation was that the partner may not necessarily attend to the sending of documents by facsimile personally. The suspicion and distrust with which you responded to the news that [the complainant] was unavailable was disproportionate to the occasion and suggested a heightened sense of frustration and anger on your part.
iv. There was no advantage or benefit to be gained by either staff member in reporting your conduct to their supervising partner. '
.
.
v. Your conduct on the telephone to the two staff members included swear words which, in the context of the telephone conversations with the two staff members, was inappropriate and una ceptable for a member of the profession.
b) there is a reasonable likelihood that you would be found guilty by the disciplinary tribunal of unsatisfactory professional conduct but not professional misconduct; and
c) you are generally competent and diligent and no other material complaints have been made against you.
Council further resolved that you be issued with a caution pursuant to section 413(2)(a) of the Act.
Appeal
Pursuant to subsection 416 (1) of the Legal Profession Act 2006 you may appeal to the ACT Civil & Administrative Tribunal (ACAT) against the decision of the Council to summarily conclude the complaint procedure under section 413 of the Act. Subsection 416 (2) (a), provides that an appeal under subsection 416 (1) must be made not later than 28 days after the day the relevant council gave you a statement of reasons under section 415. This letter serves as the statement of reasons referred to in subsection 416 (2) (a).
An application for review under section 416 should be sent directly to the following address following address:
ACAT
GPO Box 370
CANBERRA ACT 2601
As this brings the matter to a conclusion I will close the Society's file.
Yours sincerely,
Professional Standards Director
ANNEXURE ‘C’
PART 4.5 OF THE LEGAL PROFESSION ACT 2006
Part 4.5Decision of council
410Decision of council after investigation
(1)After finishing an investigation of a complaint against a person, the relevant council must—
(a)dismiss the complaint under section 412; or
(b)take action under section 413 (Summary conclusion of complaint procedure by fine etc); or
(c)make an application to the ACAT under part 4.7.
(2)This section does not affect section 400 (Withdrawal of complaints).
411Decision of council without investigation
(1)This section applies to a complaint against an Australian legal practitioner if the relevant council is satisfied that action should be taken under this section because of—
(a)the nature of the subject matter of the complaint; and
(b)the reasonable likelihood that the practitioner will be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct.
(2)This section also applies to a complaint against an employee of a solicitor if the relevant council is satisfied that action should be taken under this section because of—
(a)the nature of the subject matter of the complaint; and
(b)the reasonable likelihood that the employee will be found guilty by the ACAT of unsatisfactory employment conduct.
(3)If this section applies to a complaint, the relevant council may make an application to the ACAT under part 4.7 for an occupational discipline order in relation to the person complained about without starting or finishing an investigation of the complaint.
412Dismissal of complaint
(1)After finishing an investigation of a complaint against an Australian legal practitioner, the relevant council may dismiss the complaint if satisfied that—
(a)there is no reasonable likelihood that the practitioner will be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct; or
(b)it is in the public interest to dismiss the complaint.
(2)After finishing an investigation of a complaint against an employee of a solicitor, the relevant council may dismiss the complaint if satisfied that there is no reasonable likelihood that the employee will be found guilty by the ACAT of unsatisfactory employment conduct.
413Summary conclusion of complaint procedure by fine etc
(1)This section applies if the relevant council for an Australian legal practitioner—
(a)completes an investigation of a complaint against the practitioner; and
(b)is satisfied that there is a reasonable likelihood that the practitioner will be found guilty by the ACAT of unsatisfactory professional conduct (but not professional misconduct); and
(c)is satisfied that the practitioner is generally competent and diligent and that no other material complaints have been made against the practitioner.
(2)The relevant council may do all or any of the following:
(a)caution the Australian legal practitioner;
(b)publicly reprimand the Australian legal practitioner or, if there are special circumstances, privately reprimand the practitioner;
(c)make a compensation order under part 4.8 if the complainant requested a compensation order in relation to the complaint;
(d)direct the practitioner to do all or any of the following:
(i)stop accepting, for a stated time, instructions in relation to stated work;
(ii)stop employing a stated person in the practitioner’s practice;
(iii)undertake stated further legal education;
(iv)seek advice in relation to the management of the practitioner’s practice from a stated person;
(e)impose a fine on the practitioner of a stated amount.
(3)The maximum amount that can be imposed by way of fine is $1 500.
(4)A fine is payable to the relevant council in the way and within the reasonable period required by the relevant council.
(5)If an amount is received by a council as complete or partial payment of a fine imposed under this section, the council must pay the amount into a statutory interest account.
(6)The Australian legal practitioner must not fail to pay a fine imposed under this section in accordance with the requirements of the relevant council.
(7)If action is taken under subsection (2), further action must not be taken under this chapter in relation to the complaint.
414Record of decision of council about complaint
(1)A council must make and keep a record of its decision in relation to each complaint dealt with by it under this chapter.
(2)The record must include its reasons for the decision.
415Council to give reasons to complainant and practitioner
If a complaint is made about a person, the complainant and the person about whom the complaint is made are entitled to receive a statement of reasons from the relevant council if any of the following decisions are made by it:
(a)a decision to dismiss the complaint;
(b)a decision to make an application to the ACAT under part 4.7 in relation to the complaint;
(c)a decision to refer a matter to the Supreme Court under section 409 (Referral of matters for costs assessment—complaint investigation) in relation to the complaint;
(d)a decision to take action under section 413 (Summary conclusion of complaint procedure by fine etc);
(e)a decision to omit, from the allegations particularised in an application made by it to the ACAT under part 4.7 in relation to the complaint, matter that was originally part of the complaint.
416Appeals to ACAT against decisions of relevant council
(1)A person mentioned in table 416, column 2 may appeal a decision mentioned in column 3 to the ACAT.
(2)The appeal must be made not later than—
(a)28 days after the day the relevant council gave the person making the appeal a statement of reasons under section 415; or
(b)any further time allowed by the ACAT.
(3)The ACAT may make any order it considers appropriate on the appeal.
(4)Without limiting subsection (3), the ACAT may make 1 or more of the orders mentioned in section 425 (3) to (5) (ACAT orders—Australian legal practitioners).
Table 416Appealable decisions
column 1
item
column 2
personcolumn 3
decision1 complainant dismiss a complaint under s 412 2 complainant omit matter from application to ACAT that was originally part of complaint 3 Australian legal practitioner complained about take action under s 413 in relation to practitioner
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER:
OR 12/27
PARTIES, APPLICANT:
The Legal Practitioner “M”
PARTIES, RESPONDENT:
Council of the Law Society of the ACT
COUNSEL APPEARING, APPLICANT
Mr M. Lawson
COUNSEL APPEARING, RESPONDENT
Mr G. Blank
SOLICITORS FOR APPLICANT
Self
SOLICITORS FOR RESPONDENT
Mr Phelps, Phelps Reid Lawyers
TRIBUNAL MEMBERS:
Mr G. Lunney SC – Senior Member
DATES OF HEARING:
19 February, 4 April 2013
PLACE OF HEARING:
ACAT Canberra
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
4
4
0