Legal Practitioners Complaints Committee and A Practitioner
[2007] WASAT 277
•19 OCTOBER 2007
LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and A PRACTITIONER [2007] WASAT 277
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 277 | |
| LEGAL PRACTICE ACT 2003 (WA) | |||
| Case No: | VR:97/2007 | 11 OCTOBER 2007 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) MR C RAYMOND (SENIOR MEMBER) MS M CONNOR (MEMBER) | 19/10/07 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for interim suspension to be lifted dismissed | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PRACTITIONERS COMPLAINTS COMMITTEE A PRACTITIONER |
Catchwords: | Professions Legal practice Allegations of illegal conduct Allegations of unsatisfactory conduct Allegations of defalcation Interim suspension imposed Application to have interim suspension lifted to allow practitioner to practise as an employed solicitor pending outcome of criminal and disciplinary proceedings |
Legislation: | Legal Practice Act 2003 (WA), s 149, s 182, Pt 12 |
Case References: | Hammond v Commonwealth of Australia (1982) 152 CLR 188 Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Re A Practitioner [2003] WASCA 172 |
Orders | Accordingly, the Tribunal orders:,1. The application to discharge or vary the suspension order is dismissed.,2. The directions hearing listed for 16 October 2007 is adjourned to 5 February 2008 at 10 am.,3. Pending the outcome of the criminal proceedings against the practitioner or further order of the Tribunal, the practitioner's name is not to be published. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PRACTICE ACT 2003 (WA) CITATION : LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and A PRACTITIONER [2007] WASAT 277 MEMBER : JUSTICE M L BARKER (PRESIDENT)
- MR C RAYMOND (SENIOR MEMBER)
MS M CONNOR (MEMBER)
- Applicant
AND
A PRACTITIONER
Respondent
Catchwords:
Professions Legal practice Allegations of illegal conduct Allegations of unsatisfactory conduct Allegations of defalcation Interim suspension imposed Application to have interim suspension lifted to allow practitioner to practise as an employed solicitor pending outcome of criminal and disciplinary proceedings
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Legislation:
Legal Practice Act 2003 (WA), s 149, s 182, Pt 12
Result:
Application for interim suspension to be lifted dismissed
Category: B
Representation:
Counsel:
Applicant : Ms PE Cahill and Ms PE Le Miere
Respondent : Mr RW Bower
Solicitors:
Applicant : Legal Practitioners Complaints Committee
Respondent : Corser & Corser
Case(s) referred to in decision(s):
Hammond v Commonwealth of Australia (1982) 152 CLR 188
Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Re A Practitioner [2003] WASCA 172
(Page 3)
Summary of Tribunal's decision
1 On 31 May 2007 the Tribunal made an interim order suspending the practitioner from practice pending the outcome of criminal and disciplinary proceedings in which it is alleged that the practitioner defalcated.
2 On 4 October 2007, the practitioner applied for the suspension order to be lifted so that he could work as an employed solicitor. The practitioner submitted that he was unable to obtain other employment which would pay a wage sufficient to support his family and meet his anticipated expenses.
3 The Tribunal considered the parties' submissions and the nature of the power to make interim suspension orders. The Tribunal determined that the interim suspension order should remain in force.
Order made 11 October 2007
4 On 31 May 2007, the Legal Practitioners Complaints Committee (the Committee) applied to the Tribunal for an order pursuant to s 182 of the Legal Practice Act 2003 (WA) (LP Act) suspending the practitioner from practice pending inquiry and determination of matters referred to in a report of the Law Complaints Officer of the Committee dated 31 May 2007 or until further notice.
5 The Tribunal made an ex parte interim suspension order to that effect on 31 May 2007. While the practitioner had notice of the application and the proceedings in the Tribunal on 31 May 2007, in the event he did not attend the hearing. His brother, also a legal practitioner, on behalf of the practitioner advised the Tribunal that the practitioner would not be attending the Tribunal that day. The practitioner's position was he did not consent to but did not oppose orders being made.
6 The Tribunal not only made an interim order suspending the practitioner from practice in the terms described, but also made orders pursuant to s 149 of the LP Act restraining the practitioner and relevant banks from dealing with certain accounts.
7 The Tribunal amongst other consequential orders further ordered that the parties should have liberty to apply on not less than 24 hours' notice to vary or set aside the interim suspension order.
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8 On 21 August 2007, on the practitioner's application, the Tribunal varied the terms of the order made 31 May 2007, insofar as they restrained dealings on certain bank accounts by releasing two accounts from the restraints imposed and enabling a specified sum of money to be paid weekly for a period of four weeks to the practitioner.
9 On 4 October 2007, the practitioner, by his solicitors, sought to further vary the orders made on 31 May 2007, so that he would be free to recommence legal practice as an employed solicitor. This Tribunal heard and rejected the application on 11 October 2007 and said it would give reasons for its decision later. These are those reasons.
Issue
10 The issue on this application is whether the interim suspension of the practitioner from practice ordered on 31 May 2007, should now be lifted or lifted to the extent that the practitioner should be permitted to work as an employed legal practitioner.
Contentions of practitioner
11 Counsel for the practitioner relied on a number of affidavits filed on behalf of the practitioner in the proceedings to date. He advised the Tribunal that following the making of the orders on 31 May 2007, steps were taken by the Legal Practice Board under the LP Act for the appointment of a supervising solicitor to deal with the practitioner's former practice. Counsel explained that as a result of the actions of the supervising solicitor, there is no longer a practice asset which the practitioner can sell. Former clients have now taken their matters elsewhere. The practice has been wound up.
12 Counsel for the practitioner also explained that following the actions of the Committee in drawing the attention of the Western Australian Police to matters of concern to it, the practitioner has been charged with a number of counts of stealing.
13 The result of all of these events, the practitioner says, is that he is now in urgent need to earn a substantial income, as opposed to a nominal level of income, to support his family, meet a number of liabilities including a tax debt to the Australian Taxation Office (ATO), and to accumulate sufficient funds to defend the criminal charges brought against him and to respond to these proceedings.
14 The practitioner has set out his financial circumstances and also those of his wife. He is married with three teenage children who are all
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- full-time students. The practitioner says that he has a number of liabilities, including an overdue sum under a mortgage. The bank is now applying a higher rate of interest as provided for under the mortgage due to the account being in arrears. He also understands the ATO is claiming a sum in the vicinity of $70,000 in tax and have currently postponed recovery action to await the outcome of the present application to this Tribunal.
15 The practitioner since late August 2007 has been working nights as a taxi driver. He has been working five nights a week and earning in the vicinity of $586 gross per week. The practitioner says his wife and he have used all of this income to pay for day-to-day living expenses for their family, to the extent that his taxi driving income has enabled them to do so. He says he has not been able to save any money from this income and it is insufficient to meet all of his wife's and his family's living expenses, notwithstanding that his wife's income is also used for living expenses.
16 The practitioner says the taxi driving income does not enable him to reduce his arrears under the mortgage to the bank nor to make arrangements to pay by instalments the sum claimed by the ATO.
17 Further, he says the taxi driving income does not enable him to make financial provision for his ongoing requirement for legal advice and representation in the proceedings in the Tribunal and defending the criminal charges made by the police.
18 In relation to the criminal charges made against him the practitioner says that he is not guilty of any wrongdoing.
19 On the basis of advice from his criminal defence counsel, the practitioner understands that a trial of the criminal charges is unlikely to take place for about 18 months to two years.
20 The practitioner says he cannot see how he can meet his financial obligations for the next 18 months or so until his criminal trial takes place, unless he can earn considerably more than he is earning as a taxi driver.
21 In these circumstances, he says his brother, also a legal practitioner, has offered to employ him as a solicitor in his legal practice, which provides legal services predominantly in respect of criminal matters.
22 He says his brother's offer of employment is conditional upon him being permitted to practise as a solicitor. His brother has also required him to undertake to the Tribunal, and to him, that he will not have any
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- dealings with any funds of any client in his brother's practice if he undertakes work there.
23 The practitioner says that if he is permitted to return to legal practice he will in all respects conduct himself honestly and professionally and will comply with whatever conditions may be imposed upon him. He says he has assisted many thousands of clients since he was admitted as a practitioner in the state in 1991. He says he does not believe the public or the profession will in any way be put at risk by him being entitled to practise on the basis proposed pending the conclusion of his criminal charges.
24 In these circumstances, counsel for the practitioner submits that the power of the Tribunal under s 182, LP Act to suspend a legal practitioner on an interim basis should not be exercised against this practitioner as it is not necessary for the purpose of protecting the public.
25 Counsel for the practitioner emphasises that the practitioner is entitled to the full scope of benefits and protections of the presumption of innocence so far as the criminal charges against him are concerned.
26 Counsel says the practitioner denies that he is guilty of any wrongdoing and asserts that he has a complete explanation and justification for the transactions which are the subject of the investigation and the police prosecution.
27 Counsel further submits that, having regard to the decision of the High Court of Australia in Hammond v Commonwealth of Australia (1982) 152 CLR 188, there is no obligation on the practitioner to cooperate with the ongoing inquiry of the Committee at this stage, pending the conclusion of the criminal proceedings against him. He says no inference can properly be drawn against him for not cooperating or supplying a statement at this stage of the proceedings in the Tribunal.
28 In short, counsel for the practitioner says that if the practitioner were to be engaged as an employed solicitor in his brother's practice, he would not pose any appreciable risk to the public and the prospect of a real injustice to the practitioner through not being able to earn a proper income will be alleviated.
Contentions of the Legal Practitioners Complaints Committee
29 Counsel for the Committee emphasised that provisions such as s 182 of the LP Act are mechanisms for protecting the public interest and to
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- ensure speedy relief can be obtained if there is a risk to the public interest arising out of the activities of the legal practitioner.
30 Counsel says that the purpose of s 182 is to permit the restriction of a practitioner's right to practise before any finding of unsatisfactory conduct is made against the practitioner. In other words, there does not need to be a finding of unsatisfactory conduct, as that expression is defined in the LP Act, before the power of suspension in s 182 can be exercised by the Tribunal.
31 The Committee contends that the decision by the Tribunal as to whether it is in the public interest to order, or continue an order, that a practitioner be suspended on an interim basis, primarily falls to be assessed by consideration of the evidence before the Tribunal as to whether the respondent may have engaged in unsatisfactory conduct and the seriousness of the alleged conduct.
32 Counsel for the Committee points out that since the imposition of the suspension order on 31 May 2007, the practitioner has been charged with a number of counts of stealing.
33 The Committee also points to the fact that since the interim suspension order was made, but prior to the laying of the criminal charges, the Committee conducted further enquiries into the subject matter of the complaints. Further investigations undertaken by the trust account inspector since 31 May 2007 have traced cheques additional to transactions referred to in the initial report, made out to the practitioner totalling in excess of $700,000. In another case, a cheque paid into the practitioner's personal bank account and to his credit card, was drawn from the account of a client.
34 The Committee also referred to the inspector's affidavit where she refers to the supervising solicitor informing her of his receipt of a cheque in some $76,080 being the proceeds of the sale of shares on 8 June 2007. It appears instructions for the sale of these shares were provided by the practitioner on 30 May 2007 being the date the Law Complaints Officer's staff attended the practitioner's practice, or the previous day. The practitioner failed to mention to the Law Complaints Officer the prospective sale of these shares at that time.
35 The Committee contends that the evidence relied on to support the order for interim suspension made on 31 May 2007 and the subsequent information demonstrates, at the least, a prima facie case that the practitioner may have engaged in unsatisfactory conduct of the most
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- serious nature, of a dishonest character, directly related to his conduct as a legal practitioner and in the course of legal practice.
36 The Committee notes that as a result of the criminal charges being laid, and the practitioner dealing with those matters, the Committee has in the circumstances refrained from pursuing its inquiry pending the resolution of the criminal proceedings. The Committee says that while the practitioner claims that he is not guilty of any wrongdoing, he offers no evidence in support of that assertion. While this may be due to the fact he is responding to criminal proceedings, whatever his reasons for failing to provide additional information are, the lack of evidence before the Tribunal leaves a prima facie case of serious unsatisfactory conduct. Put another way, the Committee says that the mere fact that the practitioner has pleaded not guilty and has denied any wrongdoing does not of itself constitute a sufficient case to deflect an interim suspension order.
37 The Committee also draws attention to aspects of the proposed employment of the practitioner in his brother's practice which it considers unsatisfactory. First, the Committee says there is no explanation as to why the practitioner cannot be employed by his brother in some other "nonlegal position". Secondly, there is no indication as to what amount of remuneration the practitioner will receive. The Committee says this is important because it is not possible to determine if the practitioner actually would be prejudiced financially if he were not able to work as a lawyer. Thirdly, the Committee says there is insufficient detail given to the Tribunal as to the scope and content of the practitioner's duties as his brother's employee. Finally, the Committee is concerned that the close family relationship between the brothers may mean that the employer does not exercise the usual authority and supervision expected and required of an employed solicitor.
38 In short the Committee contends that the public interest clearly requires the continuation of the interim suspension order until further notice. The very serious allegations that have been made about the practitioner's conduct in legal practice require his suspension pending the determination of proceedings subject to those allegations which minimise the risk of harm to consumers of legal services offered by the practitioner, to maintain standards and to maintain the confidence of the legal profession.
(Page 9)
The Tribunal's findings
39 The Tribunal accepts the substance of the Committee's contentions. Section 182 of the LP Act, under the heading "Interim restrictions on practice", provides:
"(1) The Complaints Committee may apply to the State Administrative Tribunal for an order suspending a legal practitioner from practice, or restricting the entitlement of a legal practitioner to practise, pending
(a) inquiry, and determination or referral of a matter, by the Complaints Committee;
(b) the hearing of a matter by the Tribunal; or
(c) an appeal against a decision of the Tribunal.
(2) On an application under subsection (1), the State Administrative Tribunal may, in addition to or instead of any other order it may make, make an order under section 149 as though the application were an application by the Board."
40 Nothing in s 182, or elsewhere in the LP Act, expressly states what factors should be taken into account in the exercise of the Tribunal's power to make an order suspending a legal practitioner from practice or restricting the entitlement of a legal practitioner to practise, pending the events described. However, it can be taken from the general objects of the LP Act and Pt 12 of the Act, which deals with complaints and discipline, including the heading of s 182, that the Tribunal's power to suspend a practitioner from practice may be exercised prior to the Tribunal making any findings that the practitioner has breached the disciplinary standards laid down by the LP Act. In Re A Practitioner [2003] WASCA 172 at [49], Hasluck J had no hesitation in accepting that this was the case when he observed:
"I pause to say that this facility for providing interim relief is obviously designed as a measure to protect the public interest and to ensure that speedy relief can be obtained if there is a risk to the public interest arising out of the activities of a practitioner."
41 Counsel for the practitioner does not by his submissions mean to suggest that at the time the Tribunal made the suspension order and consequential orders on 31 May 2007, there was no good reason to do so. Indeed, at that time
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- the position was that the Committee had undertaken reasonably detailed enquiries into a number of transactions concerning clients of the practitioner and there were clear grounds of concern that if the practitioner were to continue in practice the public interest would be at risk. The public in this context include not only the existing clients of the practitioner but other potential clients who might consult him. Since that order was made, as noted earlier, the practitioner has been charged with a number of stealing offences.
42 The basis upon which counsel for the practitioner now suggests that the interim suspension should be lifted is primarily to permit the practitioner to earn a living greater than that which he can otherwise achieve. In recognition of the concern that rises from the practitioner being charged with serious stealing offences, the practitioner proposes that he will not practise on his own account, as a principal of a firm, but will be employed as a solicitor. Furthermore, he says that he will not handle money and will give an undertaking to the Tribunal and to the principal of the firm to that effect. As a result the practitioner suggests that there is no reason why the public should be considered at risk from him continuing to practise law.
43 There is no doubt that the Tribunal's powers to make disciplinary orders in respect of practitioners under the LP Act, both final and of an interim nature, are to be exercised for the purposes of the protection of public as consumers of legal services, and not as a means of "punishing" an errant practitioner or practitioner alleged to have breached professional standards. Propositions to this effect are to be found in High Court authority and repeated regularly: see New South Wales Bar Association v Evatt (1968) 117 CLR 177, 183.
44 The question here is whether the public interest would be put at risk if the suspension were lifted and conditions of practice imposed on the practitioner in the manner he has suggested.
45 The Tribunal can generally imagine hypothetical circumstances that might arise under which interim suspension of a practitioner from practice might not be necessary and an order limiting the practice of a practitioner may be sufficient to protect the public interest. For example a practitioner may be said to be lacking competence in a particular area of practice which suggests that conditions ought to be imposed on his or her practice pending the completion of an inquiry into his or her conduct.
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46 In this case however, the cause of concern is that a number of serious stealing charges have been brought against the practitioner and are the subject of the Committee's inquiry into the practitioner's conduct. The allegations are of the most serious nature. It is not necessary here to recount all the details, but they involve large sums of money. The transactions arise in the course of the practitioner's practice as a lawyer.
47 Utterly fundamental to the relationship of a legal practitioner and his or her client is trust and confidence. It is commonplace to speak about the relationship of a solicitor and client as a fiduciary one. A fiduciary relationship has consequences under the general law and equity. In relation to disciplinary matters, the fiduciary relationship emphasises the importance of a client being able to have full confidence and trust in a lawyer who acts for them.
48 Honesty and integrity are considered essential prerequisites to the right to practise law. Conduct most likely to lead to a practitioner's name being struck off the roll of practitioners is that which undermines the trustworthiness of a practitioner or which suggests a lack of integrity, so that the practitioner cannot be trusted to deal fairly within the system in which he or she practises: Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 Martin CJ at [8].
49 In the Tribunal's view, the public generally would have a diminished confidence in the legal profession as a whole, and in particular legal practitioners they might consult, if a practitioner charged with serious stealing offences arising out of his or her legal practice were to be permitted, even on an interim basis, to continue to practise law pending the determination of disciplinary proceedings into the conduct alleged against them.
50 The Tribunal does not mean to suggest that every time a legal practitioner is charged with some criminal offence it will necessarily follow that they should be suspended pending the determination of the disciplinary proceedings. However, in this case, the Tribunal considers that the confidence the public expects to maintain in the profession's adherence to high standards of conduct would be undermined if the practitioner were to remain unsuspended pending the finalisation of the inquiry into the serious matters alleged against him.
Conclusion and Order
51 For these reasons, on 11 October 2007 the Tribunal dismissed the practitioner's application for the suspension to be lifted on the terms
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- earlier described and ordered that the application to discharge or vary the suspension order was dismissed and that the directions hearing listed for 16 October 2007 was adjourned to 5 February 2008 at 10 am.
52 Further to these orders, the Tribunal also considers it is appropriate not to publish the name of the practitioner pending the conclusion of the criminal charges brought against him, for fear that the publication of these reasons and his name might prejudice those proceedings.
53 Accordingly, the Tribunal orders:
1. The application to discharge or vary the suspension order is dismissed.
2. The directions hearing listed for 16 October 2007 is adjourned to 5 February 2008 at 10 am.
3. Pending the outcome of the criminal proceedings against the practitioner or further order of the Tribunal, the practitioner's name is not to be published.
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT