Legal Practitioners Conduct Board v Boylen

[2003] SASC 241

LEGAL PRACTITIONERS CONDUCT BOARD  v BOYLEN

[2003] SASC 241

Full Court: Mullighan, Debelle and Gray JJ

1. MULLIGHAN J                The nature and circumstances of the conduct of Mr Boylen which has led the Legal Practitioners Conduct Board to seek an order that his name be struck off the Roll of Practitioners are set out in the reasons for judgment of Debelle and Gray JJ. Also, they have set out the relevant principles to be applied which I need not repeat.

2. Undoubtedly, Mr Boylen’s conduct towards clients, the Legal Practitioners Conduct Board, the Legal Practitioners Disciplinary Tribunal and others constitutes unprofessional conduct of a serious nature and brings into question whether Mr Boylen is a fit and proper person to practice law as a barrister and solicitor. But for unusual features of his circumstances, I would have concluded that he be struck off the Roll.

3. I need not set out the nature and circumstances of his conduct as they have been discussed in detail by the other members of the Court. However, there are, in my view, matters which justify a different course.

4. The evidence clearly establishes that, apart from the occasions of unprofessional conduct, Mr Boylen has been a competent, reliable and trusted practitioner over many years. He has been in practice since January 1984. At his present firm he has undertaken and discharged a very heavy workload. To effectively handle about 550 current litigious matters at one time requires hard work, skill and dedication. To do so effectively on a continuous basis demonstrates reliability, integrity and considerable professional ability.

5. His past record of unprofessional conduct, although serious, involves relatively few cases which he has handled. The first occasion occurred in 1993 when he settled a personal injury claim without instructions from the client and was guilty of delay. He accepted responsibility and the matter was resolved. He was admonished by the Legal Practitioners Complaints Committee.  His next breach of a proper standard of practice was unnecessary delay in processing a matter in 1995 and 1996. Because of his frank and prompt acknowledgement of his conduct and apology, he was again admonished. The next two matters were failure to respond to letters from the Board during 1999. Charges were laid before the Tribunal and Mr Boylen was found guilty of unprofessional conduct and fined a total amount of $8,000. He was also charged with unprofessional conduct being the non-payment of the fees of Mr McGuirk which is the subject of the present charges before the Tribunal and these applications before us.

6. The unprofessional conduct relating to Mrs L occurred over the period from 9^th December 1996 and until January 1999. The unprofessional conduct relating to Mr C commenced in February 1997 and continued thereafter until February 2000. The conduct relating to Mr McGuirk occurred in 1997 and again in 1998. It seems Mr McGuirk had complained to the Board because professional fees had not been paid to him. It is a matter of aggravation that unprofessional conduct relating to Mrs L, Mr C and Mr McGuirk occurred after Mr Boylen had been admonished by the Board on 13^th March 1995 and 22^nd January 1998.

7. However, I think there are sound reasons to conclude that the practitioner is now a fit and proper person to be a legal practitioner.

   1He enjoys the respect and support of the partners of his firm despite his conduct which is known to them.

   2He has been assessed by Dr Goldney, a psychiatrist, and Ms Stevens, a psychologist.  He does not suffer any mental illness or psychiatric condition or any psychological deficit which would compromise his ability to undertake the work of a legal practitioner.

   3He has worked consistently over many years as a very busy practitioner and during the last 10 years he has been extremely busy. His heavy work load has been discharged effectively and competently. With the exceptions when he behaved unprofessionally, he has demonstrated over a long period of time, and continues to demonstrate, that he can discharge the onerous work of a busy legal practitioner. His work has been mainly in the field of worker’s compensation and other personal injury claims which often cause stress because the work must be undertaken in a timely manner and with the need to impart realistic expectations to clients.

   4He enjoys a good reputation of honesty and reliability with other lawyers.

   5He has the support and respect of the clients who have expressed their views and trades union clients.

   6He continues to perform valuable work.

   7His partners wish to keep him in the firm and continue the partnership relationship with him. A partner, Mr Humphries, says that he “is in many respects the ideal solicitor” and is enthusiastic, energetic and genuinely concerned for the well being of his clients. He also said that Mr Boylen is one of the best solicitors with whom he had dealt.

   8The managing partner, Mr Hannon, says that Mr Boylen’s unprofessional conduct is “completely at odds” with his observations of the manner in which he had generally conducted himself as a solicitor and partner of the firm. He says he is one of the most competent and able solicitors with whom he has worked and that he is an energetic and able supervisor with respect to the legal work conducted by less inexperienced solicitors in the firm for whom he has been responsible.

   9Mr Boylen has recognised his problem which led to his unprofessional conduct. He acknowledged to the Tribunal that he will need external help and expects conditions to be imposed on his practising certificate if he is permitted to continue to practice. He is dealing with the problems which caused his errant behaviour. He has continued to see Ms Stevens and she has assisted him to gain insight into his past problems and to guard against repetition.

   10Mr Boylen’s practice was re-arranged in January 2001. The firm sought expert assistance and has put in place procedures to protect clients from oversight and carelessness by partners and professional staff. These procedures include a high degree of supervision. The procedures of the firm to deal with complaints by clients have been improved. He has been restricted in the kind of work he is doing and the number of cases which he is managing.

   11Mr Boylen has taken steps over the last two years to address his past failings. His partners are fully aware of his past misconduct and Mr Humphries and Mr Hannon are confident that there will be no repetition.

8. I have acknowledged the seriousness of Mr Boylen’s conduct and I agree with the general observations of the other members of the Court. As I have said, usually conduct of this nature would lead to his being struck off the Roll. In particular, the effect of his conduct upon Mrs L and her family must be given due consideration. However, I think the past misconduct should be kept in the true perspective. Mr Boylen must have handled some thousands of cases without complaint. It appears that when he undertook the cases involving Mrs L and Mr C he was at the time “out of his depth” and he adopted a self destructive position. It may be described as employing the “ostrich syndrome”. By putting the matters out of mind, it seems that he thought the problems would go away. In the other cases he seems to have believed that by telling lies the issues were resolved. There is no suggestion of any psychological or personality deficit and in all other aspects of his work he demonstrated integrity and good character.

9. Whilst the illness of his wife cannot in any way excuse his conduct, it caused considerable anxiety to him and added to his stress.

10. He did not personally benefit from his misconduct. Indeed, he has already paid a considerable price. There has not been a financial deficit to any of the clients and Mr Boylen has personally paid a substantial amount to Mr C.

11. In the reasons given for its decision, the Tribunal makes two particular observations which require consideration when deciding whether Mr Boylen is a fit and proper person to practice the law. It says, at para 9:

    “The admitted facts show an unfortunate trend in the inability of the practitioner to tell the truth when placed under any sort of pressure in the course of progressing a matter.”

    and, at para 29:

    “The Tribunal finds that Mr Boylen has failed to learn from the chances he has been given in the past when he was reprimanded and fined. He has been found guilty of unprofessional conduct previously. The public is entitled to think that a stage has been reached when they should no longer have confidence in him as a person of integrity and trust.”

12. Having considered the evidence and the material before the Tribunal, I do not think either of those observations is justified. As I have said, the evidence suggests that Mr Boylen worked effectively and completely under the considerable pressure of a very heavy workload over many years. It is only in respect of the cases of five clients and Mr McGuirk that he did not tell the truth. It is not accurate to say that there has been an unfortunate trend on his part not to tell the truth when placed under any sort of pressure in the course of progressing a case. Also, I do not regard the second observation of the Tribunal which I have mentioned as correct. Apart from the instances which I have mentioned, he has conducted himself appropriately. When all of the circumstances are considered, I do not think the stage has been reached when the public should no longer have confidence in him as a person of integrity and trust.

13. The events of the past few years have shown Mr Boylen has come to terms with his past failings and has learned from them. He continues to do good and responsible work and has the confidence of his partners, colleagues and clients.

14. This is an unusual case. Often practitioners who have misconducted themselves in the manner of Mr Boylen’s behaviour, are inefficient and incompetent practitioners who get into trouble for that reason and behave dishonestly to avoid responsibility. Such misconduct tends to occur in most of their work. That cannot be said of Mr Boylen.

15. Having considered all relevant matters, I think Mr Boylen is a fit and proper person to practice the law and he should not be struck off the Roll. I have reached that conclusion because his serious misconduct in the past has been addressed and the evidence establishes that the problems which caused that conduct do not now exist and are unlikely to again occur. In my view, the Court should impose safeguards to ensure, as far as possible, that Mr Boylen does not repeat his past misconduct. Pursuant to s 89(2)(b) of the Legal Practitioners Act 1981, I would impose conditions on Mr Boylen’s practicing certificate in that he not be permitted to practice for three years from this date unless under supervision of a practitioner of at least seven years’ standing. I would hear the parties as to whether any other conditions should be imposed.

16. Like Debelle J, I think this is a proper case for discipline. I would impose a fine of $20,000. In determining that penalty, I have had regard to the sum which Mr Boylen paid to Mr C and that it is likely that he will have to pay the costs of the Board of the proceedings before the Tribunal and this Court.

17. DEBELLE J         The Legal Practitioners Conduct Board (“the Board”) has applied for an order striking off Mr P R Boylen from the roll of legal practitioners.

18. The Board had laid three charges of unprofessional conduct against Mr Boylen before the Legal Practitioners Disciplinary Tribunal (“the Tribunal”).  The charges had been laid following investigations by the Board into complaints made against Mr Boylen by members of the public.  The charges concerned the practitioner’s conduct while an employee and later a partner in the firm of Duncan & Hannon.  The practitioner admitted each charge and the particulars of each charge.  On 8 November 2002 the Tribunal delivered its report finding that the practitioner had been guilty of unprofessional conduct.  It recommended that disciplinary proceedings be commenced against him.  In reaching that conclusion, it had regard to the fact that the practitioner had been guilty of other unprofessional conduct.

19. I set out the findings of the Tribunal in respect of the three matters, the subject of the respective charges, before identifying the other instances of unprofessional conduct.

    Mrs L’s Action

20. In 1993 Mrs L had consulted Duncan & Hannon to pursue a claim for medical negligence.  At first, other solicitors in the firm handled her claim.  Proceedings were instituted in the District Court.  Boylen took over the conduct of the action in 1995.  In September 1996 the action was listed for trial on 9 December 1996.  Boylen failed to inform Mrs L of that fact and failed to prepare the matter for trial.  It appears that the prospects of Mrs L succeeding with her claim were weak.  A failure to prepare the matter resulted in Mrs L not being advised that her claim would, in all likelihood, fail and not being able at an early stage to discontinue the action.

21. On 4 December Boylen made an offer to the two defendants to settle the claim for $75,000 plus $10,000 costs.  His conduct was highly irregular.  He had no instructions to make that offer and Mrs L did not know that the offer had been made.  On 5 December Boylen conferred with Mrs L and her husband.  He did not inform them that the action had been listed for trial or that he had made an offer in settlement of Mrs L’s claim.

22. The solicitors for the defendants rejected Boylen’s offer on behalf of Mrs L and made a counter-offer.  Boylen did not inform the Ls of that fact nor of the terms of the counter-offer.  Thereafter, there were several telephone conversations between the respective solicitors seeking to resolve the claim.  On 9 December 1996, Boylen, without instructions from Mrs L, consented to judgment in the District Court for the defendants against Mrs L and also consented to an order that Mrs L pay costs of each defendant fixed at $500 each.

23. Boylen did not inform Mrs L of the judgment.  Instead, he misled her into believing that the action was still on foot.  He falsely stated that her medical files had been sent to a medical specialist in Melbourne for an opinion and that he was waiting for that opinion.  On 25 November 1998 he informed Mrs L that he would provide a report on the progress of the action but failed to do so.  In that period, Boylen cancelled a number of appointments made by Mrs L.  In January 1999 Boylen told Mr L that he was getting nowhere with the action and suggested that Mrs L seek advice elsewhere.  Mrs L did not wish to do so but did in the end obtain advice from another practitioner who informed her of the true position.

24. In this matter, Boylen failed to advise his client properly, failed to prepare a matter, wrongly consented to judgment, and for a period of more than two years, from December 1996 to January 1999, actively engaged in a course of deceit as to the proper status of the matter.  Put simply, he repeatedly lied to his client.

25. Mrs L did not suffer any financial loss.  Duncan & Hannon paid $500 costs to one defendant and the other defendant did not press the judgment for costs.  However, Mrs L has plainly suffered a huge emotional loss.  This misconduct has had a devastating effect upon her.  She is justifiably very bitter.  Her experience has deprived her of the capacity to confide in any professional advisers.  Boylen’s conduct has also soured Mr L’s willingness to trust professional advisers.

    Mr C’s Action

26. In April 1994 Mr C consulted Duncan & Hannon to claim damages in respect of a work related injury which had occurred in Queensland in July 1993.  At first, Mr C was advised by others in the firm.  In January 1995 Boylen took over the conduct of the matter.

27. In January 1995 Boylen arranged with BankSA for a loan to pay the costs and disbursements of the litigation.  From time to time, funds were deposited in the trust account of Duncan & Hannon pursuant to that loan.

28. The action should have been commenced on 17 July 1996 but Boylen failed to issue proceedings.  He failed to inform his client and also failed to inform anyone in the firm of that fact.  He saw Mr C on 10 February 1997 but failed to inform him that he had not instituted proceedings within time.  Boylen saw his client on 12 May 1997 but misled him again as to the status of the action.  Mr C consulted Wallmans, a firm of solicitors who had acted for him on an earlier occasion.  Wallmans enquired as to the progress of the action.  Boylen replied on 1 September 1997 falsely stating that the matter would be resolved towards the end of 1997.

29. Mr C had borrowed $40,000 from a Mr Harris.  At the request of Mr C, Boylen sent three letters reporting on the progress of the action – one on 12 March 1998, the second on 23 September 1999 and the third on 19 February 2000.  In the last letter he stated that Mr C had a good claim for damages, that it would exceed the loan to Mr C, and that he would arrange for the loan to be repaid out of the damages recovered.  In that letter he said that he estimated that Mr C would recover about $200,000.

30. Boylen was guilty of other unprofessional conduct in this matter.  Mr C informed Boylen that he needed money with which to purchase a motor car.  He asked if Duncan & Hannon could lend him money.  In December 1997 Boylen drew down $1,000 from the loan for the litigation and paid it to Mr C who used it to buy the motorcar.  Plainly, this was highly irregular.  It was entirely contrary to the purpose of the litigation loan.

31. From about June 1996 Boylen cancelled many appointments which Mr C had made, failed to answer telephone messages left by Mr C, and failed to prosecute his claim.  From about July 1996 until February 2000 he actively misled his client as to the status of the claim.  Not only did he lie to his client but he falsely stated that offers had been made when no offers had been made.  In early 2000 he fabricated a fictitious offer of $85,000 from an insurer.  Then, in a letter dated 18 February 2000, he confirmed Mr C’s instructions to reject that offer of $85,000.  He also said that he would be contacting the firm’s agents in Queensland when that was not so.  He had earlier misled Mr C on 15 November 1999 by saying that the settlement of the claim was imminent when that was not so.  In early 2001 another member of the firm of Duncan & Hannon advised Mr C to obtain advice from other solicitors and handed the file to that firm.

32. Mr C did not suffer financial loss.  He made a claim against Duncan & Hannon’s insurer.  His then solicitors negotiated a settlement of that claim.  I refer to the fact that Mr C suffered no loss as part of the history of the matter.  Where a practitioner has been guilty of professional misconduct in dealing with a client, the misconduct does not change character because the client has not suffered loss: Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 at 740. In my view, it might, nevertheless, be a factor to which regard can be made when considering what disciplinary action should be taken.

    Dealings with Mr McGuirk

33. The third charge concerned payment of fees to an independent adviser.  When dealing with Mr C’s claim, Boylen had retained Mr McGuirk of McGuirk Management Consultants to provide psychological consulting services to Mr C.  Boylen failed to respond to requests by Mr McGuirk for payment of his fees.  In June 1997 Mr McGuirk complained to the Board which investigated the complaint.  On 2 July 1997 Boylen wrote letters to both the Board and to Mr McGuirk stating that Mr C’s claim was still unresolved and that he expected it to be resolved in late 1997.  The letters were quite dishonest given that:

    (a)Boylen had not instituted proceedings so that the action was statute barred and had been barred since 17 July 1996;

    (b)Boylen knew that proceedings had not been issued and that the matter was statute barred;

    (c)Boylen knew that he had not informed his client that the action was statute barred; and

    (d)Boylen had taken no action to address the fact that the claim was statute barred.

    The Board acted on the letter and, having regard to what it perceived to be the frank acknowledgement by Boylen of his delay in attending to the question of payment and Boylen’s apology for his conduct, determined that it was appropriate to take no action other than to admonish him which it did on 22 January 1998.

1. Mr McGuirk’s fees remain unpaid.  On 30 January 1998 he made a second complaint to the Board concerning the failure to pay them.  He also complained of Boylen’s failure to respond to his telephone messages and his failure to honour a promise to pay the fees by 20 December 1997.  The Board wrote to Boylen on 10 February 1998.  Boylen did not reply.  The Board had to write again to prompt a reply.  By then, Mr McGuirk’s fees had been paid.  It was not until 8 April 1998 that Boylen replied stating that Mr McGuirk’s fees had been paid and that Mr C’s claim was “now very close to finalisation”.  Plainly, Boylen then repeated the lies contained in his letters of 2 July 1997 concerning the prosecution of Mr C’s action.  Again, he had lied to and misled the Board.

2. On 30 June 1998 the Board charged Boylen with unprofessional conduct in respect of his failure to communicate promptly and adequately with Mr McGuirk concerning the outstanding fees and the breach of the undertaking to pay the fees.  At this stage, of course, the Board was unaware that Boylen had lied concerning the status of Mr C’s claim.  The charges were heard by the Tribunal in October 1998.  Boylen pleaded guilty.  At the hearing, the letters dated 2 July 1997 to the Board and to Mr McGuirk and his letter to the Board of 8 April 1998 were tendered as part of a book of agreed documents.  By referring to the letter of 2 July 1997 which stated that the claim had not been resolved but would be resolved later in the year, Boylen was misleading the Tribunal.  During the course of submissions on behalf of Boylen, his counsel made untruthful and misleading statements to the Tribunal.  This was in consequence of the fact that, as Boylen now admits, his instructions to his counsel were false and failed to disclose the true position.  In consequence, his counsel submitted to the Tribunal that Mr C’s claim “is an exceptional matter taking a lot longer because of difficulty with Queensland solicitors and the Queensland structure involved” when the delay was not in any respect attributable to Queensland solicitors.  Thus, the Tribunal was deceived in two ways.

3. On 16 December 1999 Boylen wrote to the Board setting out steps he had put in place to prevent further recurrences of the kind of conduct of which Mr McGuirk had complained.  He did not then inform the Board of the true status of Mr C’s claim.  On the basis of arrangements between the Board and Boylen, which included Boylen’s letter of 16 February 1999, the Tribunal acceded to the requests of the Board and of Boylen not to prosecute the enquiry.

4. Mrs L lodged a complaint with the Board in September 2000.  In the course of the investigation of that complaint, Boylen not only admitted his offending but also admitted his misconduct of Mr C’s claim.

   Other Complaints

5. These are not the only occasions on which Boylen had been guilty of unprofessional conduct.  In 1993, before he was employed by Duncan & Hannon and when working in another practice, a client had complained that he had settled a claim for damages for personal injury without her instructions and had been guilty of delay in resolving her claim and in dealing with the proceeds of settlement.  The complaint was resolved on the footing that there had been a misunderstanding between Boylen and his client and upon Boylen acknowledging his unprofessional conduct and his unacceptable delay.  He was admonished for this unprofessional conduct which occurred before the conduct, the subject of the three charges described above.

6. Boylen was guilty of other unprofessional conduct which occurred over the same period as the conduct, the subject of the three charges.  On 22 January 1998 he had been admonished for a complaint made in 1997 by a client who had complained of unnecessary delay in dealing with a claim and of a failure of Boylen to contact him for a period of over 12 months.

7. On 5 October 2000 the Tribunal had imposed two fines upon Boylen for unprofessional conduct on two separate occasions in relation to two clients. The first had complained on 18 March 1999 that he had charged fees in breach of an agreement for fees. The second had complained on 17 September 1999 of a failure to account properly for monies recovered in settlement of the claim. In both matters, Boylen had also failed to respond to letters from the Board and to notices issued pursuant to s 76 of the Legal Practitioners Act.

8. Apart from the conduct in 1993, Boylen’s unprofessional conduct occurred between 1996 and early January 2001.  He has continued to practise.  There have been no complaints concerning his conduct after January 2001.

9. The Tribunal has made a finding which is not entirely accurate.  At para 29 of its reasons it said:

   “The Tribunal finds that Mr Boylen has failed to learn from the chances he has been given in the past when he was reprimanded and fined.  He has been found guilty of unprofessional conduct previously.  The public is entitled to think that a stage has been reached when they should no longer have confidence in him as a person of integrity and trust.”

   The uncontroverted evidence does not support that finding.  Save for the matter in 1993, all of the unprofessional conduct occurred over the same period of years.  The finding conveys the view that Boylen was reprimanded and fined, and then subsequently engaged in unprofessional conduct.  The above recitation of the facts belies that view.

   Honesty – An Essential Attribute

10. At the risk of stating what is only common sense, fitness to practise requires honesty as well as knowledge and ability: Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 per Isaacs J at 682. That has long been the position, at least from the early 17^th century as Coke LCJ noted in a passage to which Isaacs J referred in Meagher’s Case at 682.  The need for complete candour and integrity, particularly in courts and tribunals and the role of the court, was expressed by Isaacs J in these terms at 681:

    “The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great.  But, if added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, these tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure.  There is therefore a serious responsibility on the Court—a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential.  It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability for the future.”

    In short, as Kirby P remarked in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 412 after referring to the judgment of Isaacs J in Meagher’s Case:

    “It is still true today, as it was in 1909, that high standards are expected of legal practitioners, particularly in their dealings with clients and the courts.  This is so that members of the public, litigants, other practitioners and the courts themselves can have confidence in the integrity of those who enjoy special privileges as legal practitioners.”

    In O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 230, Giles A-JA, with whom Kirby P agreed, expressed the need for complete honesty in these terms:

    “The profession is an honourable one and nothing less than complete honesty and candour in all instances is acceptable.  The client should be entitled to rely on the truthfulness of all that he is told.  The courts should likewise be entitled to accept without question assertions made by a solicitor.  If a solicitor is found to have deliberately lied to a client or to the court then he has failed, in a fundamental respect, to adhere to the required standards.”

    Like other forms of misconduct, dishonesty has grades of seriousness.  It may range from a single isolated incident of no more than passing consequence to a sustained course of misconduct causing substantial loss.  See also Attorney-General v Bax [1999] 2 Qd. R. 9 per Pincus JA at 20.

11. The legal profession, like others, is grounded on fundamental principles of candour and trust.  It requires honest and proper dealings between practitioners and clients, as well as between practitioner and other practitioners, with the Court and with all others with whom the practitioner has dealings.  A failure to act honestly and with complete candour and integrity strikes at the very core of the profession and of the standing of the profession in the eyes of the public.  Not infrequently, a practitioner’s clients are in a very vulnerable position, totally reliant on the practitioner’s skill and integrity.  They repose their trust and confidence in the practitioner to advise them and act in their best interests.  If a practitioner is other than totally frank and honest with his client, that trust and confidence is entirely destroyed.  Instead of protecting the interests of the client, the practitioner undermines them.  Not only will it cause the client to distrust his own adviser but it may cause the client to distrust other members of the profession.

    Unprofessional Conduct

12. On its face, the sustained course of deception in which Boylen engaged indicates that his name should be removed from the roll of practitioners.  Similarly, the lies told by Boylen to the Board and to the Tribunal are very grave forms of unprofessional conduct.  The utility and integrity of the disciplinary processes depends on complete candour on the part of the legal practitioner whose conduct is under investigation.

13. There can be no doubt that Boylen’s conduct was highly unprofessional and of a most reprehensible kind.  It was unprofessional conduct of a serious kind.  But, to adapt the remarks of Kirby J when dissenting in Foreman’s Case at 418, this is not the case of a practitioner who has committed many unconnected wrongs against many clients and others.  Instead, it is the case of a practitioner who failed to get on with the preparation and prosecution of the claims of two clients only.  Instead of acknowledging his errors, he sought to conceal them and, in order to be able to do so, he embarked upon a course of lies and deception.  He became caught up in that deception and lied to others.  Thus, in the result, he not only lied to his two clients but, in Mr C’s matter, he also lied to other solicitors, to his partners, to Mr McGuirk, to Mr Harris, to the Board on two occasions, to his own counsel, and to the Tribunal.  Had he not acted wrongly in the first place and acknowledged his failings, it is reasonable to suppose that this sustained course of deception would not have occurred.  As his psychologist’s reports disclose, he was the victim of his pride.  His pride did not permit him to do what his professional duty and moral responsibility dictated.  In addition, he was guilty of a misuse of the litigation fund.

14. The Tribunal heard statements from Mrs L and Mr C.  They were, in effect, victim impact statements.  The Tribunal noted that Boylen’s deceit had had a devastating effect upon the willingness of both Mrs L and Mr C to trust legal practitioners.

    The Court’s Function

15. When disciplinary proceedings are commenced against a legal practitioner, the Court is acting in the public interest and is primarily concerned to protect the public: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250 – 251; The Law Society of South Australia v Murphy (1999) 201 LSJS 456 at 460 – 461. In appropriate cases, the Court must also consider whether it should discipline or punish the practitioner. That is apparent from the fact proceedings under s 89 of the Legal Practitioners Act are disciplinary in nature and from the fact that the powers of the Court listed in s 89(2) do, in the main, have a disciplinary effect.

16. The fact that s 89(2) invests the Court with a range of powers from reprimand to removal from the roll of practitioners has a further consequence. That range of powers provides a clear expression of a legislative intention that a finding of unprofessional conduct does not necessarily lead to the conclusion that the practitioner is not a fit and proper person to practise: cf. O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 per Giles JA at 236. There are, of course, degrees of unprofessional conduct. The Court must, therefore, consider whether the unprofessional conduct is of such a nature that the protection of the public requires that the practitioner cease to practise or that the practitioner should be subjected to other controls upon the entitlement to practise short of removal from the roll of practitioners.

17. The Court must, therefore, carefully consider the nature and circumstances of the unprofessional conduct.  The question which the Court has to determine is whether it has been shown that the practitioner is not a fit and proper person to practise and the question cannot be stated more precisely than that: Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 297 – 298; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 189; Law Society of New South Wales v Foreman (supra); Law Society of South Australia v Rodda (2002) 83 SASR 541 at 545. The orders to be made by the Court are directed to ensuring that, to the extent that the practitioner is not fit to practise, the entitlement to practise is either restricted or denied: Foreman’s Case (supra) per Mahoney JA at 441.

18. When considering the conduct of the practitioner, it is necessary to examine every fact which may throw light on the ultimate issue whether he or she is a fit and proper person to practise: Ziems’ Case (supra) per Fullagar J at 288.  There are many kinds of conduct deserving of disapproval which do not necessarily spell unfitness to practise and to draw the dividing line is by no means always an easy task: Ziems’ Case per Kitto J at 298.  In some instances, the only question may be whether the practitioner should remain on the roll and there may be no question of punishment as the practitioner may have already been punished elsewhere.  An example is Ziems’ Case.

19. If a solicitor is permitted to remain on the roll, the Court is holding out to the public that he is a fit and proper person to be entrusted by the public with those difficult and delicate duties and that absolute confidence which the public must repose in persons who fulfil the duties of solicitors: The Southern Law Society v Westbrook (1910) 10 CLR 609 per O’Connor J at 619.

20. In Foreman’s Case at 444 – 445, Mahoney JA examined the factors to which a Court will, according to circumstances, have regard in deciding whether a person is a fit and proper person to practise as a legal practitioner.  In addition to the protection of the public, they include:

    ●The character of the solicitor, or those aspects of it relevant to the office of a practitioner.

    ●Whether the character of the practitioner is such that sufficient reliance can be placed upon an assertion that the practitioner will not offend again.  I add that this factor indicates that a court will, in appropriate cases, allow a practitioner to continue or resume practice notwithstanding prior misconduct.

    ●Whether the practitioner understands or is willing to accept the obligation which the law places upon the legal practitioner and the high standard of performance which it requires.

    ●Whether, in the light of the offence in question, the practitioner can establish and maintain the kind of relationship which must exist between legal practitioners.  That refers, among other things, to the assumptions and understandings which the nature of the business between legal practitioners requires to be made, one of the other.  I add that a legal practitioner, whether a barrister or solicitor, should be able to place reliance upon the word of another and to accept the other’s undertaking that he will do what he promises: see generally, Halsbury’s Laws of England (4^th ed) Vol 44, paras 355 – 358.

    ●The standing of the practitioner and the respect in which the practitioner may be held.

    ●The extent to which the Courts will be able to place reliance upon what the practitioner says and does.

    Mahoney JA identified the perception of the public as a further consideration (at 444).  He said:

    “       It is also, I think, relevant for the Court to take into account the effect which its order will have upon the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors.  The Court will no doubt, where appropriate, articulate the standards required and that they are high.  However, the Court must, I think, also take into account the effect upon what it has said of, for example, a decision to allow a solicitor guilty of a serious infringement of those standards, to continue to practise.”

    I respectfully agree with those observations.  They ultimately impact upon the standing of the profession in the eyes of the public.  As Dixon CJ noted in Ziems’ Case at 256, the purpose of the power to strike a practitioner’s name from the roll of practitioners is to maintain the high standards of the profession.

    Personal Circumstances

21. Boylen is aged 43 years.  He is married and has two young children.  He was admitted to practice on 19 December 1983.  He had worked in several firms before being employed by Duncan & Hannon in January 1995.  He became a partner in that firm in 1997.  His practice related, in the main, to claims for workers’ compensation or for damages for work related injuries.  His practice grew quickly as did his workload.  In 1996 and 1997 he had the responsibility for as many as 550 files.

22. In 1995 he experienced considerable stress when his wife was diagnosed as suffering from breast cancer.  She has since recovered.  From early 1995 and into 1996 he took over the responsibility of caring for his two young children and, as the Tribunal found, his work suffered in consequence.

23. Reports from a psychiatrist and a psychologist show that Mr Boylen has no psychiatric disability.  It appears that his failure to consult others and his firm about difficult matters stemmed from pride and a concern that, in doing so, he might indicate that he was not competent.  He was eager to impress his new employers and so did not seek advice when, plainly, advice was necessary.  In addition, he failed to identify and deal with the stress associated with the diagnosis that his wife was suffering from cancer and with the added familial responsibilities which increased the demands upon his time.  Those issues have now been addressed.  He acknowledges his responsibilities to his clients and to his firm.  He continues to see the psychologist for the purpose of ensuring no recurrence of his misconduct.

24. There can be little doubt that Boylen is aware of the gravity of his misconduct which resulted from inadequate management of his workload and a failure to seek assistance when required.  He has addressed those problems.  He is also aware of the harm that he has done to his clients.  He has expressed his contrition for that.  In the proceedings in the Tribunal he made an unqualified apology to Mr and Mrs L and their family who were all present at the hearing.  He expressed his remorse and acknowledged the action he ought to have taken.  In particular, he acknowledged the lies he had told Mr and Mrs L.

    High Opinions of Other Clients and Lawyers

25. On behalf of Boylen, affidavits from five clients were tendered.  Boylen had acted for these clients at different times in the period from 1995 to the present.  All of those clients speak of Boylen’s professional assistance to them and of his competence in very glowing terms.  They said that he had been honest and forthright in their dealings with him.  One of those clients is a woman who has worked in several legal firms and has a reasonable understanding of what is required of a legal practitioner.  All of those clients had read the report of the Tribunal.  Notwithstanding that report, they continue to express their individual confidence in his ability and high regard for him.  They were all willing to recommend him to others.

1. The assessment of these clients is reinforced by evidence from two legal practitioners who, like Boylen, practise mainly in workers’ compensation matters.  Mr Calligeros, a partner in another firm of solicitors, has had frequent dealings with Boylen, as an opposing solicitor.  In his dealings with Boylen he found him to be prompt, efficient and reliable.  At no time did he have any reason to disbelieve anything that Boylen had put to him.  He had read the Tribunal’s report and was extremely surprised with the contents of it.  In his opinion, Boylen was a highly regarded solicitor in workers’ compensation matters.  Mr Luke is a partner in another firm of solicitors and has been in practice for more than 12 years.  He confirms the evidence of Mr Calligeros.  He adds that Boylen has a reputation for being trustworthy and a person whose word can be relied on.  He has read the reasons of the Tribunal.  He believes the conduct, the subject of the charges against Boylen to be out of character.

   The Views of His Partners

2. Affidavits were also sworn by three of Boylen’s partners.  Two of those partners, Messrs Basheer and Humphries, joined the firm in January 2000.  Their detailed knowledge of Boylen is limited to a period of only just over two years.  Both are well-regarded practitioners with long experience.  Both have read the Tribunal’s reasons and are aware of the matters which led to it.  Both assert that the conduct outlined in those reasons is not consistent with their observations of the manner in which Boylen practises.  Both are surprised at the nature of the allegations and believe that the behaviour is not typical of the manner in which Boylen conducts himself as a practitioner.

3. Mr Humphries frequently acts as counsel in matters in which Boylen has briefed him and so has a reasonably detailed insight into his practice.  He has noticed an increasing willingness on Boylen’s part to seek advice or assistance from others when required.  He has not found Boylen to be anything other than frank and candid.  One of the five clients who swore an affidavit as to her confidence in Boylen had expressed to Mr Humphries the high regard in which she held Boylen.

4. The third partner is Mr Peter Hannon.  He employed Boylen in 1995.  He has been a partner in the firm for the whole of the time in which Boylen was a partner.  It is clear from his affidavit that Boylen was held in high regard when employed by the firm.  Mr Hannon was unaware of any difficulties with Boylen’s practice until 1998.  His view was that Boylen was properly attending to the affairs of his clients and Mr Hannon was receiving what he describes as “extremely positive” feedback from groups such as trade unions which had referred clients to the firm.  Boylen’s delays in relation to the L and C files have caused the firm to implement administrative procedures to prevent like conduct occurring again.  He describes how the firm has obtained a consultant to recommend procedures and has expended a considerable sum of money in establishing these procedures.  It now employs an experienced manager to implement them and other changes.  The new procedures directly affect Boylen’s work practices as well as others in the firm.  There has been no recurrence of unprofessional conduct by Boylen.  The firm is continuing to develop procedures to improve the level of client service and to ensure that all practitioners including partners are subject to regular review.

5. Mr Hannon is, of course, well aware of the matters which led to the proceedings before the Tribunal.  He has read the reasons of the Tribunal.  He states that the conduct as described in those reasons is completely at odds with his observations of the manner in which Boylen has generally conducted himself as a solicitor and as a partner in the firm.  He describes Boylen as one of the most competent and able solicitors with whom he has worked.  Boylen has also made significant contributions to the administration of the firm.  He has closely observed Boylen’s conduct in the past two years and is of the opinion that Boylen has earnestly taken appropriate steps to address his earlier failings.

6. All of the partners in Duncan Basheer Hannon have been informed of the charges against Mr Boylen and of the circumstances which led to them.  They acknowledge the damage done to their clients and to the legal profession.  They are all, nevertheless, supportive of Boylen and are prepared to continue to practise with him if he is permitted to remain in practice.  For his part, Mr Hannon says that he has every confidence that Boylen will, in future, uphold his responsibilities as a legal practitioner and as a partner of the firm.  He, too, is willing to remain in partnership with him if he continues to be entitled to practise.

7. I am prepared to give a good deal of weight to the views expressed by Boylen’s partners and especially Mr Hannon.  At the early stages of the investigation by the Board, and by the Tribunal, Boylen had lied to and deceived his partners, in particular Mr Hannon, as to the true position.  He had failed to disclose to the firm the difficulties in the L and C matters.  His lack of honesty and candour would have justified the partners in deciding to dissolve their partnership with him.  The fact that Mr Hannon and the other members of the firm are prepared to continue to remain in partnership with Boylen, notwithstanding that he has in the past misled them and notwithstanding the gravity of his conduct, is an important consideration.  The members of the firm are in a very good position to assess the character and competence of Boylen and the changes he has made to improve his work practices.

   A Difficult Case

8. This is a very difficult case.  I have given it anxious consideration.  The protracted course of lies and deceit in which Boylen has engaged is extremely serious and, in other circumstances, would have constituted grounds on which to remove his name from the roll of practitioners, particularly in light of his other unprofessional conduct.  There is no doubt about the moral blameworthiness of his conduct.  However, regard must also be had to his proven competence when acting for all of his other clients.  In addition, his misconduct resulted in no financial gain to him.  Competence should not be confused with honesty.  There are instances where competent legal practitioners have been struck off because of dishonesty.  As already mentioned, this is a case of a practitioner who failed to prosecute properly the affairs of two clients who, because of his pride, lied to them and others.  Not without some hesitation, I have concluded that, despite the gravity of his offending, he is a fit and proper person to remain in practice.  In reaching that conclusion, I am satisfied that sufficient reliance can be placed upon Boylen’s assertion that he will not re-offend again.  It might be said that his past misconduct wholly belies any reliance on his assertions.  However, the problems which led to his past misconduct have been addressed.  I am satisfied that he has clearly learned from his past mistakes and misconduct and has addressed the character defects which caused both.  There is evidence of a change of character.  He is aware of the need to consult with colleagues on matters which are difficult or unusual.  He is conscious of the severe consequences upon his clients if he fails to do so.  Equally importantly, his firm has established management procedures to prevent future lapses of this kind.  His workload has been considerably reduced to almost half that it was in 1996 and 1997.  His work, along with the work of all other practitioners in the firm, is subject to review.  In his case, it is subject to internal and external supervision and he recognises the need for that supervision and is willing to participate in it.  It is clear that he has considerable support both from his family and, significantly, from his peers.  He has addressed the psychological issues which, in part, allowed him to lie and deceive for such a long time.

9. I repeat, these charges arose out of deceit in respect of his handling of matters on behalf of two clients only among a great many clients.  By far the major part of his practice was entirely satisfactory.  Some of his clients speak very highly of him.  Since 2000 he has not offended again.  He has the respect of his professional colleagues who believe that his misconduct is out of character.  It is unlikely, therefore, that his relationships with his professional colleagues will be affected in a way which would jeopardise the interests of his clients.

10. Significantly, his partners wish to continue in partnership with him, notwithstanding that earlier he lied and deceived them.  They know the quality of his professional work.  They are in daily contact with him.  They are able to assess his character and his competence.  They are in a very good position to assess whether there is a risk that he will transgress again.  Plainly, they are confident in both his ability and that he will not offend in this way again.  Not for one moment, do I abdicate this Court’s function to his partners.  Instead, I recognise the fact that they are well placed to identify Boylen’s qualities as well as his failings.  Regard should be had to their assessment.  This Court should have regard also to the fact that, despite his lies and deceit as well as evidence of professional incompetence, the partners and Mr Hannon in particular are willing to remain in partnership with him.

11. In short, this is a case where, notwithstanding the gravity of the unprofessional conduct, it is not necessary for the Court to remove the practitioner’s name from the roll of practitioners or to suspend him.  These were isolated, albeit extremely culpable, incidents.  Boylen is a competent practitioner.  That is apparent from his handling of so many other files without complaint.  I am satisfied that he understands and is willing to accept the high obligations, the honesty and integrity, expected of a legal practitioner.  In the past two years, he has demonstrated that he understands and is willing to uphold those high standards.  There are positive indicators that he has the character and the capacity to do so.  In addition, he has the support of his partners in performing to those standards.  His reputation among other legal practitioners is such that his offending is unlikely to affect his relationship with them.

12. The public and other members of the profession are entitled to expect absolute integrity from a legal practitioner.  I repeat, the standards are high.  Although this offending is serious, I think that those who examine the full facts and have regard to the factors identified above, would understand why Boylen should be permitted to continue to practise.  I do not think it is necessary, therefore, to order removal from the roll of practitioners.

13. I have given careful consideration to the question whether Boylen should be suspended from practice for a period of time.  For the reasons expressed above, I do not think it is necessary nor do I think that anything is to be gained by it.  Suspension would cause some hardship to his existing clients.  It will not serve any person other than to deprive the practitioner of the capacity to earn income during the period of suspension.  That is effectively to impose a severe monetary sanction which is not merited in this case, particularly as noted in the next paragraphs, Boylen has already had to pay a substantial sum and may be liable to pay the costs of these proceedings.

    An Appropriate Penalty

14. However, there should be no perception that this kind of conduct does not merit a penalty of some kind.  Plainly, the conduct must be censured and I do so.  Although the primary purpose of disciplinary proceedings is to protect the public, it will be necessary on occasions to discipline the practitioner.  It is not enough for the Court to censure the conduct or simply reprimand Boylen.  It is necessary that the public and the legal profession understand the grave view the Court takes of his misconduct.  A failure to order a penalty conveys an entirely contrary view.  It is appropriate, therefore, in these disciplinary proceedings that the Court also consider the imposition of an appropriate penalty to mark its censure and disapproval of the offending.

15. Boylen has expressed his willingness to submit to supervision.  In my view, that is appropriate and should continue for three years.  Although Boylen will have to submit to supervision, that is not a sufficient penalty.

16. I have considered whether it is appropriate also to order Boylen to pay a fine. Section 89(3) of the Legal Practitioners Act preserves the inherent jurisdiction of the Court.  Fines have been imposed in several cases without any discussion: Re Heydon (1901) 1 SR(NSW) 81 at 87; Re Fanker (1913) 30 WN(NSW) 39. These decisions were noted without disapproval by the Supreme Court of the Australian Capital Territory in Ex parte Attorney-General for the Commonwealth; Re a Barrister and Solicitor (1972) 20 FLR 234 at 242; Re Guild (1979) 32 ACTR 13 at 29; and in Re Law Society of the Australian Capital Territory v Chamberlain (1993) 116 ACTR 1 at 18. Although the power to order a fine is not listed as one of the powers of the Court in s 89(2), reference to those decisions indicates that it is within the inherent jurisdiction of the Court. Furthermore, the Tribunal is empowered by s 82(6)(a)(ii) to order a fine not exceeding $10,000. It would be a curious anomaly if the Tribunal had power to fine but this Court did not.

17. Offending of this kind is liable to attract a substantial fine. When determining the amount of the fine, it must be noted that Boylen has already had to pay $28,332 to Mr C, being interest on the agreed liability to Mr C, and that it is likely that he will be ordered, pursuant to s 89(2)(e) of the Act, to pay the costs of the Board before the Tribunal and this Court. Those costs will be substantial and regard should be had to that fact. In all the circumstances, I would impose a fine of $20,000.

18. To summarise, I would censure the practitioner for his conduct.  I would order that conditions be imposed on his practising certificate requiring supervision of his practice for three years.  I would hear the parties on the appropriate terms and conditions of supervision.  I would also fine the practitioner $20,000.

19. GRAY J                 This is an application to strike off a practitioner from the roll of practitioners.

    Introduction

20. On 8 November 2002 the Legal Practitioners Disciplinary Tribunal found Patrick Robert Boylen guilty of unprofessional conduct and observed: 

    The public is entitled to think that a stage has been reached where they should no longer have confidence in [Mr Boylen] as a person of integrity and trust.

21. The Tribunal recommended that disciplinary proceedings be commenced in the Supreme Court.

22. The Legal Practitioners Conduct Board laid two charges of unprofessional conduct against Mr Boylen. Pursuant to s 76(1) of the Legal Practitioners Act 1981 (SA) the Tribunal resolved on its own motion to investigate Mr Boylen’s conduct in relation to a related matter.

23. The investigations arose from Mr Boylen’s dealings with two clients.  They also related to his conduct towards other legal practitioners, an expert, the Board and the Tribunal.  Mr Boylen acknowledged that he had engaged in unprofessional conduct.  He admitted the charges, the matters raised by the Tribunal and the facts alleged. 

    The Unprofessional Conduct

    Mrs L

24. In 1993 Mrs L consulted the legal firm Duncan & Hannon to pursue a medical negligence claim against two defendants.  Proceedings were issued in  the District Court in December 1994.  In February 1995 Mr Boylen took over the conduct of Mrs L’s matter.  In September 1996 the case was listed for trial on 9 December 1996. 

25. Mrs L was not informed that a date for trial had been set.  Mr Boylen took no adequate steps to prepare the matter for trial.  On 4 December 1996 Mr Boylen made a settlement offer of $75,000.00 together with $10,000.00 for costs and disbursements.  Mrs L had not instructed Mr Boylen to make any offer.  On 5 December 1996 Mr Boylen met with Mrs L and her husband.  Mr Boylen failed to inform Mrs L that her case had been listed for trial, that he had made an offer of settlement or the terms of that offer.

26. Counter offers were received.  Both defendants rejected Mrs L’s offer and indicated that they would each accept $10,000.00 in full settlement of their costs.  Mrs L was not informed of the existence of the counter offers or their terms. Negotiations without instructions took place between Mr Boylen and the defendants’ solicitors in an attempt to finally resolve the claim.  On the day of trial Mr Boylen attended before the District Court and consented to judgment being entered for the defendants against Mrs L.  He also consented to an order that Mrs L pay the defendants costs, each fixed at $500.00.  All these events occurred in the absence of any instructions from Mrs L.  She knew nothing of these developments.

27. Between December 1996 and January 1999 Mr Boylen failed to advise Mrs L that he had resolved her case.  During this period he led her to believe that her case was ongoing.  At one time he told her that he would send her papers interstate to obtain opinions from Victorian medical specialists.  He did not do so.  On 25 November 1998 Mr Boylen told Mrs L that he would report on the progress of her case within two weeks.  He did not do so.  Mrs L described the effect of this conduct:

    Initially, and for a month or two afterwards, [Mr Boylen] appeared to be moving forward – suggesting all sorts of strategies – we felt things would come to a head soon.  Wrong!  What followed was a mental nightmare.  Our lives & plans became – after the case!!!!  Remember, I was still having surgery so physically I was not 100%.  Wayne was often away from home, due to work commitments.  Our children were young teenagers in need of strong parental love, care and guidance – overshadowing all this was ‘the case’ – [Mr Boylen] was dictating, from afar – our family life and emotions.  Was there any thought for us and how his lying was affecting us?  There was time from work to be organised & then cancelled, there was time left waiting in the office of D&H only to be told [Mr Boylen] would have to cancel or worse still, have him rush through the reception area with a cursory greeting and explanation that he only had a moment as he had been called to court!  We tried desperately to keep the family unit as normal as possible but overshadowing everything was ‘the case’.  The anger and disappointment caused by what we now know to be the lies and deception of [Mr Boylen] were eating into our family like a parasite – this was in part because, not knowing when we would have to go to court and what the costs would be, we would only buy and do for ourselves and the house the essentials.  We tried to get on with our lives as best we could and let the system run its course.

28. Some time prior to January 1999 Mr Boylen told Mrs L that he was “not getting anywhere with the case” and suggested that Mrs L take the case elsewhere.  In January 1999 Mrs L’s files were collected from Duncan & Hannon.  Mrs L sought advice from another legal firm.   It was at this time that she first became aware that her claim had been dismissed more than three years earlier.  Mrs L’s description of her feelings demonstrates how conduct of this type has the capacity to erode public confidence in the integrity of the legal profession.

    Patrick [Boylen] – you will never know how your lying has hurt us, you held us on a string and played us like puppets – surely, knowing what we had already suffered you could have had a little understanding of how fragile we were – you were privy to very intimate information and you chose to cut even deeper into our vulnerability.  How could you have kept palming us off like you did – because we didn’t have degrees, did we look so stupid and ignorant, you thought we would hang around for ever or just go away?  Wrong – we had a very genuine need and you managed to compound all of the sadness and hopelessness we will ever feel.  The final indignity to us, that stung as much as a slap across the face, was my file boxes just being dumped in your foyer for collection.  Is that what you thought of us and our case?  I hope that you are never in the need of the kind of help we so desperately required and that your family don’t have to suffer emotionally as ours have – all because you put you trust into the ‘most trusted professions.’

    Mr C

1. In or about April 1994 Mr C consulted Duncan & Hannon in relation to a work related injury.  Mr Boylen took over the conduct of the case in or about January 1995.  At that time a bank litigation loan facility was established.  The purpose of the facility was to meet legal costs, disbursement and expenses.

2. Proceedings should have been issued by 17 July 1996 but were not.  As a result Mr C’s claim became statute barred.  Mr Boylen failed to inform Mr C or anyone at Duncan & Hannon that this had occurred.

3. On 12 May 1997 Mr Boylen advised Mr C that it would be three months before his claim could be resolved.  Mr Boylen misinformed solicitors who had previously acted about the status of the claim.  In correspondence he indicated that the claim would be resolved towards the end of the year.  This was not a true statement of the position. 

4. Mr C needed money to purchase a car.  He approached Mr Boylen for a loan.  Mr Boylen advised Mr C that the legal firm could not loan him money.  However, Mr Boylen arranged for a draw down from the litigation loan in the amount of $1,000.00.  Mr C’s recollection was:

   that [Mr Boylen] said to me that in relation to obtaining the litigation loan he would make out it was for medical reports or something to do with outstanding bills. 

5. The moneys were paid to Mr C from the litigation loan fund for the purpose of purchasing a car.  The purchase of the car had nothing to do with his claim.

6. At Mr C’s request Mr Boylen corresponded with another financier to whom Mr C was indebted in the sum of $40,000.00.  Mr Boylen led that financier to believe that Mr C’s personal injury claim was ongoing and would result in a substantial award of damages.  At that time proceedings had not been issued.  The claim remained statute barred.   Negotiations were not ongoing.

7. From June 1996 until February 2001 Mr Boylen failed to respond adequately to Mr C’s enquiries.  Numerous appointments were cancelled.  Mr Boylen failed to issue proceedings to properly progress the matter and failed to inform Mr C of the true position.

8. By his words and conduct Mr Boylen led Mr C to believe that his claim was in the process of being finalised.   However, nothing was being advanced.  The proceedings remained statute barred.   Between May 1998 and February 2000 Mr Boylen led Mr C to believe that settlement offers had been made.  No such offers existed.  By letter to Mr C dated 18 February 2000 Mr Boylen confirmed Mr C’s instructions to reject a purported offer of $85,000.00.  No such offer had been made.  In January or February 2001 Mr C sought independent legal advice.

   Misleading the Board and Tribunal

9. During the course of acting for Mr C Mr Boylen retained Mr McGuirk of McGuirk’s Management Consultants.  Mr McGuirk was a psychologist.  He provided a report relating to Mr C’s claim.  In June 1997 Mr McGuirk alleged that Mr Boylen had failed to communicate with him about the payment of his fee.  Mr McGuirk complained to the Board.

10. Mr Boylen provided a letter to the Board during the course of its investigation.  The letter suggested that Mr C’s claim would successfully resolve later that year.  At the time that this letter was provided no proceedings had been issued.  Mr Boylen had taken no action to address the fact that the matter was statute barred.  Mr Boylen provided the same explanation to Mr McGuirk.  The Board had regard to Mr Boylen’s apparent prompt and frank acknowledgment and apology.  It resolved to admonish Mr Boylen and did so by letter dated 22 January 1998.

11. On 30 January1998 Mr McGuirk again complained to the Board.  He had not received payment of his fee despite Mr Boylen’s undertaking. The Board embarked upon a second investigation and again sought a response from Mr Boylen.  In April 1998 Mr Boylen suggested to the Board that Mr C’s matter was close to finalisation.  This was despite Mr Boylen’s knowledge that the matter was not being progressed and remained statute barred.

12. On 30 June 1998 a charge of unprofessional conduct against Mr Boylen was laid by the Board.  The charge related to Mr Boylen’s failure to promptly and adequately communicate with Mr McGuirk concerning payment of the outstanding account and Mr Boylen’s alleged breach of an undertaking to pay the account. 

13. During the course of the Tribunal’s investigation Mr Boylen misled the Tribunal about the true status of Mr C’s claim and the payment of the account.  This was both by positive assertion and a general failure to be frank.  Mr Boylen failed to disclose that Mr C’s claim was not being progressed at all, that no proceedings had been issued, the claim remained statute barred and that he had taken no action to address the fact that the claim was statute barred.

14. On 16 February 1999 Mr Boylen wrote to the Board concerning the enquiry then before the Tribunal:

    As you will see from the file, I was previously admonished by the Board on 28 January 1998 for my conduct in April and May 1997 concerning Mr McGuirk – I agreed to the admonishment.

    Whilst I was fully aware that my conduct was deserving of an admonishment and I was contrite for my conduct, I did not fully consider the individual triggers that led to the conduct.  At the time I earnestly believed that I would not repeat such conduct.  Unfortunately, because of my failure to fully and objectively and analyse the matters or events that led to such conduct, regrettably the conduct re-occurred.  Whilst I did heed the warning and advice from the Board relating to my professional duties, I remained somewhat ignorant of the elements I must be alert to and hence further ignorant of what action I should take.

    Due to my earlier conduct re-occurring and the consequent personal agony I have experienced, I believe I now understand the reasons for my conduct (over both periods) and the reasons why the belief I held when admonished in January 1998 that such conduct would not recur – was false.  I have and continue to implement strategies to prevent further recurrences:

    -      Prompt returning of phone calls;

    -      Direct telephone line on all correspondence;

    -      Identifying any problems at an early stage and dealing with them promptly;

    -      Reduction of my workload by

    (a)     reducing the number of new clients;

    (b)     only accepting instructions on matters that I have the time resources to deal with fully (the aim being to avoid the problem of the more difficult cases being left in favour of the less difficult); and

    (c)     delegating more work.

    -Ensuring that I have more time in the office where I am not in conference with clients and so I am able to deal with more difficult matters and the administration of my practice.  Previously, I had no ‘down-time’ in the vast majority of my days.  I now fully utilise this allotted ‘free time’ and feel I am more in control of the broard base of my practice;

    -From the beginning of March 1999 when my assistant solicitor increases her work load, I will be taking one day per fortnight to work from my home office on files that need space and time for full consideration.

    I am happy to expand on any of the above.  Further, I am happy to consider and implement any suggestions from the Board.

    I request the Board to reconsider this matter so that it may conclude with a further admonishment.

15. On 16 March 1999 having accepted Mr Boylen’s undertaking to take steps to develop and follow proper professional practices the Tribunal determined not to proceed with the charge. When making its determination the Tribunal was under the mistaken belief that Mr Boylen had been candid and frank in his disclosures.

16. It is of particular concern that at the time this earlier enquiry was before the Tribunal and Mr Boylen was professing contrition and the implementation “of strategies to prevent further occurrences” his unprofessional conduct toward Mr C continued.  His ongoing deception of the Board and the Tribunal led to leniency being accorded to him by the Tribunal.  His failure to address his ongoing unprofessional conduct in these circumstances is a serious matter. 

    The Tribunal’s Findings

17. The Tribunal in the present enquiry reached the conclusion that Mr Boylen had engaged in unprofessional conduct:

18. The Tribunal is faced with a practitioner who has shown over many years that he has:

    -acted without instructions and caused delay to a client

    -caused undue delay to another client

    -failed to pay other professionals their fee

    -charged fees in breach of a fee agreement

    -failed to respond to letters from the Board

    -failed to respond to statutory notices issued to him

    -failed to provide a proper statement of account

    -misled Mrs [L] and her husband and caused emotional upheaval within her family

    -knowlingly acted in breach of the criteria for the purpose of a litigation loan for Mr [C]

    -mislead Wallmans solicitors

    -misled Mr [H] a money lender

    -misled Mr C

    -failed to pay Mr McGuirk’s fees

    -misled Mr McGuirk

    -misled the Board

    -instructed his Counsel before a previous Tribunal to make misleading submissions and misled his counsel

    -misled that Tribunal

    The Tribunal noted:

    The admitted facts show an unfortunate trend in the ability of the practitioner to tell the truth when placed under any sort of pressure in the course of progressing a matter.

    The Tribunal then concluded:

    … Mr Boylen has failed to learn from the chances he has been given in the past when he was reprimanded and fined.  He has been found guilty of unprofessional conduct previously.  The public is entitled to think that a stage has been reached when they should no longer have confidence in him as a person of integrity and trust.

    In these circumstances the Tribunal is of the view that there is only one course it can take in view of the severity of the subject charges.

    Accordingly pursuant to section 82(6)(a)(v) of the Legal Practitioners Act 1981 the Tribunal recommends that disciplinary proceedings be commenced against [Mr Boylen] in the Supreme Court.

19. During the course of its report the Tribunal noted Mr Boylen’s explanation for his conduct.  He claimed that personality problems of his clients, personal stressors of his family and his heavy workload were all contributors.  Psychological and psychiatric reports were tendered.  They disclosed no clear psychiatric or other medical condition.   Mr Boylen’s family circumstances had caused him considerable stress.  It is apparent that Mr Boylen overloaded at work.

    The Application to this Court

20. Mr Boylen has engaged in ongoing unprofessional conduct for a period of more than five years.  During this period his conduct was the subject of earlier enquiries by the Board relating to Mr C’s matter.  He was then charged with unprofessional conduct before the Tribunal.  Notwithstanding these formal investigations into his conduct and, the conclusions reached, Mr Boylen continued to act unprofessionally in regard to the affairs of Mrs L and Mr C.   Mr Boylen engaged in ongoing dishonesty.   Mr C, Mrs L, other professionals, other persons, the Board and the Tribunal were all subjected to Mr Boylen’s dishonesty.  Mr Boylen’s conduct represents a grave departure from proper and professional standards. 

21. In the past considerable leniency has been extended to Mr Boylen.  He has been found guilty of unprofessional conduct, admonished and fined.  He has proffered undertakings to the Tribunal agreeing to follow proper professional practices.  These sanctions did not curb Mr Boylen’s unprofessional conduct and his ongoing dishonesty. 

22. Counsel for Mr Boylen accepted the gravity of his client’s conduct.  It was submitted that Mr Boylen had now come to realise the seriousness of his behaviour.  It was said that this had not been fully appreciated by him in the past. Mr Boylen’s personality was such that he found it difficult to admit fault.  Instead he had attempted to “cover up” his mistakes. 

23. Attention was drawn to affidavits filed in support of Mr Boylen’s position.  Several members of Duncan & Hannon indicated their support for Mr Boylen.  They spoke of his high professional standards.   A number of affidavits from clients attested to their satisfaction with Mr Boylen’s professional dealings with them. They spoke of Mr Boylen’s ability and his trustworthiness.  It was submitted that Mr Boylen had not gained personally from any of his misconduct.  Counsel urged the court to consider adopting a course other than striking Mr Boylen’s name from the Roll of Practitioners.  Submissions were made to the effect that this court should consider it appropriate to impose conditions on Mr Boylen’s right to practise.

24. It is of the utmost importance that public confidence in the legal profession be maintained.  Legal practitioners play an integral part in the administration of justice.  The obligations which accompany their position are commensurate with the responsibility involved.  The duties of legal practitioners include the duty to uphold the law, the duty to the court, the duty to their clients and the more general duty to members of the public.  The court and the public demand high standards from practitioners.  This is reflected in the legislative processes that regulate the admission of practitioners and govern their conduct.

25. Personal integrity is an essential attribute for a legal practitioner.  Legal practitioners must act honestly at all times.  There is an obligation of candour and frankness in dealings with clients.  A practitioner whose conduct is the subject of an enquiry by the Legal Practitioners Board or the Legal Practitioners Tribunal must also uphold the obligations of candour and frankness to the Board and Tribunal.  A practitioner has a duty to assist any such enquiry.  Attendance to these obligations is an essential part of proper professional conduct[1].

    [1] Law Society (SA) v Jordan (1998) 198 LSJS 434 at 476; Legal Practitioners Conduct Board v Hay (2001) 83 SASR 454 at 465; Legal Practitioners Conduct Board v Phillips (2002) 83 SASR 467 at [6-8]

26. Mr Boylen was blatantly dishonest.  Not only did he fail to honour his duty to his clients he also misled other practitioners, other professionals, other persons, the Board and the Tribunal.

27. Mr Boylen’s dishonest dealings continued for a lengthy period.  His conduct in negotiating and resolving Mrs L’s claim without instructions and without her knowledge was a grave breach of his professional obligations.  Considerable distress was caused to Mrs L and her family by Mr Boylen’s conduct.  He led them to believe that Mrs L’s claim was ongoing years after it had been resolved.  Mr Boylen had a fundamental misunderstanding of his duties as a legal practitioner.  

28. In its report the Tribunal made reference to a statement tendered from Mrs L showing the impact of Mr Boylen’s conduct on her life and the lives of her family.  Extracts from this statement have been referred to earlier in these reasons.  The statement further included the following comment:

    This really doesn’t tell what I am feeling, what it has done to that part of our family life, how it has diminished my faith in both the medical & legal system, who can we trust?  The tears have passed, the nightmare remains – sometimes I lay awake or just sit alone and question myself – then the self blame starts – why was I so stupid, why didn’t I question more, how could we have been so gullible?

    The Tribunal concluded:

    The statement of Mrs L is compelling because it illustrates the devastating effect which a legal practitioner can have upon a member of the public who is relying implicitly on the practitioner to be honest.  When it finally turns out that the practitioner has in fact embarked on a course of deceit over a long period of time, this has the affect of the client understandably having a distrust of the legal profession.

29. Mr Boylen’s conduct towards the Board and Tribunal including his lack of disclosure amounted to serious unprofessional conduct.  Public confidence in the legal profession necessarily involves confidence in the disciplinary process.  The need for integrity in the disciplinary process underscores the importance of the professional obligations of candour and frankness owed by legal practitioners to the Board and the Tribunal.  The Tribunal was misled at the very time that it was extending leniency to Mr Boylen.   Notwithstanding his acknowledgments of responsibility his expression of contrition and the giving of undertakings, Mr Boylen continued to behave unprofessionally.  Mr Boylen’s conduct had the tendency to erode the public’s confidence in that process and in the legal profession generally. 

30. Evidence disclosed that Mr Boylen was apparently competent in the areas in which he practised.  Although a practitioner may be technically competent   this does not address the departures from professional standards that have occurred in the present case.  There is much more to proper professional conduct than technical competence[2].  Practitioners deal with the public.  They are in a fiduciary relationship with their clients.  Trust and confidence are reposed.  Reliance on practitioners is high.

    [2] Legal Practitioners Conduct Board v Phillips (2002) 83 SASR 467 at [41]

31. Mr Boylen’s conduct in this case represented a gross departure from proper professional standards.  His sustained unprofessional conduct amounted to an abuse of the privileges which accompany a practitioners admission to this court.  His treatment of his clients was disgraceful and dishonourable.  Mr Boylen has shown a complete disregard for his obligations of candour and frankness.

32. In Legal Practitioners Conduct Board v Phillips[3], Prior J observed:

    This Court acts in the public interest and not to punish the practitioner.  The public interest is understandably demanding of proper behaviour and accountability from members of the profession. The conduct admitted and the interpretation placed upon it by the Tribunal demonstrates that the practitioner is not fit to remain a member of the profession.  Thus, the ordinary course is the order sought by the Board.  Absent such an order, public confidence in the profession could well be eroded.  Only those who have observed the required standards expected of the profession are permitted to remain members of it.

    Mr Boylen’s conduct is of such a kind that if tolerated would bring the legal profession into disrepute.  It is of a nature that would erode public confidence in the legal profession.  There is a need to protect the public from unprofessional and dishonest practitioners.  The public must be protected from legal practitioners who are ignorant of the basic rules of proper professional practise or indifferent to rudimentary professional requirements.

    [3] (2002) 83 SASR 467 at [30]

33. The gravity of Mr Boylen’s conduct necessitates his removal from the Roll of Practitioners.

    JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT

    1Law Society (SA) v Jordan (1998) 198 LSJS 434 at 476; Legal Practitioners Conduct Board v Hay (2001) 83 SASR 454 at 465; Legal Practitioners Conduct Board v Phillips (2002) 83 SASR 467 at [6-8]

    2Legal Practitioners Conduct Board v Phillips (2002) 83 SASR 467 at [41]

    3 (2002) 83 SASR 467 at [30]