Legal Practitioners Conduct Board v Kudra

[2014] SASCFC 37

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

LEGAL PRACTITIONERS CONDUCT BOARD v KUDRA

[2014] SASCFC 37

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Bampton)

11 April 2014

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN COURT

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS

Disciplinary proceedings against a legal practitioner following a finding by the Legal Practitioners Disciplinary Tribunal that the practitioner engaged in unprofessional conduct.  The unprofessional conduct involved the practitioner touching the breasts of a female client during an interview.  The practitioner claimed that his motivation in doing so was to enable him to make an informed decision as to whether the complainant had a reasonable chance of succeeding in a claim for medical negligence relating to breast enlargement surgery which she had undergone.  The Tribunal made no finding as to motive but found that the whole of the practitioner’s conduct amounted to unprofessional conduct.  The practitioner appealed against this finding, but the appeal was ultimately abandoned and the Court was invited to dismiss the appeal.

Held per the Court:

(1)  The practitioner’s conduct constituted too great a departure from proper standards, viewed objectively, for a fine or reprimand to suffice.

(2)  The interests of the public, the legal profession and the practitioner are best addressed by the practitioner being under supervision for a lengthy period.  The practitioner is to be subject to a period of supervision of two years.

(3)  The practitioner is to pay the costs of the Board, both before the Tribunal and before this Court, to be agreed or taxed.

Legal Practitioners Act 1981 (SA) s 5, referred to.

LEGAL PRACTITIONERS CONDUCT BOARD v KUDRA
[2014] SASCFC 37

Full Court:       Gray, Sulan and Bampton JJ

THE COURT.

1. On 14 November 2013, following the hearing of a complaint, the Legal Practitioners Disciplinary Tribunal found Victor Kudra, a legal practitioner, guilty of unprofessional conduct.  The Legal Practitioners Conduct Board, pursuant to the recommendation of the Tribunal, has commenced disciplinary proceedings against the practitioner in this Court.

2. The practitioner was charged with unprofessional conduct.  The charge against the practitioner related to his conduct during an interview with a female client, the complainant, on 2 December 2010.  It was alleged that in the course of that interview, the practitioner engaged in inappropriate and unnecessary physical contact with the complainant. 

3. The practitioner appealed against the decision of the Tribunal.  A single Judge of this Court referred the appeal to the Full Court to be heard at the same time as the disciplinary proceedings against the practitioner.  Ultimately, during the hearing of the appeal, the appeal was abandoned and the Court was invited to dismiss the appeal.

   Background

4. The substance of the conduct alleged by the complainant was admitted by the practitioner, with the exception of one factual dispute which will be discussed later in these reasons. 

5. On 2 December 2010, the complainant attended an appointment with the practitioner, whom she had not previously met.  The complainant was seeking legal advice about issues arising from breast enlargement surgery undergone in 2008.  Following that surgery, the complainant’s right breast was larger than her left breast and was painful and hard.  The complainant underwent corrective surgery in 2010 which failed to improve her condition.

6. The practitioner and the complainant went into an office together.  The door was shut and the practitioner and the complainant sat at opposite sides of a desk.  The practitioner took a history from the complainant and made notes.  The practitioner then asked the complainant whether he could “have a look”.  The complainant said “yes” and then removed her upper clothing, including her brassiere.  The practitioner then cupped the complainant’s right breast with his hand and pushed the breast upward and into the centre of the complainant’s chest.  The practitioner then touched the complainant’s left breast.  The nature of that touching was in dispute before the Tribunal.  There was some further discussion before the complainant put her brassiere and upper clothing back on and signed medical authorities.  The complainant then left the practitioner’s office.

7. The complainant did not make an immediate complaint about the practitioner’s conduct.  Several weeks later, she spoke to some of her female co-workers about what had occurred during the interview with the practitioner and they told her, “That’s not right, he can’t do that”.  On 17 January 2011, the complainant made a written complaint to the Legal Practitioners Conduct Board. 

8. The sole factual dispute at trial related to the nature of the practitioner’s touching of the complainant’s left breast. 

9. In her evidence, the complainant said that after the practitioner had touched her right breast, he reached over and pinched her left nipple between his thumb and first finger and pulled it. 

10. In his evidence, the defendant denied pinching the nipple of the complainant’s left breast.  He agreed that he touched her left breast but said that he did so using an open hand and only for the purpose of comparing its hardness to that of her right breast.   With the exception of the factual dispute concerning the touching of the complainant’s left breast, the practitioner admitted the substance of the conduct alleged by the complainant.  However, the practitioner denied the Board’s allegation that his actions were “indecent or lewd or for prurient or sexual purposes”. 

11. In evidence, the practitioner accepted that his conduct in asking the complainant to remove her top and in examining her breasts was completely inappropriate.  He said that his motivation in doing so was to enable him to make an informed decision as to whether the complainant had a reasonable chance of succeeding in a claim for medical negligence and to assist him in deciding whether to agree to act for her on a “no win no fee” basis.  He described his actions as amounting to a “gross error of judgment”.  He said that at the time of the interview with the complainant, he had been under significant stress and pressure as a result of a serious illness that was affecting his son.

12. Dr Carol Cayley, a clinical psychologist, interviewed the practitioner in September 2012.  In her report of 8 October 2012, Dr Cayley expressed the view:

    With reference to [the practitioner’s] lack of prudence in relation to the current matter, it is likely that his judgement was affected by the likely ongoing distress about his son’s wellbeing and the stress of trying to catch up the work that he had left unattended during the time that he was in hospital.  In these circumstances, [the practitioner] did not give sufficient thought to his actions.

    [The practitioner] reported that he has no previous history of similar complaints in over two decades of practice.  If [the practitioner] had a predilection for inappropriate behaviour it is likely that there would be repeated complaints about his actions, both professionally and in community matters.

    …

    [The practitioner] reported that he deeply regrets his behaviour and the distress that he caused to [the complainant].  He indicated his embarrassment about his thoughtless actions and stated that he did not believe that he would repeat this inappropriate behaviour. 

13. In relation to the factual dispute, the Tribunal found that the practitioner did touch the complainant’s left breast in a manner different to the touching of her right breast and, in particular, deliberately pinched the nipple of the left breast.  When addressing the practitioner’s evidence, the Tribunal made the following observations:

    The Board did not positively assert an indecent or lewd motive on the part of the Practitioner but submitted that it would be a finding open to the Tribunal.  On the basis of the conduct itself, an inference could be drawn as to an improper and indecent motive on the part of the Practitioner.  The Practitioner denied an indecent or lewd motive.

    We accept the evidence of the Practitioner’s good character which was given by the Practitioner’s personal assistant, a senior solicitor and two senior members of the South Australian Bar.  The Board did not challenge the evidence.  The Practitioner is a well-regarded and respected member of the local community.  He has engaged in voluntary community activities.  On the basis of the evidence before us, this conduct is out of character both professional and personally.

    The Practitioner did not give a satisfactory or compelling explanation for his conduct.

    …

    Despite the unsatisfactory nature of the explanation given by the Practitioner for his conduct, we are not prepared to make a finding of indecent or lewd motive.  Whatever the explanation for his conduct on this occasion, we accept his behaviour was out of character.

    Ultimately, it is not necessary for us to make a finding as to motive.  Even if the practitioner genuinely but mistakenly believed that the examination was necessary to help him to decide whether to act for the complainant and even if the stress caused by his son’s illness did in some way help to explain his conduct (neither of which we accept), neither would not [sic] mitigate its seriousness. …

14. The Tribunal summarised the evidence relating to the effect on the practitioner of the illness suffered by his son and, in particular, to the report of Dr Cayley.  The Tribunal concluded that the practitioner had been under considerable stress due to his son’s illness.  However, the Tribunal concluded that the association between his conduct and his son’s illness was not compelling.

15. The Tribunal found that the whole of the practitioner’s conduct amounted to unprofessional conduct within the meaning of section 5 of the Legal Practitioners Act 1981 (SA):

    … We have found that the Practitioner deliberately pulled the complainant’s nipple.  Even if we had not made that finding, our view would still have been that the conduct was unprofessional conduct. 

    In our view, the practitioner’s request to “have a look” at the complainant’s breasts and his subsequent physical examination of the complainant amounts to a “substantial…failure to meet the standard of conduct observed by competent legal practitioners of good repute”.

    We are satisfied that the Practitioner is guilty of unprofessional conduct.

    …

    This conduct was out of character.  It was a single incident.  However, because of the seriousness of the conduct and the magnitude of the departure from the standard of conduct observed by competent legal practitioners of good repute, we recommend that disciplinary proceedings be commenced against the Practitioner in the Supreme Court.

16. In our view, the conclusion of the Tribunal that the objective conduct of the practitioner was very serious unprofessional conduct was entirely justified.  Counsel for the practitioner characterised her client’s conduct as “completely stupid”.  Given the Tribunal’s rejection of the suggested explanations for the conduct, the incident can only be described as inexplicable.  However, as mentioned, viewed objectively, it amounted to serious professional misconduct. 

17. For a solicitor to ask a client to disrobe so that he could view her naked breasts and then touch her breasts was wholly inappropriate conduct.  The entire incident underscores the necessity for proper professional standards.  The client consulted the practitioner.  She understood that his request was an appropriate request to be made in the context of the professional relationship and, as a consequence, she complied.  At the time, she thought the touching of her left breast and the squeezing of her nipple was “weird”.  However, she trusted the practitioner and understood that he was acting in a professionally appropriate manner.  As noted above, it was only some weeks later, when discussing the incident with some female co-workers, that she realised that the behaviour was not appropriate professional behaviour and this led her to make her complaint to the police and later to the Law Society. 

18. Had there been a finding that the practitioner had some indecent or lewd motive, it is almost inevitable that an order striking his name from the Roll of Practitioners would follow.  The members of the profession must understand that such conduct represents serious misconduct.  The public are to be protected from such misconduct.  This public censure of the practitioner demonstrates both to the profession and to the general public that such misconduct is viewed very seriously.  Clients should be free to consult practitioners with the understanding that they should not be exposed to such conduct within the context of a professional relationship. 

19. The Board accepted that, in light of the Tribunal’s finding that the conduct was an isolated incident which occurred out of character and with no allegation of dishonesty, the case could be clearly distinguished from other cases involving intentional sexual misconduct.  However, the Board contended that the practitioner’s conduct nonetheless constituted too great a departure from proper standards, viewed objectively, for a fine or reprimand to suffice. 

20. In our view, this submission should be accepted.  The practitioner’s conduct suggests that he has an imperfect understanding of his broader professional responsibilities, particularly in regard to the relationship and dealings between solicitor and client.  We have reached the conclusion that the interests of the public, the legal profession and the practitioner are best addressed by the practitioner being under supervision for a lengthy period.  That supervision should be by a senior practitioner and should involve monthly meetings between the supervisor and the practitioner.  This will allow the practitioner to receive guidance as to the professional standards to be followed in his relationships with his clients and allow the supervisor to discuss with the practitioner on a monthly basis the manner in which the practitioner has dealt with his clients.  The supervisor is to report to the Board from time to time as to the practitioner’s progress under supervision and, in particular, has an obligation to report any matters of concern that may arise. 

21. The terms of supervision have been agreed and they are as set out below.  It has also been agreed that the practitioner should pay the costs of the Board, both before the Tribunal and before this Court, to be agreed or taxed.

    Conclusion

22. We would confirm the finding of the Tribunal that the practitioner was guilty of unprofessional conduct.  We would make an order that his practising certificate be endorsed as follows:

    -It is a condition of the practitioner’s entitlement to practise the profession of the law that he practise under supervision for a period of two years commencing on the date of this order.

    -The practitioner’s practising certificate is to be subject to the conditions outlined below which shall be endorsed upon his practising certificate.

    Those conditions are as follows:

    Purpose of Supervision

    -The practitioner acknowledges and agrees that the purpose of the supervision and the focus of the supervisor will be the maintenance of proper professional relationships by the practitioner with his clients and maintenance of proper personal boundaries between the practitioner and his clients.

    Identity of the Supervisor

    -The practitioner is to be supervised by Peter Eriksen, barrister, who has indicated his willingness and availability to supervise the practitioner for a period of two years. The retirement of the supervisor will not make him ineligible to continue in the role of supervisor.

    -In the event that the supervisor is at any time no longer available to supervise, the practitioner or his legal advisors, after consultation with the Legal Practitioners Conduct Board, shall apply to this Honourable Court for nomination of a replacement. 

    Conditions of Supervision

    -The supervisor will attend upon the practitioner on a monthly basis (in any convenient place) at which time the supervisor will review the practitioner’s legal practice and ensure that the practitioner is aware of all of his professional obligations generally.

    -The supervisor must provide a report of his supervision to the Board on a six monthly basis.

    -Separately and independently of the six monthly reports, the supervisor must report immediately to the Board any matter of concern that he may have in relation to:

    othe practitioner, including his health and well being;

    othe practitioner’s conduct of his practice; and

    othe practitioner’s compliance or non compliance with these orders.

    Practitioner’s Obligations

    -The practitioner will at all times cooperate with the supervisor in carrying out this order.

    -The practitioner shall authorise the supervisor to respond to any requests for information made by the Board.

    -The practitioner shall authorise the Board to publish any complaints received by the Board (and any correspondence to the practitioner from the Board) to the supervisor.

    -The practitioner will bear all the costs of the supervisor as agreed with the supervisor.

    -Subject to any client’s agreement to the contrary, the practitioner shall maintain his clients’ confidentiality in relation to all matters discussed.  To that end, discussions with the supervisor may be conducted without including mention of any particular that might identify a client or threaten confidentiality.

    -The practitioner will provide written authority to the Board for the Board to:

    ·    Obtain information about the practitioner and his practice from the supervisor by request in writing at any time during the currency of this order.

    ·    Publish any new complaints about the practitioner to the supervisor.

    -The practitioner will notify the Board within 7 days of any change in the practitioner’s circumstances or practice.

23. We would order that the practitioner pay the Board’s costs of the proceedings before the Tribunal and of the proceedings in this Court to be agreed or taxed.