Legal Practitioners Conduct Board v Lind - [2011] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LEGAL PRACTITIONERS CONDUCT BOARD v LIND
[2011] SASCFC 104
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Stanley)
29 September 2011
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - NEGLECT AND DELAY
Application by the Legal Practitioners Conduct Board for an order striking off the defendant from the roll of legal practitioners - where the defendant had been found by the Legal Practitioners Disciplinary Tribunal to be guilty of unprofessional conduct - the findings of unprofessional conduct related to the defendant's conduct in an estate matter and to her conduct in her dealings with the Board in the course of the Board's inquiries.
Held: the practitioner censured, fined, placed under supervision and restricted in the number of matters that she may conduct at any one time.
Legal Practitioners Act 1981 (SA) s 89, referred to.
Wentworth v New South Wales Bar Association (1992) 176 CLR 239; The Law Society of South Australia v Murphy (1999) 201 LSJS 456; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; Clyne v New South Wales Bar Association (1960) 104 CLR 186; Law Society (SA) v Jordan (1998) 198 LSJS 434; Law Society of South Australia v Rodda (2002) 83 SASR 541; Legal Practitioners Conduct Board v Hay (2001) 83 SASR 454; Legal Practitioners Conduct Board v Phillips (2002) 83 SASR 467, considered.

LEGAL PRACTITIONERS CONDUCT BOARD v LIND
[2011] SASCFC 104
Full Court Gray, David and Stanley JJ
GRAY J.

The Legal Practitioners Disciplinary Tribunal, following hearings into a number of complaints concluded that Katrina Jayne Lind was guilty of unprofessional conduct. The Legal Practitioners Conduct Board has applied for an order removing the name of the practitioner from the roll of legal practitioners.
The majority of the findings of unprofessional conduct related to the practitioner’s conduct in an estate matter. The Tribunal found that the practitioner failed to attend to her professional duties in a punctual and timely manner leading to a delay in the resolution of the estate and associated litigation of some nine years; that the practitioner failed to report to or keep the beneficiaries informed about the finalisation of the estate and in particular did nothing at all with respect to the estate for a period of about four years; that the practitioner’s conduct was unprofessional with respect to the prudential financial administration of the estate; that the practitioner failed to provide a full accounting of the estate to the beneficiaries for a period of some nine years and that on one occasion the practitioner had dishonestly misled the beneficiaries.
The remaining finding of unprofessional conduct concerned the practitioner’s dealings with the Board in the course of the Board’s enquiries. The Tribunal found that the practitioner failed to assist the Board with its enquiries and failed to respond to repeated requests of the Board over several years. There were occasions when the practitioner did respond but generally these followed the serving of a statutory notice requiring a response.
Neither the above findings of the Tribunal nor the conclusion of unprofessional conduct were the subject of any challenge by the practitioner in this Court.
The practitioner in the early 1980s was admitted as a practitioner of this Court. Following her admission, she accepted a position with an Adelaide law firm. In or about the year 2000, she joined the firm Windevere Bellman and remained with that firm until June 2010. It was while a partner of this firm that she engaged in the conduct the subject of these proceedings. Since June 2010 she has conducted practice on her own account.
A psychiatric report of Christopher Branson of 28 February 2011 outlined the practitioner’s personal history. Dr Branson conducted a mental state examination which revealed no psychosis or cognitive abnormality. Dr Branson did not consider that the practitioner would satisfy the criteria for the diagnosis of any psychiatric illness. Nor did it appear that the practitioner would satisfy the criteria for any particular personality disorder. Dr Branson considered, however, that the practitioner had a personality with avoidant and obsessive compulsive traits. It was Dr Branson’s view that these personality traits predisposed the practitioner to the professional difficulties that now confront her. Dr Branson opined: “[h]er tendency in the past has been to try to avoid dealing with problems even when logically she knew that serious consequences might flow from this. The worse this got, the harder it was for her to try to grasp some control of the situation”. Dr Branson considered that in the estate matter the subject of the disciplinary proceedings, this situation arose and matters developed “so far out of [the practitioner’s] control that she could no longer deal with it”.
Dr Branson explained that there was no treatment available to allow a fundamental change in a person’s basic personality. In his view, people with the personality traits of the practitioner can learn and develop techniques to deal with their problems and construct their professional and personal lives in such a way so as to avoid the types of difficulties that may arise.
In Dr Branson’s view the key to the practitioner’s ability to attend to professional standards is predominantly dependent on proper and adequate supervision. In this respect Dr Branson contemplated ongoing close supervision. He considered that it would be necessary for the practitioner to be open and forthright in her dealings with her supervisor. The supervisor should, in Dr Branson’s opinion, closely monitor the practitioner’s practice and have particular regard to the orderly progression of the practitioner’s files. The supervisor would need to have a clear understanding of the practitioner’s difficulties and be in a position to confront her about issues such as delay and avoidance.
The practitioner placed evidence before the Court outlining the nature of her current practice. She drew attention to its specialised nature – family law and succession law – and to the limited number of files comprising her practice. She outlined the supervision provided by her former partner, Mr Bellman. He in turn outlined the regime of supervision.
As noted above, the Board sought an order removing the practitioner’s name from the roll of practitioners. Counsel submitted that the unprofessional conduct of the practitioner had continued for many years. Emphasis was placed on the finding of dishonesty. It was submitted that the practitioner’s failure to respond to the Board and to assist its enquiries and the fact those failures were many, repeated and over some years represented serious unprofessional conduct.
The practitioner contended that a striking off order would be too severe. It was said that the public would be adequately protected by the practitioner practising under supervision for some years. It was accepted that a supervisor nominated by the Board would be appropriate. It was further accepted that it was within the discretion of this Court to impose a fine.
When disciplinary proceedings are commenced the Court acts in the public interest and is primarily concerned to protect the public.[1] In appropriate cases, the Court should also consider whether to discipline or punish the practitioner. The proceedings under section 89 of the Legal Practitioners Act 1981 (SA)[2] are disciplinary in nature. The powers of the Court when exercised have a disciplinary effect. Section 89(2) provides the Court with a range of powers – from reprimand to striking off.
[1] Wentworth v New South Wales Bar Association (1992) 176 CLR 239, 250-251; The Law Society of South Australia v Murphy (1999) 201 LSJS 456, 460-461.
[2](1) Where the Tribunal after conducting an inquiry into the conduct of a legal practitioner recommends that disciplinary proceedings be commenced against the legal practitioner in the Supreme Court, the Board, the Attorney-General or the Society may institute disciplinary proceedings in the Supreme Court against the legal practitioner.
(2)In any disciplinary proceedings against a legal practitioner (whether instituted under this section or not) the Supreme Court may exercise any one or more of the following powers:
(a)it may reprimand the legal practitioner;
(b)it may make an order imposing conditions on the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate)—
(i)relating to the practitioner's legal practice; or
(ii) requiring that the legal practitioner, within a specified time, complete further education or training, or receive counselling, of a specified type;
(c)it may make an order suspending the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order or until further order;
(d)it may order that the name of the legal practitioner be struck off the roll of legal practitioners maintained under this Act or the roll kept in a participating State that corresponds to the roll maintained under this Act;
(e)it may make any other order (including an order as to the costs of proceedings before the Court and the Tribunal) that it considers just.
(3)This Part does not derogate from the inherent jurisdiction of the Supreme Court to discipline legal practitioners.
…
When considering the conduct of a practitioner, it is necessary for the Court to examine every fact which may throw light on the ultimate issue – whether the practitioner is a fit and proper person to practise.[3] There are many kinds of conduct deserving of disapproval which do not necessarily spell unfitness to practise, and to draw the dividing line may be difficult.[4] 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.
[3] Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 288.
[4] Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 298.
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 a practitioner’s position are commensurate with the responsibility involved. The duties of legal practitioners include a duty to uphold the law, a duty to the Court, a duty to clients and a 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.
Personal integrity is an essential attribute for a legal practitioner. 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 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.[5]
[5] Law Society (South Australia) v Jordan (1998) 198 LSJS 434, 476; Legal Practitioners Conduct Board v Hay (2001) 83 SASR 454, 465; Legal Practitioners Conduct Board v Phillips (2002) 83 SASR 467, [6]-[8].
In my opinion the unprofessional conduct of the practitioner is serious. Her dealing with the estate matter involved gross delay. The finding of dishonesty in communication with the client is a serious matter. The public are entitled to expect absolute integrity from a legal practitioner. The standards are high. The practitioner’s unprofessional conduct in her dealings with the Board is very serious. The proper workings of the Board are important to the maintaining of public confidence in the legal profession.
My examination of the entire facts and circumstances allows the conclusion that the practitioner should be permitted to continue to practise. I do not consider it necessary to order removal from the roll of practitioners. I have given consideration to the question of whether the practitioner should be suspended from practice for a period of time. On balance, I consider that there would be little to be gained from suspension. It may cause some hardship to clients.
I turn to consider the appropriate penalty to be imposed. The practitioner’s unprofessional conduct should be the subject of censure. However, this alone would not be sufficient. The public and the legal profession must understand the grave view the Court takes of the practitioner’s misconduct. A failure to impose a penalty would imply or convey an entirely contrary view.
The practitioner has expressed a willingness to submit to supervision. I would order supervision for three years. The supervisor should be a person approved by the Board and the expense of supervision should be met by the practitioner. The practitioner should be limited in the number of files on which she may act for this three year period.
It is accepted that the Court has an inherent jurisdiction to impose a fine. Conduct of the kind in the present proceeding is liable to attract a fine. In particular the unprofessional conduct of the practitioner with respect to the Board enquiry is a serious matter. In all the circumstances I would impose a fine of $20,000.00.
Conclusion
I would censure the practitioner for her conduct. I would order that conditions be imposed on the practising certificate of the practitioner noting the requirement for supervision for three years. I would limit the number of files on which the practitioner may be permitted to act at any one time. I would fine the practitioner $20,000.00. I would order the practitioner to pay the costs of these proceedings.
The Board should submit minutes of order addressing in particular the issue of supervision, conditions and the restriction on the number of matters that the practitioner may handle at any one time.
DAVID J: I agree with the reasons of Gray J and the orders he proposes.
STANLEY J: I have had the advantage of reading the draft reasons of his Honour Justice Gray. I agree with his Honour’s reasons and the orders he proposes.