Legal Practitioners Conduct Board v Lind (No 2)
[2011] SASCFC 119
•25 October 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LEGAL PRACTITIONERS CONDUCT BOARD v LIND (No 2)
[2011] SASCFC 119
Reasons for Decision of The Full Court
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Stanley)
25 October 2011
PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES - CANCELLATION AND SUSPENSION
Reasons for making interim order suspending a legal practitioner from practice – where this Court following hearing of an application by the Legal Practitioners Conduct Board for an order striking off the practitioner from the roll of legal practitioners, declined to make such an order and instead indicated that it would censure, fine and order that the practitioner be placed under supervision and be restricted in the number of matters that she may conduct at any one time – where the Court adjourned the matter to 12 October 2011 to allow formal orders to be agreed by the parties – where the practitioner was absent at the time of the adjourned hearing, and had not provided instructions to allow the orders to be drawn, agreed and presented to the Court at the adjourned time – where an adjournment sought – Court of the view that this conduct indicated a possible repeat of the conduct which had given rise to earlier findings of unprofessional conduct in relation to the Legal Practitioners Conduct Board proceedings.
Legal Practitioners Conduct Board v Lind [2011] SASCFC 104, considered.
LEGAL PRACTITIONERS CONDUCT BOARD v LIND (No 2)
[2011] SASCFC 119FULL COURT: Gray, David and Stanley JJ
Gray J:
Introduction
On 12 October 2011, this Court made an interim order suspending a legal practitioner, Katrina Jayne Lind, from practice. These are my reasons for joining in that decision.
Background
The Legal Practitioners Disciplinary Tribunal, following hearings into a number of complaints, concluded that the practitioner was guilty of unprofessional conduct. The Board applied for an order removing the name of the practitioner from the roll of legal practitioners. That application was heard by the Full Court on 7 September 2011. The practitioner was represented by Queens Counsel. On that occasion, following argument, the Court stood the matter over to 15 September 2011.
On 15 September 2011, the Court indicated to the parties that it had considered the matter and reached a conclusion as to the orders that should be made. The Court indicated that it did not consider that an order striking the name of the practitioner from the roll of practitioners was called for, nor was an order for suspension. However, the Court indicated that it considered that there should be conditions imposed on the practising certificate of the practitioner and that she should be subject to supervision for a period of three years by a person approved by the Board. It was indicated that the conditions of supervision should be the subject of consideration by the Board. Further, it was indicated that there should be a limit on the number of files on which the practitioner may act at any one time. Finally, the Court indicated that it thought it appropriate that the practitioner be fined $20,000.00 and pay the costs of the proceedings before the Supreme Court.
The Court did not make the orders intimated and stood the matter over to enable minutes of order to be prepared. The matter was adjourned to 12 October 2011 at 9:30 am for the making of orders in accordance with the above intimations of the Court. In the meantime, the Court prepared reasons for its conclusions as intimated above, and delivered those reasons on 29 September 2011. The Court did so, as the making of the supervision order and the orders limiting the number of files to be handled by the practitioner could be made at an appropriate date. Formal orders awaited the adjourned date of 12 October 2011, when the terms of the minutes would be addressed.
On 11 October 2011, the solicitor for the practitioner contacted my chambers advising that it would be necessary to adjourn the 12 October 2011 listing as the practitioner was in Hawaii and the solicitor had not been able to obtain instructions as to the draft minutes of order that had been prepared by the Board.
The solicitor was advised that the matter was listed for hearing and any application for adjournment would need to be made to the Court on that occasion. The matter was called on at the adjourned time of 9:30 am on 12 October 2011. Counsel for the Board provided a copy of the minutes of order sought by the Board. The draft minutes relevantly provided:
Supervisor
The Practitioner is to be supervised by a Solicitor (“the Supervisor”) with at least 15 years post admission experience.
That the Supervisor currently and continues throughout the period of supervision to practise in the area of Family Law and Estate and Succession Law.
That the Supervisor consents to the Supervision of the Practitioner for three years.
Conditions of practice
That the Practitioner will notify in writing each existing client of her practice and all future clients of her practice (“her clients”) that she is practising subject to an Order of the Supreme Court of South Australia that a condition be placed on her Practising Certificate, namely that she be subject to Supervision for 3 years…
That the Practitioner will advise her clients that their file will be viewed by the Supervisor, but that her clients’ confidentiality and privilege will be maintained.
That the Practitioner will request each client to provide a written acknowledgement and consent that the file will be viewed by the supervisor.
That the Supervisor will attend at the office of the Practitioner (and any other office maintained by the Practitioner) on at least a weekly basis at which time the Practitioner must produce for inspection by the Supervisor each file maintained by her for review.
That at the first meeting with the Supervisor the Practitioner will prepare and provide to the Supervisor a Supervision Register detailing for each client file maintained by the Practitioner:
i. client name;
ii. client reference number;
iii. brief description of the subject matter of the file;
iv. the date and details of the last action taken by the Practitioner in the matter.
That the Supervision Register must be kept up to date with the date and details of each last action with regard to each file held by the Practitioner.
That the Supervisor be required to sign off on each page of the Supervision Register after reviewing the file and noting the further action to be taken in the file and conveying to the Practitioner any matters arising out of the Supervision, relevant to the Practitioners Practice, files and generally and noting those matters in the Supervision Register.
That the Supervisor must provide a copy of the Supervision Register, to the Legal Practitioners Conduct Board (“the Board”), on a monthly basis.
That separately and independently of Supervision Register, the Supervisor must report to the Board any matter of concern that he or she may have in relation to:
a. the Practitioner;
b. the Practitioner’s conduct of her practice; and
c. the Practitioner’s compliance or non compliance with these Orders within 2 days.
That the Practitioner authorise the Supervisor to respond to any requests for information made by the Board.
That the Practitioner is authorised to conduct a practice consisting at any one time of a maximum file load of 35 files in total, regardless of whether a number of the said files may be for the same or related clients. It shall be within the absolute discretion of the Supervisor, when performing their assessment, notations and reports at paragraphs 2.7, 2.8 and paragraph 3 of these Orders, to determine due to the size and/or complexity of any file or files that the maximum file load should be reduced from 35 files to a reduced number of files. That decision shall be final and binding. If the Practitioner disagrees with the Supervisors opinion and assessment of the reduced file load, the Practitioner is to apply to The Supreme Court in action 494 of 2010, to determine the appropriate file load.
That the Practitioner authorise, the Board, to publish any complaints received by the Board (and any correspondence to the Practitioner from the Board) to the Supervisor.
That the Practitioner will pay the costs of the Supervisor in relation to Supervision of the Practitioner’s practice.
The Practitioner will notify the Board within 7 days of any change in the Practitioner’s circumstance or practice.
On their face, these minutes appear to address the matters raised in my earlier reasons.
A solicitor from the firm of the practitioner’s solicitor attended on 12 October 2011 and pursued the application for an adjournment. The Court was informed that although some instructions had been obtained, the practitioner’s solicitor was not yet in a position to respond to the Board in relation to the draft minutes. Some concern was expressed about particular aspects of the minutes.
After hearing from the parties, the Court re-listed the matter for further submissions on 26 October 2011, and indicated that it would further consider the appropriate orders to be made. The Court made an order suspending the practitioner from practice until further order. As the practitioner, her counsel and the solicitor with care and conduct of the file were not present, the Court granted liberty to the parties if so instructed to apply at short notice to have the matter called on.
The Conduct
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 was admitted as a practitioner in the early 1980s. In 2000, she joined a firm and later became a partner of that firm. It was during this time that she engaged in the conduct the subject of these proceedings. Since June 2010, the practitioner has practised on her own account.
A psychiatric report before the Court outlined that the practitioner has a personality with avoidant and obsessive compulsive traits which has caused the practitioner in the past to avoid dealing with problems even when logically she knew that serious consequences might flow from such conduct. This was proffered as the explanation for the practitioners unprofessional conduct in her dealings with the Board. In the psychiatrist’s view, the key to the practitioner’s ability to attend to professional standards is predominantly dependant on proper and adequate supervision.
In the reasons the Court published on 29 September 2011, referred to above, I observed the following, with David and Stanley JJ agreeing:[1]
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.
[1] Legal Practitioners Conduct Board v Lind [2011] SASCFC 104, [16]-[17].
The Interim Order of Suspension
The circumstances in which the matter proceeded before the Court on 12 October 2011, appear, in my view, to be a possible repeat of the type of conduct of the practitioner that took place before the Board. The practitioner was well aware of the adjourned date and the purpose of this Court sitting on that date. In my opinion, this conduct would appear to indicate a fundamental misapprehension on the practitioner’s part of the seriousness of her position.
At the hearing the Court was informed that the practitioner was in Hawaii for a holiday and would not be returning to Australia until some time in late October 2011. It was said that the practitioner was in email contact and had provided some instructions with respect to the proposed order. The Court was informed that an appropriate supervisor was yet to be nominated. Further, the practitioner apparently opposed her clients being advised in the manner identified in the minutes of order that she be subject to supervision. This was not suggested to be the only matter of concern about the minutes prepared by the Board however there was no further particularity.
Given the history of the matter, the practitioner’s unavailability to attend Court or to provide full instructions is a matter of serious concern. As noted above the circumstances appear to suggest further avoidance behaviour on the part of the practitioner. The Court was not informed that the practitioner would be out of the jurisdiction when the date for the making of orders was fixed. The Court first learnt of these matters shortly before the hearing. It appears that the practitioner did not provide adequate instructions to enable the matter to proceed in her absence.
These circumstances give rise to the possibility that the practitioner’s personality traits and in particular her tendency to avoidant behaviour was the reason why the matter could not proceed. This is a matter of grave concern. In my earlier reasons the practitioner’s obligation to assist the Board was addressed in some detail, I there observed:[2]
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.[3]
[2] Legal Practitioners Conduct Board v Lind [2011] SASCFC 104, [14]-[15].
[3] 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].
The practitioner has an equivalent obligation to this Court in this proceeding. In these circumstances the Court did not consider it appropriate that the matter be simply stood over so that the practitioner’s further instructions could be obtained. It was in these circumstances that the Court considered it appropriate to make an interim suspension order. It is in the interests of the public that the practitioner be suspended until the concerns that have been raised are addressed.
The practitioner may be in a position to provide explanations that would allay the Court’s concerns.[4] As earlier mentioned, as the practitioner’s senior counsel and principal solicitor were absent, liberty has been given to the parties to apply a short notice should they be so advised.
[4] Since the preparation of these reasons, an affidavit from the solicitor for the practitioner has now been filed. It may be expected that this affidavit may be relied on by the practitioner at the resumed hearing.
Having regard to all circumstances it is appropriate that reasons be published for the making of the interim suspension order. It is important that the practitioner has the opportunity to fully consider and reflect on the reasons and that she fully understands her obligations as a practitioner.
DAVID J: I agree with the reasons of Gray J for the interim order made on 12 October 2011 suspending the legal practitioner.
STANLEY J: I agree.
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