Legal Practitioners Conduct Board v Morel

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
LEGAL PRACTITIONERS CONDUCT BOARD v MOREL
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice Bleby and The Honourable Justice Gray)
9 June 2004
PROFESSIONS AND TRADES - LAWYERS - REMOVAL OF NAME FROM ROLL
PROFESSIONS AND TRADES - LAWYERS - MISCONDUCT, UNFITNESS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - INHERENT JURISDICTION OF COURT - SOUTH AUSTRALIA
Application to remove practitioner from the Roll of Practitioners - practitioner found guilty of unprofessional conduct by Legal Practitioners Disciplinary Tribunal - practitioner formed personal relationship with clients - inherent jurisdiction of the court to discipline practitioners - general observations regarding unprofessional conduct - general observations about suspension of a practitioner - practitioner unfit to practise - order that the practitioner's name be removed from the Roll of Practitioners
Legal Practitioners Act 1981 (SA) s 5, s 89, s 23AA; Legal Practitioners Act 1936 (SA) , referred to.
A Solicitor v The Law Society of New South Wales (2004) 204 ALR 8; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; re A Practitioner [1927] SASR 58; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; Law Society of SA v Murphy (1999) 201 LSJS 456; Legal Practitioners Conduct Board v Le Poidevin (2001) 83 SASR 443; In Re a Practitioner (1982) 30 SASR 27; Legal Practitioners Conduct Board v Trueman [2003] SASC 58; Law Society of South Australia v Murphy (1999) 201 LSJS 456, considered.

LEGAL PRACTITIONERS CONDUCT BOARD v MOREL
[2004] SASC 168
LEGAL PRACTITIONERS CONDUCT BOARD v MOREL
[2004] SASC 168
Full Court

PERRY J. I agree with the order proposed by Bleby and Gray JJ and with their joint reasons. I have nothing further to add.
BLEBY and GRAY JJ This is an application by the Legal Practitioners Conduct Board for an order that the name of Claire Morel be struck off the roll of Legal Practitioners.
The Legal Practitioners Disciplinary Tribunal found Ms Morel guilty of unprofessional conduct and recommended that disciplinary proceedings be commenced in this court. The Tribunal made extensive findings of fact supporting the conclusion that Ms Morel was guilty of unprofessional conduct. Those findings are not challenged before this court.
The Facts
Ms Morel was admitted to practice in 1987. She was a mature age graduate, having commenced studies for her law degree when aged 32 years. She took employment with the Legal Services Commission and then with Aboriginal Legal Rights Movement. She developed a criminal law practice. Her practice led to attendances at Yatala Prison and other correctional institutions.
Mr McFarlane
On an occasion in 1989 when visiting Yatala Prison she met a prisoner Brett McFarlane and developed a personal relationship with him. Once she recognised that a personal relationship had developed she did not to act for Mr McFarlane in a professional capacity but continued to maintain her personal relationship with him. The Tribunal noted her evidence:
I did think it would be the right thing, the appropriate thing, if we were to see each other again, to have personal visits … I could see quite clearly at that time that our relationship had the potential to be a personal one and, as a result, I made the decision that it had to take place on a personal basis within the system.
In 1990 Ms Morel married Mr McFarlane whilst he was still a prisoner. The balance of his prison term was six to seven years. He moved from Yatala to Port Lincoln. She followed and relocated her work to Port Lincoln. However the relationship deteriorated and after two years she returned to Adelaide. The marriage came to an end in 1996 whilst Mr McFarlane was still imprisoned.
On Ms Morel’s return to Adelaide she found part-time employment with a community legal centre. At this time she was emotionally exhausted and run down following her marital problems. She also had difficulties at her place of employment.
Mr Page
Some time in 1997 Ms Morel was contacted by a former client, Paul Page. She began a professional and personal relationship with him. By August 1997 she was representing Mr Page in the Supreme Court. It was Ms Morel’s evidence to the Tribunal that she was unable openly to discuss this relationship with others because of her previous experiences with Mr McFarlane. She found her interaction with the Department of Correctional Services very difficult. It was her belief that she would not have credibility if it was known that she had “fallen for a prisoner” a second time. Notwithstanding the ongoing personal relationship Ms Morel continued to act in a professional capacity for Mr Page until early 2000.
Records disclosed that Mr Page telephoned Ms Morel on 61 occasions in August 1998, on 57 occasions in September 1998 and on 58 occasions in October 1998.
In October 1998 Ms Morel intentionally made a false statement to the Department of Correctional Services. She claimed that she urgently needed to speak to Mr Page about legal matters. In fact her purpose was to speak to Mr Page about personal matters.
In mid October 1998 Ms Morel wrote to Mr Page. The letter included comments of a very personal nature and also contained the statement that she had rung the gaol “making out there was a legal emergency and I needed to speak to you”.
On 19 November 1998 Ms Morel had a telephone conversation with Mr Page. A tape recording of the conversation was admitted into evidence before the Tribunal. Ms Morel was aware from the beginning of the conversation that it was monitored. However it is clear from the tape recording that Mr Page was unaware of this until well into the call and after he had admitted seriously wounding another prisoner. He appears to have believed that it was an unmonitored “legal” call.
In the course of the telephone conversation Ms Morel was told by Mr Page that he had “slashed a bloke” and stated “I talked him into cutting his throat”. Mr Page also said “I just cut him wide open, you should have seen it, it was pissing out everywhere”. In the course of the conversation Ms Morel laughed and said “Oh my god, you’re a bloody minded boy, aren’t you?” and later Ms Morel stated with respect to the prisoner who had been attacked “What, is he a whingeing dickhead is he?”.
In late November 1998 Ms Morel had a number of telephone conversations with Mr Page, all of which were monitored calls. During the conversations Mr Page complained about not being entitled to “legal calls”. He did not understand why he had been singled out in this respect. In one conversation he said “well I’m just pissed off because I’m sure I’m the only prisoner in Australia that’s denied legal phone calls”. In a later call he stated “I don’t see why I should have to change solicitors just to have legal calls”.
In early December 1998 the Department of Correctional Services advised Ms Morel that she was formally banned from visiting Mr Page in either a personal or professional capacity. The Department considered that the relationship between Ms Morel and Mr Page was personal and that she was using the privilege of legal visits to further that personal relationship within the correctional institution.
The Department also advised Ms Morel that all her telephone calls to Mr Page would be monitored for a 12 month period. Notwithstanding the ban and the monitoring of all telephone calls, Ms Morel continued to represent Mr Page from January 1999 until January 2000 in respect of charges of attempted murder, unlawful wounding and aid and abet an attempt to commit suicide. She also acted for Mr Page with respect to a claim for criminal injuries compensation. In all, she appeared for Mr Page on more than 20 occasions during this period.
In March 1999 the Department for Correctional Services wrote complaining of Ms Morel’s conduct to the Legal Practitioner’s Conduct Board expressing concern about her personal relationship with Mr Page and in particular about the disclosure that Mr Page made to Ms Morel that he had wounded another prisoner at Yatala Labor Prison.
On 19 August 1999 during the course of the Board’s enquiries, Ms Morel wrote to the Board addressing the issue of the admissions made by Mr Page to her in the monitored conversation. She said:
There is a prosecutorial view, known to [the Department of Correctional Services] from the time of the police interview, that [Mr Page’s] reference to the alleged assault constitutes an admission by him of an offence. The defence reply is that on 19 November legal professional privilege was ambushed by an unheralded and unannounced change from legal to monitored and recorded calls. This is a highly contentious matter, likely only to be resolved at trial in the Supreme Court.
Despite this acknowledgment of there being a highly contentious matter personally involving Ms Morel, she continued to represent Mr Page on further occasions until she sought leave to withdraw from the file in January 2000. At that time Mr Page became unrepresented, entered a plea of guilty and addressed the court on his own behalf concerning penalty.
Mr Smith
Following the conclusion of the hearing and whilst the Tribunal’s decision was reserved a further matter occurred. On 30 June 2002 Ms Morel had signed a home detention resident agreement, agreeing to accommodate another prisoner Derek Smith at her residence under the conditions of his home detention order. Ms Morel provided a statement to the Tribunal in the following terms:
I provide the following instructions in relation to the Board’s letter of the 18^th September 2002. In 1999 I met Derrick Smith when I was visiting prisoners at Port Lincoln Prison. This was part of my work for ALRM. Derrick and I quickly became friends and, in my view, it was inappropriate for me to see him as part of my duties with ALRM. I advised Derrick accordingly. Thereafter when visiting the gaol I would see ALRM clients as a solicitor but would arrange a separate visit for Derrick Smith as an ordinary visitor. I would not see him as a legal practitioner but would make an appointment to see him at the ordinary visiting hours and I would sit in the visiting room with other members of the public. I was contacted by Derrick Smith in June of 2001. He telephoned me at home to tell me that he had been transferred from Mt. Gambier to Yatala because his mother and his aunt both had heart attacks and Correctional Services had arranged for him to come to Yatala so that he could visit them in hospital. I did not visit him and I did not make any contact with him although, on occasions he telephoned me at home. There was probably weekly telephone contact until June of 2002 at which time he asked if he could stay at my place in the event of his being released on home detention. I agreed. It was my view that he was unlikely to be given home detention. I thought it would be unlikely that he would be granted home detention because he had informed me that the prison psychologist he was seeing had told him that he didn’t think home detention was appropriate for him. He has not been granted home detention and is still in custody.
Ms Morel maintained her friendship with Mr Smith. She had regular telephone contact with him, more frequently than weekly, and visited him at the Mount Gambier Gaol and in the Adelaide Pre-Release Centre. On 18 May 2003 Mr Smith absconded from the Adelaide Pre-Release Centre and came to Ms Morel’s home. Ms Morel did all she could to persuade him to surrender, and ultimately reported his appearance at her home to the police. She co-operated with the police in reporting subsequent telephone calls she received from Mr Smith.
In an affidavit sworn on 22 May 2003 Ms Morel said:
As a result of the incident on 18 May 2003 I have come to realise the inherent dangers in having a friendship with Mr Smith or other similar people. His arrival at my home comprised (sic) me and made me vulnerable to possible allegations or charges relating to assisting him. Had I been practicing (sic) law our friendship would have made his arrival completely untenable.
This incident has forced me to realise I created a high degree of dependency in Mr Smith, which I understand was a major concern of the Legal Practitioners Conduct Board and the Tribunal in relation to Paul Page. Both these men were in similar vulnerable positions.
I understand I am responsible for both creating such dependencies and the damaging effect this need has had on my life and the life of the other person involved. I was unable to properly represent Paul Page due to a loss of my objectivity and the bans imposed on me. I now see that in continuing to represent him I entirely compromised his legal representation. I accept that I must have fostered in Mr Smith the false hope I might support his escape from custody.
As a consequence of these realisations I have determined to commit myself to ongoing therapy. I will actively engage in this therapy with a goal to gaining a clear understanding of this need to create such dependencies and to learn behaviours to identify and avoid entering compromising situations.
Notwithstanding the contents of this affidavit, counsel for Ms Morel informed the Court that, since his release on parole, Mr Smith had been residing, as a condition of his parole, with Ms Morel, and was still doing so. It was said that their relationship was platonic. Ms Morel considered that as she was not practising as a legal practitioner there was no reason why she should not continue this arrangement with Mr Smith. It would appear that Ms Morel’s needs to create and continue such dependent relationships has not diminished, despite ongoing therapy.
Unprofessional Conduct
General Observations
The jurisdiction of this court is both statutory and inherent. Section 89 of the Legal Practitioners Act1981 (SA) provides:
(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.
…
Unprofessional conduct is defined in section 5(1) of the Legal Practitioners Act to mean:
(a) an offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law; or
(b) any conduct in the course of, or in connection with, practice by the legal practitioner that involves substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute;
In A Solicitor v The Law Society of New South Wales[1] the High Court discussed the inherent and statutory jurisdictions of the New South Wales Supreme Court. Although there are some differences in the wording of the respective statutes the observations of the High Court are of general relevance to the jurisdiction of this court. The Court made the following observations:[2]
[1] (2004) 204 ALR 8
[2] (2004) 204 ALR 8 [12], [15] – [16], [20] - [21]
As Griffith CJ pointed out in Southern Law Society v Westbrook, the question that arises when the power of the Supreme Court is invoked in a case such as the present is not one of punishment, but "whether the Court is justified in holding out the [appellant] as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor". The appellant is the Supreme Court's officer, his name is on the Supreme Court's roll of legal practitioners, and s 171M of the Act preserves the Supreme Court's jurisdiction in connexion with the discipline and control of its officers. A similar jurisdiction is preserved in other States.
…
… In Myers v Elman, Lord Wright distinguished conduct by a solicitor of litigation in a fashion amounting to professional misconduct which was not of so serious a character as to justify suspension or striking off from the Roll. Thus not all cases of professional misconduct justify or require a conclusion that the name of a practitioner should be removed from the roll. Where an order for removal from the roll is contemplated, the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner's name presently appears.
Where a practitioner appeals to this Court from an order of the Supreme Court removing him or her from the roll of practitioners, two potentially countervailing considerations arise. They were referred to by Fullagar J in Ziems v The Prothonotary of the Supreme Court of NSW, who said:
"[T]he appellant challenges what is not merely an exercise of discretion by the Supreme Court, but an exercise of discretion in a matter which is in a special sense the province of the Supreme Court as the highest court of New South Wales. It relates to the right of a man to practise in that court and in other courts of New South Wales over which that court exercises a supervisory jurisdiction in certain ways. On the other hand, the possibly disastrous consequences of disbarment to the individual concerned [are such that] a court to which an appeal comes as of right is bound to examine the whole position with meticulous care."
…
… The dividing line between personal misconduct and professional misconduct is often unclear. Professional misconduct does not simply mean misconduct by a professional person. At the same time, even though conduct is not engaged in directly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct. Furthermore, even where it does not involve professional misconduct, a person's behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practise. And there may be an additional dimension to be considered. It was explained by Kitto J in Ziems:
"It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task."
Professional misconduct may not necessarily require a conclusion of unfitness to practise, and removal from the roll. In that regard, it is to be remembered that fitness is to be decided at the time of the hearing. The misconduct, whether or not it amounts to professional misconduct, may have occurred years earlier. At the same time, personal misconduct, even if it does not amount to professional misconduct, may demonstrate unfitness, and require an order of removal. The statutory definition in s 127 involves both concepts, and, where it applies, must be given effect according to its terms. However, when the Supreme Court is exercising its inherent jurisdiction, it has the capacity to determine, and act on the basis of, unfitness, where appropriate, without any need to stretch the concept of professional misconduct beyond conduct having some real and substantial connexion with professional practice. In a statutory context where the power of removal depends upon a finding of professional misconduct, it may be appropriate to give the expression a wider meaning, similar to that in s 127. There is no such necessity in the present case.

Ultimately the question to be determined in the present case is whether the Court is justified in holding out Ms Morel as a fit and proper person to be entrusted with the duties and responsibilities of a legal practitioner. It is relevant to observe that professional misconduct may extend to acts that even though not occurring in the course of practice, manifest the presence or absence of qualities which are incompatible with or essential for the conduct of practice.[3]
The Present Case
[3] New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at 289
The Tribunal concluded that the conduct of Ms Morel fell short to a substantial degree of the standard of professional conduct observed or approved of by members of the profession of good repute and competency.[4] The Tribunal also concluded that Ms Morel’s conduct involved a substantial and recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute.[5]
[4] re A Practitioner [1927] SASR 58 at 60
[5] Section 5 of the Legal Practitioners Act 1981 (SA)
The Tribunal reached the following conclusions about Ms Morel’s relationship with Mr Page:
The practitioner’s professional relationship with [Mr Page] was clearly prejudiced by her personal relationship. The client’s position was clearly compromised. He was unable to have unmonitored legal calls. He was clearly upset and distressed by not understanding the effect that his lawyer’s personal relationship had on his legal rights. It is likely his relationship with and attitude to the Department was adversely affected by the situation.
…
It is of serious concern to the Tribunal that the practitioner continued to act for [Mr Page] after the ban was imposed; while the monitoring continued; after the investigation had begun; and after it had been brought very clearly to her attention that it was asserted that a conflict existed.
…
The practitioner was not initially entirely honest with the Board in 1999 about her relationship with the client. She explains that by saying that at that time she was extremely defensive about her situation with [Mr Page], and that she didn’t have sufficient insight into her own behaviour at that time. The Tribunal finds she still has insufficient insight into her behaviour.
Ms Morel’s conduct represented a serious departure from proper professional standards. She allowed a personal relationship to interfere with her professional duties to a client who was charged with serious criminal conduct. Ms Morel’s unprofessional conduct allowed her client to make recorded admissions of serious criminal conduct during a telephone conversation. The client was unaware that the conversation was monitored. At the time Ms Morel was aware of the monitoring. At the very least this led to an inappropriate disclosure and possibly to a loss of legal professional privilege with respect to an admission. As the result of this unprofessional conduct the client was left without independent legal advice about important matters concerning his liberty. The client’s repeated complaints and frustrations about his “legal calls” being monitored were well documented.
On Ms Morel’s own admission she lied to the Department for Correctional Services with a view to obtaining legal visiting rights for the ulterior purpose of furthering a personal relationship. This represented serious unprofessional conduct putting in jeopardy the good standing of those members of the profession who have regular contact with the Department for Correctional Services.
In regard to Ms Morel’s statement concerning her association with Mr Smith, the Tribunal noted:
The Tribunal finds this an extraordinary statement in view of the situation the practitioner had been placed in her relationships with previous prisoners and given the fact that at the time she agreed to accommodate [Mr Smith] the Tribunal hearings were current. It is a statement which in the view of the Tribunal is indicative of the immaturity and naivety of the practitioner.
It is a matter of considerable concern that Ms Morel lacked the basic understanding of legal professional duties to understand the nature of the conduct that she engaged in and the way in which it disadvantaged her client. Having recognised the problems when dealing with Mr McFarlane she failed to act in an appropriate way when she became infatuated with Mr Page. Although her later conduct concerning Mr Smith is not the subject of charges, it is further and continuing conduct showing Ms Morel’s naivety in her relationships with prisoners. As was observed in A Solicitor v Law Society of New South Wales - fitness is to be decided at the time of the hearing.
Psychological Review
In 2001 Ms Morel approached Jane Tiggeman, a psychologist, who practised in the area of counselling and consultancy and who provided individual and relationship therapy. Ms Tiggeman was approached for the purpose of providing a psychological assessment report to the Tribunal. Ms Tiggeman’s November 2001 report contained a lengthy account of Ms Morel’s personal background and her relationships with prisoners. Ms Tiggeman discussed Ms Morel’s realisations about the ways to avoid “problems with boundaries” in professional and personal relationships. Ms Tiggeman’s report continued:
Ms Morel told me she now realises it’s important that she is always fully conscious in her life and that she does not let this go. She described in the past either not trusting people or trusting them too much. Ms Morel told me she is aware that she is a person who has a large capacity of empathy for others, a tendency to absorb other’s feelings and that this is what she has to be more careful about.
Ms Morel told me she now realises she got into trouble with these boundary issues as she did not know herself well enough to have a definite set of protective values. Now since she has had to curtail her work, she describes working on finding a sense of self, not just being there to function for everyone else. Ms Morel said that she has now discovered she is a person who wants to do the right thing by her profession, her friends, family and by herself.
Ms Morel told me that she has decided to give up practising criminal law and she is removing herself from the immediate difficulties and is rethinking where she wants to be. She told me she should like to keep her practising certificate to work part-time only, so she has the time she needs to do other things, to do something creative or being of service to other people in ways other than law. She told me she is considering being a yoga teacher. Ms Morel told me she is doing a lot of fitness work, involving gym workout, running 24 kilometres per week etc. Ms Morel told me she is keep to learn guitar and to play in a band with a view to performing.
I asked Ms Morel what would she do if she had her time again with these situations of prisoners approaching her for a personal relationship. She told me she would go and talk with someone about it, like a professional mentor. She added “I don’t think I would be responsive to men in jail any more, this is a part of life that is over.”
Ms Tiggeman formed the opinion that Ms Morel was vulnerable to making poor choices about personal relationships. It was said this partly resulted from serious physical abuse suffered as a child. It was Ms Tiggeman’s view that:
In being involved with McFarlane and Page, it is my view that she was acting out of subconscious feelings of wanting a relationship with an unpredictable man (who was just like her father), in trying to heal the traumatic connection she had with her father.
Ms Tiggeman noted:
Ms Morel did some therapy approximately 13 years ago which provided some help. However, I believe she needed to have an ongoing option to link up again with a therapist as need be over the course of her life, as she found vulnerabilities to re-emerge. It is my view that Ms Morel has more awareness of the impact of her childhood abuse now and is aware that she seems to have some long term ongoing effects that she needs to monitor.
The advice she has given herself re working part-time, pursuing creative outlets, leaving criminal law to look at other areas of practice are all sensible. Also her being vigilant re being more conscious in her everyday life re decision making and confiding in trusted friends and professional mentors will all assist her to keep her life going in a positive direction.
Ms Tiggeman recommended:
I respectfully recommend that as I understand it, Ms Morel is no longer wanting to practice criminal law, however, in terms of her practice in other jurisdictions I believe she should have a professional mentor that she sees on a regular basis in order to clarify boundaries issues if they arise, or discuss any other aspects of professional practice as necessary.
On 5 September 2002 Ms Morel commenced psychological counselling with Ms Tiggeman and continued at intervals of two or three weeks throughout 2003 and 2004. On 23 May 2003 Ms Tiggeman wrote a further report. She made the following comments regarding the relationship with Mr Smith:
At our second interview on the 23/09/02 she found the courage to tell me of another relationship she had had with a Derrick Smith, a prisoner that she had omitted to talk to me about previously. She explained that she had put this relationship to one side as she had thought it was virtually over at the time I was doing her assessment in November 2001. However, as I explored details of this relationship with her, it became clear to me that Ms Morel’s problem in confusing professional and personal boundaries was a considerable one. It was clear to me now that I would need to go slower, by first helping her to deal with the boundary issues within that relationship and later branch out to the professional boundaries issues.
Since the 20/10/02 Ms Morel had made some important progress drawing boundaries within the friendship she has had with Derrick Smith, for instance, by telling him her home was not a suitable place for him to do home detention …
On the 22/5/03 Ms Morel told me that Derrick Smith had escaped from prison a few days ago and had come around to her house seeking help. She was very clear how shocked she was at this and of how she tried very hard to get him to give himself up to police. She told me she went to police after he left to give them an account of the situation. It was my view that she was very genuine in these endeavours.
Ms Morel seems to be becoming clearer that this relationship with Derrick Smith is unlikely to be able to proceed because of the power differential within the relationship. She told me she has begun to realise that she may have done the prisoners she was personally involved with a disservice as she may have created (albeit unconsciously) in them a dependency on herself …
More recently she has also begun to acknowledge the power differential issues between herself and Derrick Smith and the dangers of confusing the personal and professional, and the impact this is likely to have had on Mr Smith.
The court does not have the benefit of Ms Tiggeman’s opinion in the light of Ms Morel’s current relationship with Mr Smith.
On 23 May 2003 Ms Tiggeman concluded:
Overall I consider Ms Morel needs another 12 months of therapy to deal with the issues outlined above. In conclusion I see Ms Morel as a person with great potential and with continued hard work on these difficult emotional issues I believe she is capable of overcoming these problems in boundary crossings between her professional/personal life.
Notwithstanding continued therapy since then, there is no present sign that Ms Morel is yet capable of overcoming the problems in “boundary crossings” referred to by Ms Tiggeman. Indeed, her current relationship with Mr Smith would suggest that little progress has been made.
Ms Morel has not sought the recommended professional mentoring earlier recommended by Ms Tiggeman. She has worked as a law clerk in the area of family law. At times she has attended in court on formal appearances. However her employer did not take on the role of a professional mentor. Ms Morel does not appear to have sought advice or instructions about the fundamental professional obligations and standards expected of a legal practitioner.
Psychiatric Review
During the course of the proceedings in this court Ms Morel was referred to a psychiatrist, Dr Raeside, for examination and review. Dr Raeside prepared a comprehensive report on 29 March 2004.
Dr Raeside concluded there was no evidence that Ms Morel suffered from any form of psychiatric disorder. It was his opinion that she did not require psychiatric treatment.
Dr Raeside noted a number of features suggestive of the existence of an underlying borderline personality disorder. These features were instability of mood, impulsivity, intensity of interpersonal relationships and identity disturbance. For this reason he recommended that Ms Morel continue with ongoing psychological therapy designed to assist her to deal more adaptively with the circumstances of her life at present. Dr Raeside considered the exploratory therapy undertaken by Ms Tiggeman concentrating on the past may have had some limited benefit. However he expressed concern that the therapy had a potential for destructiveness. Dr Raeside recommended that the ongoing psychological therapy focus on the “here and now” with a view to assisting Ms Morel to deal in adaptive ways within particular interpersonal settings.
In reaching these conclusions Dr Raeside made the following observations:
Subsequently, Ms Morel tended to act in the role of a “rescuer” in relation to three prisoners, namely Brett McFarlane, Paul Page, and Derrick Smith. On each of these occasions she shifted her professional relationship to a personal one (although never having been in a professional relationship with Mr McFarlane). Rather than simply terminating all of the relationships, or maintaining a professional relationship, she appears to have tried to shift into a personal relationship. The confluence of roles appears to have led her to difficulties in the relationship with Mr Page, which has led to the current matters before the Court.
…
Research has shown four categories of those who engage in professional boundary violations:
…
The “limitless” professional demonstrates tireless and selfless devotion to their clients and may be vulnerable to the demands of difficult clients. They may have difficulty limiting any of their client’s requests (such as coming to visit them in a personal role). Again an underlying personality disorder, particularly with compulsive or dependent traits may be present.
…
Ms Morel appears to fall into the second group, having difficulties with limits, whilst devoting herself tirelessly and selflessly to her clients, yet at the same time meeting underlying emotional needs herself.
…
Subsequent to my interview with Ms Morel I received a letter, dated 25/3/04, in which she said that she had come to the “conclusion that I should not practice criminal or family law again”, which was “based on my awareness that continual confrontation with clients who are traumatised by their own life events or who are in emotionally traumatising positions is untenable for me because of the potential to re-traumatise me, hence, leaving me feeling vulnerable and perhaps susceptible to a weakening of boundaries”. These comments would appear highly appropriate.
Dr Raeside made the following recommendation:
Whilst Ms Morel appeared to demonstrate some understanding and awareness of the inappropriateness of her past behaviour, I think this is still in the early stages, with only an emerging awareness of her underlying difficulties and the way in which this causes her difficulty in interactions with others. I would recommend that she attend professional education courses in boundary violations and that her ongoing therapy specifically deal with the deficits in her personality structure that have rendered her vulnerable. Therefore whilst I believe that at present she has become intellectually aware she still needs considerable work in order to assist her emotionally and psychologically.
Dr Raeside expressed concerns about Ms Morel’s ability to practise at any time in the areas of criminal or family law. He saw the possibility of Ms Morel being able to practise “within large organizations that deal with corporate clients and a corporate outlook”. Dr Raeside concluded:
Finally, whilst I recognise that Ms Morel has a number of underlying difficulties which need attention through professional psychological therapy, I think that these will take some time, probably several years, but that whilst she refrains from direct client contact she should be able to use her other skills to adequately practise at the appropriate stage.
Counsel advised the court that Ms Morel had recently consulted a psychologist with Law Care. She apparently wished to explore the possibility of further treatment. Ms Morel also plans to attend a seminar course on legal ethics.
Conclusion
In many ways this is a sad and distressing case. Ms Morel had only been in practice for a short time before her professional duties became entangled with her personal relationship with Mr McFarlane. Despite this experience she remained vulnerable to developing personal relationships with the prisoners. It appears that this vulnerability may be due to her reactions to early childhood abuse.
Ms Morel’s unprofessional conduct has had serious consequences. Mr Page did not receive the independent legal advice that he needed. The confidentiality of his disclosures to his solicitor was compromised. This conduct had the tendency to undermine the confidence of the public in the legal profession.
Ms Morel abused the privilege that practitioners have to visit prisoners for purposes of giving legal advice. She used the pretence of the need for legal advice to further her personal relationship with a prisoner. The trust and confidence that the public and the Department for Correctional Services has in the profession has been put in jeopardy. Ms Morel’s dishonest and selfish conduct was the result of a lack of awareness of her basic professional duties and obligations. Insofar as she had an awareness of those duties and obligations she did not appear to have the ability or resolve to control the conflicts in her professional and personal relationships. Her subsequent conduct with Mr Smith, although not the subject of any charge, demonstrates her ongoing naivety and continuing lack of awareness of professional obligations.
Legal practitioners play an integral part in the administration of justice. The obligations which accompany their positions are commensurate with the responsibilities involved. The court and the public demand a high standard from practitioners. This is reflected in the legislative provisions that regulate the admission of practitioners and govern their conduct.
As earlier observed Ms Morel has demonstrated a lack of understanding of professional obligations and an inability to restrict her relationship with clients within appropriate limits. Dr Raeside suggests that she may suffer from a borderline personality disorder.
Ms Morel is now aged in her 50s. She has been so slow to commence and continue psychological treatment. To date it has been of doubtful value. She has not taken any step to obtain any meaningful professional mentoring. Ms Morel is presently unfit to practise the law. It is possible that with treatment there will come a time when she is fit to practise. In the event that Ms Morel satisfactorily undertakes the recommended courses of treatment including appropriate professional mentoring she may be able to demonstrate that she has become fit to practise law. However this is not presently the case.
The technical competence of Ms Morel as a legal practitioner is not the subject of complaint. What makes her unfit to practise is an apparent and continuing failure to discern the barrier between professional and personal relationships, to the detriment of her clients and her integrity as a legal practitioner.

Through counsel, the practitioner acknowledged her present unfitness to practise. He urged upon us an order for suspension rather than striking off. Her problem, it was submitted, could be overcome with ongoing therapy and proper professional mentoring. She should not be required to suffer the stigma of being struck off. This submission raises the question of the appropriateness of suspension as opposed to striking off.
As earlier observed neither suspension nor striking off is punishment for wrongdoing. In Ziems v The Prothonotaryof the Supreme Court of New South Wales Dixon CJ said:[6]
The jurisdiction the court exercises has nothing to do with punishment. The purpose of the power to remove from the roll of barristers is simply to maintain a proper standard, and that is a necessarily high standard, for the Bar is a body exercising a unique but indispensable function in the administration of justice.
[6] (1957) 97 CLR 279 at 286
In Law Society of SA v Murphy Doyle CJ, with whom Millhouse and Prior JJ agreed, said: [7]
The issue for the Court is whether, in view of the admitted conduct, Mr Murphy is fit to remain a member of the legal profession. If his conduct demonstrates that he is not, in my opinion the ordinary course must be an order that his name be removed from the Roll, even if something less would be an adequate punishment for him or even if something less is likely to ensure that he would not be able to practice as a practitioner.
In saying this, I do not say that considerations of the practitioner’s personal circumstances, and consideration of extenuating circumstances, are to be put to one side entirely. I merely emphasise the point that the court acts in the public interest and not with a view to punishment of the practitioner.
The Court also has to consider the maintenance of public confidence in the profession, and must ensure that only those who have observed the required standards are permitted to remain members of the legal profession.
[7] (1999) 201 LSJS 456 at 461
This Court has repeated similar views on many occasions. For that reason, any argument based on stigma should carry little weight. The duty of the Court is to protect the public interest by ensuring that the practitioner is not able to practise while she is demonstrably unfit to practise. The question is whether, in a particular case, this is best achieved by striking off or by suspension.
As earlier noted, section 89 of the Legal Practitioners Act specifically confers on the Court power to order suspension of a practising certificate “until the end of the period specified in the order or until further order”. It was not always so. The Legal Practitioners Act 1936 (SA) specified no particular remedies available to the Court in professional discipline matters. The Court was empowered to “make such order as to the Court seems fit”.[8]
[8] See also section 53 of Legal Practitioners Act 1936 (SA)
In similar circumstances in Ziems Dixon CJ said: [9]
I may add, too, that I think that it is open to the Supreme Court to suspend a barrister from practice: see In re Spensley (1864) 1 WW & a’B (L) 173. But, even so, it is probably a better course in most cases where room exists for the belief that time may give the barrister a title to resume his place at the Bar to allow him to re-apply at a subsequent time and offer positive evidence of the grounds upon which he then claims to be re-admitted.
There is no reason why that approach should not be applied to a statutory power to suspend. InRe a Practitioner, King CJ, with whom Zelling and Jacobs JJ agreed, said: [10]
I cannot regard suspension as an adequate response to the type of unprofessional conduct in which this practitioner engaged. The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner. Whilst it is true that the practitioner succumbed to temptations produced by his difficult personal and financial position at a time when his judgment might have been somewhat impaired by the emotional stress to which he was subject, there is no escape from the fact that he engaged in a course of fraudulent conduct extending over three and a half years and involving trust moneys. He has shown himself to be unfit to be a legal practitioner and, in my opinion, the only appropriate order is for him to be struck off the Roll of Practitioners.
[9] (1957) 97 CLR 279 at 286
[10] (1984) 36 SASR 590 at 593
The test suggested by King CJ was whether the practitioner lacked the qualities of “character and trustworthiness” as being the necessary attributes of a legal practitioner. Lack of trustworthiness will be amply proved by offences involving dishonesty in relation to a client’s affairs. There is some element of that in this case. The necessary quality of character is more diffuse but covers the sort of behaviour revealed in this case. The practitioner has demonstrated that she lacks the qualities of character to such an extent that she cannot presently be entrusted with the responsibilities of a legal practitioner. Indeed, that much is effectively acknowledged by her counsel.
In Law Society of SA v Murphy Doyle CJ summarised the practitioner’s conduct as follows: [11]
There emerges from these matters a picture of persistent neglect of the affairs of the clients in question, causing at the least delay and inconvenience, and in some cases prejudice, although perhaps not irretrievable prejudice. There also emerges a picture of the persistent disregard of Mr Murphy’s basic professional obligation in dealing with his client, in responding to their questions and in acting in their interests. Mr Murphy has also failed to meet basic professional obligations in relation to the charging of clients and accounting to clients. Finally, there is a pattern of prolonged and persistent disregard of enquiries from the Legal Practitioners Complaints Committee. There can be no doubt about the obligation of a practitioner to assist that body with its enquiries.
[11] (1999) 201 LSJS 456 as 458
The conduct demonstrated “a disregard of his professional obligations, or a failure to meet them” and that he was unfit to remain a practitioner.
Doyle CJ then proceeded on the basis that the practitioner’s conduct, at least from late 1994, was explained by clinical depression of gradual onset, which may also have played a part in the earlier conduct. The Court in that case had been urged to accept an undertaking by the practitioner not to practise the profession of the law, instead of the Court striking him off the roll. Doyle CJ continued: [12]
By allowing a practitioner to remain on the Roll of Practitioners, the Court holds the practitioner out as a fit and proper person to practise. There is a certain incongruity in allowing a practitioner to remain on the Roll even though it has been demonstrated that the practitioner is not a fit and proper person to remain a practitioner. …
In reaching a conclusion as to the order that should be made, I take account of my conclusion, expressed earlier, that the practitioner has been guilty of unprofessional conduct over a substantial period of time. Although no one item of conduct may amount to unprofessional conduct, the sustained neglect of clients’ affairs is significant. I cannot say that the conduct that is not attributable to the depression would itself, if it stood alone, warrant removing the name of the practitioner from the Roll. But the depression to which some of the conduct is attributable itself indicates that the practitioner is not presently fit to practise, and that there is no reason to think that that condition will be of short duration.
In combination, the lack of any excuse for part of the conduct, and the fact that the explanation for the balance is a condition that makes the practitioner medically unfit to practise, and likely to remain so for some time, in my opinion lead to the conclusion that the practitioner’s name should be removed from the Roll.
In my opinion, acceptance of the undertaking would not adequately reflect the significance of the conduct of the practitioner and the significance of his present condition.
As well, acceptance of the undertaking would mean that should Mr Murphy seek at some later time to obtain a Practising Certificate, he would not face the hurdle of establishing that he is fit to be a practitioner, but the lesser hurdle of satisfying the Court that he should be released from his undertaking.
A similar approach can be taken to the question of suspension of a practising certificate.
[12] (1999) 201 LSJS 456 as 461 - 462
In Legal Practitioners Conduct Board v Le Poidevin Lander J, with whom Doyle CJ and Bleby J agreed, said:[13]
Striking off is reserved for the most serious cases of unprofessional conduct, where the court is satisfied the person found guilty of unprofessional conduct is not fit and proper to remain the roll of legal practitioners. Suspension is a serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but, who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law.
[13] (2001) 83 SASR 443 at 447
Suspension may be appropriate where there is a reasonable prognosis that, with appropriate treatment or supervision the practitioner is likely, within a finite time, to be fit to practise. That cannot be said of this practitioner at this time. In this case, there is no certainty that the practitioner will be fit to practise or, if she is, when that will be. Suspension until further order would therefore be inappropriate. The practitioner’s name should be removed from the Roll.
Had there been some demonstrable ability to recognise and to deal appropriately with the boundaries between the personal and the professional and some demonstrable understanding of basic professional obligations, an appropriate course to follow may have been to order suspension for a discrete period. However Ms Morel’s attempts at treatment appear to have led to little improvement. There has been no attention to her professional education. There is no clear prognosis. In these circumstances a suspension from practice is inappropriate[14].
[14] Legal Practitioners Conduct Board v Trueman [2003] SASC 58, Law Society of South Australia v Murphy (1999) 201 LSJS 456
As King CJ observed In Re a Practitioner,[15] the practitioner should not feel that a striking off order necessarily closes the door to the legal profession for all time. In that case the King CJ expressed the hope that after a period of time the practitioner might be able to establish to the satisfaction of the Court that he had re-established himself in the esteem of his profession and the eyes of the general public. The same observations apply to this practitioner. However, certain observations of the Tribunal and of Dr Raeside and Ms Tiggeman are relevant to a consideration of any such application for re-admission.
[15] (1982) 30 SASR 27 at 32
Dr Raeside has recommended that she requires ongoing therapy and that she attend professional education courses in boundary violation. If re-admission is to be considered, that would have to be undertaken. However, if Ms Morel is serious about seeking re-admission to practise the law she will also need to ensure that she has had access to the services of a professional mentor of the type suggested by Ms Tiggeman. Ideally that would be in conjunction with some employment in legal practice. Her being struck off does not preclude her from making an application to the Tribunal pursuant to section 23AA of the Legal Practitioners Act1981.
The totality of the circumstances before the court demonstrate that Ms Morel does not have the necessary attributes of a person to be entrusted with the responsibilities of a legal practitioner. The Tribunal has found that Ms Morel’s conduct has involved deception and dishonesty. Even if the deception and dishonesty were occasioned by Ms Morel’s borderline personality condition, the misconduct is serious. As earlier observed such conduct has a tendency to bring the profession into disrepute and to undermine the confidence of the public in the legal profession. Suspension is not an appropriate order with respect to a practitioner whose conduct establishes that the practitioner lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner.[16]
[16] In Re a Practitioner (1984) 36 SASR 590
Ms Morel name should be removed from the Roll of Practitioners.

[2004] SASC 168

9 June 2004

Key Legal Topics

Areas of Law

Professional Conduct & Ethics

Legal Concepts

Unprofessional Conduct

Inherent Jurisdiction of Court

Standing

Disciplinary Proceedings

Removal from Roll of Practitioners