Legal Practitioners Conduct Board v Vaezi - [2009] SASC 271

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
LEGAL PRACTITIONERS CONDUCT BOARD v VAEZI
[2009] SASC 271
Judgment of The Honourable Justice Nyland
3 September 2009
PROFESSIONS AND TRADES - LAWYERS - MISCONDUCT, UNFITNESS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS
Appeal by Legal Practitioners Conduct Board against dismissal by Tribunal of charge of "unsatisfactory" conduct - whether practitioner misled Board as to contemporaneity of file notes - test of unsatisfactory conduct is objective - Tribunal fell into error by relying on subjective matters in assessment of practitioner's conduct - appeal allowed - finding made that practitioner guilty of unsatisfactory conduct.
Legal Practitioners Act 1981 s 5, referred to.
Re J Palios (LPDT Reasons 24.12.99); NSW Bar Association v Butland [2008] NSWADT 120; Legal Practitioners Conduct Board v Condon [2004] SASC 346, considered.

LEGAL PRACTITIONERS CONDUCT BOARD v VAEZI
[2009] SASC 271

NYLAND J: This appeal is by the Legal Practitioners Conduct Board (“the Board”) against findings of the Legal Practitioners Disciplinary Tribunal (“the Tribunal”) dated 26 November 2008 wherein charges against Masheed Vaezi (“the practitioner”) of unprofessional conduct as well as unsatisfactory conduct were dismissed.
On appeal the Board did not complain of the dismissal of the charge of unprofessional conduct. The appeal was limited to the finding by the Tribunal that the respondent did not engage in “unsatisfactory conduct within the meaning of s 5 of the Legal Practitioners Act 1981 (SA) (“the Act”) in failing to perceive a danger that the Board may have understood that certain typewritten notes were contemporaneous when they were not”. The Board also appeals against the order for costs.
The argument advanced by the appellant on appeal was that the Tribunal erred in not applying an objective test in assessing whether the practitioner was guilty of unsatisfactory conduct. The Board contends that the Tribunal wrongly had regard to matters personal to the practitioner when such matters were only relevant to the more significant charge of unprofessional conduct.
Background
The investigation which gave rise to the charge appears to have arisen out of a written complaint from a client on 24 March 2003, which related to an issue of costs arising out of settlement of a personal injuries claim. During 2003 correspondence was exchanged between the Board and the practitioner relating to the complaint. On 26 August 2003 a solicitor employed by the Board wrote to the practitioner and advised that on the basis of the available information, there appeared to be no evidence of unprofessional or unsatisfactory conduct but an opportunity had been provided to the complainant to put further submissions in relation to the matter.
On 26 April 2005 however, another solicitor employed by the Board wrote to the practitioner and advised that in order to assess the practitioner’s costs it was considered necessary for his file to be provided to the Board. The practitioner provided his file to the Board. On 31 May 2005 a further letter was written to the practitioner advising him that his file had now been inspected. It was noted that the tax invoice indicated that he had personal telephone attendances on the client on 11 separate occasions but there were no notes nor memoranda in his file to support either the occurrence of those attendances nor content as to the discussion that took place and/or advice that he gave. He was therefore asked whether he had any documentary evidence to support his alleged personal attendances on the client, such as diary entries, and he was asked to provide such copies at his earliest convenience.
On 9 June 2005, the practitioner wrote to the Board and inter alia included “copies of file notes which indicated the purpose of the attendances and what was discussed”. There was other information in the letter relating to resolution of the client’s claim and also the question of costs.
On 21 June 2005, the Board wrote to the practitioner and asked if he “could advise what your process is in relation to preparation of file notes and advise why the same were not provided with the file”. On 30 June 2005 the practitioner replied to the Board and explained the process by which he prepared file notes and said that in this case:
… it would appear that the original file notes had been lost, never entered or never printed as our staff who would have taken these notes no longer work at my firm, I cannot confirm which is the case. The notes I have provided to you have been carefully reconstructed from my personal recollection in this matter and with reference to my desk calendar for years 2002 and 2003. Further, I would like to bring to your attention that I personally handled this case and it was the only matter until very recently that has been brought before the Board, I have a vivid and very clear recollection of the events that occurred in this file.
A complaint was subsequently laid by the Board against the practitioner on 23 November 2007 in which it was alleged that the practitioner was guilty of unprofessional conduct in that he had attempted to mislead the Board by proffering 11 typewritten notes to the Board in the course of the Board’s investigation in circumstances where it was implied by the practitioner that the file notes were contemporaneous and part of the practitioner’s file. The practitioner has however always denied that it was his intention to represent the proffered typed notes as contemporaneous file notes of the events described in them.
At the hearing before the Board the practitioner was the only person to give evidence. He made it clear that he had no intention to deceive the Board by his letter of 9 June 2005. He denied the notes were designed to be contemporaneous notes of the events referred to therein. In a statement to the Board the practitioner said:
40.    Upon my reading of Ms Hutchins’ letter, I interpreted her request as requiring me to provide an explanation or summary of what had been discussed in the course of each of the attendances upon [the client]. Although I did not make the notes, I was confident that I could reconstruct what had happened from my memory and by reference to other documents in my office, like my diary entries. I was assisted particularly by my desk diary for the period as it recorded all of the dates and times of personal attendances on [the client]. A copy of the relevant diary entries are attached …
41.    The attendance notes that I then reconstructed, based in large measure on my diary entries, together with documents in the file before and following each occasion, were intended to provide to the Board, as best I could, a summary of what was discussed in the course of each of my attendances.
42.    I instructed either one of the secretaries, or one of the former solicitors, employed in my practice to type these notes up. They provide a narrative account – albeit a reconstruction - of what happened at each attendance as best I could recall. I thought it appropriate to put them in a form in which they would have been had they been contemporaneous. But, clearly, they were not contemporaneous and were not meant to be read as such.
43.    I instructed a solicitor with our firm to draft a letter in response to the Board dated 9 June 2005. I also asked her to enclose the 11 notes and provide a short background to the claim of [the client]. I subsequently read and signed the letter believing it to be a satisfactory response to the Board’s request. I provided these notes to Ms Hutchins under cover of this letter … In my letter, I stated, inter alia, that I had enclosed copies of the summary notes “which indicate the purpose of the attendance and what was discussed”. By purpose, I meant to convey that they were a representation of what had been discussed, not a contemporaneous account.
44.    The notes were not contemporaneous. I never intended them to be so and I do not believe that I ever said or implied that they were contemporaneous. They were created for the sole purpose of providing a summary to the Board of what had transpired on these occasions. I was in no doubt that these personal attendances occurred because they were supported by an independent document – either diary entry or letter.
45.    Because English is my second language, sometimes, I miss the subtle nuances of English, both verbal and written. I am not computer literate and cannot efficiently type any letters or notes myself.
46.    However, I did not at any time seek to or, in any intend to, mislead or deceive the Board as to the origin of the file notes. I do not believe that I, at any time, suggested that the notes were contemporaneous or that they had formed part of my original file. They did not. These attendance notes were created to illustrate what had happened at the meetings or in telephone conversations. I did not intend them to be actual notes of my attendances on [the client].
The Board relied on the evidence of the practitioner and inferences to be drawn from the various documents to support its case that the practitioner had been guilty of unprofessional conduct. If no intent to deceive was established then it was argued that the way the notes were sent to the Board amounted to unsatisfactory conduct.
In the course of evidence, the practitioner explained that he had been born in Persia in 1950 and had received his primary and secondary education in that country. In 1980 he undertook university studies in India, where he learned to speak English and Hindi. He had a Bachelor of Arts degree, together with a Master’s degree and a Ph.D. in policital science. He married in India and has a son of that marriage. The family migrated to Australia in 1986. The practitioner completed his law degree at the University of Adelaide in 1988 and was admitted as a barrister and solicitor of the Supreme Court of South Australia in the same year. In 2001 he established his own legal practice and at the time of the hearing before the Tribunal he employed two or three other solicitors, together with support staff, including an accountant.
In its reasons for decision, the Tribunal mentioned occasions on which the practitioner was not able to respond to questions clearly, quickly and with precision, but expressed the view that this was not for any sinister reason, but rather because English was not his first language. The Tribunal said in responding to questions put to him they got the clear impression the practitioner was at pains to be truthful in his answers. The Tribunal then dismissed the charge of unprofessional conduct.
On the hearing of this appeal the Board acknowledged that finding was open on the evidence and there is no appeal against the dismissal of the charge of unprofessional conduct.
Although no charge of unsatisfactory conduct had been laid against the practitioner, the Board argued before the Tribunal that the conduct of the practitioner was sufficient to make a finding against him of unsatisfactory conduct.
Unsatisfactory conduct was introduced into the Act on 1 February 1999 and is defined in s 5 of the Act as meaning:
Conduct in the course of or in connection with, practice by the legal practitioner that is less serious than unprofessional conduct, but involves a failure to meet the standard of conduct observed by competent legal practitioners of good repute.
The Tribunal was not however prepared to make that finding and dismissed the charge of unsatisfactory conduct. The Tribunal said:
Whilst it is true that a more astute practitioner and one with a greater ability with the English language might have perceived that there was a danger that the practitioner’s communication might be regarded by others s carrying with it the implied assertion that the documents forwarded to support the claim for costs were copies of original documents, we do not regard the failure to so perceive it, in this isolated instance, as constituting unsatisfactory conduct by the practitioner.
On the hearing of the appeal Mr Crocker, who appeared as counsel for the Board, argued that the practitioner’s response in his letter of 9 June 2005 impliedly asserted that the notes were contemporaneous notes and that the Tribunal should therefore have concluded that the practitioner’s failure to perceive the risk that the Board may draw the erroneous inference that the proffered eleven typed notes were contemporaneous file notes, capable of corroborating a claim for costs was an instance of unsatisfactory conduct. It was not suggested however that the Board was in fact deceived.
Mr Crocker submitted that the standard of conduct to be observed by a competent legal practitioner of good repute was to be measured objectively. That is, the standard was to be measured against conduct that should be observed by a reasonably competent practitioner of good repute. He took issue with the Tribunal’s reasons for not being satisfied that the practitioner engaged in unsatisfactory conduct, that is that they had regard to the particular practitioner’s lack of astuteness and lack of ability to communicate effectively in English. These were factors personal to the practitioner. Such factors do not inform what is the relevant standard of satisfactory or unsatisfactory conduct, but rather might be relevant to any plea in mitigation should there be a finding that the practitioner had engaged in unsatisfactory conduct.
The concept of unsatisfactory conduct has not yet been considered by this court although the matter was mentioned in Palios[1]. One of the complaints against the practitioner in Palios was that she had taken advantage of an error by another practitioner in circumstances in which to do so was unconscionable. At the date of the hearing in Palios the amendment to the Act to include a charge of unsatisfactory conduct had only just come into effect. The Tribunal finally concluded in that case that the amendment was not retrospective in operation and as the relevant conduct had occurred prior to the amendment, the section did not apply. The Tribunal therefore proceeded to determine that case on the basis of the allegation of unprofessional conduct. As to that aspect of the matter the Tribunal said (at page 20):
… we must judge the matter objectively. The fact that the practitioner may not have thought she was doing anything wrong is no defence, although it will be relevant to the question of penalty.
[1] Re J Palios (LPDT Reasons 24.12.99)
The Tribunal, in finding the charge of unprofessional conduct had not been proved, said:
In our opinion, the practitioner’s conduct did not meet the standard of professional conduct observed or approved of by members of the profession of good repute and competency. The practitioner knew a mistake had been made, and as her letter to her client … demonstrates, she sought to take advantage of it for the benefit of her client. However, and not without some hesitation, we are not satisfied that the practitioner’s conduct fell short of the relevant standard to a substantial degree.
The Tribunal concluded however that:
… had the standard of unsatisfactory conduct been operative we may well have found the practitioner guilty of unsatisfactory conduct.
In New South Wales Bar Association v Butland[2] the New South Wales Administrative Decisions Tribunal considered a complaint against a barrister who sought to excuse his conduct by asserting that at the relevant times he was suffering from undiagnosed psychological and behavioural problems and that the disorder and/or the medication which had been prescribed for him had led to his conduct being properly characterised as careless or compulsive, rather than deliberately dishonest. The Tribunal ultimately found that the practitioner was guilty of professional misconduct. In the course of their reasons the Tribunal said [at 84]:
… even if the barrister’s conduct was careless and not deliberate, this constitutes no sufficient excuse in the circumstances. When a barrister is responding to a Bar Association request for information and assistance in respect of a complaint being investigated by the Bar Association, the barrister owes a duty of candour. Carelessness, or perhaps more properly recklessness, as to whether or not the information supplied in those circumstances is correct will not satisfy the barrister’s obligation to co-operate and to respond with candour.
[2] [2008] NSWADT 120.
In Legal Practitioners Conduct Board v Condon [3] [2004] SASC 346 the Full Court made it clear:
Public confidence in the legal profession necessarily requires confidence in the integrity of the disciplinary process. …
[3] [2004] SASC 346 at 18.
In that case the Full Court found that the practitioner’s lack of candour and frankness had the tendency to undermine the public confidence and found him guilty of unprofessional conduct.
Unsatisfactory conduct is clearly conduct that is less serious than unprofessional conduct. Unprofessional conduct is defined in s 5 of the Legal Practitioners Act 1981Act as:
(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. (emphasis added).
The definition of unsatisfactory conduct does not however require that there be “substantial or recurrent failure”. It simply requires proof of a failure “to meet the standard of conduct observed by competent practitioners of good repute”.
On the hearing of the appeal, Mr Griffin QC for the practitioner did not dispute that the test for unsatisfactory conduct is objective as is the test for unprofessional conduct. He argued however that in this case the Tribunal had not mis-applied the test. In its application of the objective test the Tribunal was entitled to have regard to the evidentiary context in which the letter of 9 June 2005 was sent to the Board and not simply have regard to that letter in isolation. Mr Griffin pointed out that when the Board wrote to the practitioner on 30 January 2005, not only had the relevant complaint been inactive for two years, the practitioner had previously been advised by the Board by letter dated 26 August 2003 that there was no evidence of unprofessional nor unsatisfactory conduct by him. The practitioner had in that period been paid his fees and, not unreasonably, had considered the matter had been at an end for a lengthy period of time. Mr Griffin submitted that the reference in the Board’s letter of 30 January 2005 to the absence of notes which might satisfy a Taxing Master were misleading or at least ambiguous as there was no taxation afoot nor did there appear to be any taxation issue outstanding with the client. In addition, the Board had already inspected the practitioner’s file and was aware there were no notes of attendances as identified in that letter. In those circumstances the Board was well aware of the absence of contemporaneous notes. There was therefore no intention on the part of the practitioner to deceive nor any appreciation of the potential risk for the Board to be misled. As soon as the matter was raised with the practitioner, he made it clear that the notes were a reconstruction.
In reaching the conclusion that the practitioner was not guilty of unsatisfactory conduct, the Tribunal appears to have placed considerable weight on the fact that this was “an isolated instance”. The fact that the conduct was isolated, however, does negate an assessment of the conduct as unsatisfactory, although the frequency with which conduct may or may not have occurred is clearly relevant to the question of unprofessional conduct.

The Tribunal was understandably sympathetic to the practitioner’s problems, particularly with respect to his use of the English language, but in my opinion fell into error by introducing subjective factors into an assessment of what is an objective standard. The notes initially provided to the Board were described as “copies of file notes”. They read as notes made contemporaneously with the relevant event, but that was untrue. There does not seem to be any reason why the practitioner did not immediately explain to the Board the absence of contemporaneous notes and the provision by him of reconstructed copies, as he did in his subsequent letter of 30 June 2005. In my opinion, the manner in which the practitioner forwarded that information amounted to a lack of frankness on the part of the practitioner in his dealings with the Board. That was conduct which failed to meet the standard of conduct required to be observed by competent legal practitioners of good repute and was therefore unsatisfactory. The appeal is therefore allowed, the order for dismissal set aside and a finding made that the practitioner is guilty of unsatisfactory conduct.
The information provided to the Tribunal with respect to the practitioner’s background, the circumstances in which the information was provided and the fact that this was an isolated occurrence were however all matters relevant to the question of penalty upon a finding being made as to unsatisfactory conduct. In my opinion the matter could appropriately be dealt with by way of reprimand, but I will hear counsel further as to that aspect of the matter, as well as the question of costs.