Legal Practitioners Conduct Board v Viscariello - [2012] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
LEGAL PRACTITIONERS CONDUCT BOARD v VISCARIELLO
[2012] SASC 92
Reasons for Decision of The Honourable Justice Blue
5 June 2012
PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES - CANCELLATION AND SUSPENSION
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA
The Legal Practitoners Disciplinary Tribunal found that the practitioner engaged in unprofessional conduct and recommended that disciplinary proceedings be instituted in the Court. The Legal Practitioners Conduct Board has instituted proceedings seeking that the name of the practitioner be struck off the roll of legal practitioners. The Practitioner has instituted an appeal against the decision of the Tribunal.
The Board seeks an interim order that the practitioner's practising certificate be suspended until finalisation of the disciplinary proceedings. The practitioner opposes the interim order and instead offers a series of undertakings.
Order made imposing conditions on the practitioner's practising certificate until finalisation of the disciplinary proceedings.
Legal Practitioners Act 1981 (SA) 5, 16, 82, 84, 86, 89, 89A, 90, referred to.
Legal Practioners Conduct Board v Jones (2009) 266 LSJS 87, applied.
Condon v Legal Practitioners Conduct Board (2004) 234 LSJS 314; Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149; Law Society of South Australia v Russell [1999] SASC 389; Law Society of South Australia v Jordan [1998] S6552 (Unreported, Doyle CJ, 12 February 1998); Law Society of South Australia v Jordan (1998) 198 LSJS 434; Law Society of South Australia v Nicholson [2004] SASC 2; Legal Practitioners Conduct Board v Le Poidevin (2001) 83 SASR 443; Law Society of South Australia v Trueman [2000] SASC 359; Legal Practitioners Complaints Committee v a Pracitioner (1987) 46 SASR 126; Legal Practitioners Conduct Board v Fardone (2009) 260 LSJS 374, discussed.
Legal Practitioners Conduct Board v Jones [2009] SASC 347; Legal Practitioners Conduct Board v Lind (2011) 110 SASR 531; Legal Practitioners Conduct Board v Morel (2004) 88 SASR 401; Medical Board v Marzola (1985) 39 SASR 429; New South Wales Bar Association v Cummings (2001) 52 NSWLR 279; O'Reilly v Law Society (NSW) (1988) 24 NSWLR 204; Law Society of South Australia v Liddy [2003] SASC 379, considered.

LEGAL PRACTITIONERS CONDUCT BOARD v VISCARIELLO
[2012] SASC 92
Miscellaneous Appeal

BLUE J: In this action (“the disciplinary proceedings”), the Legal Practitioners Conduct Board seeks an order that the name of the practitioner be struck off the roll of legal practitioners pursuant to section 89(2) of the Legal Practitioners Act 1981 (SA) (“the Act”).
The Board relies upon findings by the Legal Practitioners Disciplinary Tribunal that the practitioner engaged in unprofessional conduct in two different but related respects between June 2004 and September 2006, and in December 2006. [1]
[1] Legal Practitioners Act 1981 (SA) s 89(5)(a).
In action number 597 of 2012 (“the appeal proceedings”), the practitioner appeals against the decision of the Tribunal and challenges its findings leading to and of unprofessional conduct.[2]
[2] Legal Practitioners Act 1981 (SA) s 86.
By interlocutory application, the Board seeks an interim order that the practitioner’s practising certificate be suspended until finalisation of the disciplinary proceedings or further order.[3] The practitioner opposes an interim order and offers a series of undertakings instead.
[3] Legal Practitioners Act 1981 (SA) s 89A or inherent jurisdiction.
Background facts
The practitioner is a co-director and co-shareholder of a company (“the company”) which conducts a practice of law (“the firm”) in Adelaide. The two directors and shareholders work full time practising law on behalf of and as employees of the company.
The company also employs three full time junior solicitors and two part time support staff. The firm practises generally in commercial law. The practitioner practises almost exclusively in commercial litigation.
Based on findings made by the Tribunal of what are described as uncontested facts:
1.the practitioner was a director of J&L Developments Pty Ltd (“J&L”) until May 2006;
2.in 2002, J&L, as trustee of the S& P Trust (“the Trust”), purchased a property (“the Property”);
3.subsequently, J&L’s application for development approval was refused, its appeal to the Environment and Development Court was upheld and a further appeal to this Court reinstated the refusal, leaving costs orders against J&L in favour of the Council and objectors;
4.after the appeal was instituted in this Court, the trust deed was amended in June 2004 to remove and purportedly exclude a right of indemnity in favour of the trustee of the Trust;
5.after the conclusion of the development litigation, J&L was replaced in April 2006 as trustee by another company of which the practitioner was sole director;
6.subsequently, the Council and objectors sought a charging order over the Property and in December 2006 the practitioner gave evidence in this Court that J&L had acted in its own right and not as trustee in applying for development approval and in the subsequent litigation;
7.in July 2007, Debelle J held that J&L was entitled to be indemnified out of the proceeds of sale of the Property. Debelle J rejected the practitioner’s evidence and characterised it as “contrived and dishonest”.
In August 2008, the Board laid a charge of unprofessional conduct against the practitioner, namely that he:
1.attempted to defeat any adverse costs order by putting J&L’s right of indemnity out of its apparent control;
2.gave false and dishonest evidence.
The practitioner denied the charge and the Tribunal heard evidence and submissions in April 2010, November 2010 and December 2011.
On 3 April 2012, the Tribunal found the practitioner guilty of unprofessional conduct in both respects. On 12 April 2012, the Tribunal recommended that disciplinary proceedings be commenced against the practitioner in this Court[4] and ordered that the practitioner generally pay the Board’s costs.[5]
[4] Legal Practitioners Act 1981 (SA) s 82(6)(a)(v).
[5] Legal Practitioners Act 1981 (SA) s 85.
On 1 May 2012, the practitioner filed the notice of appeal in the appeal proceedings. On 2 May 2012, the Board filed the summons in the disciplinary proceedings and the interlocutory application seeking an interim order.
On the hearing of the application, I received without opposition an affidavit of an employee of the Board and two affidavits of the practitioner.
I have made an order that the appeal proceedings be referred for hearing and determination by the Full Court and they are to be listed for hearing in July 2012. I have also made an order that the disciplinary proceedings be listed on the same date, but it will be a matter for the Full Court to determine whether (as the practitioner contends) the appeal proceedings should first be heard and determined before the hearing of the disciplinary proceedings.
Contentions of the parties
The Board contends that the predominant consideration on an interim order application is the public interest, namely the protection of the public and the maintenance of public confidence in the legal profession.
While acknowledging that the Tribunal’s findings are subject to challenge in this Court, the Board contends that the findings of the Tribunal ought to be accorded substantial weight. Having regard to the finding of dishonesty by the Tribunal, there is a risk to the public (clients, opposing litigants and other practitioners) in the practitioner continuing to practise pending the determination of the appeal and disciplinary proceedings. Further, permitting the practitioner to practise would be contrary to the maintenance of public confidence in the profession.
The practitioner contends that the question of an interim order should be approached on the basis that the legal practitioner maintains his innocence in this Court (as he has done from the outset). There should be no presumption that he is guilty of unprofessional conduct until the hearing and determination of his appeal.
The practitioner contends that the risk to the public would be minimised by accepting undertakings offered by him. Public confidence in the profession would not be adversely affected because the public would appreciate that he denies the dishonesty charges and is entitled as of right to appeal challenging the findings of the Tribunal.
The practitioner contends that a suspension would involve a serious risk of causing a substantial, once-off and semi-permanent adverse effect upon his professional reputation, client base and livelihood. It would also deprive him of income for the period of the suspension and of the ability to meet his share of monthly firm overheads, which are substantial. These losses will not be compensable if his appeal is successful.
The practitioner contends that suspension would have an adverse effect upon the firm, his partner (co-director/co‑shareholder) and the three junior solicitors (directly affecting the workload of at least one junior solicitor). It is probable that suspension would require him to resign as a director of, and divest himself of his shares in, the company,
The practitioner refers to the long history of the matter between the judgment of Debelle J in July 2007 and the ultimate findings of the Tribunal in April 2012. He contends that, because the Board did not apply for an interim order over that period, it can be inferred that the Board considered it was not needed for the protection of the public. He also contends that there is no evidence that over that period he has conducted his practice other than professionally.
Both parties refer to the fact that an interim order is likely to operate only for a small number of months. The Board contends that this reduces the adverse effect of suspension. The practitioner contends that this exacerbates the effect of suspension given the once-off component of the potential adverse consequences.
The Board contends that suspension is required in the public interest. Alternatively, restrictive conditions upon the practitioner’s practising certificate should be imposed. The practitioner contends that no order should be made for either suspension or conditions and instead offers, unconditionally, a series of undertakings to the Court. The undertakings offered may be summarised as follows:
1.the practitioner would provide to all existing clients, and any new clients, a copy of the Tribunal’s findings and order and would outline alternatives available to clients (or prospective clients) to his continuing (or commencing) to act;
2.the practitioner would not appear as counsel in any court in any matter;
3.the practitioner would not take or witness any affidavit or statutory declaration;
4.the practitioner would not act for any friend, colleague or relative;
5.the practitioner would not provide advice in relation to the law of trusts;
6.the practitioner would not conduct any proceedings on his own behalf (except for two specific matters in the Tribunal in which he is the complainant).
Some preliminary matters
In light of the contentions of the parties and the issues which arise, it is convenient to address some preliminary matters before turning to the general principles applicable and then to a consideration of this specific application.
Legislative disciplinary regime
“Unprofessional conduct” is, relevantly, conduct in connection with practice by a legal practitioner involving substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute.[6]
[6] Legal Practitioners Act 1981 (SA) s 5(1).
On the laying of a charge, the Tribunal conducts an inquiry into the conduct of the legal practitioner and makes a finding that the practitioner is guilty or not guilty of unprofessional conduct.[7] Upon a guilty finding, the Tribunal is empowered, amongst other things, to impose suspension for up to six months or conditions on the practitioner’s practising certificate for up to 12 months.[8] Alternatively, the Tribunal may recommend disciplinary proceedings be commenced against the practitioner in this Court.[9]
[7]    Legal Practitioners Act 1981 (SA) s 82(4)-(6), (8).
[8]    It can also impose a fine or reprimand or require periodic examination of records or require education, training or counselling. It can impose conditions for more than 12 months with the practitioner's consent.
[9]    Legal Practitioners Act 1981 (SA) s 82(6).
Disciplinary proceedings may be instituted in this Court where the Tribunal has recommended that course.[10] In such proceedings, this Court may accept and act on any findings of the Tribunal.[11]
[10] Legal Practitioners Act 1981 (SA) s 89(1). The Court retains inherent jurisdiction to discipline a practitioner in the absence of proceedings before the Tribunal: see for example Law Society of South Australia v Liddy [2003] SASC 379 at [3] per Doyle CJ (Perry J and Gray J agreeing).
[11] Legal Practitioners Act 1981 (SA) s 89(3) and (5)(a). See Law Society of South Australia v Jordan; Jordan v Legal Practitioners Conduct Board [1998] SASC 6809; (1998) 198 LSJS 434 at 474-475 per Doyle CJ (Millhouse J and Nyland J agreeing); Law Society of South Australia v Russell [1999] SASC 389 at [6] per Doyle CJ (Mullighan J and Martin J agreeing); Legal Practitioners Conduct Board v Le Poidevin [2001] SASC 242 at [3] per Doyle CJ and [24] per Lander J (Bleby J agreeing).
This Court has plenary powers to make orders, including striking off the name of a legal practitioner from the roll of legal practitioners or suspending or imposing conditions upon the practitioner’s practising certificate.[12]
[12] Legal Practitioners Act 1981 (SA) s 89(2) and (3).
Weight accorded to findings of Tribunal
The Tribunal, when hearing an allegation of unprofessional conduct, consists of a panel of three members, being legal practitioners of at least five years standing.
Where the Tribunal finds a practitioner guilty of unprofessional conduct and decides to make substantive orders itself imposing restrictions on practice (or imposing other requirements, a fine or reprimand), the practitioner has a right of appeal against the orders and for that purpose may challenge the finding of guilt of the Tribunal.[13] The appeal is in the nature of rehearing.[14] The findings of the Tribunal are afforded substantial weight in that an appellant is ordinarily required to demonstrate error on a rehearing.[15]
[13] Legal Practitioners Act 1981 (SA) s 86. See for example Legal Practitioners Conduct Board v Jones [2009] SASC 347 in which the Board appealed against an order imposing conditions.
[14] Legal Practitioners Conduct Board v Jones [2009] SASC 347 at [12]-[13] per Layton J.
[15] Legal Practitioners Conduct Board v Jones [2009] SASC 347 at [14]-[15] per Layton J.
Where the Tribunal finds a practitioner guilty of unprofessional conduct and recommends the institution of disciplinary proceedings in this Court, there may be some doubt whether the practitioner can appeal against the finding of guilt,[16] or the recommendation.[17] If so, the principles discussed above will apply. If not, where (as in the present case) the Tribunal makes an order for costs, the practitioner has a right of appeal against the costs order[18] and might, on that appeal, challenge the finding of guilt which led to the costs order. [19]
[16] In Legal Practitioners Complaints Committee v a Practitioner (1987) 46 SASR 126, King CJ and Olsson J (Prior J dissenting) held that, because the right of appeal was conferred against a “reprimand or order”, it did not extend to a dismissal on a finding of not guilty. Parliament responded in 1987 by substituting “decision” for “reprimand or order” and it would seem that a dismissal (either summarily under s 86(5) or after full inquiry under s 86(6)) is intended to be encompassed within the concept of a “decision”. In Legal Practitioners Complaints Committee v a Practitioner (1987) 46 SASR 126, Prior J (dissenting) treated a finding of guilty or not guilty as a “decision” within the meaning of s 90(4) (contrast the approach of Olsson J at 140 and 142). The Act makes a distinction between “decision” and “findings” in s 89(5)(a) and (b)(ii) and s 84(7)(b) and refers to “findings” and “decision” in various sections. There does not appear to have been a subsequent case in which it has been questioned that a finding of guilty or not guilty is itself a “decision”. The Full Court has proceeded on the basis that a practitioner can appeal against a finding of guilt (or perhaps a recommendation) in at least three cases: Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149; Law Society of South Australia v Jordan; Jordan v Legal Practitioners Conduct Board (1998) 198 LSJS 434) and Condon v Legal Practitioners Conduct Board [2004] SASC 197; (2004) 234 LSJS 314.
[17] In Legal Practitioners Complaints Committee v a Practitioner (1987) 46 SASR 126, Prior J (dissenting) treated a recommendation that disciplinary proceedings be instituted as a “decision” within the meaning of s 90(4) (contrast the approach of Olsson J at 140 and 142). See further footnote 16 above.
[18] Legal Practitioners Complaints Committee v a Practitioner (1987) 46 SASR 126 at 131 per Prior J and 140 and 142 per Olsson J.
[19] Legal Practitioners Complaints Committee v a Practitioner (1987) 46 SASR 126 at 142 per Olsson J; see also Medical Board v Marzola (1985) 39 SASR 429 at 439-440 per Johnston J (King CJ and Matheson J agreeing).
If there has been no appeal in which the finding of guilt is determined, it is likely that ordinarily the Court in disciplinary proceedings would give weight to the findings of the Tribunal in a manner analogous to the approach on an appeal by way of rehearing.[20]
[20] See the approach of the Full Court in the cases cited at footnote 11 above.
Accordingly, whether a finding of unprofessional conduct by the Tribunal is challenged on appeal under section 86 or in disciplinary proceedings under section 89, in practical terms the practitioner may well ordinarily need to demonstrate error in the Tribunal’s reasoning before this Court will effectively overturn or not act upon (as the case may be) the Tribunal’s finding of unprofessional conduct.
Practice by a company
Companies are entitled to practise law provided they hold a practising certificate and their constitution contains defined provisions.[21] Each director must be a legal practitioner holding a current practising certificate,[22] and each beneficial shareholder must be a legal practitioner who is a director or employee of the company.[23]
[21] Legal Practitioners Act 1981 (SA) s 16(2).
[22] Legal Practitioners Act 1981 (SA) s 16(2)(a)(ii). There is an exception for a two director company permitting the second director to be a prescribed relative of the first director, but this is not relevant for present purposes.
[23] Legal Practitioners Act 1981 (SA) s 16(2)(a)(iii). Again, there is an exception for prescribed relatives, but this is irrelevant for present purposes.
It is likely, and the parties on this application have made submissions on the basis, that a practitioner whose practising certificate is suspended is not eligible to be a director and consequentially a shareholder. If so, suspension would require the practitioner to resign as a director of and dispose of his shares in the company. The position would be similar to that of a partner in a partnership who would apparently be required to cease being a partner upon suspension of his or her practising certificate.
Approach to final orders in disciplinary proceedings

Where the Court finds unprofessional conduct in disciplinary proceedings under section 89, it will have regard to the importance of legal practitioners displaying honesty in dealings with clients, other persons and the Court.[24]
[24] O’Reilly v Law Society (NSW) (1988) 24 NSWLR 204 at 230; Legal Practitioners Conduct Board v Morel [2004] SASC 168 at [66]; (2004) 88 SASR 401; Legal Practitioners Conduct Board v Lind [2011] SASCFC 104 at [14]-[15]; (2011) 110 SASR 531.
A predominant factor in determining what final orders ought to be made is the public interest, including both the protection of the public and the maintenance of public confidence in the legal profession.[25]
[25] New South Wales Bar Association v Cummings (2001) 52 NSWLR 279 at 284; Legal Practitioners Conduct Board v Morel [2004] SASC 168 at [66].
Jurisdiction to make interim order
The Court has both statutory[26] and inherent[27] jurisdiction to make interim orders suspending or imposing conditions on a practising certificate pending the finalisation of disciplinary proceedings. A single Judge has jurisdiction to make interim orders.[28]
[26] Legal Practitioners Act 1981 (SA) s 89A.
[27] In Re Practitioners of the Supreme Court (1980) 26 SASR 275 at 279-280 per Mitchell J (Mohr J agreeing); Law Society of South Australia v Jordan [1998] S6552 (Unreported, Doyle CJ, 12 February 1998); Legal Practitioners Conduct Board v Fardone [2009] SASC 15; (2009) 260 LSJS 374 at [9] per Gray J.
[28] Law Society of South Australian v Jordan [1998] S6552 (Unreported, Doyle CJ, 12 February 1998); Law Society of South Australia v Trueman [2000] SASC 359 at [25]-[26] per Lander J; Legal Practitioners Conduct Board v Fardone (2009) 260 LSJS 374 at [9] per Gray J.
In Law Society of South Australia v Jordan,[29] an interim suspension order was made in the inherent jurisdiction but it was not opposed. The practitioner was not practising, did not hold a practising certificate and was in ill health. The Tribunal had made a finding of unprofessional conduct and disciplinary proceedings had been instituted in this Court.
[29] [1998] S6552 (Unreported, Doyle CJ, 12 February 1998).
In Law Society of South Australia v Trueman,[30] an interim suspension order was made under section 89A but the practitioner conceded the order should be made. Charges of unprofessional conduct had been laid in the Tribunal.
[30] [2000] SASC 359.
In Law Society of South Australia v Nicholson,[31] an interim suspension order was made in the inherent jurisdiction but the practitioner did not appear or oppose an order. No charges had yet been laid but the practitioner had apparently acknowledged serious misconduct including the misuse of trust monies. The practitioner was in ill health.
[31] [2004] SASC 2.
In Legal Practitioners Conduct Board v Fardone,[32] an interim suspension order was made under section 89A. The practitioner opposed an order and offered a series of undertakings instead. The practitioner acknowledged that he had acted in gross breach of trust for almost a decade and continued to do so. The practitioner’s practice involved only 12 active files.
[32] (2009) 260 LSJS 374.
In Legal Practitioners Conduct Board v Jones,[33] the Court declined to make an interim suspension order under section 89A. The Tribunal had found the practitioner guilty of unprofessional conduct which the practitioner did not challenge. The Tribunal had imposed restrictive conditions (involving supervised practice) for 18 months. The Board had appealed on the ground that the order was inadequate. The practitioner was not practising, did not hold a practising certificate and did not intend to practise for the 18 month period.
[33] (2009) 266 LSJS 87.
None of these decisions involved circumstances in which the practitioner both denied the conduct found by the Tribunal (or alleged) to amount to unprofessional conduct and was practising law full time.
Relevant principles
Section 89A of the Act provides as follows.
89A—Court may order interim suspension of legal practitioner or impose interim conditions
If—
(a)disciplinary proceedings have been instituted against a legal practitioner before the Tribunal or the Supreme Court or a legal practitioner has been charged with or convicted of a criminal offence; and
(b)the Supreme Court is satisfied that the circumstances are such as to justify invoking the provisions of this section,
the Supreme Court may, on its own initiative or on the application of the Board, the Attorney-General or the Society, make an interim order—
(c)imposing conditions on the legal practitioner’s practising certificate (whether a practising certificate under this Act or an interstate practising certificate) relating to the practitioner’s legal practice; or
(d)suspending the legal practitioner’s practising certificate (whether a practising certificate under this Act or an interstate practising certificate),
until disciplinary proceedings against the practitioner have been finalised or until further order.
There is no pre-condition as such to the exercise of the inherent jurisdiction over a legal practitioner. [34]
[34] See the approach of Gray J in Law Society of South Australia v Nicholson [2004] SASC 2.
The following general principles apply on an application following a finding by the Tribunal of unprofessional conduct in which disciplinary proceedings have been instituted in this Court, the practitioner is challenging the Tribunal’s finding and the practitioner is practising full time.
1.In determining whether the circumstances are such as to justify invoking the provisions of section 89A and in exercising the discretion what order (if any) should be made, the public interest is a major consideration. [35]
2.For this purpose, the extent to which an interim order is necessary or desirable for the protection of the public[36] or to maintain public confidence in the profession[37] is a relevant consideration.
3.Ordinarily, there should be a prima facie case of unprofessional conduct established where it is that conduct which gives rise to the perceived need for public protection or maintenance of public confidence.[38]
4.Ordinarily, a prima facie case will be established by virtue of the Tribunal having made findings of unprofessional conduct, albeit subject to appeal.[39] If the Court were to assess that an appeal challenging the finding was bound to succeed, it may be (depending on the reason for the assessment) that no prima facie case would be established.[40]
5.Hardship to the practitioner is a relevant consideration, particularly in exercising the discretion whether to make an order and to what effect.[41] In this respect, it is relevant to take into account that there are no means for compensating the practitioner for loss suffered due to an order (especially of suspension) if the practitioner’s appeal is successful.[42]
6.However, to the extent that the interests of the practitioner are to be weighed against the public interest, the public interest is ordinarily regarded as predominant.[43]
Should an order be made?
[35] Law Society of South Australia v Trueman [2000] SASC 359 at [14] per Lander J; Legal Practitioners Conduct Board v Fardone (2009) 260 LSJS 374 at [28] per Gray J; Legal Practitioners Conduct Board v Jones (2009) 266 LSJS 87 at [7] per Doyle CJ.
[36] Law Society of South Australia v Trueman [2000] SASC 359 at [14] per Lander J; Legal Practitioners Conduct Board v Fardone (2009) 260 LSJS 374 at [28] per Gray J; Legal Practitioners Conduct Board v Jones (2009) 266 LSJS 87 at [7] per Doyle CJ.
[37] Law Society of South Australia v Nicholson [2004] SASC 2 at [21]-[25] per Gray J; Legal Practitioners Conduct Board v Fardone (2009) 260 LSJS 374 at [28] per Gray J.
[38] While not expressly stated, the Court found that there was at least a prima facie case in each of the authorities referred to at paragraphs [38] to [42] above. The first limb of section 89A requires only the institution (not the conclusion) of disciplinary proceedings in the Tribunal or the Court.
[39] See the approach of Doyle CJ in Legal Practitioners Conduct Board v Jones (2009) 266 LSJS 87 at [7].
[40] See the approach of Doyle CJ in Legal Practitioners Conduct Board v Jones (2009) 266 LSJS 87 at [11].
[41] Law Society of South Australia v Trueman [2000] SASC 359 at [14] per Lander J; Legal Practitioners Conduct Board v Fardone (2009) 260 LSJS 374 at [21]-[22] per Gray J; Legal Practitioners Conduct Board v Jones (2009) 266 LSJS 87 at [10] per Doyle CJ.
[42] Legal Practitioners Conduct Board v Jones (2009) 266 LSJS 87 at [10] per Doyle CJ.
[43] Law Society of South Australia v Trueman [2000] SASC 359 at [14] per Lander J; Legal Practitioners Conduct Board v Jones (2009) 266 LSJS 87 at [7], [10] and [12] per Doyle CJ.
First limb of s 89A
The first limb of section 89A is satisfied in this case. Disciplinary proceedings have been commenced.
Second limb of s 89A
Neither party argued that the appeal is bound to succeed or bound to fail. Neither party contended that I should attempt to assess the prospects of success on the appeal.
For the reasons set out at [29] to [32] above, a finding of unprofessional conduct by the Tribunal is accorded very considerable force by the Act. It is appropriate in the circumstances to treat findings of the Tribunal as giving rise to a prima facie case that the practitioner has been guilty of the dishonesty charged. This is not to presume that he is guilty of unprofessional conduct prior to the hearing and determination of his appeal. [44]
[44] Just as on an interlocutory injunction the finding of a prima facie case or serious question to be tried does not presume the plaintiff will ultimately succeed or on a stay of a judgment pending appeal there is no presumption that the appeal will ultimately fail.
The fact that the Tribunal has made a finding that the practitioner gave false evidence on oath is a very significant factor in considering the public interest in favour of an interim order in one form or another being made for the protection of the public, including clients, opposing litigants and other practitioners.
In these circumstances, I am satisfied that the circumstances are such as to justify invoking the provisions of section 89A. Notwithstanding that the findings of the Tribunal are subject to appeal, it is in the public interest that the practitioner not be permitted to practice in an unrestricted way pending the hearing and determination of the appeal and disciplinary proceedings.
In reaching this conclusion, I have had regard to the long history of the matter leading up to the findings of the Tribunal in April 2012. However, the position after April 2012 is markedly different to the position before in that there are now findings by the Tribunal of dishonesty and unprofessional conduct: see paragraphs [29] to [32] above. Further, the earlier attitude taken by and conduct of the Board should not in this case dictate what is now in the public interest.
It would be an unusual case in which the potential adverse effects of preventing or restricting practice on the practitioner would be taken into account on the second limb as opposed to the stage at which the discretion is exercised. However, in reaching my conclusion, I have taken into account the effect on the practitioner and others as part of the circumstances and have concluded that the circumstances nevertheless are such as to justify invoking the provisions of section 89A.
Discretion
The exercise of the discretion involves a balancing exercise. It involves balancing the degree to which suspension or restriction is in the public interest (with a predominant weighting) as against the interests of the practitioner and any other persons in his continuing to practice. It also involves balancing the considerations militating in favour of suspension as against those militating in favour of restriction (either by restrictive conditions or accepting undertakings).
I take account of the fact that suspension would have a substantial once-off effect upon the practitioner, regardless of the period of suspension. It is likely that he would lose a significant portion of his existing clients permanently and that he would suffer a significant loss of reputation even if successful on appeal. It is likely that he would be required immediately to resign as a director of the company and consequently to cease to hold his shares in the company. Suspension would preclude him earning an income from practising the profession of law for the period of the suspension. These losses would not be compensable if he is successful on his appeal.
I take into account that suspension would have a significant effect upon the firm and upon the junior practitioners employed by the firm. I also take into account that some clients of the practitioner, upon being informed of the Tribunal’s findings, might make an informed choice to retain the practitioner pending the hearing and determination of the appeal and disciplinary proceedings.
In weighing the public interest in the protection of clients and other members of the public against the interests of the practitioner, the public interest is to be given predominance. However, in performing a balancing process, it is necessary to consider to what extent public protection can be achieved by a lesser order than suspension, namely the imposition of conditions on the practitioner’s practising certificate.
In Legal Practitioners Conduct Board v Jones,[45] the practitioner was already subject to a condition on his practising certificate that he could only practise under the supervision of a practitioner of at least five years’ standing. In the particular circumstances of that case, Doyle CJ considered that the risk of the public suffering as a result of his practising was minimal.
[45] (2009) 266 LSJS 87 at [9].
Public confidence in the legal profession is to be given weight, but does not in itself dictate an order for suspension given that the public would appreciate that the practitioner denies the charges of dishonesty and is entitled to challenge the findings of the Tribunal on appeal.
In the present case, I am satisfied that the need for public protection, when given the appropriate predominant weighting and balanced against the prejudice likely to be suffered by the practitioner and others if the Tribunal’s decision is not upheld, dictates at least the practitioner practising under restrictive conditions if at all.
The parties made submissions on what conditions would be appropriate if I concluded that conditions ought to be imposed. I first consider what those conditions would be before deciding whether suspension or conditional practice is appropriate (and if conditional practice, whether it should be by virtue of conditions on the practitioner’s practising certificate or the acceptance of undertakings).
The conditions which I would be minded to impose if proceeding by way of conditions would be as follows.
1.The practitioner not practise the profession of the law other than as an employed practitioner controlled and managed by a legal practitioner of at least five years standing entitled to practice as a principal and designated as the principal by the Court (“the Principal”) including (without affecting the generality thereof):
(a)not practise law in matters or on tasks other than those assigned to him by the Principal;
(b)submit to the Principal within two business days information, and any change in information, in respect of each matter in which he practises identifying the name, address and contact details of the client; nature and status of the matter; terms of retainer and, upon receipt, any signed client acknowledgment for the purpose of inclusion by the Principal of that information in a register (“the Register”);
(c)not practise in any matter until the Principal has agreed in writing to control and manage the practitioner and to establish and maintain the Register, become the file principal in each file listed in the Register and monitor the practitioner’s compliance with the conditions of his practising certificate;
(d)not cause or permit any proposed or actual evidence (including affidavit, statutory declaration or witness statement) or legal advice to be communicated to any person outside the firm (including clients and witnesses) other than evidence or legal advice which has been reviewed and signed off by the Principal;
(e)not make submissions or state a position or opinion to another party’s legal representative on any matter of law or fact in issue in the case unless first reviewed and signed off by the Principal.
2. The practitioner not practise in any existing or new matter for an existing client unless and until:
(a)signed acknowledgement and instruction has been received from the client (“client acknowledgement”) that the client has been informed of the nature of the Tribunal’s finding of unprofessional conduct and that interim conditions for supervised practice have been imposed on his practising certificate pending the determination of the appeal and disciplinary proceedings and an election by the client to retain the practitioner to undertake work on the matter; and
(b)the relevant details of the matter have been recorded in the Register.
3.The practitioner not without the permission of the Court practise in any new matter for a new client.
4.The practitioner not without the permission of the Court:
(a)appear in a court or tribunal on behalf of any person;
(b)make or take an affidavit or statutory declaration;
(c)practise in a matter for a client who is a friend, colleague, family member or entity in or over which he has a direct or indirect interest or measure of control;
(d)communicate with an unrepresented party in a matter.
If those conditions were imposed, while it would not completely eliminate risk to the public, it would substantially minimise that risk. Weighing that minimised risk to the public as against the potential prejudice to the practitioner and others (and especially those clients who might prefer the practitioner to continue to act for them), I consider that it is appropriate to exercise my discretion in favour of conditional practice as opposed to suspension.
Given the serious finding of dishonesty by the Tribunal (albeit subject to appeal), I consider that conditions should be imposed on the practitioner’s practising certificate rather than by accepting undertakings from the practitioner.
Conclusion
I am satisfied that disciplinary proceedings have been commenced and that the circumstances are such as to justify invoking the provisions of section 89A. I am satisfied that in any event it would be appropriate to make orders in the inherent jurisdiction. An order should be made imposing conditions on the practitioner’s practising certificate broadly as outlined above. I will hear the parties as to the precise conditions and orders to be made.