Legal Profession Board of Tasmania v Lester
[2021] TASSC 41
•8 September 2021
[2021] TASSC 41
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Legal Profession Board of Tasmania v Lester [2021] TASSC 41 |
| PARTIES: | LEGAL PROFESSION BOARD OF TASMANIA |
| v | |
| LESTER, William Frederick | |
| FILE NO: | 1734/2019 |
| DELIVERED ON: | 8 September 2021 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 2, 3 December 2020 |
| JUDGMENT OF: | Brett J |
| CATCHWORDS: |
Professions and Trades – Lawyers – Complaints and discipline – Disciplinary proceedings – Tasmania – Professional misconduct constituted by dishonesty and gross delay – Other aspects of professional misconduct and unsatisfactory professional conduct – Relevance of mental health and good character – Relevance of attitude of other practitioners – Whether a fit and proper person to be a legal practitioner – Removal of name from Roll.
Legal Profession Act 2007 (Tas), ss 6, 9, 40, 42, 43, 44, 53, 417, 420, 440, 443, 450, 451, 486, 487, 510, 569,
572, 573, 586.
Legal Profession Act 2006 (ACT), ss 413, 460(2).
A Solicitor v Council of the NSW Law Society [2004] HCA 1, 216 CLR 253; Attorney-General v Bax [1999] 2
Qd R 9; Briginshaw v Briginshaw (1938) 60 CLR 336; Clyne v NSW Bar Association (1960) 104 CLR 186;
Devenish v Jewel Food Stores Pty Ltd (1990-1991) 172 CLR 32; Legal Practitioners Conduct Board v Lind
[2011] SASCFC 104; Legal Profession Board of Tasmania v W [2011] TASSC 67; Legal Profession Complaints
Committee v Leask [2011] WASC 310; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320;
Re Weare; In Re Solicitors' Act 1888 [1893] 2 QB 439; Scott v Law Society of Tasmania [2009] TASSC 12;
Wentworth v NSW Bar Association (1992) 176 CLR 239; Ziems v Prothonotary of the Supreme Court of NSW
(1957) 97 CLR 279, referred to.
Aust Dig Professions and Trades [1274]
REPRESENTATION:
Counsel:
Board: C Gunson SC, K Cuthbertson Respondent: C N Dockray
Solicitors:
Board: Tremayne Fay Rheinberger Respondent: C N Dockray
| Judgment Number: | [2021] TASSC 41 |
| Number of paragraphs: | 75 |
Serial No 41/2021 File No 1734/2019
LEGAL PROFESSION BOARD OF TASMANIA
v WILLIAM FREDERICK LESTER
| REASONS FOR JUDGMENT | BRETT J 8 September 2021 |
1 The respondent is an Australian legal practitioner. He was admitted in the ACT as such on 21 April 2006. He worked as an employed solicitor in the ACT between that time and 2011. In July 2011, he moved to Launceston where he set up practice on his own account. On 1 January 2013, his practice merged with another legal firm, and he then practised as a principal of that firm until ceasing practice of his own volition in March 2018.
2 The applicant, to which I will hereafter refer as "the Board", is a body established by the Legal Profession Act 2007 (the Act). Its functions include the receipt, investigation and determination of complaints concerning the conduct of legal practitioners. It may also, as necessary, refer such a complaint to an appropriate body, including this Court.
3 The Board has applied to this Court to hear and determine three complaints concerning the conduct of the respondent arising from his legal practice in Tasmania. It is entitled to do so under s 486 of the Act. The Court's jurisdiction to deal with the complaints, and make appropriate orders on the basis of them, arises under that provision and/or its inherent jurisdiction with respect to the control and discipline of legal practitioners. That jurisdiction is expressly preserved by s 510 of the Act. By s 487, the Court in deciding an application made under s 486 "may make any order ... it thinks appropriate".
4 The complaints can be summarised as follows:
(a) A complaint made by Mrs A S on 2 November 2017. Mrs S engaged the respondent in respect of workers compensation proceedings between 2011 and 2017. The complaint asserts gross delay and dishonesty. The gravamen of the dishonesty allegation is that from 2012, the respondent led Mrs S to believe that he had commenced workers compensation proceedings on her behalf in the Workers Rehabilitation and Compensation Tribunal (the Tribunal) when he had not done, and did not do so until January 2017. He maintained that pretence until his dishonesty was discovered by Mrs S in October 2017. The complaint asserts an ongoing and systemic course of dishonest conduct which involved numerous lies told to Mrs S and the falsification of documentation intended to support those lies. (b) A complaint made by the Board concerning the failure of the respondent to disclose a relevant disciplinary order made by the ACT Law Society, when applying to renew his practising certificate in Tasmania in 2016 and 2017. (c) A complaint by the Board in relation to the respondent's failure to comply with a requirement imposed on him by an investigator under s 572 of the Act. 5 The Board's submission is that the conduct in respect of each complaint amounts to professional misconduct, and that the only appropriate outcome is an order that the name of the respondent be removed from the roll of legal practitioners. Strictly speaking, because the respondent's right to practice as an Australian legal practitioner results from his admission by the Supreme Court of the ACT, the order sought from this Court is an order recommending that the respondent's name be removed from the roll in the ACT. Upon such a recommendation, the Supreme Court of the ACT must order the removal of the respondent's name from the roll in that jurisdiction, see s 460(2) of the Legal Profession
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Act 2006 (ACT). Questions may arise concerning the validity of legislation which mandates the exercise of judicial power by the Supreme Court of the ACT, on the basis of a determination made by a court not exercising jurisdiction in the ACT, but that will be a matter for that court. See Legal Profession Board of Tasmania v W [2011] TASSC 67. The practical effect of the recommendation is that the respondent will no longer be permitted to practice as a legal practitioner in any jurisdiction in Australia.
6 The respondent admits the conduct alleged in respect of each complaint. He does not dispute that the conduct relevant to complaints 1 and 3 amounts to professional misconduct. However, he disputes that the conduct relevant to complaint 2 amounts to either professional misconduct or unsatisfactory professional conduct. In respect of the conceded professional misconduct, the respondent argues that although the conduct relevant to complaint 1, in particular, is indefensible and deserves condemnation, it largely arose from the impact of an untreated mental health condition and his lack of insight into the effect of that condition on his conduct. The respondent concedes that at the time that he withdrew from practice, he was not fit to carry on practice as a legal practitioner, but argues that improvements in his mental health and other steps he has taken to reform his conduct and develop insight mean that a striking off order is unnecessary and, in the light of all relevant circumstances, including his overall history of practice and the good repute and regard in which he is held by colleagues in the legal profession, that I should not prevent him from practising absolutely but rather make orders which will permit him to eventually return to practice, albeit under supervision and with strict conditions.
7 In the light of the competing submissions of the parties, the critical issue for me in this case is whether, having regard to the conduct in question and all other relevant considerations, including the respondent's history of practice and record of other disciplinary matters, and his purported rehabilitation, I am satisfied to the requisite standard that he is not a fit and proper person to be entrusted with the duties and responsibilities of a legal practitioner: see Scott v Law Society of Tasmania [2009] TASSC 12, Crawford CJ (with whom Slicer and Evans JJ agreed) at [68]-[69]. The onus is on the Board to establish this. The appropriate standard of proof is the civil standard discussed and explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, see Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17].
Complaint 1 – Mrs S
8 Mrs S engaged the respondent in respect of a workers compensation claim in September 2011. She had suffered the injury in question on 7 March 2011 and had made the claim for workers compensation a few days later. Although the claim was initially accepted by the employer and there had been an attempt to have her return to work, by the time she consulted the respondent, she was no longer able to work because of the injury. Further, a short gap in the provision of medical certificates allowed the employer to dispute the claim, and its liability to continue to make payments of compensation, under s 81A of the Workers Rehabilitation and Compensation Act 1988. Mrs S consulted the respondent shortly before the s 81A hearing. The respondent represented Mrs S at that hearing, which was conducted on 29 September 2011. The Tribunal found that the employer had "a reasonably arguable case" and, accordingly, made an order for the cessation of the compensation payments. This placed the onus on Mrs S to pursue the claim by way of a referral to the Tribunal. The respondent was instructed to investigate and pursue this action, and he agreed to act for Mrs S on a "no win, no fee" basis.
9 The first aspect of the complaint is delay. A detailed analysis of the case by Mr Christopher Bartlett, a senior legal practitioner with considerable experience in workers compensation cases, sets out the steps which ought to have been taken by the respondent after the s 81A hearing. These included obtaining existing medical and hospital records, reports from past and present treating medical professionals and then arranging and obtaining an overarching medical assessment from an appropriate consultant. The essence of Mr Bartlett's advice is that had the appropriate evidence been collected, it would have become apparent within a relatively short time that Mrs S had a strongly arguable claim for
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compensation and that it was appropriate to bring proceedings to establish and enforce the claim. His opinion is that Mrs S should have been advised by mid-2012 to file a referral, and advised by early to mid-2013 that she had good prospects of success. Had a referral been filed in accordance with this timeframe, the case could have been resolved, at the latest, by late 2014 to early 2015.
10 In actual fact, the matter was not resolved until July 2019, well after the conduct of the matter had passed from the respondent to other practitioners. In circumstances which I will discuss shortly, Mrs S discovered the respondent's deceit in mid-October 2017 and terminated her engagement with the respondent on 30 October 2017. By that point, the respondent had done little if anything to advance the claim, and what he had done had been inadequate. The gross and unnecessary delay is not disputed by him. Some examples of the delay are as follows:
He did not obtain all records from general practitioners concerned with Mrs S's medical history generally, and the treatment of the relevant injury in particular, in a timely way. For example, although the respondent was given some records from the general practitioner who treated Mrs S for the workplace injury at the commencement of the engagement, he did not obtain a full medical report until 21 April 2016. Further, at the outset of the engagement, he requested records from another general practitioner who had provided general medical services to Mrs S in the past. That doctor responded on 29 September, indicating that he had not treated Mrs S for the workplace injury and asking whether the records were still required. The respondent did not respond to that letter, and those records were not obtained until May 2017. Mr Bartlett considers that these records contained helpful information and ought to have been obtained immediately. Further, the respondent did not seek reports from treating specialists within a reasonable time. Dr Ernst provided a preliminary report in 2013 but a full report was not obtained from him until 22 November 2016. A report from Professor Bittar, a neurosurgeon who ultimately provided extremely supportive evidence for Mrs S's case, was not obtained until 26 July 2017. All of this evidence was available and could have been obtained in 2011 or 2012. The referral was not filed with the Tribunal until 16 January 2017. It was prepared and filed by another practitioner, who had been employed by the firm to provide assistance to the respondent. According to the unchallenged evidence of Mrs S, she instructed the respondent to file a referral immediately after the s 81A hearing in 2011, and was of the belief that he had done so. The respondent prepared a costs agreement and retainer, and this document is dated 24 July 2012, and is signed by Mrs S. A completed referral document is present on the file, and dated 5 June 2013. It appears to bear Mrs S's signature. She does not recall signing it but accepts that it is her signature on the document. This document was not filed by the respondent. 11 The delay generally is not capable of reasonable explanation, and the respondent does not offer such explanation. He concedes that it was not a difficult case and purports not to have an explanation for his inaction and apparent incapacity to deal with the matter. For example, when his counsel asked him to explain why he did not file the referral found on the file, he said:
"A question I've asked myself numerous times, and I am unable to say. I just – I had it
there. I remember it sitting on the file for literally years. I was stuck in the mud so to speak. I just hit a blank wall and I'm honestly not sure, and I understand that it's not a particularly satisfactory answer, and I'd like to understand it better to."
12 Ultimately, Mr Bartlett's uncontested opinion is that the referral commencing the proceedings ought to have been filed by no later than the end of 2012, and the matter resolved by late 2014. As already noted, the referral was not filed until January 2016, and the matter not ultimately concluded until July 2019.
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Dishonesty
13 It is also not disputed that throughout the period of the engagement, the respondent deliberately, systematically and repeatedly deceived Mrs S about the progress of the claim. As already noted, she believed that proceedings had been commenced in 2011. From as early as April 2012, there is documentary evidence of communications from the respondent which state or imply that proceedings in the Tribunal had been commenced by him. Thereafter, and on numerous occasions, he blamed the lack of progress of the case on the Tribunal and its procedures, and from time to time on the dilatoriness or plain default of the employer, its insurer and its lawyers. The respondent's counsel, Mr Dockray, concedes on the respondent's behalf that the documentation establishes that between 2012 and 2017, there are at least 7 occasions when the respondent failed to correct Mrs S's understanding that proceedings were actively before the Tribunal, and at least 32 occasions when he made false statements to her as to the status and progress of the claim, when he knew those statements to be false. The documented deception commences with an exchange on 13 April 2012. Mrs S sent an email to the respondent requesting an update and including the following comment:
"Things are not good at the moment. I'm struggling with new pain ... I need some good news soon Fred ... I'm just not coping physically and emotionally with this whole thing now."
14 The respondent's response, forwarded on the same day, included the following:
"Haven't heard anything further re workers comp and will chase again early next week. I expect that we should hear from the Tribunal in the next seven days and hopefully
from RHH within that time too – in any event I will chase."
15 Thereafter, I gratefully adopt a summary of the dishonest communications prepared by the Board's counsel on the basis of the material provided to me:
"b Told Mrs S on or about 26 July 2013 that a date for hearing was being set by
the Tribunal;c Told Mrs S that a hearing date in the Tribunal had been set for 12 September
2013;d Told Mrs S on or about 9 September 2013 that the hearing on 12 September
2013 was a preliminary hearing;e Told Mrs S in mid-2014 that it was possible that a conciliation conference would happen in September 2014;
f Told Mrs S on or about 23 June 2015 that he would be travelling to Hobart and
would attend the Tribunal and request a date for a directions hearing;g In about August 2015, told Mrs S that he would have a date for a directions hearing by the end of the week. A file note made by the respondent and dated 11 August 2015 records making a phone call to Mrs S and states: Hope to have date from Tribunal soon. I'll call by e o w [end of week]; h In about September or October 2015, told Mrs S that a directions hearing had
been set for 13 October 2015;i Called Mrs S on or about 15 October 2015 and advised her what took place during the teleconference on 13 October 2015. Mrs S's notes of that conversation include the following: He apologized for not ringing me on Tuesday. Re 'Directions' teleconference on Tuesday.... Had teleconference Tuesday.
Finding dates - late November.
Other side mumbling something about getting an 'Experts' Report. Next
Step.5 No 41/2021
Has to go to 'conciliation' hearing. Next dates - end Oct and End November. Fred will keep 'pushing ... away' at them (WC Tribunal) re this date.
He should know in the next two weeks. I will call him on Mond 26/10.
j
On 19 November 2015, told Mrs S that he had been at the Tribunal the day before and 'jumped up and down' trying to get a date for a conciliation conference and that he will get on to the again Tribunal next week.
k On 18 December 2015, told Mrs S that there were no dates available for
conciliation in 2015 and that he would get a date in January or February 2016.
l On or about 8 or 9 March 2016, advised Mrs S that the conciliation conference
would go ahead on 20 April 2016, but that this was not a firm date.m On or about 12 April 2016, told Mrs S that the conciliation conference could not go ahead on 20 April 2016 because an updated report had not been received from Dr Paton in time.
n On or about 30 May 2016, spoke to Mrs S by phone and advised her he had a chat with the Tribunal about a potential date for a conciliation conference on 22 June 2016 and that the Tribunal was going list the matter for a teleconference and send a notice this week. o On 16 June 2016, left a message on Mrs S's phone advising her that the teleconference was listed for Tuesday week.
p On 17 June 2016, emailed Mrs S and advised that he was planning on dropping into the Tribunal in Hobart to see what dates were available for a conciliation in Hobart. q On 27 June 2016, spoke to Mrs S by telephone and told her the teleconference
was taking place at 3pm the next day.r On about 28 June 2016, spoke to Mrs S and her husband and told her that the reason for the delay in the matter was that the other side was trying to arrange for a time and date for her to undergo a medical examination. It is apparent from a file note on the respondent's file that he was purporting to report to Mrs S the outcome of the teleconference he had told her was taking place that day and specifically that the other side had two weeks to advise as to which doctor they wanted to use for the purpose of the medical examination; s On or about 14 July 2016, told Mrs S that he had sent a letter to the Tribunal
requesting a conciliation date;t On 29 July 2016, called Mrs S and told her that conciliation conference could not take place until October 2016. It is apparent from the email that Mrs S sent to the respondent following that conversation that he had advised that the Tribunal had provided the indication that the conciliation would not be able to take place until that time; u Between 1 and 25 August 2016, advised Mrs S that the matter had been listed
for a conciliation conference on 28 September 2016;
v On 23 September 2016, met with Mrs S to discuss what would occur at the conciliation conference. A file note of the respondent's attendance on Mrs S records that she will come in at 2pm on Wednesday, an apparent reference to attending his office in advance of the conciliation conference;
w On 28 September 2016, told Mrs S and her husband when they attended his office prior to the conciliation conference they understood was to take place that day that it had been cancelled due to 'someone on the other side's mother passing away';
x On 20 October 2016, emailed Mrs S and advised her that he would try to contact the Tribunal to keep onto them to obtain a teleconference date;
y
On an occasion between 20 October and 4 November 2016, advised Mrs S that he had sent a settlement proposal to the other side and that they were waiting for them to respond. No such settlement proposal had been sent;
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z On 17 November 2016, spoke to Mrs S by telephone and told her that he would
get onto the Tribunal as soon as possible;aa On 8 December 2016, spoke to Mrs S by telephone and told her that he would chase the other side and the Tribunal
bb During a meeting with Mrs S and her husband on 16 October 2017, and in response to questioning as to why the Tribunal had not received any correspondence or documents between September 2011 and January 2017, told Mrs S that he was sure that he went to the Tribunal to ask how things were progressing;
cc During that same meeting and in response to questioning as to why the Tribunal did not know about the conciliation conference that was scheduled to occur on 28 September 2016, told her that it 'was only between us and the other side' and that Mrs S did not understand the process."
16 While all of the dishonesty is concerning enough, some particularly concerning aspects are as
follows:
The respondent was deliberately lying to Mrs S at times and in circumstances in which it must have been obvious to him that she had become desperate about the impact of the delay on her own life and on the potential success of the case. The respondent was aware of Mrs S's concern, and consequent reliance on and trust in him to advance her matter quickly and successfully, from a very early stage. The exchange on 13 April 2012 exemplifies this. This exchange is not unique and does confirm that the respondent was aware, from an early time, of the emotional and psychological investment of Mrs S in the case and the potential impact on her of inaction and dishonesty on his part.
It is apparent from the ongoing correspondence annexed to Mrs S's affidavit that she continued to take an active interest in the case and to press the respondent to move the case on. In response, the respondent's lies became more complex and detailed. As time went on, he could no longer simply say that he was waiting to hear from the Tribunal, but clearly had to invent new procedures and appointments in order to demonstrate that the case was progressing through the Tribunal in a way that would be expected, but taking a long time because of delay on the part of the Tribunal or the other party. His communications with Mrs S progressed through discussing preliminary hearings to directions hearings to conciliation conferences. Mrs S continued to press for progress and to inform the respondent of the impact of the delay on her life. Of course, all of the respondent's references to Tribunal processes, conferences and hearings were completely fictitious. In actual fact, he had not started proceedings and the Tribunal knew nothing of the case.
The respondent's particular technique was to respond to queries from Mrs S by informing her that he had arranged a particular hearing or process, but that it either had not yet been listed by the Tribunal or, if it had been, was delayed by the Tribunal for reasons which were outside his control. On a number of occasions, he specified precise (and completely fictitious) dates for these processes or hearings, but at the last minute would tell Mrs S that these had been cancelled or postponed. This technique is disturbing for a number of reasons. Firstly it demonstrates well thought out and systematic deceit. Secondly, it had the clear effect of building up the expectations of Mrs S and giving her hope, only to have those expectations dashed at the last minute. This occurred repeatedly. It must have been very obvious to the respondent that Mrs S was putting enormous store in the promise of resolution offered by the proffered date, and further that such disappointment would have considerable impact on her and her family. Such conduct was cruel and selfish, and displayed a complete absence of empathy and concern for the client's welfare. A particularly concerning example of this is the events concerning the conciliation conference, supposedly arranged for 28 September 2016. In her affidavit, Mrs S describes these events as follows:
"54 On the morning of 29 September 2016, I felt very nervous and worked up about
the conciliation conference. I was feeling very anxious. It was if everything had
been building up to this point and that something might finally happen. I did not7 No 41/2021
want to be let down, and so sent the respondent a brief email saying how much I
would be relying on him for 'this afternoon'.55 At this time, I was living in [address], which is approximately an hours drive away from Launceston. As a result of my injury, I struggled to be in the car or drive myself for more than 20 minutes at a time.
56 After driving to Launceston, […] and I attended the respondent's office to prepare
for, and attend, the conciliation conference at the Tribunal, as the respondent had asked that we meet him there. Upon arriving at Clarke & Gee, the respondent took us into an office downstairs and closed the door. He informed us that he had some bad news, and that the conciliation conference had been cancelled due to someone on the other side's mother passing away. I felt very disappointed, but I believed the respondent when he said that is what happened. As we had already driven an hour to attend the conference, the respondent suggested we use the time available to discuss the spreadsheet of medical expenses that I had prepared and brought with me."
On repeated occasions, the respondent falsely blamed the Tribunal for the delay and thereby brought the Tribunal and its processes into disrepute. It is very concerning that an officer of the Court would impugn the good reputation of a tribunal for his own deceitful and selfish reasons. I regard this as a particularly concerning aspect of the respondent's conduct.
The respondent also unfairly and dishonestly placed blame for delay on the lawyers representing the workers compensation insurer, and by implication their client. Those lawyers received no communication whatsoever from the respondent between the s 81A hearing and the filing of the reference in January 2017. They had closed and archived their file in 2015 on instructions from the insurer because although Mrs S continued to submit medical certificates to the employer, there had been no referral filed and no communication from the respondent seeking to commence negotiations or otherwise advance the matter. His conduct in expressly or by implication placing blame on "the other side" from time to time, when he had had no communication with them at all, and they knew nothing about the fantasy he had created, is something I also regard as a serious aspect of the dishonesty.
In addition to blatant lies to his client, the respondent also created a number of documents designed to create the false impression that he had taken action, when he had not done so. These were false documents created at a time different to the date shown on them. There is a reasonable inference that the purpose of creating the documents was not only to give a false impression to the client, but also to mislead other practitioners in the respondent's firm who might take the case over, temporarily during leave or on a more permanent basis. The evidence establishes that the file came to the attention of other lawyers in the firm in January 2017, and that, in fact, the employed practitioner filed the reference then. However, the respondent maintained carriage of the file until his deceit was discovered by Mrs S in October 2017. The respondent did not tell his partners about his deceit in January, nor did he tell Mrs S that the reference had been filed then. He continued to maintain the pretence that the matter had been with the Tribunal since shortly after the s 81A hearing. Mrs S only discovered the deceit when, in desperation, she contacted the Tribunal directly. There is a compelling inference that, but for her discovery, the respondent would have continued his deceit, probably in the hope that he could resolve the matter before it was discovered. Although the respondent purports not to recall creating the false documents and his reasons for doing so, I am satisfied that they were created in or after January 2017, when it became apparent that his partners or other lawyers may have something to do with the file, and/or to maintain the deceit in the face of enquiry from the client.
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The documents are as follows:
o A letter to the Tribunal dated 29 September 2016 enclosing draft calculations of particulars of
loss.o A letter addressed to the employer's solicitors dated 29 September 2016 enclosing those
calculations and requesting the commencement of informal negotiations.o A file note purporting to record a telephone conversation with the Tribunal in which the practitioner advises the Tribunal of his client's frustration and obtains an assurance from the Tribunal that the matter will be looked at and listed for a telephone directions hearing "ASAP". The respondent concedes that he created this file note and placed it on the file. He accepted in cross-examination that it would have been a deliberate decision to fabricate the note, but claimed he had no memory of doing so. The note is in his handwriting and initialled by him. The evidence establishes that no such telephone call was made. The significance of the date of the purported telephone conversation is that it is one day after the respondent received an email from Mrs S asking him to "keep on to the WC Tribunal today re a telephone conference". The email notes the ongoing delay and passes on Mrs S's frustration with the process. The respondent responded on that day advising that although it was a public holiday on 20 October, he would contact the Tribunal the following day and would "keep on to them for you". This act exemplifies the concerning aspects of ongoing and systematic deceit, and the placing of blame on the Tribunal. The falsification of the file note takes the deception a step further. o A letter addressed to the Tribunal dated 8 December 2016 requesting that "the matter be listed
for teleconference as soon as possible".o A letter of the same date addressed to the employer's lawyers enclosing a report of Dr Ernst.
The respondent acknowledges that this letter was a complete fabrication.o The final document is another file note in the respondent's handwriting and initialled by him. This note is dated 17 January 2017 and again purports, falsely, to record a telephone conversation with the Tribunal expressing the respondent's client's frustration and asking for urgent progress. 17 As already discussed, the respondent accepts what has been alleged against him in respect of his misleading and dishonest conduct. His counsel concedes that a finding of professional misconduct should "without hesitation" be made against him and that his conduct "should be denounced and condemned in the strongest terms". These concessions are clearly appropriate and I find accordingly. The gross delay compounds and is intertwined with the dishonesty. I do not think it should be considered as a discrete course of conduct for the purpose of a finding as to professional misconduct. The appropriate finding is that having regard to the whole of the conduct relevant to the first complaint, the respondent is guilty of professional misconduct.
Complaint 2 – Failure to disclose disciplinary action
18 This complaint concerns the failure of the respondent to disclose "the summary conclusion" of a disciplinary complaint made against the respondent in the ACT, in his application for renewal of his practising certificate in Tasmania for the periods 2016-2017 and 2017-2018. The disciplinary action related to the conduct of the respondent while he was an employed legal practitioner in the ACT before moving to Tasmania.
19 The factual background is as follows. The respondent was admitted as a legal practitioner by the Supreme Court of the Australian Capital Territory on 21 April 2006. He then worked as an employed legal practitioner for a firm in the ACT until the end of May 2011. He carried on practice in Tasmania from July 2011 until ceasing practice in March 2018. He held a local practising certificate continuously throughout that time.
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20 On 9 August 2013, a complaint was made by Dr C to the ACT Law Society in respect of the respondent's conduct during summary criminal proceedings in 2009 and 2010. The proceedings related to a charge of assault and concluded with a plea of guilty that was dealt with in the Sunshine Magistrates Court on 12 October 2010. In general terms, the complaint concerned allegations that the advice and representation provided by the respondent had been incompetent and inadequate. The complaint was investigated by the ACT Law Society, a process in which the respondent actively participated. On 24 July 2015, the Society informed the respondent by letter that the Council of the Law Society had, on 20 July 2015, resolved as follows:
That it was appropriate to summarily conclude the complaint by an exercise of its power under
s 413 of the Legal Profession Act 2006 (ACT). Resolved that the respondent: 1 be issued with a public reprimand pursuant to s 413(2)(b); and
2 pay a fine of $500 pursuant to s 413(3) of the Act.
The letter also informed the respondent that the Council was "of the view that it would be prudent for you to continue, as deemed appropriate by your health care advisors, to receive further assistance and treatment".
21 The letter recorded the following findings of the Council:
"a) you breached Rule 1.1 by failing to treat Dr C fairly and in good faith. b) you breached Rule 1.2 by failing to act with competence and diligence. c) you breached Rule 16.2 by failing to assist Dr C to understand the issues in the case and his possible rights and obligations sufficiently to permit him to give proper instructions, particularly in connection with any compromise of the case. d) there is a reasonable likelihood that you would be found guilty by the disciplinary tribunal of unsatisfactory professional conduct but not professional misconduct; e) you are generally competent and diligent; and f) no other material complaints have been made against you."
22 On 28 May 2015, the respondent lodged a written application with the Law Society of Tasmania for a renewal of his practising certificate for the 2015-2016 year. There is a section in the application which is as follows:
"(See sections 9, 43 and 53 of the Legal Profession Act 2007. (Note 2)
I declare:
There are no matters about which I wish to inform the Society, or I wish to advise the Society about matters set out in the attached statement
(provide details.
Note: The Law Society does not require disclosure of convictions for minor offences such as traffic or licensing offences and the like. There is no requirement to repeat disclosures already made to the Society in relation to this question in a previous application for the grant or renewal of a practising certificate."
23 In respect of that application, the respondent ticked the box notifying that he wished to advise the Society about matters set out in an attached statement. The attached statement is dated 28 May 2015. It correctly disclosed the complaint by Dr C, provided appropriate particulars about it, and advised that it was still in progress.
| 24 | The respondent lodged an application for renewal of his practising certificate for the 2016-2017 year on 31 May 2016. It is signed and dated 30 May 2016. The application in respect of the 2017-2018 |
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year was signed and dated on 25 May 2017 and lodged with the Society on the same day. In the former, he has ticked the box in the relevant section advising that there are no matters about which he wishes to inform the Society. In the latter, he has ticked the box that there are matters to disclose and attached a statement which summarises four complaints made by other persons in respect of conduct during practice in Tasmania. There is no reference in either document to the conclusion to Dr C's complaint, nor did he inform the Society of the decision and resolution of the ACT Law Society at any other time.
25 By virtue of ss 6 and 40 of the Act, a person cannot engage in legal practice in Tasmania unless the person holds a current local or interstate practising certificate. In the respondent's case, the applications were concerned with a local practising certificate. By s 44, the duration of a local practising certificate is for the financial year in which it is granted, and there is provision for it to be renewed for each subsequent financial year.
26 By s 53, the decision to renew or refuse to renew the certificate is in the hands of the prescribed authority, which is and was at the relevant time, the Law Society of Tasmania. By s 53(4), the prescribed authority must not renew a local practising certificate if it is satisfied that the lawyer "is not a fit and proper person to continue to hold the certificate". Section 43 deals with suitability to hold a local practising certificate and expressly provides that the section has effect "for the purposes of section 53". Section 43(2) provides that the prescribed authority may, in considering whether the person is a fit and proper person to hold a local practising certificate take into account any suitability matter relating to the person, and other matters, which include:
"(c) whether the person has contravened ... a corresponding law, or the regulations or
legal profession rules under ... a corresponding law".
27 The suitability matters are defined by s 9. This section includes a number of defined matters relating to disciplinary proceedings and orders. The Board relies in particular on the following:
"(f) whether the person is currently subject to an unresolved complaint, investigation,
charge or order under any of the following:
(ii) a corresponding law or corresponding foreign law."
28 "Corresponding law" is defined. The Legal Profession Act 2006 (ACT) and regulations made thereunder fall within that definition.
29 The respondent does not dispute the facts relevant to this complaint. He does not dispute the content of the relevant applications, nor the fact of the investigation and determination by the ACT Law Society. In his affidavit, he asserts that he does not have an independent recollection of completing the 2016-2017 form but believes that he overlooked the findings when he completed the form. He refers to other complaints which had been notified to the Law Society in the 2017-2018 form, and reasons that if he had recollected the matter, he would have included it in the form. In cross-examination, he accepted that he had a duty of candour to the Law Society in the completion of the forms, that he had a practice of disclosing outstanding complaints on practising certificate renewal forms, and accepted that he should have disclosed the relevant information. He denied being embarrassed to do so and said that it would not have worried him to make the disclosure.
30 His counsel argues that under the relevant legislation, he was not obliged to make the disclosure. The argument is based upon a strict interpretation of the word "order" in s 9(f)(ii). However, this legislation is designed to be protective of the public and should therefore receive a broad interpretation. See Devenish v Jewel Food Stores Pty Ltd (1990-1991) 172 CLR 32, per Mason CJ at 45. I refer to the purposes of the Part set out in s 23 of the Act. In my view, "order" means any order which is applicable and binding on the practitioner as a result of relevant disciplinary proceedings, irrespective of when it was made, and whether compliance is complete or still outstanding. Mr Dockray argues that such an interpretation would require the legal practitioner to refer to the order every time the certificate is
11 No 41/2021
renewed, but this argument overlooks the notification in the relevant section of the form that the practitioner is not required to repeat a disclosure already made to the Society in a previous application. In any event, the finalisation of a disciplinary proceeding in a matter adverse to the practitioner is clearly relevant to the Law Society's consideration of whether he is a fit and proper person to hold a local practising certificate, having regard, in particular, to s 43(2)(c). The resolution of the ACT Law Society clearly informs the consideration raised by that provision.
31 The real question here is not about the technical requirements of the form, it is whether the respondent's duty of candour required disclosure of the relevant information, and whether his failure to so disclose it constituted a breach of that duty. I think there is no doubt that he ought to have disclosed the information and probably should have had done so as soon as he became aware of the outcome: cf A Solicitor v Council of the NSW Law Society [2004] HCA 1, 216 CLR 253. I think it is a reasonable observation that his duty in this regard was heightened by his positions of responsibility with the Law Society at the time. It is not disputed that the respondent was a councillor of the Law Society from September 2013 to January 2018, and was an executive committee member in the 2016-2017 practising year. The whole point of disclosure of information to the Law Society in respect of practising certificates is to facilitate a judgment about whether the practitioner is a fit and proper person to carry on legal practice. The disciplinary conclusion of a relevant disciplinary body from another jurisdiction, based upon satisfaction that "there was a reasonable likelihood that you would be found by a disciplinary tribunal guilty of unsatisfactory professional conduct" is obviously a matter that could affect the Law Society's determination of this question. The purpose of annual renewal of practising certificates is to ensure an up to date and contemporary assessment of the question, but a practitioner's duty of candour would require the information to be volunteered, as it arises, in any event. The information should have been disclosed, and it was a serious failure by the practitioner not to do so.
32 However, I do not believe that the evidence justifies a finding that there was a deliberate decision by the respondent to withhold this information from the Law Society. He had clearly disclosed the ongoing investigation in the previous year's application and he disclosed other complaints in the 2017-2018 application. While the conclusion reached by the ACT Law Society was adverse to him, it regarded his conduct as "less serious". There was no obvious reason for the respondent to conceal this finding from the Tasmanian Law Society. I am not convinced by the argument that he did so out of embarrassment, having regard to his position on the Council. I think the most likely reason is that advanced by him, that he has overlooked this when filling out the form. This seems likely particularly given that the resolution of the ACT Law Society had taken place at the beginning of the relevant financial year.
33 Having said this, my conclusion is that the failure to advise the Law Society of the outcome of the disciplinary proceedings in the ACT, irrespective of whether it was done immediately upon learning of it or in the application to renew the practising certificate, is unsatisfactory professional conduct. Because I am not satisfied that there was deliberate concealment of the information, I do not intend to make a finding of professional misconduct in respect of this issue. Of course, if it was deliberate, then it may well answer the definition of "professional misconduct" set out in s 421 of the Act. However, notwithstanding the inadvertent nature of the non-disclosure, because of the protective purpose of the regulatory scheme in the Act concerning the issue and renewal of practising certificates, there is a heavy onus on a legal practitioner to ensure that he or she is completely candid with the Law Society about all matters which would have the capacity to affect the Law Society's assessment whether the respondent is a fit and proper person to practice law. This duty requires more than simply completing a form, relying solely on memory. It requires diligence on the part of the practitioner to ensure that all relevant information is disclosed. In this case, a relatively modest degree of reflection and research would have reminded the respondent of the relevant finding, and a proper understanding of his duty of candour would have led to the inclusion of the information in the relevant application. The failure to make this effort was conduct "that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner". Therefore, I am
12 No 41/2021
satisfied that the failure to disclose the information in the relevant applications constitutes unsatisfactory
professional conduct within the meaning of s 420 of the Act, and I so find.
Complaint 3 – Failure to comply with the s 572 notice
34 The investigation by the Board of a complaint made by a member of the public against a legal practitioner, is a critical component of the machinery created by the Act as part of the scheme for the discipline of the legal profession and the promotion and enforcement of professional standards, competence and honesty within the legal profession: see s 417 of the Act. Section 440 provides that the Board is required to investigate each complaint for which it is responsible. By s 442, it may in writing appoint a suitably qualified person to investigate a complaint. The further powers of the Board prescribed under ss 450 and 451, which include the power to make the application which is currently before this Court, arise after the completion of the investigation.
35 Section 443 provides that the investigatory powers set out in Chapter 6 apply to an investigation of a complaint. The powers in that chapter can also be exercised in respect of other investigatory processes under the Act, including trust account investigations and examinations. By s 569 an investigator is defined to include an investigator appointed under the provisions referred to above.
36 Section 572 prescribes a power available to an investigator for the purpose of carrying out a complaint investigation. Under that provision, the investigator may, by notice served on the lawyer, require the lawyer to do a number of things, including providing written information, verified by statutory declaration if so required, on or before a specified date. By s 572(3), it is an offence to fail to comply with such a requirement, and by virtue of s 573(6), the failure of an Australian lawyer to comply with the requirement is capable of constituting unsatisfactory professional conduct or professional misconduct. Further, by virtue of s 586(4), where an Australian lawyer subject to a requirement of s 572 fails, without reasonable excuse, to comply with the requirement, the lawyer is deemed to be guilty of professional misconduct.
37 In this case, the s 572 notice related to an investigation of a complaint brought not by a client, but by another person in respect of the respondent's handling of estate litigation. The complaint was made on 13 May 2016. The respondent was notified of it on 12 August 2016, and he provided a detailed written response on 7 October 2016. He was notified that the complaint was to be investigated on 22 November 2016. On 9 October 2017, the respondent was requested to provide written answers to questions asked by the investigator, but he did not respond to that correspondence. The investigator made a number of attempts to contact the respondent to obtain a response, but these attempts were unsuccessful because the respondent did not respond to emails or telephone calls from the investigator. The notice under s 572 was issued on 4 December 2017. Its obvious purpose was to compel provision of the information which had previously been unsuccessfully sought on a voluntary basis. The notice required the respondent to provide the information verified by statutory declaration by no later than 4pm on 18 December 2017. The respondent admits that he did not provide a response within that time. In fact, a response was not provided until 23 January 2018, and, even then, the information was not verified by statutory declaration. The failure to respond within the required time is the gravamen of the complaint.
38 The respondent admits these facts and his default. His counsel concedes that he does not have a reasonable excuse for the failure to respond within the required time, and that this failure constitutes professional misconduct by virtue of s 586(4). In apparent mitigation, the respondent points to a lengthy delay on the part of the Board in dealing with the investigation prior to 9 October 2017. He also asserts that the delay after receiving the notice was contributed to by pressure of work arising from the pre- Christmas rush and leave over the Christmas period. He made some other assertions about the need for time to look at the file before responding, which was the subject of cross-examination by counsel for the Board, but for a different reason. I will return to this issue later in these reasons.
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39 The complaint is established. For the reasons given, I find the respondent guilty of professional
misconduct.
The consequences of the findings of professional misconduct and unsatisfactory professional conduct
40 It will be apparent from the foregoing discussion that the real issue between the parties is the appropriate sanction arising from the findings of professional misconduct and unsatisfactory professional conduct. The Board's submission is that the only appropriate sanction arising from the findings is that the respondent should be removed from the roll of practitioners. The respondent submits that something less than striking off can appropriately fulfil the protective purpose of the sanction. The respondent's counsel has formulated a proposed set of orders, the effect of which can be summarised as follows:
The respondent would be prohibited from applying for a practising certificate for 3 years. That for a period of 3 years thereafter:
o
He must only practice in the employment of another legal practitioner approved by the Board, who must supervise and review his files fortnightly and provide quarterly reports to the Board.
o There are strict and detailed requirements for record keeping and documentation imposed on
the supervisor and the respondent.o A comprehensive psychiatric report must be submitted prior to the issue of a practising
certificate, and again at the end of the first 12 month period of practice.
o He must not, subject to certain defined exceptions, have carriage of more than 75 files at any
one time.41 The primary purposes of the exercise of the disciplinary jurisdiction of the Court are the protection of the public, the preservation of the reputation of the legal profession and the proper administration of justice: Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202; Wentworth v NSW Bar Association (1992) 176 CLR 239. In respect of the sanction of striking off, the critical consideration is whether, having regard to the impugned conduct and other relevant circumstances, the respondent is a fit and proper person "to be entrusted with the important duties and grave responsibilities which belong to a solicitor": Re Weare; In Re Solicitors' Act 1888 [1893] 2 QB 439 at 448, per Lopes LJ, cited with approval in Scott v Law Society of Tasmania (above). See also A Solicitor v Council of the NSW Law Society (above) at 265.
42 The High Court in A Solicitor v Council of the NSW Law Society made other points pertinent to my consideration of this case. Firstly, a finding of professional misconduct will not automatically lead to the sanction of striking off. Secondly, the question of whether the practitioner is a fit and proper person to be a legal practitioner must be considered at the time of contemplation of the disciplinary order. Finally, it endorsed what was said in Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 concerning the need to consider all circumstances and facts which bear on the question. The respondent's counsel relies heavily on these principles. Mr Dockray concedes that if this determination was being made at the time that the respondent ceased practice in 2018, there would be no question that he was not then a fit and proper person to be a legal practitioner. However, it is submitted that when all relevant circumstances are taken into account, including the respondent's explanation for his conduct which is said to be directly linked to his poor mental health during the period of the misconduct, and rehabilitative steps that he has taken since then, that the Court can be satisfied that he is now a fit and proper person to carry on legal practice, albeit with the safeguards and restrictions contained in the proposed orders.
43 Insofar as the respondent purports to explain his conduct, he does so by reference to the impact of overwork, stress and poor mental health. He does not offer an explanation for his dishonesty but says
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that he is remorseful and indeed appalled by his conduct. However, he asserts that the dishonest conduct was isolated in the sense that it related to one file "among hundreds", that he otherwise has a good reputation among his peers in the legal profession, and the Court can be confident that, particularly with the supervision inherent in the proposed conditions of practice, the dishonesty will not be repeated.
44 In my view, an assessment of the nature and extent of the respondent's dishonest conduct is critical to a determination of whether he is a fit and proper person to carry on legal practice. It goes without saying that honesty, candour and integrity are essential qualities of character for a legal practitioner. They are the qualities which underpin a central feature of legal practice, trust. A client must be able to trust that his or her lawyer will faithfully carry out instructions and provide honest advice, a lawyer on the other side of a case or transaction must be able to trust in the integrity of his lawyer opponent, and, of course, trust in and honesty of counsel are essential to the efficient and effective administration of justice by the courts. It follows that a lawyer who lacks these fundamental character traits is not a fit and proper person to be entrusted with the responsibilities and duties of a legal practitioner. Of course, the matter for my assessment is whether the respondent's past conduct precludes a finding concerning his possession of these qualities in the future. Minor or temporary instances of dishonesty, or dishonest conduct arising because of particular extraordinary conditions may not preclude a finding that overall, and at the time of the order, and in the future, the practitioner is essentially an honest person. However, even in such a case, a finding in favour of the practitioner being a fit and proper person would not be possible if the practitioner lacks understanding of and insight into his transgressions, sufficient to satisfy the Court that he is not likely to repeat the mistake. This point was made by Pincus J in Attorney-General v Bax [1999] 2 Qd R 9:
"It is not, in my opinion, every proved act of dishonesty on the part of a practitioner which justifies a substantial penalty; dishonesty, like other forms of misbehaviour, has grades of seriousness.
... be inconsistent with this Court's duty as regards preservation of standards in the legal profession to hold that what has been found against the solicitor does not demonstrate unfitness to practise. Although I accept that the remedies of suspension or striking-off are not applied by way of punishment, but rather for the protection of the public and of the profession's standing (cf Clyne v NSW Bar Association (1960) 104 CLR 186 at 202), there is also a deterrent element. Those practitioners minded to engage in or institute, in the course of their professional work, dishonest means designed to deprive people of their legal rights must appreciate that doing so is risky, from the point of view of professional discipline and sometimes that of the criminal law. At least where, as here, the dishonesty concerns a substantial rather than a trivial matter, and where, as here, it is not a casual act but carried on over a period of time, it is my view that such conduct is likely to indicate unfitness to practise at the time at which it is engaged in; whether it does so will depend on all the circumstances."
A momentary or at least temporary lapse from proper standards of honest behaviour is
one thing; persistence in such conduct over a substantial period is another.
...
45 In this case, the practitioner's dishonest conduct was systematic, repeated, and continued unabated over a period of almost six years. It directly related to and completely undermined the relationship of trust between the practitioner and his client. It involved considerable thought and premeditation. An example of this is the subsequent preparation of the false documentation, including in particular the handwritten notes. It had a devastating impact on the client. Finally, the dishonesty involved putting false blame on other practitioners and on the Tribunal.
46 With respect to all of this, the respondent says that the Court can be satisfied that he will not repeat such conduct because of subsequent rehabilitation, the development of insight and an otherwise good character. The rehabilitation includes ongoing treatment by a psychiatrist, Dr Reid, and a reduction in his alcohol intake. The claim of insight seems to be related to a better understanding, with the benefit
15 No 41/2021
of hindsight and advice, of his mental health and underlying character traits, and the resultant problems of pressure, procrastination and over work. He says that, accordingly, he is now a fit and proper person to carry on legal practice, albeit with appropriate supervision. Given the extent of the dishonesty, these claims must be tested.
Mental health
47 In his evidence, the respondent says that he was first diagnosed with depression in 2010 and thereafter has been medicated and treated for that condition. This included receiving psychological counselling in 2014 and consulting Dr Reid in August 2018. His evidence suggests that his depressed mood was, on a regular basis, connected to his workload and his performance of his legal work. He describes experiencing inertia and difficulty coping with work, and at times feeling completely overwhelmed by the pressure of work. All of this led to procrastination, and set up a negative cycle which increased the difficulty and delay in dealing with his work.
48 The respondent called Dr Eric Ratcliff, a consultant psychiatrist, to provide expert evidence with respect to his mental health. Dr Ratcliff examined the respondent on 1 October 2019 and again on 3 July 2020. He had no prior knowledge of or association with the respondent. He provided two reports and was cross-examined during the course of the hearing.
49 Dr Ratcliff expresses the opinion that the respondent suffers from dysthymic disorder of late onset, complicated by an alcohol use disorder and underlying personality traits. He describes dysthymic disorder as "a chronic low grade depression of mood". Its features can include lowered mood, energy and self-esteem, difficulty in concentration, sleep and appetite disturbance. He considers that the respondent's level of alcohol intake tends to clinically significant excess and that this exacerbates the effect of the disorder. The disorder overlies personality traits which include avoidance of conflict, complexity and pressure, and a tendency to procrastination. In Dr Ratcliff's first report dated 13 November 2019, he expressed the following opinions concerning the respondent:
It is more probable than not that a return to legal practice might lead to a recurrence of the kind of
difficulty he has acknowledged in the past. In his current condition, he is "at least as capable of engaging in legal practice as he was in the past". At the time of the report, it is not possible to certify that if he resumed practice he would not
represent a risk to clients. "It does not appear to me that the behaviour, which in view of your client's statements about his tendency to take on too much work and to have difficulty dealing with it all, is on the balance of probabilities more likely to be characteristic than aberrant. Consequently, I do not consider that a period of treatment would be effective in removing the risk of similar behaviour". However "conditions on his right to practice including appropriate supervision would, combined
with his undoubted skill, largely prevent him from representing a risk to the public".50 In his second report, prepared after further consultation with the respondent on 3 July 2020, Dr Ratcliff expressed the opinion that a demonstrated perseverance with "... stable part-time commitments and controlled alcohol consumption suggest that if he resumes supervised legal practice he would be unlikely to represent a risk to the public". The reference to the part-time commitments is to several non-legal activities with which the respondent has been engaged since ceasing practice.
51 Of course, the subsequent opinion was based on the report of alcohol consumption provided by the respondent to Dr Ratcliff. I do not have confidence in the rate of alcohol consumption so reported. Firstly, it seems that the psychiatrist miscalculated and misunderstood the precise volume of weekly consumption. There is also evidence of a recent blood test which would suggest ongoing consumption
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at a problematic level. Dr Ratcliff did not dispute this in cross-examination. Further, it seems to me that
alcohol consumption is a variable factor which can easily fluctuate.52 In any event, the aspect of Dr Ratcliff's evidence which is critical to my consideration of this case, is his opinion that the respondent's demonstrated dishonesty is not explained or contributed to by his mental health. What Dr Ratcliff had to say concerning the respondent's low mood and underlying personality traits does not come as a surprise. At best, these factors explain the circumstances in which the respondent found himself under such pressure that he resorted to dishonesty in order to alleviate the pressure, but they do not resolve nor explain the dishonest conduct. Dr Ratcliff made this clear in both his reports and oral evidence. In any event, it is an obvious truth. There is no suggestion that the respondent's dishonest conduct was anything other than a product of his character.
53 Accordingly, nothing in Dr Ratcliff's evidence permits me to have confidence that the risk of misconduct in the future is satisfactorily reduced, or that the respondent is, or will be, a fit and proper person to carry on practice as a legal practitioner. In particular, attention to and an understanding of his mental health will not make the respondent more trustworthy, nor alleviate concerns arising from his demonstrated dishonesty. Further, it seems to me that the effect of Dr Ratcliff's evidence is that the underlying personality traits are immutable, hence giving rise to the risk that the pressures of legal practice may again create a situation in which the respondent is tempted to resort to dishonesty. This might be controlled to some extent by supervision but I also see difficulties in this regard, which I will discuss later in these reasons.
Other examples of dishonesty
54 The respondent's claim of rehabilitation and the development of insight must be considered in the light of a broader history of alleged dishonesty. In my view, the evidence establishes that the respondent's propensity for dishonesty is not limited to Mrs S's case but represents an aspect of his character which would tell against a conclusion that he is a fit and proper person to carry on practice. The particular matters of concern are as follows:
In early 2015, the respondent was instructed by the director and manager of a company which had been wound up on the basis of a default judgment, to set aside the default judgment and terminate the company's liquidation. On 27 March 2015, shortly after receiving those instructions, the respondent wrote to the solicitors acting for the liquidator and advised them that an application designed to achieve that outcome under the Corporations Act 2001 (Cth) had been filed in court. In cross-examination, the respondent conceded that that statement was untrue. In fact, it appears from material relevant to that case that the application in question was not filed until 16 April 2015. In his testimony, the respondent explained the untruth as "an ill-considered decision". He denied that he had a specific memory of lying to the solicitors. The respondent also conceded in cross-examination that he had on a number of occasions, lied to his former partners generally about action which he had taken on legal matters in respect of which he was under some pressure. A particular example referred to in cross-examination concerned conversations with his partners in September 2016 in respect of his dealings with the representative of the professional indemnity insurer concerning claims against the firm. The respondent described in evidence how he had been placed under pressure by his partners to take appropriate action. He said that his response "was to tell mistruths about what was happening". He agreed that by "mistruth", he meant deliberate lie. He accepted that, in general terms, this conduct was indicative of numerous other incidents of lying to clients, partners and other practitioners. 55 In addition to the admitted past dishonesty, I also have concerns in relation to unsatisfactory aspects of the respondent's evidence. In cross-examination, senior counsel for the Board confronted the respondent in respect of the truth of two statements made in his affidavit filed in these proceedings. At par 50(a), with respect to his response to the complaint concerning the s 572 notice, the respondent
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states that by the time he had received the written request from the Board on 9 October 2017, it had been 12 months since he had looked at the file. It became apparent in cross-examination that he had, in fact, had ongoing dealings with the file within that 12 month period, the last of which was on 22 March 2017, approximately 6½ months prior to 9 October 2017. It was suggested that he had deliberately lied about the period that he had not looked at the file in order to add substance to his explanation for not responding in a timely way to the Board. I am not prepared to find that this statement in his affidavit was a deliberate untruth told to the Court, although I do think that it was misleading. I accept the possibility raised by the respondent's counsel that it may well be that this was a generalised statement and a reference to substantial consideration of the file, rather than dealing with peripheral matters, as the relevant dealing may fairly be described.
56 The second statement about which the respondent was confronted in cross-examination, contained at par 48(e) of the affidavit, is more problematic. This statement related to the same issue, and asserted that there had been a gap of 10½ months between the last correspondence from the Board and the correspondence of 9 October 2017. The earlier correspondence, referred to in par 48(d), was the letter dated 22 November 2016 notifying the respondent that the Board would proceed with the investigation. In cross-examination, when confronted with file notes and emails, the respondent conceded that there had been conversations and email exchanges with the investigator and other Board staff in respect of the matter, and in particular which constituted an effort by the investigator to obtain the respondent's file, on a regular basis during the period between November 2016 and February 2017. He conceded that the intention of the statement in the affidavit was to convey the impression that he had heard nothing from the Board since 22 November 2016, but this was clearly untrue. His explanation, which was typical of many responses to prior incorrect statements, was that he had overlooked these communications when he swore his affidavit. I find this explanation difficult to accept. I think it is unlikely that the respondent would not have realised that there were communications within the relevant period, at the time that he swore his affidavit and, in any event, it is concerning that he would positively attest to such a statement without searching his memory and relevant records. Although the file in question was being held by his former firm when he swore the affidavit, it would have been a simple matter to obtain access to it. At the very least, his lack of diligence in ensuring that statements in a sworn affidavit to be presented as evidence in Court were true and accurate, is a matter which is relevant to the ultimate determination I am required to make in this case.
57 During the course of evidence, in cross-examination in particular, the respondent almost universally answered questions concerning past dishonesty by firstly accepting that the relevant statement or communication was untrue, but then claiming to have no recollection of making the statement or engaging in the communication. In general terms, I found this repeated explanation difficult to accept. There is nothing in Dr Ratcliff's evidence that would suggest that lack of memory can be explained by any mental health condition or personality trait of the respondent. When cross-examined by Ms Cuthbertson about this issue, Dr Ratcliff did not attribute lack of recollection to the respondent's condition, but rather went into a somewhat convoluted explanation about "forgetting on purpose" which simply seems to me to be a way of saying that the respondent had a tendency when confronted with dishonest behaviour, rather than directly admitting or denying the behaviour, to simply and purposefully say that he could not remember doing it. Dr Ratcliff suggested that this was a common response when a person is confronted with past discreditable behaviour. It is, of course, inherently dishonest, because the person is, for reasons of embarrassment or to avoid explanation, saying that he cannot recall something which he actually does remember. Dr Ratcliff did not suggest otherwise, and in my view this explains many, if not all, of the respondent's answers to such questions.
58 Common it may be, but when it involves that person lying under oath to a court about his memory, it seems to me to be a matter that impacts directly on the question of whether he is a fit and proper person to carry on legal practice. In this respect, I am particularly concerned about the respondent's answers in cross-examination about his creation of the false documents. In order to
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properly explain my concern about this evidence, it is appropriate to set out a pertinent passage from
the cross-examination:
Now, can you turn to court book CB0552, please?……Yes, can – and would you mind
giving me a reference for that just so I –
FE52?……Thank you.
MR GUNSON SC: 552. And -
WITNESS: Yes, I have that.MR GUNSON SC: And that's volume two. (Resuming) Now that's in your
handwriting?……Yes.
And it's a file note?……Yes.
And it is a complete fabrication, isn't it?……Yes.Now what made you write it out?……I – I don't recall.
Do you not recall because you do not remember doing it, or do you simply not wish -
?……I don't recall because I don't remember doing it.
Now you accept that to have done this you would have had to decide to prepare a false
note?……Yes.
And you would have had to consider what the contents of the falsity would
be?……Yes.
And you would then have to go to the effort of actually writing out the file
note?……Yes.Obtaining the physical file and putting it on the file?……Yes, or in a filing tray, but yes. It – it would have to be filed, I accept that.
You would have had to have gone – or had to have taken a series of deliberate and
considered steps to make a file note such as this come about?……I accept that.And you still have no recollection of making this?……I have no recollection of making
that and I have – I have no recollection of any other file notes that I made in October
2016.Yeah, there's a big difference between other file notes and this one, isn't there though,
Mr Lester? This one was a fabrication?……I accept that.
And you've got no recollection of sitting down and making a fabricated file
note?……No, I do not.
And since you've had the time to consider and think about this as hard as you can since
it was first raised with you by the Board you still can't remember it?……No, I can't.
In the preparation for these proceedings hasn't jogged your memory at all?……No, it
hasn't.Not even the, 'Oh yeah, I remember going into the office on a Sunday afternoon and
doing that now'?……No.
No? And if you turn over to page 558?……Yes, I have that.Now you still have no recollection of preparing that?……No, I don't.
You agree that it's a falsity?……Yes.
It's a complete and utter fabrication, isn't it?……Yes.
Now again to go through this you would have had to have gone through a number of
steps, wouldn't you?……I accept that.You either would have had to type the letter yourself?……Yes.
Or dictate it?……Yes.
And which did you tend to do at – in about December 2016? Did you type correspondence yourself or did you tend to dictate it?……I did a bit of both. Generally
– generally for commercial transactional matters with routine letters it was likely
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dictation. With other matters certainly complex advices I would often type, and then I
expect this type of letter I would have typed.
Because dictating it and sending – and having your secretary type it would cause
problems in itself, wouldn't it? Your secretary might come back to you and say, 'What
are you doing, you haven't filed anything'?.......Well yep, I understand. Yep, correct.And once the letter was typed you'd have to intercept it to stop it from going out in the
mail?.....If that was the way it was done that – yeah, accept that.
And so you accept that the likelihood is that you typed it yourself?.....Yes.
And do you still have no recollection of doing that?.....No, I don't.
And you would agree also, wouldn't you, that the likelihood is that you put it on a
physical file?.....Yes, that's the likelihood.Because again you wouldn't necessarily want your secretary seeing a piece of
correspondence that was false, would you?.....I – look, I don't – I don't remember having
that thought process, but I accept that that may have been the thought process.
And no electronic copy of that letter to be found, correct?.....That – that's my – well no,
that's correct, because we looked at the computer with Ms Warner and Ms Johnstone
in the office, that's correct.
And Clarke & Gee maintained an electronic filing system?.....Correct.
Yes. So in all probability you had also removed the electronic version of this letter,
either removed it from the system or not placed it in that system?.....Yes, correct.And you still have to this day, even in the context of appearing in proceedings where
you've known since July 2019 that the board was seeking an order for your – effectively
for your removal from the roll, it's your evidence that you cannot remember creating
this false document?.....That's correct."
59 This exemplifies other evidence to similar effect.
60 I simply cannot accept that the respondent was giving truthful evidence when he said he could not remember handwriting the relevant notes or typing the false letters. I have no doubt that he does not want to remember doing these things and he may well not remember or simply be uncertain about the surrounding circumstances, and his precise thinking in and about the creation of these documents. However, I have no doubt that he would remember, at least in general terms, performing these dishonest acts. It is beyond belief that they would simply not reside as a conscious memory in his mind. On his evidence, he is an essentially honest lawyer who acted in an extraordinary way because of the particular pressures and circumstances surrounding this particular file. If that is so, then the extraordinary nature of this conduct would leave it indelibly imprinted on his memory. If it truly is not, then that also would be most concerning because it would suggest that deliberately creating false documents in order to deceive a client was not a matter of special significance for him. In either circumstance, his conduct is extremely concerning. However, I am satisfied that the latter is not the correct explanation, and that when the respondent gave sworn evidence before me denying those recollections, he did in fact, remember doing those things. In other words, I am satisfied that he has lied in evidence to this Court.
Character and reputation
61 In his affidavit the respondent disclosed two prior disciplinary findings against him. The first was the matter dealt with by the ACT Law Society in 2013, as previously described. The second related to the respondent's conduct of civil litigation during practice in Tasmania in 2015 and 2016. The complaint was determined by the Board on 5 July 2018. The respondent was admonished and an order was made prohibiting him from practising otherwise than in the course of employment under the supervision of an Australian legal practitioner holding an unrestricted practising certificate and approved by the Board. He was also ordered to pay the costs of the complaint. While any such finding is a matter of concern, it does not significantly influence my decision as to whether he is a fit and proper person to carry on legal practice.
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62 There is substantial evidence supporting the general good character of the respondent. Seven practitioners have filed affidavits, each of which attests to the good character, high repute, and trustworthiness of the respondent. All of the practitioners practice, or have practised in the north of the State, and all have had close dealings in practice and/or sit on tribunals with the respondent. They are all practitioners of excellent reputation, and the majority are of considerable seniority. One is a former judicial officer and several are former and/or current members of various tribunals. Another two are past presidents and long-term executive members of the Law Society. Clearly, the evidence and opinions of each of them concerning the respondent deserves considerable weight.
63 A number of themes appear from this evidence:
The respondent was and still is well liked and respected among the legal profession. He is generally regarded as competent and trustworthy. While in practice, he was regarded as someone to whom work could be referred with confidence by other lawyers, particularly in cases of conflict or excess work. A number of the practitioners who dealt with him regularly during his time in practice, commented that after some time, it became apparent that his workload was too heavy. The only negative experience reported by these practitioners was growing delay in his attention to matters, including responding to communications from other practitioners. One senior practitioner noted that on occasions, despite promises that he would attend to a particular matter, delay persisted. However, none of the practitioners experienced any dishonesty, and all consider him to be an honest and trustworthy practitioner. Some of the practitioners detailed the material provided to them by the respondent's counsel, and questions asked of them by him. I infer that the same materials, and questions, were provided to each of them. The material included Dr Ratcliff's reports, Mr Ederle's first affidavit, filed 2 July 2019, and the respondent's affidavit. They were also made aware of the orders proposed by the respondent's counsel to this Court, as a potential resolution of this matter. It does not seem that the practitioners were provided with Mrs S's affidavit, although Mr Ederle's affidavit annexes a significant amount of material, including emails and other correspondence between her and the respondent during the relevant period. The practitioners were also aware that the respondent had created false documents in order to sustain his deception of Mrs S. All of the practitioners, either expressly or by inference, answered the following questions in the
affirmative:Would you accept Fred as a colleague and fellow practitioner were he given the opportunity to return to practice, particularly subject to conditions like those suggested in the consent minute of the orders sought?
Would you henceforth have trust and confidence in dealing with Fred in legal matters of transactional or litigious nature?
Some of the lawyers made excellent points about the difficulties and dangers of overwork in the legal profession, and in particular, the serious problem of job burnout and professional paralysis. Some noted that the practitioner was clearly attempting to cope with a large caseload without adequate professional or administrative support. The practitioners' views about their preparedness to deal with the respondent in the future were clearly based on their understanding of his conduct, their analysis of Dr Ratcliff's opinions expressed in his reports, the fact that the respondent has sought treatment for his mental health conditions, and their assessment that he would not be likely to be subject to the same pressures that he was under at the time of the conduct relevant to Mrs S's complaint. At least one made the point that based on his perception of the respondent's character, he believes that the respondent would be significantly affected by the disciplinary process generally, and would therefore be unlikely to repeat this conduct.
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64 There is no doubt that the opinions expressed by these lawyers deserve significant weight. However, while their opinions are of importance, ultimately it is a question for the Court to judge whether the respondent is a fit and proper person to carry on legal practice in the future. That question, and the appropriate disciplinary sanction, of course depend on more than simply the attitude of other lawyers to his return to practice. Ultimately, the critical questions are the protection of the public and the reputation of the legal profession. In a case such as this, the Court's response to dishonest conduct must have regard to the overarching need to maintain proper professional standards.
65 The weight to be placed on these opinions also needs to be balanced against the following considerations. Firstly, while each practitioner had access to a significant amount of material, they did not have Mrs S's affidavit, nor have they heard the cross-examination of the respondent or Dr Ratcliff, or the submissions of counsel. While the emails and correspondence attached to Mr Ederle's affidavit provide significant documentation of the history of the respondent's deception of Mrs S, it is impossible to get an overall picture of the impact and systematic nature of this deception from that material alone. Nor is it possible for a reader to fully understand the respondent's considered allocation of blame to the Tribunal and the opposing practitioner as part of the deception. Further, there seems to have been considerable reliance by each practitioner on the respondent's mental health and inability to cope with the pressure of work. As I have already indicated, I do not consider, and Dr Ratcliff did not say, that these factors explain the extent and nature of the dishonesty. Finally, it is apparent that the lawyers' affirmative answers to each of the questions posed to them, were dependent on the respondent not being subjected to the same pressures again in the future. This view depends heavily on the efficacy of the proposed conditions of practice. As I will explain shortly, I do not believe that the said conditions constitute a satisfactory basis for the Court to conclude that the practitioner is or will become a fit and proper person to carry on practice.
Drink driving convictions
66 The respondent has disclosed two convictions for drink driving. The first was an offence committed when he was in practice in the ACT on 18 November 2008. The second was committed, it would seem from his record, on 15 May 2016. The conviction and penalty was imposed on 29 June 2016. That offence involved driving a motor vehicle with a blood alcohol reading of .206.
67 The latter offence is clearly concerning. The only conclusion available having regard to the blood alcohol level is that the respondent must have made a deliberate, albeit drunken, decision to drive the motor vehicle, knowing that he was well over the legal limit. He was, in fact, in excess of four times the legal limit. That could not have been a case of poor judgment or mistake. It also occurred at a time when he was engaging in his dishonest conduct in respect of Mrs S.
Discussion and conclusion
68 The extent, significance and effect of the respondent's dishonest conduct in respect of Mrs S is critical to my determination of this matter. The point has been made by the respondent's counsel and some of the practitioners who provided testimonials, that the dishonesty can be distinguished from other more serious cases in that its motive was not financial gain. While dishonesty for that purpose is extremely serious, I am not sure that this is a useful distinction in respect of the respondent's case. It is apparent from other disciplinary cases to which I have been referred that dishonesty constituted by lying to a client about work done or the progress of matters does not inevitably lead to the sanction of striking off. However, in such cases, the dishonesty was often relatively minor, or not repeated on a systematic basis. It was often engaged in with the motive of fobbing off the client to give the lawyer a chance to "catch up" with the case. The respondent's dishonesty and its effect went well beyond this. While it might have started as a misjudged response to the client's queries about progress in the case, it developed into a complex and deliberate concealment of both the procrastination and the prior dishonesty. At that point, it is clear that the focus of the respondent's motivation for the dishonesty was self-preservation
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and avoidance of the consequences of his prior conduct, and not simply a misjudged response to contemporary circumstances. In this sense, there is little to distinguish his conduct from dishonesty motivated by financial gain. It was concerned directly with preserving the practitioner's ability to carry on practice, maintain his livelihood and avoid embarrassment and sanction.
69 I am also concerned about the related questions of the respondent's insight into the seriousness of his conduct and the capacity of the orders proposed by his counsel to obviate to an acceptable level any future risk of a repetition of this conduct. It seemed to me that when the respondent said in evidence that he had developed insight, he was really referring to a better understanding of his mental health, his issues with the consumption of alcohol and the effects of overwork. I have no doubt that he has acquired some insight into these issues. I am sure he also now understands the dangers associated with accepting too much work and procrastination. His better understanding of the effect of these issues will assist the respondent to more appropriately deal with the build-up of pressure arising from them in the future. Taken together with the safeguards inherent in the regime contained in the proposed orders, this may weigh against the risk of a repetition of delay similar to that experienced in the case of Mrs S. However, to be taken into account in this consideration is the fact that the respondent purported to express similar sentiments to the ACT Law Society during its investigation of the C complaint. In a letter which the respondent wrote in 2015 to the Professional Standards Manager of the ACT Law Society in response to the complaint, he said this:
" Following that incident, and taking into account numerous other factors, I was
diagnosed with clinical depression in October/November 201. It was clear that I had
been suffering from this condition for some time.
Again, in retrospect I should have sought assistance in relation to those matters much earlier – both in the context of this matter and my broader health. Unfortunately the nature of that condition in and of itself, and arguably the stigma associated with it,
meant that it was almost a year before I did that. Since that diagnosis in late 2010 I have received treatment for that condition both from General Practitioners in the ACT and Tasmania and from a psychologist. I have gained significant insight into that condition generally and how it effect [sic] me personally. While I would not suggest that I am 'cured', I do have the knowledge and skills to manage it now." 70 Clearly, the sentiments expressed in that passage resonate with those being expressed now by the respondent before me in respect of his offending conduct, its relationship to his underlying mental health and his insight into these issues. The letter which contained the quoted comments was written by the respondent on 4 June 2015. At that time, the respondent had been and was still engaged in repeated and systematic deception of Mrs S. Approximately three weeks after he wrote the letter, on or about 23 June 2015, the respondent telephoned Mrs S to advise her that he would travelling to Hobart for the purpose of attending a directions hearing before the Tribunal. This was completely false. Thereafter, he continued to deceive Mrs S for in excess of 2 more years, including by the creation of the false documents. It is pertinent also that the deception came to an end only because Mrs S discovered what had been happening when she contacted the Tribunal directly. It was not brought to light voluntarily by the respondent. It is extremely difficult to reconcile this history with the respondent's present claims before me of insight and contrition.
71 A further matter impacting directly on the question of insight is the respondent's response to the allegations of dishonesty. I have already concluded that the respondent gave false evidence when he said he did not recall specific aspects of his dishonesty, including the falsification of documents. This, in itself, is sufficient to destroy any claim of insight. However, I am also concerned about the theme which was consistently apparent in his evidence, that is that all of his disreputable conduct can be traced back to his mental health condition at the relevant time and the related concern of the pressure of overwork. For example, when asked by his counsel at the end of his evidence-in-chief as to whether he would like to say anything to the Court about his conduct, he said the following:
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"It's – it's atrocious. I take full responsibility for that conduct, and while I say that I
don't understand how or why that occurred I take full responsibility. I did that and for me to have had the effect that that has had on another human being is very upsetting for her and very upsetting for me, and I'm absolutely ashamed of it. Absolutely ashamed
of it. And I – when I handed my certificate in I took a number of months off to try and deal with the fact of what I'd done and the – the place I was at. I – I didn't realise howterrible a place I was in until the deceit was revealed, and I apologise unreservedly to the court, to the profession that I worked hard to become a part of, that I enjoyed being a part of, and of whom very, very many members I respect greatly, and who I hope may one day come to respect me again, too. And most of all I apologise most, most sincerely to Ms S who didn't deserve that. No one deserves that. And I must say I was heartened to read in the materials that she was able to get a result in her matter."
72 While much of this was appropriate and what one would expect him to say in the circumstances, there are some concerning aspects to it. Firstly, despite what appeared to be a sincere apology, he confirmed in cross-examination that he had not previously apologised to Mrs S. Secondly, the statements that he does not "understand how or why that occurred", and "I didn't realise how terrible a place I was in until the deceit was revealed" clearly imply a distance between him and all of his conduct, including his dishonest conduct. These comments suggest the attribution of that conduct to his mental health. For reasons already explained, this view is misconceived. In my view, while the respondent admitted the dishonesty, he did not, in evidence, sincerely and unreservedly acknowledge that he had made dishonest decisions and provide an honest explanation for why that was so. For example, a person with true insight and remorse might say "I acted dishonestly and I did so to avoid getting into trouble". The respondent had ample opportunity throughout the hearing to admit and explain his dishonesty. In my view, he did not do so satisfactorily, and I do not accept as genuine his repeated assertion that he cannot explain his dishonesty.
73 I am also not satisfied that the orders proposed by the respondent will obviate the risk of misconduct in the future, sufficiently to enable me to conclude that he is or will become at some point a fit and proper person to carry on practice. Firstly, it seems to me that there are practical concerns in relation to the onerous requirement of supervision, and questions around whether such supervision could be continued effectively in the long term. Secondly, the proposed orders, in one sense, miss the point. They are designed to ensure that the respondent does not find himself facing the same pressures which provided the context for his dishonest conduct in respect of Mrs S's case. However, they do not and cannot deal with the issue of dishonesty. They do not provide me with assurance that those or some other pressure would not operate on the respondent's mind with sufficient force to tempt him to engage in dishonest conduct again. The orders seem to be based on the type of response accepted as appropriate by the Full Bench of the Supreme Court of Western Australia in Legal Profession Complaints Committee v Leask [2011] WASC 310, and by the Full Court of the Supreme Court of South Australia in Legal Practitioners Conduct Board v Lind [2011] SASCFC 104. However, there are significant differences between those cases and this one. In Leask, the court was being asked to approve a sanction which, similarly to that proposed by the respondent in this case, provided for a delayed return to practice and, thereafter, strict conditions on practice which included not practising on his own account. The orders proposed in that case had been agreed between the relevant disciplinary body and the practitioner, but the court, of course, still retained an independent discretion as to their suitability. The practitioner's conduct involved knowingly misleading two clients but in what would be seem to be a more limited way and on a more limited number of occasions than that with which I am dealing. There was no finding of any further dishonesty. Similarly in Lind, the court was dealing with a case of a practitioner's serious delays in handling an estate matter. The only dishonesty was one occasion of misleading the beneficiaries as to progress in the matter. The practitioner had also failed to assist or respond to the Board's investigation in a satisfactory manner. The court dealt with the case by censure of the practitioner and the imposition of conditions which required a lengthy period of supervised practice. In my view, the dishonesty engaged in by the practitioner in each case is not comparable in nature or extent to that engaged in by the respondent in this case. In any event, while the attitude of those eminent courts has considerable persuasive value, each case must turn on its own facts.
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74 In conclusion, I am satisfied to the Briginshaw standard that the respondent is not, and will not be for an indefinite time, a fit and proper person to carry on practice as a legal practitioner. In view of that finding, the only appropriate outcome is that his name be removed from the roll of practitioners. Any sanction short of striking off would be inconsistent with this Court's duty to maintain proper professional standards. In arriving at this conclusion, I have been particularly influenced by the nature and extent of the respondent's dishonesty in respect of Mrs S, and other aspects of dishonesty to which I have referred, as well as my concerns in respect of the respondent's insight into that aspect of his conduct. I have also taken into account the findings made in respect of the second and third complaints, and the gross delay in Mrs S's matter. It is not appropriate in my view to fashion or suggest separate sanctions for each complaint and discrete conduct within a complaint. Although clearly the imposition of sanctions has punitive effect, their purpose is not punitive, but responds to the protective purposes already discussed. The order must respond to the totality of the conduct, and any suggestion of what individual sanction might be imposed for a discrete aspect of that conduct would be without context and unhelpful. Accordingly, the sanction of striking off will be imposed as a response to the totality of the conduct.
75 Because of the jurisdictional position arising from the respondent's admission in the ACT, the appropriate order is that this Court recommends to the Supreme Court of the ACT that the practitioner be removed from the roll of practitioners entitled to practice before that Court. I order that that recommendation be made.
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