| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and GIUDICE [2012] WASAT 144 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) MS S GILLETT (MEMBER)
MR C PHILLIPS (SENIOR SESSIONAL MEMBER)
HEARD : 28 TO 31 MAY 2012 DELIVERED : 26 JULY 2012 FILE NO/S : VR 113 of 2011 BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE Applicant
AND
PETER GEORGE GIUDICE
Respondent
Catchwords: Legal practitioner Professional misconduct Unsatisfactory professional conduct Disciplinary proceedings Affidavit containing a false statement Recklessly disregarded whether statement was true or false Counsel likely to be a witness Delay in delivering file to client on termination of retainer Failure to supervise an articled clerk
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Legislation: Criminal Code Act Compilation Act 1913 (WA), s 169
Family Law Act 1975 (Cth)
Law Society of Western Australia Professional Conduct Rules (WA), r 14.13, r 14.14
Legal Practice Act 2003 (WA)
Legal Profession Act 2008 (WA), s 428, s 438, s 438(1), s 622(2)
Legal Profession Conduct Rules 2010 (WA), r 42, r 42(1), r 42(2) Result: VR 113 of 2011 Finding of unsatisfactory professional conduct
VR 114 of 2011 Application dismissed Category: B
Representation: Counsel:
Applicant : Mr P Yovich and Mr R Fletcher
Respondent : Mr D Williams QC AO
Solicitors:
Applicant : Legal Profession Complaints Committee
Respondent : Altorfer & Stow
Case(s) referred to in decision(s):
Clay v Karlson (1997) 17 WAR 493
Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56
Legal Profession Complaints Committee and Caine [2010] WASAT 178
Pollard v Commonwealth Director of Public Prosecutions & Anor (1992) 28 NSWLR 659
R v Staines (1974) 60 Cr App Rep 160
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The Legal Profession Complaints Committee brought a number of complaints of professional misconduct against a practitioner, Mr Peter George Giudice. The practitioner in 2008 had been retained by an individual charged with various criminal offences and these complaints relate to matters which arose during the following year. 2 Specifically, the Committee alleged that the practitioner: a) supervised the preparation of an affidavit to be sworn by his client which the practitioner knew contained a false statement or, alternatively, he recklessly disregarded whether the statement was true or false; b) acted for the same client in defending a charge of making a false statement on oath when the practitioner knew that he would be required to give evidence at any trial of that charge; and c) delayed the delivery to that client of his files after the client had terminated his retainer. 3 In a separate complaint, heard at the same time as these allegations, the Committee also alleged that the practitioner during 2003 and 2004 was guilty of unsatisfactory professional conduct by failing to supervise his articled clerk in the conduct of a criminal compensation matter. 4 The practitioner denied all of these allegations. 5 In respect of the first allegation, the Tribunal found that the practitioner did not deliberately include a false statement in the affidavit, but found that in the circumstances the practitioner ought to have known that the statement was false and he recklessly disregarded whether the statement was true or false. 6 The Tribunal made a finding of unsatisfactory professional conduct in respect of this allegation, not a finding of professional misconduct. 7 After consideration of the other allegations, the Tribunal made no other findings of either professional misconduct or unsatisfactory professional conduct. (Page 4)
VR 113 of 2011
Introduction 8 Under s 428 of the Legal Profession Act 2008 (WA) (LP Act), the Legal Profession Complaints Committee (Committee) has referred three matters concerning Mr Peter George Giudice (Practitioner) to the Tribunal, seeking findings under s 438(1) of the LP Act that the Practitioner has engaged in professional misconduct by: 1) on or about 17 February 2009, causing to be prepared under his supervision, settling and causing to be sworn, filed and served in Family Court proceedings an affidavit (affidavit) sworn by his client (Client) which contained a false statement, when the Practitioner knew that the statement was false or, alternatively, recklessly disregarded whether the statement was true or false; 2) between about 17 April 2009 and about 18 June 2009, acting for the Client in defending a charge of making a false statement on oath, when he knew that he would be required to give evidence at any trial of the charge and, therefore, had a conflict of interest; and 3) between about 9 June 2009 and about 6 August 2009, unduly delaying in delivering to the Client his files in relation to the Client's matters after the Client had terminated his retainer. 9 There was a fourth allegation made by the Committee in its application which was withdrawn by the Committee by a letter dated 21 May 2012. 10 The Practitioner denies the above allegations. 11 The matter was heard, along with a separate complaint against the Practitioner, VR 114 of 2011, over a period of four days commencing on 28 May 2012. 12 At the hearing, the Committee produced its book of documents (Committee's BOD) and the Practitioner also produced a book of documents in two volumes (Practitioner's BOD). 13 At the hearing, amongst others, the Practitioner gave evidence, as did the Client. (Page 5)
Applicable legislation 14 The conduct complained about by the Committee occurred between 17 February 2009 and 6 August 2009. The Legal Practice Act 2003 (WA) (LP Act 2003) applied until the LP Act 2003 was repealed by the Legal Profession Act 2008 (WA) (LP Act). The LP Act commenced operation on 1 March 2009, before the disciplinary proceedings were commenced. Under s 622(2) of the LP Act, the LP Act applies to conduct consisting of a contravention of the LP Act 2003 as if the conduct consisted of a contravention of the LP Act. Accordingly, the LP Act applies to the alleged conduct complained about.
Background 15 At all material times, the Practitioner was a local legal practitioner within the meaning of the LP Act, with over 30 years' experience. The Practitioner carried on practice in his own right in Geraldton under the name 'George Giudice Law Chambers' where he employed a small number of legal and administrative staff.
Facts in respect of the first allegation - affidavit containing a false statement 16 Between early 2001 and October 2006: a) the Client lived with and, from 1 July 2006, was married to the person referred to in these reasons as the Client's Wife; b) the Client's Wife had two children by a previous relationship (Client's Wife's children) who lived with the Client and the Client's Wife and were ordinary members of their household; and c) the Client's Wife gave birth to two children of whom the Client was the father (Client's children) and they lived with the Client and the Client's Wife and were ordinary members of their household. 17 In or about October 2006, the Client and the Client's Wife separated. 18 When the Client and the Client's Wife separated, all four children continued to live with the Client's Wife at the former matrimonial home. 19 On or about 21 November 2008, the Client was charged with a total of seven charges of indecently dealing with, and two charges of sexual (Page 6)
penetration of, a child under the age of 13 years (criminal charges), being one of the Client's Wife's children (complainant). 20 On or about 22 November 2008, the Magistrate in the Magistrates Court at Geraldton granted the Client bail on the criminal charges, but granted such bail on conditions, one of which was that the Client was 'not to contact or attempt to contact the complainant or the complainant's family by whatever means' (protective bail conditions). Otherwise, the Magistrate adjourned the criminal charges until 8 January 2009. 21 In late November 2008, the Client retained the Practitioner to represent him in relation to the criminal charges. 22 At all material times thereafter, the Practitioner had conduct of the Client's case in respect of the criminal charges. 23 On or about 10 December 2008, the Client instructed the Practitioner: 24 On 22 December 2008, the Practitioner caused an application for variation of the protective bail conditions to be filed at the Magistrates Court (first bail variation application). 25 The first bail variation application came on for hearing before the Magistrate in the Magistrates Court on 24 December 2008, without the Practitioner having been given notice of the hearing. However, Mr Ryan Arndt (Mr Arndt), a lawyer employed by the Practitioner, was in the Magistrates Court on another matter when the first bail variation application was called on for hearing, and, with the consent of the Client, appeared for the Client on the hearing of the first bail variation application. 26 The Magistrate dismissed the first bail variation application on that day. (Page 7)
27 In late December 2008, and without informing the Practitioner, the Client filed his own application at the Magistrates Court for a variation of the protective bail conditions (second bail variation application). 28 On 8 January 2009, the Practitioner appeared for the Client in the Magistrates Court, and entered pleas of guilty to all criminal charges. The Client was then remanded on bail to the District Court for sentencing on 4 May 2009. 29 The second bail variation application came on for hearing before the Magistrate in the Magistrates Court on 19 January 2009. Once again, Mr Arndt was in Court on another matter, and, with the Client's consent, again appeared for the Client on the hearing of the second bail variation application. At that hearing, the Magistrate adjourned the second bail variation application until 22 January 2009, to enable a report from Community Justice Services to be obtained. 30 The second bail variation application came back on for hearing before the Magistrate in the Magistrates Court on 22 January 2009. Mr Arndt again appeared for the Client. After hearing evidence from an officer from Community Justice Services and submissions from Mr Arndt, the Magistrate varied the protective bail conditions. It is not in dispute that the protective bail conditions were varied (to enable the Client to retrieve some personal effects from where he was living) to provide that: a) the Client was not to be within 20 kilometres of the [town where the former matrimonial home is situated] except for one 24 hour period; b) the Client was to give seven days written notice of the commencement of the 24 hour period to the Client's Wife and to the Officer in Charge of the local police station; and c) the Client was not to be within 100 metres of the former matrimonial home during the said 24 hour period. 31 On the issue of personal contact by the Client with the Client's children, the Magistrate said this: I don't disagree with much of what Mr Arndt said that it is inevitable that there be some contact between [the Client] and his children and that is likely to be resolved in family law proceedings. For those reasons and because of the suitability of family law proceedings resolving the appropriate interests of the parties, I would be prepared to vary bail only to (Page 8)
this extent to provide that there be no contact or attempt to contact the complainant or the complaint's family by whatever means except as regards [the Client's children] as provided in any order made in proceedings under the Family Law Act to which [the Client's Wife] is a party. (T:78; 22.01.09) 32 The Magistrate concluded the matter with these words: All right. The bail will be as follows. The protective bail conditions are not to contact the complainant, [the Client's Wife] or any sibling of the complainant. Not to be within 20 kilometres of the [local] post office except for one 24 hour period provided [1] [the Client] gives (a) [the Client's Wife] and (b) the officer in charge of the [local] police station seven days notice in writing of the commencement of the 24 hour period, and [the Client] is not to be within 100 metres of [the former matrimonial home] during that 24 hour period. Thank you. (T:13; 22.01.09) 33 On 6 February 2009, the Client retained the Practitioner to act on his behalf in applying to the Magistrates Court, sitting as the Family Court of Western Australia, for an order pursuant to the provisions of the Family Law Act 1975 (Cth), permitting him to have contact with the Client's children prior to his sentencing on 4 May 2009, and to have telephone contact with the Client's children while he was in prison after 4 May 2009 (Family Law application). 34 The Practitioner delegated the task of drafting the Family Law application, and the Client's affidavit in support of the Family Law application (affidavit) to a Ms Amanda Armstrong, a law clerk employed by the Practitioner (Ms Armstrong). Ms Armstrong at that time had only been working with the Practitioner for a few weeks. Prior to that, she had some general office experience, but this was her first position as a law clerk. 35 Ms Armstrong, with some assistance from Mr Arndt and another law clerk, duly drafted the Family Law application and the affidavit and, on or around 16 February 2009, discussed the terms of those documents with the Practitioner. 36 Paragraph 20 of the affidavit, as drafted by Ms Armstrong and finally settled by the Practitioner (paragraph 20), provided: My original bail conditions of 27 November 2008 were that I was not to contact or attempt to contact the complainant or the complaint [sic] family by any means, [sic] On 22 January 2009 my bail conditions were varied so that I may spend time with the children supervised. (Page 9)
37 The reference to 'the children' in paragraph 20 was a reference to the Client's children, not the Client's Wife's children. 38 On 17 February 2009 the Client signed the affidavit in the presence of a local Justice of the Peace. 39 After the Client had sworn the affidavit, Ms Armstrong arranged for it to be filed at the Magistrates Court and a copy served on the solicitors acting for the Client's Wife in the Family Court proceedings.
Facts in respect of the second allegation acting when the Practitioner knew he would be a witness in the matter 40 On or about 16 April 2009, the police interviewed the Client and asked him questions about the affidavit. The Client was then charged with making a false statement under oath under s 169 of the Criminal Code Act Compilation Act 1913 (WA) in respect of the statement in paragraph 20 of the affidavit (false statement charge). 41 On or about 17 April 2009, the Client advised the Practitioner by telephone of the false statement charge. The Client then met with the Practitioner and together they viewed a videotape of the Client's 16 April 2009 interview by the police. The Practitioner told the Client that he would assist the Client in defending the false statement charge but would not charge him any fees for doing so. 42 Between about 17 April 2009 and 18 June 2009, the Practitioner: (Page 10)
Facts in respect of the third allegation - undue delay in providing files to the Client 43 By letter dated 9 June 2009 (Practitioner's BOD page 401), the Client requested the Practitioner to send him his files (files) in relation to the criminal charges, the Family Law application and the false statement charge (request). 44 At the date of the request: a) the Client did not owe the Practitioner any amount in respect of the fees and disbursements which the Practitioner had charged him; b) the Family Law application had not been resolved; c) the false statement charge was still on foot; and d) the Client required the documents on the files to enable him to deal with the Family Law application and the false statement charge, or to instruct other solicitors to do so. 45 By letter to the Client dated 23 July 2009 (Committee's BOD page 62), the Practitioner: (Page 11)
46 By letter dated 4 August 2009, the Client repeated the request (Practitioner's BOD page 432). 47 By letter dated 6 August 2009 (Committee's BOD page 63), the Practitioner: The Practitioner's submissions in respect of the first allegation 48 The facts as set out above in respect of the first allegation are largely agreed between the parties. 49 The Practitioner accepted in his evidence that he was responsible for the final wording of paragraph 20 of the Client's affidavit (T:92 and T:124; 29.05.12). Therefore, the Tribunal finds it unnecessary to refer to evidence and submissions on the systems within the Practitioner's office or the supervision of his staff. 50 It is common ground that the passage in the report of Mr Arndt to the Client in the letter to the Client of 23 January 2009 (Committee's BOD, pages 23 and 24), supported by Mr Arndt's file note of the same date (Committee's BOD, page 25), was a reasonably accurate reflection of the relevant outcome of the second bail variation application, that is: … it was not appropriate to vary your bail conditions to allow the contact you sought but was prepared to vary your bail so that you may have contact with your children as provided by any order of a court exercising powers under the Family Court Act to which their mother is a party. 51 In particular, the Practitioner also appears to accept that he was aware when he settled the affidavit that the application for a bail variation had been addressed by the Court in that manner. The Practitioner stated that his 'understanding' was 'that bail was varied enabling [the Client] to have supervised contact by order of a Family Court Magistrate'. He also conceded that this was not what the affidavit, drafted under his supervision, actually said (T:207; 30.05.12). 52 Despite this, throughout his crossexamination, the Practitioner continually disputed that the second sentence of paragraph 20 of the (Page 12)
affidavit was false, saying it was 'true as far as it goes' (T:124125; 29.05.12). He agreed (T:127; 29.05.12) that it was important that the affidavit be accurate and complete and have no potential to mislead. However, while he accepted that there was no reason to omit from the second sentence of paragraph 20 of the affidavit words along the lines of 'under the order of a family law magistrate' (T:210; 30.05.12), he disagreed that the relevant statement as drafted was misleading (T:207 and T:209; 30.05.12). 53 In addition, we understand that the Practitioner contends that if paragraph 20 were taken to mean what its literal interpretation might suggest, there would have been no need to even make the application to the Family Court and this would have been obvious to the Family Court. He therefore maintains that there was no real possibility that the Family Court might be misled (T:188; 30.05.12).
The Tribunal's findings in respect of the first allegation 54 A solicitor drawing an affidavit for a client owes a duty in the administration of justice to ensure so far as is possible that not only the court but also other parties in the proceedings cannot be misled. A solicitor must ensure that the words used accord precisely with the understanding of the client who avers that the statement is true. 55 As Ipp J in Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56 at 60 said: Lawyers may not, consistently with their ethical duties and duties to the court, prepare and file affidavits known by them to be perjured … In England, the ethical rule is that lawyers should not produce witness statements that they know to be false or where they know that the witness does not believe the statement to be true in all respects … In my view this rule reflects the duties that lawyers in this country owe to the court. 56 In drawing a client's affidavit as to the terms of an order of another court which may impact on or have some bearing in the current proceedings, it is particularly important that the complete or relevant terms of that order are accurately recorded and it is the solicitor who bears the responsibility for this task. A lay client will have significant involvement in the wording of the affidavit but cannot be expected to understand some of the finer details or the importance of the inclusion or omission of certain words. 57 In this case, the Client's evidence to the Tribunal was that he did not read the affidavit before he signed it and that if he had done so he (Page 13)
'would have seen the mistake'. When asked to elaborate on that he said 'The mistake is that it's been ordered that, you know, ''I have contact with my children'', that the glaring error in paragraph 20, last line of the affidavit' (T:55; 29.05.12). 58 Counsel for the Practitioner questioned the Client's credibility in this regard, but it is unnecessary for the Tribunal to form a view on that point. The Practitioner drafted or settled the terms of the affidavit and it is for the Practitioner to ensure that those terms were correct in respect of matters which the Practitioner is able to verify. 59 At the time when the Practitioner settled the terms of the affidavit, he had not asked to see a copy of the original bail conditions or a transcript of the proceedings in the Magistrates Court when the second bail variation application had been heard (T:192; 30.05.12). He said he relied entirely on what Mr Arndt said in his file note (T:207; 30.05.12), and he said he would have relied on the contents of Mr Arndt's letter to the Client of 23 January 2009 (T:205; 30.05.12). 60 Effectively, what the Magistrate held in the second bail variation application was that there were sufficient considerations falling within the Family Court's jurisdiction to warrant refusal of the application until that matter was addressed in the appropriate forum, but that there were no Criminal Court considerations extraneous to the Family Court matter which would otherwise preclude the bail variation sought. 61 On an ordinary reading of paragraph 20, the wording the Practitioner settled or chose in describing the outcome of one of the issues decided on in the Client's bail application in the Criminal Court jurisdiction, without mentioning the qualification 'as provided in any order made in proceedings under the Family Law Act to which [the Client's Wife] is a party', had the effect of importing the opposite outcome to that actually achieved. 62 The Tribunal therefore has no difficulty in coming to the conclusion that the affidavit at paragraph 20 contained a false statement. The Magistrate did not vary the Client's bail conditions to allow the Client to 'spend time with the children supervised'. Vulnerable children were the subject of the orders regarding the bail variation and the Magistrate was clearly intent on protecting their safety until the Family Court heard the matter and until the Client's Wife was a party to the proceedings. (Page 14)
63 It therefore remains to determine whether the Practitioner knew that the statement was false or, if not, whether he recklessly disregarded whether the statement was true or false. 64 The Committee must prove its case on the balance of probabilities, but the seriousness of the matter and its consequences is to be taken into account in assessing the strength of the evidence necessary to establish a fact required to meet that standard; Legal Profession Complaints Committee and Caine[2010] WASAT 178 at [29]. 65 The Tribunal's view is that it is unlikely that the Practitioner was actually aware that the statement in paragraph 20 of the affidavit was false at the time when he settled its terms. To find otherwise would suggest some deliberate act on the part of the Practitioner to mislead the Court or another practitioner. We can think of no reason why the Practitioner should do such a thing and nothing was put before us which might persuade us to this view. We think that it is more likely that this was not a deliberate act. 66 The issue then is whether the Practitioner recklessly disregarded whether the statement was true or not. Somewhat obviously, if the Committee is to succeed in making this allegation the Committee must satisfy the Tribunal on the balance of probabilities that the Practitioner not only disregarded whether the statement in question was true, but did so recklessly. 67 The word 'disregarded' does not present any great difficulty, but when qualified by the word 'recklessly' it perhaps presents a more challenging task of interpretation. 68 It is clear from the authorities (see, for example, Pollard v Commonwealth Director of Public Prosecutions & Anor(1992)28 NSWLR 659 at 669, 672 675) that whether or not an act was done with 'reckless disregard' will depend on the particular circumstances and requires a subjective approach. 69 The ordinary meaning of reckless is 'heedless of the consequences of one's action or of danger'; Shorter Oxford English Dictionary (6th ed, 2007). The Tribunal also accepts that recklessness involves more than carelessness and more than negligence; see R v Staines(1974) 60 Cr App Rep 160. 70 We therefore venture to suggest that the Committee must show that in all the circumstances the Practitioner should have been aware that the (Page 15)
statement might be untrue and made that statement without satisfying himself that it was true and regardless of the consequences. 71 As far as the circumstances are concerned, the words in paragraph 20 of the affidavit were settled by a very senior practitioner with some 30 years' experience who knows the importance of the document being complete, accurate and having no potential to mislead (T:127; 29.05.12). The Practitioner appears to have spent in excess of an hour with Ms Armstrong settling the terms of the affidavit (T:94; 29.05.12). There is no evidence of any mitigating circumstances. 72 The Tribunal considers that the Practitioner, being a practitioner experienced in matters of this kind, should have considered that the words of the affidavit, in the light of the offences of which the Client was accused, namely indecently dealing with and sexual penetration of a child under the age of 13, warranted at least some further inquiry. Paragraph 20 did not reflect what he had been told had occurred in the Magistrates Court on 22 January 2009. Even a cursory examination of the transcript of that hearing would have alerted him to the problem. By not making further inquiry, the Practitioner was more than careless and showed a culpable indifference as to whether it was true and to the consequences. 73 Turning to the question of whether or not there were consequences arising from the Practitioner's act, the obvious consequence was the fact that the Client was subsequently charged with the criminal act of making a false statement under oath. While that might not have been a probable consequence of the wording of paragraph 20 of the affidavit, it was certainly a possible outcome which the Practitioner was quite capable of appreciating and which should not have been disregarded. 74 The Tribunal does not accept that the words in issue could not have the consequences of misleading the Court. One only needs to take account of the possibilities of the Court being under unusual pressure of business, or of a judicial officer hearing the matter who may not be familiar with relevant aspects of the jurisdiction and who just might in haste assume that the Court exercising criminal jurisdiction had heard the relevant evidence on the issue and that the making of an application in the Family Court jurisdiction was a mere formality. Whilst the probability of such confusion arising is small, the risks are very grave. 75 This constitutes a failure to reach the standard of competence and diligence that a member of the public is entitled to expect from the Practitioner. However, the Tribunal is not satisfied that this is a (Page 16)
substantial or consistent failure. Accordingly, even though the Committee alleges professional misconduct, the Tribunal finds that in respect of the first allegation the Practitioner is guilty of unsatisfactory professional conduct.
The Practitioner's submissions in respect of the second allegation 76 The Practitioner's contention in regard to this allegation is that he did not act for the Client in respect of the charge of making a false statement under oath. His submissions in support of this contention are largely a reiteration of the facts set out earlier in these reasons. 77 The Client met with the Practitioner on 17 April 2009 and told the Practitioner that he had been interviewed and charged with making a false statement under oath. In his evidence to the Tribunal, the Practitioner stated that he told the Client that he could not be his lawyer because he would have to be a witness, and the Tribunal accepts that he did so. The Practitioner further stated that he advised the Client to get a different lawyer but said that he would 'keep an eye on him' and write to the police to try to persuade them to drop the charge (Practitioner's witness statement dated 2 May 2012 (PWS) paras 173 176). The Practitioner and the Client watched the video recording of the police interview and the Practitioner made notes throughout the meeting (PWS para 169). 78 The Practitioner told the Tribunal that during the meeting on 17 April 2009 he dictated a letter to another lawyer, Mr Armstrong, whom the Practitioner suggested the Client should contact regarding the matter. The letter contained the statement, 'We act for [the Client] who has been charged with making a False Statement Under Oath …' (Practitioner's BOD page 381). The Practitioner stated that the Client then expressly told him not to send the letter to Mr Armstrong because 'he might represent himself or the Police might not proceed'. The Practitioner said that there was no conflict between him and the Client at that meeting (PWS para 173). 79 On 23 April 2009 the Client had his first appearance in Court on this charge. The Practitioner appeared for him and said, 'Can I ask you for an adjournment of this matter for, say, three weeks, so I can consider the matter' (T:2; 23.04.09). It is noted that at no stage during the proceeding on 23 April 2009 did the Practitioner mention that he was not acting for the Client. 80 On 27 May 2009 the Practitioner wrote a letter to Detective C Keals saying, 'I would like to make a statement as a witness'. The Practitioner (Page 17)
went on to outline a series of events submitting that the Client did not make a deliberately false statement. The Practitioner concluded the letter by stating 'Please advise whether the proceedings will be discontinued' (Committee's BOD pages 55 56). 81 Later that day a telephone conversation took place between the Client and the Practitioner during which the Client stated that he did not want the Practitioner's firm to act for him on either the family law or the criminal matters (PWS para 181). 82 The Practitioner followed up this telephone conversation by way of letter to the Client dated 27 May 2009 (Practitioner's BOD pages 396 398). In that letter the Practitioner confirmed the Client's instructions that his firm cease to act on both the family law and criminal matters. The Practitioner concluded that letter with a heading 'Charge Relating to Affidavit', under which the Practitioner enclosed a letter he has written to Detective Keals and further that 'there will no charge for any work I do in relation to that matter'. 83 On 3 June 2009 the Practitioner said that he met with Detective Keals and 'told him how the whole matter came about' (PWS para 186). 84 On 4 June 2009 the Client had another court appearance in the Magistrates Court. At the start of the appearance the Magistrate asked the Practitioner 'Yes, you appear for [the Client], Mr Giudice?' The Practitioner replied, 'I do, Your Honour'. The Practitioner then asked the Magistrate for a further adjournment on the Client's behalf, saying that he had written to the police 'explaining why the plea is going to be not guilty' and asking them to 'reconsider their position' (T:2; 4.06.09). 85 On 18 June 2009 the Client appeared in the Magistrates Court by videolink. Mr Arndt appeared for the Client and the Magistrate asked Mr Arndt, 'Are you his lawyer, Mr Arndt?' Mr Arndt replied, 'We will not be representing him at trial, but we are assisting him at the moment' (T:2; 18.06.09). Mr Arndt went on to make submissions that the Magistrates Court is the appropriate jurisdiction and said, 'We will be assisting him at the disclosure date as well', and identifies the issue to be determined at trial (T:5; 18.06.09). 86 The charge against the Client was withdrawn by the prosecution on an unknown date and the Tribunal infers that the steps taken by the Practitioner played an important part in the prosecution's decision to withdraw the charge. (Page 18)
The Tribunal's findings in respect of the second allegation 87 We think that there is little doubt that the Practitioner did act for the Client at a time when he knew that he would inevitably be called as a witness if the matter proceeded to trial. The Practitioner's lengthy exchange with Counsel for the Committee at the hearing when this issue was canvassed did the Practitioner no credit whatsoever (T:110122; 29.05.12). 88 The Practitioner in so acting found himself in a situation which Templeman J described in Clay v Karlson(1997) 17 WAR 493 at 494 as 'undesirable'. 89 The Law Society ofWestern Australia Professional Conduct Rules (July 2008 Revision) at r 14.13 provides as follows: Counsel must not accept instructions in a case if counsel has reason to believe that counsel is likely to be a witness in that case. 90 Rule 14.14 then provides: Counsel must withdraw from representing the client if counsel is likely to be a witness on a material question of fact and counsel can withdraw without jeopardising the client's interests. 91 Although not in force at the relevant time, it is interesting to note the corresponding rule under the current professional conduct rules, the Legal Profession Conduct Rules 2010, is at r 42. Rule 42(1) provides as follows: (1) A practitioner must not act for a client in the hearing of a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence centrally material to the determination of contested issues before the court. 92 However, r 42(2) endeavours to assist a practitioner who faces the dilemma in which the Practitioner in this case found himself. It says: (2) In the circumstances provided for in subrule (1) an associate of the practitioner's law practice may act for the client if (Page 19)
93 The appropriate and proper course for the Practitioner to have taken at that time and in these circumstances was to advise the Client that the Practitioner must withdraw from representing the Client, but at the same time not to jeopardise the Client's interests by immediately and unconditionally withdrawing from the matter. 94 As we have already said, we accept that the Practitioner fully disclosed his position to the Client at the appropriate time and then continued to act for him only to the extent of endeavouring to pass the conduct of the matter to another practitioner and only to play a protective role in the meantime. It is therefore difficult to see what other course was open to the Practitioner. 95 We should say that we think that the Practitioner should not have watched the police video, and that the Practitioner should have made his situation clear to the Court, but nonetheless the Tribunal finds that the course of conduct complained of does not constitute professional misconduct or unsatisfactory professional conduct.
The Tribunal's findings in respect of the third allegation 96 As has been noted earlier in these reasons, on 27 May 2009, during a telephone conversation, the Client notified the Practitioner that he did not wish the Practitioner to act for him in relation to any of his matters. The Practitioner made a note of this conversation in his file (Practitioner's BOD page 395) and wrote a letter to the Client on that date, enclosing a final account and advising him that upon payment he would forward all documents to the Client in relation to all matters (Practitioner's BOD pages 396 398). 97 Also as set out earlier in these reasons, on 9 June 2009 the Client sent a letter to the Practitioner which was apparently received by the Practitioner on 12 June 2009, asking the Practitioner to send him all notes and documents he had on file in relation to both matters (Practitioner's BOD page 401). On 23 June 2009 the Client, having not received a response to his letter of 9 June 2009, sent a followup letter to the Practitioner on that date (Practitioner's BOD page 411). 98 The Client did not receive a reply from the Practitioner until around 23 July 2009 when a letter was sent to him which stated that the files were in the process of being copied and would be sent to him 'upon completion' (Practitioner's BOD page 431). By 4 August 2009 the Client had not received the requested documents so he sent a further letter to the Practitioner (Practitioner's BOD page 432) saying that he had 'forwarded (Page 20)
my concerns' to the Committee. It was not until or around 6 August 2009 that the Client received the requested documents from the Practitioner. 99 The Tribunal notes that a delay of a few days in one case to deliver a file to a former client or another practitioner may be regarded as unprofessional and in another case a delay of over two months in doing this may be considered acceptable in the circumstances. The case must be decided on its merits, taking account of any implications for the Client in the delay of which the Practitioner ought to know and any lien issues and difficulties the Practitioner might reasonably face in compliance. 100 In this case the Tribunal is unable to determine that the delay warrants discipline because there is simply no evidence to satisfy us that the rights of the Client would have been prejudiced by the delay. While there is no doubt that this matter should have, and could have, been dealt with more expeditiously, we consider that the Practitioner's delay does not constitute professional misconduct or unsatisfactory professional conduct.
VR 114 of 2011
Introduction 101 Under s 428 of the LP Act, the Committee has referred a further matter concerning the Practitioner to the Tribunal seeking findings under s 438(1) of the LP Act that the Practitioner has engaged in unsatisfactory professional conduct by failing to supervise adequately or at all, Mr Arndt, then an articled clerk, in the conduct of two claims for criminal injuries compensation of behalf of a person referred to in these reasons as D. The Practitioner denies the allegation.
Applicable legislation 102 For the reasons stated above in VR 113 of 2011, the applicable legislation that applies to the alleged conduct complained about is the LP Act.
Background 103 At all material times the Practitioner carried on practice in his own right under the name 'George Giudice Law Chambers' and had supervision of his articled clerk, Mr Arndt. 104 In August 2003, D and D's spouse spoke with the Practitioner with the intention of instructing the Practitioner to pursue claims for criminal (Page 21)
injuries compensation (D's claims) in respect of injuries suffered as a result of: 105 The Practitioner delegated the conduct of D's claims to Mr Arndt who had commenced his articles with the Practitioner in July of that year. 106 On or about 11 September 2003, although the precise date is not clear, Mr Arndt met with D and D's spouse, who provided information about the assault and the rock throwing incident, the injuries allegedly suffered as a result of both incidents and copies of relevant correspondence and documents, including correspondence from the Department of Justice and medical practitioners who had treated D. 107 Between 11 September 2003 and 12 May 2004, no substantive work was undertaken by the firm and in particular by Mr Arndt or the Practitioner, to progress D's claims. 108 The Committee alleges that the Practitioner failed to supervise Mr Arndt between 11 September 2003 and 12 May 2004 so as to ensure that D's claims were progressed in a timely manner. 109 After about 12 May 2004, conduct of D's claims was delegated to another practitioner, Mr Jeff Tran, who had conduct of them until about 26 March 2007 when he left the firm. 110 After Mr Tran left the firm, Mr Arndt resumed conduct of D's claim with regard to the assault, the claim with regard to the rock throwing incident having been abandoned. Mr Arndt had conduct of the claim in respect of the assault until at least 9 April 2008. D terminated the retainer with the Practitioner in or about June 2008.
Practitioner's submissions 111 The Practitioner submits that Mr Arndt met with D in Carnarvon on 14 August 2003. Further to that meeting, on or about 2 September 2003, the Practitioner says that a letter enclosing a costs agreement was prepared by Mr Arndt and he thought it had been sent to D although there was some discrepancy as to whether the correct address was provided by D. (Page 22)
112 Following the letter of 2 September 2003 the Practitioner says that there was no response from D until Mr Arndt received a telephone call in May 2004 from a Community Health Nurse at Carnarvon Regional Hospital who Mr Arndt had understood from a previous conversation with the nurse that he was helping D in relation to her claims. In that conversation in May 2004, the nurse told Mr Arndt that D had complained that D had not heard from the Practitioner in relation to D's claim. 113 According to Mr Arndt's witness statement dated 3 May 2012 (AWS), Mr Arndt then prepared a letter to D dated 6 May 2004 which was simply the same as the letter of 2 September 2003 with the date amended. Mr Arndt stated that although he prepared the letter to D of 2 September 2003, he did not know if it was eventually sent to D (AWS para 9). 114 The Practitioner states that the letter of 6 May 2004 was sent to two addresses they had on file for D. The Practitioner stated that the costs agreement was received by the Practitioner on or about 21 May 2004 and had been signed by D on 17 May 2004. 115 Mr Arndt stated that from about 13 May 2004 he had no involvement in the matter until 2007 (AWS para 13). 116 The Practitioner stated that over the period of acting for D, various letters which he had sent to D were returned from both addresses provided by D (paragraph 39 of the Practitioner's witness statement in respect of this allegation dated 2 May 2012) (PWS 2). 117 The Practitioner stated that between September 2003 and 6 May 2004 when the nurse contacted Mr Arndt, the Practitioner would have asked Mr Arndt on several occasions whether he had heard from D. He believed that Mr Arndt would have advised him that he had no further instructions and the costs agreement was not returned (PWS 2 para 40).
The Tribunal's findings 118 The Tribunal notes that it is in general incumbent upon all solicitors to have efficient followup systems to ensure that important correspondence to clients has been received and in appropriate cases understood and acted on and, where there is evidence of failure in this regard leading to injustice or potential injustice, discipline may result. 119 However, in this case, D gave no such evidence or any evidence at all. (Page 23)
120 There is no question that D had approached the Practitioner to seek legal representation. However, the Tribunal notes that there is no evidence as to what, if any, expectations were raised for D at the first interview, nor of any prejudice to D by the delay. 121 D could have contacted the Practitioner at any time to follow up the matter or got someone else to do that much earlier than occurred. 122 The Tribunal also notes that D continued to retain the Practitioner's services for almost three years after the matter of the costs agreement was resolved in May 2004. 123 In the circumstances the Tribunal is unable to find that this complaint has any substance and does not warrant discipline.
Orders
VR 113 of 2012 1. There is a finding that Mr Peter George Giudice is guilty of unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA) when he caused to be prepared under his supervision and caused to be sworn, filed and served in court proceedings an affidavit sworn by his client which contained a false statement and he recklessly disregarded whether the statement was true or false and thus failed to reach a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 2. The application is dismissed on all other grounds. 3. The Legal Profession Complaints Committee is to file and serve any submissions on penalty within 21 days of publication of these reasons. 4. Mr Giudice is to file and serve any submission on penalty within 21 days of service of the Legal Profession Complaints Committee's submissions. 5. Subject to any further order of the Tribunal, the question of penalty is to be dealt with on the papers. (Page 24)
VR 114 of 2012 1. The application is dismissed. |