LEGAL PROFESSION COMPLAINTS COMMITTEE and LAWSON

[2021] WASAT 152

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION:   LEGAL PROFESSION COMPLAINTS COMMITTEE and LAWSON [2021] WASAT 152

MEMBER:   JUDGE D R PARRY, DEPUTY PRESIDENT

MR D AITKEN, SENIOR MEMBER

DR E MARILLIER, MEMBER

HEARD:   12, 13, 14, 15, 16 AND 21 OCTOBER 2020 AND 1 SEPTEMBER 2021

DELIVERED          :   30 NOVEMBER 2021

FILE NO/S:   VR 60 of 2019

BETWEEN:   LEGAL PROFESSION COMPLAINTS COMMITTEE

Applicant

AND

RICHARD JAMES LAWSON

Respondent

 

Catchwords:

Vocational regulation - Legal practitioners - Professional misconduct - Whether practitioner engaged in professional misconduct by knowingly or recklessly making false and/or misleading representations to client, Legal Profession Complaints Committee, Legal Practice Board and Supreme Court of Western Australia in relation to work practitioner performed in respect of client's matter - Whether practitioner engaged in professional misconduct by knowingly or recklessly making false and/or misleading representations to Legal Profession Complaints Committee and Legal Practice Board in relation to reason for termination of employment of solicitor who gave statement and information to Legal Profession Complaints Committee in respect of conduct investigation - Whether practitioner engaged in professional misconduct by not refunding to client difference between original invoice and bill of costs for costs assessment

Legislation:

Legal Profession Act 2008 (WA), s 402, s 403, s 403(1), s 421(1), s 428(1), s 438, s 438(1), s 442

Result:

Findings of professional misconduct on all nine grounds

Category:    B

Representation:

Counsel:

Applicant	:	Ms P Cahill SC and Mr S Merrick
Respondent	:	Mr AE Eyers

Solicitors:

Applicant	:	Law Complaints Officer
Respondent	:	Lawson Legal

Case(s) referred to in decision(s):

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Cabal v United Mexican States [2001] FCA 97; (2001) 111 FCR 418

Giudice v Legal Profession Complaints Committee [2014] WASCA 115

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56

Legal Practitioners Complaints Committee and Segler [2009] WASAT 205; (2009) 67 SR (WA) 280

Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37; (2013) 84 SR (WA) 158

Legal Profession Complaints Committee and Caine [2010] WASAT 178

Legal Profession Complaints Committee and Chang [2019] WASAT 67

Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58; (2012) 80 SR (WA) 134

Legal Profession Complaints Committee and Lee­Steere [2010] WASAT 189

Legal Profession Complaints Committee and Segler [2010] WASAT 135

Legal Profession Complaints Committee and Tang [2021] WASAT 117; (2021) 103 SR (WA) 249

Legal Profession Complaints Committee v Brickhill [2013] WASC 369

Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202

TABLE OF CONTENTS

Introduction

Grounds of alleged professional misconduct

Legal framework

Background facts

Grounds 1 and 3 – Knowingly or recklessly making false and/or misleading representations to the client in itemised accounts as to the work performed by the practitioner

First Opinion

Taking KB's statement

Second Opinion

Did the practitioner engage in professional misconduct in terms of grounds 1 and 3?

Ground 2 – Knowingly or recklessly making false and/or misleading representations to the Committee in response to a letter regarding the client's complaint

Grounds 4 and 5 – Knowingly or recklessly making false and/or misleading representations to the Supreme Court and to the client in the costs assessment proceeding

Ground 6 – Not refunding the client

Ground 7 – Knowingly or recklessly making false and/or misleading representations to the Committee in response to a letter regarding the conduct investigation

Ground 8 – Knowingly or recklessly making false and/or misleading representations to the Board in a letter and an email

Ground 9 – Knowingly or recklessly making false and/or misleading representations to the Committee in response to a letter regarding the conduct investigation

Findings of professional misconduct

Programming orders in relation to the issues of penalty and costs

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. The Legal Profession Complaints Committee (applicant or Committee) has referred this matter to the Tribunal, under s 428(1) of the Legal Profession Act 2008 (WA) (LP Act), alleging nine grounds of professional misconduct against Mr Richard James Lawson, who is a legal practitioner, (respondent or practitioner). The Committee alleges that the practitioner knowingly or recklessly misrepresented to a client, CL, in itemised invoices, the work he performed and the time he spent working in respect of CL's matter in July 2011 (grounds 1 and 3). The Committee also alleges that, subsequently, the practitioner made those or similar misrepresentations to the Supreme Court of Western Australia (Supreme Court) in an affidavit filed in a costs assessment proceeding brought by CL against the practitioner (ground 4), and to the Supreme Court and CL in a bill of costs filed in the costs assessment proceeding (ground 5), to the Committee in the course of its conduct investigation (grounds 7 and 9), and to the Legal Practice Board of Western Australia (Board) for the purposes of the practitioner's application for renewal of his local practising certificate (ground 8). It is also alleged that the practitioner engaged in professional misconduct by knowingly or recklessly making a false and/or misleading representation to the Committee that he worked 'exclusively' for CL during a particular period (ground 2) and that he knowingly or recklessly made false and/or misleading representations to the Committee (grounds 7 and 9) and to the Board (ground 8) in relation to the reason why he terminated the employment of a solicitor, JR, who subsequently gave a statement and information in respect of the conduct investigation. Finally, the Committee alleges that the practitioner engaged in professional misconduct by not refunding to CL before a certain date the sum of $5,247, being the difference between the practitioner's original invoice to CL ($27,500) and his bill of costs in the costs assessment proceeding ($22,253) (ground 6).

2. The practitioner does not dispute that he engaged in professional misconduct by not refunding to CL the sum of $5,247 in terms of ground 6.  However, the practitioner contends that he did not engage in professional misconduct by knowingly or recklessly making misrepresentations to CL, the Supreme Court, the Committee, and the Board, in terms of the other eight grounds alleged against him.

3. We will now set out the nine grounds of professional misconduct alleged by the Committee against the practitioner.  We will then refer to the legal framework in relation to this matter and make findings of background facts.  We will then address each of the nine grounds of alleged professional misconduct in turn.

4. For the reasons set out below, we have determined that the practitioner engaged in professional misconduct in terms of each of the nine grounds alleged by the Committee against him.  In particular, we have determined that the practitioner knowingly sought to mislead CL, the Supreme Court, the Committee, and the Board, in relation to the work he performed and the time he spent working in respect of CL's matter and that he knowingly sought to mislead the Committee and the Board in relation to the reason he terminated JR's employment.  We have also determined that the practitioner engaged in professional misconduct by not refunding to CL the difference between the original invoice and the bill of costs in the costs assessment proceeding. 

Grounds of alleged professional misconduct

1. The Committee alleges the following nine grounds of professional misconduct against the practitioner:[1]

   [1] Amended Substituted Annexure A dated 13 October 2020 (Exhibit 8) (original emphasis).  In these reasons, we use the expressions defined in the grounds.

   GROUND 1

   That the practitioner RICHARD JAMES LAWSON (the practitioner), on about 6 August 2011, engaged in professional misconduct within the meaning of sections 403 and 438 of the Legal Profession Act 2008 (WA) (LP Act) in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, further or alternatively, would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by preparing and issuing to his client (CL), at CL's request, an itemised account dated 6 August 2011 (First Itemised Account) relating to tax invoice 0545 dated 31 July 2011 in the sum of $27,500 (including GST) for the practitioner's fees for legal services (Original Invoice), in circumstances where:

   (a)the practitioner knew the First Itemised Account was false and/or misleading in material respects and intended CL be misled by the First Itemised Account;

   (b)alternatively, the practitioner was recklessly indifferent as to whether the First Itemised Account was false and/or misleading in material respects and as to whether CL would be misled by the First Itemised Account.

   GROUND 2

   That the practitioner, on about 31 October 2011, engaged in professional misconduct within the meaning of sections 403 and 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, further or alternatively, would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by preparing and sending to the Legal Profession Complaints Committee (Committee) a letter dated 31 October 2011 (31 October 2011 letter) in response to a letter from the Committee dated 7 October 2011 regarding a complaint made by CL against the practitioner, in circumstances where:

   (a)the practitioner knew the 31 October 2011 letter was false and/or misleading in a material respect and intended the Committee be misled by the 31 October 2011 letter;

   (b)alternatively, the practitioner was recklessly indifferent as to whether the 31 October 2011 was false and/or misleading in a material respect and as to whether the Committee would be misled by the 31 October 2011 letter.

   GROUND 3

   That the practitioner, on about 13 May 2012, engaged in professional misconduct within the meaning of sections 403 and 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, further or alternatively, would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by preparing and issuing to CL, at CL's request, an itemised account dated 13 May 2012 (Second Itemised Account) relating to tax invoice 0545C dated 13 May 2012 in the sum of $27,544 (including GST) for the practitioner's fees for the legal services, in circumstances where:

   (a)the practitioner knew the Second Itemised Account was false and/or misleading in material respects and intended CL be misled by the Second Itemised Account;

   (b)alternatively, the practitioner was recklessly indifferent as to whether the Second Itemised Account was false and/or misleading in material respects and as to whether CL would be misled by the Second Itemised Account.

   GROUND 4

   That the practitioner, on about 16 and 17 August 2012, engaged in professional misconduct within the meaning of sections 403 and 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, further or alternatively, would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by swearing and filing, or permitting to be filed, an affidavit dated 16 August 2012 (Affidavit) in Supreme Court of Western Australia costs assessment proceedings LPA 16 of 2012 commenced by CL against the practitioner (Costs assessment proceedings), in circumstances where:

   (a)the practitioner knew the Affidavit was false and/or misleading in material respects and intended the Supreme Court be misled by the Affidavit;

   (b)alternatively, the practitioner was recklessly indifferent as to whether the Affidavit was false and/or misleading in material respects and as to whether the Supreme Court would be misled by the Affidavit.

   GROUND 5

   That the practitioner, on about 18 June 2013, engaged in professional misconduct within the meaning of sections 403 and 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, further or alternatively, would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by filing, or permitting to be filed, a bill of costs dated 14 June 2013 in the sum of $22,253 (including GST, but excluding a claim for drafting the bill and preparing for and attending the taxation) (Bill of Costs) in the Costs assessment proceedings, in circumstances where:

   (a)the practitioner knew the Bill of Costs was false and/or misleading in material respects and intended the Supreme Court and/or CL be misled by the Bill of Costs;

   (b)alternatively, the practitioner was recklessly indifferent as to whether the Bill of Costs was false and/or misleading in material respects and as to whether the Supreme Court and/or CL would be misled by the Bill of Costs.

   GROUND 6

   That the practitioner, between about 18 June 2013 and about 30 September 2014, engaged in professional misconduct within the meaning of sections 403 and 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, by not refunding to CL the sum of $5,247, being the difference between the Original Invoice ($27,500) and the Bill of Costs ($22,253) for the practitioner's professional fees for legal services.

   GROUND 7

   That the practitioner, on about 28 May 2017, engaged in professional misconduct within the meaning of sections 403 and 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, further or alternatively, would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by preparing and sending to the Committee a letter dated 28 May 2017 (28 May 2017 letter) in response to a letter from the Committee dated 19 April 2017 regarding a conduct investigation pursuant to section 421(1) of the LP Act (conduct investigation), and providing, or permitting to be provided, to the Committee with the 28 May 2017 letter a witness statement dated 23 May 2012 from the practitioner's wife (ML; ML Statement), in circumstances where:

   (a)the practitioner knew the 28 May 2017 letter and the ML Statement were false and/or misleading in material respects and intended the Committee be misled by the 28 May 2017 letter and the ML Statement;

   (b)alternatively, the practitioner was recklessly indifferent as to whether the 28 May 2017 letter and the ML Statement were false and misleading in material respects and as to whether the Committee would be misled by the 28 May 2017 letter and the ML Statement.

   GROUND 8

   That the practitioner, on or about 3 August 2017 and 8 August 2017, engaged in professional misconduct within the meaning of sections 403 and 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, further or alternatively, would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by:

   1.under cover of a letter to the Legal Practice Board of Western Australia (Board) dated 3 August 2017, and in response to a letter from the Board dated 28 July 2017 requesting further information in relation to the conduct investigation for the purposes of consideration by the Board of the practitioner's application for the renewal of his local practising certificate, providing a copy of the 28 May 2017 letter and a copy of the ML Statement;

   2.preparing and sending to the Board an email dated 8 August 2017 (8 August 2017 email),

   in circumstances where:

   (a)the practitioner knew the 28 May 2017 letter, the ML Statement and the 8 August 2017 email were false and/or misleading in material respects and intended the Board be misled by the 28 May 2017 letter, the ML Statement and the 8 August 2017 email;

   (b)alternatively, the practitioner was recklessly indifferent as to whether the 28 May 2017 letter, the ML Statement and 8 August 2017 email were false and/or misleading in material respects and as to whether the PAC would be misled by the 28 May 2017 letter, the ML Statement and the 8 August 2017 email.

   GROUND 9

   That the practitioner, on about 13 November 2017, engaged in professional misconduct within the meaning of sections 403 and 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, further or alternatively, would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by preparing and sending to the Committee a letter dated 13 November 2017 (13 November 2017 letter) in response to a letter from the Committee dated 20 October 2017 regarding the conduct investigation in circumstances where:

   (a)the practitioner knew the 13 November 2017 was false and/or misleading in material respects and intended the Committee be misled by the 13 November 2017 letter;

   (b)alternatively, the practitioner was recklessly indifferent as to whether the 13 November 2017 letter was false and/or misleading in material respects and as to whether the Committee would be misled by the 13 November 2017 letter.

Legal framework

1. Section 438(1) of the LP Act confers jurisdiction on the Tribunal in this matter as follows:

   The State Administrative Tribunal has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct.

2. The Committee bears the onus of proof in relation to each of the allegations of professional misconduct it makes against the practitioner.  The civil standard of proof ('on a balance of probabilities') applies together with the Briginshaw approach,[2] which requires clear and cogent evidence to be adduced by the Committee and for the Tribunal to feel an actual persuasion of the occurrence or existence of relevant facts before it can find the practitioner guilty of professional misconduct (or unsatisfactory professional conduct). 

   [2] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362 (Dixon J).

3. Section 402 and s 403 of the LP Act contain non-exhaustive[3] definitions of the terms 'unsatisfactory professional conduct' and 'professional misconduct', respectively. Section 402 of the LP Act states as follows:

   For the purposes of this Act –

   unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law 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.

   [3] Legal Practitioners Complaints Committee and Segler [2009] WASAT 205; (2009) 67 SR (WA) 280 [96].

1. Section 403 of the LP Act states as follows:

   (1)For the purposes of this Act –

   professional misconduct includes –

   (a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

   (b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

   (2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

2. As the statutory definitions of the terms 'professional misconduct' and 'unsatisfactory professional conduct' in s 403(1) and s 402 of the LP Act, respectively, are non-exhaustive definitions, conduct that constitutes 'unprofessional conduct' (sometimes expressed as 'professional misconduct', signifying more serious misconduct) at common law can constitute professional misconduct (or unsatisfactory professional conduct) under the LP Act.[4]

   [4] Legal Profession Complaints Committee and Caine [2010] WASAT 178; Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58; (2012) 80 SR (WA) 134; Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37; (2013) 84 SR (WA) 158.

3. The common law concept of unprofessional conduct was restated by Parker J in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [61] (Ipp J at [1] and Steytler J at [22] agreeing) as follows:

   … This Court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re a Practitioner of the Supreme Court [1927] SASR 58: see, eg, Re a Practitioner (unreported, Supreme Court, WA, Full Court, Library No 4989, 18 July 1983).  It was usefully summarised (at 3) by the Full Court as conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.  The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice.  The other limb necessarily relates to conduct in the course of legal practice because of the reference to 'professional conduct'.  While the words should not be taken as necessarily an exhaustive or codified statement, the essence of the notion of unprofessional conduct is usefully revealed in these decisions.

4. As the Tribunal[5] said in Legal Profession Complaints Committee and Chang [2019] WASAT 67 at [137], the words 'disgraceful' and 'dishonourable', which are used in the first limb of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61], mean:[6]

   disgraceful … bringing or deserving disgrace; shameful; dishonourable; disreputable.  …

   dishonourable … 1. showing lack of honour; ignoble; base; disgraceful; shameful:  a dishonourable act. 2. having no honour or good repute:  a dishonourable man. …

   [5] Judge Parry DP, Mr D Aitken SM and Ms S Gillett SessM.

   [6] Macquarie Dictionary Online (original emphasis).

5. The Committee contends that the practitioner's alleged conduct referred to in each of the nine grounds constitutes professional misconduct under s 403 and s 438 of the LP Act, because it falls within the second limb of the restatement of the common concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61] ('conduct … that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the [legal] profession of good repute and competence'). Further or alternatively, the Committee contends that the practitioner's alleged conduct referred to in each of the grounds, other than ground 6, constitutes professional misconduct under s 403 and s 438 of the LP Act, because it falls within the first limb of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61] ('conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence').

6. Section 442 of the LP Act authorises the Tribunal to make an alternative finding that a person is 'guilty of unsatisfactory professional conduct', even though the referral of the matter by the Committee alleges 'professional misconduct'.

7. In Legal Profession Complaints Committee and Tang [2021] WASAT 117; (2021) 103 SR (WA) 249 at [10], the Tribunal[7] said the following, which is equally apposite in relation to each of the nine grounds of alleged professional misconduct in this case:

   [7] Judge Parry DP, Dr S Willey SM and Ms M Connor M.

   Significantly, in terms of ground 1, as the Tribunal recognised in Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37; (2013) 84 SR (WA) 158 at [123] ­ [124], a charge and finding of professional misconduct (or unsatisfactory professional conduct) against a lawyer does not need to be – and is often not – based on (a breach of) a particular written and prescribed legal or ethical rule, obligation or duty. Furthermore, as the Tribunal recognised there, professional misconduct includes a serious impropriety, whether proscribed or not, affecting a practitioner's character, which is indicative of a failure either to understand or to practise the precepts of honesty and fair dealing that are essential to the privilege and responsibilities of practising as a legal practitioner. As the Tribunal said in Legal Profession Complaints Committee and A Legal Practitioner at [123] ­ [124]:

   123Even in the absence of an express authority on point, we have no doubt such duty exists.  As Rich J said in Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563:

   … a charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong doing.  It need not amount to an offence under the law.  It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public.

   124Similarly, the High Court of Australia observed in Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 200 that certain rules (or duties) which govern the conduct of legal practitioners, which their Honours described as 'fundamental' and contrasted with rules which are 'merely conventional in character':

   … are, for the most part, not to be found in writing.  It is not necessary that they should be reduced to writing, because they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness.

8. As the Tribunal also said in Legal Profession Complaints Committee and Tang at [56]:

   Honesty and integrity are essential characteristics for the privilege and responsibilities of legal practice.  Fitness to practise law requires that a practitioner must command the personal confidence of his or her clients, fellow practitioners and judicial officers [Legal Profession Complaints Committee v Bachmann [2011] WASC 309 [46] (Martin CJ, EM Heenan J and Jenkins J)]. Put simply, if legal practitioners cannot be trusted to act and speak with honesty and integrity, the effective and efficient provision of legal services and administration of justice would be fundamentally undermined.

9. Because honesty and integrity are essential characteristics expected of a legal practitioner, the Supreme Court and the Tribunal have generally taken a very serious view when dealing with dishonesty by a practitioner.[8] 

   [8] See, for example, Legal Profession Complaints Committee v Brickhill [2013] WASC 369 and Legal Profession Complaints Committee and Tang.

10. When a legal practitioner provides information or makes a statement which is false or misleading, there are (at least) three categories of cases in which that conduct will constitute either professional misconduct or unsatisfactory professional conduct under the LP Act. The first category is where the practitioner knows that the information or statement is false or misleading. The second category is where the practitioner has a reckless disregard as to whether the information or statement is false or misleading. The third category is where the practitioner is negligent or careless in providing the information or making the statement. Because the first two categories will only apply if, assessed subjectively, the practitioner either is aware that the information or statement is false or misleading (and therefore knowingly makes the misrepresentation) or is wilfully indifferent as to the truth of the information or statement (and therefore recklessly makes the misrepresentation), in the absence of special circumstances, one would ordinarily expect a finding of either of these categories of conduct to be characterised as a substantial departure from the standard of conduct reasonably expected of a practitioner such as to constitute 'professional misconduct', rather than (merely) 'unsatisfactory professional conduct', within the taxonomy of the LP Act.[9] 

    [9] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [8] (Martin CJ).

11. Ordinarily, in an adversarial context, such as vocational disciplinary proceedings, findings by the Tribunal as to a person's state of mind, for example, as to their knowledge or intention, will be a matter of inference from primary facts found by the Tribunal on the evidence.[10] 

Background facts

[10] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [169] (Murphy and Beech JJA).

1. The background facts are not in dispute.  In his written closing submissions on behalf of the practitioner, Mr AE Eyers said that the background facts are 'adequately and accurately summarised'[11] by the Committee at paragraphs 14­36 in its closing submissions – and we make findings of fact – as follows:[12]

   [11] Respondent's closing submissions dated 13 August 2021 (practitioner's submissions) para 2.

   [12] Legal Profession Complaints Committee's closing submissions dated 19 March 2021 (Committee's submissions) paras 14­36 (original emphasis).  In these reasons, we use the expressions defined in these background facts. 

   14.The practitioner was admitted to legal practice in Western Australia on 21 December 2000.

   15.At all material times the practitioner was:

   a.an Australian legal practitioner within the meaning of s 5(a) of the LP Act;

   b.a sole practitioner, practising under the name Lawson Legal from premises situated at 524 Hay St, Perth.

   16.JR commenced an unpaid work experience position as a law graduate at Lawson Legal in about March 2011.  At that time the firm had no office support staff.  There were no employed solicitors or other legal staff at the firm.

   17.JR remained in the work experience position until about December 2011, when she commenced a full-time position as an employed solicitor at the firm after she was admitted to legal practice.

   18.JR ceased employment at the firm in about mid-June 2012.

   19.ML is the practitioner's wife.  From about 2007 to 2014 she was the business manager of the QE II Medical Centre Trust. She worked at Lawson Legal at least from 2007 however her precise role and the extent of her involvement in the practice is in issue.

   20.On 16 July 2011, CL was arrested.  The practitioner met with CL on 18 July 2011.  On 20 July 2011 CL caused funds of $91,538.05 to be deposited to Lawson Legal's trust account.

   21.On 21 July 2011, the practitioner met with CL at Hakea Prison where CL was remanded into custody.  During the meeting the practitioner provided CL with a costs agreement which CL signed and the practitioner witnessed (First Costs Agreement).[13]

   [13] The First Costs Agreement is Legal Profession Complaints Committee Book of Documents dated 30 March 2020 (Exhibit 3), pages 25-27.

   22.The First Costs Agreement provided for:

   a.a ''lump sum fee'' capped at $22,000 (inclusive of GST) in relation to ''EXTRADITION TO USA (CHARGES; POWER OF ATTORNEY)'';

   b.additional work outside the scope of the lump sum fee to be charged at $440 per hour (inclusive of GST) for a practitioner and $110 per hour (inclusive of GST) for a paralegal.

   23.At the practitioner's instruction, on about 23 and 24 July 2011, JR researched and drafted a written opinion (First Opinion) addressing, inter alia, the possible charges under Florida law CL would face if he was extradited to the United States.[14]  The nature and extent of the practitioner's contribution to the final form of the First Opinion is in issue.

   [14] The First Opinion (as originally prepared by JR) is Exhibit 3, pages 137­150.

   24.On or about 24 July 2011 CL terminated the retainer with the practitioner.

   25.On 25 July 2011 the practitioner wrote to CL noting that, inter alia:

   ''I have researched your case extensively in relation to the US allegations against you … If you wish for me to resume as your legal representative, I would be prepared to submit a bail application on your behalf on 4 August 2011 (providing the extradition papers have not arrived from the USA). Your success of obtaining bail would be increased if [KB] was your surety and spouse in order to illustrate support in your life. In the event you are extradited, [KB] and I would engage the best Florida lawyer available (subject to legal fees available) in order to defend this matter at trial and to get you bail.''[15]

   [15] The 25 July 2011 letter is Exhibit 3, pages 193-194; 343-344.

   26.On 26 July 2011, the practitioner and JR met with CL at Hakea Prison. During the meeting the practitioner provided CL with a further costs agreement (Second Costs Agreement) which CL signed and JR witnessed.  Also during the meeting, the practitioner provided the First Opinion in final form to CL.[16]

   [16] The First Opinion (as provided by the practitioner to CL) is Exhibit 3, pages 3-16.  The Second Costs Agreement is Exhibit 3, pages 40­42.

   27.The Second Costs Agreement provided for:

   a.a ''lump sum fee'' capped at $66,000 (inclusive of GST) for the practitioner being retained in relation to ''EXTRADITION PROCEEDINGS TO USA; BAIL; ALTERNATIVE POWER OF ATTORNEY, USA TRAVEL & BAIL'';

   b.additional work outside the scope of the lump sum fee to be charged at $440 per hour (inclusive of GST) for a practitioner and $110 per hour (inclusive of GST) for a paralegal.

   28.On 26 July 2011, following the meeting with CL, at the office, JR met with KB and took a witness statement from her, which KB then signed, and JR witnessed (KB's witness statement).[17]  The extent of the practitioner's involvement in that meeting and in the preparation of KB's witness statement is in issue.

   [17] Exhibit 8, para 16; [Practitioner's] Statement of Facts & Contentions (By reference to Substituted Annexure A 3 August) dated 1 September 2020 (Exhibit 2), para 5b; Exhibit 3, pages 202-205 and 467; ts 46, 12 October 2020.

   29.At the practitioner's instruction, on about 26 and 27 July 2011, JR researched and drafted a written opinion addressing, inter alia, the relevant procedure under the Extradition Act and bail pending extradition (Second Opinion).[18]  The nature and extent of the practitioner's contribution to the final form of the Second Opinion is in issue.

   [18] The Second Opinion (as originally prepared by JR) is Exhibit 3, pages 208-213.

   30.On 28 July 2011 the practitioner and JR met with CL at Hakea Prison. During that meeting, relevantly, the practitioner provided the Second Opinion in final form to CL.  CL terminated the retainer with the practitioner for a second and final time and signed a written note to that effect.[19]

   [19] The Second Opinion (as provided by the practitioner to CL) is Exhibit 3, pages 17-21.

   31.On about 31 July 2011, the practitioner prepared and issued to CL tax invoice no. 0545/trust account statement (Original Invoice) for legal fees totalling $31,038.05 including GST, comprising of the practitioner's fees in the sum of $27,500 and $3,528.05 paid to DG Price & Co in respect to the preparation of an enduring power of attorney in favour of a third party.[20]

   [20] Exhibit 3, page 47.

   32.On about 31 July 2011 the practitioner transferred the sum of $27,500 from his trust account to his general account in satisfaction of the Original Invoice.[21]

   33.The narration on the Original Invoice provided:

   ''LEGAL FEES INCLUDE receiving instructions and providing advice; discussions with arresting police officer, [KB], [CT], [CL's parents]; Perth Magistrates Court appearance; consultations with the Australian Government Solicitor and counsel; official prison visits x 5 [sic]; establishing enduring power of attorney; consultation with DG Price and Co regarding second power of attorney; legal research; legal opinions on offences, extradition and bail and all matters incidental thereto…

   Exceeding but say to you [$27,500 inclusive]''.

   34.Sometime between about 31 July 2011 and 4 August 2011, CL requested the practitioner provide an itemised bill relating to the Original Invoice.

   35.At the practitioner's instruction, and in the absence of any time records of the practitioner's and JR's work for the legal services, on 4 and 5 August 2011, JR prepared, based on her best recollection and a review of relevant documents on her computer, a schedule of the work undertaken on the matter by her alone and by her in company with the practitioner (Timesheet), which she then emailed to the practitioner on 5 August 2011.[22]

   36.The practitioner neither made nor retained any records of the time he had spent on CL's matter, regarding it unnecessary for him to do so because the First Costs Agreement and the Second Costs Agreement provided for a lump sum fee, and it not being his practice generally to keep timesheets.[23]

   [21] Exhibit 3, pages 49 and 88.

   [22] Exhibit 3, pages 127­128 and 221.

   [23] ts 200, 14 October 2020 and ts 363-364, 15 October 2020.

2. The First Opinion comprises eleven sections and two annexures/schedules and is a total of 14 pages in length.  The First Opinion consists of the following sections and annexures/schedules:

   •Section one sets out six child abuse and child exploitation material charges against CL under the law of Florida, United States of America (USA), in tabular form;

   •Section two sets out ten potential prosecution witnesses against CL in tabular form;

   •Section three sets out two possible defence witnesses for CL in tabular form, namely CL and KB, CL's partner;

   •Section four sets out a timeline in tabular form;

   •Section five is entitled 'Background' and refers to CL's relationships, including with RP, the co-accused and the mother of the two child complainants, and CL's contact with Lawson Legal, and also states as follows:[24]

   [24] Exhibit 3, pages 5 and 139.

   5.3.9.Lawson Legal obtained the details of three prominent Miami defence attorneys for consideration by [CL].  Details are:

   a)David B. Rothman

   Phone:[phone]

   ( Black

   Phone:[phone]

   ('' M. Edelstein, PA

   Phone:[phone]

   ('' six notes that extradition from Australia to another country is governed by the Extradition Act 1988 (Cth) (Extradition Act) and refers to a number of its provisions;

   •Section seven is entitled 'Charges Against [RP]' and sets out the charges against RP and admissions made by her, and also refers to injuries sustained by the complainants and further evidence available to the prosecution;

   •Section eight is entitled '[CL's] involvement' and refers to evidence of the complainants, evidence of RP, and items seized from CL by Western Australia Child Protection Unit Police;

   •Section nine briefly refers to CL's instructions;

   •Section ten is entitled 'Other Relevant Considerations' and comprises the subheadings 'The Charges' and '[KB]' (in the First Opinion (as originally prepared by JR)) / '[CL's] instructions' (in the First Opinion (as provided by the practitioner to CL));

   •Section eleven is entitled 'Conclusion' and expresses opinions in relation to the likelihood of CL obtaining bail, being extradited to the USA, and being found not guilty of the alleged offences;

   •Annexure/Schedule 1 sets out the relevant sections of the statute under which the charges against CL were brought; and

   •Annexure/Schedule 2 sets out twelve charges against RP.

1. The content, presentation and formatting (including paragraph numbering) of the First Opinion (as originally prepared by JR) is precisely the same as the content, presentation and formatting of the First Opinion (as provided by the practitioner to CL), with the exception of the following nine changes, which, we infer, the practitioner made to the First Opinion in the relatively short period between when he received the First Opinion from JR at 10.28 am on 26 July 2011 and when the practitioner and JR left to see CL at Hakea Prison later that morning:

   1.The practitioner changed the word 'Annexure' to 'Schedule' four times in the document:  at the end of section one, in para 7.1, and in the headings of 'Annexure One' and 'Annexure Two';

   2.The practitioner substituted a first name starting with 'E' for the first name starting with 'K' in KB's name in section three and para 5.1.3, and put the name starting with 'K' in quotation marks within brackets after the first name beginning with 'E' in those places;

   3.The practitioner changed the date when CL attended his office in para 5.3.1 from 'at the end of May 2011' to 'on 6 June 2011';

   4.The practitioner deleted the words '(Annexure Three)' at the end of the sentence in section 7.1, which stated 'Facts relating to the charges have been obtained from [RP's] arrest affidavit, Incident Number 2011-048168 (Annexure Three)';[25]

   [25] Exhibit 3, page 141 (original emphasis).

   5.The practitioner deleted para 10.1.3 and para 10.1.4 from the First Opinion (as originally prepared by JR), which stated as follows:[26]

   [26] Exhibit 3, page 145 (original emphasis).

   10.1.3. It has been reported that [CL] had viewed the videos of the complainants up to eleven times.

   10.1.4. The Polk County Sheriff's Office has also stated that after viewing the videos [CL] contacted [RP] and berated her.;

   6.The practitioner deleted para 10.2 from the First Opinion (as originally prepared by JR), which stated as follows:[27]

   [27] Exhibit 3, page 145 (original emphasis).

   10.2.[KB]

   10.2.1.[KB] claims that she was fully aware of [CL's] involvement in this matter.

   10.2.2.She has advised counsel that she is willing to give evidence in support of [CL].

   10.2.3.[KB] has advised counsel that she had access to both [CL's] computer and passwords associated with various internet website accounts, including those relating to these charges.

   and substituted a different para 10.2 in the First Opinion (as provided by the practitioner to CL), which stated as follows:[28]

   [28] Exhibit 3, page 11 (original emphasis).

   10.2.[CL's] instructions

   10.2.1.[CL] has given conflicting instructions to counsel.

   10.2.2.[CL] has instructed Lawson Legal that he no longer wishes to be represented by them.;

   7.The practitioner deleted the following two paragraphs in section eleven and thereby reduced the paragraphs in that section from eight to six (and renumbered them accordingly):[29]

   [29] Exhibit 3, page 145.

   11.1.This opinion has been compiled from information gained by Lawson Legal's independent investigation.

   …

   11.7.The evidence of [KB] may raise some doubt in the culpability of [CL].

   …;

   8.The practitioner deleted the word 'highly' in para 11.4, which in the First Opinion (as originally prepared by JR) stated as follows:[30]

   11.4.In my opinion, it is highly unlikely that [CL] will be granted bail due to the seriousness of the offences.; and

   9.The practitioner deleted the page numbering at the foot of each page of the document.

   [30] Exhibit 3, page 145 (bolded emphasis original; italicised emphasis added).

2. The Second Opinion is shorter than the First Opinion and comprises three sections and a total of six pages (the Second Opinion (as originally prepared by JR)) / five pages (the Second Opinion (as provided by the practitioner to CL)).

3. The Second Opinion consists of the following: 

   •Section one again notes that extradition from Australia to another country is governed by the Extradition Act and refers to the same provisions as are referred to in section six of the First Opinion, but also quotes two of them;

   •Section two refers to the availability of bail under the Extradition Act and cites and briefly quotes from and discusses factors referred to in Cabal v United Mexican States [2001] FCA 97; (2001) 111 FCR 418; and

   •Section three expresses opinions that no special circumstances exist for bail to be granted, no grounds for an objection to extradition exist, and that CL 'is better served by consenting to the extradition and defending the alleged offences against him in the United States of America', but without providing any reasoning for these opinions.

4. The content, presentation and formatting (including paragraph numbering) of the Second Opinion (as originally prepared by JR) is precisely the same as the content, presentation and formatting of the Second Opinion (as provided by the practitioner to CL), with the exception of the following three changes, which, we infer, the practitioner made to the Second Opinion in the relatively short period between when he received the Second Opinion from JR at 8.37 am on 28 July 2011 and when the practitioner and JR left to see CL at Hakea Prison later that morning:

   1.The practitioner deleted the final word in para 1.7, which was 'completed', and substituted the words 'complied with through diplomatic channels', so that the final sentence of the paragraph stated as follows in the Second Opinion (as provided by the practitioner to CL):[31]

   … The arrested person can be held in custody for up to 45 days whilst formal extradition procedures are complied with through diplomatic channels.;

   2.The practitioner changed the heading of section three from 'Opinion' to 'Conclusion'; and

   3.The practitioner deleted a statement of consent by CL to be extradited from Australia to the USA, pursuant to s 18 of the Extradition Act, with a place for CL's signature and inclusion of the date on which the consent is given, which appeared on the last page of the Second Opinion (as originally prepared by JR).[32] 

   [31] Exhibit 3, page 19 (emphasis added).

   [32] Exhibit 3, page 213.

5. The Timesheet JR prepared at the practitioner's request relevantly states as follows:[33]

   [33] Exhibit 3, page 127.

   [CL's full name]

Date	Detail	Hours	Amount
…
23­24 July 2011	·   Research to identify charges ·   Identify client's culpability ·   Research Florida laws (offences & penalties) ·   Research Extradition Act ·   Research Extradition Treaty with USA ·   Locate relevantly qualified Florida defence attorneys ·   Compile opinion	16	$7,040
26 July 2011	·   Travel to and from Hakea Prison ·   Discuss client's previous conflicting instructions re:  [KB] ·   Discuss costs and sign cost agreement ·   Discussed prepared opinion ·   Discuss duties of power of attorney ·   Take instructions ·   Take statement from [KB]	6.5	$2,860
26­27 July 2011	· Confirm research re: Treaty & Extradition Act ·   Research extradition cases (stopping extradition and likelihood of bail) ·   Consider likelihood of client successfully applying for bail ·   Compile opinion	11.5	$5,060
…

Grounds 1 and 3 – Knowingly or recklessly making false and/or misleading representations to the client in itemised accounts as to the work performed by the practitioner

1. It is convenient to address grounds 1 and 3 together, because they concern essentially identical representations made by the practitioner to CL as to the work the practitioner performed and the time he spent working in relation to the First Opinion, taking a witness statement from KB, and in relation to the Second Opinion. 

2. On or about 6 August 2011, the practitioner prepared and issued to CL a schedule, described as 'Itemised Account', relating to the Original Invoice (First Itemised Account), recording, during the period 16 July 2011 to 28 July 2011, 63 hours of work performed by himself in CL's matter, in half hour or hourly blocks, at a rate of $440 per hour, and totalling $27,720 (including GST) for his professional fees.  The First Itemised Account relevantly states as follows:[34]

   [34] Exhibit 3 pages 223­224.  We note that there is a discrepancy in the final bullet point of 'Detail' for the work the practitioner represented he performed on 20 July 2011 in relation to the First Opinion in different copies of the First Itemised Account on the practitioner's file.  In one copy of the First Itemised Account on the practitioner's file (Exhibit 3, pages 50­51), the final bullet point of Detail for 20 July 2011 states 'Compile above research and construct opinion' (Exhibit 3 page 50), whereas in another copy of the First Itemised Account on the practitioner's file (Exhibit 3 pages 52­53) and in the copy of the First Itemised Account that the practitioner rendered to CL, which we reproduce in this paragraph (Exhibit 3 pages 223­224), the final bullet point of Detail for 20 July 2011 states 'Compile opinion' (Exhibit 3 page 52 and page 223) (which is the same expression used by JR in the Timesheet).  In the Second Itemised Account rendered by the practitioner to CL (Exhibit 3, pages 226­227), the final bullet point of Detail for 20 July 2011 states 'Compile above research and construct opinion'.  It appears that at some point after the practitioner rendered the First Itemised Account to CL and before the practitioner rendered the Second Itemised Account to CL, he changed his electronic office copy of the First Itemised Account to be the same as the Second Itemised Account in terms of the final bullet point of Detail for 20 July 2011 and then printed it out and placed it on the file.

   Lawson Legal

   ABN [number]

   ITEMISED ACCOUNT (Invoice No 0545) [CL's full name]

Date	Detail	Hours	Amount
…
20 July 2011	·   Research to identify charges ·   Identify client's culpability ·   Research Florida laws (offences & penalties) ·   Research Extradition Act ·   Research Extradition Treaty with USA ·   Locate relevantly qualified Florida defence lawyers ·   Compile opinion	9	$3960
…
26 July 2011	… ·   Took statement from [KB]	2	$880
27 July 2011	· Research re: Treaty & Extradition Act ·   Exhaustive research re extradition cases (stopping extradition and likelihood of bail) ·   Consider likelihood of client successfully applying for bail ·   Compile opinion …	7	$3080
…

…

Richard Lawson

6 August 2011

1. On or about 13 May 2012, the practitioner prepared and issued to CL tax invoice 0545C [sic] / accounts statement for legal fees in the sum of $27,544 (including GST) (Further Invoice) and attached a schedule, described as 'Itemised Account', relating to the Further Invoice (Second Itemised Account), for the same work that was the subject of the Original Invoice and the First Itemised Account.  The Second Itemised Account is in identical terms to the First Itemised Account, except that for the 18 July 2011 entry relating to the practitioner's attendance at the Magistrates Court (2 hours), his hourly rate was reduced from $440 to $350 per hour (and hence the total amount for his professional fees was reduced from $27,720 (including GST) to $27,544 (including GST)), and the final bullet point of Detail for the 20 July 2011 entry was changed from 'Compile opinion' to 'Compile above research and construct opinion'.  The Second Itemised Account relevantly states as follows:[35]

   [35] Exhibit 3, pages 226­227.

   Lawson Legal

   ABN [number]

   ITEMISED ACCOUNT (Invoice No 0545C) [sic] [CL's full name]

Date	Detail	Hours	Amount
…
20 July 2011	·   Research to identify charges ·   Identify client's culpability ·   Research Florida laws (offences & penalties) ·   Research Extradition Act ·   Research Extradition Treaty with USA ·   Locate relevantly qualified Florida defence lawyers ·   Compile above research and construct opinion	9	$3960
…
26 July 2011	… ·   Took statement from [KB]	2	$880
27 July 2011	· Research re: Treaty & Extradition Act ·   Exhaustive research re extradition cases (stopping extradition and likelihood of bail) ·   Consider likelihood of client successfully applying for bail ·   Compile above research and construct opinion …	7	$3080
…

…

Richard Lawson

13 May 2012

1. The Committee contends that:[36]

   The First Itemised Account [and the Second Itemised Account were each] false and/or misleading in material respects because, having regard to the contents of the First Costs Agreement and the Second Costs Agreement, [each] represented that:

   [1]on 20 July 2011 the practitioner or another legally qualified practitioner spent 9 hours (x $440 per hour (including GST) = $3,960) carrying out research for the purposes of, and drafting, the First Opinion, whereas the true position was that JR alone, who was not then legally qualified, carried out that work on 23 and 24 July 2011;

   [2]on 26 July 2011 the practitioner or another legally qualified practitioner spent 2 hours ($880) taking the witness statement from KB, whereas the true position was that JR alone, who was not then legally qualified, took KB's statement on that date;

   [3]on 27 July 2011 the practitioner or another legally qualified practitioner spent 7 hours ($3,080) carrying out research for the purposes of, and drafting, the Second Opinion, whereas the true position was that JR alone, who was not then legally qualified, carried out that work on 26 and 27 July 2011.

   [36] Exhibit 8, para 27 (and para 38).

2. In response, the practitioner contends as follows:[37]

   a.By reference to the Timesheet, it is accepted that JR compiled a draft opinion on instruction and under the supervision of the [practitioner]; however, JR provided only a very limited list of relevantly qualified Florida defence attorneys.  Subsequently, therefore, on the 23­24 July 2011, the [practitioner] spent the time itemised on the First Itemised Account [and the Second Itemised Account] completing the research for and writing the First Opinion;

   b.On the 26 July 2011, JR travelled to and from Hakea with the [practitioner] and took a statement from [KB] once the [practitioner] had spoken with [KB] and subsequently the [practitioner] settled and amended the statement taken by JR from [KB].  The [practitioner] completed the balance of the work claimed;

   c.On the 27 July 2011, the [practitioner] spent in excess of 7 hours himself researching and compiling and discussing with JR the Second Opinion, quite in addition to JR also working on the Second Opinion under the instruction and supervision of the [practitioner]; furthermore, the [practitioner] alone advised on the likelihood of bail.

   [37] Exhibit 2, para 5 (and para 9).

3. It is essentially common ground between the parties – and we find – that in the First Itemised Account and in the Second Itemised Account (collectively, the itemised accounts), the practitioner represented to CL that he:

   •performed the work described under 'Detail' on 20 July 2011 and spent nine hours working in relation to the First Opinion;

   •'Took statement from [KB]' on 26 July 2011 and spent two hours working in relation to the taking of KB's statement; and

   •performed the work described under 'Detail' on 27 July 2011 and spent seven hours working in relation to the Second Opinion.

1. In their closing submissions, the parties agree that the key question to be determined by the Tribunal in relation to grounds 1 and 3 is 'whether the practitioner spent the time claimed doing the work described in the First Itemised Account and the Second Itemised Account on the dates 20 July 2011, 26 July 2011 and 27 July 2011'.[38]  However, given that the Committee bears the onus of proof, we would characterise the key question to be determined in relation to grounds 1 and 3 as whether we are satisfied on a balance of probabilities and feel an actual persuasion on the basis of clear and cogent evidence that the practitioner:

   •did not perform the work described under 'Detail' on 20 July 2011 and did not spend nine hours working in relation to the First Opinion;

   •did not 'take' KB's statement and did not spend two hours working in relation to the taking of KB's statement; and

   •did not perform the work described on 27 July 2011 and did not spend seven hours working in relation to the Second Opinion.

   [38] Committee's submissions, para 57 and practitioner's submissions, para 18.

2. The Committee's principal witness is JR.  JR's credibility is challenged by the practitioner for essentially two reasons.  First, noting, correctly, that JR gave evidence about events 'that occurred more than nine years prior to her testimony', the practitioner submits that JR's evidence 'was not the product of spontaneous recall of recent events [but] rather it was consistent with a version of events contained within a statement dated the 30 March 2017 that was itself compiled and constructed over a significant period of time in consultation with the [Committee]'.[39]  Secondly, the practitioner submits that 'there is a clear sense in which [JR] not only objectively sought to recall events but did so in a subjectively aggrieved and resentful state of mind given the allegations and accusations made by the [practitioner] and his wife, against her and brought to her attention during the process of the [Committee] compulsorily liaising with her and constructing her statements'.[40] 

   [39] Practitioner's submissions, para 7.

   [40] Practitioner's submissions, para 7.

3. However, having carefully observed her evidence, for the reasons which follow, we find JR to be an impartial, truthful and credible witness, and we accept her evidence.

4. As the Committee submits, 'JR gave her evidence to the Tribunal in a straight-forward and forthright manner, notwithstanding that she was cross­examined extensively in relation to sensitive matters such as her family and intimate relationships and her mental health'.[41]

   [41] Committee's submissions, para 49.

5. Having been first approached by the Committee to provide information in relation to the conduct investigation concerning the practitioner in 2016, some four to five years after the events in issue, JR was candid in explaining that she needed to refresh her memory and compile her statement in an iterative manner, which she ultimately completed, was satisfied with, and signed, in March 2017.  JR gave the following evidence:[42]

   All right.  Now, can you explain to the [T]ribunal about what the state of your memory is today about what happened in that matter and what you did? --- I have had to refresh my memory from looking at documents, looking at old statements, but I also do have a ­ a ­ a recollection in my mind that has come with me from ­ from that time.

   [42] ts 32, 12 October 2020.

6. While JR understandably needed to refresh her memory, we accept her evidence that, when she gave evidence to the Tribunal in October 2020, she indeed had 'a recollection in my mind that has come to me … from that time'.  The careful and responsive manner in which JR gave her evidence, both in chief and under cross­examination, demonstrated to the Tribunal that she had an actual recollection of the events about which she gave evidence. 

7. We do not accept the practitioner's submission that JR sought to recall events 'in a subjectively aggrieved and resentful state of mind given the allegations and accusations made by the [practitioner] and his wife, against her'.  Although it was clear during JR's cross-examination that she found the practitioner's and ML's allegations against her to be hurtful, and she stridently rejected their truthfulness, she maintained grace and equanimity, and it was clear to the Tribunal that her evidence was in no way the product of an aggrieved and resentful state of mind, but rather a genuine effort to recall events when asked about them, both by Ms P Cahill SC, who appeared with Mr S Merrick on behalf of the Committee, and by Mr Eyers.  Moreover, as the Committee submits, JR was not a complainant against the practitioner, the Committee approached her (rather than the other way around), and the evidence she gave was on the understanding that she was compelled to give evidence in this case.  Furthermore, while the practitioner's termination of JR's employment in May 2012 (which we relevantly discuss in relation to ground 7 below) was no doubt difficult for JR, she went on to find employment and remains a practising lawyer.  We also accept the Committee's submission that, unlike the practitioner and his wife, JR 'had nothing to gain or to lose by her evidence to the Committee or the Tribunal'.[43]

   [43] Committee's submissions, para 50.

1. Finally, JR's evidence is supported by contemporaneous documents to which we refer below. 

2. For the foregoing reasons, we accept the Committee's submission that '[t]he Tribunal should accept and rely upon JR's evidence as being credible and truthful'.[44]

First Opinion

[44] Committee's submissions, para 51.

1. For the following reasons, we are satisfied on a balance of probabilities and feel an actual persuasion on the basis of clear and cogent evidence that the practitioner did not perform the work described under 'Detail' in the itemised accounts on 20 July 2011 (which, we find, JR entirely or substantially performed on 23-24 July 2011) and that the practitioner did not spend nine hours working in relation to the First Opinion, and therefore that the First Itemised Account and the Second Itemised Account each contained false and misleading representations in this respect. 

2. As we said earlier, it is agreed between the parties in their closing submissions – and we found at [20] above – that, at the practitioner's instruction, on about 23 and 24 July 2011, JR 'researched and drafted' the First Opinion.[45]  Furthermore, JR gave the following evidence, which we accept, in relation to her research and compilation of the First Opinion:[46]

   [45] Para 23 of the Committee's submissions set out at [20] above.

   [46] ts 36­38, 12 October 2020.

   Can you explain to the [T]ribunal what work is reflected in these bullet points for the entry 23 to 24 July [in the Timesheet]? --- Yes.  So when I got home from CLs home, I basically did Google searches to try and find out more information about CLs case because I - we didn't know a lot at the time.  I  recall that the co-accused's name was [RP], so I recall - - -

   Sorry.  Do you mind if I just pause there? --- Yes.

   So what work had you been asked to do and by whom? --- [The practitioner] had asked me just to see what more information I could find out about the possibility of charges that Mr - CL would be facing.

   Yes.  All right.  So, sorry, I interrupted you, and you were saying that you went on to the internet? --- Yes.  So what I started with was essentially a whole lot of Google searches.  I googled CLs name;  I googled the co­accused's name.  And then I found a - an arrest affidavit from Polk County, and from there it identified the charges that the co-accused was facing.  And then I did some more research to try and find out exactly what the elements of those offences were.  So it did take me an extremely long time to - to get to the nitty-gritty of it all.

   So then can you just explain to me about the third bullet point, what that was about? ---Yes.  So when I - when I found out the offences that [RP] had been charged with, I essentially copied and pasted those into my search engine to try and find the - the - the laws of - of that State in America because I was unfamiliar with that law.

   And why did you do that? --- Because I wanted to give as much information as I possibly could.

   To whom? --- To [the practitioner].

   Right. And the next bullet point ''research Extradition Act''? --- Yes. So essentially I was again Google searching because I wasn't aware of - well, I - I was aware of how to find legislation, but it was really late at night. I wanted to just be able to have a brief understanding of the Extradition Act because I had no idea at all. I did look up the treaty with the US - USA - and essentially I just made myself familiar with the relevant statute.

   All right.  Then this next dot point about ''locating relevantly qualified Florida defence attorneys''.  What was that about? --- Yes.  So I recall that CL had asked us to find him a lawyer form [sic] the internet.  I googled for ''Florida attorneys'', and it came up with a whole raft of things.  And so then I went and googled ''Florida defence attorneys'', and then I realised I was spelling - I needed to spell ''defence'' with an ''s''.  And then essentially I went through the top probably page of the lawyers, went into their website, had a look at whether they dealt with criminal matters and matters of a sexual nature.

   And what did you do with that information? --- I essentially compiled all of that into an opinion.

   All right.  And is that what the last document is about? --- Yes.  That's correct.

   Was that something you had been asked to do by [the practitioner]? --- I'm not entirely sure whether he asked me to draft an opinion, but --- he certainly asked me to find out some more information.

   All right.  You put it in an opinion? --- I put it in an opinion.  Yes.

3. Contemporaneous documentary evidence also supports JR's evidence that she drafted the First Opinion.  A printout of the 'document properties' of the First Opinion from JR's personal computer shows that the document was '[c]reated' (by JR) at 11.50 am on 24 July 2011 (which was a Sunday) and that it was '[l]ast [m]odified' (by JR) at 10.26 am on 26 July 2011 (which was a Tuesday).[47]  Furthermore, documentary evidence shows that JR emailed the First Opinion from her home email address to her Lawson Legal work email address at 10.28 am on 26 July 2011.[48] 

   [47] Exhibit 3, page 151.

   [48] Exhibit 3, page 158.

4. JR also gave evidence, which we accept, that the practitioner had no involvement in the creation of the First Opinion, in the form that she researched and drafted it, and then emailed it from her home email address to her work email address at 10.28 am on 26 July 2011.  JR gave the following evidence, which we accept:[49]

   All right.  Now, just taking that PDF document [that is, the First Opinion] that you sent to the practitioner, [Exhibit 3] 159 through to 167, can you tell the [T]ribunal, please, what, to your knowledge, was [the practitioner's] involvement in the creation of that document? --- The creation of the document there was no involvement, but we had obviously had a discussion about CLs basic instructions because I note I've included that into the opinion.

   All right.  So a discussion about the basic instructions, are you able to elaborate on that discussion using direct speech as to what the discussion was to the best of your recollection? --- I can only recall [the practitioner] telling me that CL had been to his office in about May of 2011 saying that he had received an obscene video from the United States.  I knew that Mr - or CL was denying the allegation that he was involved in anything in the United States.  And, other than that, I think I recall Mr - CL saying that he had very little experience with the internet.

   [49] ts 40, 12 October 2020.

5. JR explained that 'most of the information … in the [First] [O]pinion came from the [co­accused RP's] arrest affidavit' from Polk County in Florida, which JR found through her internet research.[50]  JR gave evidence, which we accept, that, at the practitioner's request, at 3.30 pm on 25 July 2011, she sent a PDF copy of RP's arrest affidavit from her home email address to the practitioner's Lawson Legal email address.  Again, JR's evidence in this respect is supported by documentary evidence.[51]  JR was cross-examined in relation to whether the practitioner had already independently obtained RP's arrest affidavit and she firmly rejected the suggestion that the practitioner already had the arrest affidavit when she emailed it to him at his request.  JR gave the following evidence under cross-examination:[52]

   [50] ts 38, 12 October 2020.

   [51] Exhibit 3, page 153.

   [52] ts 112-114, 13 October 2020.

   Would it be fair to say that you don't know whether you obtained that [that is, the arrest affidavit] or whether [the practitioner] had already independently obtained that? --- Well, from my understanding, when I sent it to [the practitioner] he hadn't seen it prior to that.  It actually took me quite a long while to find that and lots of research and searches to find that. 

   Yes.  But they were researches with sufficient persistence and entry of ­ ­ ­?---Yes.

   ­ ­ ­ keyword searches that could facilitate the obtaining of that document on an open source? --- Yes.  That's right.

   Okay.  And - when you - at the time that you made your statement - and we appreciate it was made over some period of time - would it - would I be correct in saying you could not, definitively, recall whether it was you who obtained the arrest affidavit or whether [the practitioner] had already provided you that information? --- No.  100 per cent no.  That - I was the - well, sorry.  100 per cent no, that I found that arrest affidavit and I had not previously seen it before finding it myself.

   …

   All right.  I'm suggesting to you that [the practitioner] already had the arrest affidavit prior ­ ­ ­? --- No. 

   ­ ­ ­to your obtaining it? --- I do not agree.  Do not agree.

   Well, can you say, from your own knowledge, what you saw and heard that he didn't have that? --- No.  But why would he request that I send him a copy of the affidavit?  Because he asked me where did I get the information from the [F]irst [O]pinion and it was pretty much entirely from that arrest affidavit which is why I sent it through to him.

   All right.  He asked you to send a copy and we've seen the properties of the email - of attaching the file.  But what I'm suggesting is he had already had that; he asked you to send another copy? --- No.

   And in fact, he spoke to you about the content of that affidavit before you started work on the 23rd? --- Definitely not.

   All right.  But we go back to the timesheet, don't we, in the sense that­ ­ ­?---Yes.

   ­ ­ ­prior to the 23rd – yes? --- Yes.

   Since his first contact with CL you cannot say what work [the practitioner] had done in relation to this file before your direct involvement? --- That's right but he never discussed with me that affidavit prior to me sending it to him.

6. It is clear from JR's evidence set out immediately above that the practitioner had not independently obtained RP's arrest affidavit.  The practitioner had not given the arrest affidavit to JR, or even told her about it, when he instructed her to conduct the research that resulted in her preparing the First Opinion, and had never discussed it with JR prior to him asking her to email it to him.  Furthermore, as JR asked rhetorically during this passage of cross-examination, 'why would [the practitioner] request that I send him a copy of the affidavit [if he already had it]?'.[53]  If the practitioner had already independently obtained the arrest affidavit, as counsel for the practitioner suggested to JR during cross-examination, it is highly likely that the practitioner would have given it to JR and discussed it with her when he instructed her to research and draft the First Opinion, and it is highly unlikely that he would have asked her to email it to him when she found it through her own research.

   [53] ts 114, 13 October 2020.

7. JR gave the following evidence, which we accept, that the details of the three Florida defence attorneys at para 5.3.9 of the First Opinion (set out above at [21] above) came from her internet research and that the practitioner's only involvement in relation to the identification of possible defence attorneys in the First Opinion was a cursory discussion about the names found by JR after she researched and drafted the First Opinion:[54]

   All right.  Now, just come back to the PDF version [of the First Opinion (as originally prepared by JR)] at page 161 [of Exhibit 3], and you've got paragraph 5.3.9 there? ---Yes.

   And you will see there's the names of three, as they like to say, attorneys from Miami.  Do you know where that information came from? --- My Google searches.

   And who inserted it into the PDF? --- I did.

   And whether and to what extent Mr Lawson had any involvement in the inclusion of those names in the PDF document? --- There was no involvement in the names, but we did have a discussion about the names.

   Right.  After you produced the PDF? --- That's correct.

   And tell us about that discussion, please? --- I had said to [the practitioner] that I - I was reluctant to even include these names because we didn't really know if they were good enough, essentially, to act on CLs behalf.  I said to him these are the ones that had come up first in the - basically in the Google search, and the conversation was along the lines of, ''Well, just because they come up at the top of the Google search doesn't mean that they're the best lawyers.''  And we referred to - [the practitioner] referred to a Perth practitioner who came at the top of the Google list, and he made a comment that that practitioner was not the best in Perth.

   All right.  What about discussions about any other names?  Did you have any discussions about the names of other attorneys? --- No.  The only other discussion I recall was about Mr Edelstone [sic] because I recall Richard saying, ''That's a Jewish name'', and that Jewish attorneys were quite prominent in the US.

   [54] ts 42-43, 12 October 2020.

8. It is also clear from the time sequence of what occurred on 26 July 2011 and from the nine relatively minor amendments to the First Opinion that were made between the First Opinion (as originally prepared by JR) and the First Opinion (as provided by the practitioner to CL) that the practitioner performed only very minor work on the First Opinion.  As indicated earlier, the First Opinion was emailed by JR from her home email address to her work email address at 10.28 am on 26 July 2011.  Both JR and the practitioner gave evidence that they went to Hakea Prison to confer with CL and provide him with the First Opinion later that morning, and that it generally takes between 30 and 40 minutes to get from the City to the prison.[55] Thus, the practitioner had no more than about an hour in which to review and amend the First Opinion, after he received it electronically from JR and before he and JR left to provide it to CL at Hakea Prison. Furthermore, the practitioner only made the nine relatively minor amendments to the First Opinion referred to at [22] above before he provided the document to CL.

   [55] ts 44, 12 October 2020 (JR) and ts 235, 14 October 2020 (practitioner).

9. The Timesheet that JR prepared at practitioner's request on 4 and 5 August 2011, which we relevantly set out at [26] above, in particular the 'Detail' for 23-24 July 2011, provides relatively contemporaneous documentary evidence that JR (and not the practitioner) entirely or substantially performed the work in relation to the First Opinion that is detailed in the First Itemised Account and in the Second Itemised Account for 20 July 2011. As JR said in evidence-in-chief, she was asked by the practitioner to provide in the Timesheet 'the best estimate of the actual time I had spent on those matters' and '[t]he hours [recorded in the Timesheet] were my hours … I would have calculated how much time I had spent working on each of … the things that I actually had done'.[56]  Furthermore, as JR specifically indicated in cross-examination, 'all of the seven dot points on 23/24 July [2011] [in the Timesheet] relate only and solely to what [she] did'.[57]  The seven 'dot points' describing the work that JR performed on 23-24 July 2011, as set out in the Timesheet, are identical to the seven bullet points set out in the First Itemised Account for 20 July 2011, and are identical to the seven bullet points set out in the Second Itemised Account for 20 July 2011, other than the minor change in the final bullet point from 'Compile opinion' to 'Compile above research and construct opinion'.

   [56] ts 34, 12 October 2020.  The practitioner gave consistent evidence in cross-examination with JR's evidence in this respect:

   [57] ts 103, 13 October 2020.

10. Furthermore, we do not accept the practitioner's evidence in relation to the work he said he performed and the time he said he spent working in relation to the First Opinion.  The practitioner gave evidence that the First Itemised Account and the Second Itemised Account are each '[t]ruthful'[58] and, in particular, that he carried out his own independent research in relation to the subject matter of the First Opinion and found the 'arrest affidavit [for RP] … [a]nd I printed that off and it gave me all the facts and the charges … and I used that as a good starting point',[59] and that 'I drafted my version of [the First Opinion]',[60] which he also described as 'a rough draft of my research',[61] that 'was very similar to this opinion [that is the First Opinion]'.[62]  For the reasons which follow, we do not accept the practitioner's evidence in relation to the work he said he performed and the time he said he spent working in relation to the First Opinion.

    [58] ts 174, 14 October 2020 (First Itemised Account) and ts 175, 14 October 2020 (Second Itemised Account).

    [59] ts 219, 14 October 2020.

    [60] ts 230, 14 October 2020.

    [61] ts 230, 14 October 2020.

    [62] ts 231, 14 October 2020.

11. As we said earlier, if the practitioner had carried out his own independent research and located RP's arrest affidavit, it is highly likely that he would have given the arrest affidavit to JR and discussed it with her when he instructed her to research and draft the First Opinion, and it is highly unlikely that he would have asked JR to email it to him when she found it through her own research.  Furthermore, the practitioner gave evidence in re-examination that '[w]hen I went to see [CL] at Hakea [Prison] on 21 July 2011, I had the arrest warrant [that is, affidavit] with me, and I highlighted and I made notes on that arrest warrant [that is, affidavit]'.[63]  The practitioner also gave evidence in re-examination that when he and JR returned to the Lawson Legal office on 26 July 2011, after conferring with CL and providing him with the First Opinion at Hakea Prison, to take KB's statement, 'I remember I had the arrest affidavit present when I was doing it because those were the facts in relation to the offences'.[64]  If the practitioner had in fact found RP's arrest affidavit through his own independent research, printed it off and highlighted and made notes on it, it is likely that the printed hardcopy with highlighting and notes would have been retained on the practitioner's hard copy file in relation to CL's matter.  However, there is no such document on the practitioner's file that he produced to the Committee when required to do so in 2015.[65]  We therefore find that the practitioner did not carry out independent research in relation to the subject matter of the First Opinion and find RP's arrest affidavit, but rather was provided with the arrest affidavit by JR, who had found it when conducting her research for the First Opinion.  It follows that we do not accept the practitioner's evidence that, on the basis of his independent research and in particular the arrest affidavit he said he found, he prepared his own independent rough draft of the First Opinion. 

    [63] ts 360, 15 October 2020.

    [64] ts 370, 15 October 2020.

    [65] The practitioner gave evidence that his electronic file in relation to CL's matter (and other matters) was lost as a result of a crypto virus in January 2015 (ts 281, 15 October 2020).  The Committee disputes whether such a crypto virus occurred.  It is unnecessary to resolve that question, because the practitioner gave evidence that he printed off and highlighted and annotated a hard copy of the arrest affidavit. 

12. The practitioner was questioned in cross-examination as to the time he said he spent working in relation to the First Opinion in terms of the work described in the bullet points under 'Detail' for 20 July 2011 in the itemised accounts.  He said that he spent 'two hours'[66] working on the first bullet point ('Research to identify the charges'), 'half an hour, maybe, 15, 20 minutes'[67] working on the second bullet point ('Identify client's culpability'), 'say an hour'[68] working on the third bullet point ('Research Florida laws (offences & penalties)'), 'half an hour, 45, maybe an hour, tops'[69] working on the fourth bullet point ('Research Extradition Act'), '[n]ot very long at all'[70] working on the fifth bullet point ('Research Extradition Treaty with USA'), and 'the bulk of the research', being 'hours and hours and hours' and indeed 'days on this, actually'[71] working on the sixth bullet point ('Locate relevantly qualified Florida defence lawyers').  It is instructive to set out the whole of the practitioner's evidence given in cross­examination in relation to the work he said he performed on the sixth bullet point:[72]

    [66] ts 222, 14 October 2020.

    [67] ts 222, 14 October 2020.

    [68] ts 223, 14 October 2020.

    [69] ts 223, 14 October 2020.

    [70] ts 224, 14 October 2020.

    [71] ts 224, 14 October 2020.

    [72] ts 224-230, 14 October 2020.

    Do you mean in relation to obtaining further names of potentially suitable defence attorneys in Florida? --- I think it was in relation to those defence attorneys.  That was the bulk of the research.

    The bulk of the research? --- I spent hours and hours and hours.

    How many hours? --- I spent days on this, actually, because if I may explain.  What I was searching for were Miami basically attorneys that could do this sort of work and I didn't know anybody over there and Mr CL will say he wanted to know the price that they were going to charge for the work, ''So I want you to get me the best attorney.''  He was selling his home, everything, so we could pay for it and that's where I really concentrated on that.  So I initially googled these defence lawyers.  I went to their websites and then from there I took these - each individual lawyer that I thought was appropriate and did a specific Google search on them to see what would come up in terms of work they've done.

    How long did it take you to do that work? --- It was an ongoing work.  I did it on the weekend, but a week.

    It took you a week? --- Well, I never finished it.  I just had to stop eventually, but I remember I worked on the weekend on it, I worked -every day I was - or bits of my times searching these defence lawyers.

    Estimating how much time you spent; how many hours? --- That's -that's difficult, because I did it in pieces and not in one hit.  So I would say could be 10, 12 hours all up, maybe even more.  I'm not really sure.

    So coming back to your response at [5a], your response document [that is, Exhibit 2, which is set out at [31] above]? --- Yes.

    The position was this, was it, that first of all [JR] gave you a list of defence attorneys? --- No.

    Just come back to your response, please? --- Yes.

    However, [JR] or:

    JR provided only a very limited list of relevantly qualified Florida defence attorneys.

    ? --- Yes.

    Continuing:

    Subsequently, therefore, on 23 to 24 July the [practitioner] spent the time -

    etcetera.  So are you saying she provided a list of attorneys before 23 July? --- I can't remember.  She - we worked on it together, three of us.

    Go back to your response document, please.  This is what you say, [5a]:

    JR provided only a very limited list of relevant qualified Florida defence attorneys.

    When do you say she did that? --- I can't recall.

    Well, it was before 23 July on the basis of this document, your response, isn't it? --- I worked on this on the 20th.

    Just listen to the question.  We're talking about what [JR] provided to you? --- Yes.  I can't - I can't recall.

    Listen to the question, please.  Read what you've written there in the response document.  You say there to the [T]ribunal that [JR] provided only a very limited list before 23 July.  You agree with that; that's what you're telling the [T]ribunal? --- She may have.

    That's what you've said, Mr Lawson, isn't it?

    EYERS, MR:   Actually, it's not.  It's a passing of the content of that.  In other words, the interpolation of prior to 23 and 24 July.  It's not time specific if we actually look at this.

    [JUDGE PARRY]:   Well, at the moment I think counsel is simply asking whether Mr Lawson had said what's written in paragraph [5a].  That's what I understood was the question.

    EYERS, MR:   Can I just respectfully suggest it might be fairer to just put to Mr Lawson what's there and ask what he meant by it, rather than - - -

    [JUDGE PARRY]:   Well, he has got it in front of him.

    EYERS, MR:   Yes, exactly.  But my learned friend gave her own interpretation of that.  In other words, she imported ''prior to 23 and 24 July'' in relation to a limited list of defence attorneys.  I just think it's important to focus upon what's there rather than perhaps inadvertently giving it a context which it doesn't bear on its face.

    [JUDGE PARRY]:   I think it was a reasonable question based on what's there, but let's start again.

    EYERS, MR:   Thank you.

    [JUDGE PARRY]:   Can you please ask a question. 

    CAHILL, MS:   Paragraph [5a], Mr Lawson? --- Yes.  Yes.

    So it is accepted that [JR] compiled a draft opinion on your instruction and under your supervision? --- Yes.  Yes.

    However, you say:

    [JR] provided only a very limited list of relevant qualified Florida defence attorneys.

    ? --- Yes.

    Is that true or not? --- Yes. 

    So she provided a list to you that had only a limited number of names?  --- Yes.

    How many? --- I can't - I can't recall.  There weren't too many. 

    Approximately? --- Three, four, maybe.

    And then you say:

    Subsequently -

    so you mean after she gave you that very limited list -

    therefore, because of that on 23 to 24 July - - -

    ? --- Yes.

    You spent time completing research for and writing the first opinion; see that? --- Yes.  Yes, I do.

    Therefore, she must have given you the list of defence lawyers, the three or four, on it before 23 or 24 July;  is that the case? --- Well, according to this - I wouldn't - I wouldn't argue with that, because it said ''subsequently''.  Yes.

    It's your document, Mr Lawson? --- But I can't recall, ma'am. 

    Mr Lawson, this is your document? --- Yes.

    This is your case? --- Right.

    Is it true or not? --- Well, I would accept that if I wrote that in there.

    Is it true or not? --- I can't remember.  I can't remember.

    Did you remember at the time that you wrote this? --- Probably. You're asking me now how many attorneys that she gave me before the 23rd or 24th. 

    Mr Lawson, I'm asking you about when you received the list from her, whether that was before the 23rd;  yes or no? --- It could have been, yes.

    You wrote this response [that is, Exhibit 2] last month, Mr Lawson? --- Yes.

    Did you remember then? --- Well, I accept it was before the 23rd then.

    Well, is that your case?  Is that what you say happened? --- I would accept that, yes.  I know I got a list from her.

    Are you accepting that that is what you say happened? --- This happened, but the research was not complete.  I can put it to you like that. 

    So you after that started doing research on Florida attorneys? --- No, I continued.

    So you had been doing it at the same time she had? --- Yes.  I started on the 20th.

    Why didn't you put that in [5a]? --- I don't know, ma'am.

    Is it because it's not true, Mr Lawson? --- No. 

    Is it because you didn't actually do any research on Florida lawyers? --- That was the bulk of my research.

    Is it because this is actually untrue at [5a]? --- No, it's not untrue.

    Now, if you go to page 159 [of Exhibit 3], and this is the draft of the opinion provided by [JR] to you;  see that? --- Yes.

    And you go to page 161? --- Yes.

    And at 5.3.9 there's three lawyers nominated? --- That's right.

    And if we go back to page 3.  3? --- 3.  Yes.

    This is the version of the opinion contained on your firm's file? --- Yes.

    And you accept that this is the version that you amended before you gave it to [CL]? --- On page 5?

    3.  3 through to 16? --- Mmm.

    Do you mean yes? --- Yes.

    And we go to page 5? --- Yes.

    5.3.9? --- Yes.

    Using the same terms as page 161? --- Yes.

    You didn't do any research on Florida lawyers, Mr Lawson.  You just used what [JR] gave you? --- No.  Those lawyers - I selected those lawyers.  [JR] was in consultation with me along with my practice manager.

    That's not true, is it? --- It is true.  I spent the bulk of my work - those three - I even called their firms.

    You don't reflect that time in your itemisation, do you? --- No, because it was way - it was too excessive, way too excessive.

    The time making phone calls? --- No, no, no, no, no.  I never got through to them.  I talked to their secretaries and they - they couldn't give me a quote on how much it would cost.  They didn't have the brief.  They didn't know - they - they just, ''Sorry, it's not the way do things,'' but I tried with these three specifically, because that's what the client wanted.

    You contacted these three? --- I phoned their firms, yes.  I remember I worked at night because of the time different, but I never got through - - -

    But you never actually spoke to any of them? ---Not to the lawyers, no.

    Because? --- Because I got the legal secretaries and they - and I wanted to get a quote on what it would cost and they said, ''I'm sorry, but we're not prepared to give you a quote.''  They wouldn't give me the answer, so I couldn't tell CL what these lawyers would cost in terms - that's what he wanted to know. 

    Is that true, Mr Lawson? --- Yes.  Yes.

    Couldn't you have just said to these secretaries, ''Well, look, I actually need to speak to the lawyer, because I'm here in Australia and we don't know anything about this system''? --- That's exactly what I - - -

    ''And I need to just get a rough idea about the approximate costs.''  Did you say anything like that? --- I said, ''I'm calling from Australia and I would like to know what a matter like this would cost.''  And then none of them were very forthcoming.  I said, ''I actually wanted to speak to the lawyer.  What's the (indistinct) and all the rest (indistinct)  I have no documentation and can't give you any quotes.'' 

    Come back to page 52, please, entry for 20 July, the last dot point.  You say that you constructed - sorry, you say ''compile opinion''.  And by that do you mean that you drafted it? --- Yes.  That's - yes.  That's correct. 

    But you didn't? --- I did. 

1. The seventh relevant matter is that the practitioner's dishonesty involved  an attempt to obtain a personal benefit at the expense of his client, to whom he owed fiduciary duties to pursue his client's interests at the expense of his own.

2. The eighth relevant matter is that the practitioner has shown no remorse for his behaviour. 

3. As was noted by the Court in Khosa, remorse is mitigating and the absence of remorse is not aggravating.  However, the absence of remorse is relevant in determining the appropriate penalty. 

4. We note also, as reiterated in Khosa, that the practitioner was entitled to contest the matter before the Tribunal and to require the applicant to prove that he was guilty of professional misconduct.  However, in doing so, the practitioner is not entitled to any mitigation which would flow from a plea of guilty and the consequential indication of remorse which that would demonstrate.

5. The ninth relevant matter is that the practitioner appears to lack any insight into the error of his behaviour.  None was indicated by the practitioner in his defence of the allegations.  Again, we reiterate that he had a right to take that course of action but the corollary of it is that nothing indicating insight was put to the previously constituted Tribunal.

6. Equally, the practitioner's decision to refrain from making any submissions as to penalty means that there is nothing before us that indicates he has any such insight.

7. The tenth relevant matter is that, as noted by the applicant in its submissions, the practitioner cannot be said to have a clean record in relation to disciplinary action for dishonesty.  In VR 104 of 2015, orders were made on 29 August 2016 which provided for the suspension of the practitioner's local practising certificate for a period of six months for misconduct, which included the sending of an email to the brother of a client which was false and misleading as well as intimidating and threatening. 

8. Again, the Tribunal proceeds on the basis not that the prior disciplinary action amounts to an aggravating factor but, rather, that there can be no mitigation for the practitioner on the basis of a clean record.

9. The applicant's submissions also note that the conduct the subject of Ground 7 occurred on 28 May 2017, only a couple of months after that period of suspension had concluded.  As noted above, in Khosa the Court held that suspension is a suitable penalty in circumstances where the Tribunal is satisfied that at its conclusion the practitioner will be fit to practise.  Unfortunately, that did not eventuate in this case.  In our view this fortifies our conclusion that striking off is the appropriate sanction.

10. Taking all of those matters into account, we are satisfied that the appropriate penalty is for an order that the Tribunal make and transmit a report on the finding to the Full Bench of the Supreme Court pursuant to s 438(2)(a) of the LP Act.

11. In our view that follows from the conclusion that the practitioner has demonstrated that he is unfit for practise by engaging in dishonest behaviour over a lengthy period of time and across several different fora where the dishonest behaviour was designed to achieve a personal benefit at the expense of his client.  So much, in our view, would be sufficient to warrant a recommendation that he be struck off.  But as noted above, he also involved his wife in his dishonesty which involved the deliberate smearing of a young practitioner's reputation in order to further pursue his dishonest ambition.

12. In our view, all of that, together with the failure of the practitioner to appreciate the impropriety of his conduct or express any form of remorse for it, requires a conclusion that he, 'lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice [and] … is permanently or indefinitely unfit to practise'.[210]

    [210] Khosa at [192].

13. Accordingly, in our view striking off rather than suspension is the appropriate response.

14. Finally on the question of penalty, the Tribunal notes that there appears to be no need for specific or personal deterrence due to the voluntary cessation of practise by the practitioner.  However, should it be necessary to do so, we make clear our view that the behaviour in question must be condemned in a manner which addresses the need for general deterrence, which in our view requires the penalty described above.

Costs

1. As noted above, the applicant seeks an order that the practitioner pay the applicant's costs of the proceeding fixed in the amount of $71,890.40.

2. The starting point in such an application is s 87 of the SAT Act, which states as follows:

   (1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

   (2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.

3. As noted in Questdale,[211] the effect of s 87(1) of the SAT Act is that each party in proceedings before the Tribunal is to bear its own costs, unless the Tribunal otherwise orders.

   [211] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [46] (per Murphy JA, Corboy J agreeing) and [51].

4. In Roberman[212] the Tribunal said that although the award of costs is a matter of discretion to be exercised in the circumstances of each case, where a regulatory body is successful in bringing a complaint of misconduct which justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body.[213]  That is because, as the Tribunal said, such regulatory bodies:

   perform a function which promotes the public interest, and usually with limited resources.  The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented.  It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application.[214]

   [212] Medical Board of Western Australian and Roberman [2005] WASAT 81 (S) (Roberman).

   [213] Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S) (Quinlivan) at [10].

   [214] Roberman at [30].

5. As was noted in Quinlivan, the observations of the Tribunal in Roberman have been cited with approval by the Court of Appeal several times.  Most recently, in Young[215] Buss P, (with whom Quinlan CJ and Beech JA relevantly agreed)[216] repeated the relevant passages of the Tribunal in Roberman and the Court of Appeal in Quinlivan and said:

   The proper exercise of the Tribunal's discretionary power under s 87(2) of the SAT Act to make an award of costs depends, of course, upon all the circumstances of the particular case. Ordinarily, as a matter of fact, the Tribunal will make an award of costs in favour of a regulatory body which is successful in bringing a complaint of misconduct in professional disciplinary proceedings. However, in each case, the discretionary power to make an award of costs must be exercised having regard to the circumstances of the particular case.

   [215] Young v Legal Profession Complaints Committee [2022] WASCA 52 (Young) at [261].

   [216] Young at [1].

6. In this case, the applicant submits that it would be 'fair and reasonable for the practitioner to pay the applicant's costs in terms of the disbursements it has incurred in prosecuting the application' in light of 'the findings made by the Tribunal concerning the practitioner's conduct and the public interest in pursuing that conduct by way of disciplinary proceedings'.

7. The respondent's submissions as to costs go no further than noting that 'the starting point in any consideration of costs is that each party bears their own' and submitting that 'this ought to be the determination of the Tribunal in this case'.

8. With respect, given the authorities set out above, that submission is unhelpful. The Tribunal accepts and proceeds on the basis that the starting point for it is the statutory presumption in s 87(1) of the SAT Act. Nonetheless, it is well accepted that there is public interest in the bodies such as the applicant bringing an action such as this against practitioners. There is also a well accepted expectation by bodies such as the applicant that if the allegations are made out, the 'offending professional will meet or at least contribute to the costs incurred in bringing the application.' Such well accepted propositions take the matter further than the starting point and cannot be dismissed or ignored by simply referring back to the starting point.

9. In our view, there was plainly a public interest in the applicant investigating the complaints and prosecuting the case against the practitioner.  We also endorse the principles first set down in Roberman and, on that basis, find that there is a 'strong case for the exercise of [the Tribunal's] discretion in favour of [the applicant]'.

10. In our view, it is appropriate that the practitioner contribute to the costs incurred in bringing the application.

11. In that regard, we note that the applicant:

    (a)does not seek any costs in respect of its own legal officer's time in relation to the matter;

    (b)does not seek recovery of senior counsel's fees for her work in relation to the substituted Annexure A filed on 3 August 2020;

    (c)does not seek recovery of fees of junior counsel for her work in relation to the closing submissions; and

    (d)seeks only its disbursements by way of payments made to senior counsel, as well as its costs in relation to the application filing fee and the costs of transcripts for the hearing.

12. We accept that the costs associated with obtaining the transcript (being $8,921.40) were necessary for the preparation of the applicant's written closing submissions.

13. We also accept that the costs claimed in relation to senior counsel's fees are reasonable and an order should be made that the practitioner pay them.

14. In in de Braekt[217] the Tribunal noted that its usual practice is:

    to determine the amount of work which was reasonable and necessary to property prepare and present the case and then to apply, as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant or daily rates specified in [the relevant Determination].

    [217] Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) (in de Braekt) at [53].

15. In this case the applicant has prepared a table setting out the relevant disbursements and attached senior counsel's invoices.

16. In our view, there is nothing in those invoices which suggests the need to do anything other than accept them. 

17. Senior counsel's fees of $68,656.50 are based on an hourly rate of $490 (inclusive of GST), which is lower than the relevant maximum hourly rate for senior counsel in the relevant costs Determinations.[218]

    [218] Legal Profession (State Administrative Tribunal) Determination 2018 and Legal Profession (State Administrative Tribunal) Determination 2020.  The Tribunal has previously indicated that while those Determinations, strictly speaking, only apply to the regulation of fees between the lawyer and client in the absence of a written costs agreement, they provide a useful guide to rates which might be allowed in such matters.  inde Braekt at [53]; Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S) (Chang) at [126].

18. Further, we are of the view that the time recorded for the preparation of and presentation of the applicant's case was reasonable.  Indeed, we agree with the handwritten note of an officer of the applicant, marked on the largest of senior counsel's invoices in support of the recommendation that the invoice be paid, that the invoice records a 'very reasonable time involved'.  In circumstances where the hearing ran for four days and there were, in addition, written closing submissions as well as the attendance at a final hearing for which preparation was required, we are of the view that the costs incurred are very reasonable indeed.

19. Accordingly, an order should be made for the payment by the practitioner of the disbursements claimed by the applicant in the sum of $71,890.40.

20. In so finding we note the submissions made on behalf of the practitioner that he is impecunious and that any order as to costs would be unduly harsh or onerous.

21. In our view the fact that an order as to costs would cause the practitioner to suffer financial hardship is not a reason to refrain from making such an order.  That appears to be the position taken by other tribunals[219] and is consistent with the principle that costs are awarded to compensate rather than to punish.[220]  Although previous decisions of this Tribunal do not appear to have always taken a consistent position in this regard,[221] in our view, the preceding matters support the approach taken by this Tribunal in Alizadeh, albeit that the follow passage, and particularly the reference to the ‘general rule’, must be read in light of the Court of Appeal’s subsequent decision in Questdale:

    It is inevitable that the burden of such an order [i.e. an order that the practitioner pay the costs of the vocational regulator] will result in some degree of hardship to a respondent, unless, as may sometimes be the case, the burden falls on an insurer. That is not a reason to depart from the general rule. The liability for costs forms a significant part of the disincentive to conduct of this nature, and of the demonstration of the seriousness of the conduct …

Application for compensation order

[219] Mihelcic v Toll Tasmania [2007] VCAT 1312 at [33]; Fasham Johnson Pty Ltd v Ware and Saunders [2004] VCAT 1708 at [14] ­ [15]; Fletcher v The Salvation Army Australia [2006] VCAT 740 at [15]; Bristol Custodians Ltd v Chief Commissioner of State Revenue (No 3) [2013] NSWADT 171 at [23].

[220] Questdate at [51].

[221] See, for example, the different approaches in Medical Board of Australia and Alizadeh [2007] WASAT 69 at [36] and Legal Profession Complaints Committee and Wroughton [2013] WASAT 191 [S] at [22].

1. As noted above, JR has applied for a compensation order pursuant to s 448 of the LP Act. That section provides, relevantly, as follows:

   (1)A compensation order is an order made to compensate a person (the aggrieved person) for loss suffered because of conduct of an Australian legal practitioner that is the subject of a complaint by that person or is investigated by the Complaints Committee of its own initiative.

   (2)A compensation order consists of one or more of the following —

   (a)…;

   (b)…;

   (c)an order that the practitioner pay to the aggrieved person, by way of monetary compensation for the loss, a specified amount.

   …

   (5)A compensation order under subsection (2)(c) requiring payment of an amount exceeding —

   (a)$25 000, except where paragraph (b) applies; or

   (b)$10 000, where the order is made by the Complaints Committee,

   is not to be made unless the aggrieved person and the practitioner both consent to the order.

2. From the above, it is plain that a compensation order can only be made by the Tribunal 'to compensate a person … for loss suffered because of conduct of an Australian legal practitioner' where such conduct is the subject of investigation by the applicant.

3. So much appears to be reiterated in the terms of s 449(1)(a) of the LP Act. That subsection as a whole provides as follows:

   Unless the aggrieved person and the Australian legal practitioner agree, a compensation order is not to be made unless the … Tribunal is satisfied —

   (a)that the aggrieved person has suffered loss because of the conduct concerned; and

   (b)that it is in the interests of justice that the order be made.[222]

   [222] Underlining added.

4. In our view, the 'conduct concerned' is conduct that is the subject of a complaint and/or investigation by the applicant.

5. In this case, the loss relied upon by JR is said to be 'her period of unemployment'.[223]

   [223] Letter dated 25 January 2022 to the Tribunal from Bennett + Co on behalf of JR.

6. The letter in support of the application for a compensation order states that JR ceased employment with the practitioner on or about 15 June 2012 and did not recommence working as a solicitor until January 2013.  It is said that she was 'uneasy at taking further employment' due, apparently, to her fear of the practitioner.

7. While we are sympathetic to the plight of JR for what she has suffered through the false claims about her made by the practitioner, following the termination of her employment, during the applicant's investigation of the practitioner and in her cross­examination before the Tribunal, we are of the view that the Tribunal lacks jurisdiction to make a compensation order in this case.

8. That is because, as previously found by the Tribunal in the Primary Reasons, the loss of her employment was due to the financial circumstances of Lawson Legal and not because of any conduct of the practitioner that was the subject of investigation by the applicant.

9. The conduct of the practitioner that was the subject of investigation by the applicant was his dishonesty.  That dishonesty began in relation to the costs claimed by the practitioner against his client CL and included dishonest statements about the circumstances in which JR's employment was terminated. 

10. But any loss suffered by JR as claimed in her solicitor's letter is due to the termination of her employment which occurred due to the financial circumstances in which Lawson Legal found itself at the time.  The loss as claimed was not due to the practitioner's dishonesty, which came after the termination of her employment.  Equally, the extent to which she felt uneasy about regaining employment due to any fear of the practitioner is not loss caused by the action of the practitioner that was the subject of investigation by the applicant.

11. The practitioner's behaviour towards JR might otherwise be said to warrant sanction by way of a payment from the practitioner to JR.  However, on the basis of the material put to the Tribunal on behalf of JR, we are not satisfied that the relevant statutory criteria are engaged and must therefore dismiss the application.

Orders

1. Accordingly, the orders the Tribunal will make are as follows:

   1.Pursuant to s 438(2)(a) and s 438(4)(a) and (b) of the Legal Profession Act 2008 (WA), the Tribunal is to make and transmit a report on the findings of the Tribunal in these proceedings to the Supreme Court (Full Bench) with both a record of the evidence taken at the hearing and a recommendation that the name of the respondent be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA);

   2.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the practitioner is to pay the applicant's costs of the proceeding fixed in the amount of $71,890.40, such costs to be paid to the Legal Practice Board of Western Australia (Board) within 30 days or as otherwise agreed between the practitioner and the Board; and

   3.The application for compensation pursuant to s 448 of the Legal Profession Act 2008 (WA) is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

RM
Associate to Deputy President Judge Jackson

23 JUNE 2022

'Now, you asked [JR] to write down the time she has spent on the CL matter, didn't you? --- Yes.

And you asked her to write down everything that was done on the matter, whether by her or by you, on the days that she was involved in it? --- By her, yes.
Just by her? --- Just by her.' (ts 204, 14 October 2020)
JR could not recall the origin of the dollar amounts recorded on the Timesheet and said 'I could only assume that [the practitioner] provided me with that figure' (ts 34, 12 October 2020).

'Now, you asked [JR] to write down the time she has spent on the CL matter, didn't you? --- Yes.
And you asked her to write down everything that was done on the matter, whether by her or by you, on the days that she was involved in it? --- By her, yes.
Just by her? --- Just by her.' (ts 204, 14 October 2020).

JR could not recall the origin of the dollar amounts recorded on the Timesheet and said 'I could only assume that [the practitioner] provided me with that figure' (ts 34, 12 October 2020).