LEGAL PROFESSION COMPLAINTS COMMITTEE and LOVE
[2011] WASAT 13
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and LOVE [2011] WASAT 13
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MR D R PARRY (SENIOR MEMBER)
MS M CONNOR (MEMBER)
HEARD: 23 DECEMBER 2010
DELIVERED : 2 FEBRUARY 2011
FILE NO/S: VR 164 of 2010
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
DEAN RICHARD LOVE
Respondent
Catchwords:
Professions - Legal practitioners - Consent orders resulting from mediation - Whether penalty in proposed consent orders adequate - Practice and procedure - Tribunal's procedures in relation to settlement of vocational disciplinary proceedings - Need to achieve objects of disciplinary proceedings
Legislation:
Legal Aid Commission Act 1976 WA, s 50A, s 50B, s 63A
Legal Profession Act 2008 (WA), s 437
State Administrative Tribunal Act 2004 (WA), s 11(4), s 54, s 55, s 56(1), s 56(2), s 60(2)
Result:
Modified orders made by consent
Category: A
Representation:
Counsel:
Applicant: Ms P Le Miere
Respondent: Mr M Hawkins
Solicitors:
Applicant: Law Complaints Officer
Respondent: MJ Hawkins
Case(s) referred to in decision(s):
Erujin Pty Ltd and Western Australia Planning Commission [2010] WASC 326
Giordino v Medical Board (1983-84) 36 SASR 83
Jemielita v Medical Board of Western Australia (unreported, SCWA) Library No 920584, 13 November 1992
Legal Practitioners Complaints Committee and Wiese [2007] WASAT 64
Legal Profession Complaints Committee and Sorensen [2009] WASAT 104
NSW Bar Association v Evatt (1968) 117 CLR 177
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
Re Maraj (a Legal Practitioner) (1995) 15 WAR 12
Zidermann v General Dental Council (1976) 1 WLR 330
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Following a mediation between the Legal Profession Complaints Committee and a solicitor, Mr Dean Richard Love, the parties reached agreement and lodged a minute of proposed consent orders with the Tribunal. A Tribunal constituted in accordance with s 437 of the Legal Profession Act 2008 (WA) reviewed the proposed orders, but considered that, having regard to the objectives of professional disciplinary proceedings, the orders were not appropriate for the conduct complained of.
After hearing oral submissions from the parties as to whether the proposed consent orders should be made, the Tribunal advised the parties that it considered that the fine proposed was inadequate, and suggested a figure which it thought more appropriate. Upon the practitioner indicating that he was prepared to consent to the greater penalty, the final orders were made by consent disposing of the complaints.
The issue for determination
Following mediation before a member of the Tribunal, the parties reached agreement as to a proposed outcome of certain allegations of unsatisfactory professional conduct which had been made by the Legal Profession Complaints Committee (LPCC) against a legal practitioner, Mr Dean Richard Love. For reasons which will be explained, it was necessary for a Tribunal constituted by three members in accordance with s 437 of the Legal Profession Act 2008 (WA) (LP Act) to consider whether the proposed consent orders were appropriate.
Upon review of the proposed orders, the fully constituted Tribunal formed a preliminary view that, on the basis of the facts recited, a heavier penalty than that proposed by the parties might be required in order to meet the proper objectives of the imposition of penalties in disciplinary proceedings. A hearing was therefore convened in order to hear submissions from the parties as to that issue.
After hearing from the parties, the Tribunal advised the parties that it was not prepared to make orders in the terms proposed. It indicated, however, what order it considered, having regard to all the circumstances, would properly meet the relevant objectives. Mr Love indicated his preparedness to consent to orders in the terms sought, and orders were made accordingly.
The Tribunal indicated that it would give written reasons for declining to accept the proposed consent orders, and these are those reasons.
Mediation of disciplinary proceedings
Since its formation in January 2005, the State Administrative Tribunal has encouraged the use of mediation, or some other forms of facilitative dispute resolution, in most of its areas of jurisdiction. Section 54 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) deals with mediation in the Tribunal.
Section 54(4) of the SAT Act identifies the purpose of mediation as achieving the resolution of matters by settlement between the parties. Section 54(6) provides that, unless the mediator directs otherwise, the mediation is to be held in private. Under s 54(8) where the mediator is a Tribunal member (as is invariably the case in mediations in the Tribunal), and a settlement appears to be reached at the mediation, the mediator may reduce the terms of settlement to writing and may make any orders necessary to give effect to the settlement.
Section 55 provides that anything said or done in the course of a mediation is not admissible at a later stage of the proceedings.
Pursuant to s 56(2) the Tribunal cannot make orders necessary to give effect to a settlement unless it is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. Pursuant to s 56(1) of the SAT Act, the Tribunal has a discretion as to whether or not to make orders necessary to give effect to a settlement: Erujin Pty Ltd and Western Australia Planning Commission [2010] WASC 326 (Erujin) at [37]; see also [42] - [47]. As Allanson J recently said in Erujin at [37]:
The tribunal is not bound to make the orders. Where an Act confers a power on a public officer or body by facultative words, as in s 56(1), it is a question of construction whether a discretion is conferred, and, if so, the nature of the considerations that the person in whom the power is confided may be entitled or required to take into account in the exercise of the discretion. This requires consideration of the particular provisions, the context, and the general scope and objects of the enactment conferring the panel; see Ward v Williams [1955] HCA 4; (1955) 92 CLR 496, 505, 506; Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140 [32]. See also Interpretation Act 1984 (WA) s 56.
A Tribunal member who acts as a mediator cannot take any further part in dealing with that proceedings after the mediation unless all parties agree to him or her doing so - s 54(10) SAT Act.
The introduction of mediation in the field of professional disciplinary proceedings raises certain issues arising from the context of mediation described in s 54 of the SAT Act, and in relation to the objectives of vocational disciplinary proceedings. Those issues include the proper fulfilment by the Tribunal of its role as a protector of the public interest in relation to vocational regulation, transparency and accountability of the process, and, in some vocational areas, the capacity of the mediator to make orders following settlement.
The public interest
The function of the Tribunal in imposing vocational regulatory sanctions is to protect the public, and not to punish a practitioner - NSW Bar Association v Evatt (1968) 117 CLR 177 at 183 184. The public needs to be protected from wrong doers within professions, and needs to be protected from seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements - see Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 201. As Owen J recognised in Jemielita v Medical Board of Western Australia (unreported, SCWA) Library No 920584, 13 November 1992 at 146 147, there is also a need to maintain the high standards and good reputation of the profession generally in the eyes of the community - Zidermann v General Dental Council (1976) 1 WLR 330 at 333. Of further consideration is the need to deter others who may be of a like mind to transgress in future - Giordino v Medical Board (1983-84) 36 SASR 83 at 87.
Section 56(2) of the SAT Act requires that any order that might be proposed by way of settlement of proceedings in the Tribunal must be an order which the Tribunal has power to make. It is possible, however, that the Tribunal may have power to make an order proposed by the parties, but the order does not fall within what the Tribunal considers to be an appropriate range of potential outcomes given the nature of the conduct admitted by the practitioner. In those circumstances, it would not meet the public interest for orders to be made by the Tribunal reflecting the agreement of the parties, having regard to 'the particular provisions, the context and the general scope and objects of the enactment conferring the power' - Erujin at [37].
Accordingly, the Tribunal has adopted the practice that, before issuing orders reflecting the agreement of the parties, the mediator will be required to satisfy himself or herself that the orders meet the public interest. In those vocations where it is open to the mediator to make the agreed orders without reference to a full Tribunal, the mediator will then make the orders by consent. Where the mediator has doubt as to whether the proposed orders meet the public interest, the usual procedure is for the mediator to refer the matter to the President with a view to the President constituting a three member Tribunal under s 11(4) of the SAT Act to consider whether the orders should be made. In that way the Tribunal can be assisted by the expertise of the relevantly qualified panel.
In the case of matters brought under the LP Act, s 437 requires, when exercising jurisdiction under the LP Act, a Tribunal constituted by a President or Deputy President, a senior legally qualified member, and a person who is not a legal practitioner but has knowledge and understanding of the interests of persons dealings with legal practitioners. Accordingly, where the LPCC and a practitioner reach agreement as to proposed consent orders during mediation in the Tribunal, the proposed consent orders are submitted to a Tribunal fully constituted under s 437 of the LP Act in order to consider whether the making of the orders is appropriate. The Tribunal usually determines whether to make the consent orders entirely on the documents pursuant to s 60(2) of the SAT Act. However, as in this case, the Tribunal may convene an oral hearing.
It is in this way that the Tribunal seeks to ensure that the public interest to be served by professional disciplinary proceedings is properly taken into account in matters that are resolved between the parties through facilitative dispute resolution conducted by members of the Tribunal.
Transparency and accountability
Maintenance of the high standards and good reputation of a profession requires that disciplinary proceedings not be conducted in private. It is important that the identity of practitioners subject to proceedings, the nature of the conduct giving rise to the proceedings, and the outcome of the proceedings is all open to public scrutiny. That openness is also necessary to achieve the required deterrent effect on other practitioners.
As already discussed, s 54 of the SAT Act provides that a mediation will generally be held in private, and s 55 protects evidence of anything said or done in the course of a mediation from admission into evidence at a hearing if the matter is not resolved at mediation. These are important attributes of the mediation process which enable the parties to fully and frankly discuss their positions and thus enhance the prospects of resolution without the necessity of the formal hearing. For that reason, mediations in the Tribunal are generally conducted in private.
However, in order to meet the objective of maintaining high professional standards and deterring others, the Tribunal requires that any orders which are made following mediation are made public by publication on the Tribunal's database. In addition, the Tribunal requires that the material facts relied upon by the vocational disciplinary body, and admitted by the practitioner, are included by way of recital in the consent orders which are subsequently published. Where there are mitigating factors brought to bear in relation to the proposed penalty, those factors should be included in the recital of material facts. The Tribunal has published Practice Note 10 entitled 'Consent Orders in Vocational Regulation Proceedings' dealing with this issue. Practice Note 10 annexes a form of consent orders following mediation in vocational matters reflecting the practice described above.
As a result of that process, the public, and the profession concerned, have access to information concerning the fact of complaint being made to the Tribunal, the identity of the practitioner concerned, the conduct complained of, and the penalty imposed. In that way, the objectives of professional disciplinary proceedings are met.
The Tribunal's procedures
Where the Tribunal is not satisfied as to the appropriateness of a proposed consent order, the practice of the Tribunal is to invite the parties to make submissions as to the adequacy or otherwise of the proposed orders. That may result in the Tribunal being persuaded that the orders are appropriate (for example see Legal Profession Complaints Committee and Sorensen [2009] WASAT 104 and Legal Practitioners Complaints Committee and Wiese [2007] WASAT 64) and on other occasions the Tribunal is not so persuaded. Where the Tribunal is not persuaded as to the appropriateness of the agreed penalties, the Tribunal may, as it did in this case, suggest what it considers to be an appropriate penalty to enable the parties to consider whether they would consent to orders in the terms suggested. Where the parties are not prepared to consent to orders in the terms suggested by the Tribunal, the Tribunal's procedure is that the matter will then be listed for hearing before a differently constituted Tribunal. The members of the Tribunal constituted to determine whether the consent orders should be made are treated as having participated in the mediation, so as to make it inappropriate for any of them to deal with the proceeding any further. Any admissions made by the practitioner in the context of the mediation and recorded in the proposed minute of consent orders are treated as having the protection of s 55 of the SAT Act on the grounds that they constitute things said or done in the course of the mediation.
The proposed consent orders
Following the mediation in this case, the parties signed a minute of consent orders which read as follows:
The Tribunal notes:
The Legal Profession Complaints Committee ('the Committee') alleged that there is proper cause for disciplinary action against the practitioner pursuant to s 438(1) of the Legal Profession Act 2008.
By a written agreement between the parties dated 22 October 2010 the parties agreed the terms upon which the proceedings could be settled.
The parties have agreed the following relevant facts:
1.At the meeting on 22 February 2007, Mr T (the client) instructed the practitioner to provide legal advice and representation in relation to certain matters including property and children's issues (the retainer), and executed a Legal Services Agreement with the practitioner on that date (the Legal Services Agreement).
2.As of on or about 11 July 2007 the client was in receipt of funding from Legal Aid WA (Legal Aid) for aspects of the retainer concerning children's issues but not in respect of the property issues.
3.By letter dated 23 July 2007, the practitioner among other things:
(a)Confirmed that the client had been partially successful in obtaining a grant of legal aid in relation to children's issues only.
(b)Confirmed in relation to property issues that any further action he took would be on a private fee paying basis.
(c)Noted the client was having some difficulty in funding his representation.
(d)Suggested that the client consider applying for private litigation funding through Impact Capital Ltd (the Lender) as a means of funding those aspects of the retainer which were not funded by Legal Aid.
4.By letter dated 25 July 2007, the practitioner relevantly advised the client:
'For commercial reasons, I must give priority to immediately paying work, rather than work where clients are deferring payment until a settlement. You will appreciate that, in addition to having limited time, there are expenses to be met in business and one simply cannot justify making a priority of anything other than immediately paying work'
5.The practitioner assisted the client to apply for funding from the Lender and by letter dated 17 September 2007 to the practitioner, the Lender advised that it had approved funding to the client in the amount of $21,200.
6.Relevantly it was a term of the loan contract that:
(a)An access fee of $1,200 would be charged;
(b)interest would be charged at the rate of 16.95%;
(c)there was an annual fee chargeable of $1,166;
(d)the likely interest for one year if no repayment was made on the principal sum would be $3,914.92; and
(e)assuming the loan continued for one year the outstanding amount payable would be $25,114.92.
7.The loan contract included the irrevocable instruction for execution by the client instructing the practitioner, among other things to advise the Lender immediately of any attempt by the client to terminate or alter the retainer with the practitioner.
8.Prior to the client executing the funding agreement the practitioner failed to:
a.advise the client he should obtain independent legal advice before entering into the loan contract.
b.adequately inform the client of the advantages to the practitioner of having the client enter into the loan contract.
c.inform the client that the practitioner's interest in having the client enter into the loan contract had the potential to conflict with those of the client.
9.On 25 September 2007, $20,000 of the entire loan proceeds of $21,200 was paid directly into the practitioner's trust account on behalf of the client. The remainder of the loan proceeds were retained by the Lender as fees.
10.In January 2008, the client contacted Legal Aid to request that his grant of aid for children's issues be transferred to another legal practitioner.
11.By email dated 28 February 2008, Legal Aid notified the practitioner that it had approved the client's request that the grant of Legal Aid be transferred to another practitioner.
12.By email dated 28 February 2008, the practitioner notified Legal Aid that the client had been approved for litigation funding by the Lender and further opined that the client;
a.had capacity to fund his matter privately; and
b.therefore should not qualify for Legal Aid.
13.On 10 March 2008 Mr Gore the client's new solicitor wrote to the practitioner on behalf of the client confirming he was now acting in the Family Court proceedings which were listed for hearing on 18 March 2008 and requesting the practitioner make the client's file available for collection.
14.The practitioner on receipt of the email from Legal Aid on 28 February 2008 did not seek clarification from the client as to the position of his retainer with respect to the matters not the subject of the grant of legal aid and continued to work on his matter thereby incurring further legal fees.
15.By letter dated 10 March 2008, the client formally notified the practitioner that he had terminated the retainer with the practitioner and requested that all files be transferred to Mr Gore immediately.
16.By e-mail dated 10 March 2008, the practitioner notified Mr Gore that:
a.the client's property issues were privately funded by the Lender;
b.the practitioner had contacted Legal Aid to find out why the client had received further Legal Aid funding; and
c.the practitioner intended to appear at the hearing on 18 March 2008 pursuant to previous instructions.
17.The practitioner forwarded a copy of his letter to Mr Gore dated 10 March 2008 to Legal Aid by email dated 10 March 2008, and opined to Legal Aid that:
a.the client had not been "entirely forthcoming" with Legal Aid about his capacity to fund legal proceedings;
b.the client did not qualify for Legal Aid funding on financial grounds;
c.there was nothing further to be done on behalf of the client in the children's matter;
d.the practitioner was in pre-action negotiations with the client's former wife in the property matter; and
e.suggested that the decision to grant aid be reviewed.
18.Further to the request for further information from Legal Aid by email dated 11 March 2008, the practitioner opined to Legal Aid that:
a.no further legal work was required with regard to the children's matter;
b.the client was 'constantly making claims of contravention' by his former wife and that in the future the client would be likely to continue to make repeated claims of contravention
c.Legal Aid should not continue to fund the client's repeated contravention applications;
d.the practitioner 'would prefer that Legal Aid not interfere'; and
e.given that the client had private litigation funding, he should be disqualified for Legal Aid funding.
19.Further to the request for further information from Legal Aid by email dated 12 March 2008, the practitioner replied that among other things:
a.although the funding was approved for matrimonial property issues, the property and children's issues were "interwoven" and the funds had been used for both purposes; and
b.the client had missed an appointment with the Independent Children's Lawyer which was partly responsible for the delay in obtaining a Single Court Expert's Report but did not say that the reason the client missed the appointment was because the client had not been informed of it by the practitioner's office. The practitioner asserts he provided the information to Legal Aid in explanation for the work that had been done pursuant to a grant of aid and not in an attempt to persuade Legal Aid to withdraw the grant of aid to the new solicitor.
20.By letter to the client dated 12 March 2008 the practitioner advised the client that he had been obliged to inform Legal Aid of the client's access to private litigation funding but did not provide the client with copies of any of his correspondence with Legal Aid.
21.By a second letter to the client dated 12 March 2008 the practitioner advised the client that he was unable to release any documentation to the client's new solicitor 'until all obligations to Impact Capital Ltd have been discharged'.
22.By email to Legal Aid dated 29 March 2008, the practitioner relevantly informed Legal Aid that he needed 'to know whether Legal Aid is still intending to fund his Family Court proceedings' before returning the client's file.
23.By email to the Lender dated 29 March 2008, the practitioner informed the Lender that among other things the client 'may cease my instructions soon'.
24.By reply on the same date, the Lender informed the practitioner that upon return of the remaining funds, he had no further obligations to the Lender.
25.Under cover of a letter dated 9 April 2008, the practitioner returned the client's file to him and on 14 April 2008 returned the remaining funds (being $3,978.07) to the Lender.
26.At all material times after receiving the email from Mr Gore dated 10 March 2008 referred to above, the practitioner knew or should have known that:
a.the client had terminated the retainer; and
b.he was no longer authorised to undertake legal work pursuant to the Legal Services Agreement.
27.Notwithstanding the matters referred to above, the practitioner:
a.continued to undertake legal work purportedly on behalf of the client in the absence of any instructions; and
b.invoiced the client in the amount of approximately $1,000 for professional fees and office costs purportedly arising from such work, which sum included charges for corresponding with Legal Aid.
28.The practitioner's letters to Legal Aid dated 28 February 2008, 4 March 2008, 10 March 2008, 11 March 2008, 12 March 2008 and 29 March 2008 improperly provided confidential information to Legal Aid without the client's instructions and were detrimental to the client's interests.
29.Between 28 February 2008 and 8 April 2009 the practitioner breached his obligation to promptly hand over to the client or the new solicitor all papers and property of the client.
The Tribunal orders:
Being satisfied by reason of the practitioner's admission that proper cause exists for disciplinary action against the practitioner, and in order to give effect to the agreed terms of settlement of the proceedings, it is on 25 November 2010 ordered pursuant to s 56(1) of the State Administrative Tribunal Act 2004 (WA) that:
1.Dean Richard Love (the practitioner) between on or about 23 July 2007 and on or about 8 April 2008 engaged in unsatisfactory professional conduct in the course of acting on behalf of Mr D J T (the client) with respect to family law matters (the retainer) in that he did not treat the client fairly, in good faith and protect the client's interests by:
(a)failing to advise the client he should obtain independent legal advice before entering in to a private litigation funding agreement with Impact Capital Ltd (the funding agreement).
(b)failing to adequately inform the client of his personal interest in having the client enter into the funding agreement which had the potential to conflict with those of the client.
(c)charging the client for professional fees for work done after the client had terminated the retainer.
(d)failing to return client documents to the client or his new solicitor as instructed in a timely manner.
(e)advocating in correspondence with Legal Aid WA for the client's expanded grant of legal aid (which was made to a new solicitor) to be withdrawn.
2.The practitioner pay a fine to the Legal Practice Board in the sum of $4,000.
3.Refund fees of $1,000 to the client by providing a cheque in that sum to the Applicant, made payable to the client within 28 days.
4.The practitioner pay the applicant's costs fixed in the sum of $2,000
5.The amounts specified in orders 2 and 4 are to be paid to the Legal Practice Board by the practitioner within 28 days or as agreed by the Legal Practice Board.
The Tribunal's concerns
The admitted allegation of unsatisfactory professional conduct was made up of a number of discrete acts or omissions by the practitioner, being those set out in subparagraphs (a) to (e) of Order 1 of the proposed orders. Of particular concern to the Tribunal were the matters recited in paragraphs (a), (b), and (e) which involved the practitioner placing his own interests ahead of the interest of his client to the potential financial benefit of the practitioner. The extract of the practitioner's letter of 25 July 2007 set out in para 4 of the agreed facts recited in the minute gave force to that concern.
Furthermore, the Tribunal was particularly concerned that the correspondence between the practitioner and Legal Aid WA appeared to be designed to damage the client's interests, on the face of it, as a reaction to the client's change of solicitor.
In relation to the Tribunal's concern that the practitioner preferred his own interests to those of the client, Mr Love advised the Tribunal during the hearing that he had, in fact, explained to the client the advantages to the practitioner in the event that funding was obtained and advised the client of the financial consequences of entering into the funding arrangement. Furthermore, Mr Love indicated that he recommended to the client that the client consult his own accountant or financial advisor, but he accepted that he should have advised the client to obtain independent legal advice on the proposed funding arrangements.
The practitioner sought to justify his correspondence with Legal Aid concerning termination of the client's grant of legal aid on the basis of his obligations as a legal aid panel solicitor and pursuant to the requirements of the Legal Aid Commission Act 1976 (WA), in particular s 50A, s 50B and s 63A. In particular, Mr Love suggested that he considered himself obliged to report the fact that his client had been able to fund representation in relation to property matters through the litigation funding arrangement.
In response to a suggestion from the Tribunal that, on the face of the agreed facts, it appeared as though Mr Love had, on learning of the client's termination of his retainer, set out to cause damage to the client, Mr Love said that he was concerned that the client would not give proper attention to resolving the property issues, and would be exposed to an increasing liability under the litigation funding agreement. He produced a letter which he wrote to the client in November 2008, almost nine months after his instructions were terminated, alerting the client to the need to resolve his property issues. Mr Love relied on that letter as indicating that he had the client's interests at heart. Mr Love also asserted that there was no operative grant of legal aid in his favour in the early part of 2008, contrary to the position at least implied on the agreed facts set out in the minute of proposed orders.
None of the explanations proffered by the practitioner justify, in our view, the communications by the practitioner to Legal Aid in March 2008. If, as the practitioner contends, he was not in possession of any operative grant of legal aid, and had not been since, as he asserted, July 2007, then it is difficult to see how any obligation to notify Legal Aid of the client's change of circumstances could arise. In any event, the information as to the litigation funding obtained by the client had been in Mr Love's possession since at least September 2007. There had apparently been ongoing discussions with Legal Aid concerning funding for an ADR conference in relation to the client's children during that time, but the advice by Mr Love to Legal Aid did not occur until after receipt of notice that the client proposed terminating Mr Love's instructions. The letter by Mr Love to the client in November 2008 expressing concern as to the client's need to complete the property matter says little about Mr Love's frame of mind when he corresponded with Legal Aid some eight months earlier.
Having heard from Mr Love, the Tribunal remained concerned that, despite his denial, Mr Love appeared to have pursued a course of action designed to cause detriment to his client.
Counsel for Mr Love advised that the proposed fine of $4,000, the refund of fees of $1,000 and the payment of costs of $2,000 would result in significant hardship to the practitioner. He advised that, as a result of these complaints, Mr Love's standing as a Legal Aid panel solicitor had been suspended pending the outcome of the proceedings, and that Mr Love had been forced to wind up his practice and seek employment elsewhere. As a result of ongoing liabilities associated with his practice, however, he had recently commenced re-establishment of the practice. Counsel submitted that the financial burden of the penalties would, in those circumstances, amount to a significant penalty.
The appropriate penalty
The Tribunal agrees that the conduct identified in para 1 of the proposed orders, in the context of the facts as recited in the proposed orders, warrants a fine rather than any of the more drastic penalties available in relation to unsatisfactory professional conduct. The conduct complained of involved, however, five separate acts or omissions. Those acts or omissions involved the practitioner failing to serve the client's interests. We accept that Mr Love did take steps designed to ensure that the client understood the consequences of the private litigation funding, but, as the practitioner acknowledged, those steps fell short of steps required to deal with the conflict between the practitioner's own interests and the interests of the client.
We remain particularly concerned as to the practitioner's communication with Legal Aid directed to having the client's expanded grant of legal aid withdrawn. We were not satisfied with the practitioner's explanation for that conduct.
Given the nature of the conduct, and the separate acts or omissions which the practitioner accepts as unsatisfactory professional conduct, we considered that a fine of $4,000, against a possible maximum fine of $25,000 provided for under the LP Act, was inadequate.
The personal circumstances of the practitioner, and the fact that the practitioner has already suffered detriment as a result of the conduct, does not, in our view, provide a proper basis for a reduction of the fine to a level which we consider to be below the proper range of penalties. It is well established that the maintenance of the standards of the profession may result in a penalty more severe that might be thought appropriate if the object of the proceedings was one of punishment - see Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 24. We did consider, however, that the public interest would not be defeated if, in the event that a heavier fine were to be imposed, a more liberal time for payment of the fines were allowed, given the practitioner's personal circumstances.
For those reasons, we suggested to the practitioner that we considered a fine of $7,000, together with an obligation to refund the client's fees of $1,000, and pay the LPCC's costs in the sum of $2,000 was a penalty which we considered would adequately reflect the seriousness of the practitioner's conduct. The figure of $7,000 by way of fine was, we considered, at the lower end of the proper range of fines that may have been imposed. We considered it acceptable to impose a fine at the lower end of the range given the practitioner's acknowledgement of his wrong doing through the mediation process and his apparent contrition.
After taking instructions, counsel for Mr Love advised that he was prepared to consent to the imposition of a fine in the sum suggested by the Tribunal. Accordingly, the Tribunal made the following orders:
Orders
On the application heard before President, Justice Chaney and Senior Member Parry and Member Connor on 23 December 2010, it is ordered that:
1.DEAN RICHARD LOVE (the practitioner) between on or about 23 July 2007 and on or about 8 April 2008 engaged in unsatisfactory professional conduct in the course of acting on behalf of Mr D J T (the client) with respect to family law matters (the retainer) in that he did not treat the client fairly, in good faith and protect the client's interests by:
(a)failing to advise the client he should obtain independent legal advice before entering in to a private litigation funding agreement with Impact Capital Ltd (the funding agreement).
(b)failing to adequately inform the client of his personal interest in having the client enter into the funding agreement which had the potential to conflict with those of the client.
(c)charging the client for professional fees for work done after the client had terminated the retainer.
(d)failing to return client documents to the client or his new solicitor as instructed in a timely manner.
(e)advocating in correspondence with Legal Aid WA for the client's expanded grant of legal aid (which was made to a new solicitor) to be withdrawn.
2.The practitioner pay a fine to the Legal Practice Board in the sum of $7,000.
3.Refund fees of $1,000 to the client by providing a cheque in that sum to the applicant, made payable to the client within 28 days.
4.The practitioner pay the applicant's costs fixed in the sum of $2,000.
5.The amounts payable in orders 2 and 4 are to be paid to the Legal Practice Board by the practitioner at the rate of $1,000 per month, first payment commencing within 28 days of the date of this order.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT
6
9
0