| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and QUINLIVAN [2011] WASAT 138 (S) MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) MS S GILLETT (MEMBER)
MR S ELLIS (SENIOR SESSIONAL MEMBER)
HEARD : 30 MARCH 2011 WRITTEN SUBMISSIONS:
17 MAY 2011
24 MAY 2011
16 SEPTEMBER 2011
6 OCTOBER 2011
DELIVERED : 24 AUGUST 2011 SUPPLEMENTARY
DECISION : 5 DECEMBER 2011 FILE NO/S : VR 83 of 2010 BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE Applicant
AND
LYNETTE PATRICIA QUINLIVAN
Respondent
(Page 2)
Catchwords: Legal practice - Legal practitioner - Disciplinary proceedings - Practitioner guilty of unsatisfactory professional conduct and professional misconduct - Penalty Legislation: Legal Profession Act 2008 (WA), s 438(2), s 439(a), s 439(d)
State Administrative Tribunal Act (WA), s 87(1) Result: Practitioner reprimanded, suspended and ordered to pay costs Category: B
Representation: Counsel:
Applicant : Mr S Vandongen SC and Ms P Le Miere
Respondent : Mr T Percy QC and Mr L Tsaknis
Solicitors:
Applicant : Legal Profession Complaints Committee
Respondent : N/A
Case(s) referred to in decision(s):
Barristers' Board v Darveniza [2000] QCA 253
Council of New South Wales Bar Association v Sahade [2007] NSWCA 145
In Re Davis (1947) 75 CLR 409
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Legal Practitioners Complaints Committee and Benari [2005] WASAT 213(S)
Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119
Legal Practitioners Complaints Committee v Pepe [2009] WASC 39
Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138
Legal Profession Complaints Committee and Segler [2010] WASAT 135(S)
The Council of the Queensland Law Society Inc v Wright [2001] QCA 58
(Page 3)
The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 Under the Legal Profession Act 2008 (WA) the applicant (Committee) alleged that the respondent (Practitioner) had engaged in professional misconduct, based on three grounds. In a decision delivered on 24 August 2011 (Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138 (Reasons)) the Tribunal made findings that the Practitioner engaged in: 1) unsatisfactory professional conduct by improperly using her entitlement to engage in legal practice in Western Australia to intimidate, harass or annoy Mark Norris or Carmel Norris (para [39] [51] of the Reasons); 2) professional misconduct when, in order to advance her own interests, she recklessly misled Magistrate Lane in the Perth Magistrates Court by giving evidence of the content of a statement provided to the Practitioner by Ms Angela Heffer which did not reflect the contents of that statement (para [52] [64] of the Reasons). 2 The Tribunal also considered an allegation of professional misconduct on a third ground, but found that the Committee had not made out that ground (para [65] [70] of the Reasons). 3 It is unnecessary for the purpose of these reasons to repeat the details of those findings. 4 The Tribunal ordered that the parties file submissions on penalty and that the question of penalty be dealt with on the papers. Senior Counsel representing both parties filed detailed submissions which we refer to below.
Submissions to and findings of the Tribunal 5 The Committee submits that the Tribunal should deal with the two guilty findings together for the purpose of imposing a penalty, and make an order pursuant to s 438(2) and s 439(a) of the Legal Profession Act 2008 (WA) (LP Act) that the Practitioner's local practising certificate be suspended. (Page 5)
6 The Committee then submits that, if the Tribunal is inclined to deal with those two findings separately, the Tribunal should make an order that the Practitioner's local practising certificate be suspended in respect of the finding of professional misconduct and impose a fine of between $5,000 and $7,000 in respect of the finding of unsatisfactory professional conduct. 7 The Committee further submits that, in any event, the Practitioner ought to be publicly reprimanded. 8 The Tribunal intends to deal with the two findings separately for the purpose of penalty. 9 The Committee refers to a number of authorities outlining wellknown principles to be followed upon a finding of professional misconduct or unsatisfactory professional conduct. None of these principles are disputed or contested by the Practitioner and they can be summarised as follows: a) the object of disciplinary proceedings is the protection of the public and the maintenance of proper standards in the legal profession, rather than punishment; b) punishment is not one of the objects of disciplinary proceedings; c) the penalty must be such that it demonstrates, without doubt, the standards to be observed by practitioners.
Use of letterhead 10 In respect of the finding of unsatisfactory professional conduct, the Committee contends that it is important that the Tribunal imposes a penalty that ensures that the Practitioner and other practitioners will be deterred from using their professional letterhead in the context of personal matters to gain a personal advantage or to intimidate. The Committee says that the conduct could not be described as isolated, having regard to the number of occasions when the Practitioner used her letterhead to intimidate and/or to cause a detriment to Mr or Mrs Norris. 11 The Practitioner, on the other hand, reminds the Tribunal that it made no finding that the letters caused any detriment to Mr or Mrs Norris and that the Practitioner was not challenged on the contents of the letters, either as to their truth or the manner in which they were expressed. (Page 6)
12 The Practitioner submits that the appropriate penalty in respect of the finding of unsatisfactory professional conduct is a reprimand.
Misleading the Court 13 The Tribunal, of course, has no way of knowing whether or not the Practitioner continues to use her professional letterhead for personal matters, but we will assume that she has understood the finding of the Tribunal in this regard and no longer does so. 14 On that basis, the Tribunal considers that the appropriate penalty is a reprimand. 15 In respect of the Tribunal's finding of professional misconduct, we observed in the Reasons at [64] that 'the obligations of a practitioner to the Court are paramount, and ex parte applications require particular candour on the part of applicants'. 16 Honesty, fairness and integrity are essential prerequisites to the right to practise law. The willingness to engage in dishonest behaviour is of central relevance to an assessment of a practitioner's fitness to practise; see Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 at [8] and Council of New South Wales Bar Association v Sahade [2007] NSWCA 145 at [58]. Further, fitness to practise requires that a practitioner must command the personal confidence of his or her clients, fellow practitioners and judges; see In Re Davis (1947) 75 CLR 409 at [420]. Account must also be taken by the Court of the effect which its order will have on the understanding, in the profession and the public, of the standard of behaviour required of solicitors; see Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at [444F]. 17 A practitioner's failure to understand the impropriety of his or her conduct may be a factor of great importance in determining whether they should be permitted to stay on the Roll; see The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 at [35]. 18 The Committee says that, where there is a choice presented between suspension and striking off, the Full Court in Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 at [12] described the following passage from Barristers' Board v Darveniza [2000] QCA 253 as providing 'useful guidance': … striking off is of course reserved for the very serious cases where the character and conduct of the practitioner is seen to be inconsistent with the (Page 7)
privileges of further practice. Suspension is a less serious result, firstly because a limited period is specified and secondly because the right to resume practice is then preserved without any further onus upon the practitioner to prove that he or she is now a fit and proper person to practice. 'The proper use of suspension is … for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are necessary attributes of a person entrusted with the responsibilities of a legal practitioner'. (citation omitted). 19 However, we agree with the Practitioner's contention that while a departure from the duty of honesty to the Court is a very serious matter, such misconduct does not compel a removal from the Roll; see Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 (Vogt). 20 In The Council of the Queensland Law Society Inc v Wright [2001] QCA 58, the Queensland Court of Appeal considered a case of a solicitor who had intentionally misled a Court and said: … The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners' submissions to the court. This duty of candour and fairness is quintessential to the lawyer's role as officer of the court; the court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but also to reassure the public that such conduct on the part of lawyers will not be tolerated; at [67]. 21 This passage was specifically adopted in Vogt at [61]. 22 The Practitioner submits that her evidence was given in the context of concern for the safety of her very young son, which was without doubt an emotional issue for her. The Tribunal does not condone the Practitioner's conduct, but the Practitioner's behaviour in this particular instance can be explained to some extent by those circumstances. There is nothing to suggest that her conduct was premeditated. 23 In Legal Profession Complaints Committee and Segler [2010] WASAT 135(S) in which the practitioner was suspended for two months for misleading a Magistrate in an application for a restraining order by asserting that the respondent had a criminal record when that was not so. A factor taken into account by the Tribunal in that case in imposing that penalty was that the practitioner harboured a genuine fear for his own (Page 8)
physical safety and had been subjected to abusive and threatening messages from the respondent. 24 Taking into account the fact that the Practitioner has not previously been found guilty of any professional misconduct and also the mitigating factor in [22] above, the Tribunal is of the view that a period of suspension of two months is appropriate, the period to commence 21 days after the date of the order below.
Costs 25 Notwithstanding the general position espoused in s 87(1) of the State Administrative Tribunal Act 2004 (WA), where disciplinary proceedings have been commenced in the public interest by a vocational regulatory body and the vocational regulatory body has been successful in the prosecution of those proceedings, the affected person should be ordered to contribute to the cost of the proceedings incurred by the vocational regulatory body; see Legal Practitioners Complaints Committee and Benari [2005] WASAT 213(S) at [25] (Benari). 26 The contribution the affected person should be required to make lies in the discretion of the Tribunal, having regard to all of the circumstances of the case. Special matters can be taken into account to determine what is a fair and reasonable costs order; see Benari at [26] [27]. 27 The Practitioner concedes that a costs order against her is appropriate, but she contends that she ought not be obliged to meet the cost of Senior Counsel. 28 However, the Tribunal considers that the complaints made against the Practitioner were serious, particularly the complaint of misleading the Court. The Tribunal also notes that the Practitioner herself briefed Senior Counsel to appear on her behalf and to draft submissions on penalty. The Tribunal also notes that Senior Counsel for the Committee has significantly discounted his hourly rate and the Tribunal accordingly orders costs in the sum of $16,033.70 to be paid within 30 days of the date of this order.
Orders 1. In respect of the finding of unsatisfactory professional conduct against the Practitioner, the Practitioner is reprimanded. (Page 9)
|