Legal Profession Complaints Committee v Chang
[2022] WASC 145
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : FULL BENCH
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE -v- CHANG [2022] WASC 145
CORAM: QUINLAN CJ
HILL J
STRK J
HEARD: 9 MARCH 2022
DELIVERED : 3 MAY 2022
FILE NO/S: LPD 2 of 2021
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
CHRISTINA MARIE CHANG
Respondent
Catchwords:
Legal practitioners – Disciplinary proceedings – Removal from roll of practitioners – Professional misconduct – Professional misconduct by knowingly misleading client – Professional misconduct by knowingly misleading court – Practitioner not a fit and proper person to remain a legal practitioner
Legislation:
Legal Profession Act 2008 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Order that the practitioner's name be removed from the roll of practitioners
Category: B
Representation:
Counsel:
| Applicant | : | P D Yovich SC |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | Legal Profession Complaints Committee |
| Respondent | : | In Person |
Cases referred to in decision:
Chang v Legal Profession Complaints Committee [2021] WASCA 86
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Law Society (New South Wales) v Foreman (1994) 34 NSWLR 408
Legal Profession Complaints Committee and Chang [2019] WASAT 67
Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S)
Legal Profession Complaints Committee v Brennan [2010] WASC 198
Legal Profession Complaints Committee v Chang [2019] WASAT 67
Legal Profession Complaints Committee v Lashansky [2007] WASC 211
Legal Profession Complaints Committee v Oud [2019] WASC 287
Re Chambers; Ex parte Chambers [2021] WASC 196
Re Maraj (a practitioner) (1995) 15 WAR 12
JUDGMENT OF THE COURT:
Introduction
By notice of motion filed on 28 June 2021, the Legal Profession Complaints Committee (Committee) applied for an order that the name of the respondent, Christina Marie Chang (the practitioner), be removed from the roll of legal practitioners.
The Committee's application followed a report made and transmitted to this Court by the State Administrative Tribunal (the Tribunal), pursuant to s 438(2)(a) of the Legal Profession Act 2008 (WA) (the Act), with a recommendation that the name of the practitioner be removed from the roll of practitioners. The report comprised the Tribunal's reasons for decision in Legal Profession Complaints Committee and Chang[1] and Legal Profession Complaints Committee and Chang.[2] The Tribunal transmitted its report to the Court on 15 May 2020.
[1] Legal Profession Complaints Committee and Chang [2019] WASAT 67 (conduct decision).
[2] Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S) (penalty decision).
In the conduct decision, the Tribunal made three findings that the practitioner engaged in professional misconduct within the meaning of s 403 and s 438 of the Act. Pursuant to s 444(1) of the Act, the report of the Tribunal is taken to be conclusive as to all facts and findings mentioned or contained in the report.
The Committee's application was heard by the Court on 9 March 2022. At the conclusion of the hearing, we reserved our decision.
For the reasons that follow, we are satisfied that the appropriate order, in order to protect the public and maintain the reputation and standards of the legal profession, is that the practitioner's name should be removed from the roll of legal practitioners.
Before turning to our reasons, including the findings made by the Tribunal, it is necessary to say something as to the history of the proceedings before this Court.
Delays and applications for adjournment
As noted above, while the Tribunal's report to this Court was made and transmitted on 15 May 2020, the Committee did not file a notice of motion for an order that the name of the practitioner be removed from the roll until 28 June 2021.
The reason for the delay between the Tribunal's penalty decision and the notice of motion to this Court was that the practitioner appealed to the Court of Appeal against both the conduct decision and the penalty decision.
Those appeals were dismissed by operation of a springing order when the practitioner failed to file and serve, within a specified time, an appellant's case which complied with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules). An application by the practitioner for an extension of time in which to comply with the springing order by filing and serving an appellant's case was refused by Mitchell and Vaughan JJA on 14 May 2021.[3]
[3] Chang v Legal Profession Complaints Committee [2021] WASCA 86.
The Committee's notice of motion was filed the following month.
The motion was listed for directions before Quinlan CJ on 17 September 2021. The practitioner was then represented by counsel, who sought a short adjournment so that she could take instructions. The directions hearing was adjourned to 28 September 2021.
At the resumed directions hearing on 28 September 2021, the practitioner was unrepresented. The practitioner made submission to the effect that she intended to make a further application to the Court of Appeal to extend the time within which to comply with the springing order by filing and serving an appellant's case in the appeals to that court.[4] She sought to have these proceedings stayed in the event that she made such an application. In that context, the practitioner also identified a number of domestic and health issues that were affecting her. In particular, the practitioner referred to ongoing mental health issues for which she was receiving treatment under a mental health care plan. The practitioner's mental health difficulties were the subject of consideration by the Tribunal in the penalty decision and are well documented.
[4] In Chang v Legal Profession Complaints Committee [2021] WASCA 86 [74], Mitchell & Vaughan JJA observed that the practitioner was not precluded from making a further application if some reasonably arguable ground of appeal were able to be identified.
At the conclusion of the directions hearing, Quinlan CJ made orders for the filing of submissions and referring the Committee's notice of motion to the Full Court. His Honour gave liberty to apply to the Full Court in the event that the Court of Appeal accepted for filing any application for an extension of time in any proposed appeal.
In the course of the directions hearing, while prescinding from giving the practitioner advice, Quinlan CJ observed that it was not in the practitioner's interests to be putting off the conclusion of the proceedings indefinitely and it was 'for everybody's benefit, including [her] own, to bring them to a conclusion'.[5] The practitioner agreed with that observation in emphatic terms.
[5] Ts 14 (28 September 2021).
Following the provision by both parties of their available dates, the Committee's motion was listed for 9 March 2022.
On 15 November 2021, the Committee filed its outline of submissions and a further affidavit.
The practitioner was to file her outline of submissions and any affidavit evidence in response by 15 December 2021. She did not do so, either by 15 December 2021, or at all.
Nor did the practitioner make an application to the Court of Appeal for an extension of time in any proposed appeal.
As a consequence of the practitioner's default in filing any material, the matter was, at the Committee's request, listed before Quinlan CJ on 24 February 2022 for further directions.
Prior to that hearing the practitioner sent an email to the Court attaching a letter from her treating psychologist, Dr Fairbairn. Dr Fairbairn reported that the practitioner had been referred by her general practitioner, Dr Cibulskis, for treatment of anxiety, depression and traumatic stress. A report from Dr Cibulskis had previously been provided to the Tribunal in the course of the proceedings before it, and is discussed in the penalty decision.
In her email to the Court, the practitioner stated that it was still her intention to appeal the Tribunal's decision and to seek an extension of time to do so.
The practitioner did not attend the directions hearing on 24 February 2022. While there was no formal application to that effect, Quinlan CJ treated the practitioner's email as seeking to vacate the substantive hearing listed for 9 March 2022. His Honour did not make such an order, stating:
It is, of course, always a matter for the Full Court whether it makes substantive orders on that day, and what substantive orders, if any, that it makes. It would be open to the Full Court, having heard from Ms Chang on 9 March, to adjourn the hearing of the applicant's notice of motion either generally or on certain terms. If [sic] would not be appropriate for me to pre‑empt what the Full Court may conclude in relation to that, were material put before the Court in support of an application that the applicant's application pursuant to the notice of motion, be adjourned.
Nevertheless, it is important for me to identify the kinds of matters that would be relevant if such an application were made and the matters that, at least in my preliminary view, would be relevant to the court's consideration of any such application were it made, so that Ms Chang who is currently unrepresented, would be in a position to address them. Those relevant matters are that this matter has a very long history.
…
Ms Chang, in a directions hearing before me on 28 September last year, indicated that she continued to wish to agitate an appeal. None, however, has been forthcoming. In the circumstances, it would be necessary were there to be any application for an adjournment, for there to be a clear explanation as to why no further steps were taken, what further steps were intended in the future and some indication as to the prospects of those matters being successfully agitated before the Court of Appeal.
In that regard, I infer from the correspondence from Ms Chang and from the copy of the report provided by Dr Janice Fairbairn, Clinical and Forensic Psychologist, that the matters that Ms Chang wishes to raise may include matters relevant to her state of mental health including her diagnosis according to Dr Fairbairn, of post‑traumatic stress disorder and symptoms of anxiety and depression. It is important to recognise and a matter that would need to be addressed, were it suggested that the matter could not proceed on 9 March, that these issues are nothing new.
Indeed, the state of Ms Chang's mental health including post-traumatic stress disorder and depression and anxiety, were matters expressly considered at length by the tribunal in its decision of 15 May 2020, to refer to this court. Were there in some way some new relevance of those matters which has not been captured already by the consideration of those issues by the Tribunal, it would be necessary, in my view, for those matters to be identified with some specificity.
These are proceedings which have long been outstanding and any submission to the Full Court that they not be concluded on 9 March, would need to address the public interest in this court dealing with applications of this type in a timely and conscientious manner so as to ensure the continued confidence of the public in this court's supervision of practitioners of the court.
The application was called on for hearing on 9 March 2022. The practitioner again represented herself.
The coram for the hearing initially consisted of Quinlan CJ, Curthoys and Strk JJ. At the commencement of the hearing, the practitioner made applications that Curthoys J and Strk J recuse themselves from the hearing of the appeal.
The application in relation to Curthoys J was made on the basis that his Honour had dealt with another matter concerning the practitioner when his Honour was the President of the Tribunal, in which his Honour had expressed certain conclusions concerning the practitioner. In addition, his Honour had conducted a directions hearing in the matter giving rise to the current application. While recognising that, as a consequence of s 444(1) of the Act, issues of credibility did not arise before this Court, his Honour nevertheless recused himself from further hearing of the application to ensure that justice be seen to be done.[6]
[6] Ts 46 (9 March 2022).
The application in relation to Strk J, which concerned the content of her Honour's LinkedIn page, was refused.[7]
[7] Ts 48 (9 March 2022).
Following reconstitution of the coram, the practitioner applied for a further adjournment of the Committee's application. The practitioner provided the Court with an affidavit sworn by her on 8 March 2022. The affidavit deposed to much of the procedural history of the application, including the practitioner's unsuccessful application before Mitchell and Vaughan JJA on 14 May 2021.[8] The practitioner deposed that she still wished to appeal the Tribunal's findings (which she referred to as her 'proposed appeal') and deposed to having contacted a number of local and interstate counsel.
[8] Chang v Legal Profession Complaints Committee [2021] WASCA 86.
The practitioner deposed that one of the interstate counsel 'had indicated a capacity and willingness' to assist the practitioner if she could secure an adjournment. In her submissions on 9 March 2022, the practitioner said that counsel had not accepted a brief, nor had the practitioner signed an engagement letter with her. Rather, it appeared that counsel had expressed a preparedness to look at the matter in the event that the hearing was adjourned. As the practitioner accepted at the hearing, 'I shouldn't say, yes, I've got counsel'.[9]
[9] Ts 63 (9 March 2022).
We refused the practitioner's application for an adjournment.
In our view, the practitioner has had every opportunity to obtain representation in relation to this matter. While the practitioner referred to a 'proposed appeal', the only course available to her would have been to apply, again, well out of time, to set aside the dismissal of her appeal and for an extension of time in which to comply with the springing order by filing and serving an appellant's case.
At the time of the hearing, almost ten months had passed since Mitchell and Vaughan JJA dismissed the last such application. On that occasion their Honours did not merely dismiss the application due to its failure to comply with the Court of Appeal Rules. Their Honours considered, as best as could be discerned from the material, whether there was any reasonably arguable case for setting aside the Tribunal's conduct decision or penalty decision. Their Honours concluded that there was not.
In that context, Mitchell and Vaughan JJA said:[10]
The history of the matter leaves us with no confidence that, if an extension of time were granted, the appellant would have the capacity, within any reasonable time, to prepare a compliant appellant's case which sets out reasonably arguable grounds of appeal.
[10] Chang v Legal Profession Complaints Committee [2021] WASCA 86 [72] (Mitchell & Vaughan JJA).
Nothing said by the practitioner at the hearing of the application leads us to a contrary view. Indeed, it was apparent that, insofar as the practitioner referred to matters that she said might impugn the Tribunal's decision, those matters were expressly addressed by Mitchell and Vaughan JJA.[11] No hint of anything new emerged in the practitioner's submissions to this Court.
[11] Ts 59 (9 March 2022).
In our view, enough time had elapsed and the practitioner had been afforded every reasonable opportunity to address the issues raised by the application. In our view, there was, indeed, no reasonable prospect that a further adjournment would have made any difference to the resolution of the Committee's application.
It was in the public interest that the Committee's application be brought to a conclusion. The public's confidence in the reputation and standards of the legal profession depend upon this Court dealing with disciplinary proceedings in as timely a manner as is appropriate in the circumstances. That confidence would be undermined were this Court to defer, indefinitely, the resolution of such proceedings simply because the practitioner is not currently practising.
For these reasons we refused the practitioner's application for an adjournment.
Turning then to the substantive issues.
Findings against the practitioner
The facts and findings of the Tribunal are set out in the conduct decision and the penalty decision.
Those facts and findings may be summarised as follows.
The practitioner was admitted to legal practice in Western Australia on 4 February 1985. Since about September 1992 the practitioner was also a registered migration agent.
In her capacity as a migration agent, albeit in the employ of a number of law firms and as a sole practitioner practising as Christina Chang Lawyers, the practitioner acted for a client in the preparation and lodgement of a permanent residency visa application. The client subsequently terminated the practitioner's instructions, withdrew the visa application and sent a letter of demand to the practitioner seeking 'compensation' of $10,000 'to refund us your fee, one [visa] application fee and all the documents that we obtained due to your incorrect advice' and stating that, if the practitioner was 'not willing [to] pay us any compensation', then 'you will leave me no other choice than [to] take legal action'.[12]
[12] Legal Profession Complaints Committee v Chang [2019] WASAT 67.
It was in the context of those claims by the former client that the practitioner engaged in the conduct giving rise to the first and second misconduct findings by the Tribunal.
The first misconduct finding
In the course of correspondence with the former client in relation to the request for a refund, the practitioner prepared and sent:
(a)an email to [the former client] dated 23 June 2016 in which she stated 'I will notify my Insurers and will await their response. Once I have that I can then respond to you in detail';
(b)an email to [the former client] dated 29 June 2016 in which she stated 'Hi the way insurance works is that all claims must be reported to the insurers and I am required by my insurers not to discuss the claim with you directly';
(c)an email to [the former client] dated 7 July 2016 in which she stated 'Hi I am waiting for [a] reply from my insurer[.] I should hear by next week. They know its [sic] urgent'.
All of those statements were false and misleading. The practitioner did not notify, or correspond with, any insurer during that period regarding the claim for compensation.
The Tribunal concluded that the practitioner knew that the email statements were false and misleading and intended that the complainant be misled by the email statements, so as to defer or delay her from commencing proceedings against the practitioner in respect to the claim.
The Tribunal summarised the effect of that conduct, in terms with which we agree:
In our view, for a legal practitioner, in a personal capacity, to knowingly seek to mislead a person who has issued a letter of demand to the practitioner for payment of money, so as to defer or delay that person from commencing legal proceedings against the practitioner in respect of the claim in the letter of demand, would be reasonably regarded as disgraceful, that is bringing or deserving disgrace, shameful and disreputable, or dishonourable, that is showing lack of honour, ignoble, base and shameful, by practitioners of good repute and competence. The practitioner's conduct was grossly unfair to the complainant and dishonest. Such conduct would certainly be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence if it occurred in circumstances where the practitioner was acting on behalf of a client who had received a letter of demand. It is no less the case when a practitioner is responding to a letter of demand in a personal capacity. Such conduct involves a breach of a lawyer's fundamental ethical duties of candour and fairness, whether representing a client or acting in a personal capacity, not to knowingly seek to mislead the other party to a demand for payment of money.
The second misconduct finding
The former client commenced proceedings in the Magistrates Court in relation to the claim for $10,000. In the course of those proceedings, the practitioner attended a number of pre‑trial conferences before a registrar of the Magistrates Court.
In the course of those pre‑trial conferences, before the relevant registrar of the Court, the practitioner:
(a)on 23 August 2016, said words to the effect 'I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do'; and
(b)on 27 September 2016, said words to the effect 'I cannot speak about the matter because there is an insurer involved'.
Again, both of those statements were false and misleading. The practitioner did not notify, or correspond with, any insurer during that period.
The Tribunal concluded that the practitioner knowingly misled the Magistrates Court. As it put the position: 'the practitioner lied to the Magistrates Court and to the complainant at the first two pre‑trial conferences in order to defer and delay the proceedings.'[13]
[13] Legal Profession Complaints Committee v Chang [2019] WASAT 67 [165].
As to the characterisation of that conduct, the Tribunal concluded:
The practitioner engaged in professional misconduct, within the meaning of s 403 and s 438 of the LP Act, because her conduct in terms of ground 2 would be reasonably regarded as disgraceful, that is bringing or deserving disgrace, shameful and disreputable, or dishonourable, that is showing lack of honour, ignoble, base and shameful, by practitioners of good repute and competence, within the first limb of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61]. By knowingly seeking to mislead the Magistrates Court and the complainant, so as to defer or delay the Magistrates Court proceedings, the practitioner breached her fundamental ethical duties of candour and fairness to the Court and to the complainant. As the authorities referred to in Legal Profession Complaints Committee and A Legal Practitioner at [148] ‑ [151] show, courts and tribunals necessarily place significant trust and confidence in legal practitioners in order to be able to administer justice effectively and efficiently. Knowingly seeking to mislead a court (and the other party to litigation), whether in a professional or personal capacity, strikes at the very heart of, and is an anathema to, a legal practitioner's core ethical duties as an officer of the court and fundamentally undermines the trust and confidence between court and practitioner which is essential to the administration of justice. The practitioner's conduct in terms of ground 2 is therefore most serious professional misconduct.
The third misconduct finding
The third misconduct finding related to the practitioner's failure to respond to correspondence from the Committee and her failure to respond to two Summons to Produce Documents. In particular the Tribunal concluded that the practitioner, without reasonable excuse, failed to respond to:
(a)by 5 October 2017 or at all, a letter from the Committee to the practitioner dated 15 September 2017 which formally notified her of, and requested her submissions in relation to, the complaint;
(b)by 5 October 2017 or at all, a Summons to Produce Documents dated 14 September 2017 issued to the practitioner by the Committee;
(c)by 7 November 2017 or at all, a letter from the Committee to the practitioner dated 17 October 2017 which formally notified her of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative in relation to the practitioner's failure to respond to the 15 September 2017 letter and the 14 September 2017 summons;
(d)by 6 December 2017 or at all, a letter from the Committee to the practitioner dated 15 November 2017 which formally notified her of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative in relation to the practitioner's failure to respond to the 17 October 2017 letter;
(e)by 6 December 2017 or at all, a Summons to Produce Documents and Provide Written Information Verified by Statutory Declaration dated 15 November 2017 issued to the practitioner by the Committee.
The Tribunal concluded in relation to this conduct that for a legal practitioner to fail to engage at all with, and to simply ignore correspondence from, and summonses issued by, the Committee, which is investigating a complaint of unsatisfactory professional conduct or professional misconduct against the practitioner, was manifestly unacceptable, because it fundamentally undermined the authority of the Committee and its capacity to effectively investigate complaints about legal practitioners and thereby, to seek to protect members of the public in their dealings with lawyers and to maintain the proper standards of the legal profession.
Relevant legal principles
The principles to be applied in an application such as this are well established. They were summarised by this Court in Legal Profession Complaints Committee v Oud[14] and include the following:
(a)the Court's jurisdiction with respect to the regulation of the legal profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession;
(b)where the motion is to remove a practitioner from the roll, the critical question for the Court is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner;
(c)fitness to practice law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges;
(d)removal from the roll is an order reserved for very serious cases, where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice; and
(e)integrity and honesty are essential characteristics expected of a practitioner, and therefore, the Court has generally taken a very serious approach when dealing with dishonesty by a practitioner.
[14] Legal Profession Complaints Committee v Oud [2019] WASC 287 [17] (Quinlan CJ, Kenneth Martin & Smith JJ).
An important object of the disciplinary function is to maintain and protect the reputation of the legal profession.[15] Account must also be taken by the court of the effect which its order will have on the understanding by the profession and the public of the standard of behaviour required of legal practitioners.[16]
[15] Re Maraj (a practitioner) (1995) 15 WAR 12, 24 ‑ 25 (Malcolm CJ); Legal Profession Complaints Committee v Brennan [2010] WASC 198 [10] (Martin CJ).
[16] Law Society (New South Wales) v Foreman (1994) 34 NSWLR 408, 444F (Mahoney JA).
A practitioner's failure to understand the impropriety of his or her conduct may be a factor of great importance in determining whether their name should be permitted to stay on the roll. A reason for this is that the lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct.[17]
[17] Legal Profession Complaints Committee v Lashansky [2007] WASC 211 [35] (Wheeler & McLure JJA, E M Heenan J); Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [188] ‑ [195] (Murphy & Beech JJA).
The practitioner's mental health condition
As we have noted above, the practitioner's mental health issues were the subject of evidence before the Tribunal and in material placed before this Court by the practitioner. It is appropriate that we address those issues directly.
In that regard, it is important to recognise that mental health difficulties, as with other medical conditions, may impact a practitioner's immediate capacity to practice law, but will not generally be a basis upon which a practitioner's name should be removed from the roll of practitioners on the grounds that the practitioner is not a fit and proper person to remain on the roll. As in the case of an application for admission, whether a person is fit and proper is not concerned with transitory or temporary medical conditions that may prevent a person from properly fulfilling the duties and functions of a lawyer. This issue is concerned with more enduring matters of fitness of character and integrity.[18]
[18] Re Chambers; Ex parte Chambers [2021] WASC 196 [64] (Quinlan CJ, Archer & Hill JJ).
Where a practitioner is unable to properly fulfil the duties and functions of a lawyer due to a mental or physical illness, the appropriate response of regulatory bodies, and ultimately the Court, is one of support towards treatment and wellbeing, not discipline. Likewise, where established professional misconduct of a practitioner is causally related to such an illness, it is necessary for regulatory bodies, and the Court, to be mindful of that causal relationship in responding to that professional misconduct. The ultimate object, of course, is the protection of the public in their dealings with the legal profession and the maintenance of the reputation and standards of the profession. Where the circumstances are such that the Court can be satisfied that certain professional misconduct, even serious professional misconduct, is causally related to an illness suffered by the practitioner and will not be repeated, the protection of the public may call for a response short of removing the practitioner's name from the roll.
While mindful of these considerations, in the present case, in our view and in light of the findings of the Tribunal, this is not a case in which the practitioner's professional misconduct, particularly in relation to her having knowingly misled both her former client and the Magistrates Court, can be adequately explained by the practitioner's mental health condition.
In that regard, the Tribunal was clearly conscious of the importance of the impact of mental illness and psychological distress on practitioners generally. It received, and considered, a number of reports in relation to the practitioner's condition, including a report from Dr Cibulskis dated 18 February 2020, a report from Dr Chapman, her psychiatrist, dated 3 March 2020, and report from Professor Fernandez, her psychologist, dated 4 March 2020.
Significantly, the Tribunal observed that none of the medical or psychological evidence indicated that the practitioner's diagnosed conditions caused, contributed to, or were in any way related to, the practitioner knowingly seeking to mislead the complainant by making the email statements or knowingly seeking to mislead the Magistrates Court and the complainant by making the pre-trial conference statements. Indeed, it appeared that none of the authors of the reports were aware of those findings of professional misconduct. Rather the reports addressed the third misconduct finding, expressing the view that this conduct was related to avoidant behaviour associated with her psychiatric symptoms.
In that regard, the Tribunal concluded that, while the medical evidence did not excuse the practitioner's professional misconduct in not responding at all to three notification letters and two summonses (the third misconduct finding), it, together with her engagement with psychiatric and psychological help, mitigated that aspect of her professional misconduct. Were that the only matter before it, the Tribunal stated that it would have reprimanded the practitioner and ordered her to pay a fine; it would not have recommended the removal of her name from the roll.
We agree with that assessment.
The first misconduct finding and the second misconduct finding, however, are of an entirely different character. They did not involve neglect or delay, a lack of skill or a lack of supervision. Those misconduct findings involved repeated and deliberate dishonesty. In addition, unlike other cases discussed at length by the Tribunal, there was no evidence to suggest that the practitioner's mental health condition caused, contributed, or was in any way related to that misconduct.
Disposition
The practitioner's conduct in the present case, which occurred over a relatively brief period of time, involved repeated and deliberate dishonesty. There was no excuse for that conduct whatsoever. Nor, based on the Tribunal's findings, was there any explanation for it, or indeed, any acknowledgement of the seriousness of her dishonest conduct. As the Tribunal concluded, while lack of remorse or insight is not an aggravating factor in relation to penalty, the practitioner's failure to understand the significance of her misconduct is a relevant factor in favour of striking off the practitioner rather than suspending her from legal practice.
The honesty of legal practitioners, and the legal profession's reputation for honesty, is essential to the maintenance of the rule of law and the administration of justice. If clients, fellow practitioners and the courts are unable to rely upon legal practitioners to be honest in their dealings, the entire system of justice is undermined. This is why honesty and integrity are essential characteristics of a legal practitioner. A person who lacks honesty and integrity is not a fit and proper person to remain a member of the legal profession.
Regrettably, the practitioner is such a person. Her conduct in knowingly seeking to mislead her former client and by knowingly seeking to mislead the Magistrates Court demonstrates that she is not a fit and proper person to remain a member of the legal profession and that her character and conduct are inconsistent with the privileges of further practice.
At the hearing of the application, the practitioner submitted that the assessment as to whether she is a fit and proper person to remain a member of the legal profession was to be made as at the date of the hearing. In that context, she referred to the findings of the Tribunal as relating to 'past conduct'.[19] In a case involving professional misconduct, however, that will always be the case. What is important is what the practitioner's past conduct reveals about her fitness of character and integrity. Significantly, in that context, at no time has the practitioner recognised, let alone meaningfully addressed, the nature of the findings of dishonesty made by the Tribunal. In the present case, the practitioner's past conduct supports only one conclusion as to her fitness: that she is not a fit and proper person to remain a member of the legal profession.
[19] Ts 78 (9 March 2022).
For these reasons we are satisfied that the appropriate order, in order to protect the public and maintain the reputation and standards of the legal profession, is that the practitioner's name should be struck from the roll of legal practitioners.
We so order.
As the Committee did not pursue one, we make no order as to costs.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Associate to the Honourable Chief Justice Quinlan
3 MAY 2022
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