Legal Profession Conduct Commissioner v A Practitioner - [2019] SASC 136

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
LEGAL PROFESSION CONDUCT COMMISSIONER v A PRACTITIONER
[2019] SASC 136
Judgment of The Honourable Justice Nicholson
8 August 2019
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA
PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES
The Legal Profession Conduct Commissioner previously applied to the Court for an order suspending the practising certificate of the defendant practitioner on an interim basis. The application was refused, but the Court ordered that the practitioner’s right to practise be subject to and his practising certificate endorsed with conditions (i)-(v) (set out in paragraph [2]) until further order. Conditions (i) and (ii) have since been revoked by consent.
By interlocutory application filed in this Court, the practitioner now seeks to have conditions (iii)-(v) removed from his practising certificate.
Held:
1. The practitioner is invited to make the undertakings to the Court identified in paragraph [24] of the judgment. If the undertakings are made, conditions (iii) and (iv) currently endorsed on the practitioner’s practising certificate are to be revoked. If the practitioner is not prepared to give the undertakings, the practitioner’s practising certificate is to be endorsed with conditions which reflect the terms of the proposed undertakings in paragraph [24].
2. The order imposing condition (v) is vacated and condition (v) on the practitioner’s practising certificate is revoked.
Legal Practitioners Act 1981 (SA) s 89A, Sch 4, referred to.
Legal Profession Conduct Commissioner v A Practitioner [2017] SASC 81; Legal Profession Conduct Commissioner v A Practitioner (No 2) [2017] SASC 93, considered.

LEGAL PROFESSION CONDUCT COMMISSIONER v A PRACTITIONER
[2019] SASC 136
Civil: Application
NICHOLSON J.
Introduction

In March 2017, the Legal Profession Conduct Commissioner applied for an order suspending the practising certificate of the defendant practitioner on an interim basis. The application was brought pursuant to the power conferred on this Court by section 89A and section 5(7) of Schedule 4 of the Legal Practitioners Act 1981 (SA) and pursuant to the inherent jurisdiction of the Court. On 6 June 2017, I refused the application but did order that until further order the practitioner’s right to practise was to be subject to and his practising certificate endorsed with certain conditions. On 30 January 2018, I made an order amending condition (iv). The background to the matter is to be found in my earlier reasons for judgment, Legal Profession Conduct Commissioner v A Practitioner[1] and Legal Profession Conduct Commissioner v A Practitioner (No 2).[2]
[1] [2017] SASC 81.
[2] [2017] SASC 93.
The conditions, as amended on 30 January 2018, were as follows.
(i)Until further order the practitioner is to have fortnightly meetings with Margaret Graham-King a legal practitioner. Those meetings are to canvass the following:
(a)     The current state of the practice.
(b)     The practitioner’s state of health and the extent to which he is or is not coping with his work load.
(c)     The practitioner’s compliance with legal practice obligations including CPD and other regulatory requirements.
(d)     The practitioner’s relationship with his clients.
(e)     The need if any, to engage with others in the profession in order to assist in the proper maintenance of the practice.
The meetings and discussions with Ms Graham-King will be conducted on a basis and in such a way as will respect and protect the practitioner’s usual client confidentiality obligations unless written consent to the contrary is provided by a particular client and, if so, only to the extent of that written consent.
(ii)Until further order, the practitioner is to procure Ms Graham-King to provide, at not less than two monthly intervals, a written report to the Commissioner as to the practitioner’s level of cooperation and responsiveness in their meetings and as to her opinion as to whether or not the practitioner appears to be managing his work load appropriately and to be observing his professional obligations to clients and as an officer of the Court in a timely manner.
(iii)Until further order, the practitioner is to consult with his general practitioner and/or his treating psychiatrist at regular intervals as recommended by those health professionals and is to comply with such treatment regime as may be recommended from time to time by his treating psychiatrist.
(iv)Until further order, the practitioner is to procure his treating psychiatrist or general practitioner to provide to the Commissioner on or before 15 February 2018, and thereafter at intervals of no less than two months, a report as to the practitioner’s medical state and progress which report is to include: the then present diagnosis, the severity of his then presenting symptoms, the current treatment plan and current prognosis.
(v)Until further order, the practitioner’s legal practice is not to exceed 25 clients at any one time.
The practitioner now seeks to have those conditions removed from his practising certificate. By interlocutory application filed 5 June 2019, the practitioner seeks the following orders or directions:
1.That this application be made specially returnable before the Honourable Justice Nicholson pursuant to the liberty to apply granted by the orders made herein on 6 June 2017.
2.That the orders of this Honourable Court made on 6 June 2017 and 30 January 2018 endorsed upon the respondent practitioner’s practising certificate be dissolved.
3.That the respondent practitioner’s practising certificate be re-issued without restriction.
4.That the action herein be dismissed.
5.That there be no order as to costs.
The Commissioner opposes the application in part. At the hearing of the application, I received the following affidavit evidence.
1.Ninth affidavit of the practitioner sworn 5 June 2019, filed on behalf of the practitioner.
2.Second affidavit of Margaret Graham-King sworn 4 June 2019, filed on behalf of the practitioner.
3.Fifth affidavit of Kathryn Anne Caird sworn 21 June 2019, filed on behalf of the Commissioner.
4.Third affidavit of Peter Austin Whatson sworn 4 July 2019, filed on behalf of the practitioner.
5.Sixth affidavit of Kathryn Anne Caird sworn on 30 July 2019, filed on behalf of the practitioner.[3]
[3] This affidavit was received on the basis that it may become relevant to any contested application for costs.
Essential background
On 23 February 2017, the Commissioner commenced disciplinary proceedings against the practitioner by way of laying charges of professional misconduct in the Legal Practitioners Disciplinary Tribunal pursuant to section 82(2) of the Legal Practitioners Act. A number of the counts of professional misconduct charged related to asserted failures by the practitioner to cooperate with the Commissioner’s office with respect to his investigations. It was essentially for this reason that the order for interim suspension of the practitioner’s practising certificate was sought. In my earlier reasons,[4] I summarised the position as it was at the time of the original hearing before me in the following terms.
The charge alleges 10 counts of professional misconduct in relation to five ongoing investigations into the practitioner’s conduct. Five counts relate to the practitioner’s failure to co-operate with the Commissioner’s office with reference to the investigations and five counts relate to the practitioner’s failure to comply with five Notices issued to him by the Commissioner pursuant to clause 4(1) of Schedule 4 to the Act.
The five investigations each relate to conduct on the part of the practitioner that occurred some time ago. Further, the consequences of any substantive unsatisfactory professional conduct or professional misconduct (as those terms are defined in the Act) that may, in time, be established have by and large been redressed. The primary concerns would now appear to centre on the reasons why the practitioner failed in his obligations to the extent that he did, the practitioner’s past dilatoriness in redressing the consequences of any substantive unsatisfactory professional conduct or professional misconduct and his failures and continuing dilatoriness in responding to the Commissioner’s investigatory processes. These are matters that ultimately will need to be ruled on by the Tribunal.
[4] Legal Profession Conduct Commissioner v A Practitioner [2017] SASC 81 at [6]-[7].
It is fair to say that the disciplinary proceedings in the Tribunal have not progressed very far at all over the last two years or so. Indeed, the parties are still wrangling over the proper constitution of the Tribunal to hear the various charges that have been laid. In any event, the Commissioner’s primary reason for initiating the proceedings for interim suspension, that is, the lack of engagement by the practitioner with the Commissioner’s processes, would appear to have been resolved.
Of present significance, is the fact that during the hearing of the Commissioner’s original application, it became apparent that a significant reason for the practitioner’s lack of engagement with the Commissioner’s processes was the fact that the practitioner had been suffering the effects of a longstanding medical condition in the nature of post-traumatic stress disorder and major depressive episodes. According to the practitioner, this had the effect of inhibiting him from properly dealing with the Commissioner’s complaints.
The fact that the practitioner was suffering from such ill health which generated an obvious potential risk with respect to his capacity to practice effectively, only became apparent during the hearing of the Commissioner’s application. In my earlier reasons I identified the following conclusions.[5]
On the basis of the affidavit material before me, I infer that the practitioner has been engaged in avoidance behaviour when dealing with the Commissioner’s demands, at least in substantial part as a consequence of ongoing depression at a more serious level than is the case now. As the practitioner described it, he “put his head in the sand”. Over time what might have been quite manageable problems became more and more difficult for the practitioner to confront and deal with. Two positive outcomes have resulted from the present proceedings. The first is that the practitioner has now obtained medical assistance with respect to his longstanding mental health issues which plainly have had an effect on his professional life, and with such medical assistance appearing to be leading to positive outcomes. The second is that the practitioner has now obtained legal assistance not just with respect to the Commissioner’s present application but also in order to assist with respect to the Commissioner’s investigations and the Tribunal proceedings.
For the reasons thereafter set out, I moved to the position where, in my view, interim suspension of the practising certificate was not warranted but that the conditions (as set out earlier) should be endorsed on the practitioner’s practising certificate until further order.
[5] Legal Profession Conduct Commissioner v A Practitioner [2017] SASC 81 at [34].
The practitioner’s application
It is important to note, as I earlier found, that there had been no evidence before the Court of dishonesty by the practitioner in the conduct of his practice or of ongoing conduct in his practice that was in need of restraint. There was no evidence of risk of harm to clients or to the public.[6] Nevertheless, for the reasons set out in my earlier judgment, I determined that it was appropriate to impose conditions (i) and (ii) in order to ensure a level of relatively informal supervision of the practitioner’s practice.
[6] Legal Profession Conduct Commissioner v A Practitioner [2017] SASC 81 at [57].
However, Ms Margaret Graham-King, the solicitor who has assisted in that process, has deposed in her affidavit sworn 4 June 2019 that she was planning to retire from practice on 30 June 2019 and would not thereafter be able to participate in this process. Ms Graham-King also deposed to a number of matters concerning her involvement with the practitioner over the last two years or so in accordance with conditions (i) and (ii), including that she had provided to the Commissioner 11 reports, one every two months or so, and that she had been working closely with the practitioner for more than two years during which time he had been candid about his state of health and the state of his practice. Ms Graham-King also deposed to the fact that the practitioner had cooperated fully during their meetings and had been extremely responsive to any suggestions made to improve his practice. Ms Graham-King expressed the opinion that “[the practitioner] is now able to run his practice without any supervision from myself or any other legal practitioner …”.
When the practitioner’s application came before me for a first directions hearing the Commissioner advised that he would consent to conditions (i) and (ii) endorsed on the practitioner’s practising certificate being revoked. On the basis of the affidavit evidence before me, I took the view that this was an appropriate concession by the Commissioner. Accordingly, I made an order on 12 June 2019 that orders 2(i) and 2(ii) (being the conditions in question) made by me on 6 June 2017 be vacated by consent but that the balance of the orders made on 6 June 2017 as amended by the orders made on 30 January 2018 were to remain. I made directions for the provision of further materials by the parties in order to enable the practitioner’s application for the removal of the remaining conditions to be argued.
In order to put in context the recent medical evidence adduced concerning the practitioner’s current state of health it will be helpful to first briefly summarise my findings in this respect made at the time that I imposed conditions (iii) and (iv).
As at April 2017, the practitioner had been assessed by Dr Blakemore, a general psychiatrist, who diagnosed the practitioner as suffering “a primarily depressive illness, an adjustment disorder with depressed and anxious mood, one from which he is recovering”.
According to Dr Blakemore, the practitioner was in the process of recovering from his condition but this recovery process had come about only recently as a consequence of commencing antidepressant medication. Prior to this, the practitioner had been seriously depressed for quite some time. Dr Blakemore described a favourable prognosis in the following terms.
[The practitioner’s] prognosis should be good, particularly with his having improved spontaneously with time and with what appears to have been a rapid response to antidepressant medication prescribed in only a low dosage. There seems no reason why he should not continue to improve and eventually recover fully.
According to the evidence now before the Court, following the imposition of conditions (iii) and (iv) and until to date, the practitioner has by and large complied with those conditions. In particular, in the early part of the last two years he regularly consulted his psychiatrist and thereafter he has been regularly consulting his general practitioner, Dr Moten, who has been responsible for supervising his treatment over the last six months. In addition, the practitioner has complied with his medication regime. The present state of the practitioner’s mental health can be discerned from recent reports provided by Dr Moten together with her oral evidence given before me.
On 18 March 2019, Dr Moten provided a report to the Commissioner, having reviewed the practitioner on that day, in the following terms.
Mental state and progress
[The practitioner’s] mental state remains appropriate for his stage of treatment.
Present diagnosis
Depressive episode resolved.
Assessment of current symptoms
Mood not depressed.
Uncertainty regarding current status of Tribunal is detrimental [sic] [the practitioner’s] health is [sic] he is unable to move on from this until this matter is finalised. There is also a concern that re-opening these proceedings may trigger an exacerbation of depression.
Treatment plan
Sertraline 150 mg per day.
Prognosis
Good.
On 6 May 2019, Dr Moten provided the Commissioner with a further report, having reviewed the practitioner on that day, in the following terms.
Mental state and progress
[The practitioner’s] mental state is appropriate.
Present diagnosis
Depressive episode resolved.
Assessment of current symptoms
Mood not depressed.
Minor anxiety consistent with day to day stressors, not pathological.
Treatment plan
Sertraline 150 mg per day.
Prognosis
[The practitioner] experiences no ongoing symptoms of his previous depressive episode. He experiences the same mild anxiety as would be expected of anyone who holds strong work ethic and strives to maintain good work performance.
[The practitioner’s] prognosis at this stage is that hos [sic] depressive illness has resolved and there is no requirement for ongoing treatment other than continuation of his current medication and 6 monthly review.
Dr Moten provided a further report to the Commissioner on 1 July 2019, having reviewed the practitioner on that day, in the following terms.
Please note this report is the most up to date review and supersedes any previous report.
Mental state and progress
[The practitioner’s] mental state is appropriate.
Present diagnosis
No current diagnosis.
Assessment of current symptoms
Depressive episode resolved.
Treatment plan
Sertraline 150 mg per day.
Prognosis
[The practitioner] experiences no ongoing symptoms of his previous depressive episode.
[The practitioner’s] prognosis at this stage is that his depressive illness has resolved and there is no requirement for ongoing treatment other than continuation of his current medication and six monthly review regarding this.
The Commissioner’s concern has been that Dr Moten in her report of 18 March 2019 expressly referred to the current status of the Tribunal proceedings as being detrimental to the practitioner’s health and that he was unable to move on until this matter is finalised. She also expressed the concern that any re-opening of the proceedings might trigger an exacerbation of depression. However, Dr Moten’s later reports appear to have departed from this position notwithstanding the now ongoing nature of the Tribunal proceedings.
Insofar as the Tribunal proceedings are concerned, and without going into any detail as to the whys and wherefores of this, they were essentially in abeyance and had been for some time when Dr Moten prepared her 18 March 2019 report. However, in April 2019 the proceedings were revivified and, as I have earlier indicated, the parties are now in dispute with respect to procedural matters and as to how to progress those proceedings. Notwithstanding this fact, Dr Moten’s May and July reports appear to provide the practitioner with a relatively clean bill of health.
What can be discerned at this stage is that the revivification of the proceedings and the ongoing disputes between the parties concerning the procedural matters have not yet, to Dr Moten’s professional assessment, caused any form of relapse in the practitioner’s mental state. Nevertheless, it must be understood that the Tribunal proceedings are still at a very early stage, notwithstanding the fact that they have been ongoing (on and off) for more than two years. It can be expected that, as the proceedings continue and the substantive dispute the subject of the proceedings comes to be agitated, the potential for the Tribunal proceedings to have an adverse effect on the practitioner’s mental health and consequently on his capacity to practise will increase.

Dr Moten attended at the hearing of the argument before me. Dr Moten gave careful and measured evidence with respect to the matters about which she was questioned and I accept her evidence. She said that she did not regard the practitioner to be at greater risk of a relapse in his mental health than any other person who might feel anxious or depressed about ongoing legal proceedings. In her view, the practitioner had made a full recovery from his previously diagnosed mental health conditions and that, provided he were to maintain his medication regime, she could not see any reason for this position to change. Dr Moten acknowledged that anyone who had had an episode of depression would have a chance of recurrence. However, because of the treatment the practitioner is now undertaking his condition has now resolved. If he were to stop his medication, she would consider him to be at the same level of risk as anyone else.
In cross-examination by counsel for the Commissioner, Dr Moten explained that the reason she gave the more unqualified opinion in the May and July reports was because she saw no signs or symptoms of depression in the practitioner when she interviewed him on those two occasions. Dr Moten said that the typical signs of depression would be an increase in anxiety, diminished interest or pleasure and impact on social or work function but she saw none of those signs. Whilst Dr Moten was uncomfortable using the word “cured” in this context, she said that it was not appropriate to label someone with a mental health diagnosis for the rest of their life and that this practitioner had had an episode of major depression which had resolved. She would expect that resolution to continue whilst he maintained his medication regime. Dr Moten also indicated that in her view it was appropriate that she see and review the practitioner every six months rather than every two months given his present condition.
Conclusion
On my review of the additional material that has now been provided to the Court bearing on the practitioner’s state of mental health and its potential relevance to the proper conduct of his practice, I am satisfied that it remains important, perhaps essential, that the practitioner continue to be reviewed by Dr Moten as and when recommended by Dr Moten which presently is every six months and that he maintain such treatment regimes as may be prescribed from time to time. In this respect, I am conscious of the fact that the Tribunal proceedings presently on foot are still at an early stage although it is clear from the affidavit evidence before me that they have been and will continue to be hard fought on both sides. In these circumstances, the potential for further strain and stress on the practitioner to lead to a relapse in his mental state, in the event that he were not being adequately treated and medically supervised, is apparent.
In the circumstances, I accept that the Commissioner has a legitimate interest in being assured that the practitioner is remaining compliant with his medical treatment for the foreseeable future. In this respect, the practitioner has offered to give undertakings to the Court. In my view, the undertakings proffered by the practitioner do not go quite far enough. I would invite the practitioner to give undertakings to the Court in slightly stronger terms in which case there would be no need, in my view, to have his practising certificate endorsed with conditions (iii) and (iv). As such, should undertakings in appropriate form be given, I would revoke those conditions. The undertakings I would invite the practitioner to give are as follows.
The practitioner undertakes to the Court,
(i)that the practitioner will consult with his general practitioner and/or his treating psychiatrist at regular intervals as recommended by those health professionals and will comply with such treatment including medication regimes as may be recommended from time to time by his medical practitioners relating to his mental health; and
(ii)that the practitioner will procure his treating psychiatrist or general practitioner to provide to the Commissioner at intervals of no less than six months a report as to the practitioner’s medical state and progress which report is to include the then present diagnosis, the severity of any presenting symptoms, the current treatment plan and current prognosis, with the first report to be provided pursuant to this undertaking on or before 31 December 2019.
These undertakings will remain in place unless and until the practitioner is released therefrom by the Court.
The practitioner has also sought an order dispensing with condition (v) which is in these terms:
Until further order, the practitioner’s legal practice is not to exceed 25 clients at any one time.
The revocation of this condition is also opposed by the Commissioner. In all the circumstances and, in particular, given: that there has been no suggestion of dishonesty or inappropriate or incompetent practice on the part of the practitioner; that the practitioner’s mental health issues have now resolved; and that the Commissioner is to continue to receive regular reports as to the practitioner’s state of mental health, I see no reason why such a restriction on the practitioner’s right of practice should remain. I propose to revoke that condition in any event.
Upon the practitioner undertaking to the Court in the manner as identified in paragraph [24] above, I will order that my earlier orders imposing conditions (iii) and (iv) be vacated and that the conditions endorsed upon the practitioner’s practising certificate to this effect be revoked. In the event that the practitioner is not prepared to give the undertakings, I would order that conditions (iii) and (iv) endorsed on the practitioner’s practising certificate be varied to reflect the terms of the proposed undertakings. I am prepared to order that my earlier order imposing condition (v) be vacated and that condition (v) on the practitioner’s practising certificate be revoked. It would follow, in the event that conditions (iii), (iv) and (v) were revoked, that the practitioner would be entitled to a practising certificate to be re-issued without restriction.
I will hear the parties further on the precise form of orders to be made and any order as to costs.