Legal Profession Conduct Commissioner v A Practitioner - [2017] SASC 81

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
LEGAL PROFESSION CONDUCT COMMISSIONER v A PRACTITIONER
[2017] SASC 81
Judgment of The Honourable Justice Nicholson
6 June 2017
PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES - CANCELLATION AND SUSPENSION
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA
The Legal Profession Conduct Commissioner has commenced disciplinary proceedings against the practitioner in the Legal Practitioners Conduct Tribunal. The Commissioner also applied to this Court for an order suspending the practitioner's practising certificate on an interim basis, that is, pending the outcome of the disciplinary proceedings.
Held:
1. The Commissioner's application for an order suspending the practitioner's practising certificate on an interim basis is dismissed.
2. Until further order, the practitioner's practising certificate will be subject to and endorsed with the conditions identified in paragraph [58] of the judgment.
Legal Practitioners Act 1981 (SA) s 77L, s 82, s 89A, Sch 4, referred to.
Legal Practitioners Conduct Board v Viscariello [2012] SASC 92; Law Society of South Australia v Nicholson [2004] SASC 2, considered.

LEGAL PROFESSION CONDUCT COMMISSIONER v A PRACTITIONER
[2017] SASC 81
Civil: Application
NICHOLSON J.
Introduction

The Legal Profession Conduct Commissioner has applied for an order suspending the practising certificate of the defendant practitioner on an interim basis. The application is brought pursuant to the power conferred on a single Judge of this Court by both section 89A of the Legal Practitioners Act 1981 (SA) (the Act) and pursuant to the inherent jurisdiction of the Court.[1]
[1] See generally Blue J in Legal Practitioners Conduct Board v Viscariello [2012] SASC 92 at [37] and the cases there cited.
The application is opposed. The proceedings were conducted over a number of short hearings and the following affidavits were received in support of and in opposition, respectively, to the application.
(i)Two affidavits sworn by Kathryn Anne Caird on 16 March and 18 April 2017, read on behalf of the Commissioner;
(ii)Four affidavits sworn by the practitioner on 31 March, 13 April, 13 April and 26 April 2017, read on behalf of the practitioner; and
(iii)One affidavit sworn by Margaret Graham-King on 13 April 2017, read on behalf of the practitioner.
In addition, at the hearing on 28 April 2017, the practitioner tendered a copy of a letter from the practitioner’s solicitor to the Commissioner dated 27 April 2017, together with a document recording details of the practitioner’s attendance at various continuing professional development (CPD) courses which had been referred to in the letter.
The Commissioner has recently commenced disciplinary proceedings against the practitioner in the Legal Practitioners Disciplinary Tribunal (the Tribunal). The present proceedings are in the nature of interlocutory proceedings. Any findings of fact I may make will be made for this purpose only and are to be understood as potentially having been based on incomplete material. They may be the subject of review at any later substantive hearing.
Factual background
The practitioner is 54 years of age and was admitted to practice on 15 December 1986. He holds a current practising certificate which is due for renewal on 1 July 2017. The practitioner conducts a sole practice from his residence in an inner northern suburb of Adelaide. The practice can be described as a commercial and litigation advising practice. The practitioner does not operate a trust account.
On 23 February 2017, the Commissioner commenced disciplinary proceedings against the practitioner by way of laying a charge of professional misconduct in the Tribunal, pursuant to section 82(2) of the Act. There have been two directions hearings before the Tribunal but, as yet, no substantive hearing of the charge.
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.
The first investigation
The first investigation by the Commissioner concerns admitted conduct by the practitioner in practising without a practising certificate during the period 1 July 2013 to 16 December 2013 and in continuing to do so after the practitioner became aware on 29 August 2013 of the non-renewal of the practising certificate. The practising certificate was renewed for the period after 16 December 2013 and, thereafter, the practitioner has continued to practise under the authority of a current practising certificate. The Commissioner commenced an investigation into this conduct on 26 August 2014.
The practitioner’s explanation for this failure given on oath is that he had thought he had renewed his practising certificate which was on a low fee earner basis but that he was unwell at the time.
I make no finding as to the accuracy or adequacy of this explanation. However, the proffered excuse of being “unwell” is a reference to an ongoing psychiatric condition which the practitioner revealed during these proceedings and for which the practitioner is now being treated. However, now that the Commissioner has been made aware of this ongoing condition and the effects it has had on the practitioner’s capacities to function, the Commissioner’s concerns as to the practitioner’s fitness to practise have been exacerbated. I will return to this issue.
The second investigation
The second investigation concerns the admitted failure by the practitioner to lodge with the Law Society a low fee earner declaration for the 2014/2015 year by 31 August 2015 in accordance with an undertaking to do so. The Commissioner commenced an investigation into this conduct on 9 November 2015.
The practitioner’s explanation for this failure again is based on his being unwell. In his first affidavit, sworn 31 March 2017, the practitioner expressed his “present intention” to provide the declaration “in order to complete the record”. An apparently complying form of declaration was executed on 27 April 2017 (some 20 months overdue) and is attached to the letter of that date provided to the Commissioner by the practitioner’s solicitor, referred to earlier.
The third investigation
The third investigation concerns the admitted conduct by the practitioner in failing to comply with the Law Society’s random audit request for documentation verifying the practitioner’s compliance with his compulsory CPD obligations for the 2014/2015 year. The Commissioner commenced an investigation into this conduct on 22 December 2015. Again, the practitioner’s explanation is that this failure arose as a consequence of his ill health.
In his first affidavit, the practitioner deposed to having completed the CPD requirements for the year in question and that it was his intention to provide the relevant information. A document identifying the practitioner’s CPD activities for the relevant year has now been provided, as referred to above. I make no finding as to the accuracy or adequacy of this documentary response. The practitioner also has deposed to the fact that he undertook relevant CPD activities for the two subsequent financial years and has provided the required reports in a timely manner.
The fourth investigation
The fourth investigation concerns a complaint by a former client about the practitioner’s failure to return original probate related documents to the former client. The complaint also raised issues of delay and poor communication. The documents were returned following a conciliation of the matter in December 2015. The issues of delay and poor communication are now the subject of the Commissioner’s investigation.
The practitioner has deposed to his embarrassment in relation to this matter and to the fact that the delays in his progressing of the relevant probate application had been caused by the complexity of the matter and his ill health. It is the practitioner’s understanding that, after he handed over the file, the will was promptly admitted to probate.
The fifth investigation
The fifth investigation concerns a failure by the practitioner to deliver a client’s documents to a new solicitor. A complaint to this effect, received by the Commissioner, was dated 14 December 2014. The documents were not delivered until early January 2016. The subject of the investigation is the practitioner’s failure to respond to numerous telephone calls and correspondence.
The practitioner has deposed to the fact that at all times until the relevant documents were handed over in January 2016, they were held in safe custody. The practitioner has also explained that the two clients referable to the fourth and fifth complaints had a family association, son-in-law and father-in-law, respectively, with the former being a very senior work colleague of the practitioner at an earlier place of employment and a personal friend. The practitioner had left the earlier place of employment under very stressful conditions (through no fault of the practitioner’s) and it was this stressful environment that either caused or exacerbated the practitioner’s subsequent psychiatric ill health.
According to the practitioner, these matters including the personal relationship between the two clients and himself caused or generated in his mind an “irrational conflict” which caused or exacerbated his dilatory behaviour.
Only the fourth and fifth investigations concern the practitioner’s dealings with clients. Without seeking in any way to minimise or to pre-empt what might result from a later substantive hearing, were the practitioner’s unsatisfactory professional conduct or professional misconduct to be confined to these two instances of inappropriate behaviour towards a client, such on its own would not necessarily lead to suspension of a practising certificate.
By way of further response to the fourth and fifth investigations, the practitioner has deposed to the belief that his state of mental health has now recovered sufficiently such that he would not expect to have similar problems with respect to clients in the future. He no longer has any professional association with the two clients in question or with the family. I infer that the problematic behaviour which gave rise to the fourth and fifth inquiries was to a degree client specific.
The Commissioner’s Notices
On 22 April 2016, as a consequence of the practitioner’s failures to cooperate satisfactorily or at all with the Commissioner’s office in relation to the five investigations, the Commissioner issued five Notices to the practitioner, one in relation to each of the five investigations (the Notices).
Each notice was issued pursuant to clause 4(1) of Schedule 4 to the Act which is in the following terms:
4—Requirements that may be imposed for investigations under Part 6
(1)For the purpose of carrying out a complaint investigation in relation to a legal practitioner or former legal practitioner, an investigator may, by notice served on the practitioner or former practitioner, require the practitioner or former practitioner to do any 1 or more of the following:
(a)     to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document);
(b)     to provide written information on or before a specified date (verified by statutory declaration if the requirement so states);
(c)     to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.
Each of the Notices required the practitioner to produce documents and other information purportedly relevant to its cognate investigation and falling within the power conferred on the Commissioner by clause 4(1).
The required response times were staggered; the first response was due by 10 May 2016 and the last was due by 7 June 2016. The practitioner failed to respond to the Notices within the times specified or for a very lengthy time thereafter. Indeed, the practitioner has only very recently purported to respond by way of his solicitor’s letter to the Commissioner of 27 April 2017, referred to earlier.
The Commissioner regards the responses as desultory and wholly inadequate. They are in these terms.
I refer to the Notices at Exhibit “KAC2” of your affidavit sworn on 16 March 2017 and provide the following responses on behalf of my client.
In relation to Notices 1 & 2, my client apprehends that he may no longer have in his possession the relevant documents, due to his illness. He has sought the assistance of the Law Society to source the documents requested.
In that regard, I attach a copy of his e-mail to the Law Society and their reply of even date.
Noting that my client awaits the production of the documents the subject of Notices 1 & 2, my client has instructed me to respond as follows:
1.Renewal of Practising Certificate for financial year commencing 1 July 2013.
My client instructs that he was issued with a Practising Certificate (retrospectively) in respect to the relevant financial year.
2.     Low Fee Earner Declaration – 2014-2015 financial year
My client has today provided a Declaration in respect to that financial year, in order to complete the record. A copy of the Declaration is attached to this letter.
My client instructs that the reason for his failure to lodge his Declaration within the appropriate time-frame was due to his illness.
3.     CPD during the 2014-2015 financial year
My client instructs that he did comply with the CPD requirements, and I attach details regarding same.
4.     Mr [SP’s] father’s Will file
My client instructs me that he gave the file to Mr. [P’s] sister, who is a co-executrix of the Estate of their late father. Accordingly, my client no longer has the file and has not retained a copy of that file.
5.     Complaint of Mr [W]
My client instructs that he delivered the file as requested and does not hold a copy of the file.
I am further instructed that my client was unable to comply with the communications due to his illness
For completeness, I set out the terms of the email from the practitioner to the Law Society seeking copies of documents and the Law Society’s email response (in reverse order).
Dear ...,
We have these documents electronically stored but I will have them emailed to you early next week.
Regards,
Rosalind Burke Director (Ethics and Practice)
…
Good Morning
I have been required to produce to the Legal Profession Conduct Commissioner certain documents relating to the investigation of these matters:
1. Renew of my Practising Certificate for the financial year commencing 1 July 2013; and
2. My failure to lodge a Low Fee Earner Declaration in respect to the financial year commencing 1 July 2014.
In that regard, it would be helpful if you could make available for inspection the Law Society’s correspondence with me in respect to these matters, including in particular;
a. All correspondence concerning renewal of my Practising Certificate for the financial year commencing 1 July 2013; and
b. All correspondence concerning my failure to lodge my FY 2014-2015 Low Fee Earner Declaration since 12 October 2015.
Since this matter is the subject of a directions hearing in the Legal Practitioners Disciplinary Tribunal on 10 May 2017, I would be grateful for your reply in the near future.
I am happy to visit your office at a mutually convenient time to inspect the relevant documents.
Yours sincerely
Given the extended failure by the practitioner to respond to the Commissioner’s request for information, including the Notices, together with the detrimental effect this has had on the Commissioner’s capacity to conduct his investigations, the Commissioner initiated a further or sixth investigation on 2 September 2016. The practitioner did not respond with respect to this investigation.
On 2 February 2017, and after considering all the circumstances, the Commissioner found himself satisfied that there was evidence of professional misconduct by the practitioner by reason of his repeated failures to cooperate with the Commissioner’s office concerning each of the investigations. The Commissioner found himself satisfied of the requirements provided for in section 77L of the Act and, on 23 February 2017, laid a charge of professional misconduct against the practitioner before the Tribunal. The charge alleging professional misconduct is particularised by reference to alleged multiple failures over a lengthy period of time to respond to the Notices and the Commissioner’s requests for documents and information concerning each of the investigations.
The nature of the practitioner’s practice
As earlier indicated the practitioner conducts a small essentially non-litigious practice involving commercial legal advice and document preparation. He has conducted such a practice for the last seven years or so in the areas of commercial advice and transactions, property development, employment and administrative law.
In his second affidavit, the practitioner deposed to having 12 active matters and a number of “dormant” matters being matters either “awaiting further instructions” or “pending finalisation”. Some of the matters are described by the practitioner in his first affidavit as “significant commercial transactions”, including matters involving a substantial acquisition of real property, the defence of a takeover bid and advice concerning whether or not a client’s proposed scheme of operation would contravene consumer legislation. The practitioner provides a regular service to a small number of ongoing clients. The practitioner has never during his years of sole practice needed to operate a trust account.
The practitioner’s ill health
The practitioner has deposed to the fact that he had been diagnosed by his previous, now retired, general practitioner as suffering from “a longstanding medical condition in the nature of post-traumatic stress disorder”. According to the practitioner, this has had the effect of inhibiting him from properly dealing with the complaints. The practitioner has more recently been assessed by Dr Blakemore, a general psychiatrist, as suffering “a primarily depressive illness, an adjustment disorder with depressed and anxious mood, one from which he is recovering”. Dr Blakemore has provided to the Court a very comprehensive report, dated 12 April 2017, outlining, inter alia, the practitioner’s general and medical history, the factual basis upon which his diagnosis relies, the likely cause of the practitioner’s ongoing mental health difficulties which have been longstanding for a number of years and his prognosis. It is unnecessary to go into the background to the diagnosis and the prognosis in any detail.

According to Dr Blakemore, whilst the practitioner is recovering, this has come about only recently as a consequence of commencing antidepressant medication. Prior to this treatment, the practitioner had been seriously depressed for quite some time. Dr Blakemore also expressed the view, based on the history provided and clinical presentation, that the practitioner appears fit for work. However, Dr Blakemore noted that whether or not some form of supervision or monitoring might be necessary would depend on how the practitioner coped with practise and was a matter which could not be determined by psychiatric assessment.
Of potential significance, Dr Blakemore described a favourable prognosis. He opined as follows.
[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.
The practitioner, in his fourth affidavit, in addition to exhibiting the Dr Blakemore report, deposed to his ongoing medical treatment as follows.
a.I consulted with Dr Moten [the practitioner’s current general practitioner] again on 20 April 2017.
b.At that consultation, I gave Dr Moten a copy of Dr Blakemore’s report for her to peruse and review.
c.Dr Moten told me to continue to take my prescribed medication and she gave me a further prescription of that medication (sertra - generic form of zoloft - 50 mg). I should note in respect to this medication, which is a selective serotonin reuptake inhibitor (SSRI) which I have been taking since 30 March 2017) that it is the first time that I have been prescribed an SSRI form of medication; previously Dr Mitchell [the practitioner’s former general practitioner] had prescribed several “natural” medications.
d.Dr Moten told me that the medication she had prescribed would take about six weeks to be fully effective.
e.Dr Moten confirmed my appointment to see the psychiatrist Dr Flynn on 18 May 2017.
f.Dr Moten made a further appointment for me with her on 28 May 2017.
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.
Legal principles relevant to an application for interim suspension
Section 89A of the Act provides as follows:
89A—Court may order interim suspension of legal practitioner or impose interim conditions
If—
(a)disciplinary proceedings have been instituted against a legal practitioner before the Tribunal or the Supreme Court or a legal practitioner has been charged with or convicted of a criminal offence; and
(b)the Supreme Court is satisfied that the circumstances are such as to justify invoking the provisions of this section,
the Supreme Court may, on its own initiative or on the application of the Commissioner, the Attorney-General or the Society, make an interim order—
(c)imposing conditions on the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) relating to the practitioner's legal practice; or
(d)suspending the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate),
until disciplinary proceedings against the practitioner have been finalised or until further order.
There are no such preconditions to the exercise of the Court’s inherent jurisdiction over a legal practitioner. Apart from this, whether or not the inherent jurisdiction confers a power of interim suspension that is wider than that conferred by section 89A does not need to be considered.[2]
[2] As to the inherent jurisdiction in a related context and generally, see Law Society of South Australia v Nicholson [2004] SASC 2.
Given that disciplinary proceedings have been instituted in the Tribunal, section 89A confers jurisdiction in the present case. Further, there is no reason to think that the principles applicable to an application under section 89A would not apply to an application in reliance on the inherent jurisdiction.
I adopt as the applicable relevant principles those summarised by Blue J in Legal Practitioners Conduct Board v Viscariello.[3] In so doing, it is to be borne in mind that Blue J was concerned with the situation following a finding by the Tribunal of professional misconduct as a result of which proceedings had been commenced (but not resolved) in the Supreme Court. Furthermore, in those proceedings the practitioner concerned was challenging the Tribunal’s findings.[4]
[3] [2012] SASC 92 at [46].
[4] In Viscariello, an earlier form of the Legal Practitioners Act 1981 (SA) governed the proceedings. The regime dealing with disciplinary proceedings was quite different to that which presently applies. However, in my view, the basic principles espoused by Blue J continue to apply to the issue of interim suspension.
In the present case, there have been no findings at all by the Tribunal to this point, although much of the conduct alleged by the Commissioner as constituting and therefore supporting a finding of professional misconduct does not appear to be contested.
Blue J summarised the relevant principles as follows.
1.In determining whether the circumstances are such as to justify invoking the provisions of section 89A and in exercising the discretion what order (if any) should be made, the public interest is a major consideration.
2.For this purpose, the extent to which an interim order is necessary or desirable for the protection of the public or to maintain public confidence in the profession is a relevant consideration.
3.Ordinarily, there should be a prima facie case of unprofessional conduct established where it is that conduct which gives rise to the perceived need for public protection or maintenance of public confidence.
4.Ordinarily, a prima facie case will be established by virtue of the Tribunal having made findings of unprofessional conduct, albeit subject to appeal. If the Court were to assess that an appeal challenging the finding was bound to succeed, it may be (depending on the reason for the assessment) that no prima facie case would be established.
5.Hardship to the practitioner is a relevant consideration, particularly in exercising the discretion whether to make an order and to what effect. In this respect, it is relevant to take into account that there are no means for compensating the practitioner for loss suffered due to an order (especially of suspension) if the practitioner’s appeal is successful.
6.However, to the extent that the interests of the practitioner are to be weighed against the public interest, the public interest is ordinarily regarded as predominant.
[footnotes omitted]
Proposition 4 above does not directly apply given the absence of any findings to this point. Nevertheless, on the basis of the affidavit evidence relied on by the Commissioner without objection by the practitioner, I am satisfied that a prima facie case of professional misconduct has been established.
Consideration – should an order for interim suspension be made
The Commissioner contends that the power to order suspension has been enlivened and should be exercised at least until the Notices are complied with. Independently of section 89A and the inherent jurisdiction, clause 5(7) of Schedule 4 to the Act expressly confers a discretion to suspend a practising certificate whilst failure by a practitioner to comply with a notice properly issued pursuant to clause 4(1) subsists. Section 5(7) is in these terms.
5—Provisions relating to requirements under this Part
...
(7)The Supreme Court may, on application by the Commissioner or the Society, or on its own initiative, suspend a legal practitioner's practising certificate while a failure by the practitioner to comply with the requirement continues.
The Commissioner argues for this position, a fortiori, where a reason for the failure to comply, being the practitioner’s mental health difficulties, persists. In his written submission, the Commissioner has put it in this way:
The failure to comply with the Notices itself enlivens a discretion to suspend the practitioner’s right to practise whilst that failure continues. The Commissioner submits that that discretion should ordinarily be exercised in favour of suspension at least until the notices are complied with. This should particularly be so where, as here, the reason for the failure to comply (the practitioner’s mental health) persists. Here the fact of the failure to comply with the notices, as well as the circumstances surrounding the failure to comply and the subject matter of the notices all speak of serial and chronic neglect and delay by the practitioner in attending to his practice.
[footnote omitted]
This submission must be accorded significant weight. However, I am not prepared to give it such weight as the Commissioner has urged upon the Court. There is no evidence that the practitioner is presently (or has been during the last 18 months or more) unable to attend to his client matters. The only client instigated concerns are the two failures by the practitioner to comply in a timely way with his obligations to return documents, the subject of the fourth and fifth investigations, and which relate to conduct by the practitioner in 2014 and 2015. Whilst this may, in time, be found to constitute a serious derogation from the practitioner’s professional obligations, such a finding has not yet been made. The practitioner has provided an explanation for this behaviour which is yet to be tested and whilst not to be seen as a justification may be seen as mitigatory as to penalty. The explanation is in part based on the practitioner’s then mental health problems now being treated and, apparently, successfully so.
There is no doubt that the practitioner’s conduct in connection with the Commissioner’s investigations raises serious concerns which are to be fully explored before the Tribunal and, if thereafter appropriate, this Court. However, the evidence does not support a finding that this conduct has been such as to directly harm or risk causing harm to clients or the public generally and particularly now that an underlying cause has been recognised and is being addressed.
The Commissioner also contends that the evidence provided by the practitioner does not indicate that any significant prejudice would follow from an interim suspension. There are no current or pending litigation matters, no suggestion of urgent matters such that the practitioner could not first and urgently attend to complying with the Notices and, being in sole practice, no hardship to employees is envisaged.
Again, this submission is to be accorded some weight. However, the practitioner is dealing with a number of matters which, on the face of the descriptions provided, appear to comprise ongoing legal involvement of a complex nature. They concern matters of substantial financial import and are plainly very important to the clients. It is not possible to know the extent to which urgent or, at least, timely action by the practitioner with respect to any given matter may be required or may come to be required. Where the fundamental concern that has been raised is the practitioner’s capacity to act in a timely way, there is an element of paradox to a submission that the practice should be put on hold in order for the practitioner to first fully comply with the Notices. The paradoxical nature is exacerbated by the fact that it is now out of the hands of the practitioner to know with certainty when a compliance will be seen, either by the Commissioner or the Tribunal, as satisfactory.
I am satisfied that a suspension of the applicant’s practising certificate for an uncertain time is likely to cause hardship to his clients either by way of appreciable delay in having their matters attended to by the practitioner or additional expense and delay in transferring their matters to another solicitor. I am also satisfied that the likely hardship to the practitioner would be substantial. At a minimum there would be delayed and or lost income. However, far more likely would be the loss of clients and quite possibly the loss of or irremediable damage to his practice. This may well be the outcome once the disciplinary proceedings on foot were to be concluded. However, one should proceed cautiously at the interlocutory level given that there is a more than appreciable risk of such harm to the practitioner.
The Commissioner has sought interim suspension if only to require the practitioner to urgently comply with the Notices. The power conferred by clause 5(7) of the Schedule 4 to the Act does suggest that interim suspension can be used in such an in terrorem manner as the Commissioner contends. I will assume so, without deciding.
A failure to urgently comply (as opposed to a failure to comply properly or at all) is not of the essence of the complaint against the practitioner and particularly now that the matter is before the Tribunal. Further, the authorities are clear, as the Commissioner has acknowledged, that interim suspension of the practising certificate is not to be employed as a means to punish a practitioner.
The practitioner in this matter has: (finally)[5] made an attempt at (partial) compliance with the Notices; given an explanation why a more fulsome compliance has not been forthcoming; and has expressed an intention to further comply when documentation becomes available. The fact of and the adequacy or otherwise of any compliance to this point and any further compliance that may take place will be matters, in due course, for the Tribunal.
[5] See the solicitor’s letter of 27 April 2017, referred to earlier.
A suspension until “compliance” would raise practical difficulties, in this case, as to when and how such a condition might be satisfied. It also would have an element of pre-empting the Tribunal’s consideration of these matters. Furthermore, suspension simply for the purpose of encouraging further compliance (that is, in the absence of any real need to protect the public in this respect) would seem to lack utility in this case. The practitioner has expressed his intention to comply. He has sought legal assistance in this respect and any form of further compliance hereafter will be inextricably bound up with his defence of the Tribunal proceedings.
In support of his application, the Commissioner has also drawn attention to a prior disciplinary matter concerning the practitioner. The practitioner was found to have failed, in 1997, to respond to a request for information and delivery up of a file by the Legal Practitioners Conduct Board and to have failed, in this context, to respond to statutory Notices. Following a hearing in the Legal Practitioners Conduct Tribunal, a finding of unprofessional conduct was made and a reprimand and a fine of $5,000 were imposed.[6] Prior conduct similar to that the subject of the present proceeding is, of course, a quite material consideration. However, it arose out of circumstances that occurred some 20 years ago and the weight to be given to it is to be tempered accordingly.
[6] In the matter of [A Practitioner], Reasons of the Legal Practitioners Disciplinary Tribunal, 14 July 1999.
I have balanced the considerations identified earlier as relevant to the question of whether an order for interim suspension of the practitioner’s practising certificate is warranted. I am not so satisfied. I am conscious of the need not to pre-empt the Tribunal’s findings or this Court’s findings should there be any later referral from the Tribunal, particularly as to penalty. Whilst the factual basis relied on by the Commissioner is very concerning, it is not open to me in these proceedings to punish. Ultimately, I am not satisfied that any need to protect the public or to maintain public confidence in the profession is such as to outweigh the very real risk of significant hardship to the practitioner and his clients should an order for interim suspension be made. In this respect, I am conscious that any perceived need to protect the public interest is to be regarded as the predominant consideration.
Section 89A of the Act, provides as an alternative to interim suspension, the power to make an interim order imposing conditions on a practitioner’s practising certificate. The Commissioner has sought, in the alternative, that a number of such conditions be imposed as identified in a document headed Draft Minutes of Order provided to the Court at the time of the most recent hearing. The proposed conditions are numerous, detailed and very onerous as to their intended application. They include provisions to the effect: that the practitioner is to practice only under intensive supervision of another practitioner who is to provide periodic fulsome reports to the Commissioner; that this supervision is to be at the expense of the practitioner; that, in the interest of respecting client confidentiality issues, every existing and new client is to be informed of the supervision arrangements and is to provide written consent to the proposed supervisor examining and discussing the client’s file with the practitioner; that the practitioner’s practice is to be limited to 20 files at any one time; and that the practitioner is to provide to the Commissioner a report from the practitioner’s treating psychiatrist at intervals of not less than every three months.
The proposed sub-conditions designed to regulate the nature of the proposed supervision are numerous and onerous. The situation envisaged would border on having a manager appointed to conduct the practice with the assistance of the practitioner.
Conditions such as those proposed may well be appropriate as an interim measure in a case where a practitioner has been found guilty of serious professional misconduct such as to put clients and the public interest at risk of harm and where suspension or cancellation of the practising certificate has been ordered but is under appeal. That is not this case. Importantly, the imposition of such a regime as that proposed by the Commissioner would most likely lead to a large scale loss of the practitioner’s clients and perhaps irremediable detriment to or loss of the practice as a whole.
Essentially for the reasons already provided, I am not satisfied that conditions of this nature are justified. There is no evidence of ongoing conduct in the practice in need of restraint. There is no evidence of any risk of harm to clients or to the public. There have been no allegations relating to dishonesty or malpractice (apart from the earlier failures to return documents the subject of the fourth and fifth investigations).
After having regard to all of the circumstances, I have concluded that conditions should be imposed but in a significantly more moderate form than those as proposed by the Commissioner. I intend to make an interim order pursuant to section 89A of the Act, imposing the following conditions on the practitioner’s practising certificate.
(i)Until further order the practitioner is to have fortnightly meetings with Margaret Graham-King a legal practitioner.[7] Those meetings are to canvass the following:
[7] Ms Graham-King has indicated her willingness to assist the practitioner in this way.
(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 her assessment of 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 to provide to the Commissioner at intervals of no less than every 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.

Upon the making of the orders I have indicated, the practitioner is to be released from his undertaking given to the Court during the hearing of this matter, and being to the effect that he would not accept instructions from new clients until further order.
Conclusion
I make the following orders.
1.The Commissioner’s application for an order suspending the practitioner’s practising certificate on an interim basis is dismissed.
2.Until further order, the practitioner’s practising certificate will be subject to and endorsed with the conditions identified in paragraph [58] above.
3.Liberty to either party and Margaret Graham-King to apply.
I will hear the parties on the question of costs.