Legal Profession Conduct Commissioner v Freer - [2024] SASCFC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LEGAL PROFESSION CONDUCT COMMISSIONER v FREER
[2024] SASCFC 5
Judgment of The Full Court (ex tempore)
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice B Doyle)
17 December 2024
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - CRIMINAL OFFENCES
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - FALSIFICATION OF DOCUMENTS AND TRANSACTIONS
The Legal Profession Conduct Commissioner (the Commissioner) seeks orders that the name of Mark Adam Freer (the practitioner) be struck off the roll of legal practitioners maintained under the Legal Practitioners Act 1981 (SA) (the Act), and that he pay costs.
The practitioner was admitted to practice in South Australia in February 2011.

In June 2021, the practitioner pleaded guilty to a charge of fabricating evidence, contrary to s 243 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). In September 2022, the practitioner was found guilty by a jury of a charge of aggravated theft, contrary to s 134(1) of the CLCA. Both offences were committed in circumstances directly related to the practitioner’s practice as a legal practitioner.
Earlier, in March 2016, the practitioner misappropriated a client’s money for his own benefit. In July 2017 the practitioner made a false statutory declaration without speaking to or meeting with the declarant which enabled a fraudulent loan transaction. The Commissioner determined that both incidents comprised evidence of professional misconduct which could not adequately be dealt with under s 77J of the Act.
The practitioner consented to strike-off.
Held (the Court) striking the practitioner’s name from the roll of practitioners:
1. Where a legal practitioner has been found guilty of serious offending involving dishonesty and the misappropriation of trust monies, that will usually demonstrate a fundamental defect in the practitioner’s character, rendering the practitioner unfit to practise.
2.The practitioner's professional misconduct, when viewed as whole, represents a serious departure from the standards reasonably expected from members of the legal profession over a lengthy period. The Court cannot be confident that the practitioner is capable of fulfilling the essential obligations associated with the practice of law.
3.The Court must, where possible, protect the public from legal practitioners who act without honesty and integrity. It is essential that the community and the Court be able to rely upon the integrity and trustworthiness of legal practitioners.

Criminal Law Consolidation Act 1935 (SA) ss 134, 243; Legal Practitioners Act 1981 (SA) ss 5, 77J, 88A, 89, referred to.
Barristers Board v Young [2001] QCA 556; Coe v New South Wales Bar Association [2000] NSWCA 13; Freer v The King [2023] SASCA 69; In re A Practitioner [1941] SASR 48; In re A Practitioner (1982) 30 SASR 27; Legal Profession Conduct Commissioner v Moore [2022] SASCFC 2; Legal Profession Conduct Commissioner v Radin [2024] SASCFC 1; Legal Profession Conduct Commissioner v Thomas [2017] SASCFC 159;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Legal Profession Conduct Commissioner v Freer

Details

AGLC: Legal Profession Conduct Commissioner v Freer [2024] SASCFC 5
Case: [2024] SASCFC 5
Decision Date: 17 December 2024

CaseChat Overview and Summary

The Legal Profession Conduct Commissioner brought proceedings against Mr Freer, a legal practitioner, before the Supreme Court of South Australia. The Commissioner sought to have Mr Freer found guilty of professional misconduct and to have his name struck from the roll of legal practitioners. The dispute arose from Mr Freer's criminal convictions for fabricating evidence and aggravated theft, as well as his admission to witnessing signatures on loan documents without meeting the declarants, which facilitated a fraudulent transaction.

The Court was required to determine whether Mr Freer's conduct constituted professional misconduct and, consequently, whether he was a fit and proper person to remain on the roll of legal practitioners. This involved considering the implications of his criminal convictions and the admitted falsification of documents on his professional standing and the public's confidence in the legal profession.

The Court reasoned that Mr Freer's actions, including fabricating evidence and misappropriating client funds, represented extraordinary breaches of trust and a gross departure from the expected standards of legal practitioners. The Court noted that such conduct strikes at the heart of public confidence in the legal profession and the administration of justice. Applying the principles of professional discipline, the Court concluded that the maintenance of public confidence necessitated the removal of Mr Freer from the roll.

Accordingly, the Court ordered that Mr Freer's name be struck from the roll of legal practitioners and ordered him to pay the Commissioner's costs.

Orders

Orders of the court

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Background

Background to the litigation

As will be seen, the practitioner was the subject of criminal proceedings in the District Court and the Commissioner has invited this Court to adopt the findings made in the District Court concerning the sentence imposed by Judge Slattery on 31 January 2024, relying on s 89(5)(b) of the Act. Relevant background The practitioner is a “legal practitioner” within the meaning of s 5 of the Act because he is a person who was duly admitted and enrolled as a barrister and solicitor of the Supreme Court of South Australia. The practitioner was admitted in South Australia on 16 February 2011. The practitioner was born on 28 May 1971 and is currently 53 years. The practitioner ceased legal practice during September 2016 and has not since held a practising certificate. On 29 June 2021, the practitioner pleaded guilty to a charge of fabricating evidence, contrary to s 243 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The practitioner admitted creating and filing a false affidavit with the intention of influencing the outcome of judicial proceedings. On 14 September 2022, the practitioner was found guilty by a jury of a charge of aggravated theft, contrary to s 134(1) of the CLCA. The practitioner’s appeal against conviction was dismissed by the Court of Appeal on 15 June 2023.[1][1] Freer v The King [2023] SASCA 69. The aggravated theft charge concerned the practitioner’s dealings with two bank cheques totalling $67,500 in 2014. These had been provided to him by his cousin, a client, in the expectation that they would be deposited into the trust account of the practitioner’s employer. The practitioner did not deposit the cheques into this trust account. Rather, he opened a new bank account in the name of a business he controlled. He deposited the cheques into that account and misappropriated the money for his own benefit until the account was overdrawn in January 2016. On 12 February 2024, Judge Slattery made the following sentencing remarks:The swearing of a false affidavit in the name of another and the opportunistic theft by you as a solicitor of moneys from a client and close family member are extraordinary breaches of trust which constitute a gross departure from the expected conduct of legal practitioners in whom such trust is placed. Such conduct brings the legal profession into disrepute in the eyes of the wider community.…… your offending strikes at the heart of public confidence in the legal profession and the administration of justice generally. It should be made clear to other legal practitioners in the community that such offending is inexcusable and is to be regarded as the most serious breaches of the professional obligation to which all legal practitioners are beholden. After the practitioner was released on parole in June 2024, on 23 August 2024, the Commissioner determined that the practitioner’s conduct evidenced professional misconduct and demonstrated that the practitioner was not fit to practise. In addition, on 20 July 2017, the practitioner made a statutory declaration in which he admitted witnessing signatures on a loan agreement and associated documents without ever meeting with or speaking to the declarant. That conduct enabled a fraudulent loan transaction to be completed and a mortgage to be registered on the title of an innocent party. As a consequence of proceedings in the Supreme Court of Queensland, the mortgage and all associated loan and security documents witnessed by the practitioner were declared void and of no effect.[2] [2] Tycho Pty Ltd v Trustworthy Nominees Pty Ltd [2021] QSC 95.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In all of these circumstances, it is clear that the maintenance of public confidence in the legal profession requires that an order be made striking the practitioner’s name from the roll maintained by this Court.Conclusion There will be an order striking the practitioner’s name from the roll. The practitioner must pay the Commissioner’s costs to be agreed or taxed.

Ratio Decidendi

Legal Principle Established

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