Legal Services Commissioner v Coburn
[2013] QCAT 435
•21 August 2013
| CITATION: | Legal Services Commissioner v Coburn [2013] QCAT 435 |
| PARTIES: | Legal Services Commissioner (Applicant) |
| v | |
| James Patrick Coburn (Respondent) |
| APPLICATION NUMBER: | OCR359-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers; the Panel met to consider the matter on 26 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Assisted by: Mr Ken Horsley Practitioner Panel Member and Dr Margaret Steinberg AM Lay Panel Member |
| DELIVERED ON: | 21 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. James Coburn be publicly reprimanded. 2. That James Coburn pay a pecuniary penalty to the Legal Services Commissioner of $1,000, within 60 days. 3. That James Coburn pay the Legal Services Commissioner’s costs, fixed at $2,000, within 60 days. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where respondent charged with failing to maintain reasonable standards of competence or diligence expected by the public in dealing with a client’s matter – where respondent failed to attend hearing on behalf of client – where adverse order made against client in respondent’s absence – where respondent agreed to reopen proceedings at own expense – where conduct occurred during period of alleged ‘disruption and conflict’ – whether respondent’s conduct constituted unsatisfactory professional conduct or professional misconduct – whether pecuniary penalty appropriate in the circumstances Legal Professional Act 2007 (Qld), s 418, s 419, s 462(1) Law Society of New South Wales v Pearson [2005] NSWADT 206, cited Legal Services Commissioner v Bussa [2005] LPT 005, distinguished Re: Nelson (1991) 106 ACTR 1, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
Mr Coburn, 52, was admitted as a solicitor in 1987. In 2010 he was a partner in Ryan & Bosscher Lawyers.
In that year he was retained by a client charged with a serious criminal offence, in the course of which the complainant also sought a domestic violence order against the client. On 28 July 2010 Mr Coburn appeared for the client in Southport Magistrates Court on both the criminal charge, and the domestic violence order application, and they were adjourned until 2 September 2010.
Thereafter Mr Coburn negotiated with the police in respect of the criminal offence and it was discontinued. Mr Coburn neglected, however, to appear for his client at the Magistrates Court on 2 September 2010 and, in the absence of both, a Magistrate imposed a two year protection order against the client.
Sometime later, in mid-2011, the client discovered he had been unrepresented when the order was made and Mr Coburn agreed to have the domestic violence application proceedings reopened at his own expense. He did that, he says, and the order was set aside on 3 November 2011.
There was also, however, a problem with the client’s weapons licence which was apparently cancelled or withdrawn after the domestic violence order was made and which, Mr Coburn says, he was applying to have reinstated at the time his client died on 22 April 2013 (when it was still unresolved).
The Commissioner brought two disciplinary charges against Mr Coburn. The first arises out of these events and alleges Mr Coburn was, in failing to appear to represent his client, guilty of unsatisfactory professional conduct, or professional misconduct because he failed to maintain reasonable standards of competence or diligence, as expected by a member of the public, in dealing with his client’s affairs. The second charge has been withdrawn.
After a compulsory conference in QCAT the parties agreed that the Tribunal might deal with the matter on the papers (i.e., without an oral hearing) and that they would exchange submissions on sanction. The parties did file and exchange submissions, and the Tribunal met to consider the matter on 26 July 2013.
The Commissioner argues, in short, that Mr Coburn’s delay in dealing promptly with the problems which arose because of his original mistake – not appearing before the Magistrates Court in September 2010 – coupled with his failure to properly communicate with his client about that failure might warrant a finding that he was guilty of the more serious count, professional misconduct under s 419 of the Legal Professional Act 2007 (Qld) (LPA) rather than the less serious unsatisfactory professional conduct which is defined in s 418 of the LPA.
The Commissioner refers, in support of this submission, to earlier decisions of this Tribunal[1] and a decision of the NSW Administrative Decisions Tribunal[2].
[1]Legal Services Commissioner v Bussa [2005] LPT 005; Legal Services Commissioner v Smith [2011] QCAT 126.
[2] Law Society of New South Wales v Pearson [2005] NSWADT 206.
As the Chief Justice observed in one of those decisions, LSC v Bussa, substantial delay in dealing with a client’s affairs for which there is no satisfactory explanation can amount to professional misconduct if it is of a nature and degree which means it would ‘… reasonably be regarded as disgraceful by solicitors of good repute and competency’.[3] It cannot be doubted that gross neglect and delay, particularly if it is part of a pattern, can constitute professional misconduct.[4]
[3] Legal Services Commissioner v Bussa [2005] LPT 005 at 4.
[4] Re: Nelson (1991) 106 ACTR 1 at 20; Re: Moseley (1925) 25 SR NSW 174 at 178.
As this Tribunal also said in LSC v Smith, the question whether or not conduct in a particular case amounts to unsatisfactory professional conduct, or professional misconduct is generally a matter of degree and each case will be determined on its own facts. Gross neglect and delay, particularly if it is part of pattern, can attract a finding of professional misconduct.
In each of the cited decisions, however, the conduct involved recurring instances of failures by a practitioner to take necessary steps on a client’s behalf, accompanied by unexplained delay and, in some instances, either a failure to respond to enquiries from the client about the matter or actually misleading the client in response to enquiries.
The definition of unsatisfactory professional conduct in s 418 of the LPA includes conduct happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
The definition of professional misconduct in s 419 includes unsatisfactory professional conduct which involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; or, conduct (whether as part of legal practice, or not) which would justify a finding that the practitioner is not a fit and proper person to practise as a lawyer.
Mr Coburn’s conduct cannot reasonably be categorised (and the Commissioner does not urge) as behaviour which could lead to a finding that he is not a fit and proper person to engage in legal practice. Nor does it involve a ‘substantial or consistent’ failure to maintain reasonable standards of competence or diligence. Rather, it is a solitary instance which, in the panel’s view, means it falls readily, and much more apparently, within the definition of unsatisfactory professional conduct.
In his written submissions Mr Coburn says that at the time of these events the firm of which he was a partner was going through a period of disruption and conflict and he had, himself, a heavy workload. He also says that he has since adopted a system in his current firm which keeps a rigorous track of court appearances, and will ensure errors of this kind do not reoccur.
It is also apparent, from the submissions, that Mr Coburn has not otherwise ever been the subject of disciplinary proceedings, or professional censure; that no allegation of dishonesty features in the charge; that he both claims, and actually demonstrated, an appropriate degree of remorse (by taking steps, at his own expense, to remedy the problems caused by his non-appearance); and, that the conduct appears to be a solitary instance of its kind.
The Commissioner seeks a public reprimand, and a fine in the order of $1,000 - $3,000.
The pecuniary penalty imposed in LSC v Smith was $2,000. The level of offending here is lower and, in the panel’s view, should attract a penalty of $1,000. The Tribunal agrees that a public reprimand constitutes appropriate censure.
The Commissioner is entitled to costs[5] and seeks an order that they be fixed at $2,000. Mr Coburn does not disagree.
[5] LPA s 462(1).
The Tribunal is satisfied that the charge brought against Mr Coburn warrants a finding of unsatisfactory professional conduct and orders that:
a) Mr Coburn be publicly reprimanded.
b) That he pay a pecuniary penalty to the Commissioner, within 60 days, of $1,000.
c) That he pay the Commissioner’s costs, fixed at $2,000, within 60 days.
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