Legal Services Commissioner v Cooper
[2011] QCAT 209
•17 May 2011
| CITATION: | Legal Services Commissioner v Cooper [2011] QCAT 209 |
| PARTIES: | Legal Services Commissioner (Applicant) |
| v | |
| Charles Allen Cooper (Respondent) |
| APPLICATION NUMBER: | OCR095-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Assisted by: Ms Julie Cameron (Practitioner Panel Member) Ms Kathleen Keating (Lay Panel Member) |
| DELIVERED ON: | 17 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The respondent pay the Commissioner’s costs fixed in the sum of $2,500.00 within 90 days. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent used language in two letters to another solicitor which was discourteous, offensive or provocative in breach of r 21 of the Legal Profession (Solicitors) Rule 2007 – where the parties agree that the behaviour constituted unsatisfactory professional conduct – where the respondent has expressed regret and issued an apology to the solicitor and client – whether the penalty imposed should be public or private reprimand and payment of costs Legal Profession Act 2007, ss 418, 420, 456 Legal Services Commissioner v O’Connor (No 2) [2006] LPT 002, 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 (QCAT Act). The Tribunal met and considered the parties’ submissions on 21 March 2011.
REASONS FOR DECISION
Mr Cooper, a very experienced solicitor, accepts that the language he used in two letters to another solicitor on 17 November 2008 and 1 December 2008 was discourteous, offensive or provocative to a sufficiently serious degree as to constitute unsatisfactory professional conduct under s 418 of the Legal Profession Act 2007 (LPA).
The letters were written by Mr Cooper for a client in proceedings which arose out of a family dispute. Mr Cooper acted for the husband.
In the letter of 17 November 2008 Mr Cooper said, in part:
We note that according to the documentation that you provided us on the 10th November undercover of the letter of the 7th November, as of 4 November your client had $43,830.01 in her bank account. Presumably she has spent all of that in the period between the 4th November and your letter of the 13th November! Given the manner in which the funds under her control have been depleted, that seems an excessive rate of expenditure even for your client who has already spent over $180,000.00 in joint funds in the last 12 months.
ln the letter of 1 December, Mr Cooper said:
I have advised my client to instruct me not to respond to anymore of your correspondence. It just seems to me that every time you have got no work to do you return to [the wife’s] file because there is plenty of money there to pay your legal fees.
Later in the same letter, he wrote:
The children’s issues are never going to be resolved at the mediation. The likelihood is that your client and her family have done so much damage to [child] that my client will never have a meaningful relationship with his daughter. Your client will live to regret that in the future, when [child] grows up and becomes as dysfunctional as your client is.
Rule 21 of the Legal Profession (Solicitors) Rule 2007 provides that a solicitor, in all of the solicitor’s dealings with other legal practitioners, must take all reasonable care to maintain the integrity and reputation of the legal professional by ensuring that the solicitor’s communications are courteous, and that the solicitor avoids offensive or provocative language or conduct.
Under s 418 of the LPA, unsatisfactory professional conduct is defined to include 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.
Under s 420 of the LPA conduct consisting of a contravention of a relevant law, like r 21, is capable of constituting either unsatisfactory professional conduct or professional misconduct. Read together, it can be seen that unsatisfactory professional conduct can be constituted, at one end of the scale, by offensive, gratuitous and unjustified remarks and, at the other end, by the relatively minor ‘discourtesy’.
Initially the Commissioner alleged that Mr Cooper’s conduct constituted unsatisfactory professional conduct and/or professional misconduct. Following a compulsory conference at QCAT the Commissioner accepted that the conduct evinced in the two letters should only be categorised as the lesser charge under s 418: that is, unsatisfactory professional conduct.
[10] Mr Cooper accepted that categorisation. The only matter about which the parties are not in agreement is the appropriate penalty or sanction that this Tribunal should impose. The Commissioner argues for a public, or at least a private reprimand. Mr Cooper, through his lawyer, contends that the penalty should be limited to payment of the applicant’s costs (agreed at $2,500) or, at the highest, a private reprimand.
[11] Upon a finding that the lawyer has engaged in unsatisfactory professional conduct the Tribunal may make any order it thinks fit, including orders of the kind set out in s 456 of the LPA which include, under section 456(2)(e), an order publicly reprimanding or, if there are special circumstances, privately reprimanding the practitioner.
[12] When determining the question of penalty the Tribunal is to have regard, primarily, to the need to protect the public and, in that respect, to consider principles of general and personal deterrence.[1] Disciplinary orders are, it is said, protective but not punitive in nature.[2]
[1] Attorney-General v Bax (1999) 2 Qd R 9, per Pincus J at 21.
[2] LSC v Madden (No 2) [2008] QCA 301at [39].
[13] The only other case involving the use of offensive or insulting language in communications to which the parties could refer the Tribunal was Legal Services Commissioner v Winning [2008] LPT 13 in which the lawyer was publicly reprimanded. As the report shows, however, his conduct was far, far worse than Mr Cooper’s. On several occasions he used grossly offensive and obscene language in court, and in conversations with other legal practitioners and officials, with reference to fellow practitioners and high public legal officials.
[14] Two things are advanced, in particular, by the Commissioner in support of a submission that a public reprimand should be administered to Mr Cooper here: first, that the fact the letters were sent on instructions from his client is, it is said, an aggravating factor because he failed to strike an appropriate balance between his professional obligations, and the legitimate pursuit of his client’s interests. It is also said that, while this case is novel, important principles of general deterrence justify the imposition of a sanction like a public reprimand.
[15] The Tribunal does not think the first submission is forceful: the client’s strong feelings are relevant, and explain the words Mr Cooper chose, and he should have fought harder against allowing the heat in the dispute itself to colour his own language but the lapse is hardly so serious as to constitute an aggravating factor.
[16] In Legal Services Commission v O’Connor (No 2) [2006] LPT 002 Mullins J observed, when discussing penalties in these disciplinary cases, that the order must reflect the nature of the conduct which has been the subject to the finding against the respondent, the factors that have been identified in favour of the respondent, the public interest, and deterrence; and, that in some matters it is general, rather than personal deterrence which is more significant.
[17] In New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39 the NSW Tribunal discussed the use of public and private reprimands, and remarked at [128]:
A difference between a ‘public reprimand’ and a ‘private reprimand’ is that the former, being published, can act as a warning to others not to offend in a similar way. A reprimand that remains private can really act only as a personal deterrent. Therefore, in the case of a legal practitioner who himself requires no deterrence, one factor that might determine whether a reprimand should be public would be whether there is any reasonable possibility that one or more other legal practitioners might act in the same way as the legal practitioner under consideration. If there is no such likelihood, one reason for imposing a public reprimand would be absent.
[18] There are a number of factors in this case which point to the conclusion that there are no special circumstances warranting a private reprimand of Mr Cooper. He is a senior solicitor who has been practicing for 30 years, with an unblemished record. The conduct occurred over two years ago and, since that time, there have been no further allegations against him of this type of behaviour. The charge does not involve any element of dishonesty, or lack of confidence. Importantly, he has expressed regret for his conduct and issued a letter of apology to the solicitor to whom the letters were addressed and, also, to her client.
[19] The only question which has exercised the Tribunal is whether or not the conduct warrants a public reprimand. On any view, the language used in the letters is intemperate, inappropriate, and discourteous and in some respects offensive; but, as already observed, the circumstances here pale beside what was said and done in Winning, and the comparison suggests that a public reprimand here might be excessive.
[20] A relevant question, raised in Sahade, is whether a public reprimand might be necessary because there is a reasonable possibility that other legal practitioners could act in the same way – and should be deterred, if possible.
[21] Certainly, the risk that lawyers might communicate with each other in offensive or inappropriately discourteous terms is a real one, as the existence of Rule 21 acknowledges. That said the rule does, however, speak for itself and acts as a constant constraint upon lawyers.
[22] In the present case Mr Cooper’s language is intemperate and disappointing but it is difficult to see how a public reprimand of him could have any effect of general deterrence. All lawyers ought to be familiar with the rule already.
[23] It is also necessary to consider whether the imposition of any sanction of that kind is, in all the circumstances, justified. This case involves, when compared to Winning, a very minor breach committed in private circumstances by a practitioner of 30 years standing who has never, previously, required discipline or admonishment in any way. Once those factors are taken into account, they tell against any benefit in, or need for, a public reprimand for Mr Cooper.
[24] In the circumstances there should be a finding of unsatisfactory professional conduct, and an order that Mr Cooper pay the Commissioner’s costs fixed in the sum of $2,500 within 90 days.
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