Legal Services Commissioner v Cooper - [2011] QCAT 209

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 Profession (Solicitors) Rule 2007, r 21

Legal Services Commissioner v O’Connor (No 2) [2006] LPT 002, cited
Legal Services Commissioner v Winning [2008] LPT 13, cited
New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39, 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 10^th November undercover of the letter of the 7^th 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 4^th November and your letter of the 13^th 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…

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.

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Details

Case: [2011] QCAT 209
Decision Date: 17 May 2011

CaseChat Overview and Summary

In the case of Legal Services Commissioner v Cooper, the respondent faced allegations of unsatisfactory professional conduct relating to the use of inappropriate language in correspondence with another solicitor. The matter was brought before the court to determine whether the penalty imposed should be a public or private reprimand, along with a payment of costs. The parties concurred that the conduct in question constituted unsatisfactory professional conduct, but they disagreed on the appropriate penalty. The respondent had expressed regret and issued an apology to both the solicitor and the client, which was noted by the court.

The legal issues the court needed to address involved the nature and severity of the respondent's conduct, the context in which the language was used, and the appropriate disciplinary measures in line with the legal profession's standards. The court was required to balance the respondent's contrition and the need to uphold professional standards against the potential impact of the penalty on the respondent's career and reputation. The court also needed to consider the principles of proportionality and deterrence in its decision-making.

In delivering its judgment, the court examined the specific circumstances of the case, including the tone and content of the respondent's letters. The court acknowledged the respondent's apology and remorse but also stressed the importance of maintaining high professional standards within the legal profession. Considering the factors in mitigation and aggravation, the court decided that a private reprimand would be sufficient, coupled with an order for the respondent to pay costs. The court fixed the costs at $2,500, to be paid within 90 days. The court found that this penalty would serve to address the misconduct while also allowing the respondent to continue their professional career with a clear message about the expected standards of conduct.

Orders

Orders of the court

The respondent pay the Commissioner’s costs fixed in the sum of $2,500.00 within 90 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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