Legal Services Commissioner v Desacola
[2013] QCAT 432
| CITATION: | Legal Services Commissioner v Desacola [2013] QCAT 432 |
| PARTIES: | Legal Services Commissioner (Applicant) |
| v | |
| Carlito Jose Desacola (Respondent) |
| APPLICATION NUMBER: | OCR342-12 |
| 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: | 20 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent be publicly reprimanded. 2. The Respondent pay a pecuniary penalty to the Applicant of $1,000, within 60 days. 3. The Respondent pay the Applicant’s costs, fixed at $2,000, within 120 days. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where respondent held unrestricted employee practising certificate – where respondent was not to engage in legal practice other than for providing in-house legal services to employer – where respondent provided private legal services outside scope of practising certificate and obtained payment for that work – where respondent charged with operating in contravention of conditions attached to practising certificate – where Legal Services Commissioner seeks orders that respondent be publicly reprimanded, pay a pecuniary penalty and pay Commissioner’s costs – whether conduct constitutes professional misconduct or unsatisfactory professional conduct – whether pecuniary penalty reasonable in the circumstances Legal Profession Act 2007 (Qld), 53(1), s 418, s 419 Law Society of New South Wales v Jayawardena (2005) NSWADT 96, distinguished |
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) (QCAT Act).
REASONS FOR DECISION
Mr Desacola, 36, was working as an in-house solicitor with an investment company in 2009/2010 when he provided private legal services to a fellow-employee and received money in the form of legal costs from her.
At the time he held what is called an unrestricted employee practising certificate which, pursuant to s 53(1) of the Legal Profession Act 2007 (Qld) (LPA) meant that he could not engage in legal practice ‘… other than for providing in-house legal services to his employer …’.
The Commissioner brought disciplinary proceedings against him. Mr Desacola filed a Response admitting the charge and its particulars in all important respects. After a compulsory conference before a Senior Member of this Tribunal, the parties agreed to exchange written submissions on the orders which ought be made by this Tribunal, including sanction, and also agreed that the matter could be dealt with by the panel on the papers. The parties did file and exchange submissions and the panel met, for that purpose, on 26 July 2013.
In his Response Mr Desacola admits that in the second half of 2009 he began to act for a fellow employee in her proceedings against a financial planner. He took instructions from her and lodged a claim and statement of claim in the Queensland Supreme Court (which did not, however, disclose that he was acting as her solicitor). Later, he prepared a reply to the financial planner’s defence and also established an email address for the purpose of sending and receiving correspondence in the employee’s case. He also sought and obtained a scanned signature from her for the purpose of including it in that email correspondence.
The Commissioner alleges that on 6 and 8 August 2010 Mr Desacola met with his client and sought payment for his work, and she agreed to pay him $17,500. There is some disagreement in the parties’ submissions about precisely what occurred at meetings around that date, but it is not in dispute that on 19 August 2010 the client paid Mr Desacola $17,500.
His misconduct involves the combination of acting beyond the limits set by his practising certificate and obtaining payment for that legal work.
Mr Desacola was admitted as a solicitor in Queensland in 2001. He has an otherwise unblemished record. He has repaid the sum of $17,500 to the complainant and, he says, apologised to her on several occasions. He has also attended, at his own expense, a Queensland Law Society seminar on professional ethics for in-house legal counsel, and sought an extension to the scope of his legal practising certificate so as to enable him to provide legal services to both his corporate employer and members of the public in general. He has also tendered a number of favourable references.
The Commissioner seeks orders that he be publicly reprimanded, pay a fine in the order of $1,000 - $2,000, and pay the Commissioner’s costs fixed at $2,000.
Mr Desacola contends that a private reprimand would be sufficient; or that, if a public reprimand is imposed, that there be no pecuniary penalty; and, that because he cooperated fully with the Commissioner, he should not be ordered to pay costs or that they should be fixed at $500.
The LPA contains what are called key concepts; that is, that misconduct by legal practitioners may be categorised either as unsatisfactory professional conduct (s 418) or professional misconduct (s 419). The first is defined to include conduct that falls short of the standard of competence and diligence that a member of public is entitled to expect of a reasonably competent Australian legal practitioner. The second involves a more serious level of offending – relevantly, here, either unsatisfactory professional conduct involving a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, or conduct which, if established, would justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
The Commissioner, in his written submissions, takes a neutral position about findings this Tribunal might make on that question. In the view of the panel Mr Desacola’s misconduct cannot fairly be described as ‘substantial or consistent’, or as being of such a nature as to warrant a finding that he is not a fit and proper person to engage in legal practice. It does not, then, qualify as the more serious professional misconduct. It can, however, be readily categorised as behaviour falling short of the standards of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and, therefore, be fairly described as unsatisfactory professional conduct.
As to penalty, while this is an apparently isolated incident it is material that Mr Desacola knew, or certainly ought to have known, that he was acting in breach of a strict condition imposed upon his practising certificate. His desire to assist a fellow employee in what was, it appears, a worthwhile cause of action is understandable but it is the act of receiving both instructions, and substantial legal fees, which must attract both condemnation and an appropriate sanction. It is, moreover, necessary that any penalty reflect the need to maintain proper standards in the profession, set an example to other lawyers and, where necessary, deter other practitioners from engaging in similar conduct.
In his submissions Mr Desacola refers to the Tribunal’s decision in Legal Services Commissioner v La Spina[1] where a solicitor falsely witnessed a signature on a statutory declaration in order to protect his partner and her children. The Tribunal, after making a finding of actual professional misconduct, concluded that no pecuniary penalty was warranted because the only person injured by the misconduct was the solicitor himself.
[1] [2012] QCAT 183.
La Spina was, the decision itself acknowledges, an ‘exceptional’ case[2]. In particular the Tribunal held that a finding of professional misconduct was, itself, sufficient for the purposes of general deterrence. Mr Desacola’s behaviour has not been so seriously categorised, but constituted a knowing breach of a professional obligation in circumstances which warrant a public reprimand and which, also, meets what the panel believes is the need for a sanction which incorporates the deterrent purposes set out in paragraph [12] above.
[2] Ibid [19].
The panel is also persuaded that a pecuniary penalty should be imposed. In Law Society of New South Wales v Jayawardena[3] the practitioner was also charged with practising outside the restrictions imposed by his certificate but, also, attempting to mislead the NSW Law Society, failing to comply with a notice issued under the relevant legislation and, failing to cooperate during the investigation. The practitioner was publicly reprimanded and ordered to pay a fine of $2,500.
[3] (2005) NSWADT 96.
Here, Mr Desacola has cooperated with the Commissioner and not contested the charge against him in any material respect. In that circumstance a penalty of $1,000 is, the panel considers, appropriate.
Under s 462(1) the Tribunal must make an order requiring that a person who it is found guilty of professional misconduct or unsatisfactory professional conduct pay costs, including the Commissioner’s costs, unless satisfied that exceptional circumstances exist.
In his submissions Mr Desacola contends that the Commissioner’s costs might have been reduced if his invitation to resolve the matter at an earlier stage had been accepted, thereby avoiding the need for directions hearings, a compulsory conference, the exchange of written submissions which followed it, and a meeting of the panel. The submission fails to take into account the Tribunal’s obligations, under both the QCAT Act and the LPA, to consider and fairly and fully address disciplinary charges brought under the legislation.
It is not suggested (and, indeed, could not be) that the Commissioner exceeded his powers when he brought the disciplinary proceeding. Mr Desacola’s original response, while substantially admitting the charge and all its particulars, did raise matters indicating that allegations of fact remained in dispute. The Tribunal’s own procedures involving an early directions hearing followed by a compulsory conference before a Senior Member and, subsequently, referral to the panel to address the matter on the papers reflect a procedure which minimises expense to the parties, and the State, and is timely. It is not apparent that any other course was reasonably open to the Commissioner, or the Tribunal.
For these reasons the panel concludes that no exceptional circumstances exist and that Mr Desacola should pay the Commissioner’s costs, fixed in the amount of $2,000.
The Tribunal concludes that the disciplinary proceeding involves the charge which warrants a finding that Mr Desacola was guilty of unsatisfactory professional conduct; and that an appropriate penalty requires:
a) A public reprimand.
b) That he pay a pecuniary penalty of $1,000 to the Commissioner, within 60 days.
c) That he pay the Commissioner’s costs, fixed at $2,000, within 120 days.