Legal Services Commissioner v King (No 2)
[2013] QCAT 558
•20 November 2013
| CITATION: | Legal Services Commissioner v King (No 2) [2013] QCAT 558 |
| PARTIES: | Legal Services Commissioner (Applicant) |
| v | |
| Ms Karen Louisa King (Respondent) |
| APPLICATION NUMBER: | OCR257-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | Heard on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Fryberg, Member Mr Ken Horsley |
| DELIVERED ON: | 20 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Recommend that the name of Karen Louisa King be removed from the local roll. 2. Order that Karen Louisa King pay the costs of the Legal Services Commissioner in the proceedings to be assessed. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS Legal Profession Act 2007 (Qld) s 418, s 419, s 443, s 443(4)(a). Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498, cited Attorney-General v Bax [1998] QCA 089; [1999] 2 Qd R 9, cited Countrywide Banking Corporation Ltd v Kingston [1990] 1 NZLR 629, cited Legal Services Commissioner v King [2013] QCAT 260, cited Rubik Financial Ltd v Herskope [2010] WASC 343, cited |
APPEARANCES and REPRESENTATION (if any):
This matter of Sanction was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
FRYBERG J: On 2 July 2013 my reasons for judgment in this matter were published. I found four of seven “charges” brought by the Commissioner against the respondent legal practitioner proved. In the light of the findings I directed the parties to file further written submissions about whether the conduct proved amounted to unprofessional conduct or professional misconduct and about disciplinary orders by 19 July.
On the same day, an officer of the Registry posted a copy of the reasons (including the direction) to the solicitors on the file for the respondent. That was returned on 8 July and the Registry was informed that those solicitors were no longer representing Ms King. A copy of the reasons was then posted to Ms King personally at her address on the Tribunal file. I assume that it was delivered in the usual course of the post; it was not returned.
Submissions on behalf of the Commissioner were filed on 26 July. At the request of the Commissioner an officer of the Registry posted a copy of those submissions to Ms King on 1 August. On the following day, my associate received the following e-mail:
“Dear Associate,
I received on Wednesday the judgment in this matter. i have been in Victoria since early February as my daughter has been seriously ill and required specialist treatment.
I request time to consider the judgment and also to seek advice on and have materials prepared in relation to the matters required by His Honour. Given that my daughter remains ill, and that I am not practising in any event, I would seek at least three months to do this. In additon to the above matters, my Lord Campbell's matter in relation to my husband's death is to be heard this September. As the trial is to proceed for 5 -6 days, this will consume much of my time from now.
I realise that I am seeking an indulgence, but in the circumstances, would ask that some consideration be given to these matters.
Yours Faithfully,
Karen King.”
On my instructions he replied to her:
“His Honour has directed that I remind you that it is quite improper for one party to litigation to approach the judge unilaterally to seek some benefit. He is unwilling to consider your request made on that basis.
He assumes that as a solicitor you are aware of the correct way to deal with the matter.”
Lest it be thought that that response was unduly formalistic, I record that I gave the direction having regard to the length of the extension being sought. I might have acceded to a request for a short extension, but took the view that the Commissioner should be given notice of what Ms King sought.
Ms King contacted the solicitor for the Commissioner on 5 August and, it seems implicitly, sought his agreement to a three month extension as sought by her. On 9 August counsel for the Commissioner advised my associate:
"In circumstances where there is no reason to believe Ms King is currently engaged in legal practice in Queensland or Victoria, there may not be any prejudice in granting the request. Ultimately the Commissioner does not make any particular submission as to how His Honour should further deal with Ms King's request.”
In these circumstances I was prepared to allow Ms King further time. Due to my pending retirement it was not possible to allow the full three months which she requested. I allowed her until 25 October 2013.
On 25 October my associate received an e-mail apparently from Ms King and copied to counsel for the Commissioner. It provided no submissions but attached an affidavit purportedly affirmed by Ms King, who now, it seems, also uses the name Karen Louisa Mann. It exhibited three medical reports written in 2009 and 2010 and one dated 25 October 2013. They show that in 2009 she was diagnosed by a psychiatrist as suffering major depression and was complaining of sleepwalking. Court proceedings resulting from the death of her husband were seen as presenting unresolved issues which impeded her treatment and threatened to aggravate her condition.
The October 2013 report records that those proceedings have been resolved, presumably recently. Nonetheless the psychiatrist, Dr Mark Whittington, diagnosed recurrent major depression. He wrote:
"Mental state examination as of the 23rd October 2013 revealed a woman with dark hair who was heavily made up with bright red lipstick, black fingernails and gold jewellery wearing a dark jacket, very short black dress and black shoes. She communicated an anxious affect, there was a degree of emotional fragility, she certainly displayed a range of emotions including upset as she spoke of her story. Whilst her history and background reveals that she has an above average intelligence, I nevertheless concluded that she was quite disorganised, mislaying her wallet and becoming quite flustered during the interview. Although she spoke and gave a comprehensive history in the limited time available, one got the sense that she was overwhelmed, struggling to cope and quite emotionally fragile. There was no evidence of any cognitive abnormalities but I have little doubt that her mental state, in particular her depression, was contributing to disorganisation and her ability to make good judgments and manage herself. She was not psychotic. Whilst there had been past suicidal ideation I did not assess her as currently being a risk to herself.
Having made a diagnosis of a recurrent Major Depression I prescribed her Lexapro 10mg per day and made arrangements to see her to commence regular therapy, which I think is a prerequisite for this who is struggling to cope with the multitude of stressors. I think she needs a significant dose of emotional support, ongoing grief work and importantly management of a depressive illness."
Characterisation of the conduct
The conduct found proved was:
1. Drawing money held on trust (for Ms Martin) without authority;
2. Failing to provide an itemised bill of costs to a client (Ms Martin);
6. Failing without reasonable excuse to comply with a written notice issued by the Commissioner;
7. Failing to honour an undertaking to counsel (Mr Clark) given with her authority.
The conduct was described in detail in the Tribunal's reasons delivered on 2 July.[1]
[1] Legal Services Commissioner v King [2013] QCAT 260.
The Legal Profession Act 2007 defines unprofessional conduct and professional misconduct inclusively:
"418 Meaning of unsatisfactory professional conduct
Unsatisfactory professional conduct includes conduct of an Australian legal practitioner 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.
419 Meaning of professional misconduct
(1) Professional misconduct includes—
(a)unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate."
The Commissioner submits that the conduct in charges 6 and 7 amounted to professional misconduct and that in charges 1 and 2 to unsatisfactory professional conduct. At the original hearing Ms King made no submissions as to the characterisation of the conduct in charges 6 and 7, but submitted that the conduct in charges 1 and 2 was of insufficient gravity to amount even to unsatisfactory professional conduct.
Section 443 of the Legal Profession Act 2007 is concerned with the Commissioner's powers of investigation. The importance of that section is reflected in the consequence which it mandates for the conduct proved against Ms King in relation to charge 6: she is taken to have been guilty of professional misconduct.[2]
[2] Legal Profession Act 2007, s 443(4)(a).
The Commissioner has submitted that the conduct in relation to charge 7 is the most serious of the proved misconduct. He submitted, in the words of Thomas J which have often been applied, that the conduct “violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.”[3] The importance of honouring professional undertakings is well-established.[4] I accept the Commissioner's submission. The conduct constituted professional misconduct.
[3] Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 at 507.
[4]See, eg, Hawkins v Gaden (1925) 37 CLR 183; Wade v Licardy (1993) 33 NSWLR 1; Legal Profession Complaints Committee v Detata [2012] WASCA 214 at [48]–[54]; Vincent Cofini [1994] NSWLST 25; Rubik Financial Ltd v Herskope [2010] WASC 343 at [21]; Countrywide Banking Corporation Ltd v Kingston [1990] 1 NZLR 629 at 640.
I am satisfied that Ms King's conduct in withdrawing trust monies without authorisation (charge 1) was not trivial. Indeed I can see arguments to support the view that it amounted to professional misconduct. Ms King applied the money withdrawn to her own use in her general account. However it seems reasonably clear that had she rendered proper invoices in accordance with the legislation she would have been entitled to payment of a sum of the order of the amount withdrawn. She acted as she did to avoid the delay and perhaps the cost which would be incurred by drawing the bill in assessable form. She was short of money. Not without hesitation I conclude that the conduct amounted only to unsatisfactory professional conduct.
I also accept the Commissioner's submission that the conduct involved in charge 2 amounted to unsatisfactory professional conduct. Ms King's failure to provide the requested account arose from a combination of a lack of detail in her file and a desire to avoid the trouble and expense of drawing the account. It was a serious omission because she knew that her account would absorb most of the funds then available to her client.
Disciplinary action
The correct approach to determining disciplinary orders was correctly summarised in the submissions of the Commissioner:
"[8]When considering the appropriate disciplinary orders to be made following findings of professional misconduct and/or unsatisfactory professional conduct, regard is to be had primarily to the need to protect the public and in this regard to consider principles of general and personal deterrence.[5] Disciplinary orders are not imposed as punishment but rather in the interests of the protection of the community from unsuitable practitioners.[6]
[9]The test for removal of a legal practitioner from the roll is well known. The issue is whether the respondent should any longer be held out as fit to practice or whether he is 'a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor'.[7]"
[5]Attorney-General v Bax [1999] 2 Qd R 9 at 21 per Pincus J; Queensland Law Society v Carberry [2000] QCA 450 at 38.
[6] Legal Services Commissioner v Madden [2009] 1 Qd R 149 at [122].
[7]See Queensland Law Society v Bax [1999] 2 Qd R 9; Queensland Law Society v Whitman [2003] QCA 438 at [36]; Queensland Law Society v Priddle [2002] QCA 297.
The misconduct proved against Ms King took place over a period of two years. It did not reflect a temporary aberration. Mr Clark remained unpaid for about two years and was never paid the fees owing to him in full. When challenged toward the end of 2008, Ms King did not admit her misconduct. Her lack of understanding was demonstrated by her attempt to mislead the Commissioner through the concoction of a letter which was never sent[8], and by her attempt to mislead the Queensland Law Society by asserting that bills had been sent to Ms Martin.[9] I find that she was not a fit and proper person to be entrusted with the duties and responsibilities of a solicitor.
[8] Legal Services Commissioner v King [2013] QCAT 260 at [225].
[9] Legal Services Commissioner v King [2013] QCAT 260 at [168].
Her understanding did not improve with the effluxion of time and the benefit of legal advice. At the hearing in 2011 she supported her continuing denial of the charges by false testimony. She invented an agreement by Mr Clark in order to give credibility to her evidence about the undertaking.[10] She invented an agreement by Ms Martin to dispense with her request for an itemised bill.[11] She maintained her reliance on the concocted letter of 2 July 2008 to the Commissioner and fabricated evidence to attempt to support her position.[12]
[10] Legal Services Commissioner v King [2013] QCAT 260 at [22], [38].
[11] Legal Services Commissioner v King [2013] QCAT 260 at [196].
[12] Legal Services Commissioner v King [2013] QCAT 260 at [238].
Ms King's continuing lack of understanding demonstrated that she remained unfit to be entrusted with the duties and responsibilities of a solicitor. That being so, her name should be removed from the roll.
The recurrence of her long-standing major depressive illness in no way detracts from that conclusion.
In the absence of exceptional circumstances the Tribunal must order Ms King to pay the Commissioner's costs. It has not been suggested that any such circumstances exists.
Orders
The orders of the Tribunal are:
1.Recommend that the name of Karen Louisa King be removed from the local roll;
2.Order that Karen Louisa King pay the costs of the Legal Services Commissioner in the proceedings to be assessed.
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