Legal Services Commissioner v McClelland
[2011] QCAT 337
•21 July 2011
| CITATION: | Legal Services Commissioner v McClelland [2011] QCAT 337 |
| PARTIES: | Legal Services Commissioner (Applicant) |
| V | |
| Douglas Laing McClelland (Respondent) |
| APPLICATION NUMBER: | OCR121-10 |
| MATTER TYPE: | Occupational Regulation Matters |
| HEARING DATE: | On the papers, 15 June 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Assisted by: Mr Ken Horsley (Practitioner Panel Member) Dr Susan Dann (Lay Panel Member) |
| DELIVERED ON: | 21 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That the respondent be publicly reprimanded. 2. That the respondent pay a pecuniary penalty of $3,000 within four months. 3. That the respondent pay the applicants’ costs fixed at $1,000, within 30 days. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – COMPENSATION – where the respondent accepts that he wrongly acted for both parties in a conveyancing transaction, in breach of rule 85 of the Queensland Law Society Rules 1987 – where the respondent has previously been the subject of an order by a disciplinary body – appropriate penalty Legal Profession Act 2007 ss 418, 419, 456 Legal Services Commissioner v Cassidy [2009] VCAT 2141, 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’ written submissions on 15 June 2011.
REASONS FOR DECISION
Mr McClelland, a solicitor, accepts that he wrongly acted for both parties in a conveyancing transaction, in breach of rule 85 of the Queensland Law Society Rules 1987. In particular, he acted for both the purchaser of real estate and a party which loaned money to the purchaser to complete the transaction.
After a Compulsory Conference[1] presided over by the Deputy President of QCAT on 8 April 2011 the parties filed a statement of agreed facts, signed on behalf of them both, and made separate but concurring submissions about the penalty that should be imposed upon Mr McClelland.
[1] Under the Queensland Civil and Administrative Act 2009, ch 2.
He is a solicitor, aged 50, who was admitted in 1999. At the time the offence occurred in 2005 he was employed as a solicitor in a legal practice at Oxenford. He took instructions from a Mr & Mrs Scott with respect to the purchase of a residential property at Runaway Bay and negotiated an unconditional contract on their behalves.
As it transpired, however, the Scotts did require some finance to complete the purchase. That need arose in circumstances of surprise, and some urgency, and the day before settlement was due both they and the lender instructed Mr McClelland to draw up loan documents. He did so, although he sent the Scotts to another solicitor, ostensibly to supervise the execution of those documents. The Scotts say that solicitor did not explain the documents to them.
In the result Mr McClelland accepts that he acted for both the Scotts and the lender, that is for both parties in the same transaction, in breach of rule 85.
It is necessary, under the prevailing legislation (the Legal Profession Act 2007) to determine whether the breach comprises unsatisfactory professional conduct (s 418) or the more serious professional misconduct (s 419). The Commissioner contends, and the Tribunal accepts, that the misconduct falls within the first category – conduct 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. That is the conclusion which has been reached, elsewhere, by the Legal Practice Committee in Queensland,[2] and in The Victorian Civil and Administrative Tribunal.[3]
[2] Legal Services Commissioner v McCarthy [2010] LPC 004-10, 8 December 2010.
[3] Legal Services Commissioner v Cassidy [2009] VCAT 2141.
In light of that finding the Tribunal may make any order about sanction or penalty it thinks fit, including those set out in s 456 of the Act. The sanction that is imposed is not intended, primarily, as punishment for the lawyer but is rather directed to protecting the community from unsuitable practitioners. Relevantly, the offending here occurred in circumstances of some urgency and the solicitor made an attempt (albeit, an ineffective one) to meet the demands of the rule. The Commissioner submits, and the Tribunal also accepts, that the solicitor acted without any dishonest or deceitful intention.
In Legal Services Commissioner v McCarthy the respondent acted for both parties but, when a conflict arose, discontinued acting for one although he continued to represent the other. He was fined $1,500, and publicly reprimanded. Here, the Commissioner contends (and the respondent does not disagree) that the circumstances warrant a higher fine, in the order of $3,000.
There are two reasons for the Tribunal to impose a higher fine here: the first is that Mr McClelland did not acknowledge the error of his ways until quite late in the proceeding before QCAT; and the second, that he has previously been the subject of an order by a disciplinary body. In that earlier case[4] he shared the receipts of his law practice with an unqualified person and, also, failed to give purchaser clients a certificate required under the Property Agents and Motor Dealers Act2000.
[4] Legal Services Commissioner v McClelland [2006] LPT 13.
[10] The Tribunal, comprised of the Chief Justice and the two panel members who (coincidentally) also sit here, found that the first of these charges involved professional misconduct and the second, unprofessional conduct; ordered that Mr McClelland be publicly reprimanded on the first charge; suspended his practising certificate for four months; and, ordered that he pay the Commissioners’ costs.
[11] It is inescapable that the practitioner was aware, on the occasion of the present offending, that his conduct involved a breach of the rule. He should, again, be the subject of a public reprimand; ordered to pay a pecuniary penalty of $3,000; and, also ordered to pay the applicants’ costs which are agreed at $1,000. He has asked for four months in total to pay the fine and costs, and that is not unreasonable.
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