Legal Services Commissioner v Murphy

CITATION: Legal Services Commissioner v Murphy [2016] QCAT 18

PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
John Paul Murphy (Respondent)

APPLICATION NUMBER: OCR087-13

MATTER TYPE: Occupational Regulation matters

HEARING DATE: 20 November 2015

HEARD AT: Brisbane

DECISION OF: Justice DG Thomas, President
Assisted by:
Mr Thomas Bradley QC, Legal panel member
Ms Julie Cork, Lay panel member

DELIVERED ON: 22 January 2016

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The respondent is publicly reprimanded.

2.    The respondent is to pay a pecuniary penalty of $3,000.00.

3.    The respondent is to undertake an ethics course nominated by the Bar Association of Queensland.

4.    The respondent pay the applicant’s costs assessed on the Supreme Court Scale of costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where counsel initiated a meeting with opponent’s client – where 2007Barristers Rulerequires that barristers must not deal directly with an opponent’s client unless the opponent has previously consented to the direct dealing – whether conduct unsatisfactory professional conduct or professional misconduct

Barristers Rule 2007 r 55
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498
Legal Services Commissioner v Bradshaw [2009] QCA 126
Legal Services Commissioner v Cooper [2011] QCAT 209
Legal Services Commissioner v Murphy [2015] QCAT 381
New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr S McLean

RESPONDENT: Mr AJ Morris QC

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

1. Following the decision of the Tribunal delivered on 22 September 2015,[1] each party filed submissions in relation to the appropriate characterisation of the conduct (whether or not it should be categorised as unsatisfactory professional conduct or professional misconduct) and penalty.

   [1]Legal Services Commissioner v Murphy [2015] QCAT 381.

Submissions

1. The Legal Services Commissioner submitted as follows:

   a)The primary role of disciplinary proceedings is to protect the public.

   b)It is the public who have the interest in the efficient administration of justice and so requirements of standards, such as rule 55 of the 2007 Barristers Rule, (‘rule 55’) are important.

   c)The standard of the profession is to have no direct dealings with the opponent’s client and if this were to occur, in the exceptional case, it was found by the Tribunal that the practitioner must approach the opponent in a full and frank and honest way, informing his opponent of what is intended and seeking consent against that background.  By doing this, the client is not deprived of the benefit of advice as to the invitation to attend and meet directly.[2]

   [2]Ibid at [51] and [52].

   d)It should be concluded that the practitioner’s conduct fell substantially short of the standard required for a number of reasons, which include:

   i)     Mr Murphy was aware of the existence of rule…