Legal Services Commissioner v Orchard
[2012] QCAT 583
•22 November 2012
| CITATION: | Legal Services Commissioner v Orchard [2012] QCAT 583 |
| PARTIES: | Legal Services Commissioner (Applicant/Appellant) |
| v | |
| Mark Raymond Orchard (Respondent) |
| APPLICATION NUMBER: | OCR078-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 28 September 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Assisted by: Matthew Douglas Woods Kathleen Anne Keating |
| DELIVERED ON: | 22 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent Mark Raymond Orchard is publicly reprimanded. 2. The respondent must pay the Commissioner’s costs fixed in the sum of $1,500 within 30 days. 3. Any application for compensation from the law practice is to be made to this Tribunal and given to the members of Mr Orchard’s law practice within twenty-one days, and: a) any further submissions by or on behalf of the applicant is to be filed in this Tribunal and given to the respondents within fourteen days thereafter; b) any submissions by or on behalf of the members of the law practice are to be similarly filed and given to the applicant or their legal representatives within fourteen days thereafter; and, c) when that has been effected, the Tribunal will (absent any request for an oral hearing) deal with that application for compensation on the papers. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – UNSATISFACTORY PROFESSIONAL CONDUCT – where the Respondent sent a letter including an affidavit made by his client which contained details of a sexual relationship between his client and a complainant and advised that the affidavit would be available to key people should the complainant proceed with her complaint – whether the Respondent engaged in unsatisfactory professional conduct or professional misconduct Criminal Code Act 1899, s 119B(1) Legal Services Commissioner v Cooper [2011] QCAT 209 |
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’).
REASONS FOR DECISION
In 2010 Mr Orchard, a solicitor of 32 years standing, took instructions from a client, a teacher, in proceedings brought against him by the Queensland College of Teachers (‘QCT’) in this Tribunal. The basis of the proceedings was alleged sexual misconduct by the male client with the teenage daughter of a woman with whom he had a personal relationship of some years’ duration.
The teacher prepared a statutory declaration in September 2010 which had annexed to it a thirty-two page submission titled ‘Response to Queensland College of Teachers Allegations’.
On 7 October 2010 Mr Orchard, on the instructions of his client, sent a letter (on his firm’s letterhead) addressed to the mother of the complainant (ie, the woman with whom the client had had a personal relationship) at her place of employment enclosing – again, on the instructions of his client – a copy of the client’s statutory declaration and the attached submissions.
The letter was in neutral terms, recording that the firm acted for the teacher and ‘…pursuant to express instructions from our client …’ enclosing the statutory declaration which, it was said, had also been sent to the QCT.
The annexed documents contained denials of the allegations against the teacher, and lengthy (and very personal) details of his sexual relationship with the mother. The submissions contained a request that a copy of the document be made available to the mother and that she withdraw her complaint to the QCT and end the matter. They went on to say that if the complaint was not withdrawn and the teacher was required to appear in this Tribunal, then he intended to provide a copy of the document to the Director-General of the Department of Education and Training and other important ‘key people’ including local school principals.
The mother applied to QCAT to intervene in the QCT proceedings against the teacher and, on 17 February 2011, the Honourable James Thomas OA QC, sitting as a Judicial Member of the Tribunal, gave the mother leave to intervene and issued an injunction restraining the teacher from publishing in the statutory declaration or its annexure in any form to any person other than his legal representatives, and this Tribunal.
In doing so the Honourable Member said that the document went far beyond the proper limits of a robust defence and descended to ‘… fulminations against both the mother and the daughter and recounts at length details of his sexual relationship with the mother’; and, that it contained
risqué descriptions of their sexual encounters, and of the daughters allegedly provocative conduct … much of it seems directed against the mother and to be an attempt to embarrass her and to induce her to withdraw her complaint.
The learned Member went on to say that
… it is a scandalous document which goes considerably beyond the limits of a proper defence. It contains highly embarrassing and gratuitously graphic descriptions of what the teacher alleges to have been the details of his past relationship with her. It contains a clear threat to defame her by publication of such material to outsiders, which is of particular concern.
The learned Judicial Member went on to say that there appeared, in his view, to be a prima facie case of retaliation against or intimidating a witness under s 119B(1) of the Criminal Code Act 1899. He said:
The evidence seems capable of showing that the teacher made a threat to cause detriment to a witness, or a member of the family of a witness, for the purpose of retaliation or intimidation, because of something unlawfully done by the witness.
That said, he did not consider it desirable or necessary to refer the matter to the Police for investigation.
The Legal Services Commissioner has brought two charges against Mr Orchard arising out of his communication of this material to the mother. The first alleges that he sent a letter to the mother enclosing correspondence on behalf of his client that was scandalous and threatening; the second, that he published correspondence on behalf of his client concerning proceedings before QCAT which may have prejudiced a fair hearing of those proceedings, in contravention of rule 19.1 of the Legal Profession (Solicitors) Rule 2007 (‘Solicitors Rule’).
By direction both parties have filed and exchanged written submissions. A hearing was conducted on 28 September 2012 at which additional oral submissions were made.
These proceedings are brought under the Legal Professional Act 2007 (‘LPA’). Mr Orchard, who is represented, has admitted the first charge and concedes that his conduct constituted what the LPA calls unsatisfactory professional conduct, but denies that it constituted professional misconduct. He argues that the second charge is duplicitous because it relies upon the same conduct as the first; or, because rule 19.1 of the Solicitors Rule does not apply.
The LPA contains two categories of offending by legal practitioners. Unsatisfactory professional conduct is defined in s 418 of the LPA to include conduct 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. Professional misconduct is defined in s 419 of the LPA to include, relevantly for present purposes, conduct that would if established justify a finding that the practitioner is not a fit and proper person to engage in legal practice; or, unsatisfactory professional conduct involving a substantial failure to reach or maintain a reasonable standard of competence and diligence.
The Commissioner contends for the more serious finding of professional misconduct. Reliance is placed, however, upon previous decisions in this Tribunal and its predecessors which tend to support the submissions, made for Mr Orchard, that a finding within the lesser category of unsatisfactory professional conduct is the only one that is reasonably open.
In both LSC v Winning[1] and LSC v Cooper[2] this Tribunal considered conduct which involved the use of offensive or insulting language in communications in connection with the practice of law. In Winning the practitioner on several occasions used grossly offensive and obscene language in conversations with other practitioners. In Cooper the lawyer wrote two letters to another solicitor on behalf of his client which were insulting, and personally offensive. In both instances a finding of unsatisfactory professional conduct (where relevant to the charges in this matter), rather than professional misconduct, was made.
[1] [2008] LPT 13.
[2] [2011] QCAT 209.
A closer parallel can be found in LSC v O’Connor[3] in which the practitioner had written a letter on behalf of his client (also a lawyer) to a former client who had made a complaint to the Legal Services Commissioner, and demanded an apology and withdrawal of the complaint upon the threat of proceedings for defamation, with substantial compensation. The Tribunal held that sending the letter demonstrated a lack of judgement because the practitioner ought to have been aware, and advised his client of, the relevant legislation and the statutory duty of the solicitor who was the subject of the complaint to cooperate and assist reasonably with the investigation process; and, made a finding of unsatisfactory professional conduct.
[3] [2006] LPT 1.
Mr Orchard made much the same kind of mistake. He sent off a document produced by his client without reflecting fully upon its content, or the consequences. Rule 28 of the Solicitors Rule provides that a solicitor must not, in any communication with another person make any statement that is calculated to mislead or intimidate the other person, or make any statement that is abusive, offensive or insulting.[4]
[4] Legal Profession (Solicitors) Rule 2007, rr 28.2, 28.5.
Charge 1 alleges that the solicitor sent a letter enclosing correspondence which was ‘scandalous and threatening’. While those words do not appear in r 28 of the Solicitors Rule, the prohibition upon intimidation in r 28.2 reasonably encompasses the allegation that the correspondence was ‘threatening’ and the prohibition against statements that are abusive, offensive or insulting in r 28.5 is, also, sufficient to embrace the word ‘scandalous’ as it appears in the charge.
The Tribunal is, for these reasons, satisfied that the first charge is made out and that the solicitor’s behaviour in sending the letter with its enclosures constituted unsatisfactory professional conduct.
The second charge refers specifically to r 19.1 of the Solicitors Rule, which provides that a solicitor must not publish or take steps towards the publication of any material concerning current proceedings for which the practitioner is engaged which may prejudice a fair trial of those proceedings, or prejudice the administration of justice. It is submitted, for Mr Orchard, that the rule is not directed to conduct such as the sending of a letter by a lawyer but, rather, to the publication to the media or to the public of material concerning current proceedings. Reference is made to Dal Pont’s work, Lawyers’ Professional Responsibility[5] in which the learned author discusses the recent criticism of lawyers making media comment leading, the text suggests, to changes in professional rules in Queensland and Western Australia.
[5] G E Dal Pont, Lawyers’ Professional Responsibility (4th Ed, 2010) 393-4.
But the rule does not on its face reveal an intention only to prohibit media activity. Rather, its apparent intent is to ensure a fair trial of proceedings, and to maintain the proper administration of justice and the word ‘publication’ is not used in a way, or in any context, suggesting the rule is only intended to prevent general or widespread publication, eg via the media.
The alternative allegation is that the second charge is duplicitous because it arises out of the same facts and circumstances which gave rise to the first. While that is true, the charges involve different allegations of breaches of the Solicitors Rule. The common law rule against duplicity prevents one count of an indictment charging a person with two separate offences. Nothing, however, prohibits a prosecution for a number of distinct offences, simply because they arise out of the same course of conduct.
That said, this Tribunal is also unpersuaded that Mr Orchard’s behaviour should be categorised in respect of either charge as anything other than unsatisfactory professional conduct. Nothing in the correspondence he sent to the mother itself conveyed a threat (unlike the direct communications and letters in LSC v Winning[6] and LSC v Cooper[7]). His mistake was, again, one involving a failure to properly and carefully reflect upon the contents of the material he conveyed, on instructions, from his client.
[6] [2008] LPT 13.
[7] [2011] QCAT 209.
Mr Orchard is a senior solicitor of long experience, with no previous disciplinary history. It is uncontested that he responded promptly to notice from the Commissioner in a way which showed both insight, and remorse. He quickly expressed himself to the Commissioner in terms regretting the distress he had caused to the mother, and unreservedly apologising to her, and the Commissioner.
The Commissioner’s submissions on sanction or penalty are a little surprising in that, if the less serious finding of unsatisfactory professional conduct is made then he seeks both a reprimand, and a substantial fine; but, if the finding is one of professional misconduct, only a reprimand is sought. This was said by the Commissioner’s representative, in oral submissions, to reflect the higher degree of opprobrium which would attach to the more serious finding. The Tribunal doubts the force of that submission but, because it is persuaded that the finding of unsatisfactory professional conduct is all that is required, need only consider the appropriate penalty arising from that finding, on two charges.
Mr Orchard has been in practice for thirty-two years with an unblemished record. He has cooperated in the investigation, made early and appropriate admissions, and also made a satisfactory and convincing apology. From the outset he accepted that, at least in respect of charge one, he was guilty of unsatisfactory professional conduct. In all of those circumstances the Tribunal considers that a public reprimand is appropriate.
The Commissioner also seeks costs, fixed at $1,500.00. Under s 462(1) of the LPA the Tribunal must make an order for costs unless it is satisfied that exceptional circumstances exist. Circumstances of that kind (not defined in the LPA) will involve something which is exceptional, or unusual or special, or uncommon.[8] There is nothing out of the ordinary in the present case, and no reason not to apply s 462(1) and direct that Mr Orchard pay the Commissioner's costs fixed at $1,500.00 within thirty days.
[8]Attorney General for the State of Queensland v Francis [2008] QCA 243 [at 92]; and, see LSC v Scott (No 2) [2009] LPT 9.
The mother has, through solicitors, given notice of an intention to seek a compensation order against Mr Orchard under s 464 of the LPA. For the reasons explained in this Tribunal’s decision in Legal Services Commissioner v Jiear[9], under Part 4.10 of the LPA a compensation order can only be made against a law practice for loss that has been suffered because of the conduct of a legal practitioner involved in the practice, or one its employees. At all material times, it appears, Mr Orchard practiced in concert with others as a partner in the firm known as Clewett Lawyers which, in terms of the definitions in Schedule 2 of the LPA appears to be a law practice (comprised of a law firm – a term which is also defined there).
[9] [2012] QCAT 221.
As I explained in Jiear it does not otherwise appear that the LPA intended to give the Tribunal a general or particular power to order compensation against a practitioner whose misconduct occurred in the course of his work within a law practice. While the result is, in some respects, unsatisfactory that is a matter for the legislature rather than this Tribunal.
In any event the hurdle presented by this part of the LPA might be circumvented by another application by the mother, against the law practice.
It is appropriate to direct that any application made by the mother for compensation from the law practice is to be made to this Tribunal and given to the members of Mr Orchard’s law practice within twenty-one days, and:
a) that any further submissions by or on behalf of the mother be filed in this Tribunal and given to the respondents within fourteen days thereafter;
b) that any submissions by or on behalf of the members of the law practice be similarly filed and given to the mother or her legal representatives within fourteen days thereafter; and,
c) when that has been effected, the Tribunal will (absent any request for an oral hearing) deal with that application for compensation on the papers.
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