Legal Services Commissioner v Poole - [2019] QCAT 381

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Poole [2019] QCAT 381

PARTIES: LEGAL SERVICES COMISSIONER

(applicant)

v

IVAN JOHN POOLE

(respondent)

APPLICATION NO/S:

OCR216-16

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 December 2019

HEARING DATE:

14 August 2018

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President
Assisted by:
Ms Julie Cork
Dr John Keys de Groot

ORDERS:
1.   The respondent is publicly reprimanded.

2.   (a) Any practising certificate currently held by the respondent is immediately suspended; and

(b) The respondent is prohibited from applying for a further practising certificate for a period of five years.

3.   The respondent shall pay the applicant’s costs of and incidental to this discipline application, such costs to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent is charged with four breaches of the Australian Solicitors Conduct Rules 2012 – where the respondent admits the allegations of fact underpinning each charge – where the respondent engaged in conduct likely to bring the profession into disrepute through his dealings with an elderly client of another practitioner including removing the client from hospital without authorisation and against medical advice, arranging the revocation of a power of attorney, procuring another practitioner to attend upon the elderly man in hospital to obtain a will from which the respondent benefitted and not informing the other practitioner of a Tribunal order as to the man’s lack of capacity, capacity issues or the general background to the matter – where the respondent allowed his interest to conflict by purporting to represent two clients in the same matter without informed consent – where the respondent dealt directly with a client of another practitioner in circumstances that were not urgent and without that practitioner’s consent – where the respondent made allegations of unsatisfactory professional conduct or professional misconduct against another practitioner without a proper basis for doing so – whether the conduct should be characterised as unsatisfactory professional conduct or professional misconduct under ss 418 or 419 of the Legal Profession Act 2007 (‘LPA’) – what orders to make under s 456 of the LPA

Australian Solicitors Conduct Rules 2012, r 5, r 11, r 32
Legal Profession Act 2007, s 227, s 418, s 419, s 420(1)(a), s 452, s 456, s 462

Adamson v Legal Services Commissioner (1990) 1 Qd R 498
Legal Services Commissioner v Bone [2013] QCAT 550
Legal Services Commissioner v Bradbury [2008] LPT 9
Legal Services Commissioner v Bussa [2011] QCAT 388
Legal Services Commissioner v Laylee & Anor [2016] QCAT 237
Legal Services Commissioner v Munt [2019] QCAT 160
Legal Services Commissioner v Redmond [2018] QCAT 231
Legal Services Commissioner v Shand [2018] QCA 66

APPEARANCES & REPRESENTATION:

Applicant:

M Nicholson instructed by Legal Services Commissioner

Respondent:

J Merrell instructed by Potts Lawyers

REASONS FOR DECISION

This discipline application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCAT 381
Decision Date: 19 December 2019

CaseChat Overview and Summary

The Legal Services Commissioner brought an action against Poole in the Queensland Civil and Administrative Tribunal. Poole was charged with four breaches of the Australian Solicitors Conduct Rules 2012. These charges were grounded in Poole's conduct concerning an elderly client, including actions such as removing the client from hospital without proper authorisation and against medical advice, arranging the revocation of a power of attorney, procuring another practitioner to attend upon the elderly client in hospital to obtain a will from which Poole stood to benefit, and failing to inform the practitioner of a Tribunal order regarding the client's lack of capacity. Additionally, Poole was charged with allowing his interests to conflict by purporting to represent two clients in the same matter without obtaining informed consent, and for dealing directly with a client of another practitioner in circumstances that were not urgent and without that practitioner’s consent. Poole also faced a charge for making allegations of unsatisfactory professional conduct or professional misconduct against another practitioner without a proper basis. The Tribunal was required to determine whether Poole's conduct constituted unsatisfactory professional conduct or professional misconduct under sections 418 or 419 of the Legal Profession Act 2007, and what orders should be made under section 456 of the Act.

The Tribunal found that Poole's conduct was egregious and merited significant sanctions. The Tribunal concluded that Poole's actions with the elderly client, including removing him from hospital against medical advice, arranging the revocation of a power of attorney, and procuring another practitioner to obtain a will from which Poole benefitted, were all instances of professional misconduct. Furthermore, Poole's conflict of interest and his dealings with the client of another practitioner without consent were also deemed to be professional misconduct. The Tribunal found that Poole's allegations against another practitioner were made without a proper basis and thus constituted unsatisfactory professional conduct. The Tribunal imposed a public reprimand, suspended Poole's practising certificate, and prohibited him from applying for a further practising certificate for five years. Poole was also ordered to pay the Commissioner's costs of and incidental to the discipline application.

Orders

Orders of the court

1. The respondent is publicly reprimanded.

2. (a) Any practising certificate currently held by the respondent is immediately suspended; and

(b) The respondent is prohibited from applying for a further practising certificate for a period of five years.

3. The respondent shall pay the applicant’s costs of and incidental to this discipline application, such costs to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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