Legal Services Commissioner v Smith

CITATION: Legal Services Commissioner v Smith [2011] QCAT 126

PARTIES:	Legal Services Commissioner (Applicant)
v
John Charles Smith (Respondent)

APPLICATION NUMBER:   OCR156-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President
Assisted by:
Mr Geoffrey Sinclair
(Practitioner Panel Member)
Dr Margaret Steinberg AM
(Lay Panel  Member)

DELIVERED ON: 6 April 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    That the respondent, John Charles Smith, be publicly reprimanded;

2.    That he pay a penalty in the sum of $2,000; and

3.    That he pay the applicant’s costs fixed at $1,000.

CATCHWORDS: 

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent was charged with neglect, undue delay and lack of diligence with regard to the conduct of matters for three clients – whether the respondent’s conduct constituted unsatisfactory professional conduct or professional misconduct

Legal Profession Act 2007, ss 418, 419
Queensland Law Society Act 1952
Queensland Civil and Administrative TribunalAct 2009

LSC v Slipper [2008] LPT 008, cited
LSC v Williams [2005] LPT 008, cited
Re Nelson (1991) 106 ACTR 1, cited

APPEARANCES and REPRESENTATION (if any):

The matter was heard and determined on the papers pursuant to Section 32 of the Queensland Civil and Administrative TribunalAct 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Smith was admitted as a solicitor in Queensland on 21 November 1988.  In 2010 the Legal Services Commissioner brought a discipline application against him containing three separate charges, all involving events which occurred in and after the year 2005 while he was a partner in a Brisbane suburban law firm.

2. The matter went to a compulsory conference before QCAT’s Deputy President on 2 December 2010, following which the parties jointly filed a Statement of Agreed Facts and joint submissions about orders or sanctions which should be made against or imposed upon Mr Smith; and the matter subsequently proceeded, with all parties’ agreement, to a hearing on the papers before the Tribunal.

3. All three charges involve a want of diligence, and consequent delay, in the conduct of matters for three of Mr Smith’s clients. 

4. The first concerns a claim for damages for Ms Alissa O’Flaherty, who was injured in a motor car accident on 19 April 2002.  Mr Smith first took instructions in April 2002 and actively and competently advanced his client’s claim until April 2005.  In the ensuing year, between April 2005 and April 2006, he did nothing to take the case forward.  After April 2006 he then, again, advanced the matter diligently up to November 2006 but then allowed the matter to lapse until September 2008.  He did not, in this latter period, respond to communications from the client despite her attempts to contact him via letter, email and telephone.

5. In August 2008 Ms O’Flaherty complained to the Legal Services Commission and in 2009 she retained a new solicitor.  Later, her damages case was settled and she does not claim any…