Legal Services Commissioner v Tang - [2025] QCAT 82

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Tang [2025] QCAT 82

PARTIES:

LEGAL SERVICES COMMISSIONER

(applicant)

v

ERICSON TANG

(respondent)

APPLICATION NO/S:

OCR 154-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 April 2025

HEARING DATE:

6 August 2024

HEARD AT:

On the papers

DECISION OF:

Judicial Member Peter Lyons KC
Assisted by:
Ms Elizabeth Shearer
Practitioner Panel Member
Dr Susan Jean Dann

Lay Panel Member

ORDERS:

1.     The respondent is publicly reprimanded for his misconduct the subject of the discipline application.

2.     A local practising certificate is not to be granted to the respondent before 1 September 2025.

3.     The respondent’s next application for a practising certificate is to be accompanied by a contemporaneous report of a psychologist or psychiatrist regarding his mental state, discussed in the reasons for this decision, and expressing an opinion on the likelihood that the respondent would again engage in the conduct for which he is publicly reprimanded.

4.     The respondent is to pay the applicant’s costs of and incidental to these proceedings, to be assessed on the standard basis, on the Supreme Court scale under the Uniform Civil Procedure Rules1999 (Qld) in the manner that the costs would be assessed if the matter were determined in the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES — LAWYERS — COMPLAINTS AND DISCIPLINE — PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT — CRIMINAL OFFENCES — where the respondent misappropriated trust money — where the respondent was convicted on his own plea of guilty with fraud, forgery and uttering — where the applicant filed a discipline application — where the applicant and respondent agree the respondent’s conduct amounts to professional misconduct — where the Tribunal exercises its discretion under s 456(1) of the Legal Profession Act 2007 (Qld) to make orders it thinks fit — whether the mitigating circumstances give confidence to the Tribunal that the respondent will not be permanently unfit fit for to practise — whether the name of the respondent should be removed from the roll of solicitors

Legal Profession Act 2007 (Qld) s 419, s 456, s 656C

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498

Barristers' Board v Darveniza [2000] QCA 253

Council of the New South Wales Bar Association v Sahade [2007] NSW CA 145

Law Society of New South Wales v Foreman (No.2) (1994) 34 NSWLR 408

Legal Services Commissioner v Brown [2020] QCAT 423

Legal Services Commissioner v Madden (No 2) [2008] QCA 301
Legal Services Commissioner v McDonald [2018] QCAT 82
Legal Services Commissioner v McKenzie [2021] QCAT 377
Legal Services Commissioner v Meehan [2019] QCAT 17
Legal Services Commissioner v Munt [2019] QCAT 160
Legal Services Commissioner v Quinn [2018] QCAT 196
Legal Services Commissioner v Shand [2018] QCA 66
Legal Services Commissioner v Yarwood [2015] QCAT 208
Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320
Re Zita (a solicitor) [2022] VSC 354
Stanoevski v Council of the Law Society of New South Wales

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: [2025] QCAT 82
Decision Date: 8 April 2025

CaseChat Overview and Summary

In the case of Legal Services Commissioner v Tang, the Legal Services Commissioner brought a disciplinary action against Ericson Tang, a solicitor, in response to allegations of professional misconduct. The central issue involved Tang's misappropriation of trust money, leading to his conviction on charges of fraud, forgery, and uttering. Both parties agreed that Tang's conduct constituted professional misconduct, prompting the Tribunal to exercise its discretion under section 456(1) of the Legal Profession Act 2007 (Qld). The key legal issues were whether the mitigating circumstances provided sufficient confidence that Tang would not be permanently unfit to practise and whether his name should be removed from the roll of solicitors.

The Tribunal considered various factors, including Tang's low risk of reoffending as assessed by Dr Yoxall using the Level of Service Inventory, and his efforts to address his depression and other compulsive behaviours through therapy and ongoing treatment. Tang's evidence highlighted his deep unhappiness, depression, and a previously undisclosed sexual addiction as contributing factors to his misconduct. He had taken significant steps to address these issues, including regular therapy sessions and participation in addiction fellowship meetings. The Tribunal found that while Tang's conduct was dishonest and sophisticated, it was also influenced by his mental health issues at the time.

In light of these findings, the Tribunal concluded that Tang's conduct did not necessarily reflect his true character and that he had made commendable efforts towards rehabilitation. The Tribunal ordered that Tang be publicly reprimanded, that a local practising certificate not be granted to him before 1 September 2025, and that his next practising certificate application be accompanied by a contemporary psychological or psychiatric report. Additionally, Tang was ordered to pay the Commissioner’s costs of the proceedings.

Orders

Orders of the court

1. The respondent is publicly reprimanded for his misconduct the subject of the discipline application.

2. A local practising certificate is not to be granted to the respondent before 1 September 2025.

3. The respondent’s next application for a practising certificate is to be accompanied by a contemporaneous report of a psychologist or psychiatrist regarding his mental state, discussed in the reasons for this decision, and expressing an opinion on the likelihood that the respondent would again engage in the conduct for which he is publicly reprimanded.

4. The respondent is to pay the applicant’s costs of and incidental to these proceedings, to be assessed on the standard basis, on the Supreme Court scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed if the matter were determined in the Supreme Court of Queensland.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Dr Yoxall assessed the respondent’s risk of reoffending using a tool called the Level of Service Inventory. She concluded that there was a “low level of risk of general reoffending”; and noted that he appeared to be “highly motivated to ensure that his risk of reoffending is low”. She considered that his conduct occurred in the context of what appears to have been undiagnosed depression. She considered that “his depression at the time of (the conduct) would have impaired his judgment and reduced his inhibition”. She also considered that he had made substantial changes in his life since that conduct, and had addressed, through treatment, the factors that contributed to it, and other compulsive and addictive behaviours that he previously used to cope with his emotions. He had learnt adaptive strategies to manage stress, depression, frustration and other negative feelings; and communication skills to express his emotions appropriately. She considered that he required ongoing psychological intervention for another six to 12 months but he demonstrated sound personal insight and judgment at the time of the report. She considered that his risk of reoffending was low, but was dependant on the management of his mental health.Respondent’s evidence The respondent gave evidence that at about the time of his misconduct he had a feeling of being disconnected from “real life” and was deeply unhappy with all aspects of his life.[30] After detection, he considered that he was able to tell that he had been having some kind of mental breakdown.[31] He considered that several personal challenges had, in part, contributed to his conduct, being depression; a previously undisclosed and unknown sexual addiction; dissatisfaction with himself, his life, his relationship and his work; and disillusionment with his career path. These were matters which he had pushed to the back of his mind and tried to pretend did not exist.[32] His psychologist has told him, and he believed it to be true, that his misconduct was likely a result of an attempt to compulsively self-sabotage and escape from his reality and his job at the time.[33] He now recognises that there were other productive ways to deal with his situation.[34] [30]Hearing Book p 119.[31]Hearing Book p 120.[32]Hearing Book p 123.[33]Hearing Book p 124.[34]Hearing Book p 124. In February 2023, his partner learnt of his high-frequency pornography use and infidelity. He then began attending addiction fellowship meetings on a weekly basis; and also sought counselling from Dr Sayed. These steps were pivotal in addressing his addiction, and improving his relationship with his partner.[35] Recognising and addressing this compulsive-based addiction has provided him with value insights into the irrationality and compulsiveness of the actions which led to his conduct.[36] [35]Hearing Book p 124.[36]Hearing Book p 125. He continues (as at the time of his affidavit, sworn in October 2023) to see Mr Truong on a monthly basis, and to attend an addiction fellowship meeting on a weekly basis. He continues to engage in ongoing therapy specialising in sexual addiction, addressing the behaviours and underlying issues associated with it. He regards these therapeutic relationships as essential pillars of his ongoing rehabilitation and personal growth.[37] He has now acquired tools for coping with personal, relational, and professional issues; and his ability to take accountability for his actions and to make ethical choices has been enhanced.[38][37]Hearing Book p 125.[38]Hearing Book p 125.Submissions

Decision

Reasons for decision

There is no issue about costs. An order will be made in favour of the applicant.Conclusion The following orders are proposed:(a)The respondent Ericson Tang is publicly reprimanded for his misconduct the subject of the discipline application.(b)A local practising certificate is not to be granted to the respondent before 1 September 2025.(c)The respondent’s next application for a practising certificate is to be accompanied by a contemporaneous report of a psychologist or psychiatrist regarding his mental state, discussed in the reasons for this decision, and expressing an opinion on the likelihood that the respondent would again engage in the conduct for which he is publicly reprimanded.(d)The respondent is to pay the applicant’s costs of and incidental to these proceedings, to be assessed on the standard basis, on the Supreme Court scale under the Uniform Civil Procedure Rules1999 (Qld) in the manner that the costs would be assessed if the matter were determined in the Supreme Court of Queensland.

Ratio Decidendi

Legal Principle Established

The respondent has also referred to three cases in which it is submitted that deceitful conduct did not lead to a practitioner’s name being removed from the roll. They are Legal Services Commissioner v McDonald,[103] Watts v Legal Services Commissioner (a case involving the forgery production of false trust account receipts);[104] and Sahade. It may be accepted that these cases show that dishonest conduct does not necessarily result in the removal of a practitioner’s name from the roll.[103][2018] QCAT 82.[104][2016] QCAT 224.Consideration In summary, the respondent’s misconduct involved serious dishonesty and deception. Taken in isolation, it would support a finding that the respondent was then not a fit and proper person to hold a practising certificate. The misconduct involved some level of sophistication, in that it required an understanding of the employer’s systems for protecting trust funds from misappropriation; and the devising of a means to defeat those protections. Nevertheless, it must have been obvious to the respondent that the client would quickly become aware that the funds had been paid out, but not to the client, and accordingly prompt detection of the misappropriation was likely to occur. That consideration, and the respondent’s mental state at the time, raise some question about whether the respondent truly intended to profit personally from his misconduct. They raise some doubt about whether the respondent’s conduct was truly reflective of his character. The respondent quickly recognised his wrongdoing. He made early admissions to the applicant and the QLS, and surrendered his practising certificate. He sought treatment to deal with the causes of his conduct, and has engaged in that treatment over a substantial period of time. There is evidence from health care professionals that the respondent has shown some commitment to that treatment, and has engaged in it with some success, though this success was not complete at the time of their reports. Mr Truong has given evidence that the respondent has engaged in treatment which has given him “a greater understanding of internal processes that lead to the criminal offence in 2022” and had “made significant progress in managing and addressing his symptoms”.[105] Dr Yoxall considered that the respondent had “addressed, through treatment, not only the factors that contributed to his offending, but other compulsive and addictive behaviours that he previously used to cope with his emotions”.[106] They, and Dr Seyed, considered that he needed further treatment. The tenor of their reports, as well as the respondent’s own evidence[107] suggest this is likely to have occurred. In particular, the respondent appeared to have recognised the benefits he had received from treatment, and to be committed to continuing with it.[105]Hearing Book p 152.[106]Hearing Book p 176.[107]Hearing Book pp 124-125. There is also the respondent’s relative youth – the conduct occurred shortly before his twenty-sixth birthday. He is otherwise of good character, without previous misconduct. He has been co-operative in these proceedings. The factors (identified in P) which weigh most heavily against him are that his conduct was dishonest, with some level of sophistication; and it occurred in the course of legal practice. However, they are not decisive. As the respondent’s submissions show, a number of other factors identified in that case weigh in the respondent’s favour.