NSW Bar Association v Howen (No 2)

[2003] NSWADT 235

CITATION:	NSW Bar Association v Howen (No 2) [2003] NSWADT 235
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Alexander Stanislaw Howen
FILE NUMBER:	012005, 012030
HEARING DATES:	5/08/2003
SUBMISSIONS CLOSED:	08/05/2003
DATE OF DECISION:	10/24/2003
BEFORE:	Nader J QC - ADCJ (Deputy President); Norton S SC - Judicial Member; Mara A - Member
APPLICATION:	Professional Misconduct - fail to comply with s. 152 Notice
MATTER FOR DECISION:	Penalty
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:
REPRESENTATION:	APPLICANT L McCulloch, barrister RESPONDENT B Connell, barrister
ORDERS:	1 In each matter, 012005 and 012030 the Respondent is publicly reprimanded; 2 In each matter the Respondent is to pay the Informant’s costs to be agreed or taxed.

1. Informations 012004, 012005 and 012030 were separate Informations heard together for convenience. Our reasons for decisions in Informations 012005 and 012030 were published to the parties and made available for general publication on 20 May 2003. In those matters Mr Howen was found guilty of professional misconduct. Our reasons for decision in Information 012004 were published only to the parties as it involved a finding of unsatisfactory professional conduct.

2. These reasons will relate on to Informations 012005 and 012030, in which Mr Howen was found guilty of professional misconduct by reason of having failed to comply with notices under section 152(1) of the Legal Profession Act 1987 (“the Act”). They assume that the reader has read the reasons given in these two matters on 20 May 2003. We do not repeat here, except as a reminder or to put a comment in its context, matters that were covered by the published reasons.

3. We ordered that the matters might be relisted in order to receive evidence and further submissions as to the orders that should be made under section 171C of the Act. The Respondent was offered the opportunity to adduce professional evidence that may tend to explain his behaviour. The parties accepted the offer and professional evidence was received.

4. Mr Howen’s failures were not the result of a desire for improper gain or by malice of any kind. It is significant that the professional misconduct of which the Respondent is guilty were offences of omission rather than commission as was the earlier episode of unsatisfactory professional conduct dealt with in Information 012004. This fact itself suggested that a psychological factor might have been at work coming as they did after a period of satisfactory practice. There was nothing to indicate to us that the Respondent was in general a lazy person; rather the contrary.

5. If the Respondent was influenced to misconduct wholly or partly by psychological factors two clear issues arise:

(i) Did those factors reduce the culpability that one would have attributed to the Respondent’s conduct in the absence of such factors? In short, did they reduce his responsibility for the conduct?

(ii) Do those factors still exist and, if so, can the possible effects of those factors be controlled so that any risk of the Respondent re-offending is removed or reduced to an acceptable level?

6. The matters came back for hearing again on 5 August 2003. Evidence was received from experts. The diagnostic conclusion of the experts differed from one to another although their opinion as to the effects of this disorder and its prognosis were similar. In those circumstances there seems little utility in reaching a firm conclusion on the appropriate diagnosis. However, we think that all of the evidence, including that of the experts, indicates a state of mind in the Respondent, whatever it may be properly called in a technical sense, that suggests that the Respondent was so stressed and disturbed at the material times that he lacked the calm state of mind, undisturbed by emotional turmoil, that would have been conducive to more appropriate conduct.

7. It is possible, if not probable, that the unfortunate history of the relations between the Bar Association and the Respondent was in part a factor in laying the basis of the conditions that made the Respondent’s unsatisfactory conduct and misconduct more likely to occur than it would otherwise have been. That does not excuse the conduct but it may diminish his responsibility for it.

8. Dr Robert Hampshire, a consultant psychiatrist, produced a report on Mr Howen’s behalf. He took a lengthy history from the Respondent. If the account of facts given by Mr Howen to Dr Hampshire is not objectively accurate in all respects but distorted somewhat by Mr Howen’s perspective (and we do not know whether that was so) we accept that it was likely to have been given honestly and that the Respondent believed it to be true, which is the significant matter for present purposes. We find Dr Hampshire’s report particularly useful because of his prolonged professional contact with the Respondent and because of the considerable particularity contained in it.

9. Dr Hampshire’s report, dated 31 July 2003, was annexure “A” to his affidavit sworn 4 August 2003. He had had access to most if not all of the documents relevant to the proceedings. Dr Hampshire noted that Mr Howen is 45 years old and that he graduated in law in 1987. He has been a barrister since 1991. He has been married for about 13 years. He has no children. His wife is a psychologist.

10. Mr Howen told Dr Hampshire that he had failed to respond to a number of notices issued under section 152 of the Act. Those notices, Mr Howen said, were issued as a result of complaints arising from his failure to respond to requests by clients. (We have already noted that the cause of those complaints, like the misconduct arising from failure to comply with the s152 Notices, were failures to act.) Mr Howen gave as his reason for not responding to the notices that he “stuck his head in the sand”. Dr Hampshire asked him to give him a history of the events leading to that situation.

11. Mr Howen said that the initial complaint made against him was in 1995 and that it resulted from a hearing in the Family Court that resulted in his being accused of deliberately misleading the Court. The complaint was made by an opponent in the case. Mr Howen told Dr Hampshire that the Bar Association had suggested that if he paid compensation to the husband (presumable referring to a party in the family law case), he would be “offered a reprimand”. However, Mr Howen said that he had done no wrong and elected to defend the charges. He said that when charges were laid against him, the initial Unsatisfactory Professional Conduct charges were changed to the more serious charges of Professional Misconduct. This, he said, shocked and hurt him. The change had the effect of bringing the matter into the public domain.

12. Mr Howen told Dr Hampshire that he fought the Bar Association for some four years. He said that the case against him was dismissed in his favour in February 1998.

13. Mr Howen had a pervasive sense of being persecuted and singled out. He told Dr Hampshire that some five months later a dispute about costs also went in his favour.

14. He said that at this time he became emotionally unwell developing what he described as “white hot anger which was burning in me all the time – I later did things that I acknowledged were wrong and are now the centre of the complaint.”

15. Dr Hampshire went on to describe, from the history given by Mr Howen, the several stressors acting on him during that period including domestic and financial difficulties. It would not be useful to recount the details of those matters here. It is sufficient to observe that in our opinion, whatever technical description might be given to his condition, he was significantly emotionally unwell.

16. It is highly likely that Mr Howen’s condition arising from the factors referred to by Dr Hampshire reduced to some extent the culpability of the offences of which he has been found guilty. Accordingly the answer to the question numbered (i), above, is ‘Yes’.

17. The general thrust of all of the expert evidence is that Mr Howen is capable of avoiding similar conduct in the future but that, to ensure this, he should continue with therapy and/or counselling. Dr Hampshire says,

“I would agree with Mr Goldman, a psychologist, that (Mr Howen) should have ongoing therapy and (I) think that this should take two forms. Firstly he should be assessed and treated for any Axis 1 conditions that remain, in particular depression, anxiety/panic attacks and PTSD symptoms. This may require medication in the form of anti depressants, although at this stage his depression is not severe enough to warrant their use. However, I believe he should have some psycho therapy, which would be both cognitive behaviourally based in order to further assist him in reducing his symptoms of PTSD but also insight oriented in order to allow him to gain some much needed insights into his confrontational, victimized and adversarial style of inter activity with others.” Dr Hampshire said that Mr Howen seemed willing to enter a course of psychotherapy when this hearing is over. Dr Hampshire concluded his report: “…I believe that he welcomes the opportunity to take the advice of his wife, Mr Goldman, myself and seek some Insight Orientated Psychotherapy in an effort to have a more harmonious and happy next decade.”

18. Dr Yvonne Skinner, psychiatrist, who examined Mr Howen on behalf of the Informant, produced a report dated 18 July 2003. It will suffice to quote her concluding remarks which do not seem to be in conflict with those of Dr Hampshire in practical respects, although her diagnosis is different. She says:

“Mr Howen is not suffering from any psychological condition likely to impact on his ability to practise as a barrister. If he is faced with a need to respond to and deal with the Legal Services Commissioner or the Bar Association in the immediate future, he should be able to do so. If he has to deal with the Legal Services Commissioner or the Bar Association at some time in the future, when he is also subjected to significant other pressures, similar feelings of anger and difficulties in coping might arise. However, in view of his experience with the Tribunal, I think that he would seek appropriate assistance at that time.

If Mr Howen should choose to seek treatment to address the underlying personality issues, he would need to become engaged in therapy with an experienced psychiatrist, because of the psychological defence mechanism of intellectualisation. Therapy should be aimed at instructing him in strategies to deal with anger in a more appropriate and constructive manner and to prevent the procrastination and failure to deal with matters that have led to his present problems. I consider that a psychiatrist would be in a better position than a psychologist or counsellor to consider the possibility that Mr Howen might develop a depressive illness, and to diagnose and treat depression while addressing the underlying personality issues.”

19. It seems therefore that the question numbered (ii) above may also be answered in the affirmative, subject to the Respondent taking the advice of Dr Hampshire and Dr Skinner. We think it is very important in his own interests as well as those of his clients that he should take the professional advice to heart and act on it.

20. We have concluded therefore that Mr Howen should not now be prevented by any order of the Tribunal from continuing to practise as a barrister.

21. Although it was not raised or argued at the hearing, and we were referred to no cases on the point, it is not clear whether the section 152 offences were complete after the date specified in them for compliance or whether they are offences that continue until the notices are complied with. Section 152 of the Act requires the legal practitioner to provide written information “by a date specified”. That may not import that an offence under section 152 is completed if the information is not suppled by the specified date. The purpose of the legislation may suggest otherwise. It is possible that an offence is committed when there is a failure to provide the information by the date specified and that the offence continues to be committed until the information is provided thereafter.

22. But, a long time has elapsed since the subject section 152 Notices were issued. Circumstances relating to the matters being investigated are likely to have changed. Some of the information sought may not longer be useful to the investigators. Therefore, we suggest for purposes of clarity that, if information is still required, a fresh notice should issue. However, that is not a question that we are called upon to decide here. The Informant will have to assess the situation in the light of what it considers to be its own requirements and the law governing the issue.

23. Notwithstanding mitigating factors, failure to comply with a notice under section 152 of the Act is professional misconduct. A section 152 Notice is an important device for assisting the Councils and the Commissioner to investigate and resolve complaints against practitioners. Failure to comply with a notice may frustrate an investigation or make the investigation more difficult, time consuming and costly. We cannot deal with failure to comply with a section 152 notice as if the failure were a trivial matter.

24. We think that the offences are closely related and that the total of fines should represent the total culpability of the Respondent.

25. We take into account the fact that the Respondent has been under considerable financial pressure. In this case with its exceptional psychological factors, and having regard that to weaken Mr Howen’s financial position may again aggravate those factors, we have decided not to impose fines upon him. If the psychological factors had not impressed us as significant in these matters we would certainly have imposed fines of considerable amounts.

26. Contrition with its usual emotional overtones is not relevant as such in these cases where punishment is not a purpose. It is not helpful to look for emotional and repeated declarations of regret. What is relevant and useful in the context of cases such as this is a state of mind that is that kind of contrition that consists of a determination not to indulge in the same or similar conduct again however unemotionally or briefly that determination may be expressed. We think that the Respondent in his present state of mind is resolved not to offend in a similar way in future.

27. In each matter, 012005 and 012030 the Respondent is publicly reprimanded.

28. In each matter the Respondent is to pay the Informant’s costs to be agreed or taxed.