THE ACT LAW SOCIETY & THE LEGAL PRACTITIONER (Duncan Phillips)
[2010] ACAT 67
•30 September 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE ACT LAW SOCIETY & THE LEGAL PRACTITIONER (Duncan Phillips) (Occupational Discipline) [2010] ACAT 67
LP 09/05
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PROFESSION – professional misconduct – unsatisfactory professional conduct – the practitioner holds NSW practising certificate - ACAT’s jurisdiction to hear the complaint – independent children’s lawyer’s ongoing failure to comply with undertaking to engross court orders in family law proceedings – failure to respond to Law Society – whether the practitioner is fit and proper person to continue legal practice
List of Legislation: Family Law Act 1975 (Cth), s. 68LA
Legal Profession Act 2006, ss. 387, 391, 419, 576,
List of Regulations: Legal Profession (Solicitors) Rules 2007, rules 1.2, 30, 39.2
Tribunal: Mr C G Chenoweth, Member
Date of Reasons for Decision: 30 September 2010
REASONS FOR DECISION
This is an application under section 419 of the Legal Profession Act 2006 ("LP Act") contending that certain conduct of the respondent in failing to take out orders in the Federal Magistrates Court (“Court”) in breach of his undertaking to do so constituted professional misconduct or, in the alternative, unsatisfactory professional conduct. A second complaint in the application also alleged that the respondent had failed to provide a full and accurate account of his conduct in relation to the complaint when required to do so by The Law Society of the ACT (“Society.”) This allegation is that this failure constituted unsatisfactory professional conduct.[1]
[1] This decision was previously anonymised and cited as the ACT Law Society v The Legal Practitioner [2010] ACAT 67 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.
The Society is established by section 576 of the LP Act. The conduct complained of involved breaches of the Legal Profession (Solicitors) Rules 2007 (“the Rules”).
Jurisdiction of the tribunal.
The respondent was at all material times a partner with a small firm that has offices in both New South Wales and the ACT. He therefore practices in the ACT. The respondent does not hold a practising certificate issued by the Society. He has held a Law Society of New South Wales unrestricted practicing certificate since 1 July 2007.
The respondent was first admitted as a barrister and solicitor of the Supreme Court of the ACT on 16 July 1999. Accordingly, he is an "Australian legal practitioner" within the definition in the LP Act. The Society is the "relevant council" for the institution of proceedings because the definition includes:
"In relation to an Australian legal practitioner who is, or a former Australian legal practitioner who was, a solicitor or who is an applicant for an unrestricted practising certificate or a restricted practising certificate -- the law society council."
The conduct complained of occurred in the hearings of the Court in the ACT. It is conduct to which section 391 of the LP Act applies.
The effect of these definitions in the LP Act results in the Society having standing as the applicant in this matter, notwithstanding that the respondent does not hold a current certificate issued by the Society.
The Complaint.
The complainant's original letter of complaint to the Legal Services Commissioner of New South Wales was dated 5 April 2009. Her subsequent complaint to the Society dated 9 April 2009, covers the same ground.
The complainant was engaged in family law proceedings against her husband concerning access to the children of the marriage. The proceedings were heard in the Court in Canberra. A firm of solicitors in Batemans Bay, Elisabeth Fleming and Associates, acted for the complainant. The respondent was appointed as the independent children's lawyer in the proceedings.
The respondent was in court in the capacity as the children’s lawyer on 3 October 2008 when the matter was heard and finalised. The respondent undertook to engross the court orders. The respondent failed to do this over a long period of time. He was repeatedly approached by the complainant and Ms Fleming to do so. Ultimately, Ms Fleming took out the orders on 22 June 2009. The complaint indicates that it was necessary that the orders be formally taken out to satisfy the Child Support Agency in its role of adjusting the child support payments between the parties.
The Society's evidence.
As indicated in paragraph 11, an affidavit was filed from the professional standards director of the Society, Mr Reis. In addition to the information concerning enquiries about the respondent's practising certificates, the affidavit annexed copies of the correspondence that the Society had received from the Legal Services Commissioner in New South Wales, the complaint from the complainant, and a letter from Ms. Fleming dated 21 January 2009.
The affidavit of Mr Reis annexed copies of letters of 30 April 2009, 21 May 2009, 4 June 2009 and the 28 June 2009 from the Society to the respondent, seeking the response of the respondent to the complaint under Rules 39.1 and 39.2. The affidavit also annexed a copy of a letter sent to the respondent's partner on 30 April 2009 which enclosed a copy of the complaint and the initial letter to the respondent.
The only response to the Society was by way of a facsimile from the respondent to the Society dated 25 June 2009, annexed as annexure "H" to the affidavit of Mr Reis. The facsimile did not address the complaint at all. It stated:
"I refer to the above-mentioned matters.
As you would be aware I am required to seek the advice of Counsel before responding to any complaint received from the ACT Law Society.
I have prepared responses to the above-mentioned matters and expect to receive advice from Counsel shortly as to their contents. I will then forward my responses to the Society."
No other response has been received by the Society from the respondent.
An affidavit from the complainant dated 24th February 2010 was filed and admitted as Exhibit 3. In that affidavit the complainant set out that she was present in the “ Family Court” (presumably referring to the Federal Magistrates Court) on the day that the orders were made, 3 October 2008. The complainant states in paragraph 3 of her affidavit:
"I was present in court and recall the respondent informing the Court that he agreed to take out the orders made."
The complainant then sets out details of telephone conversations in which she rang the respondent and asked him about whether or not he had taken out the orders. She recounts that she was given assurances that he would do so, but he failed to act in accordance with his assurances. The copy of the complaint letter annexed to the complainant’s affidavit set out the numerous steps that she had taken to try and get the orders taken out, including correspondence by her solicitor to the respondent and contacts made with the Court and with Legal Aid. All attempts were unsuccessful.
The Society has filed two affidavits in this matter by the solicitor for the complainant, Ms. Fleming. The first of these dated 24 February 2010 was not relied upon or read. The second affidavit dated 17 June 2010 was admitted as exhibit 4. This affidavit sets out the circumstances under which Ms Fleming acted for the complainant, and provided copies of certain documents including correspondence with the respondent seeking to get the orders taken out.
Paragraph 7 of the affidavit of Ms Fleming provided evidence that her employee Mr Andrew Fleming had spoken with counsel who appeared for the complainant in the court in Canberra. That paragraph indicates that counsel who appeared, Mr Chris McEwen, had advised Andrew Fleming that the independent children's lawyer had agreed in open court to engross the orders.
Annexed to the affidavit of Ms Fleming is a copy of an e-mail from Mr McEwen to Andrew Fleming which reads as follows:
"Just back from court -- all good -- first weekend of each month unless by 8 PM on the Wednesday before they communicate a change. Other orders etc -- Sep Rep doing the orders."
Paragraph 7 of the affidavit of Ms Fleming indicates that she considered the reference to "Sep Rep" to be a reference to the independent children's lawyer, the respondent.
The affidavit sets out the numerous attempts made by Ms Fleming or her office to contact the respondent and the Court to attempt to get the respondent to honour his undertaking. These did not meet with any success. The orders were finally taken out by Ms Fleming's office on 22 June 2009.
The affidavit of Ms Fleming confirms that there was no correspondence from the respondent to her office during the course of the proceedings.
The application by the Society was filed on 21 August 2009. Directions hearings were held on 21 September 2009, 5 November 2009 and 21 December 2009. At that hearing the matter was listed for hearing on 19 March 2010. It was subsequently listed for directions on 21 April 2010 along with another matter involving the respondent. The respondent was present at the directions hearing on 21 April 2010 when among other orders the hearing was set for 6 August 2010. The proposition in the facsimile of 28 July 2010 to the Tribunal that the respondent did not have enough time to prepare is fanciful.
I noted in the orders made at the directions hearing on 28 July 2010 that the respondent had not required any of the witnesses to be present for cross examination, and that he had not filed any material in response.
A letter was sent from the Tribunal registry on the 28 July 2010 to the respondent reminding him of the directions hearing in this matter which had been previously notified, and also reminding him of the date of the hearing. On the same date, the respondent sent a facsimile questioning whether the matter was to be heard by a member other than the General President (who had presided at the directions hearings earlier), and maintaining that as the matters were part heard they could only be heard (including any further directions) by another member if the proceedings were started afresh. The respondent also maintained that he had not been given enough time to defend the matter and the other matter to which he was a respondent.
Independent Children’s Lawyer.
An independent children's lawyer is appointed under section 68L of the Family Law Act 1975 ("FL Act"). Section 68LA of the FL Act sets out in detail the role that the independent children's lawyer is expected to play in court proceedings. Those obligations may be best summarised by subsection (2) where the section directs the independent children's lawyer to:
“(a) form an independent view, based on evidence available to the independent children's lawyer, of what is in the best interests of the child; and
(b) act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child."
There are extensive guidelines for independent children's lawyers, dated the 6 December 2007. The guidelines indicate that they have been endorsed by the Chief Justice of the Family Court of Australia and also by the Federal Magistrates Court of Australia. A copy was tendered as exhibit 6.
It appears from a letter of 27 November 2009 from Legal Aid ACT to the Society’s solicitor that there is a process for accreditation of independent children's lawyers, and that before appointment of a practitioner to that position, it is expected that the person will be accredited. This letter, exhibit 1, indicated that the respondent is not an accredited independent children's lawyer, and that the grant of legal assistance for him to be appointed to that role was an error on the part of the Legal Aid Office. The Society's lawyer wrote to the respondent on 3 December 2009 enclosing a copy and enquiring whether he was aware that he needed to be an accredited independent children's lawyer before being appointed to act. That letter was admitted as exhibit 2. The Society's solicitor indicated that there had been no response to this letter.
Notwithstanding whether the respondent should have been accredited, and whether or not he knew this, he appeared in the capacity as independent children’s lawyer at the court hearing.
Hearing of this matter.
The hearing proceeded on 6 August 2010. At 9:30 a.m. when the matter was called there was no appearance for the respondent. I stood the matter down for half an hour, and telephone calls by Tribunal staff were made both to the respondent’s Queanbeyan office, Canberra office and to his mobile phone. Recorded messages were left on the Queanbeyan office number, and on the mobile phone. The Canberra office number rang out.
At 10:10, further telephone calls were made, with the same result.
The hearing of a complaint of professional misconduct and/or unsatisfactory professional conduct is a serious matter. It should not proceed where possible in the absence of the respondent. On the other hand, the work of the Tribunal and its statutory obligation to deal with cases against practitioners cannot be thwarted by a deliberate failure to appear before the Tribunal. I was satisfied that proper notice had been given to the respondent. In the absence of any explanation as to his failure to appear, I proceeded to hear the matter.
In the earlier directions hearings heard by the General President, she had allowed an application by the Society to amend the notice of complaint in several respects. In paragraph 17 (i), the allegation was amended to "a breach of his duty to the three children;", and in paragraph 19 (ii) the words "professional misconduct or in the alternative," were deleted.
As there was no appearance for the respondent and no notice for cross examination had been given, the matter was determined on the affidavit evidence.
The Legislation.
"Professional misconduct" is defined in section 387 of the LP Act. The definition is as follows:
"professional misconduct" includes --
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
"Unsatisfactory professional conduct" is defined in section 386 of the LP Act as follows:
"unsatisfactory professional conduct" includes conduct of an Australian legal practitioner 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.
Rule 1.2 provides as follows:
“A practitioner must act honestly, fairly and with competence and diligence in the service of a client, and should accept instructions, and the retainer to act for a client, only when the practitioner can reasonably expect to serve the client in that manner and tend to the work required with reasonable promptness.”
Rule 30 provides as follows:
A practitioner who, in the course of providing legal services to a client, communicates with a third party orally, or in writing, in terms which, expressly, or by necessary implication, constitute an undertaking on the part of the practitioner to ensure the performance of some action or obligation, in circumstances where it might reasonably be expected that the third party will rely on it, must honour the undertaking so given strictly in accordance with its terms, and within the time promised (if any) or within a reasonable time.
Rule 39.2 provides as follows:
“A practitioner should respond within a reasonable time and in any event within 14 days (or such extended time as the Society may allow) to any requirement by the Society for comments or information in relation to the practitioner's conduct or professional behaviour and in doing so that the practitioner should furnish in writing a full and accurate account of his or her conduct in relation to the matter.”
It is against the information provided to the Tribunal and the provisions of these Rules that the conduct of the respondent must be judged.
Discussion of the evidence and findings.
The evidence of the complainant together with the e-mail from counsel who appeared for the complainant make it clear that the respondent had given an undertaking to the Court to take out the orders. In spite of the telephone calls and contact between the complainant and the complainant’s solicitor (and possibly, staff of the Court) to the respondent, there is no suggestion that at any time he disputed that he had given the undertaking to take out the orders. I am satisfied that he gave the undertaking to the Court and that he failed to comply with it.
The complainant had made it clear to the respondent that it was necessary for the orders to be formally taken out, in order to satisfy the Child Support Agency. Bearing in mind the respondent's obligations to the children in his capacity as independent children's lawyer, his failure to comply with his undertaking could have caused them damage through an inability to amend the payments to be made by the father. Whether or not this is so, the failure to comply with the undertaking for a period of eight months, can only be regarded as indifference to the undertaking that he gave. Ultimately, he did not comply with his undertaking at all, requiring the solicitor for the complainant to take out the orders.
The affidavit of the complainant makes it clear in paragraphs 5 and six that the respondent did agree to carry out his undertaking of taking out the orders. He would have been well aware that getting the formal orders was important to the complainant.
In the annexure to the affidavit of Ms Fleming admitted as Exhibit 4 is a letter written to the solicitors for the Society. In that letter, Ms Fleming outlines the steps that had been taken to try and get the respondent to comply with his undertaking to take out the orders. Those steps indicate that Ms Fleming as the complainant's solicitor was relying on the respondent to take out the orders and was only when he had persistently failed to do so, that in her client's interest she took the step herself of taking the orders out.
In the absence of any reason for the respondent's delay (of which there is no evidence in the material filed and, if it exists, he has not informed the Tribunal) I am satisfied that this delay constitutes a breach of rule 30.
There could not in my view be a clearer case of a more wilful or indifferent attitude to an undertaking given to a court. I am more than comfortably satisfied that the conduct of the respondent in this regard is a breach of Rule 1.2, a breach of a solicitor's obligation to a Court and a breach of the respondent's obligation to his client under rule 30. It must also be a breach of the respondent's obligation to the children. I find that the Society has demonstrated to the necessary degree of comfortable satisfaction that the respondent is guilty of the allegations in paragraph 17 (i) -- (iv) of the complaint.
I also find that the respondent's conduct is capable of bringing the legal profession into disrepute. The complainant, the complainant’s solicitor and the officers of the Court to whom approaches were made would all regard this as unacceptable conduct in a legal practitioner, and if accepted as a general standard of behaviour by legal practitioners would cause the profession itself to be held in disrepute.
It is of the essence of the trusted profession of legal practitioner that the special rights to act for people in legal proceedings imposes obligations to act to advance the client’s interests. This includes an obligation that undertakings be complied with and that matters be reasonably and promptly attended to. The absence of any response or explanation of the conduct and attitude of the respondent is unacceptable within the community of legal practitioners in good standing. The community would regard it as unacceptable.
It is clear from correspondence sent to the respondent by the Society on several occasions that he has been required to give an explanation of his conduct within the terms of Rule 39.2. His failure to respond, other than by a facsimile which could be regarded simply as a delaying tactic rather than an honest attempt to deal with the matter, in my opinion justifies a finding of a wilful disregarding or deliberate breach of this Rule, and I so find.
Classification of conduct.
In classifying conduct as either professional misconduct or unsatisfactory professional conduct, it must be borne in mind that there is a sliding scale of seriousness of conduct, depending on the circumstances. There is conduct at the serious end of the "unsatisfactory professional conduct" classification which leads toward the conduct being classified as "professional misconduct" on the basis that it amounts to "a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence."
While the failure of the respondent to take out the orders in this case clearly amounts to unsatisfactory professional conduct of a continuing nature, I am not satisfied that it falls within the classification in paragraph (a) of the definition of "professional misconduct". It is however in my view a significant and ongoing case of "unsatisfactory professional conduct", and I so find in relation to the allegations in paragraph 17 of the application.
In relation to the breach of failing to respond to the Society, I find that this also constitutes unsatisfactory professional conduct. The Society has contended that this conduct is at the lower level, based on decisions of the Supreme Court of this Territory in previous matters where the conduct was so classified.
In view of the Society’s application, I am not prepared to find that this conduct should be classified as professional misconduct, although the circumstances of this case may warrant a reconsideration of previous decisions.
It should also be noted that where a practitioner has on a number of occasions ignored proper requests from the Society for an explanation of conduct, that pattern of conduct could be regarded in my view as justifying a finding that the practitioner is not a fit and proper person to engage in legal practice as required by paragraph (b) of the definition of "professional misconduct". Responding to the Society is not an option. It is a fundamental obligation of legal practitioners, and if a practitioner consistently flouts that obligation, imposed for the public good, then it must raise questions as to whether that person remains a fit and proper person to continue in legal practice.
Conclusion
The matter will be relisted following publication of these reasons to allow the Society and the respondent (if he wishes) to make any submission on the question of penalty and costs. Formal orders in the matter will then be handed down.
………………………………..
Mr C G Chenoweth,
Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | LP 09/05 |
PARTIES, APPLICANT: | ACT LAW SOCIETY |
PARTIES, RESPONDENT: | THE LEGAL PRACTITIONER |
COUNCEL APPEARING, APPLICANT | N/A |
COUNCEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | DIBBS BARKER, MR BUXTON |
SOLICITORS FOR RESPONDENT | |
TRIBUNAL MEMBERS: | MR C. CHENOWETH, |
DATES OF HEARING: | 6 AUGUST 2010 |
PLACE OF HEARING: | CANBERRA |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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