THE ACT LAW SOCIETY & THE LEGAL PRACTITIONER (Duncan Phillips) (ACAT - Occupational Discipline)
[2010] ACAT 58
•15 September 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE ACT LAW SOCIETY & THE LEGAL PRACTITIONER (Duncan Phillips) (ACAT - Occupational Discipline) [2010] ACAT 58
LP 4 of 2009
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PROFESSION – professional misconduct – unsatisfactory professional conduct - interstate legal practitioner – ACAT’s jurisdiction to hear the complaint – complaints: failure to properly conduct a matter before court; failure to engage in negotiations or correspondence with the other party; failure to follow instructions; failure to obtain evidence to support the complainant’s case; failure to address allegations against the complainant in the court proceedings; and withdrawing from the proceedings and terminating the retainer without cause or notice – conduct capable of bringing legal profession into disrepute – not facilitating transfer of file – failure to respond to Law Society – severity of conduct
List of Legislation: Legal Profession Act 2006, ss. 7, 386, 387, 391, 419, 576 and 585
List of Regulations: Legal Profession (Solicitors) Rules 2007, rules 1.1, 1.2, 5.1, 26.2 and 39.2
List of cases: Briginshaw v. Briginshaw [1938] 60 CLR 336
DP v. The Law Society of the ACT [2004] ACTSC 130
Tribunal: Mr C G Chenoweth, Presiding Member
Date of Reasons for Decision: 15 September 2010REASONS FOR DECISION
1. This is an application under section 419 of the Legal Profession Act 2006 ("LP Act") contending that certain conduct of the respondent constituted professional misconduct or, in the alternative, unsatisfactory professional conduct. The applicant, the Law Society of the ACT ("Society") is established by section 576 of the LP Act. The application alleges breaches of a number of the rules set out in the Legal Professions (Solicitors) Rules 2007 (“the rules”).
Jurisdiction of the Tribunal.
2. The respondent was at all material times a partner with a small firm that has offices in both New South Wales and the ACT. The respondent holds an unrestricted principal’s certificate issued by the Law Society of New South Wales, but does not hold a certificate issued by the Society. As the respondent is an interstate legal practitioner who holds an interstate practising certificate that does not restrict the practitioner to engaging in legal practice only or in the manner of a barrister, he is a "solicitor" within the definition in the LP Act. He is also an “Australian legal practitioner” within the definition of the LP Act because he is an Australian lawyer (a person admitted to the legal profession) who holds or held at all relevant times an interstate practicing certificate. (section 7 of the LP Act.)
3. The definition of "relevant council" in the dictionary to the LP Act includes:
"(b) 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 grant of an unrestricted practising certificate or a restricted practising certificate -- the law society council."
4. The effect of these definitions in the LP Act results in the Society having the standing as the applicant in this matter, notwithstanding that the respondent does not hold a certificate issued by the Society.
5. The introduction of uniform legislation regulating legal practitioners throughout Australia has meant that it was necessary to establish procedures under which one relevant council could take action where necessary in respect of conduct undertaken in, or partly in, its jurisdiction even though the legal practitioner was not the holder of a practising certificate issued by that council.
6. Section 391 of the LP Act provides as follows under the heading “Conduct to which chapter 4 applies - generally:”
"(1) Subject to subsection (3) this part applies to conduct happening in the ACT.
(2) This part also applies to conduct happening outside the ACT, but only --
(a) if it is part of a course of conduct that has happened partly in the ACT and partly in another jurisdiction, and either --
(i) the corresponding authority of each other jurisdiction where conduct has happened consents to it being dealt with under this Act; or”
7. The rest of the section including sub-section (3) is not relevant.
8. The conduct complained of involved instructions in a family law matter.
9. The Professional Standards Director of the Society, Mr Reis, has filed an affidavit in this matter dated 30 June 2010. In paragraphs 7 and 8 of that affidavit he refers to the receipt of the complaint from the complainant. In paragraph 9 he refers to the complaint being forwarded to the Legal Services Commission of New South Wales.
10. In a letter dated 13 March 2009 but apparently written about the middle of May 2009 Mr Reis wrote to Mr Jim Milne of the Legal Services Commission of New South Wales, the corresponding authority in that state. The letter annexed as annexure "B" to the affidavit reads as follows:
"Dear Mr Milne
Complaint by (complainant) against (respondent).
Our office recently received a complaint by (complainant) against (respondent). I enclose a copy of the complaint for your records.
The complaint was referred to our complaints committee on 7 May 2009. The committee resolved to investigate the complaint provided consent was obtained from the jurisdiction in which (respondent) obtained his practising certificate. (Respondent) currently holds a New South Wales practising certificate.
As you are aware section 391 (2) of our Legal Profession Act 2006 permits us to deal with the matter provided we have your consent to have the matter dealt with under our act.
Would you please consider this request and if approved, provide me with your written consent for the ACT Law Society to investigate and deal with this complaint.
Yours sincerely
Robert Reis
Professional Standards Director."
11. The response from the Legal Services Commissioner is annexure "C" to the affidavit and is as follows:
"Dear Mr Reis
Complaint by (complainant) about (respondent).
I am writing about your letter received in this office on 18 May 2009.
I agree with your request to refer back to you the complaint by (complainant) about (respondent). If you have any questions about the matter please contact Jim Milne of this office on 02 -- 93771845.
Yours sincerely
Steve Mark
Commissioner."
12. The original letter of complaint from the complainant is dated 28 April 2009, and is annexed to the affidavit of Mr Reis as annexure "A". That letter indicates that the initial instructions were given by the complainant to the respondent at the respondent's office in New South Wales. The instructions were to resist an application by the parents of the complainant's child's father to obtain custody or residency rights over the complainant's son. Proceedings had been instituted in the Federal Magistrates Court (“the Court”) in Canberra, and the complainant had received a grant of aid from Legal Aid ACT to enable her to have a solicitor to represent her in the application.
13. The grounds upon which the Society makes the application against the respondent were (in summary) a failure to properly conduct the matter before the Court, including a failure to engage in negotiations or meaningful correspondence with the other party, a failure to follow instructions, a failure to have regard to or address allegations made against the complainant by the applicants in the proceedings and a failure to obtain evidence that would have been helpful to the complainant’s case.
14. The allegations by the Society also include one that the respondent withdrew from the proceedings and terminated the retainer without proper cause or notice, in breach of the Legal Profession (Solicitors) Rules 2007 (“the Rules”).
15. A further ground of complaint was that the respondent had persistently failed to provide any response or explanation to the Society about the complaint.
16. Particulars of these allegations will be considered later in this decision.
17. As the solicitor took instructions and conducted the matter at least partly from the New South Wales office of the firm, and also appeared in the Court in Canberra, I am satisfied that the course of conduct complained of has happened partly in the ACT and partly in another jurisdiction, namely New South Wales. In those circumstances, it is necessary that the "corresponding authority" of New South Wales consents to the conduct being dealt with under the LP Act -- see section 391 (2) (a) (i) of the LP Act.
18. The letter from Mr Reis seeking authority and consent from the Legal Services Commissioner in New South Wales is quite clear in its request. Although the response from the Commissioner is not worded with the same precision, I am satisfied that it constitutes consent to the matter being dealt with under the LP Act.
19. The effect of consent granted under section 391 of the LP Act is that for the purposes of this application, the Society is the "relevant council" for the purposes of section 419 of the LP Act. It is on this basis that the Society has brought the complaint.
Preliminary Issues.
20. In accordance with the usual procedures of the Tribunal, after filing of the application an order was made on the 21 September 2009 directing the filing and serving of affidavits and other documents by both parties. Further directions were made on 3 November 2009 extending the date for filing and serving of documents, and adjourning the matter for further orders. On 21 December 2009, the General President ordered that the matter be set down for hearing on 12 March 2010. The Tribunal noted on the order:
"The respondent has not participated in the proceedings to date and that the Tribunal may proceed to determine the application in his absence from the hearing date allocated.”
21. On 12 March 2010 the respondent was notified that the General President had ordered on her own motion that the hearing dates be vacated and new date to be set. This was as a result of workload problems inhibiting member and hearing room availability. The matter was further listed for directions on 21 April 2010.
22. At the directions hearing on 21 April, the respondent was present. The application was listed for hearing on 27 July 2010, and if necessary continuing over onto the following day. The respondent indicated that he required the Professional Standards Director Mr Reis and all the deponents of affidavits to be available for cross examination at the hearing.
23. The Society was late in filing the affidavit of the complainant and the experts report. The last of the documents was served on the respondent several weeks after the due date of 11 June.
24. During at least one of the directions hearings, the respondent had indicated that he objected to the General President hearing the matter because of her prior association with the Society Council. No material was filed to support any potential argument of bias, and the matter was not pursued by the respondent. The serious implication of potential bias against a Tribunal member, which requires a proper application and supporting material, has not been pursued by the respondent. I disregarded it.
25. It is clear that the respondent was notified of the time and place of the hearing as far back as 21 April. While the filing of the affidavit of Mr Reis was late in the proceedings, counsel for the society said that the affidavit did no more than to annex the tender bundle of documents that had been provided to the respondent months earlier. Further, the experts report was in the hands of the respondent for at least three weeks before the hearing. If he had taken steps to obtain an alternative expert advice, or had taken advice about the prospects of an application in the Supreme Court to question the jurisdiction of the Tribunal, he chose not to provide any evidence of this.
26. On the 20th July, the matter was listed for a final directions hearing prior to the hearing of the matter on the 27th July. On that day, the respondent sent a facsimile to the General President complaining about the late service of documents from the Society, indicating that the materials "raised certain issues and are incomplete or misleading by omission" and advised that the respondent would need further time to issue subpoenas or take action to obtain evidence from independent sources and also that he had sought to engage counsel to advise on the matter, but had been unsuccessful in obtaining advice. The respondent also indicated that he had received "certain advice in relation to the power of the Tribunal to hear these matters." The respondent asked for an extension of eight weeks.
27. The registrar of the Tribunal responded to the respondent on the 21st July, indicating that at the directions hearing on 20 July the request for an adjournment was opposed by the Society, but the Tribunal had adjourned the matter for a short period to give the respondent an opportunity to attend in person or otherwise explain more fully the basis of the requested adjournment.
28. On the 22 July the respondent replied to the registrar complaining about the extensions of time that had been given to the Society, and maintaining that the experts report raised substantial issues that he wanted to question. The respondent also referred to other "significant issues of omission" in the Society’s evidence, without providing details. The respondent indicated that there may be an application to the Supreme Court which should "not come as a surprise to anyone involved in the matter given the objections made by me to the hearing of this matter by Mr (sic) Crebbin. I have made my view of Ms Crebbin's failure to disqualify herself in this matter abundantly clear.”
29. The matter remained listed for 27 July. Due to workload pressures and other obligations of the General President, the matter was listed before me.
30. It is fundamental to fulfilling the statutory obligations of the Society and the Tribunal that where a complaint against a legal practitioner is made, responding to the complaint should be a matter of first priority and not last priority as far as the practitioner is concerned. Where such lengthy notice of the hearing is given, all other matters on the day of hearing should be set aside so that the practitioner can respond to the serious allegations made.
31. I am satisfied that the respondent had ample notice of the hearing date. I am also satisfied that the late filing of the documents would not have caused any unfairness to the respondent had he applied himself to preparation for the hearing. It was also open to him to attend the hearing on the 27 July 2010 to explain in detail why a further adjournment was necessary. He chose not to do so. He has not explained his absence since that date.
32. When the matter was called for hearing at 9.30 on 27 July 2010, the respondent was not present. I then stood the matter down for an hour, and telephone calls were made to the business office and mobile phone of the respondent. Both of these resulted in a calls going to voicemail. When the matter was again called on at 10.30, and the respondent had not appeared, further calls to his office and his mobile phone were made. The result was the same as with the earlier calls.
33. The hearing of a complaint of professional misconduct and/or unsatisfactory professional conduct is a serious matter, and should not where possible proceed 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.
34. In the earlier directions hearings heard by the General President, she had allowed an application by the Society to amend the original notice of complaint in several respects. These were amendments favourable to the respondent. Notwithstanding this, I commenced the hearing of the application from the beginning, including the application to amend the complaint made by the Society. I allowed the amendments, again in view of the fact that they were favourable to the respondent.
35. At about 12:25 PM when breaking for lunch, a telephone call was made to the New South Wales office of the respondent. This was answered by the respondent's partner, who said that the respondent was appearing in court. The respondent did not telephone the Tribunal or seek to provide any explanation for his absence, and the matter was resumed and concluded that afternoon.
36. Next day the deputy registrar sent a facsimile message to the office of the respondent confirming the telephone calls that had been made and that the hearing had been conducted, and also notifying him that the directions hearing in another matter (LP09/05) concerning him were to be held that afternoon, the 28th July in accordance with directions previously given by the General President in that case. The respondent replied by email on the same day, enquiring as to who was to hear matter LP09/05 and maintaining that the whole of the hearings, including directions hearings, would need to be started afresh. He also maintained that he had not had enough time to consider the matters.
The Society’s Evidence.
37. It is a necessary precondition to a finding of a breach of Rule 39.2 that the Society "require" a practitioner to provide comments or information in relation to a practitioner's conduct or professional behaviour. The decision of the Supreme Court of the ACT in the matter of DP v. The Law Society of the ACT [2004] ACTSC 130 makes it clear at paragraph 17 that for the obligation to be imposed, the letter from the Society must amount to a requirement, and cannot merely convey the Society's wish that the practitioner be provided with an opportunity to respond to the relevant allegations.
38. The initial letter from Mr Reis to the respondent was dated 11 May 2009. It is annexed to his affidavit as annexure "D". The letter enclosed a copy of the complaint letter. It referred to the LP Act, and the Rules. After summarising the area of complaint, it stated: "you are required to respond to the substance of this complaint within 14 days."
While courteous in its terms, the letter went beyond one that only offered the respondent an opportunity to comment if he wished. This letter was an exercise of the Society's power under rule 39.2.
39. On the 4 June 2009, a further letter was sent by Mr Reis to the respondent. This is annexure "E" to the affidavit of Mr Reis. The respondent had not made any response to the first letter. The second letter quoted rules 39.1 and 39.2 and requested a response by 11 June 2009. No response was received.
40. A third letter was sent on 18 June 2009. This is annexure "F" to the affidavit of Mr Reis. In that letter, the respondent was directed (the Society's emphasis) to provide a response to the Society by 25 June 2009. The letter again set out the provisions of rule 39.1 and 39.2, and noted that if the response is not received by the due date the matter will be automatically referred to the Executive for consideration of whether or not disciplinary proceedings should be instituted against the respondent for a failure to respond to the Society.
41. On 25 June 2009 the respondent sent a facsimile to the Society referring to the matters the subject of these proceedings and another matter, in which the respondent said as follows:
"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."
42. The Society had not received any response to the complaint at the time that this matter was heard.
43. In addition to the affidavit of Mr Reis annexing a number of copies of letters and other documents, the Society filed an affidavit from Ms Melinda Pam Luke. She was the solicitor who took over the matter from the respondent when he withdrew. An affidavit was filed by the complainant, and one by Mr Gavin Howard who was a solicitor acting as town agent for the applicants in the case. An expert’s report was provided by Ms Julie Dobinson. Ms Luke, the complainant and Ms Dobinson all gave evidence before the Tribunal.
44. As indicated above, the respondent had been acting for the complainant in contesting an application in the Court brought by the paternal grandparents of the complaint’s child, seeking custody. The complainant and the father had been in a short term relationship which had broken up.
45. When the matter came before the Court on the 6th November 2008 for final determination, the respondent while present in the Court told the complainant that he could no longer act for her, and obtained leave from the magistrate to withdraw. Ms Luke was subsequently instructed to act for the complainant, and obtained the respondent’s file in the matter. She acted immediately to obtain and file further evidence on behalf of the complainant. The matter was subsequently settled by agreement on 16 December 2008.
46. The affidavit of Ms Luke sets out her discussions with the complainant, and her review of the file and subsequent action in the matter. Her oral evidence confirmed her material in the affidavit.
47. In summary, Ms Luke's evidence was as follows:
(a) The complainant met with Ms Luke on 10 November 2008, four days after the respondent had ceased to act for her and told her that the respondent had discontinued acting while at the court. The complainant told Ms Luke that the only reason that the respondent gave for ceasing to act for her was that "it was for ethical reasons." These were not expanded upon by him.
(b) When Ms Luke obtained a file of the respondent, there were a number of documents including draft affidavits and a report from the Barnardo’s case worker (who had been assisting the complainant) in the file, but they had not been prepared for filing and were in most cases undated and only drafts.
(c) There were no copies of any correspondence between the respondent and the solicitors for the other party, nor had any subpoenas been issued to the child-care centre where the child the subject of proceedings had been looked after, nor to the New South Wales police. The complainant told Ms Luke that the complainant had wanted the police records obtained because there were acts of violence and apprehended violence orders that were relevant to the characters of the applicants, and that she had asked the respondent to do this.
(d) The complainant advised Ms Luke that a Court family counsellor report had been prepared on 30 October 2008, with certain recommendations. The complainant had not agreed to the proposal set out by the counsellor. The complainant told Ms Luke that the respondent had urged her to accept this compromise, on the basis that the Court would be likely to follow the recommendation.
48. Ms Luke only obtained the complainant’s file from the respondent on 8 December 2008. The matter was finally heard on the 16th December 2008 in the Court in Canberra. Ms Luke acted with commendable speed after 8 December to obtain a number of further affidavits and reports in the matter which were then filed in the Court. She also sought to obtain the New South Wales police records in relation to the applicants, material which she considered to be highly relevant to the proceedings. The applicants had previously issued subpoenas to obtain the complainant’s police record.
49. Following the filing of the additional material and the obtaining of the reports (including the subpoenaed police material which arrived on the day of the hearing), discussions were held between the parties in the Court, and a settlement was achieved. Consent orders were made.
50. In her affidavit, Ms Luke indicated that in the settlement discussions, the solicitor for the paternal grandparents advised her and counsel instructed by her that there had been a great deal of difficulty in communicating with the respondent. The applicants’ solicitor had not been able to ascertain the respondent’s position in order to attempt to settle the case, or indeed what the basis of his client's case was. The solicitor further advised that there had been only one telephone call made by the respondent to the applicant’s solicitor and that was received only after a letter of complaint had been sent. The affidavit also noted in paragraph 14 that at the hearing on "approximately 5 November 2008" (which appears to have been 6 November 2008) the respondent had stated in open court that the complainant's case was “hopeless, that she would not follow these instructions and that on that basis he was required to withdraw.”
51. I asked a number of questions of the witness and I am satisfied that the evidence that she gave both in the affidavit and before the Tribunal was accurate and can be relied upon.
52. The Society had filed an affidavit of Mr Gavin Howard dated 9 April 2010. He attests that in his capacity as the agent for the New South Wales solicitors for the paternal grandparents, he had been in the Court on 6 November 2008, appearing in the matter. He recalled the respondent appearing for the complainant and advising the court in words to the following effect: "I have to withdraw from the case as my client does not take my advice." Mr Howard also states that at the time of the hearing the respondent had not filed any affidavit or other material on behalf of the complainant, although one had been filed on 27th February 2008 in early interlocutory proceeding. For reasons both of the respondent’s withdrawal and the fact that the matter was not ready to proceed on the complainant's behalf, the matter was adjourned.
53. The complainant made an affidavit in this matter dated 8 June 2010. She also gave evidence to the Tribunal.
54. The complainant confirmed that she first instructed the respondent in his New South Wales office in February 2008, and that she swore her initial affidavit on the 27th February 2008. Following this meeting, she attempted to communicate further with the respondent by telephone, but no helpful response was obtained.
55. The complainant alleged that she had been subject to domestic violence from the father of the child, who is the son of the applicants. She had taken out an apprehended domestic violence order against the father. There had been breaches of that order which had been reported to the police.
56. The complainant also gave evidence that she had been working with Barnardos "Brighter Future" program. The case worker with whom she had been working provided considerable emotional and practical support to her, and was familiar with her domestic arrangements. The case worker was prepared to give evidence in the complainant’s favour.
57. An order had been made for the preparation of a family report. The family report prepared by the Court counsellor was an important matter. The complainant gave evidence that she had only been notified by the respondent in a telephone call of the need for her to attend for an interview for this report on the day it was to take place. She had been given no outline or indication of how the interview was likely to proceed or what issues would be important for her to comment on. The only advice that the respondent had given her in this telephone call was to mention the history of domestic violence of the father.
58. In paragraph 11 of her affidavit, the complainant set out details of a telephone call with the respondent concerning the recommendation of the counsellor in the family report. This recommendation was that the child lives with his paternal grandparents and only spend two days a week with the complainant. The complainant states that the respondent had said "the Court always goes by the family report. You have no chance of getting different orders." When discussing the report with her, the respondent also said to the complainant "What did you say in there? You have jeopardised your case."
59. The complainant also set out in her affidavit that she had obtained a report letter, favourable to her, from her family doctor. This report had been sent to the respondent, but in a telephone call the respondent had dismissed it with the words "This isn't good enough. I cannot use it."
60. The complainant gave evidence that when the matter was heard in the Court on 6 November 2008, the respondent said to her words to the following effect: "if you do not agreed to consent orders in terms of the family report I can no longer act for you for ethical reasons. You should settle for the offer there is made. You are not going to get any better than that, if you settle I'll stay in, if you don't I have to go, I can't fight for you.” The respondent did not elaborate on what he meant by "ethical reasons" for not representing the complainant. The use of this phrase and its implications that she may have done something wrong caused the complainant considerable concern. She was very distressed because she did not know what to do and because of her concern for her child.
61. In the absence of the respondent, I questioned the complainant about aspects of her evidence. I am satisfied that she gave her evidence honestly and that it can be relied upon.
62. An expert’s report was filed in the matter on behalf of the Society. The report was given by Ms Julie Dobinson, who acknowledged that she had read the "Expert Witness Code of Conduct" published by the Tribunal and agreed to be bound by it.
63. Ms Dobinson has a Bachelor of Legal Studies and Master of Laws, was first admitted in 1992 and is an accredited specialist in family law in New South Wales. She is a member of the Family Law section of the Law Council of Australia, and in her role as managing director of a specialist family law firm in Canberra has had extensive experience in the conduct of proceedings in the Family Court and the Federal Magistrates Court under the Family Law act.
64. In her experts report, Ms Dobinson sets out her review of the respondent’s file, the history of the matter and the amount of material filed by the applicant’s solicitors in support of the claim that the child live with the grandparents. Ms Dobinson notes that there had been orders directing the complainant to file any affidavits upon which she intended to rely by 21 October 2008, with subpoenas returnable no later than 23 October 2008. There was also an order made that a family report be prepared.
65. The summary of Ms Dobinson's evidence as an expert is as follows:
(a) the complainant's case did not present any complex issues of law for the Court or the practitioners.
(b) it is usual for negotiations to be an attempted on an outcome on a client's case and it was irresponsible of the respondent to fail to meaningfully communicate to other lawyers. In this regard the respondent failed to represent his client to a satisfactory standard.
(c) the respondent failed to follow his client's instructions to prepare affidavit material and issue subpoenas, further, he did not have discussions with the potential witnesses as to the suitability of their evidence. Ms Dobinson was of the opinion that the respondent prejudiced his client's case in not following her instructions.
(d) the respondent should have obtained detailed instructions from his client responding to the affidavit material filed on behalf of the applicants, and that this failure is likely to have impacted in the courts view and the settlement negotiations when orders were made.
(e) the failure to issue subpoenas to the New South Wales police when requested by the complainant prejudiced the complainant. Had this material being before the Court in the interim proceedings, the complainant's case would have been enhanced considerably and the possibilities for an earlier settlement would have been greater.
(f) there was a failure to provide objective and relevant evidence in support of the family report writer because of the lack of material on the file, although it was unclear whether this failure made a material difference to the report process and the recommendations made by the report writer.
(g) the failure by the respondent to discuss and prepare his client for the report process would have increased the stress on her, and was a further failure to properly conduct a matter.
66. Ms Dobinson noted that there was an allegation against respondent of a withdrawal from the proceedings and termination of the retainer without proper cause. This aspect is dealt with under the Rules rather than in her report.
67. The conclusions reached by Ms Dobinson based on her review of the file were not contested by the respondent, nor has the Tribunal received any indication of a serious intention to challenge them. If there had been such an intention, the respondent would have attended at the Tribunal to make any relevant submission. The respondent has not filed any contrary expert’s report.
Amendment of the Charges.
68. As indicated in paragraph 34, I allowed the amendment of the charges contained in the application dated 21 August 2009 in the following manner:
(a) by deleting paragraph 5 (f) and paragraph 5 (i):
(b) by deleting paragraph 18 (b) and substituting "a breach of rule 5.1 in that he terminated the retainer without just cause:”
(c) by deleting paragraph 18 (d):
(d) by deleting from paragraph 20 (b) the words "professional misconduct or, in the alternative,"
69. As all of these amendments either reduced the matters complained of against the respondent or in the case of paragraph 18 (b) rephrased the complaint without imposing any additional burden, the amendments were allowed.
The Legislation.
70. "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.
71. "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.
72. Rule 1.1 provides as follows:
A practitioner should treat his or her client fairly and in good faith, giving due regard to the clients position of dependence upon the practitioner, his or her special training and experience and a high degree of trust which a client is entitled to place in a practitioner.
73. 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.
74. Rule 5.1 provides as follows:
A practitioner must complete the work or legal service required by the practitioner's retainer, unless:
(a) the practitioner and the practitioner's client have otherwise agreed:
(b) the practitioner is discharged from the retainer by the client; or
(c) a practitioner terminates the retainer for just cause, and on reasonable notice to the client.
75. Rule 26.2 states as follows, under the heading of "Taking over a Matter from Another Practitioner":
The first practitioner must promptly, on receipt of a direction in writing from the client, deliver to the second practitioner all relevant documents to which the client is entitled and any information which is necessary for the proper conduct of the client's business, unless the first practitioner claims a lien over the documents for unpaid costs.
76. 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.
77. It is against the information provided to the Tribunal and the provisions of these Rules that the conduct of the respondent must be judged.
Findings.
Rule 1.1 and 1.2.
78. Beyond taking the original instructions and preparing and filing an affidavit of the complainant at the commencement of the proceedings, the evidence of Ms Luke and Ms. Dobinson is that the respondent's file provided no evidence of properly attending to the matter of the complainant. Draft affidavits were in the file, but had not been completed in registrable form nor signed and filed. The evidence from the complainant was that she was not appropriately prepared for the family counsellor interview, and that despite of repeated telephone calls and requests she was unable to get any progress reports from the respondent about what steps he had taken in the matter. Instructions that she had given about the necessity for subpoenas to be issued to the New South Wales police to obtain evidence of criminal behaviour on the part of those involved in the Court proceedings had been ignored, and reports from her medical practitioner and Barnardo’s support worker which could have assisted her were dismissed without further consideration or enquiry or not followed up.
79. It must be remembered that the complainant is a young woman living in a small country town. She was engaged in a bitter dispute about the custody of her only child. She was unsophisticated, vulnerable, anxious, and in no position to make a decision to change practitioners which may have been made by a more experienced person. When the matter was listed for hearing in the Court in Canberra, and she made arrangements to attend and travel for several hours to get to the Court, she was faced (although she did not know it at that stage) with the case that had not been prepared to any degree of acceptability.
80. She considered that the failure of the respondent to make appropriate enquiries had led to an unfair family court report, which she was not prepared to accept. Evidence which may have assisted her in this had not been prepared and filed because of failures by the respondent. When the complainant resisted the respondent's pressure to simply accept the report, she was told that he had to withdraw for "ethical reasons". Not only was this a meaningless phrase to her, but it was deceptive because the respondent failed to refer to his own lack of preparation which would have, on the experts report, significantly affected the prospects of the complainant.
81. I find that this conduct constituted a breach of Rules 1.1 and 1.2.
Rule 5.1.
82. A solicitor may in certain circumstances terminate the retainer of a client. It is not something to be done lightly or dishonestly, but requires discussion with the client to indicate why the solicitor cannot continue acting in the matter. Further, it must be done in a way which does not damage the client's interest. The evidence of the complainant, Ms. Luke and Mr Howard satisfies me that the respondent failed to comply with both of these requirements. To use a phrase such as "withdraw for ethical reasons" to an unsophisticated young client in the pressure cooker atmosphere of the Court where she is contesting an application to remove her child from her custody would be most upsetting. It has the implication that she has done something wrong, rather than the respondent himself.
83. It is not a ground for withdrawing from a retainer simply because the client does not accept the solicitor's advice. The solicitor may point out that in his opinion to persist with the client's instructions is not in the client's interest, but unless there is a breach of the client's obligation to the Court (such as the duty of frankness) then the practitioner should not withdraw but seek to argue the case in accordance with the client's instructions. Not only did the respondent not advise the client in clear terms and at length as to why he considered that her instructions were not in her interests, but in my opinion the evidence indicates that he deliberately misled her as to the state of preparation of the matter and used the supposed "ethical reason" as a cover for his own shortcomings.
84. I am satisfied that there has been a breach of Rule 5.1.
Engaging in conduct capable of bringing the legal profession into disrepute.
85. Having regard to the manner in which the respondent conducted (or failed to conduct) the case on behalf of the complainant, the lack of any attempt to reach a reasonable settlement of the matter without the stress and time involved in the Court hearing, the lack of preparation of the client for the vital family counsellor interview and the conduct of the respondent at the Court hearing, I am satisfied that this charge has been made out.
Not facilitating the transfer of the file.
86. It is clear from paragraphs 17 and 18 of the complainant’s affidavit that the complainant sought to have the file transferred to Ms Luke following the initial interview with her on 10 November 2008. The complainant’s evidence is that she made a number of telephone calls and left messages on the answering machine and spoke to the respondent's partner. It appears from paragraph 16 of the affidavit that the complainant was given a reason for the delay in transfer, (being a failure to pay a legal aid contribution,) which was highly questionable. Not only could the respondent's office not inform the complainant of the amount allegedly owing, even when the complainant offered to drop the money into the office in person, but there is no evidence that the complainant actually had to pay any money in order to get the file transferred to the new solicitor. This failure to transfer the file promptly had the capacity to damage the complainant's interest because of the lack of preparation of the case and the impending hearing date.
87. Notwithstanding the delay by the respondent and what appears to be misinformation deliberately given to the complainant to hold up the transfer of the file, Rule 26.2 requires that there should be a direction in writing from the client delivered to the first practitioner. There is no evidence in the material before me that there was such a direction, although the usual conduct of solicitors and the lack of time between the initial consultation between the complainant and Ms Luke on 10 November, and the hearing date in late December, would lead one to believe that it was prepared and sent. However, in the absence of evidence of such a written direction I find that this complaint has not been made out.
The failure to respond to the Society.
88. Section 585 of the LP Act provides as follows:
"(1) Legal profession rules are binding on Australian legal practitioners and locally registered foreign lawyers to whom they apply.
(2) Failure to comply with legal profession rules can be unsatisfactory professional conduct or professional misconduct."
89. The Chief Justice of the Supreme Court of the ACT in the decision of In the matter of DP and The Legal Practitioners Act 1970 [ 2005] ACTSC 78 said in paragraph 3 of the reasons for judgement, when considering complaints against a practitioner:
"The second is his refusal to comply with the Law Society direction (as it became) to respond to a complaint. The Law Society must, and indeed should, if it finds a complaint to have apparent substance, seek an explanation from the solicitor concerned. And if the Law Society lacks the power to do that then the system will not work satisfactorily for the protection of clients generally. So it must be emphasised that the Society has that power, is entitled to exercise it, and the exercise of that power is further entitled to respect and compliance with it by members of the legal profession to whom it is directed."
90. The evidence of correspondence provided by the affidavit of Mr Reis indicates that the respondent has failed to comply with his obligations, notwithstanding three letters being sent to him by the Society. There is no satisfactory explanation of the breach, nor has there been any attempt to comply with it at any time. The only response from the respondent is the facsimile of 25 June 2009, referring to what he says is his obligation to “seek the advice of counsel before responding to any complaint."
91. I regard the response of the respondent as a deliberately evasive reply, and am satisfied that he had no intention of responding to the Society. The facsimile is incorrect in that it refers to an obligation to seek counsel's advice: a solicitor is perfectly entitled to seek that advice before responding to the Society, but there is no obligation to do so. Counsel experienced in this field would generally advise a prompt and full response. The fact that the respondent has still failed to make any response to the Society about the serious complaints (even though he said that he was preparing a response) indicates that he had no intention of doing so, and that the facsimile was simply an attempt to delay the matter further. The respondent has failed to take the opportunities open to him to appear before the Tribunal (or even at this late stage provide a written response to the Society) to explain what on the face of it is a deliberate and continuing failure to comply with the Rule.
92. The Society contends that all or any one or more of the breaches referred to in paragraph 18 of the application to the Tribunal amount to professional misconduct or, in the alternative, unsatisfactory professional conduct. The application further contends that the failure to respond to the Society in breach of Rule 39.2 amounts to unsatisfactory professional conduct.
93. A finding of either professional misconduct or unsatisfactory professional conduct against a legal practitioner is a serious matter. The Tribunal should only make such a finding if it is comfortably satisfied that the charges are made out, having regard to the gravity of the matter. It is well-known that this standard of proof and satisfaction, higher than the civil standard of proof, flows from the case of Briginshaw v. Briginshaw [1938] 60 CLR 336 and subsequent authorities. Having regard to those authorities, and the gravity of the matter, I am comfortably satisfied that the Society has made out the charges other than the one relating to the transfer of the file.
94. The onus on the Tribunal in cases where the respondent does not appear, even in cases where he fails to do so to avoid interrogation and scrutiny of his conduct, is to examine the evidence to see if there is anything that can be said in favour of the practitioner in response to the allegations. I find that there is no such material in this case.
Classification of Conduct.
95. In relation to the charge in paragraph 18 (a) of the application, I consider that the conduct amounts to professional misconduct. Beyond filing the initial affidavit on the hearing for interim orders, the evidence is that the respondent took no meaningful steps to advance his client's interest, and his failure to do so would have significantly disadvantaged her had not the case been taken over by Ms. Luke. The failure of the respondent to prepare and file affidavits in support of the complainant's case, his dismissal of the potential evidence from the complainant’s doctor and Barnardo’s caseworker, the failure to investigate how this evidence and the other draft affidavit material in the file could be properly put before the Court and do so before the hearing, and his failure to communicate with the complainant and the solicitors for the applicant in the Court proceedings amount to an abandonment of his professional obligations under rules 1.1 and 1.2 of the Rules. To then attend at the Court hearing, knowing that the case had not been properly prepared but to use the excuse (as I find it to be) of some ethical problem as a reason for not proceeding, was a dishonest act both to his client and to the Court. Bearing in mind that his client was an unsophisticated and anxious young mother who was seeking to preserve custody of her son, and that the applicants had put on substantial affidavit material which was to her disadvantage, this amounted to an abandonment of his obligations to his client. When this is coupled with the failure to prepare and advise his client about the family counsellor report and a failure to obtain evidence which she knew to be relevant in relation to the police records of the other parties, there is little if anything which can be said in favour of the respondent's conduct of the matter. This is a substantial failure to reach a reasonable standard of competence and diligence.
96. The second allegation in paragraph 18 (b) as amended is that the respondent was guilty of "a breach of rule 5.1 in that he terminated without just cause.”
97. The family report is dated 30 October 2008. Although there is no direct evidence, I am prepared to accept that it was provided to the respondent shortly after that. The complainant in paragraph 11 of her affidavit indicates that she had received the report from the respondent and discussed it with him. He had advised her in a telephone call several days before the final hearing that she should accept the recommendations which she was clearly unhappy about. While it is a matter of judgement as to whether the family report should be accepted by a client or not, once the client had made it clear that she was not prepared to accept it and that the respondent should argue for a greater amount of custody, he should have accepted those instructions and carried them out to the best of his ability. It is no breach of a practitioner's "ethical obligations" to argue a client's case, even though the respondent does not consider that it is in the client's best interest. As long as there is no breach of a practitioner's obligations to the Court, then the practitioner should proceed. In my view, there was no "just cause" for terminating the retainer.
98. Rule 5.1 (c) also requires that termination be on "reasonable notice". To terminate the retainer in a case such as this on the day of the hearing cannot amount to reasonable notice. If the respondent had genuinely believed that he had difficulty in arguing his client's case in the Court because of the family report, he should have provided written notice to her about this. He should have specified in detail what the supposed “ethical reasons” were. He could also have taken advice from other practitioners more experienced in the field. He did none of these things, but simply announced in court that he was withdrawing for "ethical reasons".
99. The evidence indicates that the real reason for the withdrawal was not some supposed "ethical reason" but the lack of preparation on the part of the respondent, and his unwillingness to acknowledge his fault. I find that the excuse of the ethical reason was simply that: an excuse to cover his own failure. His lack of frankness both to his client and to the Court about the real reason for his withdrawal brings this conduct beyond unsatisfactory professional conduct and into the category of professional misconduct.
100. The third allegation in paragraph 18 (c) of the application is that the respondent engaged in conduct capable of bringing the legal profession into disrepute. I consider that the evidence in this case justifies a finding that this allegation has been made out, and that the conduct is properly classified as one of professional misconduct, because of the findings in relation to the two earlier charges.
101. The fourth charge in paragraph 18 (e) of the application is not made out because of the lack of direct evidence of a written direction to transfer the file. Having said that, the evidence indicates that Ms Luke only received the file from the respondent on 8 December. Combined with the evidence of the complainant about the reasons given for not handing over the file (including the alleged need to make a payment that the respondent's office could not quantify) and the need to get the case into proper form for hearing, this reflected no credit on the respondent.
102. In paragraph 19 and 20(b) of the application, the Society contends that the failure by the respondent to comply with his obligations under Rule 39.2 to respond to the Society with comments or information in relation to the practitioner's conduct or professional behaviour amounts to unprofessional conduct. This ground is clearly made out. The evidence indicates that the respondent in his facsimile 25 June was seeking the advice of counsel before responding and would then reply to the Society. Nothing has been forthcoming. The respondent has treated the Society and its statutory obligation to ensure compliance with the Rules with complete indifference, if not contempt. It is hard to consider a more wilful breach of the Rule.
103. The Society has contended that the breach of this Rule constitutes unsatisfactory professional conduct. This contention of the breach constituting the lesser standard is 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 is a serious case of unsatisfactory professional conduct.
Conclusion
104. 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.
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MR C.G Chenoweth
Presiding Member
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