THE COUNCIL OF THE ACT LAW SOCIETY & THE LEGAL PRACTITIONER ‘R’
[2010] ACAT 76
•12 October 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE COUNCIL OF THE ACT LAW SOCIETY & THE LEGAL PRACTITIONER ‘R’ (Paul James Robertson) (Occupational Discipline) [2010] ACAT 76
LP 2 of 2010
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONERS – practitioner’s representation that a notice was given to experts to attend court to give evidence – fabrication of letter – breach of duty to the court – breach of duty to other practitioners - unsatisfactory professional conduct – professional misconduct – weight to be given to references from professional colleagues – the tribunal’s jurisdiction is protective not punitive
List of legislation: Legal Profession Act 2006, ss.44, 78, 386, 387, 419 and 425
List of subordinate
legislation: Legal Profession (Solicitors) Rules 2007, Rules 11, 24 and 39
List of cases: Allinson v. The General Council of Medical Education and Registration [1894] 1 QB 750
Briginshaw and Briginshaw [1938] 60 CLR 336
Fraser and the Council of the Law Society of New South Wales [1992] NSWCA 72.
Myers v. Ellman [1940] AC 282
The Law Society of New South Wales and Foreman
[1994] NSW CA 408
TRIBUNAL: Mr C.G Chenoweth, Presiding Member
Ms P. McDonald, Senior Member
Mr R. Watch, Member
Date of Orders: 12 October 2010
Date of Reasons for Decision: 5 November 2010
REASONS FOR DECISION
These reasons for decision are issued by the Tribunal following the hearing of the matter on 6 October 2010 and the issue of the Tribunal's order in this matter made on 12 October 2010.
The Council of the Law Society of the ACT ("the Society") brought proceedings against the respondent under section 419 of the Legal Profession Act 2006 ("LP Act"). The respondent is a legal practitioner admitted in the Australian Capital Territory and at the time of the matters the subject of the application was the holder of a restricted practising certificate issued by the Society. Accordingly, the Society is the "relevant council" for the respondent as an Australian legal practitioner, and is empowered by section 419 (1) of the LP Act to institute proceedings. The application alleges the charge of professional misconduct, in accordance with the provisions of section 419 (3) of the LP Act.[1]
[1] This decision was previously anonymised and cited as The Council of the ACT Law Society & The Legal Practitioner ‘R’ [2010] ACAT 76 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 application was dated 20 April 2010. Following various interlocutory proceedings and orders, the matter was listed for hearing before the Tribunal. Both the applicant and the respondent were represented by counsel.
The application alleged two breaches of the Legal Profession (Solicitors) Rules 2007 ("the Rules"). As these rules are established under the provisions of the LP Act, they have statutory force and the obligation to comply with them is no less than the obligation to comply with the provisions of the LP Act. The allegations are that the respondent breached his duty to the Supreme Court of the ACT, and that he breached his obligations to other practitioners.
Section 11 of the Rules sets out the practitioner's duties to the court. The opening paragraph establishes the general duty as follows:
“Practitioners, in all their dealings with the courts, whether those dealings involved the obtaining and presentation of evidence, the preparation and filing of documents, instructing an advocate or appearing as an advocate, should act with competence, honesty and candour. Practitioners should be frank in their responses and disclosures to the court, and diligent in their observance of undertakings which they give to the court or their opponents.”
Section 24 of the Rules deals with relations with other practitioners. The opening paragraph to that section provides as follows:
“In all of their dealings with other practitioners, practitioners should act with honesty, fairness and courtesy, and adhere faithfully to their undertakings, in order to transact lawfully and competently the business which they undertake for their clients in a manner that is consistent with the public interest.”
While the obligations of practitioners have been set out in the Rules in the manner set out above, that codification represents the common law position that has been long established. The obligation of a practitioner to be honest with courts and a practitioner must place that obligation above all other obligations whether to clients or to himself, is basic to the administration of justice and to the ability of courts and tribunals to place reliance upon the word or representation of legal practitioners who appear before them.
Society’s Evidence.
In addition to the application, the evidence before the tribunal consisted of an affidavit by Mr Matthew Westwood-Hill, a computer forensics examiner, dated 6 July 2010, an affidavit of Mr Robert Anthony Reis, the professional standards director of the Society, an affidavit of the Partner who supervised the work of the respondent (“the Partner”) dated 13 July 2010, a further affidavit of the Partner dated 5 October 2010 and a copy of the transcript of the proceedings in the Supreme Court on the 19th and
21st May 2009. Various other documents were admitted as exhibits. No oral evidence was called on behalf of the Society.
Respondant’s Evidence.
The Respondent filed an affidavit dated 21 September 2010, and gave oral evidence.
A number of character testimonials were admitted as exhibits.
The History of the Matter.
The respondent is a mature man who was first admitted to practice at the end of 2002, following several careers in different and unrelated fields. At the time that the matters the subject of this complaint took place, he was employed by a large legal firm (“the Firm”) whose practice included acting for defendants and insurers in personal injuries claims. The respondent was principally involved in acting on such matters. The Partner was his supervising partner.
The facts in this matter are not in dispute. The history of the matter was as follows.
In May 2009, the respondent was acting for the insurer of an employer in a contested matter of a claim for personal injuries arising out of the course of employment. The matter was being heard before the Master of the Supreme Court of the ACT, and senior and junior counsel were briefed on both sides. While the respondent had generally been given the carriage of the matter on behalf of the Firm, the Partner along with the respondent had been instructing in court on the day that these events took place.
During the course of the hearing in the court, the issue arose as to whether the Firm had given a notice to the plaintiff’s solicitors, requiring that the medical experts upon whom the plaintiff relied should be available for cross examination. Counsel for the plaintiff advised the court that no such notice had been received. Counsel for the defendant, on instructions, advised the court that the notice had been given. The issue was relevant because of the defendant’s wish to test the evidence brought by the plaintiff in the damages claim. As a result, the Partner asked the respondent to check the file in court to ascertain that notice for the experts to attend had been given.
The respondent was unable to find a copy of a letter to the plaintiff's solicitor requiring that the experts be available. The Partner requested the respondent to search for any such letter at the office and if available to bring it to the court. The respondent returned to the office to search for a copy of the letter that he thought he had sent, but was unable to find one. The respondent gave evidence to the effect that he thought that he had sent such a letter, this being his usual practice. Presumably this is what he had told his counsel, resulting in the advice by counsel to the plaintiff’s counsel and to the court that notice had been given.
In his letter to the Society of 20 September 2010 which is annexed to his affidavit, the respondent said that he returned to the office and searched his computer. He was unable to find a copy of the letter on the computer records of the Firm. He then searched around on the computer for a similar form of document and then "altered its content to meet the requirements of what was needed. I printed the document and returned to (the Partner) and gave it to him. As I believed I had sent the earlier notice and the copy produced faithfully reflected what I had earlier sent, I was of the view that the document was perhaps not misleading."
The document produced by the respondent on 19 May 2009 bore the date of
24 September 2008. It was addressed to the plaintiff’s solicitors and was in short terms as follows, omitting formal parts:"We refer to the above matter.
We ask that all experts upon whom you intend to rely at Hearing be available for cross examination at same."
The respondent returned to the court after producing the document. He did not tell anyone that he had just prepared the letter or that he had not been able to find a copy on the computer. He gave the copy to the Partner, who provided to the defendant’s counsel. It was also given to the plaintiff’s counsel. It was the subject of discussion between counsel, but not formally tendered to the court. The Master had indicated that whether or not such a request for availability had been sent, he would have made an order that the experts be available for examination. In the ultimate, this proved to be unnecessary as the matter was settled.
The production of the letter at the court did not allay the uncertainties in the minds of the Partner as to whether and when such a letter had been sent. The Partner returned to the office of the Firm, and caused enquiry is to be made of the Firm’s word processing manager. In a letter to the Society dated 19 June 2009 and annexed as exhibit A to his affidavit of the 13 July 2010, the Partner indicated that following the enquiries that he had made of the Firm’s information technology manager, there was a discussion with the respondent on 20 May 2009 at which the respondent was summarily dismissed.
On the following day (21 May) when the court case resumed, senior counsel for the defendant advised senior counsel for the plaintiff and for the third party of the events which had transpired, and that he would advise the court of this and withdraw certain statements which had formed part of the transcript. The transcript for 21 May indicates that senior counsel for the defendant made these statements to the court.
The letter from the Partner to the Society of 19 June 2009 confirmed a telephone discussion on 20 May 2009, when another partner of the Firm and Mr Reis discussed the events. The letter also constituted formal notice to the Society of the events which had taken place for its further consideration.
The affidavit of Mr Reis of 9 July 2010 annexed a substantial exchange of correspondence between the Society and the respondent. The following references to annexures are to those in the affidavit of Mr Reis.
It appears from an annexure “A” that the respondent had applied for an unrestricted practising certificate on 24 June 2009. The letter from the Society referred to the application and drew the respondent's attention to the provisions of the LP Act, particularly section 44 (3). This section prevents the Society from granting a practising certificate unless satisfied that the applicant is a fit and proper person. The letter specifically raised the issue of the complaint by the Firm, and pointed out that conduct involved in misleading the court would be a relevant consideration.
The respondent replied to this letter by letter of the 2 July 2009 (annexure “B”). In that letter, and in the memorandum attached, the respondent denied that he had created the letter dated 24 September 2008 on 19 May 2009, raised a number of issues concerning his treatment by the Firm, and pressed for the granting of an unrestricted practising certificate.
A further letter was sent by the Partner to the Society on 13 July 2009, enclosing certain documentation including the letter dated 24 September 2008, a letter dated
1 October 2008 sent to the plaintiff’s solicitor in the action, and some technical information concerning the Firm's computer system.
The Society again wrote to the respondent on 16 July 2009. This is annexure “C”. It appears from this letter that there was a meeting between the executive director and the professional standards director of the Society and the respondent on 14 July 2009, at which the letter from the Firm of 13 July 2009 was handed to the respondent. The Society asked for further responses.
On 31 August 2009, the respondent repeated his request for the issue of an unrestricted practising certificate. On that date, the Society wrote to him reminding him that the Society was still investigating "a potentially serious breach of ethical conduct relating to your duty to the court." This is annexure “D”. The letter from the Society also referred to section 78 of the LP Act, which obliges an applicant for a practising certificate to provide to the Society stated documents or information, and obliges the applicant to cooperate with any enquiries by the Council of the Society that it considers appropriate.
On the 7 September 2009, the respondent wrote to Mr Reis (annexure “E”) stating that he had reviewed the additional material from the Firm, that it did not change his position in any way, that he had no further comments to make in relation to the matter and that he was again pressing for the issue of an unrestricted practising certificate.
On 13 August 2009, the Society's solicitors engaged the services of Mr Westwood-Hill of Forensic Digital Services Pty Ltd to undertake a forensic examination of the computer records of the Firm to confirm the true creation date of the letter dated
24 September 2008 from the respondent to the Sydney lawyers for the plaintiff. This report was received, dated 24 September 2009.
On 8 October 2009 the Society sent a copy of the report to the respondent. This letter is annexure “F”. The Society pointed out that the report concluded that the letter of the 24 September 2008 was created on 19 May 2009 from another letter which was itself created on 1 October 2008. The letter indicated "this conclusion supports the allegation that there has been a potentially serious breach of ethical conduct relating to your duty to the court." The letter also indicated that a formal complaint had been made to the Council of the Society by Mr Reis in his role as professional standards director.
The respondent replied by a short letter of 21 October 2009 (annexure “G”) stating
"I have reviewed your experts report and consider it contains significant issues that need to be addressed. I am in the process of instructing solicitors and they will revert to you in due course."
On the 11th February 2010, the Society wrote again to the respondent asking for any further response. This letter (annexure “H”) also indicated that in a telephone discussion the respondent had stated that he was being represented by a local solicitor, whose name was given. When contact was made between the Society and that solicitor he indicated that the decision as to whether the solicitor was representing the respondent was still to be finalised.
Further correspondence (annexures “I” and “J”) enquiring as to whether the solicitor was acting for the respondent was sent from the Society on the 12th and 26th of February 2010. On the 26th of February 2010, the solicitor wrote that he was acting for the respondent (annexure “K”).
On 6 April 2010, the Society wrote to the solicitor for the respondent indicating that no comments have been received from the respondent since the 21 October 2009, and the matter would go before the Council meeting on 19 April 2010 for consideration of disciplinary matters. This letter is annexure “L”.
On 19 April 2010 the solicitor for the respondent wrote to the Society (annexure “M”) indicating that his instructions were that the respondent did not agree with the factual basis on which the matter is proceeding, that there were some significant procedural issues which needed to be addressed and that he was seeking a meeting with the executive director and the professional standards director before further proceedings took place.
As indicated above, the Society lodged the application for disciplinary action on
20 April 2010.
Once the disciplinary proceedings had commenced, it appears that some time before the hearing the respondent engaged experienced counsel to advise him in relation to the matter. Annexed to the respondent’s affidavit of 21 September 2010 is a copy of a letter that he wrote to the Council of the Society on the 20 September 2010. That letter stated in its opening paragraph:
"as advised by my counsel Mr. Clynes to Mr Phelps of Phelps Reid on
23 August 2010, I resile from my former position and confirm that on 19 May 2009 I falsely created a letter purported to have been created on |
24 September 2008."
The letter then set out at length the circumstances of the respondent's employment by the Firm, his actions in creating a false letter, the pressures that had been on him both professionally and personally, and the prospect that because he now had no resources and substantial debts, it would be necessary for him to go bankrupt. The letter indicated that his earlier correspondence with the Society was not truthful and he apologised for this. He also acknowledged that his conduct was "misguided, insupportable and in breach of my duties to the court, to my opponent and to my employer." The affidavit also annexed matters relating to the respondent's divorce and property settlement, and copies of letters of apology to the solicitors for the plaintiff in the action and to the Partner.
The Tribunal has set out in detail the correspondence between the respondent and the Society, as it indicates the course of the respondent's strenuous denials of any wrongdoing over a period of some 15 months. That denial not only meant that the respondent gave himself no opportunity to confess immediately, with whatever consideration might have been given to such a course, but it caused the Society to incur expense not only in legal advice but in obtaining expert forensic computer reports. It paid no regard to the obligations of the respondent under the LP Act in seeking to obtain an unrestricted practising certificate. It also ignored the obligations of all practitioners under Rule 39 to give information to the Society that is open and frank in relation to any complaint about conduct.
The respondent’s course of conduct continued the deception up until close to the hearing of the application. It appears the intervention of experienced counsel, who would have faced the respondent with the impossibility of his position, brought the whole sorry deception to a close.
Classification of the Conduct.
Sections 386 and 387 of the LP Act define what is "unsatisfactory professional conduct" and "professional misconduct".
Section 386 of the LP Act defines unsatisfactory professional conduct as including conduct “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.” Section 387 states that professional misconduct includes circumstances where that professional conduct involves “a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence”. It also includes conduct that would “justify a finding that a practitioner is not a fit and proper person to engage in legal practice”. Both definitions are inclusive -- that is, the standards have been developed by courts and tribunals in proceedings for the discipline of legal practitioners are relevant in defining whether the respondent has been guilty of professional misconduct or unsatisfactory professional conduct.
The well-known case of Allinson v. The General Council of Medical Education and Registration [1894] 1 QB 750 is regarded as the foundation of the common law test of professional misconduct. This is conduct in pursuit of a profession which members of the profession of good repute and competency would regard as disgraceful or dishonourable.
The test was further defined in the case of Myers v. Ellman [1940] AC 282 where Viscount Maugham said:
"apart from the statutory grounds it is of course true that a solicitor may be struck off the rolls or suspended on the grounds of professional misconduct, words which have been properly defined as conduct which would be reasonably regarded as disgraceful or dishonourable by solicitors of good repute and competency."
Counsel for the Society pressed the submission that the respondent's conduct must amount to professional misconduct, and not the lesser breach of unsatisfactory professional conduct. Counsel for the respondent acknowledged in paragraph 4.5 of his written submissions that the conduct of the respondent in fabricating the letter and seeking to pass it off to counsel at the hearing, including the opposing counsel, would amount to professional misconduct.
The conduct goes further than this. Not only did the respondent intend that the letter should be passed off to counsel including his opponent, but the respondent was also aware that the letter was likely to be tendered to the court to act as evidence that he had done something that he had asserted, when he had not done so. It is no credit to the respondent that the letter was not actually tendered to the court in the action. He must have contemplated that it could have been.
Counsel for the Society referred to the case of The Law Society of New South Wales and Foreman [1994] NSW CA 408. In that case, the solicitor had altered an internal timesheet to show (falsely) that a costs agreement had been provided to the client. The steps taken to do this were numerous and carefully calculated to deceive. The false timesheet was included in an affidavit of discovery and produced to legal practitioners and to the Family Court. An admission and confession was only made when the solicitor was confronted with the evidence. In that case, by majority the Court of Appeal ruled that the name of the solicitor should be removed from the role.
The significance of the attempt to deceive both counsel and through them the court was referred to by Mahoney JA in Foreman, at page 447 paragraph D. His honour observed:
"A practitioner must not merely not deceive the court before which she practices; she must be fully frank in what she does before it. This obligation takes precedence over the practitioner's duty to her client, to other practitioners and to herself: Meek v. Fleming [1961] 2 QB 366 at 382, 383. The justice system will not work if a practitioner is, for her own purposes, free to put to the court that which she knows to be false."
The Court of Appeal noted that relevant considerations in determining an appropriate penalty include, inter-alia, the protection of the public against similar conduct, the character of the solicitor, the effect which an order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors, the effect upon relationships which must exist between solicitors and the nature and circumstances of what was done. To that the Tribunal will add the overriding importance of honesty in all matters associated with dealing with courts or tribunals.
The comments of Mahoney JA in Foreman at paragraph G on page 445 are relevant:
"it is also necessary that the courts be able to place reliance upon what practitioners say and do. The administration of justice would proceed more slowly and with greater cost if courts before whom a solicitor practised felt it necessary to check the accuracy of what the solicitor had said to it.”
The Tribunal is satisfied that the conduct alleged against the respondent amounts to professional misconduct. As the conduct has now been admitted by the respondent, there is no need to consider whether it has been proved to the level required by the decision in Briginshaw and Briginshaw [1938] 60 CLR 336. The confession leaves no doubt.
Character references
Counsel for the respondent tabled 11 character references, from a number of practitioners who know and have had professional dealings with the respondent.
The references were from members of the legal profession, including counsel who had appeared in the action in the court. The references spoke to the good impression that the referees had of the respondent, to his abilities and work ethic. They all expressed the view that the respondent's conduct was quite out of character, and that he was very ashamed about it. The referees generally expressed the view that the respondent would learn from this incident and be most unlikely to repeat it. They expressed confidence in dealing with him as a legal practitioner in the future.
In cases of this kind in the past, proper weight has been given to the opinion of professional colleagues as to the consistency of the conduct with the respondent's character, and the prospect of conduct being repeated. The views of colleagues are important, but not definitive of this question. As Mahoney JA commented in Foreman at paragraph D on page 449:
" It is necessary to assess the weight to be given to the predictions which the referees have made. If, before October 1991, they had been asked whether she would do what she did, they would no doubt have said that she would not. Their judgement in that regard would have been wrong. This is to be taken into account in judging whether, in saying that she will not default again, their judgement is to be accepted as accurate. This, although important, does not, of course, determine the question.
Ms Foreman has asserted that she will not default again. What she will do in the future is one of the important matters to be assessed in this appeal. No assessment can be made with certainty; there is always the risk of error and any assessment can be made only in terms of probability. But an assessment must be made."
The Tribunal has taken account of these references in determining the appropriate order to be made. While some of the referees referred to the personal difficulties of the respondent in relation to his marriage and financial situation, and these are appropriate matters to be taken into account, they did not focus on the repeated instances of the respondent lying to the Society and presumably his own solicitor about his conduct in the matter -- actions which were no doubt partly motivated by the fear of the circumstances coming to light, but also were motivated by the respondent's attempt to obtain an unrestricted practising certificate, and thereby to be held out by the Society as a person in whom the public could repose trust and confidence.
Other matters for consideration
It is well established in cases of professional discipline that the question which the court or tribunal ought always to put to itself is this, is the court or tribunal having regard to the circumstances brought before it, any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor. The jurisdiction of the disciplinary tribunals and of the courts in matters of this kind is protective and not punitive. However, it is also a proper consideration that the tribunal indicate to the public and to the profession the importance of the maintenance of proper standards in the conduct of the profession. See generally the judgement of Handley JA in Fraser and the Council of the Law Society of New South Wales [1992] NSWCA 72.
The Tribunal has taken into account that the original conduct of the respondent was impulsive and motivated by the fear of loss of employment, loss of future career prospects and the effect on the Firm and the Partner. His personal problems of a marriage breakup, loss of home and his debts and the hold-up and loss of his car to which he referred in his evidence would have been very distressing. He is now unemployed, and intending to go bankrupt. While these circumstances engender some sympathy for the practitioner, the Tribunal's role must be to focus on the significance of what has happened and what is the appropriate order.
Against the considerations in the previous paragraph, the respondent’s failure to send a letter requiring the experts to be available for examination left an awkward, but not irredeemable, problem in the Firm’s case which he sought to cover by a dishonest act. What made the conduct worse were his denials over the following 15 months. The respondent was no longer in employment or in a position to do anything within the Firm to improve its relationship with its client. The correspondence with the Law Society indicates that the respondent was motivated to a substantial degree by the wish to obtain an unrestricted practising certificate and commence his own business without facing up to the truth of what he had done.
………………………………..
Mr C.G Chenoweth,
Presiding Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPLICANT: The Council of the ACT Law Society
RESPONDENT: The Legal Practitioner ‘R’
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S:
DATE/S OF HEARING: PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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