THE COUNCIL OF THE LAW SOCIETY OF THE ACT & THE LEGAL PRACTITIONER Y (Chanaka Bandarage)
[2013] ACAT 8
•8 February 2013
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
THE COUNCIL OF THE LAW SOCIETY OF THE ACT & THE LEGAL PRACTITIONER Y (Chanaka Bandarage) (Occupational Regulation) [2013] ACAT 8
OR 7 OF 2010
Catchwords: OCCUPATIONAL REGULATION –unsatisfactory professional conduct – professional misconduct – penalty – costs – finding of unfitness to practice: earlier disciplinary findings, failure to appreciate seriousness of misconduct - whether loss and hardship suffered by the practitioner by the Law Society’s refusal to issue a practising certificate is relevant
List of Legislation: Legal Profession Act 2006 ss 6, 384, 386, 387, 389, 425 and 433
List of Regulations: Court Procedures Rules 2006, form 2.45
List of Cases: A Solicitor v Council of The Law Society of New South Wales (2004) 216 CLR 253
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Attorney-General v Bax (1999) 2 Qd R 9
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 439
Bechara v Legal Services Commissioner [2010] NSWCA 369
Clyne v NSW Bar Association (1960) 104 CLR 186
Council of the Queensland Law Society v Tunn [2004] QCA 412
Council of the Law Society of the ACT v The Legal Practitioner (Occupational Discipline) [2010] ACAT 46
Council of the Law Society of the ACT & the Legal Practitioner ‘Y’ [2012] ACAT 40
Council of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150Hollington v Hewthorn [1943] KB 587
Jauncey v Law Society of New South Wales, Unreported, NSWCA 1 February 1989
Law Society of New South Wales v Foreman (1994) 24 NSWLR 238
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Law Society of New South Wales v Moulton [1982] 2 NSWLR 736Law Society of Tasmania v Turner (2001) 11 Tas R 1
Law Society of the ACT v Gates [2006] ACTSC 126
Law Society of South Australia v Murphy [1999] SASC 83
Legal Practitioners Conduct Board v Hay (2001) 83 SASR 454
Legal Practitioners Conduct Board v Le Poidevin (2001) 83 SASR 443
Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211
Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119Legal Services Commissioner v CBD [2012 QCA 69
New South Wales Bar Association v Evatt (1968) 117 CLR 177
NSW Bar Association v Cummins [2001] NSWCA 284
Prothonotary of the Supreme Court of New South Wales v Mccaffery [2004] NSWCA 470
Re A Barrister and Solicitor (1979) 40 FLR 1
Re Davis (1947) 75 CLR 409
Re Drew (1920) 20 SR (NSW) 463
Re Evatt (1967) 67 SR (NSW) 236
Re Maidment (1992) 23 ATR 629
Re Maraj (a Legal Practitioner) (1995) 15 WAR 12
Southern Law Society v Westbrook (1910) 10 CLR 609
The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145
List of Texts/Papers: Dal Pont, GE, Lawyers Professional Responsibility, Lawbook Co, 4th ed 2010,
Tribunal:Ms L Donohoe SC- Senior Member (Presiding)
Mr A O’Neil – Senior Member
Mr P. Conway - Member
Date of Order/s: 8 February 2013
Date of Reasons for Decision: 8 February 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) OR 7 of 2010
BETWEEN:
THE COUNCIL OF THE LAW SOCIETY OF THE ACT
Applicant
AND:
THE LEGAL PRACTITIONER ‘Y’
Respondent
TRIBUNAL:Ms L Donohoe SC- Senior Member (Presiding)
Mr A O’Neil – Senior Member
Mr P. Conway - Member
DATE:8 February 2013
ORDERS
1.The tribunal recommends that the name of the respondent be removed from the local roll.
2.The respondent is to pay the applicant’s costs of this application on a party/party basis at the Supreme Court scale in an amount to be agreed or, failing agreement, to be determined in accordance with the procedure set out in paragraph 79 of these reasons for decision.
....................................
Ms L Donohoe SC
Presiding Member
for and on behalf of the Tribunal
REASONS FOR DECISION
PREAMBLE
On 28 June 2012, the Tribunal gave reasons for Decision in respect of liability in this application[1]. The Tribunal found that the respondent was guilty of unsatisfactory professional conduct in respect of three (3) grounds, one of which was found to have been at the high end of the scale and further, that he was guilty of professional misconduct in respect of one (1) ground of the complaint. The applicant therefore succeeded on all grounds of the complaint.[2]
[1] Council of the Law Society of the ACT and the Legal Practitioner ‘Y’ [2012] ACAT 40
[2] This decision was previously anonymised and cited as The Council of the Law Society of the ACT v Legal Practitioner Y [2013] ACAT 8 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 Tribunal ordered that written submissions in relation to penalty and costs be filed and served and that the application in respect of those matters be set down for hearing on 10 October 2012. Written submissions were filed and served by the parties and the hearing dealing with those matters proceeded on 10 October 2012.
The Law Society then refused to renew the respondent’s unrestricted practising certificate and refused to grant him a restricted practising certificate.
Both parties’ written submissions were comprehensive and helpful. In addition, the respondent filed more material pertaining to his character. That too was helpful. The respondent provided further material after the hearing had concluded. The Tribunal considered this material with the consent of the applicant.
Before dealing with the legal principles relevant to the powers conferred upon the Tribunal pursuant to section 425 of the Legal Profession Act 2006 (the ‘Act’), it is helpful to revisit the principles applicable to findings of unsatisfactory professional conduct and professional misconduct. This is so because of matters raised by the respondent in written and oral submissions with which the Tribunal will deal in due course.
Section 386 of the Act provides:
In this Act:
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.
Section 387 of the Act provides:
(1)In this Act:
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.
(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.
Finally, section 389 of the Act provides relevantly, inter alia:
Conduct capable of being unsatisfactory professional conduct or professional misconduct
Without limiting section 386 or section 387, the following conduct can be unsatisfactory professional conduct or professional misconduct:
...
(c) conduct in relation to which there is a conviction for -
...
(iii) an offence involving dishonesty;
The Act does not define ‘dishonesty’. The word may be taken therefore to bear its ordinary English meaning. It is a trite observation that the word ‘dishonesty’ encompasses conduct which may range from conduct, which, lacks reliability, or integrity or is in the nature of impropriety or improbity to conduct, which is frankly fraudulent or of a corrupt or cheating nature. However at its heart, conduct that is dishonest simply lacks honesty.
There is no common law concept of unsatisfactory professional conduct. Unsatisfactory professional conduct is a new concept and thus is a creature of statute. The insertion of this concept into the legislation was aimed at addressing the mischief that conduct of lawyers falling short of serious professional misconduct, such as delay and negligence, was not subject to disciplinary action.
Whilst unsatisfactory professional conduct includes conduct, which falls short of the requisite standard of competence and diligence, it is not limited, by the terms of the Act, to such conduct.
The language of the definition of ‘professional misconduct’ in section 386 of the Act is inclusive in nature. Thus conduct which amounts to professional misconduct under the general law will also fall within professional misconduct to which the Act applies.
The common law definition of professional misconduct includes conduct in the pursuit of professional activities, which would reasonably be regarded by professional colleagues of good repute and competency as disgraceful or dishonourable. In The Council of the New South Wales Bar Association v Sahade[3] Basten JA noted the adoption for legal practitioners of the test propounded in Allinson v General Council of Medical Education and Registration[4]for medical practitioners.
[3] The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54].
[4] Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763.
In NSW Bar Association v Cummins[5] Spigelman CJ said:
The words ‘professional misconduct’ are broad and general words. Their meaning may vary from one context to another. Their interpretation involves what is often referred to as an ‘ambiguity’, although I prefer to describe this kind of difficulty for an interpreter as one of ‘inexplicitness’ rather than ‘ambiguity’: see Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 48 NSWLR 548 at 577 [116].
[5] [2001] NSWCA 284 at [51].
The breadth of the concept of professional misconduct can be gleaned from the decision of McClellan CJ at CL in Bechara v Legal Services Commissioner where His Honour said:
[6]Clyne [Clyne v NSW Bar Association (1960) 104 CLR 186] made plain, there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside "generally accepted standard[s] of common decency and common fairness". Previous examples of professional misconduct have included wilfully misleading the court (New South Wales Bar Assn v Livesey [1982] 2 NSWLR 231); removing documents in contravention of a court order (Howes v Law Society of the Australian Capital Territory (Supreme Court of ACT, Gallop ACJ, Higgins and Crispin JJ, 23 July 1998, Unreported); permitting conflicts of interest to arise (Law Society of New South Wales v Moulton [1981] 2 NSWLR 736); failing to account for money received (Re Walker; Ex parte Kemp (1887) 3 WN (NSW) 123); misleading a client (Hoshott v Council of the Law Society of New South Wales (Supreme Court of NSW, Meagher, Sheller and Stein JJA, 17 December 1997, Unreported); gross neglect and delay (Legal Practitioners Conduct Board v Hay [2001] SASC 322; (2001) 83 SASR 454); failing to adequately supervise an unqualified clerk (Law Society of New South Wales v Foreman (1991) 24 NSWLR 238); breaching an undertaking given to another lawyer (Wade v Licardy (1993) 33 NSWLR 1); and, in certain situations, criminal and/or personal misconduct (Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279).
[6] [2010] NSWCA 369 at [44].
Moreover, pursuant to section 387(1)(a) of the Act, unsatisfactory professional conduct may become professional misconduct if the failure to reach or maintain the requisite standard can be characterised as "substantial" or "consistent".
Again, the Act does not define the words, ‘substantial’ or ‘consistent’, so those words may be taken to bear their ordinary English meaning.
It seems reasonable to the Tribunal therefore that the word, ‘substantial’ in this context should be taken to mean a failure to meet the requisite standard in a way that is meaningful or relevant to the legal practitioner's ability to practise law.
The ordinary meaning of the word ‘consistent’ in the English language read with the scope and purpose of the section suggests to the Tribunal that for a failure to be caught by this aspect of section 387(1)(a) of the Act, there would need to be repeated or persistent failure resulting from the legal practitioner making the same mistakes of principle or acting in the same inappropriate way in a variety of situations.
LEGAL PRINCIPLES TO BE APPLIED
Statutory Warrant
LEGAL PROFESSION ACT 2006 - SECT 6
Purposes of Act
The purposes of this Act are as follows:
(a) to provide for the regulation of legal practice in the ACT in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b) to facilitate the regulation of legal practice on a national basis across State and Territory borders.
LEGAL PROFESSION ACT 2006 - SECT 384
Purposes—ch 4
The purposes of this chapter are as follows:
(a) to provide a nationally consistent scheme for the discipline of the legal profession in the ACT, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b) to promote and enforce the professional standards, competence and honesty of the legal profession;
(c) to provide a means of redress for complaints about lawyers;
(d) to enable people who are not lawyers to participate in complaints and disciplinary processes involving lawyers.
The Position at Common Law
The approach at common law is long settled. The question that arises is not one of punishment but whether the court is justified in holding out the practitioner as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor: Southern Law Society v Westbrook[7]; Re Davis[8]; Re A Barrister and Solicitor[9] and is exercised for the protection of the public and the reputation and standards of the legal profession.
[7] (1910) 10 CLR 609 at 612 per Griffith CJ.
[8] (1947) 75 CLR 409 at 416 per Latham CJ.
[9] (1979) 40 FLR 1 at 24 - 25 per Blackburn CJ.
For emphasis, Doyle CJ in Law Society of South Australia v Murphy[10] (Murphy) succinctly made the point thus:
In dealing with a charge of unprofessional conduct, the Court acts in the public interest, and not with a view to punishment: New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183-184; Wentworth v NSW Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 250-251. The Court is concerned to protect the public, not to punish a practitioner who has done wrong, although of course the removal of the practitioner's name from the Roll will operate as a punishment. The Court acts to protect the public and the administration of justice by preventing a person from acting as a legal practitioner, and by demonstrating that the person is, by reason of his or her conduct, not fit to remain a member of a profession that plays an important part in the administration of justice and in which the public is entitled to place great trust.
[10] [1999] SASC 83.
Where an order for removal from the roll is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a legal practitioner: A Solicitor v Council of The Law Society of New South Wales[11].
[11] (2004) 216 CLR 253 at [15].
Moreover, fitness to practise requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges: Re Davis.
Honesty, fairness and integrity are essential prerequisites to the right to practise law. A willingness to engage in dishonest behaviour is of central relevance to an assessment of a practitioner's fitness to practise: The Council of The New South Wales Bar Association v Sahade[12]; Legal Practitioners Complaints Committee v McKerlie[13] Indeed, a common thread in cases of removal from the roll of practitioners is dishonesty, as dishonesty is inimical to public and curial confidence in the profession.
[12] At [58]
[13] [2007] WASC 119 at [8].
The difference between an order for striking off and an order for suspension is summarised in Barristers' Board v Darveniza[14]:
Striking off is of course reserved for the very serious cases where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice. Suspension is a less serious result, firstly because a limited period is specified and secondly because the right to resume practise is then preserved without any further onus upon the practitioner to prove that he or she is now a fit and proper person to practise:
“The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner.” (In Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ) [38]).
[14] [2000] QCA 253; (2000) 112 A Crim R 438.
Therefore suspension from practice is an appropriate disciplinary order in limited circumstances[15]. A suspension may follow where the failure involved no dishonesty[16]. However, suspension is rarely appropriate where there has been consistent dishonesty[17].
[15] Jauncey v Law Society of New South Wales, Unreported, NSWCA 1 February 1989 per Clarke JA.
[16] Law Society of the ACT v Gates [2006] ACTSC 126.
[17] Attorney-General v Bax (1999) 2 Qd R 9 at 22 per Pincus JA.
Additionally, suspension serves to warn other lawyers against engaging in similar conduct[18]. Suspension is also aimed at reforming the lawyer[19] and is often accompanied by an order that the lawyer undertake a course, for example, in ethics and or a period of supervision. The Tribunal notes that in previous disciplinary proceedings against him to which the Tribunal will turn in due course, the respondent has been the subject, inter alia, of an order that he undertake an ethics course and an order for suspension.
RELEVANT CONSIDERATIONS
Sole Practitioners
[18] Re Drew (1920) 20 SR (NSW) 463 at 466 per The C.J.
[19] Re Evatt (1967) 67 SR (NSW) 236 at 250.
Although, this fact did not assume as much importance in this phase of the proceedings[20] in relation to the manner in which the respondent put his case, the record of the earlier phase is replete with references to the respondent being a very busy sole practitioner. The clear inference to be drawn from this emphasis is that the respondent sought to explain his transgressions by reference to the pressures to which he was subjected as a sole practitioner or that he hoped it might explain his conduct. Even though, he eschewed this fact as being some explanation for his misconduct[21], the great number of times it was raised by the respondent during the course of the proceedings, causes the Tribunal to believe that, in his mind, being a sole practitioner was relevant. For that reason, the Tribunal will make some comments concerning that matter.
[20] Respondent’s written submissions at paragraphs 8, 36A(i); T28.25.
[21] Respondent’s written submissions at paragraph 8.
This Tribunal recognises that many sole practitioners lack some of the support systems, which are more readily available to those who practise in firms. Generally speaking, such a fact might explain a practitioner’s misconduct, but such a fact cannot mitigate the seriousness of offences.
However, in this case, the Tribunal would not entertain such a fact to explain the respondent’s misconduct. First, the respondent was ordered to undertake and presumably did undertake a course in legal ethics as part of a penalty imposed in relation to an earlier adverse finding. Secondly, on his own admission[22] he was very involved in the profession, mixing freely and often with other lawyers. He was therefore not isolated or lacking in congress with the profession and the potential for support systems.
The Attitude of the Respondent
[22] Respondent’s written submissions at paragraph 8; T42.12-.35.
The Tribunal will not repeat its comments made in its reasons for decision published on 28 June 2012[23]. The Tribunal made adverse findings against the respondent and, regrettably, found it necessary to make some comments relating to the manner in which he conducted the proceedings.
[23] Council of the Law Society of the ACT and the Legal Practitioner ‘Y’ [2012] ACAT 40, [43], [74]‑[77], [85]F and [161].
Both the adverse findings and the comments appear to have distressed the respondent. Comment has already been made about the respondent’s tendency to blame others for the circumstances giving rise to the charges and the adverse findings. It was raised again at the hearing on 10 October 2012[24]. The respondent says in his current situation ‘I will not blame anybody’[25].
[24] T16.45; T31.40.
[25] T26.15.
However, that is precisely what he did in his written submissions and oral address. He blamed the Tribunal in his written submissions in particular stating[26]:
“ but for the Tribunal’s decision…, the respondent could have continued to practise under a Restricted Practicing Certificate under the Manager appointed for the practice.”
[26] Respondent’s written submissions at paragraph 34.
This is a misconceived submission. In the discharge of its statutory functions, the Tribunal found the respondent guilty of three counts of unsatisfactory professional conduct, one being at the higher end of the scale and found him guilty on one count of the more serious offence of professional misconduct.
The Law Society, when it refused to renew the respondent’s practising certificate or grant him a restricted practising certificate, was discharging a wholly different function. In the discharge of that function, it was proper for the Law Society to have regard to the findings of the Tribunal because[27], prior to that time, it had been holding the respondent out as being a fit and proper person to practise law. In the face of the adverse findings, the Law Society could no longer so hold and was entitled to take the action it did.
[27] Council of the Law Society of the ACT and the Legal Practitioner ‘Y’ [2012] ACAT 40, relevantly at [159].
Yet, in character with his unfortunate predilection to blame others for the predicaments he has found himself in over the years in respect of legal professional disciplinary matters, the respondent has seen fit to blame the Tribunal. The respondent asserts that the Tribunal was very harsh on him[28]. The reality is that the respondent is the author of his own misfortune. His submissions and assertion belie the genuineness of any expression of remorse.
[28] T21.20.
There is a fundamental tension in many of the Respondent’s submissions. On the one hand, he appears to express remorse for his transgressions and then, on the other, he appears to cavil with the findings, re-agitate, defend and attempt to justify issues already adjudicated upon[29]. Again, that tension undermines the genuineness of any expressed remorse.
[29] Respondent’s written submissions at paragraphs 15 – 23(b).
In addition, the respondent misrepresented the Tribunal’s findings in LP 8 of 2009. The Tribunal did not, as submitted by the respondent, agree that ‘…though the Law Society so alleged, most of the delays in registering the title was [sic] not committed by the Respondent.’[30] This submission lacks honesty or is made with reckless indifference to the truth of the submission from someone one might reasonably assume is intimately familiar with the reasons for decision.
Previous Disciplinary findings
[30] Respondent’s written submissions at paragraph 23(a). See paragraph [75] of Reasons for Decision 16 May 2012.
In his written and oral submissions[31] the respondent submitted first that ‘…prior matters are not relevant to this case and have no nexus with this matter’ and that the Tribunal should not consider finding ‘when sentencing the respondent in this matter’. He cited Hollington v Hewthorn [1943] KB 587 as authority supporting this submission. Secondly, he submitted that as one previous matter was the subject of an appeal, all of them or at least one of them could not be considered. Those submissions reveal a failure to understand the character of this application and the legal framework for its determination.
[31] Respondent’s written submissions dated 27 September 2012, paragraph 10, T19.27.
Where there have been previous adverse findings and proven misconduct with disciplinary sanctions imposed, as in this case, this Tribunal may conclude that the respondent has not learned from previous transgressions.
Recurrences or consistent impugned professional conduct indicate strongly a lawyer’s indifference to professional standards and thus the need for the Tribunal, in its protective role, to make appropriate orders protecting the public from the respondent’s behaviour[32].
[32] Legal Practitioners Conduct Board v Le Poidevin (2001) 83 SASR 443; Legal Practitioners Conduct Board v Hay (2001) 83 SASR 454; Council of the Queensland Law Society v Tunn [2004] QCA 412.
It follows that prior findings may have a cumulative effect, even in circumstance where the subject misconduct may be at the lower end of the scale. This is certainly not the case in respect of the findings by this Tribunal of three counts of unsatisfactory professional conduct, one at the high end of the scale and one of professional misconduct.
This does not, as the respondent submitted, have the result that the lawyer is disciplined repeatedly for the same misconduct, or as the respondent put it, punished again for earlier adverse findings[33]. It means that these findings of misconduct must be viewed in the context of earlier findings of misconduct, especially those that evidence a course of similar failings[34]. Previous adverse findings indicate whether the lawyer has any true regard for his or her obligations as a lawyer and indeed any true repentance for previous misconduct[35].
[33] Respondent’s written submissions at paragraph 10.
[34] Legal Practitioners Conduct Board v Le Poidevin at [18] per Doyle ÇJ.
[35] Dal Pont, Lawyers Professional Responsibility, GE, Lawbook Co, 4th ed 2010, [23.125].
A review of the earlier adverse findings and indeed one later adverse finding reveal a common characteristic namely, a lack of honesty or a cavalier attitude towards the importance of the absolute honesty and integrity required of lawyers and or a complete lack of insight in respect of his dishonest conduct. Persistent misconduct, where it evidences dishonesty or even recklessness or neglect will ordinarily justify a finding of unfitness to practise[36].
[36] Murphy.
We turn to the second submission that the earlier adverse findings, or at least one of them should not be considered because it was the subject of an appeal[37]. The applicant tendered the appeal documents. We make no comment in relation to the efficacy or otherwise of the appeal. However, until a court of appeal deals it with, the reasons for decision appealed from are presumed to be correct.
[37] T19. 20.
The applicant submitted that the respondent had a significant disciplinary history. That is correct. Prior to and following these disciplinary proceedings, the respondent has been found guilty of unsatisfactory professional conduct on several occasions and, rather more seriously, has been found guilty of professional misconduct twice before the subject finding of professional misconduct. He has received variously penalties in the nature of, private reprimands, orders to undertake a course in ethics, public reprimand, fine and suspension. On each occasion, the respondent has been ordered to pay the costs of the Law Society.
The applicant further submitted that all of the prior decisions and present decision involving the respondent, with one exception, involve increasing levels of seriousness and misleading conduct[38]. The Tribunal will not here set out the prior disciplinary history of the respondent. Suffice to say, the Tribunal accepts the analysis of them made by the applicant in both written submissions and in oral address.
[38] T45.25ff.
The critical feature of the significant disciplinary history and a common characteristic of the offences is that of misleading and deceptive conduct. That conduct is dishonest conduct. The applicant submitted that the Tribunal could not be confident that these series of separate, albeit related acts of misconduct could be regarded as isolated. The applicant submitted that the contrary was the case and that the acts of misconduct were demonstrative of the respondent’s general professional incompetence, dishonesty spelling underlying unfitness.
The respondent submitted that his disciplinary history should be distinguished from cases where the lawyer had been struck-off. He set out in great detail the conduct in those cases, which resulted in the lawyer’s removal from the rolls and contrasted that conduct with his own which he submitted essentially, was almost trivial by comparison.
These cases and comparisons do not assist the respondent. It is an unremarkable proposition that each case must turn on its own facts and circumstances and his submission completely ignores or fails to appreciate the tenor of the authorities[39] namely, the fact that the nature of his conduct which has been the subject of numerous and serious adverse findings can also be the basis for a finding that a lawyer is not a fit and proper person, thus permitting an order that the lawyer’s name be removed from the roll of practitioners. The breadth of the concept of professional misconduct is wide.
[39] Clyne v NSW Bar Association (1960) 104 CLR 186
The respondent relied on The Legal Services Commissioner v CBD[40]. Unfortunately, that case did not assist the respondent. The Tribunal is not persuaded by the respondent’s submissions. We are however, persuaded by the applicant’s submissions in this regard.
Insight and Remorse – the Respondent’s Appreciation of Wrongdoing
[40] [2012] QCA 69
The respondent’s written submissions and his oral address were full of expressions of remorse. However, his submissions contain statements of argument and justification for his actions. His submissions and oral address also contain assertions of having suffered ‘agony’ as a consequence of his remorse for his transgressions. The Tribunal had cause to comment upon them[41]. The Tribunal summed up those expressions thus:
You throw words like ‘agony’ around and you have concern for your clients, but when it comes down to the hard and fast payment of cash it doesn’t appear.
Your words are very easy. Type the words out on paper. Express them to the Tribunal. You’re in agony.
You say you take full responsibility, but the fact of the matter is you have not taken full responsibility. It is the Tribunal that has made the finding, and it was only after the finding that you seemed to accept responsibility. Up until that time there was no acceptance of responsibility. Indeed there was a denial of responsibility. That you had done nothing wrong, it was not your fault, it was other people’s fault…..this rings a little hollow.
[41] T15.5-T16.45.
The reference in the above transcript extract relates to the financial loss suffered by the respondent’s former clients (the complainants) as a consequence of the respondent’s conduct and an inquiry from the Tribunal in relation to the question of any compensation paid or any offer to pay any to them by the respondent[42].
[42] T14.
No compensation had been paid and nor had an offer to pay any compensation been made by the respondent. The fact that the respondent had not even offered to pay compensation to his former clients is a consideration, which goes to the appropriate sanction[43]. Although it is not in evidence, the respondent, following the conclusion of the hearing on penalty on 10 October 2012, forwarded a copy of a letter and a copy of a cheque to his former clients. However, far from assisting his case, this conduct was only demonstrative of his lack of insight into his misconduct.
[43] Law Society of Tasmania v Turner (2001) 11 Tas R 1 at [38] per Crawford J.
A lawyer’s failure to appreciate the correctness and gravity of the misconduct may be indicative of unfitness to practise[44]. Such a failure is often associated with lack of understanding or care of fundamental aspects of professional responsibility[45].
[44] Southern Law Society v Westbrook at 626 per Isaacs J; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 184; Re Maidment (1992) 23 ATR 629 at 642 per Legoe J; Law Society of New South Wales v Foreman (1994) 34NSWLR 408 at 472 per Giles A-JA.
[45] Law Society of New South Wales v Moulton [1982] 2 NSWLR 736 at 743 per Hope JA; Law Society of New South Wales v Foreman (1994) 24 NSWLR 238 at 253 per Mahoney JA.
The respondent’s significant disciplinary history, the apparent failure of the impact of earlier disciplinary proceedings and the penalties imposed on him to alter his professional conduct, the essentially dishonest nature of many of the charges proven and the subject of adverse findings in respect of them further suggest to the Tribunal that the respondent has no insight into his misconduct.
The Tribunal therefore cannot be confident that the respondent appreciates the nature of his wrongdoing. The Tribunal regards his expressions of remorse as hollow. His ‘agony’ suggests agony for his present predicament, rather than any genuine remorse for the effect of his misconduct on his former clients. So much is clear from his written submissions[46].
[46] Respondent’s written submissions at paragraph 34.
The degree to which a lawyer appreciates the seriousness of the misconduct is a relevant factor in the extent to which the Tribunal, exercising a protective jurisdiction, might choose between the alternatives of suspension or removal from the roll. A lawyer who fails to understand the consequences of misconduct is a great risk to the community: New South Wales Bar Association v Evatt[47]; Law Society of New South Wales v Moulton[48]; Legal Practitioners Complaints Committee v Lashansky[49].
Loss and Hardship suffered by the Respondent
[47] (1968) 117 CLR 177.
[48] (1981) 2 NSWLR 736 at 741 & 743 per Hope JA.
[49] [2007] WASC 211 at [35].
The Tribunal takes notice of the fact that, independent of the suspension imposed in LP 8 of 2009, the Law Society has taken its own action in refusing to grant the respondent a practising certificate of any kind. The Tribunal acknowledges that the loss of the respondent’s practising certificate and the refusal of the Law Society to grant him a restricted practising certificate have already caused the respondent significant financial loss and embarrassment.
Strictly speaking, the loss suffered by a lawyer as a consequence of his or her wrongdoing as well as the attendant damage to reputation is irrelevant to the question of penalty in the face of the overarching protective purpose of professional disciplinary proceedings[50]. Those matters might be relevant if the penalty of a fine were contemplated. Such a penalty has not been sought and, even granted the Tribunal’s discretion in this respect, a fine, in these circumstances would not be an appropriate sanction.
[50] Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 24 per Malcolm J.
Bearing in mind the very serious nature of the findings in these proceedings, the considerable disciplinary history, such consideration of the loss already suffered, as was pressed upon the Tribunal by the respondent, is not weighty.
Testimonials and References
The respondent filed letters from persons purporting to give character references in support of him. He also filed newspaper clippings and so forth, reporting on his successes and good works. The Tribunal notes them.
However, counsel for the applicant made various points in relation to them[51]. First, he pointed out that the only referee who acknowledged LP 8 of 2009 and this application was Mr N. In that letter Mr N tells us that the respondent is remorseful in respect of his conduct giving rise to those matters.
[51] T5.20 – T6.20.
The second point made by the applicant is essentially an inconsistency point. As counsel for the applicant pointed out, the decision in LP 8 of 2009 is on appeal. In that appeal, it is clear that the respondent rejects and challenges each of the very serious adverse findings and asks that they be overturned. That does not sit comfortably with the so-called remorse for the very same conduct apparently expressed to Mr N. For that reason, the references are of little weight.
THE SUBMISSIONS ON PENALTY
The applicant seeks an order pursuant to section 425(3)(a) of the Act recommending that the respondent’s name be removed from the roll and also seeks an order for costs.
This Tribunal found in its reasons for decision published on 28 June 2012 that it was no longer justified in holding out the respondent as a fit and proper person to remain on the roll of solicitors[52].
[52] At [159].
The applicant relied upon the comments of Spigelman CJ in New South Wales Bar Association v Cummins[53] and submitted that the Tribunal would conclude that the respondent did not meet the four criteria set out by the Chief Justice any longer. We agree with that submission.
[53] At [20].
The applicant then relied upon Council of the Law Society of the ACT v The Legal Practitioner (Occupational Discipline) [2010] ACAT 46 which, in turn, relied upon Southern Law Society v Westbrook.
While not every finding of professional misconduct will lead to an order that the lawyer’s name be removed from the roll[54], where a finding involves a finding that the misconduct proven demonstrates unfitness to practise and where there is a strong basis for considering that the defect is still operative, it is a course that must be considered[55].
[54] Prothonotary of the Supreme Court of New South Wales v Mccaffery [2004] NSWCA 470.
[55] Council of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150 at [26].
It was submitted by the applicant that that principle was applicable in this case and the Tribunal is persuaded by that submission[56]. Moreover, it was submitted by the applicant that there had been no change in circumstances to undermine the finding of unfitness. The Tribunal agrees with that proposition and is of the view that the matters to which we have referred above add further strength to the submission that the appropriate penalty is that suggested by the applicant.
[56] Applicant’s written submissions dated 11 September 2012, paragraphs 29 – 36.
The respondent submitted that the appropriate penalty was some form of suspension, reprimand and some limited costs order[57]. The respondent also suggested that he undertake a course in ethics[58]. As we have noted above, the respondent was ordered to undertake a course in ethics as part of a penalty in relation to his first disciplinary breach. In addition, he was privately reprimanded. He has been publicly reprimanded in the past and, in LP 8 of 2009, he received a suspension.
[57] T36.27.
[58] T20.10; T37.24.
None of these penalties and sanctions appears to have had the least impact or deterrent effect on the respondent. He appears unreformed. It is improbable, in the circumstances, that such a penalty as suggested by the respondent would have any effect on him, despite his protestations to the contrary.
On the other hand, such a penalty as suggested by him, ignoring for the moment the position of the Law Society vis a vis his practising certificate, would pose a great risk to the community because it necessarily contemplates a return to practice.
CONCLUSION
In assessing the penalty, the Tribunal will assess a penalty for the complaint as a whole rather than on the basis of separate penalties for the individual grounds.
The Tribunal has given careful consideration to the penalty in this application. It has considered all the principles and factors relevant to such deliberations. The Tribunal concludes that the appropriate sanction in this application is an order recommending that the respondent’s name be removed from the roll pursuant to section 425(3)(a) of the Act.
COSTS
The respondent has engaged in professional misconduct. There is no evidence of exceptional circumstances pursuant to section 433(1) of the Act that would justify an exception to the general rule that a legal practitioner who is found to have engaged in professional misconduct should pay the costs of the applicant. Nor is there any justification for an order pursuant to section 433(5)(a) of the Act.
The respondent should pay the applicant’s costs on the party/party basis on the scale applicable to matters proceeding in the Supreme Court. The parties should make an attempt to reach agreement on costs. If agreement is not reached within 28 days, the applicant may file and serve a Bill of Costs using form 2.45 approved under the Court Procedures Rules 2006. The respondent is to file and serve a document setting out the objections he has to the Bill within 14 days of its service. The Bill and the respondent’s objections will be referred to the registrar of the Tribunal. The registrar is to assess the costs and make a recommendation to the tribunal concerning the amount that it should state be paid by the respondent.
....................................
Ms L Donohoe SC
Presiding Member
For and on behalf of the Tribunal
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: OR 7 of 2010
APPLICANT: The Council of the Law Society of the ACT
RESPONDENT: The Legal Practitioner ‘Y’
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT: Michael Phelps
Phelps Reid Lawyers
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT: Self represented
TRIBUNAL MEMBER/S: Ms L Donohoe SC – Presiding Member
Mr A O’Neil – Senior Member
Mr P Conway - Member
DATE/S OF HEARING: 10 October 2012 PLACE: CANBERRA
DATE/S OF DECISION: 8 February 2013 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
3
29
0