The Legal Practitioner v Council of the Law Society of the ACT (No 2)

In this case, the Legal Practitioner, an appellant, appealed against the findings of the Civil and Administrative Tribunal (ACAT) that they had engaged in unsatisfactory professional conduct and professional misconduct. The Council of the Law Society of the ACT was the respondent. The appeal was heard in the Supreme Court of the Australian Capital Territory. The Legal Practitioner contested the ACAT’s determinations that they had engaged in an improper personal/sexual relationship with a former client, had intimidated another practitioner, and had acted in a way that constituted professional misconduct by breaching standing instructions. They also challenged the penalty of removal from the Roll of Practising Legal Practitioners.

The court examined whether the use of the word “personal/sexual” in the finding of unsatisfactory professional conduct was ambiguous and whether the evidence was sufficient to support the findings of professional misconduct. The court also considered whether the penalty of removal from the Roll was harsh and excessive, and whether the ACAT had correctly applied the burden of proof and the principle that lawyers are not to be afforded greater status or credibility than other witnesses. The court had to determine whether the ACAT was entitled to draw an inference from the Legal Practitioner’s failure to give evidence in the proceedings against them.

The court held that the use of “/” in “personal/sexual” was not ambiguous, and the evidence was sufficient to support the findings of professional misconduct. The court also held that the penalty of removal from the Roll was not harsh or excessive because the Legal Practitioner’s conduct could not be compartmentalised, and they could not be trusted by clients, the public, or the profession. The court further held that the ACAT had correctly applied the burden of proof and that lawyers are not to be afforded greater status or credibility than other witnesses. The court also held that the ACAT was entitled to draw an inference from the Legal Practitioner’s failure to give evidence in the proceedings against them.

The appeal was dismissed, and the proceedings were remitted to the ACAT to give effect to its orders. The Legal Practitioner was ordered to pay the costs of the Council of the Law Society of the ACT.