These standards are not to be determined by reference to lawyers who are without fault, but of the reasonably competent lawyer. As such, the standard of reasonableness invoked by the definition aims to distinguish between conduct that falls within a tolerable range of human error and bad professional work which falls below reasonable standards of competence and diligence.

1. Section 389 of the LP Act lists specific behaviours that can constitute either unsatisfactory professional conduct or professional misconduct. Paragraph (a) is relevant. It provides that conduct which is a contravention of the LP Act can be either unsatisfactory professional conduct or professional misconduct.

1. Section 104 of the Legislation Act 2001 provides that a reference to an Act includes a reference to any statutory instruments made, or in force, under the Act. For the purposes of the LP Act, this includes the Legal Profession (Solicitors) Rules 2007. Thus, a contravention of Rule 39.1 requiring a practitioner to be frank and open in his, or her, dealings with the Law Society may constitute either unsatisfactory professional conduct or professional misconduct.
2. The LP Act gives the Tribunal a broad discretion to make disciplinary orders according to the designation and seriousness of the conduct that is established by the evidence. The Tribunal is not able to inform itself about the relevant evidence as it thinks fit. Section 420 of the LP Act provides that the rules of evidence apply to disciplinary actions against legal practitioners. This requirement does not apply to any other Tribunal proceedings, including other professional and occupational disciplinary proceedings.
3. The applicant bears the onus of proof on the balance of probabilities. A line of authorities establish that the standard of proof as described in Briginshaw v Briginshaw[6] is appropriate[7] for disciplinary proceedings because of the potential serious consequences for a practitioner who is found guilty of misconduct

1. The applicant was represented by Mr Beaumont of counsel and the respondent, by Mr Archer of counsel, at the hearing of the application.
2. The evidence received by the Tribunal and the basis on which it was admitted, is described in some detail below because of its significance in this case.
3. Ms Natasha Werner, the prosecutor who appeared on the bail application, gave oral evidence. Mr Darryl Perkins, the legal practitioner who engaged the respondent to act as his agent at the CMH on 23 July 2008 also gave oral evidence.
4. Neither V, nor G, gave evidence. They were subpoenaed by the applicant and attended the tribunal premises in accordance with the subpoena. Neither counsel called on them to give evidence and, as a result, they were released from the subpoena.
5. The respondent elected not to give evidence.
6. A range of material was tendered and marked as exhibits. The prefix "A" is used for material tendered for the applicant. The prefix "R" is used for the one document tendered for the respondent.
7. Exhibit A1 is an affidavit with annexures marked A to G, sworn on 25 March 2009 by Robert Reis, the Professional Standards Director of the applicant. The affidavit recites information relevant to the commencement of the application and annexes documents that form part of the business records of the applicant and on which the applicant relies.
8. Annexure A is a copy of the letter from the presiding Magistrate to the Executive Director of the Law Society dated 14 August 2008 (the complaint letter). Mr Archer objected to Annexure A on the basis that its content is hearsay.
9. Section 394 of the LP Act provides for the making of complaints to the Law Society. Sections 394(3) and (4) set out mandatory formal requirements for a complaint. It must be in writing. It must identify the complainant and if possible, the person about whom the complaint is made. It must describe the alleged conduct, the subject of the complaint. In this case, the complaint letter satisfies the formal requirements for a complaint.
10. Complaints form the basis of applications to the Tribunal for disciplinary action. The Tribunal admitted the complaint letter under section 60 of the Evidence Act 1995 (Cth) for the purpose of establishing that a complaint was made and the content of the complaint. It was not accepted as proof of the facts asserted in the letter.
11. Annexure A included an enclosure - an advertisement from a newspaper. The enclosure was not tendered and does not form part of the exhibit.
12. Annexure B is a letter from the Law Society to the respondent dated 21 August 2008 enclosing a copy of Annexure A and asking for a response. The penultimate paragraph refers to the advertisement enclosed with Annexure A. It was not tendered and does not form part of the exhibit. The balance of the letter was admitted.
13. Annexure C is a letter from the respondent to the applicant dated 5 September 2008 containing his initial response and asking for further time to respond.
14. Annexure D is a further letter from the respondent that forms part of his response to the applicant. It is also dated 5 September 2008. The opening sentence refers to "attached transcripts". There are no transcripts attached to the annexure. The letter refers to various appearances in the Magistrates Court and it can be inferred from the letter that the transcripts that were attached related to appearances by the respondent before various magistrates on 23 July, 28 July, 30 July and 20 August 2008.
15. Annexure E is a transcript of the proceedings before the Magistrate on 28 July 2008.
16. No objection was made to the admission of Annexures C, D or E.
17. Mr Archer initially objected to Annexures F and G in their entirety.
18. Annexure F is a letter to the Law Society from the Magistrate dated 23 September 2008. It was written after the Law Society sent the respondent's letter which was marked A1-D with its attached transcripts to the Magistrate and invited her further response. The objection to Annexure F was that it should be excluded because its contents are hearsay and that the Magistrate should be present to give evidence. The letter was admitted under section 60 of the Evidence Act 1995 (Cth) on the basis that it was relied on for the purpose of evidencing the content of the complaint under investigation.
19. Annexure G is the respondent's reply to the Magistrate's further letter. It is dated 18 October 2008. Again, it is apparent on the face of the letter that it had enclosures that were not included with the annexure. The enclosures are described in the letter as signed statements from G and V, both dated 27 August 2008. The basis of Mr Archer's objection to Annexure G was initially that if Annexure F was not admitted, Annexure G was irrelevant. Mr Beaumont submitted that any response made by the respondent to the Law Society during the course of its investigation is of central relevance to the application and, in particular, to ground 3 and that the entire annexure should be admitted on this basis regardless of the admissibility of Annexure F. Mr Archer modified his objection. There was no objection to part of the letter being received. The relevant part says:

This is incorrect. I was instructed by [V] in the cells prior to her appearing before Her Honour. At the time I appeared I had a signed legal aid application in my firms (sic) favour nominating me to act in the matter. I have received a grant of aid from the application of 28/07/08.

1. Accordingly, that part of Annexure G was admitted without objection. The balance of the annexure was admitted for the purpose of establishing the practitioner's response. It is relevant for that purpose.
2. Exhibits A2 and A3 are described as statements addressed "To the ACT Law Society" made by G and V respectively. Both are dated 27 August 2008. The statements are the documents referred to as enclosures in the letter that is Annexure G to Exhibit A1 sent to the Law Society by the respondent. During the hearing, these statements were described as "the redacted statements" because lines of text in each statement, and what appears to be a signature at the bottom of each statement, are crossed out. The words "NOT TO BE ONFORWARDED TO THE COURT" are written in upper case on each statement. The statements were tendered by Mr Beaumont on the basis that they had been attached to A1-G, and that they should be before the tribunal as part of the practitioner's response. They were admitted for that purpose, without objection from Mr Archer.
3. Exhibit A4 is an affidavit with Annexures A to F sworn on 22 April 2009 by Michael James Phelps, the solicitor for the applicant. The affidavit and annexures were admitted without objection. All the annexures form part of the respondent's response to the applicant.
4. Annexure A is a bundle of documents including a Charge Sheet, Statement of Facts and record of conviction relating to the criminal charge that was the subject of the bail application on 28 July 2008.
5. Annexure B is a copy of an application for legal aid dated 28 July 2008 and signed by V.
6. Annexure C is an email from the respondent to the Law Society dated

14 November 2008. 7. Annexure D is Mr Phelps' reply to the email dated 18 November 2008. 8. Annexure E is a letter from the respondent to Mr Phelps dated

22 November 2008. The letter attaches further copies of the statements made by G and V dated 27 August 2008. These copies are ostensibly the same as exhibits A2 and A3 with no text crossed out and no handwritten notation. 9. Annexure F is a further letter from Mr Phelps to the respondent dated

25 November 2008. 10. Exhibit A5 is a file note made by the prosecutor, Ms Werner, either late on 28 July 2008 or on the following day. Mr Archer objected to the admission of the file note. The Tribunal admitted the file note pursuant to section 64(4) of the Evidence Act 1995 (Cth) at the conclusion of Ms Werner's oral evidence in chief. 11. Exhibit A6 is an affidavit affirmed by Ms Werner on 17 June 2009. Only the first 4 paragraphs of the affidavit were admitted. The remaining 5 paragraphs were not tendered following an objection to them. 12. Exhibit A7 is an affidavit sworn by Mr Darryl Perkins on 29 April 2009. All but paragraph 9 was admitted without objection. Paragraph 9 was not tendered. 13. Exhibit A8 is an affidavit sworn by Mr Darryl Perkins on 19 June 2009 respectively. 14. Exhibit A9 is an audio recording on compact disc of the bail application on

28 July 2010. The transcript of the recording was exhibited as Annexure E to exhibit A1. The recording was admitted without objection. It was played during the course of the hearing. 15. Exhibits A10, 11 and 12 are documents admitted without objection. They are documents that were in the possession of Mr Perkins and were tendered through him. Exhibit A10 is a brief of evidence with a covering letter dated 14 July 2008 sent by the ACT DPP to Mr Perkins concerning a criminal charge against G that was listed for what is known as a CMH on 23 July 2008. A11 is a Charge Sheet and Statement of Facts relating to the same matter. A12 is a file note created by the respondent concerning the outcome of the CMH. 16. Exhibit R1 is a transcript of the CMH of 23 July 2008. The respondent did not rely on the affidavit he had filed and served. 17. Both counsel made oral submissions on the evidence and the law. At the end of the hearing, counsel for the respondent asked for, and was given, limited leave to file written submissions in relation to the applicability or otherwise of a particular authority - the Meakes case. The submissions lodged on 26 June 2009 were more extensive. They re-canvassed the evidence in relation to each ground of the complaint, the authorities referred to by counsel for the applicant (including Meakes) and the law relating to conflict of interest. The applicant objected and referred to the principle that supplementary written material should not be submitted at the conclusion of oral argument in the absence of leave.[8] The submissions were disregarded save in so far as they complied with the leave that was granted. The applicant filed short submissions in reply on

1. Mr Beaumont submitted that as a consequence of the respondent's election not to give evidence, the Tribunal could draw inferences that were adverse to the respondent. This was established, he said, by a long line of authorities that combine two principles, namely, the rule in Jones v Dunkel,[9] and the principle that disciplinary proceedings are not criminal proceedings, but are sui generis and that practitioners are expected to be frank, to make full disclosure and to assist the Tribunal. He referred to the cases of Re Veron; ex parte Law Society of NSW[10], Law Society of New South Wales v Green [11]("Green"); NSW Bar Association v Meakes [12]("Meakes") and Coe v NSW Bar Association [13]("Coe").
2. Mr Beaumont referred to the following observations made by Tobias JA in Meakes. The observations were approved in Coe and Green:

In the circumstances where a prima facie [case] against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the Bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.

1. Mr Archer submitted that the rule in Jones v Dunkel does not have the effect proposed by the applicant. He emphasised the need to focus on the evidence in the case and on the proposition that a failure to give evidence cannot be used as a cure for a weak case. He described the case of Meakes as demonstrating no more than a factually specific application of the Jones v Dunkel rule. He described the observations set out above as reflecting the reality that the Tribunal can only act on evidence. There was no question of the applicability of the rule in this case because, he submitted, the evidence available is not capable of satisfying the Tribunal to the requisite standard.
2. The Tribunal accepts that the rule in Jones v Dunkel can apply in disciplinary proceedings - that much follows from the authorities. It is trite to say that it should only be applied in appropriate cases and that the applicant must prove its case.
3. Mr Archer submitted that an adverse inference could reasonably be drawn in respect of the applicant's case, as a result of the failure of Mr Beaumont to call V or G to give evidence. He noted that the documents containing the respondent's response to the applicant, including the statements of V and G, were tendered by the applicant and formed part of the applicant's case. There was no objection to or qualification to their tender and no challenge to V or G to cast doubt on the content of their statements. He argued that it was reasonable to draw an inference that the failure of the applicant to call V or G occurred because the applicant anticipated that their evidence would be unfavourable to the applicant's case.
4. It is clear that documents relating to the respondent's response, including the statements of V and G, were tendered by the applicant for the purpose of establishing the fact of, and the content of, the response to the applicant and not for the purpose of proving the facts asserted in the response documents. The response is central to the allegations in ground 3. There would have been no evidence of the response, given the respondent's election not to give evidence, otherwise.
5. A discussion between counsel during the hearing made it clear that Mr Beaumont did not call V or G to give evidence, even though his instructing solicitor had subpoenaed them to attend the hearing, because Mr Beaumont believed that Mr Archer would call them and that he would then be able to cross examine them. It is not reasonable to draw an adverse inference that the evidence of V and G would have been unfavourable to the applicant, in these circumstances.

1. Ground 1 alleges that the respondent misled the Magistrate when he appeared on the bail application. It reads:
   • 1.1 The respondent, deliberately or recklessly, misled the court when he appeared before [a Magistrate] on 28 July 2009(sic) purporting to act for V on a bail application in circumstances where he had no actual instructions from V at the time of his appearance.
2. The respondent conceded that he had purported to act for V on the bail application. This assertion was first made in the respondent's second response letter to the applicant on 18 October 2008 (ExA1-G). Mr Archer submitted that the respondent had not formally appeared in fact, nor had he acted for anyone, because the Magistrate did not accept his appearance. That is clear from the extract of the transcript that appears below.
3. The only issue in dispute was whether the respondent had been instructed by V in the court cells before the bail application. The available evidence is found in the transcript and audio recording, the evidence of the prosecutor, Ms Werner, and the respondent's response to the applicant constituted by his several letters with their attached statements by V and G and the copy of the application for legal aid.

1. The best evidence of the representations made by the respondent to the Court is contained in the transcript of the proceedings (Ex A1 -E). The transcript is close to a true copy of the audio recording (Ex 9). There are some differences which Mr Beaumont described as immaterial but which, at least in one section, the Tribunal identifies as adding to an understanding of what occurred. The audio recording adds to the evidence because it assists to understand the timing of the proceedings and the pace at which events unfolded. The tone of voice of speakers and manner in which they speak may also assist to interpret the words spoken. The parties accepted that the two exhibits were an accurate record of the bail application.
2. The Magistrate came on to the bench at about 11.49.17am and immediately called on V's matter. It is apparent from the audio recording that V has been brought into the court room just before this.
3. V is charged and is asked by the Magistrate if she is applying for bail. She says that she is.
4. The Magistrate asks V, "You haven't got anyone representing you?" V answer is responsive and made without hesitation; "No, I didn't - yeah, sorry". Her voice can be described as sounding "thick" but she speaks clearly.
5. The Magistrate and prosecutor talk about the application for bail. The prosecutor indicates that the victim is "in court". She tells the Magistrate that G has spoken to her, that he is not in fear for his safety and that he has suggested conditions that could be imposed on bail. The Magistrate asks about the attitude of the informant. The prosecutor indicates that although the informant is not present, the prosecutor is opposing bail on the grounds of a risk of reoffending and a risk that the defendant won't appear. V's record is tendered and there is a discussion about a prior conviction of failing to appear. V interjects to ask when she failed to appear. Again, she speaks without hesitation. Her words are clear. It is also clear from the nature and timing of the interjection that she understands and is following the discussion. The prosecutor provides brief information about the assault.
6. At 11.51.56am there is a background sound that is likely to be a door opening or closing. Mr Archer submitted that we should be satisfied that the sound is associated with the respondent entering the court. Mr Beaumont did not disagree and we accept that that is an appropriate interpretation of the noise. The sound occurs at the moment that the Magistrate says "...but G has indicated that he's not concerned for his safety?"
7. An extract of the transcript from page 3, line 24 to page 5, line 29 is set out below. It commences at about the time that the sound of the door can be heard in the background.
8. The prosecutor and the Magistrate continue to speak after that sound and about twenty seconds elapses before the respondent speaks.
9. In the extract, the respondent's name is omitted and initials substituted for the names of V and G. The point at which the door can be heard in the background is indicated by the character +. The character * has been added to indicate the speakers are speaking at the same time. The character # is used to show words spoken as an aside - sotto voce.

HER HONOUR: No, that's alright, but + G has indicated that he's not concerned for his safety?

MS WERNER: No, your Honour, because he's moved, as long as there were conditions that she not approach him except to deal with issues of the children. He's further indicated that he will get a protection order as well.

HER HONOUR: Is it a family violence matter? Is there...

MS WERNER: Yes, your Honour, it is a family violence matter.

RESPONDENT: I've just been instructed in regard to this matter.

*HER HONOUR: What, just this instant? Because Ms...

*HER HONOUR: Ms V said she didn't have anyone appearing for her.

RESPONDENT: I've been instructed outside the court by Ms V's partner...

HER HONOUR: Mr G. I'm not accepting instructions from somebody who comes and stands before me and says that they are instructed by the victim of an alleged assault representing the defendant.

RESPONDENT: No. My only instruction was to speak to the defendant.

HER HONOUR: Say no more, Mr xxx. I'm proposing to grant her bail so...

V: What, does that say opposing or...I'm getting it or not, Miss?

*HER HONOUR: I'll put conditions on it. And it's bizarre, Mr xxx, that you would - is that what you're saying to me, that you've been instructed by - just sit for a moment.

RESPONDENT: Your Honour, I was approached outside the court by the victim in the matter...

RESPONDENT: ...and asked if I would go downstairs and see the defendant. They were my instructions, your Honour. And it is bizarre, your Honour.

HER HONOUR: It's unbelievable, Mr xxx, that you would purport to act on behalf- that you are instructed by a victim to go and speak to a defendant in a matter.

HER HONOUR: If that's not a serious conflict of interest...

*HER HONOUR: ...what on earth in this court is? This is a family violence matter.

HER HONOUR: I'll just pretend that you didn't even appear, Mr xxx.

**#**V: Thanks anyway for coming, but he's very manipulative, I know that. I thought you were Legal Aid. Thanks anyway.

1. The exchange ends at 11:53:58am, just over two minutes after the respondent entered the court room. A clicking sound suggests that the respondent left the court room at about 11:54:22am.
2. On close listening, the respondent can be heard responding to V during the last sotto voce aside. The transcript should read:

1. There is a pause of about 6 seconds between V's words "But he's very manipulative, I know that" and the words "I thought you were Legal Aid".
2. The evidence before the Tribunal was that V had a number of previous convictions. It is reasonable to assume that she was familiar with criminal proceedings and was familiar with bail applications.
3. The transcript shows that V told the Magistrate that no one was representing her. Her response to the Magistrate's question was made without hesitation or qualification.
4. V is not heard to say anything indicating that she recognized or acknowledged the respondent when he entered the room or that she had seen the respondent and given instructions to him immediately before being brought to the court from the cells.
5. It is apparent from V's answers to the Magistrate and her interjections that she was following the course of the bail application and that she understood what was happening. She was not hesitant about interjecting, but did not say anything in support of the respondent's attempts to appear for her.
6. Mr Archer invited the Tribunal to listen to the audio recording carefully to form a view as to whether V was affected by alcohol or drugs during the bail application. Certainly, V's voice sounds "thick", but there is no slurring of words and no hesitation or delay in responding to or asking questions. It is apparent from the interjection she made to question the prosecutor about her prior conviction for failing to appear, that she is following the course of the proceedings and understands what is being said. She displays no confusion or disorientation. There is no objective evidence that V's participation in the bail application was affected by drug or alcohol use and no reason for the Tribunal to draw an inference that there was some impairment that explains her denial that she was represented or her failure to acknowledge or support the respondent's appearance.
7. Mr Archer invited the Tribunal to be satisfied that the exchange between V and the respondent starting with V thanking the respondent, is consistent with V having seen the respondent in the cells before court, asking him to appear for her and signing an application for legal aid. Mr Archer described the exchange as fitting "hand in glove" with V's subsequent statements. The Tribunal does not accept this submission. The exchange is consistent with V not knowing who the respondent was, and mistakenly assuming that he was a legal aid practitioner because he came into the court room apparently to represent her on a bail application. It is consistent with V assuming that G had manipulated a scenario in which the practitioner would not be able to appear for her. Nothing is said to indicate that there was any connection at that point between the respondent and V. The exchange is consistent with V's statement to the Court that she was not represented.
8. The transcript shows that the respondent did not assert, and made no attempt to assert, that he was appearing for, acted for, had instructions to act for, had spoken to or seen, V.
9. The respondent made the following statements to the court:
   • (i) that he had just been instructed in regard to the matter;
   • (ii) he was instructed outside the court by V's partner who was the victim of the assault;
   • (iii) he was not instructed by the victim of an alleged assault representing the defendant (see his denial of the proposition put to him by the Magistrate);
   • (iv) his only instruction was to speak to the defendant.
10. The respondent repeated that he was instructed by G three times when questioned by the Magistrate. The word "instructed" was used deliberately and consciously by the respondent. Mr Archer submitted that the Tribunal should accept that the use of the word "instructions" by the respondent was not intended and that what the respondent should have said was," I was asked by G to act for V..". The evidence before the Tribunal was that the respondent was a busy practitioner and that his practice predominantly involved criminal law work. It is reasonable to assume that he knew the significance of the use of the word "instructed" and its meaning and that he knew how to announce his appearance appropriately. It is reasonable to assume that he knew that the fact that G may have asked him to act for V was irrelevant to the court in circumstances in which he had allegedly already been instructed by V. The Tribunal cannot re-interpret what the transcript shows were the respondent's clear words in the way Mr Archer suggests. The observations of Tobias JA in Meakes can be applied here:

If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.

1. Ms Werner gave oral evidence. A file note that she said had been made either on the day of the bail application or the following day, when the events were fresh in her mind, was admitted as Exhibit 5 during her evidence. The file note includes the following:

(Respondent) charged up to the bar table and announced that he acts for (V) and

(Magistrate) then told (Respondent) (& by this point (V) was interjecting saying something like "he doesn't act for me/I don't want/never have wanted him") that she would not let him act for V & told him to leave the bar table.

1. The extract of the transcript set out above shows that Ms Werner's recollection of what the respondent said when he came to the bar table is not accurate, although it is clear that both Ms Werner and the Magistrate were under the impression that the respondent was announcing an appearance for V and indeed, in his own responses to the applicant, the respondent asserts that he was purporting to act for V. In cross examination Ms Werner agreed that the transcript does not show that V denied that the respondent acted for her as recorded in Exhibit 5. Mr Archer put to Ms Werner that she was completely mistaken in her recollection that V said something that involved a denial that the respondent acted for her. Ms Werner agreed that she was "somewhat mistaken", and said that her clear impression was that V denied that the respondent acted for her through words and actions such as nodding her head. Ms Werner said that she had not seen the respondent approach the bar table, but that her impression was that he rushed up and that she had not seen him talking to V before announcing his appearance. She said that she could hear V interjecting but had difficulty hearing some of the things V was saying. She said that she saw V nodding and caught pieces of sentences. At its highest, Ms Werner's evidence is evidence only of her impressions. It does not assist the Tribunal to make findings.

1. The respondent first responded to the applicant in relation to the matters dealt with in Ground 1 in a letter dated 5 September 2008 (Ex. A1-D). The applicant wrote to him on 21 August 2008 (Ex A1-B) asking him to provide a response to the Magistrate's concerns that were described as "relating to the following":
   1. Informing the Court that you had instructions to act for (V) when you did not have such instructions.
   2. Conflict of interest
2. Ex A1-D encloses and refers to the transcript of the bail application. The respondent draws attention to his statement that he had been instructed outside the court by G and that his only instruction was to speak to V. He does not mention that he had, in fact, spoken to V in the cells before court and obtained her instructions, even though that issue was clearly raised for his response.
3. The respondent wrote again to the applicant on 18 October 2008 (Ex. A1-G). In this letter he asserts for the first time that he was instructed by V in the cells before he appeared and that "at the time I appeared I had a signed legal aid application in my firms (sic) favour nominating me to act in the matter. I have received a grant of aid from the application of 28/07/08."
4. The letter enclosed the redacted statements dated 27 August 2008 (Ex A2 and A3). The statements pre-date the first response letter (Ex A1-D). The statements are referred to in greater detail below but, we note, it is reasonable to infer that they were prepared for the purpose of responding to this complaint. Both statements say that the respondent had seen V in the cells before court. In her statement, V said that she signed a legal aid form before she was called up to a court. The respondent's failure to refer to the statements in his first letter of 5 September 2008, or to make any reference at all to V's instructions until his second letter when this issue was clearly central to the complaint, calls for an explanation. It is a matter wholly within his knowledge.
5. The response letter contains no explanation for the respondent's failure to tell the Magistrate that he was instructed by V and for his repeated references to the instructions given to him by G when questioned by the Magistrate.
6. The respondent next refers to the instructions he held from V in a letter to the applicant dated 22 November 2008 (Ex A1-E). In this letter he repeats the assertion that he was acting for V and that he held a signed legal aid application when he appeared on the bail application. His letter enclosed full copies of the statements signed by V and G dated 27 August 2008. Again, the letter does not offer any explanation of the repeated statements made to the Magistrate by the respondent to the effect that he was instructed by G.
7. The respondent sent the applicant a copy of the legal aid application. Mr Archer acknowledged, and it is reasonable to accept, that V's signature appears on the form but that save for that signature, all the handwriting on the form, is the respondent's. The form has been completed in two places to show that the date that the matter was next in court is 28 July 2008. The time of the next court date was shown in the respondent's hand, as 12pm. The date underneath V's signature is 28/7/08.
8. The last page of the form has a certification that must be completed by the solicitor submitting the form. The solicitor is required to:

CERTIFY that the applicant has consulted me and I am of the opinion that this application has legal merit and/or is otherwise deserving of aid.

1. The certificate is signed by the respondent and dated 28/7/08.

The dates are completed in the respondent's hand. Mr Archer submitted that the Tribunal could reasonably infer from the dates and the time written on the form, that the form was signed before the bail application occurred. We do not accept that such an inference can be drawn.

1. The last page of the form has a statement in upper case that is clearly in the respondent's hand and that reads as follows:

I appeared today for an opposed bail app Bail was granted

1. The statement is undated. It is reasonable to assume that the statement refers to the bail application on 28 July 2008 because that is the subject of the application for legal aid. It is reasonable to infer that the respondent made the statement to support the application for legal aid and that the statement appeared on the original form submitted to the Legal Aid Office (ACT).
2. The statement is untrue and misleading. The transcript makes it clear that the practitioner did not appear and that he played no role in the application for bail. The practitioner can have been in no doubt that his attempt to appear was rejected by the Magistrate. His response of 5 September 2008 (Ex A1-D) contains an acknowledgment to that effect. His own counsel's submissions quite properly emphasized that the practitioner had not, in fact, acted for anyone on the bail application.
3. This application does not include a charge that the practitioner misled the Legal Aid Office (ACT). He told the applicant that he had received a grant of aid as a result of the application (Ex A1-G), but there is no allegation that he submitted an account for payment, or received payment, for appearing on the bail application. The Tribunal assumes that there is no basis for such an allegation. However, the fact that the respondent made this untrue and misleading statement about the bail application, on a document allegedly completed on the day of the bail application, when the refusal of the Magistrate to accept his appearance must have been fresh in his mind, raises a serious doubt about the respondent's truthfulness generally, and about the credibility of the respondent's representations to the applicant about the application for aid in particular. It is a serious inconsistency that at least, calls for explanation as to how and why the notation came to be made. That is a matter wholly within the knowledge of the respondent.

1. The redacted statement of G (Ex A2) contains the following relevant assertions:
   • G saw the respondent at about 9.45 am on 28 July as the respondent was rushing into court - this is inconsistent with the transcript that shows that the bail application commenced at about 11.50am.
   • This occurred just after the respondent had seen V in the cells - this is not a matter within the knowledge of G.
   • G told the respondent that G wanted the respondent to act for V
   • The respondent told G that he had just seen V and was instructed to act for her in the bail application and on the then current charges
2. The full statement (Ex A4-E) adds the following:
   • The respondent was in a real rush as he said V was on the way up from the cells and he had to go into court
   • G left the court after V was bailed and did not enter the courtroom at any time. This is inconsistent with the prosecutor's statement to the Magistrate that G was present in court and the respondent's own reference to that in his letter to the applicant dated 5 September 2008 (Ex A1- D).
3. The Tribunal does not attach any weight to G's statement as a result of the inconsistencies noted above. The statement does not (and could not) add to the Tribunal's understanding of why V denied that she had anyone representing her when asked by the Magistrate, or why the respondent repeatedly told the Magistrate that he was instructed by G and made no mention of his instructions from V. Put at its highest, G's statements do no more than confirm that the respondent spoke to G and that G told the respondent that G wanted him to act for V.

1. The redacted statement of V (Ex A3) asserts the following:
   • V saw the respondent in the cells on 28 July 2008 and asked the respondent to act for her in her bail application and on the charges she was facing;
   • At that time she signed a legal aid application the respondent put under the door.
2. Her full statement adds:
   • V really did not understand what was going on - this assertion is not consistent with the transcript;
   • She had requested through a number of people that the respondent be contacted to act for her - this does not sit comfortably with V's exchange with the respondent indicating that she thought he was "legal aid" and her failure to acknowledge the respondent or support his attempts to represent her on the bail application;
   • G spoke to the respondent outside the courtroom and asked him to do the bail application for V - this is not a matter within V's knowledge;
   • V was bailed "thanks to" the respondent - it is clear that the respondent had no involvement in the Magistrate's decision to grant bail and there is no basis for V's belief to the contrary
3. The statement does not explain why V told the Magistrate that she did not have anyone representing her. The Tribunal does not attach any weight to V's statement as a result of the inconsistencies it contains and its failure to explain why V denied that she had representation.
4. The Tribunal also notes inconsistencies between the redacted statement and the full statement which detract from the weight that can be given to it. The statements were presented as being the same document, however the date on the bottom of the redacted statement is shown as "27 august 2008" and the date on the full statement appears as "27 August 2008". V's signature and signature block is differently positioned on the two documents. V's signature appears to be different on the two documents although this is difficult to see clearly because the signature on the redacted statement is crossed through. There are two extra sentences at the end of the full statement. There is some doubt that they are the same document.

1. The Tribunal is comfortably satisfied that this ground is made out.
2. The Tribunal finds that the respondent was not instructed by V before the bail application to appear for her, or to act for her, on the bail application on 28 July 2008.
3. The only interpretation that can be placed on the words and actions of the respondent and of V during the bail application as evidenced by the transcript and the audio recording is that the respondent did not have instructions from V to act for her when he appeared before the Magistrate.
4. The words used by both the respondent and V should be taken to mean what they say. The respondent was experienced in these matters. His repeated insistence that he was "instructed" by G and his failure to make any reference to instructions from V when he was in court must be accepted at face value.
5. There is no evidence that V was confused or affected by drugs or alcohol when she denied that she had legal representation. There was no reason for her to lie about not having legal representation to the Magistrate. The Tribunal accepts that when she told the Magistrate that she had no legal representation, V meant what she said. There is no evidence to refute that proposition.
6. The respondent made no attempt to explain his words and actions during the bail application in any of the material provided to the applicant. He simply asserted that he did hold instructions. V's statement contains no explanation of her words. G's statement adds nothing relevant.
7. The legal aid application does not provide any evidence to counteract the words and actions of either the respondent or V during the course of the bail application.
8. The respondent could have given an explanation by giving sworn evidence before the Tribunal. He chose not to do so. The Tribunal draws an inference from his failure to give evidence, that the evidence would not have been favourable to him, but we stress that even in the absence of an adverse inference, the tribunal is satisfied that the ground is made out on the basis of the clear evidence set out in the transcript and audio recording.
9. In the absence of any explanation by the respondent, the Tribunal finds that the respondent deliberately or knowingly misled the court. Given the evidence available as to the respondent's experience, there is no basis, absent an explanation of the respondent's state of mind given by the respondent on oath, for the Tribunal to find that the respondent was negligent.
10. The Tribunal acknowledges that the court was not misled to any significant extent and that the court did not act on the respondent's misleading actions but, misleading a court is a serious matter that is properly regarded as disgraceful.[14]
11. The Tribunal is satisfied that the respondent's actions should therefore be characterized as professional misconduct.

1. Ground 2 alleges that the respondent acted in circumstances in which there was a conflict of interest. The particulars are:

The respondent purported to act for V upon instructions from G who was the victim of the alleged assault on an bail application involving a charge of assault occasioning actual bodily harm and in circumstances where the respondent previously acted for G in a separate matter, albeit as agent for another practitioner, in interlocutory proceedings where G was the perpetrator of an alleged assault upon V.

1. There is little controversy about the facts that form the basis of the particulars for this ground. The respondent concedes that he purported to act for V on the bail application on 28 July 2008. The Tribunal finds that he did not have V's instructions when he appeared on the bail application. It is apparent from the transcript of the bail application that he purported to act for V on the instructions of G. It is also accepted that G was the victim of the alleged assault by V.
2. The respondent concedes that he acted as agent for Mr Perkins on behalf of G at a CMH at the Magistrates Court on 23 July 2008. It is accepted that G was the perpetrator of the alleged assault on V that was the subject of the charge dealt with at the CMH.
3. The question is whether these facts constitute a conflict of interest in this case.
4. It was accepted that the respondent acted for V in relation to the charge that she had assaulted G, after the bail application. The respondent advised the applicant that he did not represent G other than at the appearance at the CMH on

23 July 2008. His assertion was not contested. 5. There is a general principle that lawyers owe a fiduciary duty to give undivided loyalty to their clients which cannot be fulfilled if the duty is owed to two or more parties whose interests are in opposition.[15] 6. Conflicts of interest may arise in a variety of circumstances. There is no blanket prohibition on acting for more than one person in a matter, however there is potential for conflict whenever one practitioner agrees to represent two people who are connected in some way[16]. 7. Mr Beaumont submitted that on the basis of this test, the respondent's appearance on the bail application involved a conflict of interest. The respondent owed a duty to both G whose instructions he said he had received, and V for whom he purported to act. 8. Mr Archer submitted that this was too broad an application of the principle. The Tribunal accepts this submission. The potential for conflict was significant. The Magistrate's description of the respondent's position as "bizarre", namely that he was acting for V on the instructions of G, was apt. It was not a position that a prudent practitioner would allow him or herself to be in. The Tribunal cannot be satisfied however that the potential conflict was actualized. This appears to be more a matter of luck rather than good management, or the result of prudent behaviour, on the respondent's part. 9. The respondent did not, in fact, act for V on the bail application. The Tribunal has found that he had no instructions from V to act on the bail application. The respondent did act for V on her instructions during the proceedings after the bail application; however, she did not become his client until that time. 10. A conflict of interest could have arisen if the practitioner had possession of confidential information as a result of acting for G at the CMH, that he would have been required to use, in order to fulfil the duty he later came to owe to V. He argued that the evidence does not support a conclusion that the practitioner had any confidential information in his possession as a result of acting for G. Mr Perkins gave oral evidence about the CMH on 23 July 2008 and his engagement of the respondent to represent G. His two affidavits were admitted and marked as Exhibits A7 and A8. 11. Mr Perkins' evidence was unchallenged and can be summarized as follows: * he was instructed by G to act for him in relation to an assault charge in which V was the complainant or victim; * The charge was listed for a CMH at 2.30pm on 23 July 2008; * the CMH is mostly an administrative process, the purpose of which is to confirm the plea entered, set a date for hearing, determine which witnesses will be called and how long the hearing will take. Evidence is not tendered or given at a CMH; * he asked the respondent to act as his agent on behalf of G, shortly before the CMH was due to start, maybe close to 2.30pm, when he realized that he had another matter listed in another court for the same time; * he had a brief discussion with the respondent for the purpose of telling him what to say at the CMH; * his recollection is that this was a straightforward matter; * he handed the respondent the brief of evidence, with a covering letter from the DPP on which he wrote brief instructions for the respondent. The brief of evidence and covering letter was tendered and marked Exhibit A10. Mr Perkins identified his handwritten instructions on the letter; * his instructions included the date of the hearing, and the names of the two police witnesses who would be required. He wrote the word "complainant" to indicate that the complainant was also required to give evidence. The name of the complainant, namely V, was not shown; * these were his only instructions to the respondent because it was the only information that was needed for the CMH; * he probably gave the respondent the statement of facts and his file as well as the brief of evidence. The charge sheet which showed V as the victim of the assault would have been at or very near the top of his file; * he cannot remember if G was present at court or if he introduced the respondent to G although he noted that a hearing date would not have been set by the court if G was not present; * he received a file note dated 23 July 2008 that appears to be from the respondent about the CMH appearance confirming that he appeared on the CMH , that G was present at the time, that the matter was set down for hearing and that the two police witnesses were required "as I was instructed to ask for." 12. The transcript of the CMH was marked as Exhibit R1. The transcript shows the respondent announcing his appearance and indicating that G was "before the court". 13. There is a discussion about police witnesses. The prosecutor indicates that the complainant will be a witness. The name of the complainant is not mentioned. The Magistrate asks the respondent if this is likely to be a summary hearing. The respondent replies that it "appears to be roughly a summary hearing." 14. Mr Archer submitted that this demonstrates that the respondent knew little about the matter because it was a meaningless response. The respondent's lack of knowledge is further illustrated by the file note (Exhibit A12) in which there is no reference to the complainant as a required witness. Mr Archer points to this as highlighting the respondent's absence of attention to the details of the matter. 15. The Tribunal accepts that the evidence supports a finding that the respondent knew little about the matter in respect of which he was appearing for G. There is no evidence that he had any information in his possession that gave rise to a duty owed to G, to keep the information confidential. There is no evidence that the respondent saw or obtained any specific information about G or V other than the information given to him by Mr Perkins or discussed before the court at the CMH. These were matters of public record. 16. The Tribunal is not satisfied that Ground 2 is made out.

1. Ground three alleges that the respondent either deliberately or recklessly, made misleading representations to the applicant and failed to be open and frank in his dealings with the applicant. There are four alleged misleading representations, namely that:

(a) the respondent was unaware that V was the victim of G's assault in circumstances where he knew that she was; and

(b) the respondent was unaware that G was a victim of V's assault in circumstances where he knew he was the victim; and

(c) the respondent was instructed by V in the court cells prior to the hearing of her bail application when in fact he had no such instructions; and

(d) the respondent held a signed legal application form when he appeared before the magistrate when this was not in fact the case.

1. The representations were made by the respondent in his response to the applicant.
2. A practitioner's duty to be frank in communications with the professional regulatory body and to co-operate with investigations of complaints is well established. It is extension of a practitioner's duty as an officer of the court.[17] Breach of the duty can constitute professional misconduct[18].
3. The duty not to mislead has a common law basis but is also encapsulated in Rule 39.1 of the Legal Profession (Solicitors) Rules 2007. Rule 39.1 provides:

39.1 Subject only to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society.

1. A breach of Rule 39.1 is a contravention of the LP Act and can constitute either unsatisfactory professional conduct or professional misconduct.

Ground 3 (a) - The representation that the respondent was unaware that V was the victim of G's assault in circumstances where he knew that she was

1. This representation was made by the respondent in his second letter of 5 September 2008 (Ex. A1-D) he writes; "I acted on instructions from Mr Perkins. I had not read the brief I did not know who or what the victim was."
2. Mr Perkins' evidence about the instructions he gave to the respondent and the documents given to the respondent supports a finding that the respondent was not specifically given the name of the victim of the alleged assault.
3. The transcript (Ex.R1) of the CMH shows that the victim's name was not mentioned. The respondent's report to Mr Perkins after his appearance

(Ex A12) makes no mention of the existence of a complainant. 4. The Tribunal has accepted that the respondent paid little attention to the details of the matter in which he appeared on 23 July 2008. This does him little credit. A prudent practitioner, particularly one with a busy criminal practice, should always enquire about the identity of the victim in a criminal matter regardless of the circumstances in which they are appearing, to exclude the risk of conflict. There is no evidence that the respondent did so and no evidence to support a finding that the respondent knew that V was the victim of the alleged assault. 5. The Tribunal is not satisfied that the respondent's representation that he was unaware that V was the victim of G's alleged assault, was misleading. Ground 3(a) is not made out.

Ground 3 (b) - The representation that the respondent was unaware that G was a victim of V's assault in circumstances where he knew that he was the victim

1. This representation was made to the applicant in a letter dated 22 November 2008 (Ex A4-E). It relates to the respondent's appearance on the bail application on 28 July 2008. The representation was that "I was not aware that (G) was the victim until I appeared at the bar table." The representation also appears in the statements made by V and G (Ex A2 and A3) which were sent by the respondent to the applicant as part of his response under cover of his letters dated 18 October 2008 (Ex A1-G) and 22 November 2008 (Ex A4-E).
2. The respondent does not explain what happened that caused him to realise that G was the victim of V's alleged assault when he appeared at the bar table on 28 July 2008. In relation to this assertion, the Tribunal notes the following:

• The extract from the transcript set out above, and the audio recording, indicate that the respondent announced to the court that he was instructed by the victim as his opening statement. It is not apparent that anything occurred after the respondent entered the court room and before he spoke to the Magistrate that would have alerted him to that fact. It appears that he already knew it. He may have obtained a copy of the statement of facts after he entered the room and before he spoke. There was a delay of some 20 seconds between his entering the court room and speaking so there was time for this to happen. Ms Werner had no recollection of when or who collected the statement of facts from the prosecutor's file. The respondent may have drawn an inference from the discussion that occurred between the Magistrate and the prosecutor when he was waiting to speak. There is no explanation.
  • The Tribunal has found that the respondent did not obtain instructions from V in the cells before he appeared on the bail application. It follows that V did not tell him that G was the victim before the bail application.
  • G is referred to in the legal aid form (Ex A4-B) as the victim. G's name appears to be in the respondent's handwriting. The tribunal's finding to the effect that V did not give the respondent instructions before the bail application excludes the possibility that this entry on the legal aid form provides evidence that the respondent knew that G was the victim before he appeared in court on the bail application.
  • G's statement says that he did not tell the respondent that he was the victim of V's assault (Ex A2). G's statement suggests that the respondent left it to G to identify any conflict of interest.

1. If this is true, it does the practitioner little credit. The responsibility to enquire about the identity of the victim in order to exclude the possibility of conflict was the respondent's. It is the lawyer's duty to be alert to and identify conflict. A competent and diligent practitioner does not shift responsibility for identifying any conflict to his or her client or to another person.[19] However, the respondent is not charged with acting in a way that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner by reason of his failure to find out who the victim of either assault was.
2. The only evidence that tends to prove that the respondent's representation was misleading, is the evidence of the words of his opening statement when he appeared on the bail application. Even if the Tribunal were to draw an adverse inference from the failure of the respondent to give evidence, we are not satisfied that the evidence establishes to the requisite standard, that this representation was misleading.

Ground 3 (c) and (d) - The representations that the respondent was instructed by V in the court cells prior to the hearing of her bail application and that the respondent held a signed legal application form when he appeared before the magistrate

1. It follows from the findings made in relation to Ground 1, that the Tribunal is comfortably satisfied that the respondent was not instructed by V in the cells before her bail application was heard, and that the respondent did not hold a signed legal aid application form when he appeared before the magistrate. His representations to the applicant to the contrary were misleading.
2. Ground 3 (c) and (d) are made out. The misleading representations involved a significant degree of deception and are properly characterized as professional misconduct.

1. The tribunal is satisfied that the respondent is guilty of professional misconduct in relation to the matters set out in Grounds 1 and 3 (c) and 3 (d) of this application. Further, he has breached Rule 39.1 of the Legal Profession (Solicitors) Rules 2007. His behaviour constitutes professional misconduct.
2. The application is stood over for further hearing concerning any orders to be made pursuant to s 425 of the Legal Profession Act 2006 (ACT).

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] 2 This decision was previously anonymised and cited as The Council of the ACT Law Society & The Legal Practitioner [2010] ACAT 73 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

[3] See for example Re Veron; ex parte Law Society of New South Wales [1966] 1 NSWR 511 at 515; Chamberlain v ACT Law Society [1993] FCA 527; (1993) 118 ALR 54 at 58-9.

[4] Myers v Elman [1974] AC 282 at 289; Re Mayes [1974] 1 NSWLR 19 at 25-6

[5] Dal Pont, G. E. Riley Solicitors Manual 2005

[6] [1938] HCA 34; (1938) 60 CLR 336 at 368

[7] see NSW Bar Association v Livesey [1982] 2 NSWLR 231 at 237-8 and the line of authorities cited.

[8] Carr v Financial Corporation Australia Limited [1981] HCA 20; 147 CLR 246 at 258

[9] [1959] HCA 8; (1959) 101 CLR 298

[10] [1966] 1 NSWR 511 at 515-516

[11] [2008] NSWADT 149

[12] [2006] NSWCA 340

[14] Kyle v Legal Practitioners Complaints Committee (1999)21 WAR 56; Council of the Queensland Law Society v Wright [2001] QCA 58; Guss v Law Institute of Victoria Ltd [2006] VSCA 88

[15] Riley Solicitors Manual [7025.5]; re Boettcher; unreported decision of Professional Conduct Board of the Law Society of the ACT;

[16] see Re Practitioner [1975]12SASR166 at 172 per Bray CJ

[17] see for example Kerin v Legal Practitioners Complaints Committee [1996] SASC 5650; (1996) 67 SASR 149; Law Society of NSW v Ciampa [1999] NSWADT 13; Legal Pracitioner's Conduct Board v Phillips [2002] SASC 63; (2002) 83 SASR 467; NSW Bar Association v Thomas(CA(NSW))BC8902198

[18] Law Society of NSW v McNamara (1980) 47 NSWLR 72; Legal Practitioners Conduct Board v Hay [2001] SASC 322; (2001) 83 SASR 454

[19] Marron v J Chatham Daunt Pty Ltd [1998] VSC 110