Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 55

Legal Profession Act 2006 ss 419, 425, 433, 585

Subordinate

Legislation cited: Legal Profession (Solicitors) Conduct Rules 2015 rr 4, 43

Cases cited: Council of the Law Society of the ACT v Legal Practitioner RN (Rhondda Nicholas) [2016] ACAT 122

Council of the Law Society of the ACT v Legal Practitioner 'P4' (No 2) [2015] ACAT 35

In re W C Moseley [1925] NSWStRp 17; (1925) 25 SR (NSW) 174

Law Society of NSW v Carson [1999] NSWADT 142 (unreported)

Upon finding that the respondent has engaged in professional misconduct as particularised in the application the Tribunal makes the following orders with the consent of both parties:

1. Pursuant to section 425 (1) of the Legal Profession Act 2006 (the Act), that the respondent is guilty of professional misconduct in respect of charges 1 and 2.
2. Pursuant to section 425(1) of the Act, that the respondent is guilty of unsatisfactory professional conduct in respect of charge 3.
3. The respondent pay a fine of $10,000 to the Australian Capital Territory.
4. Pursuant to section 425(3)(e) of the Act, that the respondent be publicly reprimanded.
5. The respondent undertake a course approved by the applicant in ethics within 12 months.
6. Pursuant to section 433(1) of the Act, that the respondent pay the applicant's costs calculated on a solicitor and own-client basis in accordance with the ACT Supreme Court scale in a sum to be agreed and, if not agreed between the applicant and the respondent, the costs are to be assessed by a cost specialist, namely LegalCost Canberra, and the respondent is to pay 90 per cent of the costs so assessed plus disbursements in full.

1. This is an application for disciplinary action brought by the Council of the Law Society of the ACT (the Council) seeking orders pursuant to section 419 of the Legal Profession Act 2006 (the Act). This section provides that the Council may apply to the ACT Civil and Administrative Tribunal (ACAT) for an order in relation to a complaint against a practitioner.[1] In this case a complaint was made to the Law Society by a client in regard to the conduct of his legal practitioner, (the respondent). After investigation, the Council determined to bring these proceedings.
2. Section 55 of the ACAT Act provides that if the parties to an application reach agreement about the terms of a tribunal decision and the tribunal is satisfied that an order consistent with the agreed terms is within the powers of the tribunal and would be appropriate to make, it may make a decision in accordance with the agreement.
3. The parties' amended joint submission dated 10 December 2018 briefly sets out the background to the application, the charges and characterisation of the charges and the agreed sanction. The joint submission is to be read in conjunction with the facts and contentions in the application which is supported by the affidavit dated 2 November 2018 of Mr Reis, the Professional Standards Manager of the Law Society. The respondent admits to the three charges in the application.

1. The Council's application dated 28 August 2018 (the application) seeks disciplinary orders in relation to three charges preferred against the practitioner which relate to the practitioner's delay in filing for Letters of Administration - No Will and deliberately misleading his client about the progress of the application. The conduct took place over approximately 10 months from the end of 2014 to late 2015 and caused financial hardship to the client due to the delay in distribution of the estate funds. The respondent did not tell his clients that he was the cause of the delay. The Council also states that the respondent did not provide a full and accurate response to the applicant when questioned about the activity and that there was a delay in the transfer of the file to another firm, at the client's request, who completed the work. The facts are set out in paragraphs 3 to 30, and the contentions in paragraphs 33 to 39, of the application.
2. The respondent has been a solicitor for over 30 years and has had no previous complaints made about his practice. He held an unrestricted practising certificate at the relevant time and was the director of his incorporated legal practice.
3. In paragraphs 31 and 32 of the application, the Council sets out the binding obligations on legal practitioners pursuant to section 585 of the Act, specifically 'Rule 4 - Other fundamental ethical duties' regarding acting in the best interests of the client, acting in good faith and delivering legal services competently and 'Rule 43 - Dealing with the Regulatory Authority' regarding the obligation to be open and frank in dealing with the regulatory authority.
4. In paragraphs 33 and 34 of the application, the Council contends that the respondent demonstrated a "[l]ack of competence and diligence in the conduct of the estate matter in failing to act in a timely fashion". In paragraph 35, the Council contends there was "[a] failure to treat the clients fairly and in good faith by misleading the clients as to the status of the Application for Letters of Administration."
5. The Charges preferred against the practitioner were set out at paragraphs 40-42 of the application as follows:
   1. ...the Respondent breached Rule 4.1.3 by failing to file the application for Letters of Administration [in a timely fashion] [Charge 1]
   2. ...the Respondent breached Rule 4.1.2 by deliberately misleading his clients as to the status of the application for Letters of Administration [Charge 2]
   3. ... the Respondent breached Rules 43.1 and/or 43.2 by failing to be open and frank with the Applicant and/or deliberately or recklessly failing to make a full and accurate response to the Applicant [on] 7 August 2017 and 20 April 2018 [Charge 3]
6. The matter was well prepared via directions hearings and was listed for hearing on 20 December 2018. As the respondent admitted the three charges in the application, together with the characterisation of the conduct as professional misconduct regarding charges 1 and 2 and unsatisfactory professional conduct regarding charge 3, the hearing focussed on the appropriateness of the orders sought in the joint submission.
7. The Council referred to several factors in arriving at the agreed sanctions including the previous good character of the respondent already mentioned. The respondent also provided three character references in support.[2] The respondent stated that this behaviour was completely out of character, that some serious family issues occurred over this period which distracted him from his work, that he deeply regretted his actions and offered to refund the clients fees.
8. The Council cited cases referring to the delay in carrying out legal work and the emotional and financial effects on the client and the sanctions imposed. They included the following:
   • (a) Where there was a 14 month delay in filing for divorce, the practitioner was found to have been grossly negligent and guilty of professional misconduct.[3]

(b) A very experienced solicitor admitted allegations he failed to initiate proceedings and then misled his clients saying the applications had been filed and were progressing. He was ultimately forced to face the position and told his clients what he had done. There was a finding of professional misconduct and the lawyer was publicly reprimanded and ordered to pay the Law Society's costs.[4]

1. The Tribunal must be satisfied that the proposed orders are appropriate. In this case the delay in completing the work in a relatively straightforward matter and the financial loss to the clients in not being able to deal with the estate funds earlier than they did are important factors. Most significant was the deliberate misleading by the practitioner on a number of occasions about progress. Not only was this professional misconduct in our view, but it exacerbated the delay. It might be expected that even if a misleading assurance had been given to the client, the practitioner might then have sought to remedy the delay by acting with expedition. The characterisation of the behaviour as professional misconduct is appropriate given the consistent failure to reach or maintain a reasonable standard of competence and diligence. The Council stated that while in similar cases a fine of $5,000 would be proposed, the fine was increased to $10,000 here because the respondent did not tell his clients that he caused the delay.
2. In respect of charge 3, the practitioner misstated the chronology when answering the Law Society and later its solicitor but, as is accepted by the Council, did not do so knowingly. In his response to the Society he qualified his statements by saying it was from memory and at the time he did not have the file. In his response to the lawyer for the Council he had the file, but clearly could not have checked it to ensure what he said was accurate. This is unsatisfactory as there is a clear obligation on the practitioner to ensure what he says is accurate and can be relied on.
3. Having said that, to his credit the practitioner acknowledged his fault, apologised and, apart from the conduct in charge 3, cooperated fully with the Council in its investigations and resolution of the complaint. He provided character references and his own affidavit that demonstrated that he was highly regarded by reputable community members and in a long career had not previously been the subject of such a complaint.
4. The Tribunal notes that the Council of the Law Society is comprised of elected members of the ACT legal community and has extensive powers and functions under the Act. It has broad experience in the area of occupational discipline and due regard should be given to that knowledge and experience in this area. A public reprimand, a fine and an order to pay the Council's costs are common sanctions which aim to protect the public and deter other practitioners from engaging in similar activity.
5. The Tribunal noted that a public reprimand was not listed as a sanction in the joint submission. This was an oversight and was sought by the Council and not opposed by the practitioner.
6. The Council asked that the charges of delay and misleading be dealt with globally as has been done in previous cases.[5] As the conduct in both charges 1 and 2 are intertwined the Tribunal agrees that this is appropriate.
7. The Tribunal finds that the terms agreed between the parties are appropriate and makes a decision in accordance with the agreement.

[1] This decision was previously anonymised and cited as Council of the Law Society of the ACT v Legal Practitioner 201818 [2019] ACAT 12 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] In re W C Moseley [1925] NSWStRp 17; (1925) 25 SR (NSW) 174 [175]

[4] Law Society of NSW v Carson [1999] NSWADT 142 (unreported)

[5] Council of the Law Society of the ACT v Legal Practitioner RN (Rhondda Nicholas) [2016] ACAT 122 [40]; Council of the Law Society of the ACT v Legal Practitioner 'P4' (No 2) [2015] ACAT 35 [6]-[7]