Legislation: Legal Profession Act 2006 ss 425(3)(e), 433(1)

Subordinate Legal Profession (Solicitors) Rules 2007 r 39

Cases: Council of the Law Society of the ACT v Legal Practitioner "D2" [2014] ACAT 6

1. The respondent practitioner be publicly reprimanded.

1. The respondent practitioner is to pay the applicant 25% of the applicant's costs of this application calculated in accordance with the Supreme Court scale, in an amount to be agreed or, failing agreement, as assessed by the Registrar of the Tribunal.

1. On 12 February 2014 the respondent practitioner (the practitioner) was found to have committed an act of unsatisfactory professional conduct. This conduct was a failure to respond to an enquiry by the applicant Society pursuant to rule 39 (2) of the Legal Profession (Solicitors) Rules 2007 (the Rules) made under the Legal Profession Act 2006 (the LP Act.) The failure was admitted, although the practitioner had at an earlier stage provided some information to the applicant about the matters the subject of these proceedings.[1]
2. The history of this matter is set out in detail in the earlier decision of the Tribunal reported as Council of the Law Society of the ACT v Legal Practitioner "D2" (Occupational Discipline) [2014] ACAT 6 (the earlier decision). It is not necessary to reproduce the history of the matter here. Following the delivery of the earlier decision, the Tribunal indicated that the issue of penalty and costs would be reserved for further order. These are the reasons for the orders made today.
3. The proceedings leading to the earlier decision contained three grounds alleging three breaches of the practitioner's professional obligations. The breaches relied on in the first two grounds, relating to his conduct of litigation in his personal capacity, ultimately resulting in an unsuccessful application for special leave to the High Court of Australia, were held to not constitute professional misconduct or unsatisfactory professional conduct. The reasons for this are set out in detail in the earlier decision.
4. The third ground alleged a failure by the practitioner to comply with his professional obligation under the Rules to give a full account of his conduct when required by the applicant.
5. Rule 39 (2) of the Rules ("the Rule") is as follows:

A practitioner should respond within a reasonable time and in any event within 14 days (or such extended time as the Society may allow) to any requirement of the Society for comments or information in relation to the practitioner's conduct or professional behaviour and in doing so the practitioner should furnish in writing a full and accurate account of his or her conduct in relation to the matter.

1. It should be noted that the right of the applicant to require an explanation from a practitioner under the Rule is not limited to matters concerning the 'professional conduct' of the practitioner. The applicant may enquire about any conduct, as conduct may go to the question of whether a person is a 'fit and proper person' to be a member of the legal profession. This issue is not limited to conduct in a professional respect, but may include unrelated conduct of a serious or disgraceful nature that indicates that the person does not have the appropriate character or is not a fit and proper person to be a member of the legal profession. To ensure the proper regulation of the profession, the applicant must have the right to enquire about any matter. Similarly, the obligation of the practitioner is to respond under the Rule.
2. When the complaint was considered by the applicant, the practitioner provided in March 2012 some information about the course of the litigation. A further response was made by the practitioner by e-mail in September 2012 (see paragraphs 88 and 89 of the earlier decision). However, the conclusion of the long-running litigation by the refusal of a grant of special leave in the High Court prompted further correspondence from the applicant to the practitioner. It was his failure to comply with the letter of 24 April 2013 that was the third ground of complaint in the Society's application. The practitioner acknowledged that he did not reply to the letter, thereby admitting that he failed to comply with the Rule. The Tribunal found that the failure constituted unsatisfactory professional conduct which was, in all the circumstances of the case, at the lower end of the scale of such conduct.

The parties were invited to file submissions as to what orders it was appropriate for the Tribunal to make in the light of those findings.

1. The Order in the earlier decision provided in paragraphs 3 and 4 the following:
   1. Any submission that either party wishes to make on the appropriate penalty as a consequence of the finding in paragraph 2 above is to be filed in the tribunal and served on the other party by 25 February 2014.
   2. The Tribunal gives notice to the parties pursuant to section 54 (1) of the ACT Civil and Administrative Tribunal Act 2008 that the Tribunal is minded to determine any penalty in this matter as a result of finding 2 above, without further hearing. In view of the circumstances of this application, the Tribunal gives notice that if the parties wish to make representations about the proposal that the matter should proceed without further hearing, those representations must be filed in the tribunal within 14 days of the date of this order
2. It should also be noted that under section 433 of the LP Act, when there is an adverse finding against the practitioner, the costs of the proceedings are payable by the practitioner to the extent that the tribunal determines.
3. The tribunal indicated to the parties that it proposed to hand down the reserved decision on costs and penalties on the 25 July 2014. The practitioner responded to the tribunal on 24 July 2014 as follows:
   1. "I wish to formally register a protest of the procedural unfairness in this matter. I have no idea what penalty the Society has requested in this matter and therefore have not had capacity to respond to said submission".
4. The practitioner acknowledged in a separate e-mail to the tribunal on 24 July 2014 that he had received the earlier decision. Included in this decision were the orders relating to further submissions referred to in paragraph 8 above. The practitioner was therefore on notice of the opportunity to make submissions and the obligation to serve any submissions on the applicant. The practitioner did not do so within the time specified in the order of 12 February 2014, or at any time since.
5. The applicant made submissions to the tribunal by e-mail on 25 February 2014, within the time specified in the earlier orders. That e-mail showed that a copy had been served on the practitioner at the e-mail address from which he sent his e-mails of 24 July 2014. This is the e-mail address which had previously been successfully used by the tribunal to communicate with the practitioner.
6. The tribunal is therefore satisfied that, in addition to being on notice through the terms of the order in the earlier decision, the practitioner has had the opportunity himself to make submissions, and that the applicant's submissions were provided to the practitioner in accordance with the earlier order. As noted previously, no response was received from the practitioner until the e-mails of 24 July 2014. It should be noted that, even if the practitioner was to assert that he did not receive the applicant's submissions, it was always open to him to provide submissions himself. Order 3 of the order in the earlier decision did not make the lodging of submissions by either party dependant on the filing of submissions by the other.
7. In its submissions, the applicant Society noted in paragraphs 15 - 17 as follows:
   1. The real question is whether or not there should be an order under s 425(3)(e) publicly reprimanding the practitioner or if there are special circumstances privately reprimanding him.
   2. The Society accepts that, the Tribunal having found that the unsatisfactory professional conduct here is at the lower end of the scale, a reprimand would not inevitably follow.
   3. However, the Society respectfully submits that a reprimand would be appropriate here in light of the nature of the breach by the practitioner of his obligations, and in particularly the importance of Rule 39.2 to the integrity of the complaints process.
8. The applicant's submission then referred to several well-known cases in the Supreme Court of the Australian Capital Territory, emphasising the importance of practitioners responding to requests for information from the applicant. There can be no question that the obligation to respond under the Rule is fundamental to the proper maintenance of the applicant's disciplinary powers, and through them, the protection of the public.
9. I am satisfied, having regard to the long history of the matter, the extent of the correspondence and enquiry by the applicant to the practitioner, his earlier responses, the awareness that must be attributed to the practitioner about the significance of the ongoing court case to the parties on the other side; and to the knowledge of the Rule which must be attributed to every legal practitioner (particularly when specifically directed to it by the letter from the applicant's solicitors), that the failure to respond in accordance with the Rule warrants an order reprimanding the practitioner under section 425(3)(e) of the LP Act.
10. The Tribunal must then consider whether there are special circumstances that warrant the issuing of a private, rather than a public, reprimand. No such circumstances were put forward by the practitioner. The tribunal considers that reprimands should generally be public, bearing in mind the importance of providing guidance to the profession as to appropriate professional conduct and demonstrating to the public that the applicant, and this Tribunal, takes seriously the enforcement of professional rules in the public interest.
11. The Tribunal had before it correspondence from doctors treating the practitioner which indicated that he was suffering from significant mental illness and was unable to effectively practice at this time. While this is unfortunate, and reflects the severe strain that the events referred to in the earlier decision must have had on the practitioner, there is no evidence that the medical condition referred to in the correspondence was affecting the practitioner at the time that he was conducting the lengthy court proceedings that were the subject of this application; nor is there any indication in any of the decisions which would give weight to such a finding. The practitioner did not advance these circumstances as ones that would make it appropriate for the Tribunal to issue a private as against a public reprimand.
12. The Tribunal therefore determines that the practitioner should be publicly reprimanded.
13. Section 433(1) of the LP Act requires that if the tribunal finds an Australian legal practitioner guilty of unsatisfactory professional conduct, the tribunal must order the practitioner to pay costs (including costs of the relevant Council and the complainant) unless the tribunal is satisfied that exceptional circumstances exist.
14. In its submissions, the applicant acknowledged that there should be an order in respect of the applicant's costs in relation to ground three of its application, but that there is no basis for an order for costs in respect of the two unsuccessful grounds.
15. The applicant submitted that the practitioner should pay one half of the Society's costs, given that the exposition of the facts necessary to determine the charges in grounds one and two would have been, to a substantial degree, necessary in order to put in proper context the circumstances surrounding the breach of ground three.
16. While there is some merit in this, as the tribunal would not have been able to appreciate the full history of the matter without costs having been expended to explain grounds two and three, the failure to comply with the request for information under the Rule was one to which there was no defence, and indeed an acknowledgement of failure. Background could have been put to the tribunal in fairly short form, whereas the bulk of the hearing and the preparation focused on grounds one and two.
17. Having regard to these matters, and accepting that these are questions for judgment and must to some extent depend on subjective views of the case, the Tribunal considers that an appropriate allocation of costs is to require the practitioner to pay 25% of the applicant's costs of the application a calculated in accordance with the Supreme Court scale, in an amount to be agreed or, failing agreement, as assessed by the registrar of the Tribunal.

[1] This decision was previously anonymised and cited as Council of the Law Society if the ACT v Legal Practitioner "D2" [2014] ACAT 45 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.