ACT Civil and Administrative Tribunal|2013-01-11|Before: Professor P

The applicant submitted that the Practitioner's admission of wrongdoing ought to be given weight by the Tribunal. The parties agreed that it saved considerable time and expense because the matter proceeded by way of admission to the charges.
The respondent fully cooperated with the applicant in attempting to resolve all factual difficulties that arose as a consequence of the respondent being unable to locate any file or diary notes for 2008 and some gaps in the recollection of IL, who is now an elderly man. For example, the respondent arranged for computer forensic testing to determine the date of certain documents in order to assist the preparation of the matter for hearing.
The applicant also conceded, and the Tribunal agrees with this concession, that the respondent suffered from extremely poor health in the early part of 2009 and this significantly impacted on his ability to progress the claim.
The respondent tendered two testimonials from lawyers practising in the ACT and New South Wales and both of these make reference to the current proceedings. Both of the lawyers practice in a similar manner to the respondent, have had many dealings with him and know him very well. The testimonials indicate that the respondent is a person of significant integrity who takes his professional obligations seriously and who practices with respect, integrity, courtesy and honesty.
The respondent gave evidence frankly and the qualities of respect, courtesy and honesty were demonstrated by his oral testimony. He has practised law for in excess of 20 years and has contributed both professionally, for example through pro bono work, and in the community through his involvement in sporting organisations. He took full responsibility for his actions and showed contrition.

- the practitioner had altered a letter in a deliberately misleading and deceptive way,[31]

- the practitioner was slow to comprehend the error or express contrition,[32]

- the breach involved serious dishonesty i.e. forgery, [33]

- professional misconduct was established by wilful breaches of the trust account rules and recklessness,[34] and

- professional misconduct had occurred when the practitioner applied for multiple shareholdings using fictitious names.[35]

Conversely, a private reprimand was issued by the New South Wales Administrative Decisions Tribunal to a conveyancer in circumstances where she had made an error by not putting funds immediately into a trust account. Although there was a finding of professional misconduct, the practitioner had been involved in legal practice for 30 years without any prior formal complaints and was very contrite.[36]
However, it is axiomatic that the purpose of occupational regulation is to protect the public. An important consideration is whether a private reprimand provides such protection to the public,[37] including the community of legal practitioners.[38] In the Tribunal's view, the respondent does not present any continuing risk to the public. Related to this, however, is the issue of deterrence. Deterrence is a particularly important consideration in the present case because, as stated above, this is the first time the applicant Law Society has brought a case based on possible negligence and the public has a particular interest in ensuring that the claims of individual right-holders are not barred by inadvertence or slothfulness on the part of members of the legal profession.
It has been held that a private reprimand can really only act as a personal deterrent whereas a public reprimand should be issued where there is a reasonable possibility that one or more legal practitioners might act in the same way as the legal practitioner under consideration.[39] This issue was raised with the parties during the hearing and they replied that the proceedings themselves are a deterrent to the practitioner personally but in addition, the publication of the reasons will act as an important conduit of information and a deterrent to ACT practitioners. This can occur without the further need for a public reprimand. The Tribunal agrees with this approach.
Finally, the question was raised about the efficacy of a private reprimand in circumstances where a finding of unsatisfactory professional conduct has been made by the Tribunal. Pursuant to section 447 of the Legal Profession Act, this finding constitutes "disciplinary action" which must be included on the register of disciplinary action maintained by the applicant. The register, which is on the applicant's internet site, contains details of any disciplinary action taken against an Australian legal practitioner and must include particulars of the disciplinary action taken. Previously, in Council of the Law Society of the Australian Capital Territory v A Legal Practitioner, the tribunal took the register into account when declining to order that the reprimand be delivered privately, expressing the view that little would be served by having the reprimand delivered in private as the requirements of section 448 of the Legal Profession Act result in the identity of the respondent and the details of the disciplinary action forming part of the register of disciplinary action.[40]
The Tribunal acknowledges that there is some tension between the publicity required by sections 447 and 448 of the Legal Profession Act and an order for a private reprimand. However, the private reprimand remains a sanction that is available to the Tribunal under section 425(3)(e) of the Legal Profession Act and Council of the Law Society of the Australian Capital Territory v A Legal Practitioner is distinguishable from present case because in that case there was a finding of professional misconduct due to, inter alia, the practitioner signing a document when a witness was not present. Therefore the breach was more serious than those presently under consideration.
The present Tribunal considers that the disclosure of information on the register of disciplinary action is a matter for the applicant to consider in discharging its responsibility under the Legal Profession Act. Presently, the Tribunal is concerned with the imposition of a penalty and the power to impose a private reprimand remains in the ACT Legal Profession Act where special circumstances are established. As stated above, the Tribunal finds that special circumstances have been established and therefore a private reprimand will be ordered.

The parties agreed that the respondent will submit to an order that he pay the applicant's costs on a solicitor and own client basis, with the parties having liberty to apply.

Council of the Law Society of the Australian Capital Territory

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

[1] Agreed Submission 15 March 2012 paragraph 10

[2] Agreed Submission 15 March 2012 paragraph 10

[3] Agreed Submission 15 March 2012 paragraph 12

[4] Agreed Submission 15 March 2012 paragraph 12

[5] Agreed Submission 15 March 2012 paragraph 16

[6] Agreed Submission 15 March 2012 paragraph 18

[7] Agreed Submission 15 March 2012 paragraph 18

[8] Agreed Submission 15 March 2012 paragraph 20

[9] Agreed Submission 15 March 2012 paragraph 21

[10] Agreed Submission 15 March 2012 paragraph 21

[12] Agreed Submission 15 March 2012 paragraph 25

[13] Respondent's Submissions 22 March 2012 paragraph 2.5

[14] Agreed Submission 15 March 2012 paragraph 21

[15] Forrest v Fiegler (1997) DFC 95-181

[16] Parker v McNair (1990) DFC 95-087

[17] Beattie v Reid [2000] NSWSC 97

[18] Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209, at [51]

[19] Riley Solicitors Manual at 33,040-10

[21] NSW Bar Association v Bland [2010] NSWADT 34 at [185] - [190]

[22] Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 at [751]

[24] Engert v Sydney Ferries Corporation [2009] NSWSC 1400 at [33]

[25] Morris v Canberra Irish Club Incorporated [2007] ACTSC 48; Hamilton v Madden [2007] ATSC 89; Rajic v Brighton Ceiling Pty Ltd [2009] ACTSC 68; Barancewicz v Davies [2011] ACTSC 4

[26] Hay v Belconnen Magpies Sports Club Ltd and Anor [2010] ACTSC 1; Pahoff v Canberra Institute of Technology [2010] ACTSC 69

[27] Rajic v Brighton Ceiling Pty Ltd [2009] ACTSC 68 at [12]

[28] Morrison and Anor v Judd (1995) Supreme Court of New South Wales Court of Appeal 10 October 1995, BC9507158 at pages 16-17

[31] The Law Society of the Australian Capital Territory & The Legal Practitioner [2011] ACAT 57

[32] Commissioner for Fair Trading v MacLachlan [2005] NSWADT 88 at [27]

[33] Law Society of New South Wales v Byrnes [2000] NSWADT 20

[34] Law Society of New South Wales v Cornell No. 2 [2006] NSWADT 308

[35] New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39

[36] Commissioner for Fair Trading v Walker [2004] NSWADT 139

[37] The Law Society of the Australian Capital Territory & The Legal Practitioner [2011] ACAT 57 at [38]

[38] New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39 at [123]

[39] New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39 at [128]

[40] Council of the Law Society of the Australian Capital Territory v A Legal Practitioner [2010] ACAT 26 at [62]

Profession (Solicitors) Rules 2007

(Relationships) Act 1984

Procedures Rules 2006

COUNCIL OF THE LAW SOCIETY OF THE ACT & LEGAL PRACTITIONER W (Occupational Regulation) [2013] ACAT 1 (11 January 2013)

List of cases: Barancewicz v Davies [2011] ACTSC 4

Beattie v Reid [2000] NSWSC 97

Commissioner for Fair Trading v MacLachlan [2005] NSWADT 88

Commissioner for Fair Trading v Walker [2004] NSWADT 139

Council of the Law Society of the Australian Capital Territory & A Legal Practitioner [2010] ACAT 26

Council of the ACT Law Society & The Legal Practitioner [2010] ACAT 73

Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209

Engert v Sydney Ferries Corporation [2009] NSWSC 1400

Hay v Belconnen Magpies Sports Club Ltd and Anor [2010] ACTSC 1

Law Society of New South Wales v Byrnes [2000] NSWADT 20

Law Society of New South Wales v Cornell No. 2 [2006] NSWADT 308

Law Society of the Australian Capital Territory & The Legal Practitioner [2011] ACAT 57

Morris v Canberra Irish Club Incorporated [2007] ACTSC 48

NSW Bar Association v Bland [2010] NSWADT 34

New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39

Pahoff v Canberra Institute of Technology [2010] ACTSC 69

Rajic v Brighton Ceiling Pty Ltd [2009] ACTSC 68

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LEGAL PRACTITIONER W

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COUNCIL OF THE LAW SOCIETY OF THE ACT & LEGAL PRACTITIONER W (Occupational Regulation) [2013] ACAT 1 (11 January 2013)