Legislation cited: Legal Profession Act 2006 ss 53, 269, 312A, 413, 433

Subordinate

Legislation cited: Legal Profession (Solicitors) Conduct Rules 2015 r 4.1.3

Cases cited: Council of the Law Society of the Act v LP 201714 [2018] ACAT 101

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

The Tribunal being satisfied that the practitioner is guilty of unsatisfactory professional conduct, it is ordered by consent:

1. An order privately reprimanding the Respondent pursuant to subsection 425(3)(e) of the Act;
2. An order that the Respondent pay a fine of $1,500 payable in monthly instalments of $200 pursuant to subsection 425(5)(a) of the Act; and
3. An order that the Respondent undertake a course in ethics approved by the Applicant within 12 months pursuant to subsection 425(5)(b) of the Act.

1. The practitioner is to pay the applicant's costs in the amount of $20,000, within 24 months of these orders.

1. On 7 February 2019 the Council of the Law Society of the ACT (Law Society) brought an application for occupational discipline against the Legal Practitioner 201904 (the practitioner). The application was ultimately resolved by orders made by consent on 24 September 2019. The only issue on which there was no agreement was the question of costs. The parties were heard on costs on 24 September 2019 and a decision and oral reasons given on that day. The following is an edited and supplemented[1] copy of those reasons.

1. The parties reached agreement on 22 March 2019 as to three of the four charges, this had been foreshadowed at the first directions hearing on 12 March 2019.
2. Because of the outstanding fourth charge the parties were directed to file affidavit evidence and submissions, to be followed by a preliminary conference and hearing. Although there was some amendment to the timetable, the parties ultimately filed their documents as directed and participated in a preliminary conference on 11 September 2019 at which total agreement about the facts, the charges, characterisation of the conduct and the sanction was reached.
3. The parties filed a joint submission encompassing all charges on 17 September 2019.
4. Both parties filed submissions on the question of costs. The Law Society also filed an affidavit of Mr Reis, the Professional Standards Manager of the Law Society, detailing the work undertaken in relation to the application and annexing some correspondence with the practitioner about the proceedings.
5. The matter was listed for hearing on 24 September 2019 for the Tribunal to consider whether to make the proposed consent orders, and to determine the question of costs.

The facts, charges established and appropriate sanction

1. The practitioner has been a solicitor since 2004, initially in NSW, and held a restricted practicing certificate in the ACT from 1 July 2009 to 30 June 2015. From 1 July 2015 the practitioner has held an unrestricted practising certificate in the ACT. At the relevant time, he worked as an employed solicitor for one firm, and independently as a registered migration agent under a different entity. In May 2016 he entered into an independent contractor arrangement with a second firm, under which he would provide migration law, commercial law and general litigation services. Under that consultancy arrangement the practitioner was required to keep current the mandatory migration agent professional indemnity insurance, and the second firm would provide professional indemnity insurance for the legal work undertaken under the consultancy arrangement.
2. The disciplinary application arose from work done by the practitioner for a client (the client) on 15 March 2017. The client came to the practitioner via the second firm. The matter was a migration matter and initial work was undertaken under the consultancy for the second firm. However, a second tranche of work involved the practitioner drafting, on an urgent basis, an application for judicial review. That application was urgent not only because of the applicable time frame, but because the practitioner was to travel overseas to attend upon his father who had suffered a massive heart attack and was facing impending death. The second tranche of work was undertaken under a costs agreement between the client and the migration agent entity.
3. The agreed facts demonstrate that the practitioner had failed to tell the Law Society that he was practising law under the auspices of the migration entity in the client's matter. The parties agreed and I accept this was a breach of section 53 of the Legal Profession Act 2006 (the Act).
4. The practitioner also failed to provide an appropriate written cost disclosure to the client as required by section 269 of the Act. I am satisfied that while there was some agreement about costs, it did not meet the requirements of section 269 of the Act.
5. In performing the work for the client, the practitioner effectively performed legal work without insurance cover. This was a contravention of section 312A of the Act.
6. The legal work involved filing a judicial review application, which certainly fell short of the requisite standards of competence and diligence, and consequently breached rule 4.1.3 of the Legal Profession (Solicitors) Conduct Rules 2015. The practitioner accepts that it did fall short of the standard required, in the sense that he planned to rectify those shortcomings when he got the opportunity.
7. Those are the bare facts which establish the charges that the parties have agreed are made out.
8. I accept that the circumstances that led to the practitioner doing that work are as described by the practitioner in his affidavit.
9. The parties agreed, and I am satisfied, that the conduct in those charges constitutes unsatisfactory professional conduct.
10. I am also satisfied that it is appropriate that the sanction be that I will privately reprimand the respondent, the respondent will be ordered to pay the fine of $1500, and that he should undertake the course in ethics approved by the applicant in 12 months.

1. In relation to the costs issue, section 433 of the Act requires a practitioner to pay costs unless there are exceptional circumstances. I have given much thought to whether exceptional circumstances exist in this case.
2. The practitioner submitted that the confluence of circumstances in which the conduct occurred were exceptional. His actions were motivated by the desire to help his client, the timing of the request for legal assistance coinciding with his own personal distress preparing to travel overseas the next day. A costs agreement was executed, and there has been no complaint by the client but rather by the principal of the second firm in relation to fees. The practitioner says that he promptly repaid the fees, and has cooperated fully with the Law Society, enabling narrowing of the issues and a reduction in the number of charges.
3. I accept the submission of the Law Society that the circumstances of the conduct giving rise to the breaches is itself not relevant to this question. That is not the 'circumstances' I am looking at, but rather the 'circumstances' of the bringing of proceedings and the conduct of the proceedings.[2]
4. I have considered whether it is an exceptional circumstance that the Law Society brought these proceedings when in the end the resolution is on terms that could have been achieved by a decision by the Law Society under section 413 of the Act. It seems to me that if it was absolutely clear that the alleged breaches on the evidence available at that time could not reasonably amount to professional misconduct, then that argument might be made out. However, I am not so satisfied.
5. The Law Society also submitted that it had concerns as to the practitioner's competence at the time of bringing the proceedings. Those concerns were alleviated only by the evidence subsequently filed in the proceedings and by the discussions occurring in mediation. I accept that the complexion of the matter did change over the course of the proceedings. I do not consider that the mere fact that what has been achieved as an outcome is the same as what might have been achieved under section 413 itself amounts to exceptional circumstances.
6. The practitioner submitted that the Law Society could have decided not to press one of the grounds for the first charge at an earlier stage, and that the Law Society could have avoided the cost of the second expert report. I am not satisfied these or any of the other arguments put by the practitioner amount to exceptional circumstances, and so it is necessary then for the Tribunal to order that the practitioner pay the Law Society's costs.
7. The Law Society suggested that a suitable end point would be an amount of $25,000.00 payable over 24 months. The respondent submitted that if costs were to be awarded, they should be 'minimal'.
8. Both parties have agreed that costs, if awarded, should be in a lump sum, and I think that is very sensible.
9. The costs that are to be awarded should be the costs of the proceedings and in my view this does not include costs of the investigation and the assessment of the complaint.
10. The solicitors for the Law Society helpfully provided a copy of invoices issued in relation to the application, with a cover sheet setting out the period of time encompassed by each invoice. I have not embarked on a full taxation of costs. The costs to the parties of a full or formal assessment or taxation is prohibitive. I have instead looked on a rough basis at the invoices that the Law Society was able to give me.
11. I have disregarded the first 10 invoices. They are all work that was done prior to the decision to commence disciplinary action, but I accept that some of the work done then may have saved money later in the piece.
12. The remaining invoices we can say are purely attributable to these proceedings, and they amount to some $29,627.00. Those are on a solicitor/own client and total indemnity basis. I think it is appropriate to discount those costs, and I will discount them by a third. That would leave a total of about $19,751.00. So again, taking a broad-brush approach, I would order that the practitioner pay costs in the lump sum of $20,000.00 over a period of two years.

[1] These written reasons add a summary of the conduct of the litigation and the facts

[2] Council of the Law Society of the Act v LP 201714 [2018] ACAT 101