COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LP 182022 [2024] ACAT 43 | Case summary

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LP 182022 [2024] ACAT 43 | Case summary | Zoe

[17]

The practitioner was admitted to practice in the ACT in 2000. He has practised continuously since then. He established a law practice in 2008 and two further associated law practices in 2012 and 2015. The three practices operate collectively. I will refer to them, as did the parties, as the Firm.
At all material times, the practitioner was a principal of the Firm. Arising from his establishment of the three practices and his work with the Firm, I am satisfied the practitioner was the most senior practitioner in the Firm. In February 2021 when the events giving rise to the charges occurred, the practitioner was 48 years old and the oldest person working at the Firm. At all material times, the Firm employed more than 20 people.
In January 2021, the office manager of the Firm organised the Firm's annual continuing professional development weekend (the CPD weekend) to be held from Friday, 26 February 2021 to Sunday, 28 February 2021 at a farm in NSW (the Farm). 13 of the firm's employees (the attending employees), in addition to the practitioner, attended the CPD weekend.[2] 11 of the attending employees were women. The remaining two male employees were senior employees in the Firm. Soon after their arrival at the Farm shortly after 6:00pm on 26 February 2021, the attending employees and the practitioner had dinner and drank alcohol.
At around 8:00pm, all the attending employees and the practitioner participated in a card and drinking game which required a participant to "do something"[3] when a particular card was drawn (the card game).
A card was drawn "which instructed the oldest person at the table to remove his/her pants".[4] The practitioner was the oldest person at the table. In response to "urging" from the other players, the practitioner lowered his jeans following which some of the attending employees tackled him to the ground. After the practitioner removed his jeans, one of the women tried to take the jeans from him.[5] The practitioner resisted his jeans "being removed from his arms".[6] The practitioner "appeared to treat the episode as humorous".[7] Video footage suggests at least some of those attending also found the episode humorous. Why the event was filmed was not explained.
By participating in the card game and lowering his jeans, the practitioner "placed himself in a circumstance which allowed for accidental exposure of his penis while in the company of staff of the Firm"[8], meaning there was the possibility of accidental exposure. The Council did not seek a finding there was any actual exposure of the practitioner's genitals[9] and I make no such finding.
At around 10:00pm, some of the attending employees and the practitioner were sitting around a campfire. At the invitation and with the encouragement of some of the attending employees, the practitioner performed a cabaret-style dance in front of those present (the dance).
The legal practitioner performed the dance whilst shirtless, wearing suspenders and holding a rose between his teeth. During the dance, the legal practitioner behaved in a bawdy manner.[10] Video footage shows some attending employees laughing whilst the practitioner performed the dance.
The following day, the attending employees and the practitioner participated in the CPD event. During this event, one of the attending employees circulated a colouring book containing demeaning and sexualised words regarding the practitioner and the Firm (the colouring book). Whilst the practitioner had no role in the preparation of the colouring book, he took no steps to confiscate it from those to whom it had been circulated during the CPD event and did not admonish the employee who circulated it.[11] The practitioner accepts, now, he should have confiscated the colouring book.

[32]

The practitioner expressed a wish to meet with Mr Reis to discuss his proposed changes at the Firm and in his own behaviour, in response to the draft disciplinary application. He stated he would also make a formal response to the draft. He noted the employee solicitor's regret in her subsequent correspondence for the way she had behaved and accepted he "had a hand in it by not guiding her better or setting a better example for her to follow."[24] He stated he did not wish his complaint about the employee solicitor to go any further.
By letter dated 9 February 2022, the practitioner provided his formal response to the draft application and the "possible charges" against him (the Third Response). I understood that letter to be his response to the complaint for the purposes of section 398 of the LP Act.
In his Third Response, the practitioner referred to extraneous issues that, he said, "clouded my judgement"[25] when providing his First Response. In substance, he maintained the position set out in his Second Response. In the main, he did not dispute the facts alleged; acknowledged the "gravity of [his] behaviour" and "the need for change". He acknowledged his dance and his participation and acquiescence in the card game and the colouring book were regrettable actions with the potential to bring the profession into disrepute notwithstanding the willing participation of others from the Firm. He acknowledged that activities of this kind risked, unintentionally, damage to the professional reputations of solicitors working in the Firm. He noted there was no suggestion of unwanted sexual advance, intimidation, threats, pressure or deliberate humiliation of anyone (except himself) during the CPD weekend.
The practitioner noted he had engaged an independent human resources consultancy firm (the HR firm) to "overhaul" the culture at the Firm, if that was thought necessary, for a fee that would be not less than $14,217.50. He noted many staff members at the Firm has written to the Law Society, independently of the practitioner, in support of the practitioner.
In conclusion, the practitioner submitted his "conduct, whilst deserving of strong disapproval from the Society, would not justify a finding that [he is] not a fit and proper person to engage in legal practice".[26] He accepted however that his behaviour was "a departure from acceptable societal and professional norms of conduct so significant that it could amount to unsatisfactory professional conduct."[27] He submitted the matter could be adequately dealt with internally pursuant to section 413 of the LP Act by the imposition of conditions without the need for an application for disciplinary action to the Tribunal.
The Council was not so persuaded. On or around 2 March 2022 the Council provided the practitioner with an amended draft disciplinary application. To that, the practitioner provided a further response dated 29 July 2022 again submitting the Society should address the matter internally pursuant to section 413 of the LP Act.
The Council chose not to deal with the matter internally. Instead, it filed its application dated 24 November 2022. The practitioner filed a response dated 1 June 2023 by which he admitted all facts and matters pleaded in the application, save for a particular subsequently not pressed; added comment in relation to some facts or matters; and accepted his conduct constituted professional misconduct.
The Council's evidence on the application was the statement of agreed facts and the 18 annexures to it evidencing some of the agreed facts.[28]
The practitioner relied on two affidavits affirmed by himself on 20 June 2023 and 9 August 2023, respectively, and an affidavit of Ms Zheng affirmed on 22 June 2023.

[33]

The Council submitted their "could not reasonably be any doubt"[29] the admitted conduct amounted to professional misconduct. In particular, the Council submitted the practitioner's conduct amounted to a "significant and serious breach"[30] of rule 5.1.2 of the Rules.
The Council relied on several aggravating factors regarding the admitted conduct, namely the practitioner's position as a principal of the Firm and a solicitor of considerable experience; his known duty to lead by example and be a role model for employees of the Firm regarding acceptable standards of conduct; the occurrence of the conduct during a continuing professional development event arranged for employees of the Firm; that it should have been "immediately obvious" to the practitioner that the contents of the colouring book "provided during a purported session on mental health, was entirely repugnant and inconsistent with the values of the legal profession";[31] and the practitioner's failure to appreciate the seriousness of his conduct and his initial attempt to "play off the conduct as a natural incident of the firm's culture".[32]
The Council submitted the conduct, and the aggravating factors would justify the Tribunal ordering a public reprimand, cancellation of the practitioner's practising certificate; preclusion of the practitioner holding a practising certificate for 6 months; and preclusion of the practitioner from applying for a practising certificate for 6 months.
However, consequent on the practitioner's subsequent contrition and his tangible efforts to review the culture of the Firm by engaging the HR firm at his own cost ($19,557), the Council sought findings that the charges are established; a finding that the practitioner is guilty of professional misconduct; an order that the practitioner be publicly reprimanded; an order that he pay a fine of $50,000; and an order that he pay the Council's costs.[33] In support of its submission that a fine of $50,000 should be imposed, the Council relied upon several decisions.
First it relied on the NSW Civil and Administrative Tribunal (NCAT)'s decision in Council of the Law Society of NSW v Alkhair (Alkhair)[34] given in 2022, in which the NCAT noted the well-settled principle that the purpose of legal practitioner disciplinary matters is to protect the public not to punish the practitioner, and that protection includes deterring the legal practitioner from repeating the misconduct and deterring other practitioners "who might be tempted to fall short of the high standards required of them".[35] In particular, the NCAT stated:

[38]

Next, the Council relied on the NSW Court of Appeal's decision in Council of the New South Wales Bar Association v EFA (a pseudonym) (EFA),[42] in which the Court considered the conduct of a barrister at a social dinner following a barristers' clerks' conference. At the dinner, the barrister approached a female assistant clerk previously unknown to the barrister and behaved in a lewd manner including gently pushing the woman's head towards him and saying to her "suck my dick".[43] The Tribunal at first instance found the behaviour constituted unsatisfactory professional conduct, rather than professional misconduct, sought by the NSW Council. The Tribunal imposed only a reprimand and an order for costs. On appeal, on the question of penalty,[44] the Council focused on the protective nature of the Court's jurisdiction and submitted "a reprimand, with no additional sanction, failed ... to pay due regard to the seriousness of the conduct."[45]
In response, the barrister led evidence that as a consequence of the discipline proceeding, the annual premium for his professional indemnity insurance had increased from $4,654.10 to $66,077.00; his policy was subject to a deductible (meaning excess) of $50,000 where his previous cover was not subject to any deductible; and the limit of indemnity for any one claim had been reduced from $4,000,000 to $1,500,000.
The Court also noted the barrister had also been ordered to pay the Council's costs which were "likely to be very substantial".[46] The Court agreed the barrister's words "elevate[d] the conduct into a new dimension calling for severe condemnation [which] is not achieved by a mere reprimand"[47] but was not persuaded a 'mere reprimand' was the only consequence. The Court concluded the need for a fine was "obviated by the very substantial financial penalty the respondent will suffer by reason of his new insurance terms".[48] The Court also noted other significant personal and reputational damage the barrister had suffered consequent upon his behaviour, as discussed below.
Drawing on EFA, in this case the Council submitted that whilst a fine of $50,000 would be substantial, it would be consistent with the statements of principle in EFA about the need for severe condemnation of such conduct especially when placed in the context of more severe penalties such as suspension or cancellation of the practitioner's practising certificate that were available but not being sought.[49]
The Council also drew on two decisions of the English Solicitors Disciplinary Tribunal: Solicitors Regulation Authority v Respondent AC (13 April 2023) (Respondent AC) and Solicitors Regulation Authority v Samuel Morris Charkham (30 November 2022) (Charkham).
In Respondent AC, the respondent, a partner of a law firm, performed a sexualised dance at a firm Christmas lunch and sang a song with sexually graphic words whilst performing the dance. The solicitor admitted the charge but asserted he performed the dance and sang the song at the invitation of a female solicitor. The English Tribunal accepted he behaved at the invitation of the female solicitor and that his misconduct was spontaneous and reactive to the invitation but found his conduct as a partner at a work event with colleagues present in a public setting still represented a grave breach of his position of trust. The fact the solicitor was likely intoxicated did not vitiate the direct control he had in response to the invitation. The English Tribunal found the public would be -

[40]

The Council relied on the English Tribunal imposing "a fine of £23,000 (around $43,000 AUD)"[51] and ordering the respondent to pay costs of £22,800.
In Charkham, the solicitor (who was a partner in a legal firm and a solicitor of long experience) told a racially offensive joke to an office secretary at a social dinner organised by the firm and touched another female staff member's bottom on more than one occasion. Whilst commenting it was difficult to understand how a professional person was not aware of the shift in public views, the English Tribunal nevertheless accepted the solicitor did not fully appreciate the racial implications of his words or that inappropriate and unacceptable comments cannot be passed off as jokes or pranks. The English Tribunal described it as "unfortunate" the solicitor did not perceive the total unacceptability of his actions or that others would see them as predatory. The English Tribunal took into account that whilst not appreciating the seriousness of his actions, the solicitor had "direct control of and responsibility for his actions at all times". The English Tribunal also took into account the power imbalance between the solicitor and the secretary to whom the racially offensive joke was directed.
The Council relied on the English Tribunal imposing "a fine of £30,000 (around $56,000AUD)"[52] and ordering the solicitor to pay costs of £21,000.
With reliance on the statements in Charkham, the Council submitted that notwithstanding the practitioner's conduct arose from actions which occurred spontaneously, he still had direct control and responsibility for his actions.
The Council submitted the practitioner's conduct "is markedly more serious than that in EFA and more serious than the conduct dealt with in Respondent AC."[53] It drew on the offensive nature of the respondent's conduct, the content of the colouring book, the prospect of accidental exposure of his genitals whilst in the company of staff and the aggravating circumstances of the conduct, namely the conduct occurring during a continuing professional development event and the practitioner being a principal of the firm with considerable experience who was well aware of his duty to lead by example.
The Council noted there was no evidence of any significant extra-curial financial penalty such as the barrister experienced in EFA. It submitted the practitioner's payment, personally, of $19,557.31 for a culture review of the firm by the HR firm was not relevant because the purpose of a fine is to mark out the Tribunal's disapproval of the practitioner's conduct. The performance of the cultural review, it said, does not obviate the need for specific and general deterrence in relation to such conduct.[54] The Council noted it would ordinarily be open for the Tribunal to order the practitioner to seek advice from a human resources firm (or other adviser) in addition to imposing a fine.[55]
The Council submitted that whether anyone was in fact offended by the practitioner's conduct at the time is not relevant. As the Council put it, "the conduct is the conduct".[56] In support of that submission, the Council relied on the NSW Court of Appeal's decision in Law Society of New South Wales v Moulton (Moulton), in which the Court stated:

[43]

The practitioner continued to admit the conduct described in charges 1 and 2 and maintained his acceptance that the conduct constituted professional misconduct.[59] The practitioner agreed it would be appropriate for the Tribunal to order he be publicly reprimanded for his conduct and fined. He submitted however a fine in the range of $15,000 - $25,000, rather than $50,000 sought by the Council, was "sufficient to achieve deterrence and the protective aims of the [LP] Act".[60]
The practitioner acknowledged his insight into the gravity of his conduct "has been a progressive process"[61] and, by the time of the hearing, was much higher than it was at the time of his Second Response or even his Third Response. He asked the Tribunal to take into account his First Response was written at a time of "heightened anxiety",[62] clouded by an erroneous perception that he was being persecuted. The practitioner accepted this does not excuse the approach taken in his First Response. Rather it explains it.
The practitioner drew on settled principle that the primary purpose of legal disciplinary proceedings is to protect the public not to punish the practitioner[63] even if the outcome has punitive consequences for the practitioner. The practitioner submitted "considerations of deterrence are central to achieving the protective purpose"[64] of the proceeding, to deter the practitioner from repeating the wrongdoing and other practitioners from offending in a similar way. The practitioner posed as the relevant question: what penalty provides sufficient disincentive to achieve the purpose of disciplinary proceedings without straying into the territory of further penalising the practitioner?[65]
The practitioner drew on many objective and subjective factors in support of the penalties agreed and proposed by him. He acknowledged the conduct was objectively serious, hence him accepting it amounted to professional misconduct, but asked for features of the conduct to be taken into account. The card game was spontaneous rather than premeditated. His risqué performance of the dance was spontaneous rather than premeditated and not directed at any particular person. The dance was meant to entertain and make attendees laugh, many of whom did so. The colouring book was created by others at the firm without the practitioner's knowledge. The book was meant to ridicule rumours about the Firm in a satirical way, rather than be lewd or vulgar per se.[66] The practitioner described his conduct the subject of the charges as "an isolated incident".[67] He noted there has been no similar repetition of his conduct at subsequent CPD weekends.
The practitioner relied on his now sound appreciation of the gravity of his conduct. He submitted the important question is whether the Tribunal can be satisfied he now has that appreciation rather than when and how he gained it.
The practitioner maintained there are many positive aspects to a "family style culture".[68] He contended the culture at the Firm was positive, as reflected in an anonymous culture survey conducted by the HR firm engaged by the practitioner and by the many statements of support sent to the Law Society written by administrative staff and solicitors who worked for the practitioner and for the Firm. The practitioner nevertheless accepted that a family like culture risks important ethical and professional boundaries not being observed and problems when they are crossed. He acknowledged his conduct giving rise to the charges "illustrates precisely such a transgression of boundaries".[69]
The practitioner acknowledged his desire for an unconventional, fun, non-stuffy and non-conservative law firm, and to allow staff to 'let off steam', clouded his judgement about what is acceptable and what is not. The practitioner pointed to his engagement of the HR firm and him taking steps to act on its recommendations arising from some received negative feedback as evidencing his appreciation of the misplaced judgement in his earlier approach and his efforts to address it.
By way of mitigation, the practitioner pointed to his regret and remorse for his actions, to his high level of co-operation with the Council regarding their investigation of his conduct, his acceptance that his conduct constitutes professional misconduct and that his entering into the statement of agreed facts avoided the need for the employee solicitor who first wrote to the Law Society to give evidence and/or be cross-examined.
The practitioner drew on EFA to submit that weight may be given to extra-curial punishment when determining an appropriate penalty. In that matter, in addition to the very significant financial increases in his insurance premiums, the respondent also suffered a high level of public notoriety and humiliation (notwithstanding non-publication orders); a four-year period of anxiety while investigation into his conduct occurred; further anxiety subsequent to the NSW Bar Council filing its appeal; severe impacts on his mental health; termination of his marriage; disruption to his family; significant quantifiable costs resulting from the variation in the terms of his professional indemnity insurance with premiums that "dwarfed"[70] the maximum fine the Court could impose; and "unquantifiable but real and significant impact on the respondent's practice".[71]
In this matter, the practitioner pointed to the costs he paid personally for engagement of the HR firm, the cost of personal workplace training incurred voluntarily in response to his conduct and his recognition that personal remedial action was required.
As detailed in the affidavit of Ms Zheng, the practitioner also relied on his successful establishment of the Firm; its engagement of more than 20 people; and his extensive financial contributions to foundations and charities of different kinds that help disadvantaged young people.
The practitioner submitted a public reprimand will itself represent a significant penalty consequent on it having a detrimental effect on his reputation, professional interests, and business interests. The practitioner drew on a decision of the Tribunal in Council of the Law Society of the Australian Capital Territory v LP202103 (Jeffrey Silk) in which the Tribunal said -

[45]

The practitioner submitted that to be the subject of this proceeding and all it has entailed has itself had a deterrent effect. The publication of the Tribunal's decision will also act as an important deterrent to practitioners who might not appreciate the seriousness of conduct of this kind and (in that way) publication will be protective of the reputation of the profession.
The practitioner noted the maximum fine the Tribunal is able to impose is $75,000.[73] The practitioner submitted the Council's proposed penalty of $50,000 would appear to place the practitioner's conduct in the high range of seriousness of professional misconduct which is the more serious category of misconduct. The practitioner submitted his conduct should not be so regarded, and that to impose a fine of $50,000 would not "maintain a reasonable relationship between the theoretical maximum and the final penalty imposed".[74]
The practitioner acknowledged the fine should not be nominal or minimal, but a fine in the range of $15,000 - $25,000 would still be a substantial fine and sufficient to achieve the protective purpose of the penalty whilst also maintaining a reasonable relationship with the statutory maximum.
The practitioner noted, properly, that use of other cases for determining penalty by analogy should occur with great caution because each case turns on its own facts and circumstances including the time the orders were made. The practitioner also noted important points of difference between this case and the seemingly analogous cases upon which the Council relied.
Referring to EFA, the practitioner submitted the Court's comments about how it would have imposed a substantial fine, but for the barrister's consequential insurance position, must be understood in the context of the case, particularly that the practitioner was found guilty of unsatisfactory professional conduct, not professional misconduct, and that the former attracts a much lesser maximum fine.
Referring to Respondent AC and Charkham, the practitioner submitted both cases are of minimal utility because of the differences in the disciplinary regimes between the UK and the ACT and Australia generally. In particular, he noted the Solicitors Act 1976 (UK) places a higher emphasis on punishment of the solicitor than protection of the reputation of the profession.[75] The practitioner also noted the UK Solicitors Disciplinary Board imposes sanctions by reference to an instrument which classifies conduct by severity and imposes penalties by reference to that classification. Such a system is not present under the LP Act or in Australia generally.
Whilst not stepping away from his primary submission that each case must be decided on its facts, the practitioner responded to the Council's reliance on other cases by relying on one of his own. He referred to the Queensland Civil and Administrative Tribunal (QCAT)'s decision in Legal Services Commissioner v Nguyen (Nguyen)[76] in which the subject barrister, Mr Nguyen, attended Court with a legal secretary of his instructing solicitor. Within the Court precinct, Mr Nguyen made an advance on the secretary which resulted in criminal charges of sexual assault. In subsequent criminal proceedings, he pleaded guilty to two counts of sexual assault. On appeal to the Queensland District Court, Mr Nguyen was fined $2,000 with no conviction recorded. In subsequent discipline proceedings, the Queensland Legal Services Commissioner submitted the conduct constituted professional misconduct (which Mr Nguyen accepted) and sought a fine of $30,000 - $40,000. Mr Nguyen submitted a fine in the order of $5000 - $10,000 should be imposed. QCAT imposed a fine of $20,000, ordered Mr Nguyen be publicly reprimanded and ordered him pay the Commissioner's costs.
In this proceeding, the practitioner relied on the differences, rather than the similarities, between the Nguyen case and this case. Here, he pointed out, there is no suggestion of sexual harassment let alone sexual assault. He submitted it would be a "peculiar result"[77] were he to be penalised by way of a fine for an amount more than twice that of a barrister who sexually assaulted a legal secretary.

[48]

Determinative of characterisation of the practitioner's conduct as professional misconduct, in my view, is his position of seniority and authority within the Firm which carried higher levels of accountability and responsibility than might be expected of others. In practical terms, as the practitioner appropriately acknowledged, in all probability none of the conduct giving rise to the charges or the acquiescence of others in that conduct would have occurred but for the practitioner's encouragement and support for it. He led by example to the detriment of all concerned.
As the practitioner acknowledged subsequent to providing his First Response, conduct of the kind that occurred should not be characterised as harmless, consensual, ribald frivolity however much it might have been seen that way at the time. Standards of behaviour are not an end in themselves. Rather, they serve important professional and practical purposes. As this case demonstrated, however unintentionally, sometimes people get hurt consequent upon behaviour of this kind.
Then there is the question of reputation. The orderly conduct of our community depends on respect for the rule of law. Legal practitioners play a vital and integral role in upholding and maintaining that respect. By extension, the community's respect for legal practitioners is integral to their respect for the law and the rule of law. Conversely, practitioners who behave in a way that brings community disrespect upon themselves risk consequential disrespect for the law. It is not a matter of morals or prudishness. It is about the professional obligation on a legal practitioner, objectively judged, to behave in a way consistent with the kind of behaviour the community expects and respects from a legal practitioner. The practitioner manifestly failed to behave in such a way.
I agree with the parties' position that a public reprimand is necessary in the interests of the profession and in the public interest. As the practitioner appropriately acknowledged, the focus should be on "disincentivising future behaviour"[80] and deterring other practitioners from engaging in similar behaviour.
I accept the practitioner's submission that a public reprimand, and in particular the publication of a decision naming the practitioner and identifying his conduct, will be a significant deterrent. As the practitioner put it:

[50]

I agree too with the practitioner's submission that "merely having a reprimand"[82] is not sufficient, however much the reprimand and everything leading up to it may deter the practitioner and others from engaging in similar conduct. For many legal practitioners, reputation is everything but there is a risk the community might see it otherwise. Significant practical consequence is necessary in addition to condemnation. Indeed, as the practitioner acknowledged,[83] a modest fine might be seen by the community as reflecting modest misconduct.
When considering what amount of fine should be imposed, the most important consideration is the function of the penalty: to protect the reputation of the profession, not to punish the practitioner even if punishment is incidental to the primary purpose. In this respect, the outcome in EFA is telling. The Court of Appeal accepted the Council's submission that "severe condemnation is not achieved by a mere reprimand ... more is required"[84] but 'more' was suffered. The Court was not persuaded the tribunal below erred by not imposing a fine of any amount after noting the very severe financial and personal loss and damage the barrister had suffered and would continue to suffer as a consequence of his conduct.
In my view, so too in this case albeit not to such a degree. The practitioner has been the subject of this disciplinary process for, now, several years. I am satisfied the disciplinary process has caused him significant stress, cost, time and embarrassment. Further embarrassment will follow from the public reprimand and publication of these reasons outlining the practitioner's conduct and his name as the person who engaged in the conduct. Further significant cost will follow from his obligation to pay the Council's costs of this proceeding.
In light of these significant adverse consequences, I am satisfied the practitioner is very unlikely to engage again in such conduct. Other practitioners (with knowledge of the consequences that followed for the practitioner or later learn about those consequences) are also unlikely to engage in similar conduct. In other words, in many ways it can be said protection of the reputation of the profession has been achieved to the extent possible. The fine and its quantum is only to mark the seriousness of the misconduct.
I also gave consideration to the nature and seriousness of the misconduct. As the practitioner pointed out, the behaviour was wholly inappropriate, but it did not involve sexual harassment or, worse, sexual assault.
I reject the Council's submission that the practitioner's conduct was "markedly more serious" than that in EFA. In my view, the highly offensive behaviour of the barrister towards a female assistant floor clerk who was previously unknown to him was significantly worse than the self-deprecating behaviour of the practitioner in this case.
The conduct of the barrister in Nguyen was also markedly more serious than that of the practitioner in this case. Inappropriate bawdy behaviour during a work function is wholly different from sexual assault. I accept the practitioner's submission that it would be incongruous for the barrister in the Nguyen case to be fined $20,000 yet the practitioner in this case to be fined $50,000 however much cases must be decided on their individual facts and circumstances.
In my view, the decision in Metaxas has no material relevance for the purpose of quantifying an appropriate fine. To mislead a court, carelessly or otherwise, has no factual similarity to what occurred in this case. Indeed, as the Court of Appeal said in Metaxas:

[52]

Likewise, in my view the decision in Moulton has little relevance. That case concerned a solicitor who borrowed money from his clients contrary to his professional obligations. In assessing the seriousness of the conduct, the Solicitors' Statutory Committee took into account that the loans were repaid and no client suffered a loss. Consequentially, it imposed a more lenient penalty. The Court of Appeal allowed an appeal by the NSW Law Society, accepting the conduct must be assessed at the time it occurred, loss or no loss. Nothing turns on that statement of principle. The practitioner accepts his conduct must be assessed by reference to what occurred at the time it occurred. Later consequence, for better or worse or neither, is not part of either party's case.
Turning to the English decisions, Respondent AC and Charkham, I agree with the practitioner that their use as comparators should be approached with considerable caution. The decisions are from a different legal system and involved different legal principles. Also, to the extent they have any comparative value arising from the somewhat comparable circumstances, the fines should be understood by reference to the 'buying power' of the money in the jurisdiction. I do not agree the fines should be understood as equating to fines of $43,000 or $56,000, as useful comparators, when determining an appropriate fine in this case.
Charkham is also materially different in that the behaviour in that case involving a racially unacceptable joke and unwanted touching of a woman in a sexually sensitive area was more serious than the practitioner's behaviour in this case.
I do not accept the Council's submission that the practitioner's payments to the HR firm and for personal guidance regarding his behaviour are irrelevant. True, the purpose of the fine and its quantification is to mark out the seriousness of the conduct but that, in turn, is for the purpose of deterring future similar conduct and to protect the reputation of the profession. In my view, the practitioner's engagement of the HR firm (at his own cost) to provide independent guidance about appropriate behaviour is therefore relevant. It is not so much the quantum that is relevant but the purpose of the payments. Indeed, it is implicit from the Council's acknowledgement that the Tribunal could have ordered the practitioner to seek advice from a human resources firm[86] about cultural change, had this not already occurred, that the engagement is relevant.
The practitioner's reliance on his successful establishment of the Firm and his financial contributions to help disadvantaged young people was unpersuasive. In my view, factors of this kind count more for why the practitioner has a heightened obligation to behave in a way befitting a person of such standing rather than grounds for leniency in response to poor behaviour. Indeed, the foundations and charities who accepted money from the practitioner have an interest in him being and remaining a person of good reputation.
I also considered the question of insight. In light of all that has occurred, I am satisfied the practitioner appreciates that conduct of the kind he displayed over the CPD weekend is seen by others as unacceptable. I am also satisfied he has 'changed his ways'. The prospect of a re-occurrence is negligible. To the extent practicable, protection of the reputation of the profession from a repeat of the behaviour displayed has therefore been achieved.
Weighing these competing considerations, I consider a fine of $50,000 to be unduly punitive, especially having regard to the fines imposed in other cases to which the parties referred involving misconduct substantially more serious than the misconduct in this case. Nevertheless, as the practitioner acknowledged, a significant fine is necessary to mark out the seriousness of the misconduct. I have concluded a fine of $20,000 should be imposed. In my view, that sum reflects a reasonable balance between the competing considerations I have identified.

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LP 182022

At a glance

Court

Decision date

Source

Judgment (138 paragraphs)

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LP 182022 (Benjamin Aulich) (Occupational Discipline) [2024] ACAT 43 (26 June 2024)

Parties

Legislation Cited (2)

Cases Cited (1)

Cited By (1)