1. The ground of the complaint was that the Practitioner had failed to be open and frank in his dealings with the Society.

The grounds of the complaint were particularised thus:

The Practitioner represented to the Society that a personal relationship existed with the Client prior to his retainer by the Client as her solicitor in circumstances where a personal, and later a sexual, relationship did not develop until after the solicitor/client relationship and by so doing sought to diminish the perception of undue influence which the personal relationship may have upon the solicitor/client relationship.

The Practitioner represented to the Law Society that he understood he was acting in a pro-bono capacity for the Client in circumstances where he was aware that the matter was legally aided.

1. LP 6 of 2008 will be referred to as "the Client N Complaint".

1. By virtue of s 30 of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 (ACT) ('the Regulations') and because a hearing of the matter had not commenced prior to 14 February 2009, it is deemed to be an application for review by the ACT Civil and Administrative Tribunal ("the Tribunal") under s 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) ('the ACAT Act').

5A. In an amended application filed with the Legal Practitioners Disciplinary Tribunal on or about 18 June 2009 (LP 1 of 2009), the applicant Council complained that:

The Practitioner had breached either all or one or more of Rules 1.1, 1.2 and 39.1 of the Legal Profession (Solicitors) Rules 2007 in the course of acting for Ms [C] (his client) between June and October 2007 and his subsequent dealings with the Law Society in relation to the investigation of the complaint made by Ms [C].

1. The Society further contended that such breach or breaches amounted to professional misconduct or unsatisfactory professional conduct, justifying an order by the Tribunal. There were three grounds of the complaint.

The Practitioner had failed to treat his client fairly and in good faith and to act honestly, fairly and with competence and diligence in the service of his client.

The Practitioner had acted without instructions and, contrary to Client C's standing instructions in consenting to the restraining order obtained by Client C in the Magistrates Court being set aside by the Supreme Court in substitution for an undertaking.

The second ground of the complaint was that the Practitioner had failed to be open and frank in his dealings with the Law Society. It was particularised thus:

The Practitioner represented to the Law Society that Client C was present at all times in court during the hearing of the appeal by Higgins CJ and gave the Practitioner specific instructions to consent to the orders which were made in circumstances where Client C was not present and gave no such instructions.

The third ground was that the Practitioner had improperly attempted to interfere with a potential witness. It was particularised thus:

On or about 2 April 2009, at a time when DC, a fellow practitioner had to the knowledge of the Practitioner, provided to the Law Society a statement concerning the matters the subject of the first ground of the Complaint, and was proceeding to prepare and swear an affidavit to be used in these proceedings in relation to the first ground, the Practitioner improperly attempted to intimidate, pressure or dissuade DC from giving his evidence in these proceedings or from adhering to the evidence appearing in his statement by:

(b) advising DC that he had obtained a statement from DC's client in which she accused DC of appearing in court on 14 September 2007 without instructions; and

(c) advising DC that he was considering lodging a statement with the Law Society and that he, the Practitioner, wanted to pre-warn DC about his conduct because the matter would eventually come out in the hearing.

1. LP 1 of 2009 will be referred to as the "Client C Complaint."

1. Rules 1.1, 1.2 and 39.1 of the Legal Profession (Solicitors) Rules 2007 (ACT) provide respectively:

1.1 A practitioner should treat his or her client fairly and in good faith, giving due regard to the client's position and dependence upon the practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a practitioner.

1.2 A practitioner must act honestly, fairly, and with competence and diligence in the service of a client, and should accept instructions, and a retainer to act for a client, only when the practitioner can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness

39.1 Subject to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society.

1. Rules 1.1 and 1.2 are important duties owed by a legal practitioner to his or her client. The recognition of those duties is fundamental to a legal practitioner's awareness of professional responsibility. It is equally important that a legal practitioner's awareness should extend to the precepts of honesty or fair dealing which guide the legal practitioner's performance of those duties.

1. Rule 39.1 relates to the response which should be made by a legal practitioner to an investigation into his or her professional conduct. A legal practitioner has an obligation to assist an enquiry into his or her own conduct, rather than adopting a stance which would appertain to adversarial criminal litigation. The obligation to inform and assist is regarded as resting upon a legal practitioner whose conduct is the subject of enquiry.[2]

1. The standard of proof to be applied to these proceedings to determine questions of professional misconduct is the civil standard. That standard is however qualified to a significant degree in consideration of the gravity of the facts to be proved. The formulation of the standard of proof appropriate to grave questions affecting personal conduct expressed in Briginshaw v Briginshaw[3] have been accepted by the courts as properly applicable to the standard of proof required in disciplinary proceedings.[4]

1. Rich J's test of "comfortable satisfaction"[5] provides a succinct description of the standard to be applied in such cases. Proof beyond reasonable doubt is not required; but the standard requires more than a mere balancing of the scales. The evidence must be weighed, according to the gravity of the facts to be proved, to the extent that a conclusion is reached about those facts with a feeling of comfortable satisfaction that it is just and correct.

1. The jurisdiction exercised by the Tribunal is protective and not punitive in nature. It is protective of the profession and its standards and, at the same time, protective of the public interest.

1. In relation to both complaints, the Practitioner, despite having filed affidavits sworn by him, chose not to give affidavit evidence in the proceedings, or to submit himself to cross-examination. Additionally, with the exception of the evidence led from the Practitioner's three colleagues and DC's client, none of the affidavits of the remaining witnesses were read and none of those witnesses were called. In respect of both the Practitioner and the other witnesses in his case, no evidence was lead to explain his failure to give evidence or the failure to call the remaining witnesses.

1. The principles were clearly and conveniently set out by Menzies J:[7]

In my opinion a proper direction in the circumstances should have made three things clear:

(i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.

1. Mr Beaumont of Counsel, who appeared on behalf of the Society, submitted that the Tribunal must deal, if it becomes necessary, with the Practitioner's failure, despite having filed affidavits, to give affidavit evidence or to submit himself to cross-examination.

1. He submits that the evidence in relation to each of the charges is so strong that the Tribunal would be comfortably satisfied[8] that they are proven without the strong Jones v Dunkel inference which, he submits, necessarily arises from the Practitioner's failure to give evidence.

1. In his submission, a Jones v Dunkel inference may arise from the failure of a party to call a witness whose evidence might be expected to throw light on an issue in respect of which evidence has been given of facts requiring an answer, where the witness is in the camp of that party.[9]

1. Secondly, he submitted that the inference becomes stronger the closer the witness is to the party. Where, as in this case, the witness is in fact the party, the inference is at its strongest, particularly where there was compelling evidence on each of the grounds requiring an explanation by the Practitioner and, in fact, none was forthcoming.[10]

1. Thirdly, Mr Beaumont submitted that the rule in Jones v Dunkel had particular significance in proceedings such as these given the obligation of a legal practitioner of frankness, candour, and assistance which the Practitioner owed this Tribunal. There was, he said, an expectation that where evidence of facts requiring an answer was given, the legal practitioner will provide that explanation (if there is one) on oath in the witness box and subject themselves to cross-examination.

1. Fourthly, he submitted that the Practitioner's failure to do so was both irregular and invited two related, but separate, inferences:

• The first was that his evidence would not have assisted his case, so that evidence that might have been contradicted by him could more readily be accepted given his failure to give evidence.

• Secondly, when an inference is open on the facts from direct evidence, it may more readily be drawn from the Practitioner's failure to give evidence disputing it.

1. Mr Beaumont submitted that these propositions are supported by a long line of authority including Jones v Dunkel;[11] Re Vernon; ex parte Law Society of NSW[12] ("Re Veron"); NSW Bar Association v Meakes[13]("Meakes") and Law Society of NSW v Green[14] ("Green").

1. He further argued that in Council of the NSW Bar Association v Power[15] ("Power") the NSW Court of Appeal referred to, but did not decide, the possibility that some relaxation of these principles may be appropriate if disciplinary proceedings were seen to be as civil penalty proceedings.

1. In any event, the Court of Appeal did not overrule this long line of authority referred to above and the cases referred therein remain fully applicable. Hodgson JA in Power was inclined, if anything, to regard disciplinary proceedings as "overwhelmingly protective" and not as civil-penalty proceedings. However, he did not have to decide the point.[16]

1. Finally, Mr Beaumont submitted that there were prior authoritative appellate cases not referred to in Power squarely holding that a Jones v Dunkel inference may be drawn to the full extent even in civil-penalty proceedings.[17]

1. Mr Archer of Counsel who appeared on behalf of the Practitioner submitted that this Tribunal must exercise great care in relation to the Jones v Dunkel principle. He said it is an alluring and often misunderstood principle and if is to be applied at all, he said, it should be applied with care and subtlety rather than with a very broad brush.[18]

1. He submitted that the principle may be modified according to the nature of the proceedings involved, as in criminal proceedings where the effect of the rule has been substantially limited to the extent that cases where comment about the way in which the jury might use an accused's failure to testify will "be both rare and exceptional".[19]

1. He submitted that there is presently some doubt as to the applicability of the Jones v Dunkel principle in disciplinary proceedings. He said that the view taken by the NSW Court of Appeal in Power was that the principles did apply irrespective of whether the proceedings were viewed as proceedings for a civil penalty.[20] Mr Archer submitted that the Tribunal must exercise considerable care in relation to applying Green, Meakes and Re Vernon to the facts of this case.

1. Mr Archer submitted that in Power the court observed that, at least in relation to Coe v NSW Bar Association ("Coe")[21] and Meakes, that what was said in those cases was probably correct in its application to the facts of those cases, although it might have been expressed too sweepingly if it was the case that Rich v ASIC ("Rich)[22] applied to professional disciplinary proceedings.[23]

1. He submitted that Green was an example of the application of the principle in Jones v Dunkel. In Green the issue for determination was the construction of a passage of tape-recorded conversation between the legal practitioner and a police officer. Direct evidence of the conversation was available and its terms suggested a corrupt purpose. In the absence of explanation from the practitioner, the Tribunal was entitled to construe the direct evidence according to its terms and it did so.[24]

1. Meakes, Mr Archer submitted, was no more than a factually specific application of the principles. The facts of that case, he said, were different to this case. The practitioner faced allegations of overcharging and no material was offered by the practitioner in answer to the charge. The only material available to the Tribunal was consistent with the detail of the complaints.

1. Mr Archer said that in this case there was affirmative evidence in respect of all grounds of the complaints as to the circumstances of the Practitioner's conduct and that there were no facts peculiarly within his knowledge of the type involved in Weissensteiner v The Queen.[25] Like Mr Meakes, the Practitioner was not obliged to give evidence. That being the case no issue as to the application of the Jones v Dunkel principle should arise in this case.

1. In reply, Mr Beaumont submitted that Power did not disturb a long line of prior authority that a Jones v Dunkel inference was available without qualification in disciplinary proceedings.[26] He argued that all that the Court of Appeal had said in Power was that if a Jones v Dunkel inference of the kind identified was available in a criminal trial then it must a fortiori be available to a court in civil proceedings such as the present_._[27]

1. He submitted that the use of the phrase "a fortiori" confirmed that the limitation on Jones v Dunkel reasoning apposite in criminal trials was not applicable in disciplinary proceedings. He said that the concluding words "...if it is the case that Rich applies..." showed that the court did not decide that Rich did apply; the court clearly preferred the view that Rich did not apply but did not need to decide this point. In any event, he said, there was appellate authority to which Power did not refer squarely, holding that a Jones v Dunkel inference may be drawn to the full extent even in civil penalty proceedings.[28]

1. The Tribunal is persuaded by Mr Beaumont's submissions in this respect. Moreover, this Tribunal is bound by the long line of authority to which Mr Beaumont referred.

1. The Practitioner represented to the Society that a personal relationship existed with the Client prior to his retainer by the Client as her solicitor in circumstances where a personal, and later a sexual, relationship did not develop until after the solicitor/client relationship and by so doing sought to diminish the perception of undue influence which the personal relationship may have upon the solicitor/client relationship.

1. Client N first complained to the applicant Society on or about 29 October 2007. She complained that, following her retaining the Practitioner in May 2007 to act for her in her family law/child custody matters, a personal relationship developed between them in July 2007. That personal relationship which Client N said had commenced following celebratory drinks to mark the occasion of her filing for divorce soon developed into a sexual relationship which continued for the next two to three months.

1. Client N had assumed that the relationship was a "committed personal relationship" until early October when she discovered that the Practitioner had been involved in another relationship with another woman for five years. Suffice to say, that the relationship with Client N soured and the Practitioner's retainer was then terminated. Relevantly, she complained that, whilst in the relationship, she had not appreciated the power imbalance between them, but that she was now acutely aware of how much power he had over her. [29]

1. In response to the complaint, the Practitioner maintained that he and Client N had entered into a personal relationship approximately one month before her family law matter was transferred to him. In other words, it wasn't a case of a solicitor/client relationship preceding a personal relationship; it was a case of a solicitor acting for a person with whom there already existed a personal relationship.[30]

1. The Practitioner repeated this assertion.[31] Ground 1 of the Client N complaint is not concerned with the relationship itself; rather it is concerned with the Practitioner's response as it relates to his duty of frankness and candour in his dealings, in these circumstances, with the applicant Society.

1. It was the Society's case that the Practitioner falsely represented to the Society that this personal relationship pre-dated the retainer, so as to diminish the perception of undue influence.

1. At the commencement of these proceedings, Mr Archer took what was essentially a pleading point, but which went to the essence of the complaint made against the Practitioner in ground one of the complaint. He submitted that, as the ground had been further particularised in correspondence, it was unclear what the charge now really was. He said that his client had never represented or asserted to the Society that he was in a sexual relationship with the complainant prior to the retainer. All his client had asserted was that, prior to the retainer, he had been in a personal relationship with Client N.

1. Mr Archer argued that the subsequent particulars provided might lead the Tribunal to associate or equate an assertion by the Practitioner that he had been in a personal relationship with Client N which, as a matter of language, was correct with an assertion that he was in a sexual relationship with her prior to the retainer, which, as a matter of language, was not correct. And as it was the nature of representations made to the Society that were relevant to the charge, it was not clear to Practitioner, he submitted, what issue or case the Practitioner had to meet.

1. Bearing in mind the nature of all of the material that was filed on behalf of the Practitioner, this argued confusion on the Practitioner's part as to the case he was required to meet in respect of the first ground of the complaint is difficult to see. The Tribunal accepts what Mr Beaumont submitted in relation to what was, in substance, a rather belated request for particulars; that the request had about it an "air of complete unreality".[32] The Tribunal finds that the Practitioner and his legal advisers must be understood to have comprehended ground one of the charge well enough after the three sets of particulars provided[33] to have filed all of the affidavit evidence in support of the Practitioner's case namely, that the personal relationship, which term appears to have been clearly understood by those who prepared the Practitioner's evidence to have meant an intimate personal (sexual) relationship, began about one month prior to the commencement of the retainer and not, as the complainant had alleged, after the retainer.

1. Client N gave evidence. She also swore three affidavits in these proceedings, the first one having been sworn on 12 February 2009. In that affidavit Client N says that she met the Practitioner outside the court when she was present to help support her sister Client C in proceedings before the court in which Client C was involved. Client N and the Practitioner discussed her (Client N's) family law/child custody case; so much is common ground.[34]

1. However, while Client N always maintained that she met the Practitioner at the court during the course of her sister's protection-order matter and linked those events, she initially alleged that the date was sometime in April 2007. In fact, the only time that her sister's matter was in court at about that time was on 7 May 2007.

1. On that occasion the Practitioner handed Client N his business card and a few days later she telephoned his office and made an appointment to see him, notwithstanding the fact that she was already represented. She attended upon the Practitioner at his office on 9 May 2007.[35] The Practitioner impressed Client N as being competent.[36] She says that the Practitioner agreed to take over her matter and, on 21 May 2007, her file was transferred to him.[37] The Practitioner also took on Client N's sister, Client C's, matter.[38]

1. The relationship, whilst professional, began developing some personal characteristics.[39] However, in July 2007 the personal relationship that then existed moved to a new level of intensity when the Practitioner took Client N out to dinner to celebrate the institution of her divorce proceedings. The Practitioner told Client N that he wished to have a relationship with her and the evening ended with them embracing and kissing each other.[40]

1. The relationship further intensified over the next couple of weeks with regular dinners and sexual activity ensued in early August 2007. It continued until early October 2007 when Client N became suspicious about the Practitioner's movements and discovered that the Practitioner was involved in a relationship with another woman.[41] The relationship between Client N and the Practitioner soured and the Practitioner's retainer was terminated.

1. Client N's second affidavit was sworn on 17 June 2009. In that affidavit, Client N corrects the date of meeting the Practitioner, which she had always linked with her sister's court date, to 7 May 2007.

1. Her third affidavit was sworn on 22 September 2009. In that affidavit Client N dealt with the allegations made by a number of witnesses who, it was anticipated, were to be called to give evidence in the Practitioner's case. The tenor of that evidence was that various people had seen her in the company of the Practitioner in early April 2007, holding hands and that she had been introduced to them as the Practitioner's girlfriend. The Tribunal will analyse this evidence in some detail shortly.

1. Client N continued in her third affidavit, in answer to some of the matters alleged by the Practitioner in correspondence to the Society, to flesh out what had transpired on their first meeting of about a half hour's duration in the Practitioner's office on 9 May 2007 in relation to Client N's child custody matter. The Practitioner spoke to her at that meeting and then subsequently by telephone about the need to obtain a family report to alter the transfer arrangements for access so that she did not have to see her estranged husband on transfer of the children and to enquire about drug testing him,[42] because "...any drugs where there are children are very serious for custody".[43] The Practitioner advised Client N that these were things that she should do.[44]

1. Client N also deposes to having paid $90.00 Legal Aid contribution to the Practitioner[45] which was something that the Practitioner had asserted to the Legal Aid Office had not happened.[46] Relevantly, Client N also dates the dinner with the Practitioner when their personal relationship deepened by annexing a copy of her application for a divorce. It was filed on 3 July 2007.[47]

1. The relationship came to an end when Client N, having had some suspicions regarding the Practitioner's whereabouts and his fidelity, discovered that he had been in a relationship with another woman for some time. She terminated the Practitioner's retainer on 23 October 2007.[48]

1. Unlike her sister, Client N, Client C was not mistaken about the date that she met the Practitioner. She has always maintained that she first met him on 7 May 2007 at the Magistrates Court in the company of her sister Client N when the Practitioner introduced himself to her and, while there, the Practitioner and Client N engaged in conversation.[49] The Practitioner never challenged Client C's assertion in this respect which she made on 19 November 2007[50] and her affidavit evidence to this effect was not answered. Client C was cross-examined on this point and her evidence on this issue remained unshaken.

1. Client N was cross-examined comprehensively. Overall her evidence was consistent and credible and was not seriously challenged. Significantly, Client N's evidence was corroborated by objective evidence, being the Vodafone records[51] which were not produced until the hearing was well advanced. Therefore, Client N did not have those records to assist her when her affidavit evidence was prepared and nor did she have access to them while giving her oral evidence.

1. It was put to Client N by Mr Archer that she had never met the Practitioner prior to the day that she met him in the precincts of the court. She agreed with that proposition.[52]

1. As to when the personal relationship commenced, it was submitted by Mr Archer that the evidence was unclear. The Tribunal is not persuaded by that submission. It is common ground that the parties met in the precincts of the court when Client N accompanied her sister to give support to her when her matter was before the court. Client N was quite vague about what transpired on that day other than her recollection of meeting and talking to the Practitioner. [53] She didn't know much about the case, how long it took or what happened on that day. However, in the circumstances, her vague recollection about that day is not surprising. Client N gave evidence that she wasn't very interested in her sister's case and didn't pay much attention to what her sister might have told her about it.[54]

1. Client N was cross-examined in relation to the circumstances in which she finally ascertained the correct date of first meeting the Practitioner. The Tribunal finds nothing unusual about the manner in which Client N, with the assistance of her sister and on the advice of the Society's solicitor, ascertained the correct date on which Client C's protection-order matter had been before the Magistrates Court.[55] That date was 7 May 2007. Client N's evidence in this respect was unchallenged. Moreover, in her letter of complaint to the Law Society, Client C put the date of that meeting at 7 May 2007.[56] She deposed to that fact in her affidavit.[57] The Practitioner never took issue with that assertion. That evidence stands unchallenged.

1. The Practitioner asserted[58] that he had first met Client N approximately one month before he took over her family law matter which, undisputedly, was on 21 May 2007 and that during this time he was seeing Client N two or three times a week. The approximate date of the meeting was therefore 21 April 2007. The Practitioner was overseas on holiday between 25 April and 1 May 2007.

1. The telephone records produced on subpoena reveal that both Client N and the Practitioner were regularly using their mobile telephones throughout April 2007, without having made a single call to each other. They reveal that Client N did not make a telephone call to the Practitioner's mobile telephone until 21 May 2007, the day that her matter was transferred to the Practitioner and thereafter in May she made 5 calls to him. The records reveal that, during April 2007 the Practitioner made no calls at all in April 2007 to Client N's mobile telephone and, during May 2007 he made a total of 6 calls to Client N's mobile telephone.

1. It was submitted by Mr Archer that Client N was not only very unclear about when the personal relationship commenced, but was also unclear about when the "boyfriend/girlfriend" aspects of their personal relationship were in place. Client N admitted to having sex with the Practitioner in his office. This she said occurred after they were in a "relationship".[59] She gave evidence that the "relationship" commenced on the evening that the two went out to dinner to celebrate Client N instituting her divorce proceedings when the Practitioner told her that he wanted to have a relationship with her. That evening ended with the couple embracing and kissing.[60] That evening was the evening of 3 July 2007. Her evidence in this respect was not challenged.

1. Client N then said in her affidavit that the sexual aspect of their personal relationship commenced some two weeks later, when, after having dinner with the Practitioner they returned to his office and had sex. When asked what the purpose of that visit to his office was, Client N responded that it was because the Practitioner was her boyfriend. She had been to his office on previous occasions.[61] When asked if she was using the term "boyfriend" to describe the relationship before sex, Client N, after some hesitation, born, in the Tribunal's view out of unsophisticated embarrassment, not out of evasiveness, answered:

...So it's difficult to define within the two weeks whether he's - my boyfriend or not. We were entered into a sort of relationship at that time, so I was assuming he was my boyfriend...

1. In the Tribunal's view Client N's evidence in this respect establishes this: after the dinner on the evening of on or about 3 July 2007 where the Practitioner proposed a relationship and which ended in them kissing and embracing, Client N assumed that they were now in a "relationship"[62] and that the Practitioner was her "boyfriend" and that is why some two weeks later following another dinner she went back to his office and engaged in sex with him. Upon a careful analysis of her evidence, Client N was not at all unclear about when the relationship between them had developed into the boyfriend/girlfriend relationship. It started at the celebratory dinner when the Practitioner declared his desire to have a relationship with her and she responded to his declaration by engaging in kissing and embracing.

1. Further, as to her alleged uncertainty about this aspect of the relationship as submitted by Mr Archer, Mr Archer pointed to a concession that he submits that Client N made in relation to being introduced as the Practitioner's girlfriend to MR, another legal practitioner and a friend and colleague of the Practitioner, in the first week of June 2007.

You were introduced to him as [The Practitioner]'s girlfriend? - M'mmm

And when you say around July, but it have been slightly before the start of the month of July? - Might have been.

Might it have been in June, the first week of June? - Might have been.

Are you sure about that? - Yes. I think it was July because it was after I filed my divorce, which is early of July. So it would have been probably the middle of July.

Are you now able to say the middle of July? - I think so. It was about two weeks after my - I filed my divorce, so I'd say, yes, about the middle of July.

Now, were you holding hands when you were introduced as his girlfriend? I am talking about

At the time you were introduced to [MR] as his girlfriend as [The Practitioner]'s girlfriend, were you holding hands? - Yes.

So you have a recollection of that, -- Mmm.[63]

1. When Client N's evidence on this issue is considered in its totality in this context, the submission that she conceded a much earlier meeting with MR is not made out.

1. Mr Archer submitted, in essence that the telephone record evidence was incomplete and that, for that reason, by inference, the evidence contained in those records should be treated cautiously. He submitted that the records relating to the Practitioner's land line were not before the Tribunal and nor were Client N's telephone number/s from her work place where she worked shift work as a personal carer in an aged care facility. He submitted that her home land line and numbers associated with her son's telephone services were not the subject of evidence at least as far as outgoing calls were associated. He submitted that TXT messages records were not available.

1. Dealing with the last point first, it is not clear what discrete records of TXT messaging Client N's service provider might have produced that might have provided any useful evidence. In any event it was Client N's evidence that TXT messaging was rare and brief in the context of their telecommunications.[64] The evidence was that the Practitioner did not use a land line and relied upon his mobile service.[65] It was put to Client N in cross-examination that she had used her son's mobile service when her own was out of credit.[66] She denied this and no evidence was led by the Practitioner to contradict her. Bearing in mind the nature of Client N's employment (she was a semi or unskilled personal carer in an aged care facility), the Tribunal is doubtful that any telephone records from her employer would have revealed much, if any relevant evidence, even though Client N readily conceded that she made some calls from her work place to the Practitioner.[67]

1. Moreover, if indeed there was evidence of the nature Mr Archer says was missing in the totality of the telecommunications records that might have assisted the Practitioner's case, then presumably, there was nothing preventing the Practitioner from putting that evidence before the Tribunal. In these circumstances, the fact of its absence cannot be said to somehow weaken the other telecommunications evidence that was put before the Tribunal.

1. Further, it is difficult to draw a conclusion that, prior to 9 May 2007, the Practitioner and Client N were conducting the telephonic element of their relationship exclusively on land lines or other people's mobile telephone services and that after 9 May 2007, for no apparent reason, the mode of their telecommunication relationship suddenly transformed itself and continued almost exclusively on their respective mobile services. A rather more obvious inference to be drawn from the telecommunications evidence is that there was no telephonic contact between the Practitioner and Client N before 9 May 2007.

1. The Practitioner produced no evidence at all to explain to the Tribunal how it was that, if, as the Practitioner asserted, he and Client N were indeed in a personal relationship from early or mid April and that the records reveal that they were both using their mobile telephones regularly, their mobile telephone records in fact revealed that not one call was made to each other in April 2007 whereas, in August 2007 they each made up to 70 calls in one month when their relationship was flourishing.

1. That evidence, while compelling is, of itself, not conclusive of the question of when the personal relationship between the Practitioner and Client N began; in other words, did it begin prior to the retainer as alleged by the Practitioner or afterwards, as asserted by Client N?

1. The unchallenged evidence of Client N and Client C (in this regard) is that they met the Practitioner in the precincts of the Magistrates Court when an aspect of Client C's restraining-orders matter was before the court. That discrete fact is not in dispute. The date of the first meeting is disputed with the Practitioner insisting that the date was in early April 2007. However, the objective evidence in that regard cannot be ignored. Client C's case was listed again on 26 April 2007 for the return of subpoena. The Practitioner was on holiday overseas on 26 April. The Bench sheet for the 26th reveals that there was no appearance by Client C on that day. There was an appearance by Mr L, solicitor who appeared for Ms A.[68] Neither Client C nor Client N was in court during April 2007 and both women's evidence that they were not in court during the month of April for any other reason was unshaken and credible.

1. It is not in dispute that the Practitioner and Client N met in his office on 9 May 2007. According to Client N, this meeting took place a few days after the two first met at the courts and was in early May.[69] Nor is it in dispute that the Practitioner's firm took over the conduct of Client N's Legal Aid file on 21 May 2007.

1. The objective evidence provided by the mobile telephone records provides support for Client N's version of events and, in particular, when the personal relationship between them might, more probably than not, have commenced. They reveal the following:

1. First, that in March and April 2007, there were no telephone calls made by the Practitioner to Client N or from Client N to the Practitioner on either of their respective mobile telephones.

1. Secondly, in May 2007, the Practitioner made 6 telephone calls from his mobile service to Client N's mobile telephone service beginning on the afternoon of 9 May 2007 when, it is not in dispute, Client N saw the Practitioner in his office at about 11am that morning[70] and ending on 28 May 2007. During the same time namely May 2007, Client N made 5 telephone calls from her mobile service to the mobile service of the Practitioner beginning on 21 May 2007 when her Legal Aid file was formally transferred to the Practitioner's employer[71] and ending on 30 May 2007.

1. Thirdly, in June 2007, the Practitioner made 10 calls from his mobile service to Client N's mobile telephone service beginning on 6 June 2007 and ending on 27 June 2007. During the same time namely June 2007, Client N made 8 telephone calls from her mobile service to the mobile service of the Practitioner.

1. Fourthly, in July 2007, the Practitioner made 23 calls from his mobile service to Client N's mobile telephone service beginning on 4 July 2007, the day after the alleged celebratory dinner and ending on 30 July 2007. During the same time namely July 2007, Client N made 18 telephone calls from her mobile service to the mobile service of the Practitioner beginning on 3 July 2007 which is the date Client N asserts that she and the Practitioner enjoyed the celebratory dinner and at which time she asserts the "relationship commenced" and ending on 31 July 2007.

1. Fifthly, in August 2007, the Practitioner made 71 calls from his mobile service to Client N's mobile telephone service beginning on 1 August 2007 and ending on 31 August 2007. During the same time namely August 2007, Client N made 73 telephone calls from her mobile service to the mobile service of the Practitioner beginning on 1 August 2007 and ending on 31 August 2007. This is when Client N asserted that she and the Practitioner were in a "committed personal relationship".

1. Sixthly, in September 2007, the Practitioner made 53 calls from his mobile service to Client N's mobile telephone service beginning on 1 September 2007 and ending on 29 September 2007. During the same time namely September 2007, Client N made 58 telephone calls from her mobile service to the mobile service of the Practitioner beginning on 1 September 2007 and ending on 30 September 2007.

1. Finally, in October 2007, the Practitioner made 14 calls from his mobile service to Client N's mobile telephone service beginning on 2 October 2007 and ending on 11 October 2007. During the same time namely October 2007, Client N made 1 telephone call on 2 October from her mobile service to the mobile service of the Practitioner which lasted for more than 21 minutes.[72] That was shortly before the time Client N says that she terminated the Practitioner's retainer. The Tribunal is persuaded that the mobile telephone records are consistent with Client N's version of events.

1. Against this objective evidence, is the evidence, given on oath and affirmation of three legal practitioners who were colleagues of, and conceded that they were friends of the Practitioner. They were Mr MF, Mr MR and Mr SJ. They were vigorously cross-examined. Of their evidence, Mr Beaumont submitted that there were some common features that, by implication, tended to weaken their evidence. They were, he submitted:

1. First, the fact that all three practitioners were purporting to give evidence about an inconsequential event occurring some two years prior to the time they were asked to recall it.

1. Secondly, the fact that none of the practitioners could point to any objective matter or event in their statements or in their affidavits confirming them which explained how it was that they could possibly recall the date of such an inconsequential event.

1. Thirdly, the fact that each of the practitioners despite this, volunteered, non-responsively in respect of at least one of them, an objective event which purported to explain why they were able to fix the date.

1. Fourthly, that fact that in all three cases, the objective event volunteered by the witnesses had no link with the meetings alleged. They were simply arbitrarily unrelated events.

1. Fifthly, and unsurprisingly, two of the three practitioners properly acknowledged that they could be mistaken. The third practitioner, Mr MF, refused to acknowledge the possibility of error and this points to unreliability.

1. On the other hand Mr Archer submitted that each practitioner gave evidence "impressively". It is not understood what he meant by this term. True it was that each of them was a legal practitioner and the demeanour of each might have been "impressive". Nonetheless, the Tribunal finds that weaknesses in their evidence remain.

1. A first meeting with Client N in the company of the Practitioner was, on any view of it, an inconsequential event. Yet each practitioner managed, two years after that inconsequential event, to fix its date by reference to some other unrelated and objectively speaking not particularly significant event when viewed in the context of the lives of busy legal practitioners.

1. The Tribunal is concerned at the confidence with which MF recalled with precision the time and circumstances of his first meeting of Client N in the company of the Practitioner. Despite the inherently inconsequential nature of the encounter he refused to countenance any possibility that he might have been mistaken. His responses to questions put to him in cross-examination and his demeanour were often arrogant[73] and dogmatic.[74] He was unwilling to make concessions in circumstances where it was probably reasonable to do so.[75]

1. He attempted to explain his confidence in fixing the date on the basis that his file and diary recorded that he transferred the conduct of Client N's son's criminal matter to the Practitioner, but he accepted that his diary did not also record the fact that he had met Client N.[76]

1. MF volunteered a purported reason for being so clear and indeed dogmatic, about his recollection of events.[77] However, his confidence in this respect was dealt a blow of sorts when he had to concede that it might have been a little later.[78] And even then, he refused to concede that, in the context of Client N's son's matter, he could be wrong and that it was possible that he was introduced to Client N as the Practitioner's girlfriend at a later time.[79]

1. Upon analysis of his evidence as well as having had the advantage of seeing and hearing him give his evidence in cross-examination, the Tribunal concludes that MF's evidence must be treated with caution.

1. MR in his statement asserted that he had been introduced to Client N "in or about" April 2007 as the Practitioner's girlfriend. He gave evidence that he had prepared his statement himself and wanted to be careful in his choice of words. He conceded that he had chosen those words very carefully and in a considered way for the sake of caution.[80] In cross-examination, he conceded that the first meeting was entirely unremarkable, for the most part.[81] He gave evidence that he saw them again on two subsequent and, by inference, unremarkable occasions.[82]

1. However, like MF before him, he asserted that he could exclude the possibility of having first met Client N later in July because of a "time post" that he recalled having sold a property in Brisbane at the time he asserted that he had first met Client N in the company of the Practitioner. He had gone back to his 2007 diary and confirmed the date of the sale and linked that with the date of the first meeting.[83]

1. MR struck the Tribunal as a very careful and cautious witness who had taken some trouble to prepare his statement. He was, on his own admission, a friend of the Practitioner and the Practitioner had approached him to confirm the matters set out in the statement almost two years after they had allegedly occurred.[84] On any view of it the "time post" asserted by MR for the first time during cross-examination was an important piece of evidence.

1. It is problematic that such an important and potentially corroborative piece of evidence was omitted from his statement which he had prepared in a careful and considered manner. MR was unable to explain in cross-examination why this potentially important evidence was not included in his statement. Indeed, he gave, in the circumstances, what the Tribunal regards as an unsatisfactory answer as follows:

I'll give you a third opportunity to answer my question, [MR]. Why didn't you include it in your statement? --- I compiled the statement, I decided not to.

That is not an answer is it [MR]?----Well, with respect, that's my answer.

That's the best evidence you can give?---Yes.[85]

1. Moreover, the Tribunal's view of the "time post" or link is that it was a fleeting and, in the scheme of things, a relatively speaking, inconsequential event happening over two years ago employed to recall another inconsequential event namely, the meeting for the first time of Client N in the company of the Practitioner.

1. As with the evidence of MF, MR's evidence must also be treated with a deal of caution.

1. SJ, like MF and MR, was a friend of the Practitioner. In cross-examination, he, too, volunteered at the hearing and for the first time a "time post" or significant event namely, his birthday as linking the time he asserted he first met Client N in the company of the Practitioner.[86] He, too, accepted that meeting Client N was not a significant event even though he did recall it occurring.[87] However, he quite properly accepted that, in the circumstances, he could be wrong about meeting her prior to his birthday on 1 May that year.[88]

In the circumstances, his evidence is of little or no weight.

1. The Tribunal is mindful that this charge involves a very serious allegation of misconduct namely that the Practitioner was untruthful in his dealings with the Society during the course of the Society's investigation of Client N's complaint. The charge, if proven may attract a severe sanction. The evidence must therefore be carefully weighed bearing in mind the gravity of the facts to be proved. The Tribunal must be comfortably satisfied that its finding on the charge is just and correct.

1. The evidence of Client N and Client C on this question was consistent, credible and relevantly unchallenged on cross-examination. On the other hand, the evidence of MF and MR raised serious concerns in relation to its reliability. In relation to SJ's evidence, the Tribunal found his evidence to be of little or no weight.

1. Observing their demeanour when doing so, the Tribunal finds that it prefers the evidence of Client N and Client C over the evidence of MF, MR and SJ.

1. Therefore, when one adds to the unshaken and credible testimony of Client N and Client C (in this respect), the undisputed objective facts:

• that Client N met the Practitioner at court while an aspect of Client C's matter was being dealt with;

• that she consulted him a few days later on 9 May 2007; and

• that on 21 May 2007 the Practitioner's firm took over her Legal Aid matter;

together with the incontrovertible and unanswerable objective evidence of the mobile telephone records which support Client N's version of events, the Tribunal finds that there are no deficiencies in the evidence in this respect. The Tribunal is comfortably satisfied that the Society has proved this charge without the need to draw inferences.

1. However, the Tribunal regards the failure of the Practitioner to, not only read his own affidavits filed in these proceedings, but not to read the affidavits of other witnesses, not call them and not subject himself to cross-examination seriously, worthy of criticism and inviting the drawing of a negative inference. The Tribunal would more readily draw the negative inference given the practitioner's obligation of frankness, candour and assistance which he owes the Tribunal.

1. True it is that in professional disciplinary hearings the onus of proving misconduct lies with the party bringing the charges and a practitioner is not required to give evidence. However there is an expectation that legal practitioners will enter the witness box to provide some explanation as to their conduct. As quoted by Meagher JA in Coe[89] :

In the circumstances where a prima facie [case] against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.

1. The Practitioner failed to explain at all, as only he could have how it was that he was conducting a personal relationship with Client N from early or even mid-April 2007 without a single mobile phone record being generated during April 2007 particularly bearing in mind the increasing frequency of telephone calls between them after May 2007.

1. The inescapable inference to be drawn from the mobile telephone records and the undisputed objective facts is that no relationship personal or otherwise existed between Client N and the Practitioner prior to 7 May 2007. The Practitioner's untested assertions contained in the various correspondence contained in the tender bundle deserve no weight and are given no weight.

1. The inference to be drawn from the facts that the Tribunal has found proved is that the Practitioner's evidence would not have assisted his case. This inference is therefore more readily drawn from his failure to give evidence disputing those facts.

1. The Tribunal finds that the Practitioner was untruthful with the applicant Society when he asserted on two occasions that a personal relationship pre-dated the retainer. There is therefore no answer from the Practitioner to the charge that he falsely represented as much to the applicant Society for the purpose of minimising the seriousness of his conduct.

Particular 2 of the Ground of the Client N Complaint

1. The Practitioner represented to the Law Society that he understood he was acting in a pro-bono capacity for the Client in circumstances where he was aware that the matter was legally aided.

1. There is no doubt that the representation was made and that it was false; so much is conceded by the practitioner. However, it was submitted that the false representations were made by the Practitioner because he felt embarrassed by what had occurred namely having a sexual relationship with a client and that the representations were designed to make him feel better rather than to mislead anyone as to a material fact. The Tribunal does not accept that submission and regards the false representation very seriously.

1. Client N said that the Practitioner never told her that he was conducting her family law matter on a pro bono basis.[90] Indeed there is no doubt that Client N paid the $90.00 contribution fee. She paid it in cash.[91]

1. In his letter to the Society of 12 November 2007, the Practitioner represented that Client N had not paid him the contribution fee and that at all times he was under the impression that he was acting for her on a pro bono basis.[92]The truth was that he knew at all times that Client N's matter was funded by Legal Aid.

• On 14 May, following the initial conference with the Practitioner on 9 May 2007, Client N wrote to Legal Aid requesting a transfer to the Practitioner.[93]

• On or about 15 May, Legal Aid spoke to Client N noting that the Practitioner's firm did not appear to be on the list of private legal practitioners who had told Legal Aid that they are willing to act for legally assisted people.[94]

• On 22 August 2007, the Practitioner wrote to Legal Aid giving Legal Aid an update in respect of Client N's matter.

• On 23 October 2007, the Practitioner ceased acting for Client N. He wrote to Legal Aid that day[95] advising Legal Aid that the client (Client N) had taken back her file and that the matter was substantially completed. He attached a tax invoice for his services for the full amount allowed to be charged being $1,650 pursuant to the grant of 21 May 2007. His bill was less the $90.00 contribution.

• The practitioner's fee was paid by Legal Aid on 23 October 2007.

1. It was only some six weeks later on 12 November 2007 that the Practitioner wrote to the Society asserting that he had acted pro bono for Client N. Bearing in mind the foregoing, it is difficult indeed to conclude that the Practitioner had forgotten or was confused about the grant of legal aid, the fact that he had rendered a bill and had been paid.

1. On the same day that the Practitioner wrote to the Society, he also wrote to Legal Aid making the same assertions. These false representations resulted in an immediate rebuke from Legal Aid.[96] Amongst other things the writer found the Practitioner's comments about acting in the matter on a pro bono basis ".....misleading and evasive."[97]

1. Two days after falsely representing to Legal Aid that he had acted on a pro bono basis, he wrote again to Legal Aid. He said that his previous communication (12 November) was "incorrect" and stating that it had always been his intention to act for Client N on that basis. Not wanting the Legal Aid Office, he said, to be out of pocket, bearing in mind its scarce funds, he advised that he would be personally repaying the whole grant of $1,815.00. He apologised for the confusion.

1. The serious rebuke from Legal Aid notwithstanding, the Practitioner wrote to the Society on 12 December 2007.[98] Relevantly, he represented to the Society thus:

I deny that my firm ever received the $90.00 contribution from her and I can confirm that no receipt was issued by this office nor was a cheque ever received from [Client N]. At all times I was under the impression that I was acting Pro Bono for [Client N] in her matter. To this end though I had no obligation to do so I repaid ACT Legal Aid out of my own personal funds so that my firm, [Client N] and ACT Legal Aid were not out of pocket for my error of judgement.

1. The Tribunal finds that the Practitioner's false claim was made by the Practitioner to the Society to minimise the seriousness of his personal relationship with Client N which the Tribunal has found commenced after his retainer by apparently attempting to argue that there never was a real solicitor/client relationship, however misjudged that stance might be.

1. His conduct in attempting to cover up or minimise the seriousness of his conduct is further evidenced by the preposterous submission made to the Society on 9 December 2008 as follows:[99]

[My Employer] received the sum of $1,815.00 for this matter this included payment for the $90.00 contribution that [Client N] never paid. I paid ACT Legal aid [sic], by way of my personal cheque the sum of $1,815.00, which was the total of the grant it included the $90.00 that [Client N] was to pay and never did. My Employer received $1,815.00, Legal Aid received the same amount $1815.00 back and [Client N] had her $90.00 contribution paid by me, in the end no other party except me was out of pocket. This is for the public good, working for free or pro bono I do not see it any other way [sic].

1. An explanation for the Practitioner's conduct was given by Mr Archer from the Bar table. In these circumstances the words quoted by Meagher JA in Coe (as discussed above) are particularly apposite. In the Tribunal's view, the Practitioner was obliged to meet the situation and explain his conduct by explanation on oath. He did not and instead relied upon Mr Archer's submissions on this issue.

1. There is no need to draw any Jones v Dunkel inferences in respect of this aspect of the charge. However, if one were to be drawn it would be that the Practitioner falsely made these representations to the Society knowing the position to be otherwise to minimise the seriousness of his personal relationship with a client. In any event that is the Tribunal's finding.

1. The second aspect of the Client N complaint is proven.

Characterisation of the Conduct - Grounds 1 and 2

1. Mr Beaumont submitted that if Ground 1 was proven, as the Tribunal has found that it has been, then the Practitioner's conduct should be found to constitute professional misconduct. He submits that, as the duty of frankness and candour encapsulated in Rule 39.1 is fundamental to the ethical duties of a solicitor, then the making of a false representation for the improper purpose of minimizing the seriousness of the conduct being investigated amounts to professional misconduct.

1. Mr Beaumont submits that the same result may be achieved by reference to the general law test for professional misconduct namely, would the Practitioner's conduct in misrepresenting to the Society that his personal relationship with Client N commenced prior to the retainer and not afterward, as was the truth, so as to minimise its seriousness, be regarded by solicitors of good repute and competency as disgraceful or dishonourable? The Tribunal is not persuaded by that submission.

1. In determining whether or not the conduct is so serious or grave as to amount to professional misconduct in the statutory sense or the general law sense, the focus ought to be first on the conduct that the representations sought to minimise. The conduct that the Practitioner sought by his representations to minimise, was a personal relationship with a client, in other words, an affair.

1. Although the Practitioner may have exercised undue influence or power over Client N, there was no evidence that Client N suffered any detriment as a consequence of the affair. Nor was there any evidence that the conduct of her case whilst in the hands of the Practitioner or afterwards suffered in any way.

1. Importantly, Ground 1 of the Client N complaint consists of the underlying behaviour - the personal and later sexual relationship - and the Practitioner's false representations to the Society about the relationship. The question for the Tribunal is whether the combination of these acts[100] amounts to professional misconduct.

1. The Practitioner's conduct, whilst tawdry, is not in the same category as preceding cases where professional misconduct has been found. Section 387 of the Legal Profession Act 2006 (ACT) provides that professional misconduct includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

1. Examples of underlying behaviour, which in combination with the breach of the obligation to be open and frank in dealings with the professional associations,[101] have been found to amount to professional misconduct include sending threatening and abusive letters to clients, filing defamatory pleadings, appropriating trust moneys,[102] gross overcharging,[103] criminal offences,[104] and perjury or attempting to pervert the course of justice.[105] However dishonest the Practitioner may have been in lying about the nature of his relationship with Client N such conduct ought not to be equated with the serious transgressions referred to in the general law and would not justify a finding that the practitioner is not a fit and proper person to engage in legal practice pursuant to s 387 of the Legal Profession Act 2006 (ACT).

1. The conduct might nevertheless amount to unsatisfactory professional conduct. Section 585(2) of the Legal Profession Act 2006 (ACT) provides that failure to comply with the Legal Profession Rules may be unsatisfactory professional conduct or professional misconduct. The relevant rules are 1.1, 1.2 and 39.1, as stated above. Section 386 of the Legal Profession Act 2006 (ACT) provides that unsatisfactory professional conduct includes conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a legal practitioner.

1. The Tribunal notes that Ground 2 of the Client N complaint was admitted by the Practitioner and it is persuaded by the submissions made in this respect by Mr Archer. He submitted that the allegations made by Client N were embarrassing to the Practitioner and that this was evident from the tenor of his correspondence. He conceded that it was a representation that was likely to impact upon the Society's investigation of her complaint. The practitioner had a duty of candour. He was obliged to comply with the Rules. He failed to do so.

1. Mr Archer submitted that in all the circumstances the appropriate finding is that the Practitioner was guilty of unsatisfactory professional conduct in relation to Ground 2.

1. The Tribunal finds the Practitioner guilty of unsatisfactory professional conduct generally in relation to the Client N complaint.

1. The Practitioner had breached either all or one or more of Rules 1.1, 1.2 and 39.1 of the Legal Profession (Solicitors) Rules 2007 (ACT) in the course of acting for Client C between June and October 2007 and his subsequent dealings with the Law Society in relation to the investigation of the complaint made by Client C.

1. The Practitioner had failed to treat his client fairly and in good faith and to act honestly, fairly and with competence and diligence in the service of his client.

The Practitioner acted without instructions and, contrary to Client C's standing instructions in consenting to the restraining order obtained by Client C in the Magistrates Court being set aside by the Supreme Court in substitution for an undertaking.

1. The Practitioner failed to be open and frank in his dealings with the Society.

The Practitioner represented to the Law Society that Client C was present at all times in court during the hearing of the Appeal by Higgins CJ and gave the Practitioner specific instructions to consent to the orders which were made in circumstances where Client C was not present and gave no such instructions.

This ground alleges a breach of Rule 39.1 of the Solicitor's Rules 2007.

1. Client C had obtained a protection order against JA who was the mother of Client C's estranged defacto husband. That protection order had been obtained initially ex parte. Shortly after 7 May 2007 when Client C and her sister Client N met the Practitioner in the Magistrates Court, he took over Client C's protection-order matter. She had obtained a grant of legal aid to be represented in those proceedings in the Magistrates Court. At all relevant times, JA had engaged the services of a private law firm to appear on her behalf.

1. JA filed a Notice of Appeal in the Supreme Court. During the course of the appeal proceedings JA's solicitors filed an application in those proceeding in relation to the inspection of certain documents. It is not necessary to elaborate on the nature of the appeal or the application. Client C failed to obtain legal aid funding for the appeal proceedings and the Practitioner acted for her on a pro bono basis.

1. At all relevant times Client C had the benefit of the protection order which, according to her, was extremely important to her. She was plainly afraid of JA.[106] On 14 September 2007, the application in the appeal proceeding was listed in the Supreme Court before Higgins CJ.[107]

1. The Practitioner appeared for Client C, the respondent to the application, and DC, solicitor, appeared for JA. The application was listed before Higgins CJ. The Practitioner arrived late, arriving at 10.45am.[108] DC commenced his client's application.[109] When DC had finished his submissions in relation to his application the Practitioner addressed the court thus:

We've attempted at all times to settle this matter and have it reverted back to the Magistrates Court at all times. We understand the decision was made on an ex parte basis.[110]

1. Higgins CJ then observed that it would be open to set the ex parte orders aside.[111]

. . . That's right, your Honour. We've been to our friends on a number of occasions and asked for the matter to be reverted back to the Magistrates Court. ... The only issue we've had is that they want the order set aside . . . And the order to be - for there to be no protection between the time it's set aside in this court and being reverted back to the Magistrates Court...[112]

1. Pausing, the Practitioner was perfectly clear about Client C's instructions. Indeed he said as much to the Society in a letter dated 29 January 2008 when he said, referring to the application before the Supreme Court on 14 September 2007:

At all times [Client C] only ever wanted the order that she had in place to stay in place.[113]

1. Returning to the application before the Chief Justice on 14 September 2007, the Practitioner then informed His Honour that the appeal (not the application) could be settled quite simply.[114]

1. The Practitioner's offer was embraced by DC who told His Honour that the protection order would need to be set aside by consent.[115] Following upon that exchange there were exchanges between His Honour and DC and the Practitioner.[116] His Honour asked how the matter might be remitted to the Magistrates Court in circumstances where that court had made a decision to which the Practitioner responded:

No, Your Honour, we were going to consent to the order being set aside and have it remitted back but on the understanding that the protection contained in the order would stand until the matter was reheard.[117]

1. Bearing in mind the Practitioner's clear instructions that the order that his client already had in place was to stay in place, one would assume that the Practitioner had explicit instructions to make that submission.

1. Following that submission, His Honour inquired of the Practitioner how what he had suggested might be done, to which the Practitioner responded that he was not sure. His Honour then suggested that the possible solution could be achieved by way of undertakings, a suggestion with which the Practitioner readily agreed.[118] The following exchange took place.

His Honour: All right. Well what you are saying, correct me if I am wrong, is that you're prepared to consent to the appeal being upheld, the order being set aside and the application for the order being remitted back to the Magistrates Court on the undertaking of the appellant to what? Do you have a list of things that you want the appellant to undertake not to do?

[The Practitioner]: Exactly what's contained the in the original order, Your Honour.[119]

1. The matter was then adjourned and upon the hearing resuming, DC informed the court that his client, JA, would only consent to mutual undertakings.[120]

1. When His Honour raised the issue of an undertaking from his client, Client C with the Practitioner, he informed Higgins CJ that he was reluctant to make any further concessions and then he said:

Your Honour, I am appearing in this matter on a pro bono basis, I'm very keen to get the thing settled. . .[121]

1. Ultimately, DC agreed to the undertaking without a corresponding undertaking and to having the matter remitted to the Magistrates Court.[122] His Honour made the order. By consent he set aside the existing protection order and remitted the application, subject to the undertaking that JA conform to the terms of the protection order which he had just formally just set aside.[123]

1. On or about 25 October 2007, the Practitioner informed Client C that he could no longer act for her due to the complaint that her sister, Client N had made to the Society.[124] On 19 November 2007 Client C made a formal complaint to the Society.[125] The Practitioner was notified of the complaint by the Society on 21 December 2007. The complaint, as articulated by the Society was that the Practitioner had terminated his retainer without just cause and that he had misled his client, Client C.[126]

1. In the meantime, SJ, solicitor, had taken over Client C's protection order matter in the Magistrates Court in the Practitioner's stead. On 22 January 2008, SJ appeared before Mr Madden in the Magistrates Court. As the transcript of that mention clearly reveals, SJ was under the erroneous impression that the protection orders remained in place.[127]

1. The Practitioner responded to the Society on 29 January 2008. In his response which was comprehensive, the Practitioner said, inter alia, of his appearance on the application before Higgins J on 14 September 2007:

I have fought a bitterly contested matter in the Supreme Court against two senior solicitors... and a partner from that firm. I have won all the matters in the Supreme Court and ensured that [Client C]'s DVO was maintained for her safety. At all times the Supreme Court matters were handled well and I won every point against some very senior practitioners.

1. Bearing in mind what transpired during the course of the application[128] in which the Practitioner and DC appeared, extracts of which appear above, the Practitioner's account of what transpired is a complete misrepresentation of what in fact transpired.

1. On 19 February 2008, Client C wrote to the Society. Amongst other things, she complained (referring to the application of 14 September 2007):[129]

[The Practitioner] maintains that he has represented me vigorously and on a pro bono basis, when in fact he went against my instructions and had the restraining order lifted without my knowledge. He did so as he felt it was a waste of time, while acknowledging it was always my instructions to keep it in place.

1. Upon receipt of this communication forwarded to the Practitioner by the Society, the Practitioner responded to the Society on 4 March 2008, inter alia, thus:[130]

I deny ever acting against [Client C]'s instructions. She has been present at all times. The restraining order was never lifted. [Client C] was present in the Supreme Court when His Honour Chief Justice Higgins at 9.30am in Courtroom 1 carefully explained to myself and [DC] ...on Friday 14/09/07 that there were undertakings in place that had to be agreed upon by both parties which in fact meant that the restraining order was still in place and would stay in place until the matter was fully decided by the lower court. His Honour explained at length to myself and [DC] that the orders had to stay in place and if [DC] did not agree to that course of action that he would make those orders...his Honour explained to [Client C] from the bench what this meant...she was present at all times. [sic]

1. On any view of what in fact transpired before Higgins CJ on 14 September 2007, the Practitioner's account in response to the Society is a clear and unambiguous, misrepresentation.

1. On 26 March 2008, SJ wrote to the Society in relation to his appearance in the Magistrates Court before Mr Madden on 22 January 2008. Relevantly, he said:[131]

What came to light was that there were no current orders, interim or otherwise, when it was appealed from the Supreme Court......Our client reacted with surprise and informed [SJ] that when [The Practitioner] had carriage of the matter, and the appeal was heard before Chief Justice Higgins on 14 September 2007. [sic] He informed her that there was [sic] interim orders in place when the matter was adjourned back to the Magistrates Court. [Client C] advised [SJ] that she had been advised by [The Practitioner] that there were interim orders in place and he never informed her that the orders were undertakings that were consented to by both parties. She further instructed [SJ] that she gave no instructions to [The Practitioner] to consent to the Supreme Court order.

1. The Practitioner received a copy of SJ's letter to the Society. On 1 April 2008, He responded thus:[132]

[Client C] was present at all times in the Supreme Court on 14/09/07 was consulted with by [sic] myself and gave instructions repeatedly and during the short adjournment between 11.12am and 11.36am ... At all times [Client C] was present during the hearing and gave clear instructions to me. I am happy to obtain an affidavit from [DC] to this effect. [Client C] repeatedly interrupted conversations between [DC] and myself and was standing next to me in all of my conversations with [DC].

1. This was the second occasion in writing that the Practitioner had represented to the Society that Client C was present in the Supreme Court on 14 September 2007. He was emphatic and he descended into particular detail in relation to Client C's presence and conduct on that day.

1. On 4 May 2008, Client C wrote to the Society.[133] She asserted, inter alia, that she had lost her case and that the protection order had not been reinstated and said further that:

I feel that [The Practitioner]'s action of removing the order (against my wishes) has made it difficult, if not impossible, for me to have it re-instated.

1. On 7 May 2008, the Practitioner responded to Client C's communication to the Society which the Society had forwarded to him by asserting once again and for the third time:[134]

....I point out to you that you have the transcript of the Supreme court proceedings [Client C] was present at all times she instructed me in person and the matter was remitted back to the Magistrates court by His Honour.

1. Leaving aside the Practitioner's third assertion that Client C was present in Court and instructed him, the transcript[135] does not indicate at all that Client C was present in Court on 14 September.

1. On 30 June 2008, the Society concluded that there was no improper conduct on the part of the Practitioner.[136] The Society's finding was communicated to Client C on the same day. The basis of the Society's finding was that Client C had been present in Court on the 14th when Higgins CJ made the orders.[137]

1. On 2 July 2008, Client C telephoned the Society and informed it that she had not been present in Court on the 14th when Higgins CJ made the orders. Client C then confirmed her assertion in writing.[138]

1. On 9 July 2008, the Society again wrote to the Practitioner. It referred to the Practitioner's repeated assertions that Client C had been present in Court on the 14th.[139] It advised the Practitioner that Client C's assertions were regarded by the Society's Complaints Committee as being sufficiently serious to justify further investigation and for the Practitioner to obtain an affidavit from DC as he had offered to do in his letter to the Society of 1 April 2008.[140] On 10 July 2008, the Practitioner responded to the Society.[141] Amongst other things, he advised the Society that he would provide a statutory declaration stating that Client C was in Court that day. It was not clear from his communication who was to provide that statutory declaration.

1. On 10 July 2008, the Society again wrote to the Practitioner.[142] Importantly, it set out that, in dismissing Client C's complaint, it had, not surprisingly, accepted and relied upon the Practitioner's statements that Client C had been present in Court. The Society formally requested that the Practitioner provide it with the affidavit of DC.

1. On 11 July 2008, the Practitioner responded to the letter from the Society.[143] Instead of providing what the Society had requested that he provide namely, an affidavit from DC, the Practitioner merely informed the Society in effect, that there was no point in obtaining an affidavit from DC as he had "no independent recollection of seeing [Client C] at Court on that day". He added that he would give sworn evidence that Client C was present.

1. Again the Society wrote to the Practitioner requesting that he provide material to support his statement that Client C had been present in Court on that day.[144] The Practitioner responded to the Society's letter on 5 August. He did not then provide the Society with sworn evidence to the effect that Client C was present in the Supreme Court on the 14th as he had offered to do. However, he asserted that he had provided the Society with all the material in relation to the matter.

1. Pausing, all that he had provided to the Society at this point was the transcript of the 14th. He again asserted that Client C had been present at all times. He again offered to provide sworn evidence that she was there.[145] He then asserted thus:[146]

The matter was heard in Courtroom 1 before Higgins CJ and [Client C] sat in the front row on the first seat in that row closest to the entrance. She was unaccompanied and discussed the matter with me during the recess between 11.12am and 11.36am ... I again point out to the Society that at all times I have stated that [Client C] was present on the day and up until now she has never disputed this...

1. Pausing again, as to the last sentence extracted above, Client C's responses made no mention of whether or not she had been present in Court on the 14th. As to the fifth assertion that Client C had been present in Court on the 14th, it was again, quite emphatic and elaborate in its detail.

1. On 22 March 2009, the Practitioner wrote to the Society.[147] He enclosed a copy of a letter dated 14 September 2007[148] addressed to Client C and purportedly sent to her which, he alleged had been misfiled and had therefore not come to light until then. Both the timing and substance of the letter are curious. It contains in each one of its five paragraphs what read like self-serving references to Client C's presence in the Supreme Court before Higgins CJ on 14 September 2007.

1. As to the promised statutory declarations from the Practitioner, none were ever forthcoming. Nor did the Practitioner ever file an affidavit, much less read or subject himself to cross-examination. The letter dated 14 September 2007 and received by the Society as an attachment to the Practitioner's letter of 22 March 2009, was not put to Client C in cross-examination.

1. Client C swore three affidavits; the first sworn on 6 April 2009, the second supplementary affidavit sworn on 17 June 2009 and the third sworn on 22 September 2009.

1. She deposed to having been made to feel uncomfortable by the comments made to her by the Practitioner and because she understood that the matter before the Supreme Court on 14 September 2007 was for a mention only she decided not to attend.[149] She had ascertained from the Practitioner the previous day that she did not need to attend Court on the 14th and she said to him that she did not want to drop the protective orders that were in place against JA.[150]

1. Client C did not attend the Supreme Court on 14 September 2007 and was, instead at home caring for her young children.[151] At some stage the day after the hearing, Client C was informed by the Practitioner that they had won.[152] The Practitioner did not inform her at any time of what had in fact transpired at the hearing before Higgins CJ and it was only on 22 January 2008 after the matter had been remitted to the Magistrates court that she learned for the first time that the protection order had been set aside.[153] Client C was not in the Supreme Court on 14 September 2007 and nor did the Practitioner contact her to obtain her instructions to agree to the protection orders being set aside and replaced by undertakings.[154]

1. In her supplementary affidavit sworn 17 June 2009, Client C attached her land line telephone records which recorded that, on 14 September 2007, she had made telephone calls to the mobile phones of her sister, Client N at 9.16am, the Practitioner at 9.46am (for 18 seconds) and at 1.45pm, and her estranged de facto husband, Mr JA at 9.49am and at 10.55am.

1. Records of telephone calls made on Client C's land line to other land lines were produced on subpoena.[155] Relevantly, they recorded that, on 14 September 2007, several telephone calls of varying duration were made from Client C's land line. In her examination-in-chief, Client C deposed to having made the following calls on her land line on 14 September 2007 herself which included:

• At 9.58am to her friend CB for 34 minutes[156]; and
• At 10.33am to Client N, her sister.[157]

1. The Practitioner did not contradict Client C's affidavit evidence. He led no affidavit evidence on Client C's claim to have been at home on 14 September 2007 and elected not to subject himself to cross-examination. Client C was not shaken on cross-examination in respect of this point.

1. On 14 September 2007, Client C lived at Calwell. That suburb was some distance from the Supreme Court. It is quite improbable that she could have been present in the Supreme Court from 9.30am on the 14th[158] or 10.47am on the 14th[159] when she was, as her unchallenged evidence suggests, at the other end of Canberra making telephone calls.

1. Two of the telephone calls recorded as having been made from Client C's landline were made to the Practitioner's mobile telephone service. If the caller was not Client C, then it was always open for the Practitioner to have given that evidence. He gave none, the obvious inference in these circumstances being that his evidence on this point would not have assisted him. A naturally arising inference was that it was Client C calling him from her home.

1. The unchallenged evidence that Client C was at home speaking to her friend CB from her landline for 34 minutes from almost 10.00am on the 14th puts Client C in Calwell at the time and not likely to be in the Supreme Court at 10.47am. That evidence, again unchallenged, places Client C at home in Calwell making calls to her sister at 10.33am and to her estranged de facto husband at 10.55am. It was put to her in cross-examination that she was present in court on the 14th. She denied it and asked how that could be so, if she was at home making telephone calls.[160]

1. In addition there were the mobile telephone records of the Practitioner produced on subpoena.[161] Those records reveal that on 14 September 2007 at 11.13am which was one minute after the matter was adjourned in the Supreme Court for the morning tea adjournment, the Practitioner made a call from his mobile service to Client C's landline which lasted 1 minute and thirty seconds. That fact alone necessarily put the Practitioner in an arguably untenable position. If he was making a telephone call to Client C on her landline at 11.13am on the 14th which lasted for one and a half minutes, then one obvious inference to be drawn was that she was not at the Supreme Court at that time.

1. The Practitioner offered no evidence in relation to this call. The call made at that time, apparently by the Practitioner to Client C's land line is completely inconsistent with the Practitioners numerous (five) and emphatic assertions that, at all times Client C was present in the Supreme Court on the 14th and providing the Practitioner with instructions to consent to the setting aside of her protection orders and accepting instead, undertakings.

1. Mr Archer submitted on behalf of the Practitioner that Client C could not, without independent corroboration, be accepted as a witness of truth. However, her evidence was, in great measure, corroborated by the telephone records. Whatever her feelings for JA might have been, they did not appear to the Tribunal to colour her evidence on the critical points.

1. The first was that the protection orders were very important to her because she was afraid of JA.[162] After observing JA's demeanour in giving her evidence in cross-examination, the Tribunal considers that this fear is understandable. Secondly, that she was adamant that she did not want to lose the protection of those orders.[163] Thirdly, that she never gave instructions to the Practitioner to consent to having those orders set aside for undertakings[164] and finally, that she was never present in the Supreme Court on 14 September 2007.[165]

1. Mr Archer submitted that the Practitioner had all but convinced Client C that, as her prospects of success in the Supreme Court were poor and that the potential for failure presented significant costs implications, that her protestations were disingenuous. From Client C's entirely subjective point of view, one can see from her evidence in relation to her fear of being injured by JA that the importance of these orders did, more likely than not, influence Client C. The Tribunal accepts her evidence in this respect.

1. As to whether this Tribunal should accept the telephone record evidence as corroborative of Client C's evidence that she was not in the Supreme Court on the 14th, Mr Archer submitted that the evidence in relation to the landline calls was ambiguous given the absence of evidence from others who resided in the house. He is critical of the fact that CB was not called to corroborate the evidence of Client C that she made a call to CB that morning.

1. The Tribunal does not accept that submission. There was unchallenged evidence from Client C that she had made those telephone calls. Mr Archer was also critical of the fact that Client C was not asked in examination-in-chief to explain the call made to her at home during the adjournment by the Practitioner. In view of the fact that the Practitioner led no affidavit evidence and did not subject himself to cross-examination, the Tribunal regards that submission as problematic. If the Practitioner had wished to give some explanation himself as to what was said during this telephone call, he should have done so on oath and not through submission from the Bar table to the effect that it was somehow incumbent on Client C to give such evidence and that the evidence that was given should be regarded as weakened as a result of her failure to do so.

1. Finally, Mr Archer submitted that, in the same way that JA's evidence could not be accepted, Client C's evidence should also not be accepted. Client C's evidence, while not always entirely satisfactory, was not in the same class as the evidence of JA. JA's evidence was of no weight at all.

1. JA gave contradictory evidence and readily conceded that she had a great deal of animosity towards Client C.[166] More importantly, she conceded that her evidence was motivated by extraneous factors.[167] Moreover, her evidence as to DC's call and her surprise was ultimately exposed as false and a reconstruction.[168] Finally, JA's evidence of what DC had told her during the course of his telephone call to her during the morning tea adjournment was never put to DC in cross-examination.

1. DC swore three affidavits; the first on 19 April 2009, the second on 18 June 2009 and the third, a supplementary affidavit, on 23 September 2009. He was cross-examined comprehensively and exhaustively. He was unshaken. In the Tribunal's view, he was an impressive and a reliable witness of truth.

1. DC's evidence was that the Practitioner arrived at Court late and arrived unaccompanied.[169] He did not recall seeing anyone sitting in the front row in the seat closest to the entrance which, he said, was where a client would normally sit. That is why he thought that the Practitioner was not accompanied by his client.[170] Relevantly, DC deposed that:

• He had no recollection of the Chief Justice addressing the Practitioner's client in Court and, indeed thought that it would be unusual for him to have done so, given that the Practitioner was representing her;
• He had no recollection of anyone standing next to the Practitioner during their conversations or interrupting them during the course of their discussions; and that
• He had no recollection of the Practitioner being accompanied during the adjournment.[171]

1. Mr Archer submitted that DC's evidence should be discounted, not because he was not a witness of truth, but because it could not be said to be reliable given the passage of time and the unremarkable nature of the events that he was recalling. The Tribunal is not persuaded by this submission. DC struck the Tribunal as an impressive witness whose recollection of the events of the 14th was largely and relevantly, intact.

1. One final point is made; the letter dated 14 September 2007 written by the Practitioner and purportedly sent to Client C was, in the Tribunal's view obviously a concoction. The concocting of the letter and the forwarding of it to the Society was, the Tribunal finds, accepting Mr Beaumont's submission in this respect, evidence of consciousness of guilt.

1. The Tribunal is mindful also that this charge involves a very serious allegation of misconduct namely, that the Practitioner acted without instructions and, contrary to Client C's standing instructions in consenting to the restraining order obtained by Client C in the Magistrates Court being set aside by the Supreme Court in substitution for an undertaking and that the Practitioner represented to the Law Society that Client C was present at all times in court during the hearing of the Appeal by Higgins CJ and gave the Practitioner specific instructions to consent to the orders which were made in circumstances where Client C was not present and gave no such instructions.

1. Further, having had the benefit of hearing and seeing the witnesses give their evidence and observing their demeanour when doing so, the Tribunal finds that the evidence of Client C, DC and the documentary evidence of the telephone records establishes the charge to the comfortable satisfaction of the Tribunal.

Characterisation of the Conduct - Grounds 1 and 2

1. The Tribunal finds that the conduct charged is proven and is serious indeed. It goes to the very heart of the solicitor/client relationship and to those duties owed by a solicitor to his or her client that are fundamental to a legal practitioner's awareness of professional responsibility. Moreover, a solicitor owes a duty of candour and frankness in his or her dealings with his or her professional body. This duty is fundamental to the ethical duties of a solicitor. Breaches as serious as the ones charged in Grounds 1 and 2 warrant a finding of professional misconduct against the Practitioner and the Tribunal so finds.

1. Further, applying the general law test for professional misconduct, the question is: would acting without and contrary to instructions and then falsely representing to the Society that the client was present and gave those instructions be reasonably regarded by solicitors of good repute and competency as disgraceful or dishonourable?[172] The answer must inevitably be yes.

1. The third ground was that the Practitioner had improperly attempted to interfere with a potential witness. The third ground was particularised thus:[173]

On or about 2 April 2009, at a time when DC a fellow practitioner had, to the knowledge of the Practitioner, provided to the Law Society a statement concerning the matters the subject of the first ground of the Complaint, and was proceeding to prepare and swear an affidavit to be used in these proceedings in relation to the first ground, the Practitioner improperly attempted to intimidate, pressure or dissuade DC from giving his evidence in these proceedings or from adhering to the evidence appearing in his statement by:

(b) advising DC that he had obtained a statement from DC's client, JA, in which she accused DC of appearing in court on 14 September 2007 without instructions; and

(c) advising DC that he was considering lodging a statement with the Law Society and that he, the Practitioner, wanted to pre-warn DC about his conduct because the matter would eventually come out in the hearing.

1. The evidence led to support this serious charge was again unanswered by the Practitioner. It was submitted by Mr Archer that the Tribunal must approach this charge in a commonsense way and with great care given the seriousness of the charge. That submission, making as it does an important, but otherwise rather unremarkable point, is naturally embraced by the Tribunal.

1. Again, the evidence led by the Society which was the evidence of DC was unanswered by any evidence from the Practitioner. DC's evidence-in-chief is contained in his affidavit sworn on 23 September 2009. Summarised, the critical elements of DC's evidence are thus:

• The Practitioner said that he did not want to intimidate or coerce DC but wanted him to be aware of JA's "complaint" against him to the effect that he (DC) had appeared on 14 September without instructions. That was a curious assertion to make because it never appeared from the evidence that JA had made any complaint about DC's conduct. She did make that allegation in her statement, but that did not amount to a complaint in the intended sense.

• The Practitioner had obtained a statement from JA to that effect. It was likely an accurate allegation. However, the Practitioner said: "It will come out at the hearing; I thought I should let you know." It is difficult, in the circumstances to construe this as anything other than a threat to DC, that, in the event that disciplinary proceedings proceeded against the Practitioner, then, if DC persisted in giving evidence that Client C was not present at the hearing in the Supreme Court on 14 September 2007, then DC would be in similar trouble.[174]

• The Practitioner continued: "I am considering lodging a statement with the Law Society. I thought I should let you know."[175] It is difficult to see how DC might have perceived this as being anything other than a threat which he did so perceive. Pausing, Mr Archer submits that for any number of reasons, but principally, because of perhaps the rather calm and polite way that DC received this information, that what was said by the Practitioner to DC was not meant by the Practitioner to be threatening. The Tribunal rejects this submission.

• Returning to the conversation, after DC sought some clarification, the Practitioner repeated the threats. The Practitioner then said that he was not saying anything to DC "...except to alert you to the fact that your client has given me a statement against you which will come out in the hearing. I of course can lodge the statement with the Law Society any time I like."[176]

1. Mr Beaumont submitted that, if the conversation occurred as alleged, especially having regard to DC's immediate reaction to it, then this was a blatant attempt to intimidate pressure or dissuade DC from giving his evidence in these proceedings or from adhering to his statement that Client C was not present in court.

1. Further, Mr Beaumont submitted that there was no doubt that these words or words closely to this effect were stated by the Practitioner having regard to:

• The contemporaneous file note prepared by DC of the conversation;[177]

• The email sent by DC only 2 hours later which accurately captures the key nature of these twin threats;[178]

• The highly impressive nature of DC as a witness. DC came across as someone with no axe to grind, as entirely honest, with no particular desire to bring the Practitioner down and on the contrary as someone who, very generously, felt pity for the Practitioner in light of the predicament in which these attempted threats had placed him.[179]

1. The Tribunal accepts DC's evidence without qualification. The Tribunal finds those submissions put on behalf of the Society both helpful and persuasive. The Tribunal finds that in respect of this charge, the evidence overwhelmingly establishes the charge. The Tribunal does not need to rely on Jones v Dunkel inferences, but nevertheless does draw those inferences and finds that the inference that the Practitioner was attempting to intimidate, pressure or to dissuade DC is further strengthened by the Practitioner's failure to give evidence explaining why this inference should not be drawn.

1. It is alleged by the Society that the Practitioner fabricated a conversation with Mr Phelps, solicitor instructed by the Society, which never occurred. The allegation is set out in an affidavit of Mr Phelps sworn on 23 September 2009. In it, Mr Phelps deposes to the following:

• On 7 September 2009 he was served with an affidavit sworn by the Practitioner on 3 September 2009 (not read) in which the Practitioner claimed that he had phoned Mr Phelps on or about 31 March 2009 to ask whether or not it was proper for the Practitioner to phone DC. The affidavit also stated that the Practitioner had instructed his solicitors to give notice to Mr Phelps that he would be required to give evidence before the Tribunal. As a consequence of which Mr Phelps wrote to the Practitioner's solicitors.[180]

• That letter noted that the affidavit had attached to it by separate paper clip a copy of Rule 12 of the Legal Profession (Solicitors) Rules 2007 (ACT) and no covering letter.

• The inference was that it was the doing of the Practitioner himself and alone, and the Society had no expectation that any other person would have been involved in such an improper attempt to have Mr Phelps to cease acting.

• Mr Phelps denied that any conversation had occurred between himself and the Practitioner on 31 March 2009, but sought by Notice to Produce a copy of the mobile telephone records of the Practitioner for 31 March 2009.

• No records were produced and accordingly Mr Phelps caused subpoenas to be issued to Optus, the Practitioner's mobile service provider, and to TransACT, the Phelps Reid service provider.

• Those records demonstrated that the Practitioner did not make a telephone call from his mobile telephone to Phelps Reid on or about 11.15am on 31 March 2009 or indeed at any time either side of that date which might explain the falsely sworn evidence.[181]

• However, those records do record that the Practitioner made a telephone call from his mobile telephone at 11.13 am on 31 March 2009 to the firm where DC is a partner.[182]

1. Again, the Practitioner offered no explanation in relation to having sworn to something in an affidavit that was manifestly false, with the obvious purpose of trying to have Mr Phelps removed as the Society's solicitor shortly before the matter was listed for hearing for five days. The Tribunal was persuaded by Mr Beaumont's submissions in this respect that, not only does this conduct demonstrate consciousness of guilt, but of itself discloses a proclivity to disrupt the proper course of justice by improper means.

1. There was also unanswered evidence that the Practitioner made other threats in relation to others who were connected with the proceedings. In particular, there was evidence that the Practitioner threatened:

• The Society, at least Mr Phelps personally, with a damages claim and costs relating to Ground 2 of the Client N complaint.[183]

• The Law Society with an action for costs and damages if the matter was not discontinued.[184]

• That he would produce files that could land Client C's nephew in jail if Client N did not stop her complaint.[185]

1. Mr Archer submitted at the outset that if proven to the criminal standard, the Practitioner's conversation with DC on 2 April 2009 would be a criminal offence.[186]Mr Beaumont submitted that it would amount to a serious and again criminal contempt of court and hence the Tribunal.[187]

1. He submitted further that the underlying conduct of the Practitioner strikes at the heart of justice; Prothonotary of the Supreme Court of NSW v Pangallo.[188] For an officer of the Court to attempt to dissuade, deter or intimidate a witness from giving or adhering to their evidence in any proceedings, but especially disciplinary proceedings about that very solicitor, is conduct which of itself would justify a finding that a person is not fit and proper to remain on the roll. It is certainly professional misconduct.

1. The final question of what sanction should be recommended by the Tribunal for the Supreme Court to impose in the face of findings by this Tribunal of two counts of professional misconduct and one of unsatisfactory conduct in relation to grounds one and two of the Client N Complaint is adjourned for further submissions in relation to penalty.

..........................................................

APPLICANT: COUNCIL OF THE LAW SOCIETY OF THE ACT

TRIBUNAL MEMBER/S: P. SPENDER PRESIDENTIAL MEMBER

DATE/S OF HEARING: 28/9/09 - 2/10/09; 12/11/09 PLACE: CANBERRA

DATE/S OF DECISION: 1 FEBRUARY 2010 PLACE: CANBERRA

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

[1] This decision was previously anonymised and sited as Council of the Law Society of the Australian Capital Territory v The Legal Practitioner (Occupational Discipline) [2010] ACAT 2 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 the decision. The reasons for decision otherwise remain unchanged from the date of publication.

[2] Re Vernon; Ex parte The Law Society of New South Wales [1966] 1 NSWR 511; Johns v The Law Society [1982] 2 NSWLR per Moffitt P.

[3] [1938] HCA 34; (1938) 60 CLR 336 per Dixon J (as he then was) at 368 and Rich J at 350.

[4] New South Wales Bar Association v Livesey [1982] 2 NSWLR 231 at 237 - 8 and the cases there cited.

[5] [1938] HCA 34; (1938) 60 CLR 336 at 350

[6] [1959] HCA 8; (1959) 101 CLR 298.

[7] [1959] HCA 8; (1959) 101 CLR 298 at 312.

[8] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 350.

[9] Cross on Evidence (Lexis Nexis), on line at [1215]

[10] Steel v Mirror Newspaper Ltd [1974] 2 NSWLR 348 at 360D-F; Cross on Evidence online at [1215]

[11] [1959] HCA 8; (1959) 101 CLR 298 at 308 and 312.

[12] [1966] 1 NSWR 511 at 515-516

[13] [2006] NSWCA 340 at [70] - [77];

[14] [2008] NSWADT 149 at [78] to [84]

[15] [2008] NSWCA 135; (2008) 71 NSWLR 451.

[16] Council of the NSW Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451at 463 [19] referring to McHugh J in Rich v ASIC [2004] HCA 42; (2004) 220 CLR 129 at [42]- [43]

[17] Adler v ASIC [2003] NSWCA 131; (2003) 179 FLR 1 at 147

[18] Transcript, p 7.40-45 and p 10.42 (12 November 2009).

[19] Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 at [68].

[20] Council of the NSW Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451 at [32].

[21] [2000] NSWCA 13.

[22] Rich v ASIC [2004] HCA 42; [2004] 220 CLR 129.

[23] [2008] NSWCA 135; (2008) 71 NSWLR 451 at 467 [23].

[24] Law Society of New South Wales v Green [2008] NSWADT 149 at [88].

[25] [1993] HCA 65; (1993) 178 CLR 217

[26] Council of the Law Society of the ACT, Law Society's Closing Written Submissions [12] and [13].

[27] [2008] NSWCA 135; (2008) 71 NSWLR 451 at 465.

[28] Adler v ASIC [2003] NSWCA 131; (2003) 179 FLR 1 at 147 [661]

[29] Council of the Law Society of the ACT, Law Society's Tender Bundle (admitted as Exhibit A2), 43-45.

[30] Council of the Law Society of the ACT, Law Society's Tender Bundle 50, 51.

[31] Council of the Law Society of the ACT, Law Society's Tender Bundle 64.

[32] Transcript, p. 51.40 (28 September 2009).

[33] Council of the Law Society of the ACT, Law Society's Tender Bundle, 108-110; 113-114; and 152.

[34] Council of the Law Society of the ACT, Law Society's Tender Bundle 64.

[35] Council of the Law Society of the ACT, Law Society's Tender Bundle 64; Affidavit of Client N (22 September 2009) [20].

[36] Affidavit of Client N (12 February 2009) [7] and [8].

[37] Affidavit of Client N (12 February 2009) [9], [10] and [11]; Council of the Law Society of the ACT, Law Society's Tender Bundle 64.

[38] Affidavit of Client N (12 February 2009) [12].

[39] Affidavit of Client N (12 February 2009) [13], [14] and [15].

[40] Affidavit of Client N (12 February 2009) [15] and [16].

[41] Affidavit of Client N (12 February 2009) [18] - [22].

[42] Affidavit of Client N (22 September 2009) [21] - [25].

[43] Affidavit of Client N (22 September 2009) [25].

[44] Transcript p 105.45 - p 106.1 (29 September 2009).

[45] Affidavit of Client N (22 September 2009); Transcript p 107 (29 September 2009).

[46] Council of the Law Society of the ACT, Law Society's Tender Bundle 52.

[47] Affidavit of Client N (22 September 2009) [27].

[48] Affidavit of Client N (12 February 2009) [19] - [22].

[49] Council of the Law Society of the ACT, Law Society's Tender Bundle 55; Affidavit of Client C (6 April 2009) [3].

[50] Council of the Law Society of the ACT, Law Society's Tender Bundle 55.

[52] Transcript p 68.15 (28 September 2009).

[53] Transcript p 69 - 70 (28 September 2009).

[54] Transcript p 103.40 (28 September 2009).

[55] Transcript p 77 - 79.8 (28 September 2009).

[56] Council of the Law Society of the ACT, Law Society's Tender Bundle 55.

[57] Affidavit of Client C (6 April 2009) [3].

[58] Council of the Law Society of the ACT, Law Society's Tender Bundle 50.

[59] Transcript p. 111.10 (29 September 2009).

[60] Affidavit of Client N (12 February 2009) [16].

[61] Transcript p 110 - 114 (29 September 2009).

[62] Transcript p 113.25 (29 September 2009).

[63] Transcript p 81.32 -82.16 (28 September 2009).

[64] Transcript p 110.12 - 110.28 (29 September 2009).

[65] Transcript p 110.35 - 110.40 (29 September 2009).

[66] Transcript p 105.6 - 105.38 (29 September 2009).

[67] Transcript p 104.38 - 105.6 (29 September 2009).

[68] Transcript p 211.5 - 211.10 (30 September 2009).

[69] Affidavit of Client N (12 February 2009) [6].

[70] Council of the Law Society of the ACT, Law Society's Tender Bundle 64.

[71] Council of the Law Society of the ACT, Law Society's Tender Bundle 64.

[73] Transcript p 281.20 - 281.25 and p 282.23 - 282.25 (1 October 2009).

[74] Transcript p 280.44 - 280.45 and p 281.18 and p 282.20 (1 October 2009).

[75] Transcript p 281.30 and p 282.20 (1 October 2009).

[76] Transcript p 282.1 - 282.10 (1 October 2009).

[77] Transcript p 282.1 - 282.10 (1 October 2009).

[78] Transcript p 281.25 - 282.20 (1 October 2009).

[79] Transcript p 282.22 - 282.25 (1 October 2009).

[80] Transcript 286.16 - 286.32 (1 October 2009).

[81] Transcript p 285.40 (1 October 2009).

[82] Transcript p 285.42 -286.15 (1 October 2009).

[89] Coe v NSW Bar Association [2000] NSWCA 13 at [21]

[90] Council of the Law Society of the ACT, Law Society's Tender Bundle 60.

[92] Council of the Law Society of the ACT, Law Society's Tender Bundle 66.

[93] Council of the Law Society of the ACT, Law Society's Tender Bundle 1A.

[94] Council of the Law Society of the ACT, Law Society's Tender Bundle 1B.

[95] Council of the Law Society of the ACT, Law Society's Tender Bundle 39A.

[96] Council of the Law Society of the ACT, Law Society's Tender Bundle 53A.

[97] Council of the Law Society of the ACT, Law Society's Tender Bundle 53A.

[98] Council of the Law Society of the ACT, Law Society's Tender Bundle 64.

[99] Council of the Law Society of the ACT, Law Society's Tender Bundle 121.

[100] A Solicitor v Council of the Law Society of NSW (20040 [2004] HCA 1; 216 CLR 253 at [35].

[101] Legal Profession (Solicitors) Rules 2007, Rule 39.1.

[102] Legal Practitioners Conduct Board v Kerin [2006] SASC 393.

[103] Re Vernon; Ex parte The Law Society of New South Wales [1966] 1 NSWR 511, NSW Bar Association v Meakes [2006] NSWCA 340

[104] A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253.

[105] NSW Bar Association v Thomas (1989) BC8902198.

[106] Transcript p 136.5, p 141.12-141.15 (29 September 2009); p 181.26 -181.35, p 181.35-182.5, p 195.35, p 197.22-197.25 (30 September 2009).

[107] Council of the Law Society of the ACT, Law Society's Tender Bundle 12A and 12C.

[108] Council of the Law Society of the ACT, Law Society's Tender Bundle 13-14.5.

[109] Council of the Law Society of the ACT, Law Society's Tender Bundle 14.

[110] Council of the Law Society of the ACT, Law Society's Tender Bundle 20.20.

[111] Council of the Law Society of the ACT, Law Society's Tender Bundle 20.26.

[112] Council of the Law Society of the ACT, Law Society's Tender Bundle 20.28 - 21.10.

[113] Council of the Law Society of the ACT, Law Society's Tender Bundle 71.

[114] Council of the Law Society of the ACT, Law Society's Tender Bundle 22.20.

[115] Council of the Law Society of the ACT, Law Society's Tender Bundle 22.30-40

[116] Council of the Law Society of the ACT, Law Society's Tender Bundle 23-25.

[117] Council of the Law Society of the ACT, Law Society's Tender Bundle 24.8 - 24.20.

[118] Council of the Law Society of the ACT, Law Society's Tender Bundle 24.25-24.27.

[119] Council of the Law Society of the ACT, Law Society's Tender Bundle 25.7-25.15.

[120] Council of the Law Society of the ACT, Law Society's Tender Bundle 27.40-45.

[121] Council of the Law Society of the ACT, Law Society's Tender Bundle 29.11 - 29.12.

[122] Council of the Law Society of the ACT, Law Society's Tender Bundle 30.17.

[123] Council of the Law Society of the ACT, Law Society's Tender Bundle 30.20-30.30.

[124] Council of the Law Society of the ACT, Law Society's Tender Bundle 55.

[125] Council of the Law Society of the ACT, Law Society's Tender Bundle 55.

[126] Council of the Law Society of the ACT, Law Society's Tender Bundle 71.

[127] Council of the Law Society of the ACT, Law Society's Tender Bundle 68 - 70.

[128] Council of the Law Society of the ACT, Law Society's Tender Bundle 13 - 31.

[129] Council of the Law Society of the ACT, Law Society's Tender Bundle 77 - 78.

[130] Council of the Law Society of the ACT, Law Society's Tender Bundle 79 - 80.

[131] Council of the Law Society of the ACT, Law Society's Tender Bundle 81 - 82.

[132] Council of the Law Society of the ACT, Law Society's Tender Bundle 83 - 84.

[133] Council of the Law Society of the ACT, Law Society's Tender Bundle 85.

[134] Council of the Law Society of the ACT, Law Society's Tender Bundle 86 - 87.

[135] Council of the Law Society of the ACT, Law Society's Tender Bundle 13 - 31.

[136] Council of the Law Society of the ACT, Law Society's Tender Bundle 88.

[137] Council of the Law Society of the ACT, Law Society's Tender Bundle 89 - 91.

[138] Council of the Law Society of the ACT, Law Society's Tender Bundle 92.

[139] Council of the Law Society of the ACT, Law Society's Tender Bundle 93.

[140] Council of the Law Society of the ACT, Law Society's Tender Bundle 94.

[141] Council of the Law Society of the ACT, Law Society's Tender Bundle 95.

[142] Council of the Law Society of the ACT, Law Society's Tender Bundle 97.

[143] Council of the Law Society of the ACT, Law Society's Tender Bundle 98.

[144] Council of the Law Society of the ACT, Law Society's Tender Bundle 99.

[145] Council of the Law Society of the ACT, Law Society's Tender Bundle 100.

[146] Council of the Law Society of the ACT, Law Society's Tender Bundle 101.

[147] Council of the Law Society of the ACT, Law Society's Tender Bundle 126.

[148] Council of the Law Society of the ACT, Law Society's Tender Bundle 127.

[149] Affidavit of Client C (6 April 2009) [7].

[150] Affidavit of Client C (6 April 2009) [8] and [9].

[151] Affidavit of Client C (6 April 2009) [10].

[152] Affidavit of Client C (6 April 2009) [11].

[153] Affidavit of Client C (6 April 2009) [15].

[154] Affidavit of Client C (6 April 2009) [17] - [18].

[156] Transcript p 127.35 (29 September 2009).

[157] Transcript p 128.20 (29 September 2009).

[158] Council of the Law Society of the ACT, Law Society's Tender Bundle 79 - 80.

[159] Council of the Law Society of the ACT, Law Society's Tender Bundle 13.

[160] Transcript p 200.5 (30 September 2009).

[162] Transcript p 136.5, 141.12 - 141.15 (29 September 2009); p 181.35 - 182.5, p 197.22 - 197.25 (30 September 2009).

[163] Transcript p 136.5, p 143.5-143.10 (29 September 2009); p 181.35-182.5, p 195.36, p 197.22-197.25 (30 September 2009).

[164] Transcript p 139.42, p 142.36 -142.40 (29 September 2009).

[165] Transcript p 140.40, p 144.10 -144.22 (29 September 2009); p 200.5 (30 September 2009).

[166] Transcript p 303.10-303.15, p 301.20-303.15 (1 October 2009).

[167] Transcript p 305.35-306.17, p 307.1-307.5 (1 October 2009).

[168] Transcript p 294.40-301.17, p 300.45-301.17 (1 October 2009).

[169] Affidavit of DC (19 April 2009) [8].

[170] Affidavit of DC (19 April 2009) [10].

[171] Affidavit of DC (19 April 2009) [11], [12] and [16].

[172] Re Vernon; Ex parte The Law Society of New South Wales [1966] 1 NSWR 511 at 516

[173] Amended Application, 18 June 2009.

[174] Affidavit of DC (23 September 2009) [2].

[175] Affidavit of DC (23 September 2009) [2].

[176] Affidavit of DC (23 September 2009) [3].

[177] Affidavit of DC (18 June 2009), Annexure A.

[178] Affidavit of DC (18 June 2009), Annexure B.

[179] Transcript p 261.30-270.40 (1 October 2009).

[180] Affidavit of Michael James Phelps (23 September 2009), Annexure A.

[181] Affidavit of Michael James Phelps (23 September 2009), [6] and Annexures A and B.

[182] Affidavit of Michael James Phelps (23 September 2009), [7].

[183] Council of the Law Society of the ACT, Law Society's Tender Bundle 119.4-119.5.

[184] Council of the Law Society of the ACT, Law Society's Tender Bundle 120.3.

[185] Affidavit of Client C (6 April 2009) [13]; Transcript p 206.35 (1 October 2009).

[186] Criminal Code 2002 (ACT) s 709; Criminal Code 2002 (ACT) s 44.

[187] Lane v Registrar Supreme Court of NSW [1981] HCA 35; (1981) 148 CLR 245 at 257-258.

[188] (1993) 67 A Crim R 77.