ACT Civil and Administrative Tribunal|2010-08-09|Before: Practitioner P

LAW SOCIETY OF THE ACT & THE LEGAL PRACTITIONER P (Occupational Discipline) [2010] ACAT 47 (9 August 2010)

LAW SOCIETY OF THE ACT and THE LEGAL PRACTITIONER (Occupational Discipline) [2010] ACAT 47 (S2)

Catchwords: OCCUPATIONAL DISCIPLINE - LEGAL PRACTITIONER - breach of requirement to respond - interstate legal practitioner - finding of unsatisfactory professional conduct - orders available in respect of interstate practitioner - consideration of appropriate orders in the circumstances

Council of the Queensland Law Society v Wakeling 2004 QCA 42

Council of NSW Bar Association v Einfeld (2009) NSWCA 255; BC 2009 07813

Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1947) 97 CLR 279

De Pardo v Legal Practitioners Complaints Committee [2000] FCA 335; (2000) 170 ALR 709

Legal Practitioners Conduct Board v Le Poidevin BC200104049

Law Society of South Australia v Jordan (FC SA), 21 August 1998 unreported BC9804072

In the matter of DP and the Legal Practitioners Act 1970 [2005] ACTSC 78

Law Society of NSW v Knudsen (No 2) [2006] NSW ADT 245

Law Society of NSW v Shalovsky [2008] NSW ADT 14

Upon being satisfied that the respondent has breached rule 39.2 of the Legal Profession (Solicitors) Rules 2007 (ACT); and is, as a result, guilty of unsatisfactory professional conduct, the Tribunal reserves its decision concerning any orders to be made pursuant to s 425 of the Legal Profession Act 2006 (ACT).

The respondent is to pay a fine of $5,000 to the Law Society of the ACT.

The respondent is to pay the costs of the applicant as agreed or as taxed.

On 1 April 2009 the Tribunal found that the respondent had breached Rule 39.2 of the Legal Profession (Solicitors) Rules 2007(ACT) on several occasions in 2007 (the breaches) by failing to respond to requirements of the applicant for comments or information consequent on the receipt of complaints concerning his conduct. The Tribunal found that the breaches constituted unsatisfactory professional conduct. The breaches related to three separate complaints. The circumstances in which the breaches occurred and the reasons for the Tribunal's findings are set out in its Reasons for Decision published on 3 April 2009.
On 8 April 2009, the Tribunal heard submissions about the orders that it should make by way of penalty under s 425 of the Legal Profession Act 2006 (ACT) (LPA) as a result of its findings. The delay in finalisation of the Tribunal's decision as to penalty and the preparation of these reasons is attributable to the General President. She records her apology to all parties for that delay.
The applicant was represented by Mr. John Buxton. The respondent, who participated in the earlier substantive hearing on a limited basis, was represented by Mr Wayne Arthur of counsel at the hearing as to penalty.

At the start of the penalty hearing Mr Buxton made an application requesting that the Tribunal correct the orders made on 1 April 2009 pursuant to the "slip rule" provisions found in s 63 of the ACT Civil and Administrative Tribunal Act 2008. The respondent supported the application and the corrections were made by consent. The corrected order is set out at the start of this document. RELEVANT LEGISLATION

The respondent was at all relevant times, the holder of an unrestricted principal certificate issued by the Law Society of NSW. He continues to hold such a practicing certificate. Pursuant to the definitions in s 8 of the LPA, he is an Australian legal practitioner and an interstate legal practitioner, but not a local legal practitioner.
On 18 November 2008 Chairman Harper, the Chairman of the former Legal Practitioners Disciplinary Tribunal, concluded that that Tribunal had the jurisdiction to determine these applications notwithstanding that the practitioner did not hold a local practicing certificate. That decision and details of the transitional provisions by which this Tribunal comes to have jurisdiction in relation to the applications are set out in the Tribunal's earlier decision.
Section 425 of the LPA sets out the orders that the Tribunal may make if, after it has finished considering an application in relation to an Australian legal practitioner, it is satisfied that the practitioner is guilty of unsatisfactory professional conduct. Section 425(1) gives the Tribunal discretion to make one or more of the orders in subsections (3) and (5), or any other order it considers appropriate. Subsections (3) and (5) read as follows:-

(3) The ACAT may make the following orders in relation to the Australian legal practitioner:

(a) an order recommending that the name of the practitioner be removed from the local roll;

(b) an order that the practitioner's local practising certificate be suspended for a stated period or cancelled;

(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period;

(i) stated conditions be imposed on the practitioner's practising certificate granted or to be granted under this Act; and

(ii) the conditions be imposed for a stated period; and

(iii) states the time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed;

(e) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.

(4) The ACAT may make the following orders in relation to the Australian legal practitioner:

(a) an order recommending that the name of the practitioner be removed from an interstate roll;

(b) an order recommending that the practitioner's interstate practising certificate be suspended for a stated period or cancelled;

(c) an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a stated period;

(i) that stated conditions be imposed on the practitioner's interstate practising certificate; and

(ii) that the conditions be imposed for a stated period; and

(iii) a stated time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed.

(5) The ACAT may make the following orders in relation to the Australian legal practitioner:

(a) an order that the practitioner pay a fine of a stated amount of not more than the amount mentioned in section 427;

(b) an order that the practitioner undertake and complete a stated course of further legal education;

(c) an order that the practitioner undertake a stated period of practice under stated supervision;

(d) an order that the practitioner do or not do something in relation to the practice of law;

(e) an order that the practitioner cease to accept instructions as a public notary in relation to notarial services;

(f) an order that the practitioner's practice be managed for a stated period in a stated way or subject to stated conditions;

(g) an order that the practitioner's practice be subject to periodic inspection by a stated person for a stated period;

(h) an order that the practitioner seek advice in relation to the management of the practitioner's practice from a stated person;

(i) an order that the practitioner not apply for a local practising certificate before the end of a stated period.

It is clear that s 425 (3)(a) - (d) and s 425 (5)(b) - (i) detail the orders that the Tribunal may make only in respect of local legal practitioners.
The orders that may be made in relation to interstate legal practitioners such as the respondent, are those referred to at s 425 (3)(e), s 425 (4)(a) - (d) and s 425 (5)(a).
The eight orders set out at s 425 (5)(b) -(i) provide an appropriate list of conditions that the Tribunal could consider including as part of an order made in respect of an interstate legal practitioner under s 425 (4)(d).
Section 427 of the LPA specifies the maximum amount that the Tribunal can impose by way of a fine under s 425 (5)(a_)._ In so far as it is relevant, it provides:-

427 Fines - Australian legal practitioners

_(1) The maximum amount that can be imposed by way of fine under section 425 (5) (a) is - _

(a) for a finding of unsatisfactory professional conduct that does not amount to professional misconduct - $10 000;

(2) A fine is payable to the relevant council in the way and within the reasonable period required by the relevant council.

The respondent tendered an affidavit sworn by the respondent's business partner, Mr W on 8 April 2009. The respondent also gave oral evidence.
Mr W deposed that he has practiced as a solicitor in NSW and in the ACT since December 1991. He is in partnership with the legal practitioner. He referred positively to the personal qualities of the respondent. He said that for some unspecified time during the period in which the breaches occurred, the respondent was carrying the workload of three people. He said that it took some time after his (that is, Mr W's) return from a 2 week overseas trip, for the work of the practice to be brought up to date. We note that the respondent himself made no reference to this. He provided no evidence about any circumstances that contributed to the breaches. Mr W also made an observation about the respondent's lack of confidence in his dealings with the applicant society.
Mr W's evidence was supportive of the respondent, and that is to the credit of both of them. However, the evidence does not assist the tribunal in its consideration of penalty. His personal opinion of the character of the respondent is not relevant for our purposes. His information about the workload of the respondent is also irrelevant. It is too general to enable to tribunal to draw a conclusion that the respondent's workload might fully or partially explain the breaches. The respondent himself did not seek to offer this, or indeed anything, as an explanation for the breaches. Mr W's observation about the respondent's attitude to the applicant reinforces, but otherwise does not add to, the respondent's own evidence.
The respondent did not give evidence during the substantive hearing. He was called by Mr Arthur in relation to the question of penalty only. He gave his evidence in a frank and forthright manner. He did not deny the breaches. He deposed that 90% of his legal practice occurred in NSW. He was asked why he had not yet provided responses to the original letters from the applicant. He said that he did not believe that his responses could assist the Tribunal now in determining what order it should make. He did not appear to be concerned that responses, albeit late, would go some way to discharging the obligation imposed by rule 39.2.
When asked what action he would take in future if he received letters from the applicant requiring him to respond to a complaint, his response was that he would seek advice from counsel. This was in marked distinction to his stated approach were he to received correspondence from the NSW Law Society in relation to a complaint; in that case he said he would respond to that Society. He stated that while he conceded that the applicant had the power to investigate complaints; it is his view that the applicant is not a fit and proper body to investigate complaints concerning him. He said that he formed that view as a result of previous matters between him and the applicant. When pressed about whether he would respond to any requirement from the applicant for comments or information, the practitioner reiterated that he would obtain advice from counsel. His answer fell short of indicating that if counsel's advice was that he should respond, he would then do so and we see no reason why his approach to the two Law Societies should be different..
The respondent was asked to explain why, in light of his stated views concerning the applicant, he had provided a detailed response about a complaint made by Ms Zaat in a letter dated 1 August 2007. He answered by stating that he had replied because Mr W had persuaded him, against his better judgement, that he should do so.
Apart from his view that the applicant is not a fit and proper body to investigate complaints concerning him, the respondent offered no evidence of mitigating factors that the Tribunal should consider when looking at penalty.

In considering the appropriate penalty to impose, the Tribunal notes that the primary objective of the legal profession disciplinary regime is protective rather than punitive.[2] The Tribunal also notes that any penalty should be such as to recognise the importance of upholding the integrity of the disciplinary regime. Maintaining public confidence in the legal system[3], safeguarding the reputation of the profession[4] and setting an example to other legal practitioners[5] have all been recognised as secondary or other objectives of disciplinary action.
In its decision on the substantive issue, this Tribunal found as follows:-

In this case, although there is no evidence that any of the complainants suffered loss or damage or that there was sufficient substance to any of the complaints to warrant any disciplinary action ... the respondent's continuing failure to co-operate with the Law Society and to provide responses when directed is by itself sufficient to constitute a breach ... The fact that some response was made to one complaint and that the complaints themselves were not substantiated leads the Tribunal to conclude that the breaches constitute unsatisfactory professional conduct rather than a professional misconduct.

That is the context in which the Tribunal must consider the penalty it should impose as a result of its finding.
Mr Buxton submitted that the factors that the Tribunal should consider include the degree of contrition and remorse demonstrated by the practitioner, the level of understanding demonstrated by the practitioner of the unsatisfactory nature of his conduct and any previous adverse findings or "convictions" in relation to the practitioner's professional conduct. The Tribunal accepts these are relevant factors. We add that in some cases it will be relevant to consider the circumstances surrounding the acts found to constitute unsatisfactory conduct. An examination of the authorities shows that the likelihood of future re-occurrence of unsatisfactory conduct will also be relevant.
Mr Buxton referred the Tribunal to the 2001 decision of the Full Court of the Supreme Court of South Australia, in the matter of Legal Practitioners Conduct Board v Le Poidevin BC200104049. In that case the defendant was found guilty of unprofessional conduct. He had practiced as a lawyer without holding a practicing certificate. He had also failed to respond to statutory notices requiring him to produce files and provide information to the Board. Doyle CJ, noted at paragraph 25, that neither failure to respond to a proper request by the regulatory body, nor failure to respond to a statutory notice, would usually result in a striking off.
He went on to observe that the circumstances surrounding the acts of unprofessional conduct were relevant to determining the seriousness of that conduct. He said at paragraph 37:

Striking off is reserved for the most serious cases of unprofessional conduct, where the court is satisfied the person found guilty of unprofessional conduct is not fit and proper to remain on the roll of legal practitioners. Suspension is a serious form of discipline which is usually imposed to discipline the legal practitioner who has committed an act of unprofessional conduct but who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law.

The Court found that the circumstances surrounding the acts of unprofessional conduct in that particular case were such that the legal practitioner's name should be removed from the roll of legal practitioners.
Mr Buxton also referred to the earlier South Australian case, of Law Society of South Australia v Jordan (FC SA), 21 August 1998 unreported BC9804072 in which the South Australian Supreme Court noted that delays by a legal practitioner that frustrated the regulator's ability to deal with complaint , might be sufficient to lead a court to strike off the practitioner.
Mr Buxton submitted that while in this case, the complaints had not been substantiated and the practitioner had not positively deceived the Law Society, the practitioner's failure to respond when directed to do so, was so obstructive that the Tribunal should treat the behaviour in the same way as it should an act of dishonesty.
Mr Buxton submitted that the Tribunal should make an order recommending that the practitioner be removed from the NSW roll on the basis of the following:-
- in relation to the three complaints the subject of these applications, the practitioner had failed to respond when required to do so on at least 6 occasions.
- on his own evidence, the one response made by the practitioner on 1 August 2007 was made only as a result of the influence of Mr W. The practitioner made it clear that his "better judgment" would have otherwise been to make no response.
- the practitioner participated in these disciplinary proceedings in the most cursory of ways and chose not to remedy the breaches by filing responses, albeit belatedly;
- On the practitioner's own evidence, the Tribunal could have no comfort that the practitioner would respond to a requirement that he provide information in respect of any future complaints, even if advised to do so by counsel;
- in earlier proceedings the Full Court of the Supreme Court[6] found that the respondent was, on his own admission guilty of unsatisfactory professional conduct for inter alia, refusing to comply with a Law Society direction to respond to a complaint;
- although the practitioner had expressed opinions about the Law Society by way of explanation of his failure to respond, he has not sought to validate his complaint through any legal proceedings. The Supreme Court[7] had noted that it was unable to discern that the Law Society was motivated by any malice, ill will or other bias against the respondent;
- the respondent had not provided any evidence that would otherwise explain his failure to respond.
Mr Buxton submitted in the alternative, that the Tribunal should consider making an order recommending that the respondent's interstate practicing certificate be suspended and that he be required to attend a course on ethics. Suspension could be lifted on satisfactory completion of the course. Further, he said that the practitioner should be publically reprimanded whether or not an order was made recommending the suspension of his practicing certificate. Alternatively, the Tribunal ought to impose a fine. Mr Buxton made no submission about an amount that would be appropriate by a way of a fine.
Mr Arthur submitted that there is difference between a failure to respond and an obstruction and in this case, the Tribunal could not be satisfied that there was any obstruction in so far as the investigation of the complaint was concerned. He said that the information given to the Law Society by Mr W on 25 September and 2 October 2007 gave the Law Society all the information it required to evaluate two of the three complaints. The response provided by the respondent in relation to the third complaint on 1 August 2007 was detailed and provided sufficient information to indicate that that complaint was not substantiated. In those circumstances Mr Arthur said, the Tribunal could not characterise the practitioner's behaviour as obstructive.
Mr Arthur asked the Tribunal to note that the practitioner had given evidence conceding that the Law Society has power to deal with complaints and had given evidence as to how he would respond to such complaints; namely by getting advice from counsel. Mr Arthur referred to that as an appropriate response. He directed the Tribunal's attention to the evidence of Mr W, confirming the practitioner's character.
Mr Arthur submitted that two decisions of the NSW Administrative Decisions Tribunal were more comparable to this case than the authorities relied on by the applicant. He referred to the decision of Law Society of NSW v Knudsen (No 2) [2006] NSW ADT 245. In that case, the legal practitioner was found guilty of professional misconduct in relation to a failure, without reasonable excuse, to comply with a requirement to provide information to the Law Society of NSW. The relevant statutory provision characterised failure to comply with the requirement as professional misconduct. There had been three previous findings of professional misconduct by reason of the failure to comply with the statutory requirement to provide information. The practitioner had also been found guilty of misconduct on other grounds on one occasion. There was no mitigating explanation for the failure. The Tribunal found that the solicitor was likely to fail to comply with future requirements. The practitioner was penalised by the imposition of a fine of $8,000.00. He was also publically reprimanded.
The second decision was that Law Society of NSW vs Shalovsky [2008] NSW ADT 14.
In that case, the practitioner was found guilty of professional misconduct, again as a result of failure to comply with a statutory notice requiring provision of information to the Council of the Law Society of NSW. The practitioner was publically reprimanded. Conditions were imposed requiring the solicitor to satisfactorily complete a risk management course within one year of being issued with a further practicing certificate.

The Tribunal is not satisfied that it should make either an order recommending that the practitioner's name be removed from the NSW roll of practitioners or that his practising certificate be suspended. The evidence before the Tribunal falls short of anything that would enable us to find that the respondent is permanently unfit to practice or that he is unfit to practice for some discreet period. There was no evidence that the work of the practitioner in these particular cases failed to meet the standards of a reasonable practitioner. While we accept that there can be circumstances in which breaches of rule 39.2 justify a strike off or suspension, the breaches on this occasion are not of that order.
However, the respondent has demonstrated no remorse for, or contrition about, the breaches. Indeed, his attitude for the short time he participated in the substantive hearing and while giving evidence at the penalty hearing indicates that he is quite comfortable with his decision not to respond to the applicant Law Society. He gave the impression that it was a deliberate and considered decision.
The respondent's concession that the applicant has power to investigate complaints but his indication that he believes that it is not a fit and proper body to investigate any complaint about him because of a belief that cannot be objectively verified, confirms in our view that he understands the obligations of a legal practitioner but does not accept that the obligations should apply to him in so far as his practice of the law in the ACT is concerned. His attitude has the potential to undermine the integrity of the legal disciplinary system in the ACT.
The respondent's indication that he would seek the advice of counsel if required to provide a response in future matters, is not an appropriate response as characterised by Mr Arthur. It falls short of the commitment to respond that is to be expected of an Australian legal practitioner. The respondent was not even prepared to say that he would respond if advised by counsel to do so. He demonstrates a contumelious disregard for his obligations as an Australian legal practitioner practising law in the ACT.
Taking these matters into account, and noting the adverse finding of the Supreme Court concerning a previous refusal to comply with a Law Society direction, the Tribunal is satisfied that it is appropriate to publically reprimand the respondent and to order that he pay a fine of $5,000.00 to the Law Society of the ACT.

Section 433 of the LPA provides that if the Tribunal finds an Australian legal practitioner guilty of unsatisfactory professional conduct, the Tribunal must order the practitioner to pay costs, unless the Tribunal is satisfied that exceptional circumstances exist.
No submissions were provided to the Tribunal suggesting that there were any exceptional circumstances in this case.
Mr Buxton submitted that the practitioner's failure to effectively participate in these proceedings, including his failure to remain for the hearing, was such that it was appropriate for the Tribunal to order that he pay the applicant's costs on a solicitor/client basis. The Tribunal does not accept that that is appropriate. An order will be made requiring the practitioner to pay the applicant's costs on a party/party basis, either as agreed or failing agreement, as taxed.

DATE/S OF HEARING: 8 April 2009 PLACE: CANBERRA

DATE/S OF DECISION: 9 August 2010 PLACE: CANBERRA

[1] The provisions of s 423A of the Legal Profession Act 2006 apply to this matter.

[2] Council of the Queensland Law Society v Wakeling 2004 QCA 42 at 27 per de Jersey CJ

[3] Council of NSW Bar Association v Einfeld (2009) NSWCA 255 reported at BC 2009 07813 at 16

[4] Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1947) 97 CLR 279 at 286

[5] De Pardo v Legal Practitioners Complaints Committee [2000] FCA 335; (2000) 170 ALR 709

[6] In the matter of DP and the Legal Practitioners Act 1970 [2005] ACTSC 78

Profession (Solicitors) Rules 2007(ACT)

Legal Practitioners Act 1970

Civil and Administrative Tribunal Act 2008

_Council of the Queensland Law Society v Wakeling_

At a glance

Court

Decision date

Before

Source

Judgment (65 paragraphs)

LAW SOCIETY OF THE ACT & THE LEGAL PRACTITIONER P (Occupational Discipline) [2010] ACAT 47 (9 August 2010)

Parties

Legislation Cited (4)

Cases Cited (2)