Law Society of New South Wales v CQS

NCAT Occupational|2016-06-08

Reasons for decision

The respondent commenced practice as a solicitor in June 2009. On 29 October 2015, the applicant applied under the Legal Profession Uniform Law (NSW) No 16a (the National Law), to the Tribunal for a finding of professional misconduct and for disciplinary orders of reprimand, fine and costs to be made against the respondent. The conduct in issue occurred in the 2013-2014 practice year. The respondent did not renew his practising certificate for the year 2014-2015. He is presently working as a law clerk, with a view to returning to practice as a solicitor.
At hearing (8 June 2016) the applicant did not press its application for a finding of professional misconduct, and sought instead the lesser finding of unsatisfactory professional conduct. It also did not press its application for orders of reprimand, fine and costs. It submitted that instead the appropriate order should be one under which any practising certificate issued to the respondent be made subject to restrictions on his mode of practice (for a period of one year) and include health reporting conditions.
The applicant gave the following reasons for its change of position. It was satisfied that the conduct under notice was explained by recurrence of a mental illness (bipolar disorder). The respondent had been first diagnosed with this condition in 1999 when 24 years of age. The applicant stated that the respondent had a good record of actively managing his illness, and was presently engaged in a regular treatment program. It noted that he been fully co-operative and candid with the applicant over the complaints that gave rise to the application and over the detail of his medical history. The applicant submitted that it was in the public interest for the Tribunal to adopt an approach to cases where unsatisfactory conduct was the result of mental illness which fostered rehabilitation of the respondent, and assisted the respondent to remain a member of the profession.

Application for Anonymisation

The applicant and the respondent applied jointly to the Tribunal for an order anonymising the respondent's identity. The applicant emphasised the value for the respondent's health recovery and for his satisfactory re-entry into practice that he not be identified in these reasons for decision, or otherwise. The applicant submitted that it is in the public interest to enable people affected by mental illness to maintain full life in the community and in the workforce as is possible. This policy favoured the use, as appropriate, of suppression or anonymisation orders.
We granted the application. We noted in that regard the decision of Adamson J recently in BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 (BRJ) where her Honour took a similar course for similar reasons. In our view, there remains a real risk that stereotypical negative attitudes may hinder the employment by firms or engagement by clients of lawyers who have mental health conditions such as depression or bipolar disorder. While the usual practice of the Tribunal is to conduct hearings openly and identify respondents to disciplinary proceedings, care is appropriate in relation to the extent of public disclosure that is required of persons whose conduct is attributable to a disability. Having regard to the nature of the matters raised by the application, the steps taken by the respondent to deal with those matters, and the supportive stance of the applicant, we are satisfied this an anonymisation order is appropriate in this case. The public protection function served by publicity of the name of a respondent to a disciplinary application is outweighed, in this instance, by the public interest in supporting the rehabilitation and future career of the respondent.

The Principal Application

We now turn to the principal application. We agree with the applicant's submission that a rehabilitative approach should be adopted in cases where a practitioner's conduct is a consequence of mental illness or mental impairment. We agree that such an approach is appropriate if the Tribunal is satisfied that: 1. the conduct under notice was attributable to the illness or impairment, 2. it was conduct of a kind that could be minimised or avoided by an appropriate treatment regime 3. the respondent can reasonably be trusted to commit to the program, and submit to any reporting or monitoring requirements.
As to the grounds and the circumstances of the conduct under notice, the parties tendered a statement of agreed facts (filed 11 February 2016). The applicant provided an affidavit as to the history of its investigation. The respondent provided two affidavits, one related to the circumstances of his conduct (filed 12 May 2016) the other relating to his health situation (filed 6 April 2016), which included reports from his psychologist and his treating psychiatrist. The applicant provided detailed written submissions that included a chronology of events. The respondent also provided written submissions. Neither deponent was called to give evidence.
The respondent was admitted to practise in New South Wales as a legal practitioner on 3 April 2009. He was the sole principal of a law practice from 19 October 2010 to 1 July 2014.
The applicant reduced at hearing the scope of its case as set out in original application and in the statement of agreed facts.
The first complaint dealt with the respondent's handling of a criminal matter in which he had been retained by the accused to appear before the District Court. It set out circumstances said to justify a finding that he had failed adequately to prepare the case, and a finding that he had failed to appear. At hearing the applicant only pressed the case that the respondent had failed to appear at the second date set for the trial of the matter, 21 February 2014. This resulted in his conduct being referred by the judge to the Legal Services Commissioner. The applicant explained to the Tribunal that it no longer pressed a similar allegation in relation to the respondent's failure to be in a position to proceed at the earlier trial date on 30 October. It accepted that the respondent was not at fault in not having the accused's interstate record, as this was an obligation of the Crown.
The respondent has admitted that he failed to appear on 21 February 2014.
The second complaint concerned his handling of another criminal matter. He had been instructed to appear in an appeal against sentence from the Local Court to the District Court. He failed to appear at the hearing of the appeal on 3 February 2014. The matter was adjourned to 28 April 2014. The facts are admitted.
The respondent did not dispute that each of these failures involved a breach of his duty to the client and his duty to the court.
He had usually dealt with his client in this matter through the client's mother. His last contact with either of them was on 30 January, arranging for funds to be deposited into his office account on account of fees. The respondent took no action to inform his client or the client's mother of what had occurred on 3 February 2014. The respondent and the client's mother met by chance on a local street on 13 March 2014. The mother asked the respondent to contact her son about what was happening in the matter. She wrote to him on 16 March 2014, expressing concern about what he had told her in that conversation, that he was closing his legal practice. She wanted to know what arrangements he had made for another solicitor to take over the matter, and what was going to be done to repay the money she had deposited. Nothing happened. On 22 March 2014 the mother lodged a complaint with the Legal Services Commissioner.
The application alleges that by this conduct the respondent failed to carry out the client's instruction to appear, failed to account to the client for trust property (i.e. the client's file) and failed to communicate with his client.
By letter dated 27 October 2014 to the Law Society, the respondent agreed that he had failed in each of the above ways, and advised that he had agreed to repay the money deposited into the trust account.
The applicant's application referred in some details to the specific rules of the profession that are relevant to the above matters. There is no need, we feel, in this case to set out them out in detail. The relevant rules appear in the Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) at A15 (efficient administration of justice), in the NSW Professional Conduct and Practice Rules 2013 (Solicitors' Rules) at rule 3.1 (paramount duty to the court), rule 4.1 (fundamental ethical duties), rule 5.1 (dishonest and disreputable conduct, we note there is no allegation of dishonesty in this case), rules 7.1 and 7.2 (communication of advice), rule 8 (client instructions) and rule 14 (client documents).
It will be seen that all the conduct under notice occurred in February and March 2014. While the application in this matter was filed under the National Law, the law applicable to the substance of the matter is the Legal Profession Act 2004 (LPA) because the matters resulted from referrals of complaints under the LPA: see further Council of NSW Bar Association v Breeze [2015] NSWCATOD 152 at [41] to [49].
Section 496 provides: unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Section 498 specifies types of conduct capable of being found to be unsatisfactory professional conduct. The first and main category is 'conduct consisting of a contravention of this Act, the regulations or the legal profession rules': s 498(1)(a).
The applicant's submission is that the respondent's conduct involved multiple breaches of the Rules during the period February 2014 and March 2014. We agree with the applicant's submission, not seriously disputed by the respondent, that objectively viewed the conduct proven was conduct that fell within the scope of the main provision (s 496), in that it fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. It is unnecessary to engage in a close inspection of the specific rules on this occasion with a view to making findings relying on s 498. The failures of attendance and preparation involve breaches of the most basic kind of appropriate standards of competence and diligence.
It is well accepted that a finding of professional misconduct will not ordinarily be made if the practitioner was so affected by a mental infirmity, or other disabling factor, at the time of the conduct that he lacked the intent to engage in the conduct: see New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279. There has been a debate in tribunal authorities over whether the same position applies to the making of a finding of unsatisfactory professional conduct in circumstances where the practitioner proves that he or she was affected by a mental infirmity, or other disabling factor, of sufficient degree at the time of the conduct.
In BRJ, after a comprehensive examination of the relevant authorities Adamson J concluded, referring to the statutory test as set out in s 496 of the LPA: 100 The language of the definition of "unsatisfactory professional conduct" is apt to connote that the test is an objective one. In these circumstances the objective conduct, rather than the professional culpability of the practitioner, is of prime, if not sole relevance. Therefore, generally speaking, any mental affliction which the practitioner may suffer is irrelevant to the characterisation of conduct as unsatisfactory professional conduct. However, where the conduct contains a mental element (such as in Kay [Council of the New South Wales Bar Association v Kay [2009] NSWADT 139] where the allegation in the complaint was that he had "wilfully" breached s 255 of the 2004 Act), the test is not entirely objective, since a mental condition may affect the question whether conduct is "wilful". 101 Where the question is whether certain conduct amounts to "professional misconduct", the relevance of a mental condition will depend on the species of professional misconduct. For example, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence (in s 497(1)(a)), the practitioner's mental condition may not be relevant. 102 The mental condition of a practitioner, if it is relevant to the conduct, will generally be relevant to the question what orders ought be made as a consequence of a finding of professional misconduct or unsatisfactory professional conduct.
The evidence in this case as to the respondent's state of mental health in early 2014 is found in his affidavit filed 6 April 2016. The respondent gives a comprehensive account of his history of mental illness from 1999 to the date of the affidavit. He refers in detail to the way he managed that illness in the period from 1999 to the end of 2013, using a range of measures (regular attendance on a psychologist and a psychiatrist, medication, physical exercise, diet, routine sleep patterns, abstinence from alcohol, meditation). He referred to a decline in his mental health towards the end of 2013 (depression, feelings of hopelessness), his resumption of drinking alcohol, conflict in the home, and the breakdown of his marriage. There are two children of the marriage. He referred to the depth of his state of despair by February 2014. His account was confirmed in general terms by medical certificate dated 19 January 2016 from his local GP who he had been seeing since 2011.
We are satisfied that the conduct under notice, belonging to the February-March 2014 period, was attributable to mental impairment.
The respondent goes on in his statement to give a detailed account of the treatment he has received in the period 2014-2016. He is receiving counselling from a Mental Health Nurse Practitioner. His affidavit annexes an account of her treatment. He is having six monthly consultations with a treating psychiatrist. His also attending on a treating psychiatrist in addiction psychiatry. There are statements from each of them annexed to the affidavit. On 9 December 2015 he attended a 28 day residential drug and alcohol program. This is corroborated by an official record from the treatment centre. He referred to other mental therapy and meditation programs that he is undertaking.
We are satisfied that the respondent is undertaking a serious and multi-faceted program to control his disorder, and to regain the freedom from serious illness that marked the years before 2014.
At hearing we sought some more information from the respondent. He informed us that he had migrated to Australia at the age of 25 in the year 2000, and had completed a degree in law in the years 2000-2005, and obtained admission in 2009. He reaffirmed his wish to resume practice. He acknowledged the necessity for appropriate health reporting conditions to be placed on his practising certificate.
We asked him about his contact with legal work in the period since 1 July 2014. He advised us that he had worked part time for a solicitor doing legal research and general administration, for three months about a year ago. This was in the area of the State where he had practised between 2009 and 2014. More recently he had done similar work in a town in another area of the State. His work had included drafting affidavits in 'care' matters. He said that he had also sought to maintain contacts in the legal profession.
We are satisfied that the respondent has taken genuine steps to manage his illness, and that the course of action proposed by the applicant in this matter is appropriate. We were impressed by the steps he has taken to reconnect with the work of the profession, by way of work of a paralegal type.
We will enter a finding of unsatisfactory professional conduct in relation to the conduct ultimately pressed by the applicant.
Disciplinary orders have as their purpose the protection of the public and the maintenance of the standards of the profession. In our view the orders as proposed by the applicant adequately protect the public from any recurrence of unsatisfactory conduct. Clearly there is a need to monitor the respondent's health when he returns to practice. The orders proposed are in line the respondent's suggestions. We are satisfied that he is firmly committed to adhering to them.
There is to be a restriction on work as a sole practitioner for a period of a year. Most importantly, he is to be required to provide a six-monthly report as to his treatment and fitness to practise from his psychiatrist. In that regard we have departed from the terms of the orders as proposed. In proposed order (b) we have replaced the words 'biannual (twice yearly)' with the words 'every six months', to ensure that there is regular reporting at half-yearly intervals.
There was some consideration at hearing of more elaborate conditions going to frequency of consultations, and perhaps involving a psychological counselling. This was seen as impractical, primarily because the respondent is country-based, and access to appropriate services is very limited and significant travel time and other expenses would be involved.
There is no application by the applicant for its costs of these proceedings.

Orders in respect of Principal Application The Tribunal finds the respondent guilty of unsatisfactory professional conduct. Pursuant to s 562(2)(d) of the Legal Profession Act 2004, the Tribunal orders that: (a) For a period of one year, any practising certificate issued by the Law Society of New South Wales to the Respondent be subject to the conditions that: (i) he not work as a sole practitioner, and (ii) he work as a principal under the supervision of a principal entitled to supervise others; and (b) For the currency of any practising certificate, the respondent submit reports every six months from his treating psychiatrist regarding his mental health and fitness to practise.

Anonymisation Order (1) For the purposes of these proceedings the name of the respondent is anonymised as CQS; (2) The disclosure of the respondent's name is prohibited; (3) Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, and subject to any further order of the Tribunal, access to and disclosure of documents and evidence filed with the Tribunal in this application be restricted to the Legal Services Commissioner, the parties and their respective legal representatives. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2016

At a glance

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Judgment (5 paragraphs)

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Cases Cited (3)

Cited By (3)