LEGAL PRACTITIONERS CONDUCT BOARD v BOYLEN No. SCCIV-03-57 [2003] SASC 241

LEGAL PRACTITIONERS CONDUCT BOARD v BOYLEN No. SCCIV-03-57 [2003] SASC 241 - SASC 2003 case summary — Zoe

[97]

66 This is a very difficult case. I have given it anxious consideration. The protracted course of lies and deceit in which Boylen has engaged is extremely serious and, in other circumstances, would have constituted grounds on which to remove his name from the roll of practitioners, particularly in light of his other unprofessional conduct. There is no doubt about the moral blameworthiness of his conduct. However, regard must also be had to his proven competence when acting for all of his other clients. In addition, his misconduct resulted in no financial gain to him. Competence should not be confused with honesty. There are instances where competent legal practitioners have been struck off because of dishonesty. As already mentioned, this is a case of a practitioner who failed to prosecute properly the affairs of two clients who, because of his pride, lied to them and others. Not without some hesitation, I have concluded that, despite the gravity of his offending, he is a fit and proper person to remain in practice. In reaching that conclusion, I am satisfied that sufficient reliance can be placed upon Boylen's assertion that he will not re-offend again. It might be said that his past misconduct wholly belies any reliance on his assertions. However, the problems which led to his past misconduct have been addressed. I am satisfied that he has clearly learned from his past mistakes and misconduct and has addressed the character defects which caused both. There is evidence of a change of character. He is aware of the need to consult with colleagues on matters which are difficult or unusual. He is conscious of the severe consequences upon his clients if he fails to do so. Equally importantly, his firm has established management procedures to prevent future lapses of this kind. His workload has been considerably reduced to almost half that it was in 1996 and 1997. His work, along with the work of all other practitioners in the firm, is subject to review. In his case, it is subject to internal and external supervision and he recognises the need for that supervision and is willing to participate in it. It is clear that he has considerable support both from his family and, significantly, from his peers. He has addressed the psychological issues which, in part, allowed him to lie and deceive for such a long time.

[136]

As you will see from the file, I was previously admonished by the Board on 28 January 1998 for my conduct in April and May 1997 concerning Mr McGuirk - I agreed to the admonishment.

Whilst I was fully aware that my conduct was deserving of an admonishment and I was contrite for my conduct, I did not fully consider the individual triggers that led to the conduct. At the time I earnestly believed that I would not repeat such conduct. Unfortunately, because of my failure to fully and objectively and analyse the matters or events that led to such conduct, regrettably the conduct re-occurred. Whilst I did heed the warning and advice from the Board relating to my professional duties, I remained somewhat ignorant of the elements I must be alert to and hence further ignorant of what action I should take.

Due to my earlier conduct re-occurring and the consequent personal agony I have experienced, I believe I now understand the reasons for my conduct (over both periods) and the reasons why the belief I held when admonished in January 1998 that such conduct would not recur - was false. I have and continue to implement strategies to prevent further recurrences:

- Prompt returning of phone calls;

- Direct telephone line on all correspondence;

- Identifying any problems at an early stage and dealing with them promptly;

- Reduction of my workload by

(a) reducing the number of new clients;

(b) only accepting instructions on matters that I have the time resources to deal with fully (the aim being to avoid the problem of the more difficult cases being left in favour of the less difficult); and

(c) delegating more work.

- Ensuring that I have more time in the office where I am not in conference with clients and so I am able to deal with more difficult matters and the administration of my practice. Previously, I had no 'down-time' in the vast majority of my days. I now fully utilise this allotted 'free time' and feel I am more in control of the broard base of my practice;

- From the beginning of March 1999 when my assistant solicitor increases her work load, I will be taking one day per fortnight to work from my home office on files that need space and time for full consideration.

I am happy to expand on any of the above. Further, I am happy to consider and implement any suggestions from the Board.

I request the Board to reconsider this matter so that it may conclude with a further admonishment.

At a glance

Court

Decision date

Before

Source

Judgment (169 paragraphs)

LEGAL PRACTITIONERS CONDUCT BOARD v BOYLEN No. SCCIV-03-57 [2003] SASC 241 (1 August 2003)

Parties

Cases Cited (11)