Law Society of Tasmania v Turner [2001] TASSC 129; Boland v The Legal Profession Board of Tasmania [2018] TASFC 11, referred to.

Legal Profession Act 2007, ss 420 and 421.

Judgment Number: [2022] TASSC 46

LEGAL PROFESSION BOARD OF TASMANIA v GLYNN WILLIAMS

1. The respondent is an Australian lawyer for the purposes of the Legal Profession Act 1993 (the Act). He was admitted in 1993 and has been in practice since then.
2. The Legal Profession Board of Tasmania (the Board) submits that the practitioner's conduct falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner, and that the failure is substantial. It seeks a declaration that he is guilty of professional misconduct by reason of the following conduct:

"(a) putting two offers of settlement to TA (the complainant) by letters dated 13 April 2018 and 31 May 2018 to the complainant's solicitors Ian Guest & Associates, which were made on behalf of his client KP to settle matrimonial property matters and which were contingent on the withdrawal of complaints regarding Mr P's conduct made by the complainant to Tasmanian Police in circumstances where:

(i) Tasmania Police had laid charges against Mr P in respect of the complainant's complaints;

(ii) The criminal charges were before the courts;

(iii) The offers of settlement sought to persuade and/or place improper pressure on the complainant to withdraw her complaints to Tasmania Police and/or her cooperation with the prosecution of the offences laid against Mr P;

and as such the Respondent's conduct had the tendency to interfere with the due administration of justice;

(b) the Respondent's conduct is aggravated as he knew prior to 13 April 2018 and/or 31 May 2018 that Mr P had been charged by Tasmania Police with perverting justice in breach of section 105 of the Criminal Code Act 1924 for making a written offer of settlement to the complainant in terms of or similar to the offers of settlement referred to in 1(a)."

1. The respondent contends the admitted conduct constitutes professional negligence. If the Court does not accept that submission, the practitioner contends that his conduct amounts to "unprofessional conduct".
2. It is not disputed, and I find, that the respondent's conduct occurred in the course of his practice of the law.

1. The Board seeks an order that the respondent be reprimanded, pay a fine in the sum determined by the Court, and at his own expense undertake and successfully complete a course in legal ethics and professional responsibilities approved by the Board.

1. The facts are not in issue and I find them proved. Relevantly they are:

1 The Board received a complaint from the former wife of the practitioner's client.

2 She had made complaints to Tasmania Police alleging that the practitioner's client had assaulted her; she had taken out a police family violence order against him for her protection.

3 In February 2018, the practitioner's client was charged with two counts of common assault against the complainant.

4 On or about 9 March 2019 the practitioner's client wrote to the complainant, through the practitioner, offering to settle their matrimonial property dispute on terms which included that "all legal pursuits and accusations cease including Tas Police. All matters are then resolved, finalised".

5 On or about 19 March 2018 the practitioner's client was charged with a single count of perverting justice in breach of s 105 of the Criminal Code Act 1924.

6 The practitioner appeared on behalf of his client in the Burnie Magistrates Court in respect of that matter.

7 The practitioner wrote to the complainant's solicitor on 13 April 2018 and 31 May 2018 conveying an offer to settle the matrimonial property dispute on terms expressed to be contention upon the withdrawal of complaints regarding his client's conduct to Tasmania Police.

8 There were modifications to the settlement proposals, in material for present purposes, but the requirement for the withdrawal of the complaints made to Tasmania Police, as a condition of settlement, was maintained.

9 At the time of the letters from the respondent in April and May, which include that contiguously, he was aware that his client had been charged with perverting the course of justice.

1. In the course of its investigations the Board procured additional documents from the complainant and the practitioner. It also accessed the Magistrates Court files pertaining to the family violence order and the offences alleged against the respondent's clients. In May 2019 it determined the summary dismissal of the complaint could not be entertained and the matter proceeded to investigation in accordance with s 440 of the Act.
2. The Board sought a response from the practitioner in relation to the matter. He responded as follows:

I refer to your principal letter in this ongoing matter. I apologise for the delay. I took a personal holiday in July with my family during the school holidays.

In late June I received a lengthy demand from Ms A's legal practitioner. The demand was to the effect that unless I personally paid for an amount that Ms A claimed as a shortfall on the family law settlement, I would be the subject of legal proceedings against me personally and further professional complaint.

Upon review of my file I determined that tax debt information of the husband that was being complained of by Ms A's legal practitioner had been disclosed to him. This was many months before the reference to a figure at a mediation that was referred to and has been asserted as a matter to be relied upon against me. I sought an apology and withdrawal but this has not happened.

Point 1- the 4 false allegations mentioned were the assault charges and Family Violence charges. I am led to believe by Mr P that all 4 FVO charges were dismissed with no evidence tendered. Two of the assault charges were dismissed with no evidence tendered.

The offer 'being conditioned' meant the charges were to be dropped by her (as they ultimately have been) and the property settlement offer be accepted. These were my instructions.

2 - The documents used were the disclosed documents being 'dozens of documents' provided to CSA and Centrelink. The documents, Mr P instructed me, were also being openly discussed with the children and A's friends.

3 - Sale of property, this is a very broad question and in this time the initial 'offer' through Elders was made and rejected, otherwise the instructions in that time related to Mr P's requests for access to the house to retrieve items. Access was denied. Another issue was choice of agent and sale price setting, payment of the Mortgage where Ms A was paying nothing nor rates nor insurance. The first offer through Elders was $50,000 below an appraisal. Despite living at the property after Mr P left for about 12 months, Ms A did not pay anything towards the mortgage, insurances or Council rates. As neither party made payments the debts payable on the sale of the property were increased over time.

4,5,6,7 this relates to Mr P's instructions to me about Ms A's ongoing hate posting Facebook campaign about Mr P, face to face conversations in the street with various people who would then talk to him and her accusations about his business circumstances to CSA, ASQA and the ATO.

The range of criminal conduct was being the making of false complaints about Mr P to government agencies, breaches of the Family Law Act about the publication of family law material to third parties, use of an electronic carrier service to harass and stalk him."

1. At the conclusion of the investigation the respondent was invited to make further submissions which he did. His submissions were in these terms:

In response to the core allegation, that I improperly made offers of settlement on behalf of my client on terms that required the withdrawal of police complaints, I respond as follows.

I submit that the offers made in the correspondence were not improper when viewed in the proper context. My instructions were clear, indeed they appear in the initial email from my client on 30 January 2018, Ms A's allegation of an assault was false and, moreover, Ms A used threats of giving false statements to police and made false statements to police against my client. Once that premise is understood, being that my instructions were that the allegations were untrue, it does not follow, as asserted at paragraph 7 of Annexure A that I engaged in unsatisfactory profession conduct or professional misconduct.

I was bound by my instructions and, at no time, was I made aware that those instructions were not true. My client asserted that the allegations were false, and it was his right to make complaint (or not) to police to that effect. The offer was based precisely on this state of affairs. The offer asserted that the allegations were false and vexatious. Further, it was noted that there were claims made by each party against the other that were rejected. That is, parties considered each other capable of mendacity. The fact that the complaints had been made to the police or that my client had not made a complaint or, indeed, the fact all charges were subsequently dismissed is neither here nor there. The offer was to effect that she desists in making false allegations and it was also offered that my client would not make a complaint against her. This compromise (almost like an account stated) did not involve a threat that my client would make a false complaint against Ms A if she didn't withdraw her complaints, but rather it was more akin to a mutual release from each party's disputed claims.

I accept that if there was any truth in Ms A's statements, or more particularly if I knew that the statements were true, making an offer contingent upon a person withdrawing criminal charges would be grossly unethical. I appreciate this, as evidenced by my advice to my client dated 5 February 2018 in which I advised him that conduct involving a person who threatens to tell untruths unless paid money amounts to blackmail.

The purpose of the offer was to have Ms A desist from making false statements, not have her desist from making a valid complaint to police. I accept the appearance of the offer may be construed otherwise, by from my perspective, I was not (and nor was my client) trying to stifle Ms A's legitimate recourse in the courts.

In any event, the offer was not accepted and, as noted above, all the charges were dismissed. As matters transpired, no harm befell any person.

I respectively ask the Board to dismiss the complaint as lacking in substance. The offers were not made to pervert the course of justice. Viewed in their proper context they were merely terms offered to the other party to desist from false allegations as part of an overall settlement of the dispute."

1. The respondent gave evidence on the hearing of the application.
2. Though it is not relevant to the matter before me, the charge of perverting the course of justice against the respondent's client was not proceeded with, and the family violence charges against him were dismissed or discontinued.
3. Unsatisfactory professional conduct, and professional misconduct are defined in ss 420 and 421 of the Act as follows:

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.

(a) unsatisfactory professional conduct of an Australian legal practitioner, where 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 occurring in connection with the practice of law or occurring 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.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1) , regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate."

1. Section 422 of the Act identifies types of conduct caught by these concepts:

"422 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

(1) Without limiting section 420 or 421 , the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct:

(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules;

(b) charging of excessive legal costs in connection with the practice of law;

(c) conduct in respect of which there is a conviction for -

(d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration;

(e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth;

(f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice);

(g) conduct of an Australian legal practitioner in failing to comply with an order of the Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law);

(h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.

1. That list is inclusory, not exhaustive.
2. In addition to the statutory categories of professional misconduct defined within the Act, professional misconduct extends to behaviour on the part of a legal practitioner which would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competence: Law Society of Tasmania v Turner [2001] TASSC 129, 11 Tas R 145, per Crawford J. In that case, Crawford J, as he then was, observed [50] that "in a general sense, professional misconduct should be regarded in this State as a more grave form of misconduct than unprofessional conduct. There may well be an overlap and the same conduct might in some cases amount to both of those things."
3. The proper characterisation of professional conduct falls for determination upon the making of an evaluative judgment about the impugned conduct: Legal Profession Board of Tasmania v Barclay [2022] TASSC 14 at [11], per Brett J.

1. Before me, the applicant emphasised the gravity of the practitioner's conduct in attempting to influence the continuation of the proceedings in the Magistrates Court, particularly in respect of the allegation of perverting the course of justice.
2. The gravity of a charge of perverting the course of justice, cannot be understated, because it strikes at the administration of justice. It is by that process that criminal conduct is punished and controlled. In this instance, the charge arose in the context of allegations of family violence, and it ought not be overlooked that there are inherent difficulties in the prosecution of such matters without such interference, involving vulnerable complainants as it does. Viewed in the context of the practitioner's duty to the Court, and the reasonable expectation of legal practitioners' appreciation of the seriousness of such interference, the conduct has a complexion which might not ordinarily be applied to similar behaviour by a non-legally trained person.
3. Counsel for the respondent submitted that a consideration of the gravity of the behaviour required recognition of the fact that the matter had become the subject of a police prosecution, and that therefore, the attempt to influence the complainant, might not have in fact, achieved its purpose. This submission relies upon the Court accepting a proposition that in taking account of all relevant circumstances, regard should be had to the "likely durability of the influence of the communication on its audience": Gaudry. It is submitted that "as a matter of practical reality, there was no real prospect" of the conditional offer effecting the prosecution of that matter. That is because it was "ultimately a decision for the police as to whether to proceed even without the complainant's co-operation. "That submission has no force in the context of pressure to discontinue proceedings for the alleged assaults, but I accept it in respect of the pervert justice charge because that charge relied less upon the co-operation of the complainant. That is, it could have been prosecuted anyway by the police, even if the complainant was desirous of discontinuing the allegations of assault.
4. It is further submitted for the respondent, that as a matter material to a consideration of all of the relevant circumstances that the offers which were made were "not harassing, threatening, intimidating or abusive".
5. It is not in contention that, in putting the settlement proposal in the form it took, the practitioner was acting in accordance with his instructions, but to my mind that makes no material difference. Legal practitioners are not robots merely putting the instructions of their clients. As officers of the Court to whom the paramount duty is owed, they are expected to apply considered judgment not just to the way in which the client's instructions are put, but whether those instructions are put at all.
6. In evidence, the practitioner indicated that "the last thing I ever intended" was to do something that would place the client in a position where he was charged with perverting the course of justice, or to do something which was improper. In a sense, that makes out the applicant's ultimate point, because the practitioner's failure to appreciate the gravity of his conduct speaks to a concerning gap in his appreciation of his obligation to the Court, and fundamental principles underpinning the due administration of justice more generally.

1. It is open to a court to determine that a practitioner's conduct is neither professional misconduct nor unprofessional conduct, but rather amounts to mere negligence Turner (above) and Boland v The Legal Profession Board of Tasmania [2018] TASFC 11 per Estcourt J at [33], Martin AJ at [105]. The facts of this case do not permit of a conclusion that the conduct of the practitioner is explicable in terms of negligence alone.
2. I have considered the evidence of the respondent, contained in his affidavit of 7 May 2021, which was read into evidence. I have regard to his oral evidence. Relevantly, he asserts that the allegations of assault were put to him as false; that that was accepted on face value without reference to witness statements; that the offers were advanced to protect his client's mental health in circumstances where he believed his client to be suicidal; and were privileged communications. As to that last point, the practitioner conceded that his reference to s 131 of the Evidence Act, as affording him a scope to proceed as he did, was a mistaken view. Mention is made in the evidence of the practitioner's client having been convicted of a serious offence in the USA, but ultimately nothing turns on the practitioner's ignorance of the detail in relation to that matter. Nor is there any relevance to my assessment of the practitioner's conduct in the fact that the practitioner believed his client had a good record. It might of course explain his willingness to accept his client's repudiation of the allegations.
3. There is considerable force in the submissions made on behalf of the applicant. I have already addressed the seriousness of the attempt to influence the complainant in respect of the family violence allegations and the gravity of attempts to influence the execution of those matters.
4. The practitioner's explanations for his conduct, which I accept to be genuine explanations, establish that his conduct was deliberate in the sense that it was more than merely careless or negligent. It was at least careless or negligent because the practitioner's failure to appreciate the fundamentally objectionable nature of the way in which he proceeded to prosecute his client's instructions goes further. It falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
5. At the very least, I am satisfied that the practitioner is guilty of unsatisfactory professional conduct.
6. Is it professional misconduct as that concept is defined in the Act or in the common law? In my view the practitioner's conduct constitutes a serious failure to reach a standard of competence and diligence sufficient to satisfy s 421(1)(a) of the Act. However, as Mr McTaggart SC submitted, the Court must also be satisfied that such conduct justifies a finding that the practitioner is not a fit and proper person to engage in legal practice, before the statutory definition is satisfied.
7. I am not satisfied that the practitioner's failure justifies such conclusion. My reasons for so concluding are based upon my evaluation of his conduct and are in substance that the practitioner has not exhibited more than incompetence; more than a failure to comprehend the gravity of his actions. His conduct was not hidden, or underhand, did not exhibit dishonesty, and was not undertaken in bad faith. It was directed to an experienced fellow practitioner, a fact which exposes his ignorance of the seriousness of what he was doing. His character is not impugned by his conduct. I cannot say he is not a fit and proper person to engage in legal practice. The second limb of s 421(1) is not satisfied.
8. If I apply the common law formula requiring conduct which "would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competence", I arrive at the same conclusion. I am not satisfied the conduct of the practitioner would be regarded as disgraceful or dishonourable by that class of persons. His conduct falls sort of the level of gravity which would justify such conclusion; incompetent, but not dishonourable or disgraceful.
9. I am not satisfied that the practitioner is guilty of professional misconduct.
10. I reiterate the underlying point, that a legal practitioner has a duty to bring to bear his or her own assessment of the consequences of "putting instructions", to advise the client accordingly and in such instances not implement the approach the client might prefer. The application of that "filter" is a core function of a lawyer's professional responsibility, which if not applied amounts to a dereliction of that obligation.
11. I make a declaration to the effect that the practitioner is guilty of unprofessional conduct.
12. The appropriate response, having regard to my findings with respect to the practitioner's failure to understand the true nature and effect of his conduct, persuades me that there is merit in requiring him to undertake and complete a course in legal ethics and professional responsibilities. Whilst I accept that these proceedings will have exposed the practitioner to a more complete appreciation of matters, I consider the failure exhibited here necessitates an order requiring the practitioner to engage in such programs. I so order.
13. I also consider that the practitioner's failures require an additional order reprimanding him, and I so order.
14. I do not consider it necessary to impose a fine.
15. I will hear counsel as to costs.