LEGAL PROFESSION COMPLAINTS COMMITTEE and A LEGAL PRACTITIONER [2013] WASAT 37 (21 July 2014)

LEGAL PROFESSION COMPLAINTS COMMITTEE and A LEGAL PRACTITIONER [2013] WASAT 37 (21 July 2014) - WASAT 2014 case summary — Zoe

[53]

This situation [that the conduct and investigation occurred under the legislation prior to the commencement of the LP Act] is covered by the LP Act. By s 622, Part 13 of the LP Act (which provides for complaints and discipline) applies in relation to the conduct of legal practitioners whether the conduct occurred before or after the commencement day; and to conduct consisting of a contravention of the 1893 Act or the [Legal Practice Act 2003 (WA)] before the commencement of s 622, as if the conduct consisted of a contravention of the LP Act. The effect of that provision is that unprofessional conduct in the form proscribed under the earlier Acts is capable of constituting, and to the extent established must be categorised as, unsatisfactory professional conduct or professional misconduct under the LP Act.

...

The common law concept of 'unprofessional conduct' (sometimes expressed as 'professional misconduct', sometimes signifying more serious misconduct) is conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence; or that, to a substantial degree, falls short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. See Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle) for a recent restatement and application of this notion in Western Australia, which is not to be treated as codified or exhaustive.

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It cannot have been intended by the legislature that only conduct involving 'competence' (to do with skill, capacity and ability) and 'diligence' (to do with application to the task) should (in addition to conduct establishing unfitness to practice) fall for consideration and that other instances of unprofessional conduct (for example dishonesty or impropriety) which exist at common law should no longer constitute conduct covered under the LP Act. (Professional standards include but are not limited to consumer protection). So much follows as a matter of common sense and from the operation of s 622 as described above. Moreover, s 401 includes as the purposes of Part 13 'to promote and enforce the professional standards, competence and honesty of the legal profession'. ... .

[80]

28 Mr Rynne's submission assumes importance in the context of a submission he made, which is addressed below, that the practitioner was not under any duty to notify Mr A of the proposed consent orders, because there was no statutory requirement, or written rule or practise, requiring him to do so. The short answer to the submission about the absence of particulars of professional conduct rules or practise in relation to notification of third parties is that it is clear, including from the decision in Caine, that a finding of professional misconduct is not dependant upon the existence of or a departure from a specified rule or practise. It can be based, as in this case, on conduct within the first limb of the common law concept of unprofessional conduct (historically, professional misconduct), as restated in Kyle, namely 'conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence'. The substantive answer to the submission is that, as discussed below, the duties upon a legal practitioner, whether representing a client or conducting proceedings for themselves, of fairness, honesty and propriety in relation to third parties, including the duty to notify a third party whose rights or interests are, or may be, affected by proposed orders, and the court or tribunal of the third party's interest, and not to mislead a court or tribunal, are so fundamental and selfevident for the proper conduct of a legal practitioner, that it is unnecessary for them to be recorded in a written rule or practise in order to be binding on members of the profession. Finally, the practitioner's conduct in relation to each of grounds (a)(d) may be described as a breach of the Law Society of WA Professional Conduct Rules in force at the end of 2004. Rule 3.1 provided: 'A practitioner shall not attempt to further his client's case by unfair or dishonest means.' The case is all the stronger when it is the practitioner's own case which he is seeking to advance by such means. (We should record that this rule was not referred to by the Committee.)

[145]

Did you say there were any conversations on 7 December?---No. I had no recollection of ringing or talking to [Ms B].

No. Let's not talk about recollections. Are you denying that there were any conversations on 7 December?---I'm sure they didn't occur. I didn't talk to [Ms B]. I didn't have any need to talk to [Ms B].

You're sure they didn't occur?---Well, I'll be clear. My recollection is I did not talk to her after the 1st or the 3rd in there. So on that basis, I cannot recall any conversation on the 6th or the 7th about any subject matter. I just cannot recall it. It was done, it was finished.

You said two somewhat different things there, ..., and I need to get to the bottom ?---Sure. Yeah.

of what your evidence is?---Yeah.

Is your position that there were no phone conversations on 7 December with Ms [B] or is your evidence that you do not recall ?---No. My evidence is - and I do apologise for that, I was too quick - I cannot recall those conversations, in fairness, at all. ...

There you say you didn't have these conversations?---No. What that means is because we didn't have them to talk about specific - this deflection issue. Your pleading says there were two telephone conversations in which deflection of specific performance was discussed. They did not occur. Those conversations did not occur. There was never a conversation on the 7th about deflecting specific performance. You asked me about whether I had a conversation with her. I can't recall on other stuff - or I can't recall - but that's not what your pleading says and that's what that's addressed at.

So you might have had a conversation with her or conversations with her on 7 December?---I can't recall any conversation on those dates.

Therefore, you ?---But I definitely didn't have one about specific performance and deflection, and any of that stuff.

I'm just trying to assist the tribunal by getting some clarity on your evidence, ...?---Yep.

You cannot recall, but it's possible, that you had one or more conversations with Ms [B] on 7 December. Is that right?---Not on this content.

No. I haven't put the subject matter to you, .... We'll get to that?---Possible. Possible.

It's possible, but you can't recall?---No.

What you deny is that there was a conversation or conversations in the terms set out at paragraph 16 of the application?---Yeah. Absolutely. They never occurred. Yep.

And you appreciate, don't you, that allegation is quite an important one in terms of reflecting on your, if it's true, on your motivations at the time?---You're asking my opinion?

Yes. You understand ?---It seems to be an important part of your case.

Yes?---Yeah.

Because you would accept now that it wouldn't be appropriate to file a consent order to deflect or defeat a specific performance claim, do you?---Well, the language that's used imports some sort of malice or some sort of - and I would have thought, "No. It's completely wrong to do that sort of thing."

Completely wrong?---Well, the way you've pleaded it, yeah, the way you've sort of pleaded the sort of sinister or malicious sort of aspect to it.

(T:69.571.5, 7.3.12).

[153]

85 We accept Ms B's evidence of the fact and content of the telephone discussions with the practitioner in the period from 1 to 7 December 2004 as related in her evidence, because the telephone conversations are evidenced by contemporaneous file notes and because we find that Ms B was an honest and impartial witness who gave consistent evidence. Ms B was candid and direct in her evidence, and was prepared to make appropriate concessions. In contrast, as we found earlier, the practitioner gave inconsistent evidence about the telephone conversations on 6 and 7 December 2004 (and, as we find below, on another topic see the final matter discussed under the practitioner's arguments below). In addition, as we find below, the practitioner explained his motives and intentions in having the consent orders made by the Family Court of Western Australia, and the subject property transferred to the wife pursuant to the consent orders, during a hearing in the Court on 14 March 2005, in terms that are generally consistent with his statements to Ms B about Mr A's claim to specific performance in the 3 and 7 December 2004 telephone conversations as related in Ms B's evidence. Although the practitioner did not use the word 'deflect' in his explanation to the Magistrate, he said that his understanding at the time the consent orders were sought was that the orders, once made, would prevail over Mr A's claim to (possession of) the subject property in the circumstances, and that orders keeping open the potential for specific performance, rather than damages, for Mr A, by maintaining an interim injunction precluding the registration of the transfer of the property to the wife, would allow 'that whole arrangement [of the subject property serving as the children's home with their mother] to be put into jeopardy'. Finally, the practitioner conceded that he did not make and keep any file notes of his telephone conversations with Ms B. For all these reasons, where there is a difference between the evidence of the practitioner and Ms B in relation to the December 2004 telephone conversations, we, therefore, prefer the evidence of Ms B.

[370]

The principles to be applied in an application of this kind are well established. The court's jurisdiction with respect to the regulation of the legal profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession: Re Maraj (a legal practitioner) (1995) 15 WAR 12, 25 (Malcolm CJ, Kennedy and Franklyn JJ agreeing); Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 286 (Dixon CJ, McTiernan, Fullagar and Kitto JJ agreeing); Legal Profession Complaints Committee v Masten [2011] WASC 71 [16] (Martin CJ, Murray and EM Heenan JJ); Legal Profession Complaints Committee v Brennan [2010] WASC 198 [10] (Martin CJ, Murray and Hall JJ agreeing); Legal Profession Complaints Committee v Fitzpatrick [2011] WASC 320 [43] (Martin CJ, EM Heenan and Jenkins JJ).

Where the motion is to remove a practitioner from the Roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner: Ziems (297298); A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [15] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 [43] (Steytler P, Wheeler JA and Newnes J). Fitness to practice [sic] law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges: In re Davis [1947] HCA 53; (1947) 75 CLR 409, 420 (Dixon J); Legal Practitioners Complaints Committee v Thorpe [43] (Steytler P, Wheeler JA and Newnes J); Legal Profession Complaints Committee v Brennan [11] (Martin CJ, Murray and Hall JJ agreeing).

Striking off is an order reserved for very serious cases, where the character and conduct of the practitioner is seen to be 'inconsistent with the privileges of further practice': Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 [38] (Thomas JA, McMurdo P and White J agreeing).

Integrity and honesty are essential characteristics expected of a practitioner, and therefore, the court has generally taken a very serious approach when dealing with dishonesty by a practitioner: Brennan [15]; Legal Profession Complaints Committee v Bachmann [2011] WASC 309 [47] (Martin CJ, EM Heenan and Jenkins JJ); Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 [22][23] (Steytler P, Wheeler and McLure JJA agreeing); Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 [69] (Parker J); Re Maraj (25) (Malcolm CJ, Kennedy and Franklyn JJ agreeing). In Barristers' Board v Darveniza, Thomas JA observed that:

[469]

The Committee submitted that in view of the findings made, a strike off order was appropriate.
Ms B, whilst accepting the seriousness of the findings against her, submitted that, in all the circumstances, such an order was not necessary to meet the proper objectives of the imposition of a penalty, and in particular the findings did not, when considered against her otherwise impeccable professional career, lead to the conclusion that she is not fit to remain on the roll.
The Tribunal reached the view, based on the authorities cited, that although a single finding of misleading a court might justify a strike off order, such an order was not mandated whenever a finding of misleading a court was found.
Ms B had a legal career of approximately 29 years, including 24 years in professional practice, three and a half years as a Registrar and one and a half years as an acting Magistrate of the Family Court. She had not been the subject of any other disciplinary proceeding.
Ms B produced 26 character references, including from members of the judiciary and the profession. All referees had read the Tribunal's reasons. The Tribunal found that collectively these strongly supported the conclusion that the conduct the subject of the proceeding against her was entirely out of character. The Tribunal was satisfied that Ms B's actions, motivated by a misguided desire to secure her client's interests, involved a single lapse in her otherwise high professional standards, rather than a flaw in her character which rendered her unfit for legal practice.
Ms B had acknowledged that her conduct was a serious error of judgement, and that she was uncomfortable with her avoiding Mr A's solicitors. She maintained that she did not intend to misled the Family Court, which the Tribunal regarded as a matter of concern, but she acknowledged in retrospect that she should have notified the Court and the third party, both before and after the making of the orders.
After the Tribunal's conduct determination, Ms B acknowledged that she was involved in serious breaches of her professional duties, including recklessly misleading the Court.
The Tribunal's finding was that her conduct should be seen as a serious aberration deserving of a significant penalty, but not as demonstrating an underlying unfitness to practise.
The Tribunal regarded a period of suspension from practice as one that would have been appropriate, but as her current employment with the Family Court did not require a practising certificate, suspension would be of no practical effect.
In those circumstances the Tribunal imposed a fine of $20,000.

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LEGAL PROFESSION COMPLAINTS COMMITTEE and A LEGAL PRACTITIONER [2013] WASAT 37 (21 July 2014)

Legislation Cited (4)

Cases Cited (26)