LEGAL PROFESSION COMPLAINTS COMMITTEE and SEGLER [2010] WASAT 135 (30 September 2010)

LEGAL PROFESSION COMPLAINTS COMMITTEE and SEGLER [2010] WASAT 135 (30 September 2010) - WASAT 2010 case summary — Zoe

[114]

For a practitioner, in the course of his or her practice, intentionally to mislead anyone is a serious breach of the practitioner's professional duty. But the finding in the present case that the appellant intentionally misled the Court is of particular significance. It goes to the very heart of a practitioner's duty as an officer of the Court and therefore to the proper administration of justice. We would respectfully adopt what was said in this respect by the Queensland Court of Appeal in Council of the Queensland Law Society Inc v Wright [2001] QCA 58, a case involving a solicitor who (among other things) misled a Court in relation to an affidavit relied upon to resist a summary judgment application and as to the availability of a witness. The Court said:

'A practitioner's duty to the Court arises out of a practitioner's special relationship with the Court; it overrides the duties owed by a practitioner to clients or others ... The lawyer's duty to the Court includes candour, honesty and fairness ... The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners' submissions to the Court. This duty of candour and fairness is quintessential to the lawyer's role as officer of the Court; the Court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent, but also to reassure the public that such conduct on the part of lawyers will not be tolerated. (Footnotes omitted.)' ...

As we have observed, it is a matter of the utmost seriousness for a practitioner intentionally to mislead a Court. The effective administration of the justice system and public confidence in the system depends upon the absolute and conditional discharge by practitioners of their duty of honesty and candour to the Court. It is a duty so fundamental that factors such as relative inexperience and lack of supervision do not weigh so heavily in mitigation as they might in other situations. A deliberate departure from the duty must attract a substantial penalty. We consider that in the circumstances of this case the penalty of three months' suspension imposed by the Tribunal was appropriate. We would dismiss the ground of appeal.

[145]

The Tribunal finds that, between 14 January 2008 and November 2008, Martin Lee Segler was guilty of unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA) by contravening the Legal Practice Act 2003 (WA) by suing his client DC for the recovery of a disbursement (counsel's fees) without having served on his client a bill for the disbursement and by failing to discontinue those proceedings, contrary to s 230(1) of the Legal Practice Act 2003 (WA).
The Tribunal finds that, between 18 January 2008 and 1 April 2009, Martin Lee Segler was guilty of unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA) by contravening the Legal Practice Act 2003 (WA) by failing to comply with a written request dated 18 January 2008 from DC's new solicitor to lodge four bills of costs dated 10 January 2008 with a taxing officer, contrary to s 237(1) of the Legal Practice Act 2003 (WA).
The Tribunal finds that, between September 2007 and January 2008, in the conduct of instructions from his client NC, concerning payment of the legal fees of Mendelawitz Morton, Martin Lee Segler was guilty of unsatisfactory professional conduct by failing to advise NC that the practitioner had received an itemised bill of costs and to seek NC's instructions as to whether the practitioner should serve on Mendelawitz Morton a written notice of intention to have the bill taxed within 30 days of service of the bill, that is, on or before 5 October 2007.
The Tribunal finds that, on 10 January 2008, Martin Lee Segler was guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) by sending a letter containing improper threats and inappropriate demands to his client, DC.
The Tribunal finds that, on 11 January 2008, Martin Lee Segler was guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) by, in order to advance his own interests, knowingly and intentionally misleading Magistrate Musk during the hearing of an ex parte application filed by and on behalf of the practitioner for an interim violence restraining order against DC by asserting that DC had a criminal record when that was not the case and when the practitioner knew it was not the case.
The Tribunal finds that, between September 2007 and March 2008, Martin Lee Segler was guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) in the conduct of instructions from his client, NC, concerning payment of the legal fees of Mendelawitz Morton, by:

[200]

in 2001, the practitioner acknowledged that he was guilty of unprofessional conduct in that in 1997 he applied trust monies to payment of costs and disbursements and did not, within 14 days thereafter, serve on the client a bill of costs claiming that trust monies had been applied towards the payment of those costs;
at the same time, in 2001, the practitioner acknowledged that he was guilty of neglect and undue delay in relation to the same client. The Legal Practitioners Disciplinary Tribunal accepted that the breaches were serious but in view of matters personal to the practitioner and the fact that he had already paid indemnity costs of $11,000 to the client (incurred by having to seek an extension of the time to make a claim under the Inheritance (Family and Dependents Provision) Act 1972 (WA)) caused by the practitioner's failure to make a claim in time), imposed only moderate fines totalling $1,250;
in 2003, the practitioner was found guilty of three complaints in respect of another matter involving the failure to properly make a claim under the Inheritance (Family and Dependents Provision) Act 1972 (WA) between 1997 and 1999. There were two complaints of undue delay and one count of gross overcharging. By way of penalty, the Legal Practitioners Disciplinary Tribunal ordered that the practitioner only practice as an employed solicitor for two years and pay fines totalling $7,500 together with costs;
on 11 May 2009, the practitioner was found guilty of unprofessional conduct in relation to a letter he sent on 29 November 2007 in his personal capacity, but using his professional letterhead, which contained threats and inappropriate and intimidating demands, in relation to legal proceedings in which the practitioner was a party: Legal Practitioners Complaints Committee and Segler [2009] WASAT 91. In supplementary reasons delivered on 2 July 2009, the Tribunal reprimanded the practitioner, fined him $2,500 and ordered him to pay costs;
on 21 October 2009, the Tribunal found the practitioner guilty of unprofessional conduct and unsatisfactory professional conduct: Legal Practitioners Complaints Committee and Segler [2009] WASAT 205. The finding of professional misconduct arose from the practitioner acting for a client between November 2006 and February 2007 in which he advised the client to carry out building projects at a time when the practitioner knew that the client was unregistered as a builder and in the knowledge that, by so advising, he was encouraging the client to breach s 4 of the Builders' Registration Act 1939 (WA). Further, the Tribunal found that the practitioner was guilty of unsatisfactory professional conduct by, upon being asked by the LPCC to provide his response to a complaint against him, the practitioner giving a response that was deliberately misleading and designed to avoid giving a complete explanation. In supplementary reasons delivered on 11 March 2010, a penalty of three months suspension was imposed in relation to the finding of professional misconduct and a penalty of two months suspension for the finding of unsatisfactory conduct. The periods of suspension were ordered to be served concurrently: Legal Practitioners Complaints Committee and Segler [2009] WASAT 205 (S).

[241]

the payment of a fine of $2,000 to the Legal Practice Board for unsatisfactory professional conduct by the practitioner by suing the first client for recovery of a disbursement (counsel's fees) without having served on the first client a bill for the disbursement and failure to discontinue those proceedings, contrary to s 230(1) of the 2003 Act;
the payment of a fine of $1,500 to the Legal Practice Board for unsatisfactory professional conduct by the practitioner by failing to comply with a written request dated 18 January 2008 from the first client's solicitor to lodge four bills of costs dated 10 January 2008 with a taxing officer, contrary to s 237(1) of the 2003 Act;
the payment of a fine of $1,500 to the Legal Practice Board for unsatisfactory professional conduct by the practitioner by failing to advise the second client that the practitioner had received an itemised bill of costs, and to seek the second client's instructions as to whether the practitioner should serve on the law firm that had served the itemised bill of costs a written notice of intention to have the bill taxed within 30 days of service of the itemised bill, that is, on or before 5 October 2007;
the reprimand of the practitioner and the payment of a fine of $2,500 to the Legal Practice Board for professional misconduct by the practitioner by sending a letter containing improper threats and inappropriate demands to the first client;
the suspension of the practitioner's local practising certificate for a period of two months for professional misconduct by the practitioner by, in order to advance his own interests, knowingly and intentionally misleading Magistrate Musk on 11 January 2008 during the hearing of an ex parte application filed by and on behalf of the practitioner for an interim violence restraining order against the first client, by asserting that the first client had a criminal record when that was not the case; and
the suspension of the practitioner's local practising certificate for a period of one month for professional misconduct by the practitioner by, in relation to the second client, failing to file a statement of defence by 27 December 2007, or at all, to inform the second client that the plaintiff law firm was entitled to apply for default judgment without further notice, and to serve a copy of the notice of change of address for service on the second client or to inform the second client that the practitioner had ceased to act for him.

[245]

In relation to the finding that, between 14 January 2008 and November 2008, Martin Lee Segler was guilty of unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA) by contravening the Legal Practice Act 2003 (WA) by suing his client, DC, for recovery of a disbursement (counsel's fees) without having served on his client a bill for the disbursement and by failing to discontinue those proceedings, contrary to s 230(1) of the Legal Practice Act 2003 (WA), Mr Segler must pay a fine of $2,000 to the Legal Practice Board on or before 13 February 2011.
In relation to the finding that, between 18 January 2008 and 1 Aprilִ2009, Martin Lee Segler was guilty of unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA) by contravening the Legal Practice Act 2003 (WA) by failing to comply with a written request dated 18 January 2008 from DC's new solicitor to lodge four bills of costs dated 10 January 2008 with a taxing officer, contrary to s 237(1) of the Legal Practice Act 2003 (WA), Mr Segler must pay a fine of $1,500 to the Legal Practice Board on or before 13 February 2011.
In relation to the finding that, between September 2007 and January 2008, in the conduct of instructions from his client, NC, concerning payment of the legal fees of Mendelawitz Morton, Martin Lee Segler was guilty of unsatisfactory professional conduct by failing to advise NC that the practitioner had received an itemised bill of costs and to seek NC's instructions as to whether the practitioner should serve on Mendelawitz Morton a written notice of intention to have the bill taxed within 30 days of service of the bill, that is, on or before 5 October 2007, Mr Segler must pay a fine of $1,500 to the Legal Practice Board on or before 13 February 2011.
In relation to the finding that, on 10 January 2008, Martin Lee Segler was guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) by sending a letter containing improper threats and inappropriate demands to his client, DC, Mr Segler:

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LEGAL PROFESSION COMPLAINTS COMMITTEE and SEGLER [2010] WASAT 135 (30 September 2010)

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