LEGAL PROFESSION COMPLAINTS COMMITTEE -v- BACHMANN [2011] WASC 309 (15 November 2011)

4 The motion before the court is made pursuant to s 444(2) of the 2008 Act. That section provides that upon reading a report from the Tribunal, the court may, without any further evidence, make a variety of orders including the removal of the name of a practitioner from the Roll.

5 The 2008 Act commenced operation on 1 March 2009. The 2008 Act repealed the Legal Practice Act 2003 (WA) (the 2003 Act). The conduct of the practitioner which gave rise to the commencement of proceedings against her in the Tribunal by the LPCC, and the hearing of those proceedings occurred during the currency of the 2003 Act. However, by the time the Tribunal delivered its decision, the 2008 Act had come into operation and the 2003 Act had been repealed. Section 607(2) of the 2008 Act has the effect that the proceedings commenced by the LPCC against the practitioner in the Tribunal continue to have effect under the 2008 Act, subject to certain conditions which are not material to these proceedings. Further, s 622 of the 2008 Act provides that the provisions of the 2008 Act which deal with complaints and discipline apply to conduct in which a practitioner engaged prior to the commencement of the 2008 Act as if that conduct were a contravention of the 2008 Act. Further, the order sought by the LPCC was available under the 2003 Act, and remains available under the 2008 Act. Accordingly, the proceedings before the Tribunal were completed under the 2008 Act, and these proceedings have been commenced under that Act.

6 Before dealing with the findings made by the Tribunal adverse to the practitioner, it is appropriate to set the context for those findings by reference to the background facts found by the Tribunal.

7 The practitioner was admitted to practice in December 1996 in Western Australia and worked in Perth as an employed solicitor until 1999. Thereafter, for some period not precisely identified in the reasons of the Tribunal, the practitioner practised on her own account before moving to Sydney and the United State of America where she worked as a business consultant/paralegal. The practitioner returned to Perth in September 2004, and in February 2005 resumed practice on her own account under the name 'T Y Bachmann Lawyers'.

8 However, shortly after commencing that practice, in August 2005 she commenced employment with a corporate entity engaged in the provision of legal services and which traded under the name of Aragon. The incorporated entity which carried on legal practice in this way had two directors who were not legally qualified or admitted as practitioners. The practitioner was essentially responsible for the legal services provided by Aragon.

9 The practitioner and the directors of Aragon agreed upon a budget for the fees which the practitioner was expected to derive from the provision of legal services on behalf of Aragon. The practitioner asserted in her evidence that she was placed under considerable pressure by the directors of Aragon.

10 Many of Aragon's clients sought its services in relation to applications for the grant of liquor licences. The practitioner was not familiar with that area of legal practice prior to her employment by Aragon. It seems a reasonable inference from the facts found by the Tribunal that this placed the practitioner under additional pressure.

11 In early May 2006, approximately nine months after commencing work with Aragon, the practitioner failed to attend work. A few days later, the practitioner's mother spoke to one of the directors of Aragon and advised that the practitioner was sick and requested leave of absence for a period of two months. A few days later, the practitioner was dismissed from her employment.

12 On 14 July 2006, in the course of proceedings before the Tribunal, the practitioner agreed to an order suspending her from legal practice. That suspension has remained in force since then.

13 The findings made by the Tribunal adverse to the practitioner are grouped by reference to the allegations made by the LPCC in the two separate sets of proceedings which it commenced against the practitioner. One set of proceedings was characterised by the Tribunal as 'the G matter', and the other set of proceedings was characterised by the Tribunal as 'the eight clients matter'.

14 The Tribunal's reasons contained many detailed findings of fact with respect to the conduct of the practitioner in relation to the G matter. For present purposes, those findings can be conveniently summarised in the following terms.

15 In about August 2005, Ms and Mr G sought advice from the practitioner in relation to a potential claim by them against the vendor of a residential property in Morley which they had contracted to purchase. At the time, the practitioner was advised by her clients that they had contracted to sell a residential property which they owned at Viveash, to assist in funding their purchase of the Morley property.

16 On about 19 September 2005, Mr G informed the practitioner that he and Ms G no longer wished her to act on their behalf. The following day, the practitioner caused Aragon to lodge caveats over each of the Morley property and the Viveash property.

17 The Tribunal found that at the time of causing the caveats to be lodged over each property, the practitioner made representations which she knew to be false in the following terms:

(b) Aragon was entitled to receive a portion of the proceeds of the sale of each of the Morley property and the Viveash property; and

(c) Aragon was entitled to caveat the properties because Mr and Ms G had failed to pay accounts rendered to them in respect of the provision of legal services.

18 The Tribunal found that at some time after lodging the caveats of 20 September 2005, the practitioner caused an account to be rendered to Mr and Ms G backdated so as to bear the date 31 August 2005, claiming fees for drafting documents to initiate proceedings in the Supreme Court, in relation to legal research and in respect of preparing and finalising witness statements when in fact, and to the knowledge of the practitioner, no such work had been done by the practitioner or by Aragon.

19 The Tribunal also found that the practitioner caused further accounts to be rendered by Aragon to Mr and Ms G dated 7 October 2005 in which fees were claimed for drafting documents to initiate court proceedings, the preparation of court submissions and the undertaking of legal research, and the preparation of witness statements when, to the practitioner's knowledge, no such work had been done by her or by Aragon.

20 The Tribunal also found that, by letter to Mr and Ms G dated 11 October 2005, the practitioner represented that she had undertaken the legal work on their behalf which justified the accounts for costs rendered, and which were dated 31 August 2005 and 7 October 2005, and that she had advised Mr and Ms G by telephone of the amount of the account rendered dated 31 August 2005, in response to which they had requested an itemised account, which had been posted to them on 16 September 2005, all of which were false, and were known by the practitioner to be false at the time she wrote the letter.

21 Predictably enough, the Tribunal concluded that, as a consequence of these findings, the practitioner had engaged in unprofessional conduct.

22 In the proceedings characterised by the Tribunal as the eight clients matter, the Tribunal made a number of findings adverse to the practitioner in respect of services she had performed in respect of eight separate clients or purported clients. The Tribunal's reasons contained detailed findings of fact in respect of each client. It is sufficient for present purposes to summarise those findings in the following terms.

23 The Tribunal found that in about August 2005, the practitioner had been instructed by Mr M to do all things necessary to obtain a liquor licence. The Tribunal found that between September 2005 and April 2006, the practitioner represented to Mr M that various steps had been taken in the furtherance of his instructions, and that various steps had been taken by the Office of Racing, Gaming and Liquor. The Tribunal found that those representations were false, and were known to be false by the practitioner at the time they were made, and that in fact no application for grant of the licence had been made by the practitioner on behalf of Mr M or his associated company. The Tribunal also found that accounts for services which had been rendered by the practitioner to Mr M and his associated company claimed fees for services which the practitioner knew she had not performed.

24 The Tribunal found that the practitioner took instructions on behalf of a client, HGW, to obtain an appropriate licence or licences to enable the sale and supply of liquor at a restaurant operated by HGW. The practitioner represented to her client, on a number of occasions over a number of months, that an application for a special facilities' licence had been completed and lodged with the Office of Racing, Gaming and Liquor, and had reached the point at which a site inspection and advertisement of the application would be necessary when, as she knew, the application had not been lodged. The Tribunal also found that the practitioner represented to her client that she had discussed the progress of the application with officers at the Office of Racing, Gaming and Liquor, when she knew that representation to be false.

25 The Tribunal found that the practitioner received instructions from Mr and Mrs F to prepare and lodge an application for a licence to sell and supply liquor from a restaurant operated by Mr and Mrs F in regional Western Australia. The Tribunal also found that over a number of months, the practitioner represented to her clients that the application for the restaurant licence had been lodged, that she had discussed the application with officers of the Office of Racing, Gaming and Liquor and that there had been no objections to the restaurant licence application, when in fact no application had been lodged. The Tribunal also found that the practitioner knew the representations she had made to her clients were false at the time she made them.

26 The Tribunal found that the practitioner received instructions from a client, UT, to do all things necessary to vary the serving conditions attached to a liquor licence held by UT, including obtaining a variation to the licensed area and obtaining the approval of a new manager for UT's premises. The Tribunal also found that over a period of months, the practitioner represented to her client that she had lodged an application for a special facility liquor licence redefinition, and had discussed that application with officers of the Office of Racing, Gaming and Liquor, when in fact no such application had been lodged. The Tribunal also found that the practitioner knew the representations she made to her client were false at the time they were made.

27 The Tribunal found that the practitioner received instructions from a client, Mr B, to lodge an application for the transfer of a liquor licence. The Tribunal also found that the practitioner represented to her client that the application had been lodged, that Aragon had paid the transfer application fee on behalf of her client, and that she had discussed the application with officers of the Office of Racing, Gaming and Liquor when in fact no application had been lodged, nor had the matter been discussed by the practitioner with the Office of Racing, Gaming and Liquor. The Tribunal also found that the practitioner knew the representations made to her client were false at the time they were made.

28 The Tribunal found that in the course of her employment, the practitioner completed a fileopening form, timesheet and prepared an account for services in which she represented to her employer that she had received instructions from a client, FGC, performed services on behalf of that client, and rendered an account for services to that client when in fact she had done none of those things. The Tribunal found that the practitioner caused the various documents to be prepared knowing them to be false.

29 The Tribunal found that in about June 1999, many years before the practitioner's employment by Aragon, Mr and Mrs H instructed the practitioner to prepare wills for them. The Tribunal also found that Mr and Mrs H did not at any time thereafter instruct either Aragon or the practitioner to perform any legal services on their behalf. However, while employed by Aragon, the practitioner caused a document recording the opening of a file in the name of Mr and Mrs H to be completed, together with a memorandum recording instructions to prepare wills on their behalf.

30 The practitioner gave evidence before the Tribunal to the effect that while employed by Aragon, she had been engaged to provide legal services to a woman with a similar first name and identical surname to Mrs H. She asserted that the paralegal responsible for completing the fileopening form had confused this client with the former client, and had wrongly entered the former client's personal and family details. The practitioner also gave evidence about various communications with the person who had engaged her services while she was employed by Aragon. The Tribunal found that this evidence was entirely fabricated, and that the practitioner caused the fileopening form and memorandum recording instructions to be prepared when she knew them to be false.

31 The Tribunal found that in February 2006, while the practitioner was employed by Aragon, Mr A instructed her to recover the sum of $10,000, being the balance of moneys outstanding from the sale of Mr A's boat. On 1 March 2006, the practitioner caused a summons for recovery of that amount to be filed on behalf of Mr A. The summons was served upon the defendant's solicitors and a notice of intention to defend was filed during April 2006. This meant that a statement of claim had to be prepared. No statement of claim was prepared before the practitioner left Aragon's employment in early May 2006.

32 After leaving Aragon's employment, the practitioner resumed practice on her own account. On 30 June 2006, she sent an account to Mr A for services in relation to the preparation of a summons and statement of claim. The practitioner prepared a chronology which she gave to Mr A on 2 August 2006. This chronology asserted that she had prepared a statement of claim on 27 April 2006, prior to the termination of her employment with Aragon. The chronology also included a reference to awaiting a response to the statement of claim from the defendant's solicitors. However, the Tribunal found that no statement of claim had been prepared, nor had it been given to the solicitors for the defendant, nor had any further submissions been prepared. Accordingly, the Tribunal found that the practitioner sent an account and received payment from Mr A for a summons and statement of claim that she did not prepare, and for court fees that she had not incurred. The Tribunal also found that the practitioner had breached provisions of the 2003 Act relating to the payment of moneys into trust, and made knowingly false representations to Mr A as to the progress and costs of the proceedings. The Tribunal also found that by communicating and meeting with Mr A after she had been suspended from practice in July 2006, she contravened the provisions of the 2003 Act.

33 The practitioner conducted her own defence to the proceedings brought against her in the Tribunal by the LPCC. She gave evidence in response to the allegations made against her. Very generally speaking, her evidence directly contradicted the evidence of the witnesses called on behalf of the LPCC. For example, in relation to the various allegations to the effect that the practitioner had knowingly misrepresented to her clients that she had done work on their behalf, she gave evidence to the effect that the work had been done. In general terms, the Tribunal rejected the practitioner's evidence where it was in conflict with the evidence called on behalf of the LPCC. The Tribunal found that evidence to be fabricated.

34 The practitioner also made various statements and representations to the Tribunal with respect to the preparation and conduct of her defence. The Tribunal found that the practitioner was dishonest or evasive with both the Tribunal and the LPCC on the subjects of the state of her health, her contact with prospective witnesses and their addresses, the preparation of witness statements including her own, and the filing of her response to the LPCC's allegations.

35 The Tribunal also found that the practitioner repeatedly failed to do what she had been ordered to do by the Tribunal, or which in some cases she had undertaken to do, and either blamed others or technology for her failures, or attributed her noncompliance to a change of circumstances. The Tribunal also found that in the conduct of her own defence, the practitioner showed limited understanding of the legal principles involved.

36 As a consequence of the findings which it made, the Tribunal concluded that the practitioner was guilty of unprofessional conduct in the various respects alleged by the LPCC.

37 Following a hearing on the subject of penalty, a reconstituted Tribunal decided to provide a report to this court, with a recommendation that the practitioner's name be removed from the Roll of Practitioners. In the course of its reasons to that conclusion, the Tribunal observed that the misconduct of the practitioner was of the utmost seriousness. It comprised repeated and sustained dishonesty by the practitioner between August 2005 and May 2006 in the course of her legal practice, and specifically in her dealings with her clients, her employer and other legal practitioners. The Tribunal also concluded that her conduct, as revealed by the manner in which she conducted the proceedings before the Tribunal, clearly displayed that she was not a fit and proper person to remain a legal practitioner.

38 The practitioner sought an extension of time and leave to appeal from the decision of the Tribunal. Ms Bachmann represented herself. The decision of the court was given by Justice Blaxell, with whom the other members of the court agreed: Bachmann v Legal Profession Complaints Committee of Western Australia [2011] WASCA 64.

39 The reasons of the court reveal that the practitioner's unsatisfactory conduct of her own case, which had characterised her defence of the proceedings in the Tribunal, equally characterised the conduct of her appeal. The grounds of appeal, and the argument advanced by the practitioner in support of those grounds reveal very limited knowledge of relevant legal principle. The applications for an extension of time within which to appeal, and for leave to appeal, were refused.

40 The practitioner represented herself in the proceedings before this court. Her conduct bore many of the characteristics of the way in which she had conducted her appeal to the Court of Appeal, and her defence in the Tribunal. She was late for court hearings, and the written and oral submissions which she provided showed very limited knowledge of relevant legal principle. For example, the first set of written submissions provided by the practitioner challenged the decision of the Tribunal, notwithstanding that her attempt to appeal from that decision had been dismissed, and notwithstanding the provisions of the 2008 Act which require this court to act upon the report provided by the Tribunal. The written submissions were very difficult to follow and showed inadequate appreciation of the issues which the court is required to address in cases of this kind, and which are well established by previously decided cases. The submissions were accompanied by a bundle of documents which bore little or no relationship to those issues and which are very difficult to follow.

41 On the first occasion the matter was heard by this court, the irrelevance of many of the submissions and documents which had been provided by the practitioner was pointed out to her. She was invited to address the critical question which arises in cases of this kind, which is essentially whether removal of the practitioner's name from the Roll is necessary in order to protect the public. However, the oral submissions provided by the practitioner in response to that invitation bore no relationship to that issue but focused almost entirely upon matters personal to her. In those circumstances, the hearing was adjourned to enable the practitioner to focus her written and oral submissions upon relevant issues.

42 Following the adjournment, the practitioner provided written submissions in which she asserted that:

(a) the lengthy period over which she had been suspended from practice was a sufficient punishment for her conduct;

(b) her conduct is to be explained by reference to the emotional and psychological stress caused during the course of her employment by Aragon, and as she is no longer employed in that environment, she would not be a risk to the public in the event that she were permitted to return to practice; and

(c) the practitioner is well regarded within the community - evidenced by a number of character references which she provided.

43 However, in the course of those written submissions, the practitioner reverted to her contention that the Tribunal had erred by accepting the evidence of her former clients who she asserted had told lies before the Tribunal, notwithstanding the clear direction she had been given by the court to the effect that assertions of that kind could not be entertained.

44 The oral submissions provided by the practitioner at the resumed hearing were, as before, largely irrelevant to the critical issue which the court is required to assess, and aspects of them were quite bizarre.

45 The relevant principles in an application of this kind are well established. The jurisdiction of the court to remove a practitioner from the Roll of Practitioners is not 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 Brennan [2010] WASC 198 [10] (Martin CJ, Murray and Hall JJ agreeing); Legal Profession Complaints Committee v Masten [2011] WASC 71 [16] (Martin CJ, Murray and EM Heenan JJ). Since the object is to protect the public and the reputation of the profession, the consequences for the practitioner may be either more or less severe than they would be if the only object of the proceedings was one of punishment: Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 [19].

46 The critical question to be addressed by the court is whether the practitioner has been shown not to be a fit and proper person to be a legal practitioner: Ziems (297 - 298); A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [15]; Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 [43]. Fitness to practise 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), Thorpe [43], and Brennan [11]. Fitness to practice is to be decided at the time of the hearing, not as at the time the relevant conduct was entered into: A Solicitor v The Council of the Law Society of New South Wales [21].

47 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 439 [38]. In that case, Thomas JA observed that 'the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practises': Darveniza [33]. It has also been observed elsewhere that honesty and integrity are essential characteristics required of legal practitioners, and the court has generally taken a very serious approach to cases in which a practitioner's conduct has involved dishonesty: see Brennan [15], Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 [23]; Legal Practitioners Complaints Committee v De Pardo [2007] WASC 266 [14].

48 The Tribunal correctly characterised the practitioner's conduct as comprising repeated and sustained dishonesty over an extended period. That conduct reveals the quality which Thomas JA observed is most likely to result in striking off (see Darveniza).

49 In this case, the practitioner's dishonest conduct has been compounded in two significant respects. First, in the proceedings before the Tribunal, the practitioner gave evidence which the Tribunal found to be patently false and fabricated. This leads to the conclusion that the lack of honesty which was a characteristic of the practitioner's dealings with her clients, and with other practitioners, is an enduring characteristic of her personality. It is not a characteristic which is compatible with the right to practise law.

50 Second, the way in which the practitioner conducted the proceedings in the Tribunal, her appeal to the Court of Appeal, and her defence of the proceedings in this court reflect a complete lack of insight into the impropriety of her conduct. The maintenance of her assertion that all of her former clients lied in the course of the proceedings before the Tribunal reflects a fundamental inability to come to terms with the impropriety of her conduct. Her inability to appreciate the impropriety and significance of her misconduct precludes the court from having any confidence that she would conduct herself satisfactorily in the future if permitted to remain on the Roll of Practitioners.

51 We turn now to those parts of the submissions put by the practitioner which are relevant to the issue before the court. Dealing firstly with her submission that she has been sufficiently punished by the period of suspension, this submission, of course, misses the point that the jurisdiction of the court which is exercised in these proceedings is not exercised for the purpose of punishing the practitioner, but for the protection of the public and the maintenance of the reputation and standards of the legal profession.

52 We turn next to the practitioner's submission that her misconduct is entirely attributable to the stresses to which she was subjected during the course of her employment with Aragon, and from which she is now free. That submission cannot be accepted. It is not sustained by any evidence or findings by the Tribunal - indeed, the Tribunal found to the contrary. Further, it is of some significance that the misconduct found by the Tribunal in relation to the A matter covered a period of some months following from the termination of the practitioner's employment with Aragon. Further, the practitioner's conduct of the proceedings in the Tribunal, and in this court, well after the termination of her employment with Aragon, and her inability to comprehend the impropriety of her conduct, provide additional reasons for the rejection of this submission.

53 Turning now to the practitioner's reliance upon character references from members of the community, in cases of this kind in which a sustained course of dishonesty has been established, character references will necessarily be of limited weight or significance. Where, as in this case, there is no evidence to the effect that the persons who have provided those references are aware of the extensive findings of dishonesty made against the practitioner, the character references are of no weight.

54 This is a clear case in which the protection of the public and the public interest in the maintenance of the reputation and standards of the legal profession compel the conclusion that the practitioner's name must be removed from the Roll of Practitioners. There will be an order to that effect.

55 The LPCC does not seek an order for its costs in respect of these proceedings, which should be regarded as part of the costs of regulating the profession. There will be no order as to costs.