Legal Services Commissioner v Morgan

Legal Services Commissioner v Morgan - [2007] VCAT 2117 - VCAT 2007 case summary — Zoe

[5]

The respondent, legal practitioner, Stuart W. Morgan is a 47 year old man who has been admitted to the legal profession since 1983. For the last 11 years he has practised as a sole practitioner. On 2 July 2007 a letter was sent by the Legal Services Commissioner requiring a full written explanation of Mr Morgan's conduct in relation to a complaint made by Mr R. Grieve. Mr Morgan was given 16 days to respond.
On 31 July 2007 Ms Angela Barac from the Legal Service Commissioner's office telephoned Mr Morgan and on 1 August 2007 a further letter was sent to him again requiring a full written explanation and giving him 16 days. A further telephone attendance took place on 17 August 2007 and a further letter was sent on 21 August 2007 this time by registered mail, again giving 16 days to comply. A telephone message was left on 27 August 2007 and again on 10 September 2007 a letter was sent to Mr Moran again requiring compliance. As of today the requirement of the Legal Services Commissioner has not been complied with.
Mr Morgan has been charged with professional misconduct in that his conduct in failing to give a full written explanation is a contravention of Section 4.4.11(a) of the Legal Profession Act 2004.
Mr Moran has admitted the facts as alleged and this hearing then proceeded on the question of whether the conduct constitutes professional misconduct or unsatisfactory professional conduct.
On behalf of the Legal Services Commissioner it was submitted that the client who made the initial complaint to the Legal Services Commissioner is entitled to a prompt response especially in the situation where the allegation is made in relation to delay on the part of the legal practitioner.
I agree that it is fundamental that a client is entitled to a prompt response simply because the client ultimately is the person for whose benefit this system is in place. The client is entitled to resolution. Whilst there is no wilful or reckless element to the charge of professional misconduct unlike the situation in relation to the charge of misconduct under the previous enactment regulating the legal profession it was submitted that intent is a useful guide and indeed I was directed to a decision of my own in the matter of Grey.
It was also submitted that the profession has an interest in a prompt resolution of matters where complaints have been made to the Legal Services Commissioner. This is so. However ultimately the client is of greater importance. The public confidence of the clientele at large in the legal profession is a factor which needs to be considered. The Legal Services Commissioner does have duties imposed upon it by the Act and those duties all in this context relate to the protection of the consumer.
Counsel on behalf of Mr Morgan argued that the matter should be disposed of by way of a finding of unsatisfactory professional conduct. Again, an earlier decision of my own (Nixon) was referred to and it was pointed out by Counsel that in that case the delay was 13 months whereas in this particular case before me today the delay is four months. The argument put forward by Counsel was that whilst this matter is at the higher end of unsatisfactory professional conduct it is still unsatisfactory rather than misconduct. It was further argued that if a finding of professional misconduct were to be made this would devalue the finding of professional misconduct generally. I do not agree with that inference at all. However I continue.
Counsel on behalf of Mr Morgan then pointed out that Mr Morgan has been a sole practitioner for the last 11 years and submitted that this was a particularly stressful occupation. I agree with that submission. The admission was also made that Mr Morgan has been facing difficulties in relation to responding to other requests for information. Other than it is an admission that Mr Morgan is now having difficulty with such matters I take no further notice of that admission. It is worthy of note that Mr Morgan has been in practice since 1983 and has not been the subject of any disciplinary matters prior to this. The personal life of Mr Morgan has been put to the Tribunal as having had considerable difficulties over the last year. Difficulties with a son and with a subsequent diagnosis which has gone towards explaining that son's conduct, the effect on Mr Morgan and his family and the additional stress brought about by this on top of a long working week as a sole practitioner has resulted in what has now been diagnosed as a case of depression on Mr Morgan's part. Mr Morgan has now sought assistance from his treating physician and from Mr Geoff Gronow as mentor. However, I note that it appears that this has only come about as a result of some encouragement from Counsel over the last few days. Be that as it may, this has produced a situation which has resulted in a report from Dr Edwards who states that he has been Mr Morgan's doctor for about 23 years. Whilst Dr Edwards does not appear to have any qualifications in psychiatry, I accept that being in a situation where doctor patient relationship has existed for that period of time the doctor would be in a good position to assess his patient in terms of the question of whether the patient was suffering from depression. The doctor has recommended psychological counselling and it has been submitted on behalf of Mr Morgan that he accepts that matters will not now right themselves.
The file in question has been handed to one of the clients apparently not the client who made the complaint, and it has been put to the Tribunal that Mr Morgan is in a position to make a full explanation.
This is unfortunately a scenario which is all too common in the legal profession. The legal profession has in its ranks many sole practitioners who in the absence of other stresses or even disasters in their lives are able to cope with the pressures of sole practice. However when difficulties outside of the practice arise, these affect that practitioner's ability as a practitioner. We see here a classic example. Mr Morgan has found himself in a particularly unfortunate situation in relation to his family. This in addition to a heavy workload as a sole practitioner has brought about what I accept as the situation where he is suffering from depression. A typical symptom of that depression is the head in the sand when, as almost inevitably occurs the letter comes from the Legal Services Commissioner seeking an explanation in relation to some matter which has gone wrong. Typically, the practitioner in this situation ignores the letter, hopes that it will go away but it won't and that's why we are here today.
I have in the past found charges of this nature to be either professional misconduct or unsatisfactory professional conduct. In the situation where I have found professional misconduct no explanation was given as to why the legal practitioner involved behaved as he did. Where I have found unsatisfactory professional conduct, and that was the case of Nixon which was cited to me by counsel on behalf of Mr Morgan, I accepted that there are psychological pressures which may impact upon a legal practitioner's behaviour. As Counsel on behalf of the Legal Services Commissioner submitted whilst there is no requirement to find that a matter is wilful or reckless the intent is a useful guide. However, in a situation where there is an explanation which indicates the psychological condition of the legal practitioner and the reasons for that condition having arisen I am prepared to find that the conduct constitutes unsatisfactory professional conduct and not professional misconduct and I so find in this case.

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Decision date

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Judgment (5 paragraphs)

Legal Services Commissioner v Morgan (Legal Practice) [2007] VCAT 2117 (1 November 2007)

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