PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - CRIMINAL OFFENCES - where legal practitioner found guilty of criminal offence - where criminal offence is a serious offence within meaning of schedule 2 of the Legal Profession Act 2007 - where conduct is agreed to amount to unsatisfactory professional conduct - whether conduct is professional misconduct

Legal Profession Act 2007 (Qld) ss 418, 419, 420(1)(c)(i), 462(5); Schedule 2

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498

New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23

Mellifont QC, K.A. instructed by the Legal Services Commission

Byrne QC, M. J. instructed by Robertson O'Gorman Solicitors

[1] The applicant alleges that on the particulars of the charges Mr Sam Huu-Hai Nguyen is guilty of professional misconduct.

[2] On 12 May 2010 Mr Nguyen engaged in criminal conduct for which he was convicted of two serious offences.

[3] On 12 May 2010 Mr Nguyen sexually harassed Ms Lee Huynh Ly in contravention of rule 127 of the 2007 Barristers Rules.

[4] At relevant times, Ms Ly was employed as a secretary at TDT Lawyers.

[5] On 12 May 2010 Mr Nguyen was briefed by TDT Lawyers to appear in the District Court in Brisbane.

[6] On 12 May 2010 Ms Ly accompanied Mr Nguyen to Court to instruct him in sentencing proceedings.

[7] Whilst in the Court precinct, Mr Nguyen sexually harassed Ms Ly.

[8] The conduct was the basis of criminal charges which were brought against Mr Nguyen.

[9] On 15 December 2010 Mr Nguyen pleaded guilty in the Magistrates Court to two counts of sexual assault. The learned Magistrate imposed a term of imprisonment for three months, wholly suspended, with an operational period of one year and a conviction was recorded.

[10] On appeal in the District Court, Reid DCJ fined Mr Nguyen $2,000.00 for two counts of sexual assault, and no conviction was recorded.

[11] The offences, which were the subject of the charge, are serious offences as defined in schedule 2 of the Legal Profession Act 2007 (Qld) (Legal Profession Act).

[12] Since the offence was committed, the positions of both the Legal Services Commissioner and Mr Nguyen have changed in relation to whether the conduct of Mr Nguyen amounted to unsatisfactory professional conduct or professional misconduct, and also as to the appropriate sanction.

[13] As at the date of the hearing, the Legal Services Commissioner asserted that the conduct should be categorised as professional misconduct, that Mr Nguyen's practising certificate should be subject to conditions for 2 years, and that a fine between $30,000.00 and $40,000.00 should be imposed.

[14] As at the date of the hearing, Mr Nguyen sought an order of a finding of professional misconduct, submitted that no conditions should be imposed on his practising certificate, and suggested that a fine in the order of $5,000.00 to $10,000.00 should be imposed.

[15] The Legal Services Commissioner submits that, on either of the tests for professional misconduct set out in s 419 of the Legal Profession Act, the conduct of Mr Nguyen amounts to professional misconduct.

[16] The conduct of Mr Nguyen violates and falls short of, to a substantial degree, the standard expected of legal practitioners.

[17] Mr Nguyen's conduct was such that it should lead to the conclusion that he should not be held out as being an appropriate person to practice as a member of the legal profession.

[18] The Legal Services Commissioner advances a number of reasons for these submissions:

• The conduct of Mr Nguyen involves taking advantage of a vulnerable individual in the context where she was present to assist with the representation of the client.[1]

• The offending calls into question Mr Nguyen's willingness and ability to obey the law which is integral to the civic office performed by legal practitioners and the trust reposed in them to properly do so.[2]

• Mr Nguyen's action seriously calls into question his judgment.[3]

• The client was entitled to expect that the representative attending Court on behalf of his solicitor could concentrate on the work at hand, rather than being the subject of assault by the barrister briefed in the matter.[4]

• The conduct of Mr Nguyen was not an isolated assault. There were two assaults, spaced in time, although on the one day.[5] One assault occurred in the precincts of the Court.[6]

• The offences occurred in a situation of significant power imbalance, both as to age and as to position (Mr Nguyen was a 39 year old barrister of six years standing, and Ms Ly was a 19 year old "instructing" legal secretary).[7]

• The relationship of barrister and instructing solicitor should be one which would carry with it, inherently, mutual respect and trust. High standards are required of legal practitioners because the relationship between legal practitioner and client, between legal practitioners, and between legal practitioner and court is one of trust in the performance of professional functions, and because there must be confidence in the public and in those engaged in the administration of justice that legal practitioners will properly perform these functions.[8]

• The offending brings into question Mr Nguyen's ability to maintain proper relationships with other participants in the legal profession.[9]

• Mr Nguyen's lack of judgment was inconsistent with the standard of professional conduct observed or approved by members of the legal profession of good repute and competency.[10]

• Mr Nguyen's conviction, and the nature of the offence, was sufficient to undermine public confidence in the legal profession if the respondent was held out to be a "fit and proper person".[11]

As to the observations made by Reid DCJ in the criminal appeal in the District Court, any characterisation as to seriousness in the criminal context is not an appropriate characterisation to carry across into the disciplinary context. This is because of the wide variety of potentially violent and serious offences with which the conduct may well have been compared in the criminal context.[12]

[19] The respondent raised the following points:

• From the earliest time, there has been acceptance by Mr Nguyen of his wrongdoing, both in a criminal sense and also in a professional sense. That has not changed. He has always been contrite and willing to face the proper consequences of his behaviour.[13]
• When dealing with Mr Nguyen's criminal conduct, Reid DCJ of the District Court described it as "near the lowest possible edge of seriousness for such offences".[14]
• No conviction was recorded against Mr Nguyen. In order to do that, factors taken into account included the nature and severity of the offence.[15] This is an indication of the gravity or seriousness of the conduct.
• According to the expert evidence, the conduct was an aberration which flowed partly from the background (culturally and experientially) of Mr Nguyen[16]
• Based on the expert evidence, the conduct did not involve misuse of power nor Mr Nguyen exerting undue influence over Ms Ly. The conduct arose from a mistaken belief on Mr Nguyen's part that his flirtatious behaviours were not unwelcome. It was not Mr Nguyen's intention to exert his power over Ms Ly.[17]
• When the then Legal Services Commissioner was supplied with all relevant material, he determined that the conduct did not amount to professional misconduct and did not, at that stage, institute disciplinary proceedings against Mr Nguyen.[18]
• In all the circumstances, the conduct was not substantial or consistent, as contemplated by s 419(1)(a) of the Legal Profession Act. The conduct was a one-off aberration and, given its characterisation at the lowest level of seriousness, could not fit within the other limb to establish that Mr Nguyen was not a fit and proper person to practice (as contemplated by s 419(1)(b)).[19]

[20] Section 418 of the Legal Profession Act provides:

Unsatisfactory professional conduct includes conduct of an Australian Legal Practitioner happening 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.

[21] Section 419 of the Act provides:

• Professional misconduct includes:

  1. unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and

  2. conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening 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.

[22] The definitions are inclusive definitions and so do not define (or place the outer limits on) all the types of conduct which might be regarded as either unsatisfactory professional conduct or professional misconduct.

[23] In the context of whether conduct amounts to professional misconduct, Thomas J has observed, "the test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional misconduct observed or approved by members of the profession of good repute and competency".[20]

[24] Conduct for which there is a conviction for a serious offence is capable of constituting unsatisfactory professional conduct or professional misconduct.[21]

[25] A serious offence is defined as meaning "an offence whether committed in or outside the jurisdiction that is ... an indictable offence against a law of the Commonwealth or any jurisdiction, whether or not the offence is or may be dealt with summarily".[22]

[26] The offence for which Mr Nguyen was convicted is agreed to be an indictable offence which constitutes a serious offence within the meaning of the Legal Profession Act.

[27] The conduct of Mr Nguyen was conduct capable of constituting unsatisfactory professional conduct or professional misconduct.

[28] There also seems to be no contest that the conduct of Mr Nguyen constituted a breach of r 127 of the Barristers Rule 2007 in that he sexually harassed Ms Ly.

[29] Whether a practitioner's conduct amounts to unsatisfactory professional conduct or professional misconduct is a matter of degree which must be determined based upon the facts of the individual case. It is necessary to consider the conduct at the relevant time it occurred in the context of the surrounding circumstances.

[30] Mr Nguyen's conduct fell short of the standard of conduct which a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The conduct was, at the least, unprofessional conduct as that term is used in s 418 the Legal Profession Act. The respondent concedes as much.

[31] The question is whether Mr Nguyen's conduct was such as to amount to professional misconduct under s 419 the Legal Profession Act. Section 419 of the Legal Profession Act has two limbs:

1. unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure; and

2. conduct which would justify a finding that the practitioner is not a fit and proper person to engage in legal practice

[32] Therefore, in considering whether the conduct was professional misconduct, the question is did the conduct involve a substantial or consistent failure (the first limb), or did the conduct violate or fall short, to a substantial degree, of the standard of professional conduct observed or approved by members of the profession of good repute and competency (the second limb)[23]?

[33] The respondent has advanced a number of reasons why the conduct occurred, which are reasons peculiar to his particular and very difficult circumstances. These may, of course, be reasons which assist in understanding Mr Nguyen's conduct, but such reasons cannot excuse his conduct.

[34] The fact that the conduct resulted in a conviction for a serious offence does not mean the conduct is professional misconduct. It means the conduct can be capable of constituting either unsatisfactory professional conduct or professional misconduct. Section 420 gives no guidance as to whether such conduct is unsatisfactory professional conduct or professional misconduct, nor does the section define any criteria by reference to which the conduct might be considered. This is understandable, as the nature of conduct which leads to indictable offences can vary, and no hard and fast rule would be appropriate.

[35] In order to constitute professional misconduct, the test for both limbs includes the requirement of substantiality. As Thomas J put it, the conduct must violate or fall short "to a substantial degree".

[36] In the determining whether the necessary level of substantiality is reached, regard must be had to the nature of the conduct and the surrounding circumstances.

[37] In this respect, whilst not determinative of the issue, the comments by the sentencing Judge are relevant. The sentencing judge is familiar with a range of indictable offences and the circumstances of those offences. A judicial officer in those circumstances is in a good position to express an opinion about the severity of the offence. His Honour's observation was that the conduct was "near the lowest possible edge of seriousness for such offences". No conviction was recorded. These factors support a conclusion that the conduct was not sufficiently substantial.

[38] In terms of the background circumstances, it is also relevant (and I find) that:

• The conduct was isolated to this one set of circumstances which involved two incidences but could not be described as repeated or consistent conduct.

• The conduct does not seem to have been premeditated, but rather was "spur of the moment" and arose from a mistaken belief on Mr Nguyen's part that his flirtatious behaviours were not unwelcome. It could not be described as 'consistent'.

• Based upon the expert opinion of Dr McCullough, it was not a case of Mr Nguyen exerting undue influence or a power imbalance over Ms Ly, nor was it Mr Nguyen's intention to exert his power over Ms Ly.

• The conduct was not such as to suggest that it could be concluded that Mr Nguyen was not a fit and proper person to be entrusted with the important duties and grave responsibilities of a legal practitioner.

[39] In all the circumstances, the conduct of Mr Nguyen, whilst reprehensible and unacceptable, does not meet a sufficient level of substantiality or consistency to constitute professional misconduct.

[40] However, the conduct does fall short of the standards which are required of members of the legal profession, and so amounts to unsatisfactory professional conduct.

[41] As is reflected in the written submissions by the Legal Services Commissioner, up until the time of the most recent report by Dr McCullough, the Legal Services Commissioner was intending to submit that Mr Nguyen was not a fit and proper person to remain on the local roll.

[42] Whether a practitioner is fit for practice and consequently should remain on the local roll of practitioners must be assessed as at the date of the hearing, not as at the date of the conduct.

[43] There is no need, in these reasons, to descend into detail as to the change in approach by the Legal Services Commissioner. Suffice to say that the most recent report of Dr McCullough addressed concerns that the Legal Services Commissioner had with respect to whether Mr Nguyen is, at the date of the hearing, a fit and proper person to remain on the local roll of practitioners.

[44] These concerns arose from an earlier identified deficiency in Mr Nguyen's perceptual awareness and thus his ability to communicate and respond appropriately to women.

[45] The concerns around these deficiencies have lead the Legal Services Commissioner to submit that, in addition to a public reprimand and fine, certain conditions should also be placed upon Mr Nguyen.

[46] Whilst the suggested condition took two forms (one being an order directed to Mr Nguyen and the other a condition on the practising certificate) they were to similar effect, which was that for a period of two years Mr Nguyen was required to advise any potential future employer, prior to the acceptance of any offer of employment, of his conviction of the sexual assaults on 12 May 2010 by providing to the potential employer a copy of the transcript of the proceedings before, and decision of, Reid DCJ in the District Court at Brisbane on 3 June 2011.

[47] The Legal Services Commissioner submits that such a condition is necessary in order to protect the public, which is the primary purpose of the imposition of sanctions or penalties in this jurisdiction, as opposed to the punishment of the respondent.

[48] The respondent submits that no conditions are necessary for the protection of the public.

[49] Mr Nguyen has undergone a rehabilitation over a period in excess of five years. The rehabilitation was carried out under the close supervision of both the Bar Association of Queensland and the Queensland Law Society.

[50] There were conditions imposed upon Mr Nguyen initially by the Bar Association of Queensland, which were more rigorous than those suggested by the Legal Services Commissioner and ultimately by the Queensland Law Society. They were well structured and well directed conditions. Mr Nguyen has fully complied with all conditions.

[51] Mr Nguyen's treating psychologist, Dr McCullough, believes that Mr Nguyen has gained insight and there are no ongoing deficiencies in his perceptual relationships with women.

[52] In the first report, dated 27 December 2010, Dr McCullough expressed the opinion that Mr Nguyen demonstrated no indicators of psychiatric disturbance.

[53] In addition, Mr Nguyen was remorseful, embarrassed and ashamed for his behaviour and for the shame that it had caused his family.[24]

[54] Dr McCullough considered it highly unlikely that Mr Nguyen would transgress any rules or laws in the future.[25]

[55] Mr Nguyen has not since transgressed any rules or laws and he has continued to practice law under the conditions imposed by both the Bar Association of Queensland and the Queensland Law Society.

[56] By the second report of Dr McCullough dated 10 June 2011, Mr Nguyen had demonstrated further insight into his own personality and professional role.

[57] In the third report, dated 12 June 2013, Dr McCullough's opinion was that Mr Nguyen did not pose a threat to women and was highly unlikely to offend in the future. Dr McCullough again expressed the view that Mr Nguyen's unlawful behaviour towards Ms Ly was an aberration and that he then possessed the attitudes and social skills to interact appropriately with women.

[58] It is well established that the purpose of imposing any sanction is to protect the public and not to punish the practitioner.

[59] In considering whether conditions should be imposed on a practitioner, it is necessary to:

• identify the risk to the public

• determine a procedure necessary to protect the public from the identified risk.

[60] If no risk is identified in the first stage, then no protection is necessary.

[61] In Mr Nguyen's case, the Tribunal has the benefit of uncontested medical opinion. The only conclusion to be drawn from the expert evidence is that Mr Nguyen does not present a risk to the public, and I make that finding.

[62] In those circumstances, there is no need, for the purpose of public protection, to impose any conditions on Mr Nguyen's practising certificate or to make orders against Mr Nguyen in terms of the conditions which were suggested by the applicant.

[63] Another important element of the protection of the public is the maintenance of standards by imposition of a fine, so as to deter other practitioners in relation to the conduct which is the subject of the complaint.

[64] A fine should be imposed because of this deterrent factor. Counsel for the applicant observed that the Bar cannot be the last bastion where sexual harassment and assault is countenanced in the workplace. Whilst it is not suggested that this is the case, such conduct must be strongly deterred.

[65] With the deterrent factor in mind, the Legal Services Commissioner has submitted that a fine in the range of $30,000.00 to $40,000.00 should be imposed.

[66] This case is the first of its kind, so Counsel was unable to refer to any earlier cases where similar conduct has been encountered.

[67] In suggesting the range, the Legal Services Commissioner referred to the fact that the maximum fine is $100,000.00 and a fine in the range of $30,000.00 to $40,000.00 would be a significant deterrent.[26]

[68] On the other hand, the respondent submits that the fine should be in the range of $5,000.00 to $10,000.00.

[69] The respondent submits that a fine in that range is sufficient when having regard to the purposes of the protective jurisdiction, which is not to punish but to send a message to the rest of the profession that the conduct is not permitted. The respondent submits that a fine at the level of $30,000.00 to $40,000.00 would "smack of punishment" rather than deterrence, and that such a fine would be "out of kilter" and "out of balance" with the level of conduct in this case.[27]

[70] The respondent submitted that factors such as the level of seriousness of the conduct, the context in which the conduct was committed and an assessment of the respondent at the date of the hearing are all relevant.

[71] The level of fine imposed by Reid DCJ was $1,000.00 and this figure was referred to during submissions.

[72] Whilst I am of the opinion that the comments made by the sentencing Judge were relevant to the question of the nature of the conduct, I do not believe that the level of fine, which is imposed in an entirely different context, is relevant.

[73] Conduct, such as that of Mr Nguyen, involving sexual harassment in breach of r 127 of the Barristers Rule and also sexual assault leading to a conviction for a serious offence, is conduct which must be discouraged and the deterrent effect of any fine looms, in those circumstances, as a very serious factor.

[74] A fine at a level of $20,000.00 is a significant deterrent and will make it clear to the profession that conduct of this type will not be tolerated. A fine at that level does not, however, have the character of a penalty.

[75] In those circumstances, it is ordered that a fine in the sum of $20,000.00 be imposed upon Mr Nguyen to be paid in full in equal monthly instalments within 12 months from the date of this order.

[76] Again, because of the entirely unacceptable nature of the conduct, it is also ordered that Mr Nguyen be publically reprimanded.

[77] The Legal Services Commissioner seeks an order for costs pursuant to s 462(5) of the Legal Profession Act.

[78] There are no exceptional circumstances which mean that costs should not be awarded.

[79] The respondent accepts that an order for costs, either assessed or agreed, should be made.

[80] It is ordered that the Mr Nguyen pay the Legal Services Commissioner costs assessed on the Supreme Court scale.

[1] Transcript of proceedings of 11 March 2015, page 8 line 7.

[2] Applicant's submissions filed 16 July 2013, Page 8 paragraph 31.

[7] Ibid, Page 9 paragraph 31(f), paragraph 34.

[8] New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23 at 52 (per Giles JA).

[9] Applicant's submissions filed 16 July 2013, page 9 paragraph 33.

[12] Transcript of proceeding of 11 March 2015, page 23 line 45 to page 24 line 7.

[16] Ibid, page 26 lines 38-40; Report by Dr Sue McCullough dated 27 December 2010, page 4.

[17] Transcript of proceedings of 11 March 2015, page 27 lines 25-32; Report by Dr McCullough dated 27 December 2010, page 11.

[18] Transcript of proceedings of 11 March 2015, page 27 lines 36-41.

[19] Ibid_,_ page 29 lines 46-47, page 30 lines 1-4.

[20] Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 at 507.

[21] Legal Profession Act s 420(1)(c)(i).

[22] Legal Profession Act Schedule 2.

[23] Adopting, as I do, the test for the second limb as was formulated by Thomas J.

[24] Report by Dr McCullough dated 27 December 2010, page 7.

[25] Report by Dr McCullough dated 27 December 2010, page 12.

[26] Transcript of hearing of 11 March 2015, page 23 lines 40-41.