Victorian Civil and Administrative Tribunal|2014-12-22

The applicant (the Commissioner) seeks an order that Quan Ngoc Phuong Pham (the respondent) be found guilty of professional misconduct in relation to the making of a statutory declaration containing allegedly false statements.

Professional misconduct within the meaning of section 4.4.3(1) of the Legal Profession Act 2004, namely misconduct at common law in that on 7 August 2012 the respondent acted in gross breach of his professional duty by executing and then submitting a statutory declaration to the Legal Services Board, in circumstances where he knew, or ought to have known, that the contents of the statutory declaration were false.

LEGAL PRACTITIONER, do solemnly and sincerely declare that:

I am an Australian Legal Practitioner under the Legal Profession Act 2004 (Vic), I:

(b) had my first Practising Certificate on 16 February 2012, my Practitioner number is P0032552.

I am currently unemployed as I have recently ceased my employment as a Solicitor at Kabo Lawyers.

This is an application to remove my supervised legal practice condition. I have a desire to start my own law firm and running it in an ethical manner, and will do so immediately if this application is successful.
As I completed my Legal Practical Training at Leon Cussen I am required to meet the statutory 2 years supervised legal practice requirement ('supervised period'). To my understanding, the supervised period is calculated as follows:

The supervised period will amount to 520 days (if calculated in days).[1]

As I understand it, if employment is part-time the supervised period will take twice as long, and conversely, if an employee worked on weekends or beyond the 38 hours per week, the supervised period should reduce accordingly.
I was employed at Kabo Lawyers as a Solicitor between the dates 24 November 2011 and 10 July 2012.[2] During this period:

(i) worked full-time (38 hours per week), Monday to Friday (9am to 5pm), from office. This amounted to 164 days.

(ii) worked Saturdays (9am to 5pm), from office. This amounted to 33 days.

(iii) worked (in addition to (i) and (ii) above) 58 extra hours (Monday to Saturday) and 18 hours on Sundays, from home (these additional hours were done before and after my normal 9am to 5pm working day, and on weekends).[3] I estimate that I worked an extra 76 hours each week via this arrangement. This would amount to 328 days.[4]

(b) I was under the supervision of Konfir Kabo, he:

(iii) currently holds an unrestricted Practising Certificate;

(iv) is a registered Migration Agent (MARN 0209289);

(vi) practices in the areas of commercial, criminal, family, immigration and properly law.

My work was supervised on a daily basis and took the form of face-to-face meetings, telephone and/or email correspondence. Even when I was working from home as stated in Paragraph 6(a)(iii) I was in regular contact with my supervisor via telephone and/or email when required. Annexed to this Statutory Declaration and marked 'Annexure A' is an original letter signed by Konfir Kabo verifying my employment at Kabo Lawyers.

(ii) providing technical advice and assistance to clients;

(iii) record keeping and maintenance, liaising with relevant person(s) or organisation(s);

(iv) doing legal research (in complex areas of law); and

Based on paragraph 6(a) I believe I have completed my supervised period (520 days), in total I have completed 535 days.[5] I ask that the supervised legal practice condition be removed from my Practising Certificate.
Additional information:

(a) I have an extensive proven work record that started from the age of 14 years. From this age I helped run my family's two businesses (often working 16 hours per day, 7 days per week), and later on (after we sold our businesses) I worked as an apprentice mechanic at a leading Ford Dealership. During this time, I developed strong organisational, administrative, business and customer service skills.

(b) I have tertiary qualifications in accountancy, business administration, marketing, and information technology.

(c) I have volunteered at the Springvale Monash Legal Service in the past (2010) for 1 (or so) month. I assisted a Solicitor (Graham Wells) while I was there, my duties included;

(ii) providing technical advice and assistance to clients;

(iii) record keeping and maintenance, liaising with relevant person(s) or organisation(s);

I acknowledge that this declaration is true and correct and I make it in the belief that a person making a false declaration is liable to the penalties of perjury.

Annexed to the statutory declaration was a letter from Mr Konfir Kabo, the principal of Kabo Lawyers. This letter reads as follows:

I am the Principal of Kabo Lawyers and an Australian Legal Practitioner under the Legal Profession Act 2004 (Vic).

Mr. Quan Pham worked at our Springvale and City office on a full-time basis as a Solicitor between the dates 24 November 2011 and 10 July 2012. He was under my supervision during this time. During his employment with us, contact between us was via face-to-face meetings, telephone conversations and/or email correspondence (whichever was appropriate at the time). I often checked his work, amended it (if necessary) and gave feedback when required.

At all times during the supervised period I held a Practising Certificate authorising me to engage in legal practice as a Principal of a law practice.

Please do not hesitate contacting me on 9663 3337 if you have any questions or require further information.

At the hearing, evidence was given by Mr Konfir Kabo, Ms Loan (Shanice) Hoang, the respondent's former colleague, and the respondent himself. Following the hearing, written submissions were received from the parties.

The Commissioner submitted that he must prove the following propositions to the requisite standard:

(a) The respondent was not employed as a solicitor for the entire period 24 November 2011 to 10 July 2012 (Issue 1).

(b) The respondent knew or ought to have known that he was not employed as a solicitor for the entire period 24 November 2011 to 10 July 2012 (Issue 2).

(c) The respondent did not work for 17.5 hours per day, seven days per week for the period 24 November 2011 to 10 July 2012 (Issue 3).

(d) The respondent knew that he did not work for 17.5 hours per day, seven days per week for the period 24 November 2011 to 10 July 2012 (Issue 4).

The standard of proof of misconduct is the normal civil standard of a balance of probabilities, but it is necessary to take into account matters of the kind mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The following passages from Briginshaw's Case are relevant:

"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality." (@ 361.)

"The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal." (@ 362.)

The following matters do not appear to be in dispute:

(a) On 24 November 2011, the respondent began an association with Kabo Lawyers.

(b) When he began at Kabo Lawyers, the respondent did not hold a practising certificate.

(c) On 16 February 2012, the respondent was issued with his first practising certificate. It authorised him to engage in legal practice as an employee solicitor, and included a condition that he perform two years' worth of supervised legal practice.

(d) On 10 July 2012, the respondent ceased his association with Kabo Lawyers.

(e) On 6 August 2012, Mr Kabo signed the letter, the text of which is set out above.

(f) On 7 August 2012, the respondent made a statutory declaration, the text of which is set out above.

(g) On 7 August 2012 the respondent submitted an application to the Legal Services Board to have the supervised legal practice condition removed form his practising certificate, relying on the statutory declaration as evidence of his two years' worth of supervised legal practice.

(h) On 1 October 2012, the Law Institute of Victoria formally refused the respondent's application to have the supervised legal practice condition removed from his practising certificate.

WAS THE RESPONDENT EMPLOYED AS A SOLICITOR FOR THE ENTIRE PERIOD 24 NOVEMBER 2011 TO 24 FEBRUARY 2012?

The respondent declared in paragraph 6 of the statutory declaration that 'I was employed at Kabo Lawyers as a solicitor between the dates 24 November 2011 and 10 July 2012'.
The respondent was not issued with a practising certificate authorising him to engage in legal practice as an employee solicitor until 16 February 2012.
On the evidence produced to the Tribunal, I am satisfied that the respondent was engaged as a sub-contractor to assist with the administration, marketing and overall management of a new office of Kabo Lawyers which had been established at Springvale. I am satisfied that on the evidence, the nature of work for which the respondent was engaged, together with the lack of a practising certificate prior to 27 February 2012, lead to the conclusion that the respondent was not employed as a solicitor the entire period 24 November 2011 to 10 July 2012. I am satisfied that he was not engaged as a solicitor prior to 27 February 2012. This conclusion is reinforced by the contents of an email from the respondent to Mr Kabo on 17 December 2011, which included the following:

My understanding (from talking to Shanice) was that I was to be a sub-contractor for three months (this period was to also serve as my probation period), then this may then lead to a permanent position (I become an employee).

The three month period from 24 November 2011 ended within days of the respondent being issued with a practising certificate. The contract of employment states that its commencement date was 27 February 2012.

Even if he was employed as a solicitor from 27 February 2012, I am satisfied that he was not actually employed prior to that date but was a sub-contractor. He could not have been engaged in supervised legal practice as defined by section 1.2.1 of the Legal Profession Act 2004 as the definition requires the person who engages in supervised legal practice to do so as an employee of a law practice. The very fact that the respondent was not an employee from 24 November 2011 until 27 February 2012 (the commencement date of employment pursuant to the contract) means that during this period it was not possible for him to engage in supervised legal practice. In any case, I am satisfied that during this period the respondent was performing administrative work and was not engaged in legal practice. The administrative work included drafting a letter to the landlord, arrangement the alarm system for the office, arranging for signage, arranging for computer networking, carrying out marketing during the Chinese New Year and attending to administrative matters in relation to accounts to be paid. In an email from the respondent to Mr Kabo and Ms Hoang sent on 1 February 2012, the respondent states 'for the last two months we really have been only preparing the office ...'.
In an email to Ms Helen Hartsias dated 26 September 2012, Mr Kabo stated:

During the first three months of employment namely November 2011 to February 2012 Mr Pham undertook administrative work at the law practice which did not involve any legal practice even though he was employed as a lawyer.

Even though this email refers to employment of the respondent, as previously stated, I am satisfied that during this period he was engaged as a sub-contractor.
Ms Hoang gave the following evidence:

Due to the Springvale office being a new office Mr Pham was originally employed for a probationary period of three months to assist with the administration, marketing and general management of the office. In or around February 2012 he then commenced employment as a solicitor.

Ms Hoang gave oral evidence to the effect that Mr Pham was hired as an administrative assistant, and that it just so happened that he was also a lawyer.

In his statutory declaration dated 14 June 2013, Mr Kabo confirmed that Mr Pham was engaged as a contractor at the commencement of his association with Kabo Lawyers and that it was not until February 2012 that he was engaged as a solicitor.
In his oral evidence, Mr Kabo stated that the contents of his letter dated 6 August 2012, were incorrect. In that letter, which is set out in full above, Mr Kabo stated:

Mr. Quan Pham worked at our Springvale and City office on a full-time basis as a Solicitor between the dates 24 November 2011 and 10 July 2012.

In his oral evidence, Mr Kabo stated that the contents of his letter dated 6 August 2012 were incorrect in that Mr Pham was initially engaged as a sub-contractor, not employed as a solicitor. It should be noted that the letter dated 6 August 2012 had been drafted by the respondent. Mr Kabo accepted responsibility for the mistake contained in the letter.
On the basis of the above material, I am satisfied that the respondent was engaged as a sub-contractor to perform administrative duties, not as a solicitor prior to 27 February 2012. I am also satisfied that the respondent knew that he was not permitted to engage in supervised legal practice because he was not an employee and he did not hold a practising certificate. The respondent in oral evidence said that he thought that he held a practising certificate because Ms Hoang said she would apply for one for him. I am satisfied that this is inherently incredible.

DID THE RESPONDENT WORK 17.5 HOURS PER DAY, SEVEN DAYS PER WEEK FOR THE PERIOD 24 NOVEMBER 2011 TO 10 JULY 2012?

The answer to this question is no.
The evidence of Mr Kabo and Ms Hoang is that the volume of work through the Springvale office was very small.
The respondent stated that he received work from the city office which contributed to his workload. That was denied by Ms Hoang. The evidence of Mr Kabo was that there was no substantive work given to Mr Pham from the city office because they had enough lawyers in the city office to carry out its workload.
In his own evidence, the respondent admitted that he did not go to any client's homes, that he did not appear in court, that he did not go to court and that he did not draw any briefs. He also gave evidence that he only 'looked over' some statements of adjustments and assisted with one contract of sale. Further, he stated that he had only one enquiry about a criminal matter, but that it did not proceed.
The respondent gave evidence that he spent much of this time performing research and precedent development. This was not supported by the evidence of Mr Kabo and Ms Hoang. Quite apart from the complete improbability of the respondent working those hours, the claim by the respondent that his workload required him to work these hours was not supported by the evidence of Mr Kabo nor Ms Hoang. I am not satisfied that the respondent was at all busy, let alone being so busy as to work the hours claimed. I am satisfied that the asserted hours are a construct in order to satisfy the two years worth of supervised legal practice requirement.
The hours worked by the respondent, and the nature of the work performed by him are both entirely within his own knowledge.

I prefer the evidence of Mr Kabo and Ms Hoang over that of the respondent.
I am satisfied to the requisite standard that the respondent made statements in his statutory declaration declared on 7 August 2012 which were false and that he knew that they were false. The making of a declaration containing material which the deponent knew to be false is a clear breach of a practitioner's duty of honesty and candour and diligence in relation to the contents of documents. A false declaration by a legal practitioner can only be seen as constituting professional misconduct. Within the context of misconduct at common law, I am satisfied that the conduct is such as would be reasonably regarded as dishonourable or disgraceful by colleagues of good repute.
The respondent is found guilty of professional misconduct at common law as alleged in charge 1.
As charge 2 is framed in the alternative, it falls away and is dismissed.

Written submissions were received from the parties after the hearing. Both parties made submissions as to disposition subject to a finding on liability. Whilst acknowledging that the disposition is ultimately a matter for the Tribunal, the Commissioner submitted that a period of suspension is warranted and that on return to practice the respondent's practising certificate should be subject to a number of conditions. The Commissioner submitted that the Tribunal should suspend the respondent's practising certificate for a period of at least 24 months in recognition of the need to provide general and specific deterrence. The respondent submitted that a period of this length of suspension is disproportionate.
There is a need for specific and general deterrence together with a need to protect the reputation of the legal profession. Having regard to the respondent's inexperience, it is my view that a period of suspension of the magnitude submitted by the Commissioner would be excessive to the point of being punitive. Of far greater value in the case of a practitioner at the very commencement of his legal career is a disposition which focuses upon conditions of supervision and a requirement to complete extra training. Having said that, a period of suspension is warranted having regard to the nature of the offence.
The respondent's practising certificate is suspended until 30 June 2015.
Upon return to practise, the respondent's practising certificate is to be subject to the following conditions:

(a) The respondent is authorised to engage in legal practice as an employee only until the completion of a further 24 calendar month of supervised legal practice.

(b) The supervision of the respondent's work during the period of supervised legal practice is to be undertaken by a legal practitioner who:

(i) is a principal of the firm which employs the respondent; and

(ii) works on a full time basis in the same office location as the respondent.

The respondent is to complete an extra two CPD points in ethics prior to 30 June 2015 and is to provide the Legal Services Board with evidence of completion.
The respondent is to pay the applicant's costs of this proceeding on County Court Scale, failing agreement to be assessed by the Costs Court.

[1] (5 days in a week x 52 weeks in a year) x 2 years = 520 days.

[2] When I first started my employment at Kabo Lawyers (24 November 2011) they told me that they would arrange the Practising Certificate for me immediately and that in the meantime it would be alright for me to engage in legal practice because I was under their supervision at all times. About 3 months past and I had not received my Practising Certificate so I asked and they told me that they may have forgotten (I guessed that things were a bit disorganised because at the time there was a new office manager). I figured that they were just busy so I lodged the application myself and was pleasantly surprised that my Practising Certificate arrived about 4 days later (I thought it would take much longer, like months). I don't think I should be penalised in this situation and ask that my supervised period start from 24 November 2011 because I was genuinely reliant on my employer as I was new to this whole application process.

[3] On average I worked around 17.5 hours per day (7 days per week) in total during my whole time at Kabo Lawyers (from office/home). I did exactly the same duties when I did additional work fro home (except seeing clients), and contacted my supervisor via telephone and/or email when I needed to, or for more complicated issues I saw my supervisor as soon as I returned to the office. The house stated here is not an exaggeration, my time at Kabo Lawyers was very demanding, I just had to get the work done (I knew this would reduce my supervised period dramatically, this was my motivation).

[4] (164 days employed x 76 additional hours worked per week)/38 hours per week = 328 days.

[5] 164 days + 33 days + 328 days + 10 days (unused leave) = 535 days.

Legal Services Commissioner v Pham (Legal Practice) [2014] VCAT 1591 (22 December 2014)

Legal Services Commissioner v Pham

At a glance

Court

Decision date

Source

Judgment (78 paragraphs)

Parties

Cases Cited (2)

Legal Services Commissioner v Pham (Legal Practice) [2014] VCAT 1591 (22 December 2014)