Legal Services Commissioner v Tang [2025] QCAT 82

Legal Services Commissioner v Tang [2025] QCAT 82 | Case summary | Zoe

[2] In 2022, the respondent's then employer acted for the seller in the sale of a property. A deposit of $10,000 was paid in to the employer's trust account in the course of this transaction. The sale settled on 14 June 2022.
[3] At this time, the respondent held a restricted employee practising certificate, which he had obtained in April 2022. He was employed in conveyancing matters, where his roles included preparing such matters, and the preparation of payments arising out of a settlement, as well as arranging for the release of funds held by the employer as stakeholder.[1]
[4] On or about 12 August 2022, the respondent prepared an authority form entitled "Surplus Funds at Settlement" which authorised the payment of surplus funds from the client's sale into a bank account with the National Australia Bank ("NAB account"). The account was identified by reference to a BSB and an account number. The account was in the name of a business conducted by the respondent, and was in fact the respondent's own account. The authority bore a signature, purporting to be the signature of the client, but which was plainly the work of the respondent.[2] It was thus a false document.
[5] On 12 August 2022, the respondent created a file note which recorded the BSB and account numbers for his business account, but falsely identified the account as belonging to the client.[3]
[6] On 12 August 2022, the respondent prepared an electronic funds transfer ("EFT") request for the transfer of $10,000 from the employer's general trust account to the account of the respondent's business.[4] This document recorded that the respondent had telephoned the client and confirmed that the bank details set out in the EFT request were correct. The document was false in identifying the bank account as the client's; and in asserting that the respondent had telephoned the client to confirm the correctness of the bank account details as the client's account.[5]
[7] The respondent's conduct which has just been described resulted in an electronic transfer of the sum of $10,000 from the employer's general trust account to the respondent's NAB account.[6] The money was then transferred into another account in the name of the respondent.[7]
[8] On 12 August 2022, the respondent sent an email to the representatives of the purchaser, stating that the funds (no doubt a reference to the $10,000 deposit) had been distributed to the client.[8] The respondent knew this to be false. A copy of the trust ledger, showing that the balance had now been reduced to zero, was sent to the client, and to the buyer's lawyers, as was apparently the usual practice in relation to such transactions.[9]
[9] On 16 August 2022, the client contacted the legal practice, stating that she had not received the deposit. The person who spoke to her said the money had been sent to the client's NAB account, which had been verbally confirmed over the phone with the client. The client responded that she did not have an NAB account.[10]
[10] The respondent had leave on 16 August 2022. When he returned to work the following day, the employer's legal practice director interviewed him about the false authority. The respondent stated that a lady who he had assumed was the client had delivered the amended authority to the office of the law practice.[11]
[11] On 17 August 2022, the respondent contacted the NAB with a view to directing the return of the money to his employer.[12] He took similar action the following day.[13] However the accounts had by then been frozen.
[12] On 18 August 2022, the legal practice director again spoke with the respondent. The respondent immediately confessed that he had produced the fraudulent authority and provided it to the accounts department for payment. He admitted that the NAB account was his personal account. He was then summarily dismissed, and escorted from the building.[14]
[13] On 19 August 2022, the legal practice director reported the respondent's conduct to the Queensland Law Society ("QLS").[15]
[14] On 23 August 2022, the respondent's lawyers wrote to the applicant and to the QLS, having been instructed to "self-report" the respondent's conduct and to advise that he wished to immediately surrender his practising certificate.[16] The letter admitted the substance of the respondent's misconduct, and volunteered his co-operation.[17] The applicant has accepted that the letter was unprompted.[18]
[15] On 8 September 2022, the applicant wrote to the respondent's solicitor, setting out the information available to her, and identifying the alleged conduct that was the subject of an investigation.[19] The solicitors replied by letter to the applicant dated 21 September 2022.[20] That letter contained extensive admissions, and in it the respondent accepted full responsibility for his conduct and apologised to his employer and the Legal Services Commission. He expressed shame and remorse. He also indicated he was undergoing psychological treatment.
[16] On 6 September 2022, the respondent instructed his lawyers to again request the repayment of the $10,000 to the employer's trust account. This finally occurred on 25 October 2022.[21]
[17] The respondent was charged with the criminal offences of fraud (dishonestly obtaining the sum of $10,000); forgery (based on the false authority) and uttering (based on the use of that authority).[22] On 8 December 2023, on his pleas of guilty, he was convicted in the Magistrates Court of each of the offences. He was sentenced to a period of imprisonment of nine months on each offence, with an order for release on parole three months later.[23] He appealed to the District Court against his sentence,[24] and on 19 January 2024, he was released from custody on appeal bail, having then spent 43 days in custody. His appeal was successful, with an order that the term of imprisonment be suspended after the 43 days spent in custody.[25]
[18] For a short time after the termination of his employment, the respondent did not work. In October 2022, he had part time work in an administrative role, and undertook volunteer work with the RSPCA in his spare time. On 27 February 2023, he undertook a different administrative position, on a four day basis, which became a fulltime position around June 2023.
[19] The respondent has filed an affidavit in these proceedings, containing extensive admissions relating to his conduct, as well as expressions of regret and remorse. It included some explanation for his conduct, and his attempts to address his psychological condition.

[6]

[24] The respondent's material includes a brief report from Mr Hai Truong, psychologist, dated 27 July 2023; a report from Dr Fai Sayed, counsellor and psychotherapist, dated 31 July 2023; and a report from Dr Jacqui Yoxall, psychologist, dated 5 October 2023. These reports are, to some extent, supplemented by evidence from the respondent. None of these persons has been required for cross-examination, nor has the applicant suggested that the material should not be relied upon. In fact, the applicant has adopted some of it.
[25] Mr Truong first saw the respondent on 7 September 2022, and by the time of his report had seen the respondent for 10 subsequent sessions, that is, approximately monthly.[29] Mr Truong reported that the respondent presented with symptoms of depression and impulsive behaviour. He made a professional diagnosis of Adjustment Disorder with mixed disturbance of emotions and conduct. He stated that the respondent has been treated "within a cognitive behavioural and schema therapy framework", which "has involved an exploration of maladaptive schemas and core beliefs, as well as the coping mechanisms underlying the maintenance of these core beliefs". The respondent has also engaged in techniques that address these coping mechanisms, including those that support his impulsivity. He now has a greater understanding of internal processes that led to his conduct, and has made positive changes regarding his future career prospects within his personal life. Mr Truong reported that the respondent has engaged well with therapy and has made significant progress in managing and addressing his symptoms. He recommended that the respondent continue to engage in psychological intervention monthly for the following six months "to reinforce the strategies learned in intervention thus far and to ensure that appropriate self-management around his conduct is in place and implemented for his future endeavours".
[26] Dr Sayed is qualified in counselling and psychotherapy, and is a sexual addiction specialist. She conducts a counselling and psychotherapy centre. Her report "attests to (the respondent's) management and rehabilitation from his compulsive behaviours". She stated that he had been assessed and diagnosed with sexual addiction, or compulsive sexual behaviours, extending to uncontrollable compulsive behaviours in numerous facets of daily life. She stated that his condition "may consist of compulsive stealing, deceptive behaviours, and taking professional risks while minimising or disregarding the severe repercussions". She described the respondent as "needing support for poor emotional control, anxiety management issues, severe outbursts of anger, and relational and occupational dysfunctions in the few sessions he has had". She said that he had participated in some six sessions over a period of about three months but thought that he would need "extensive and continuous therapeutic support to create appropriate changes in his attitudes and behavioural patterns". However, he had shown significant development in acquiring new skills and letting go of old harmful patterns, and was "exceptionally devoted and driven to attend treatment". She said that he also participated in "12-Step programmes" from which he gets continuing support from other men who have faced similar sexual struggles successfully. She referred to his genuine motivation and willingness to adopt constructive adjustments.
[27] Dr Yoxall conducted a comprehensive psychological assessment of the respondent, for the sentencing court. She recorded aspects of the respondent's life history, including some substance abuse. She also recorded some expression of dissatisfaction on the part of the respondent with his work in the legal profession. The respondent expressed the view that his treatment by Mr Truong and Dr Sayed had been beneficial to him. He was learning other ways to cope with stress and problems. He had continued his treatment with Mr Truong.
[28] Dr Yoxall assessed the respondent's risk of reoffending using a tool called the Level of Service Inventory. She concluded that there was a "low level of risk of general reoffending"; and noted that he appeared to be "highly motivated to ensure that his risk of reoffending is low". She considered that his conduct occurred in the context of what appears to have been undiagnosed depression. She considered that "his depression at the time of (the conduct) would have impaired his judgment and reduced his inhibition". She also considered that he had made substantial changes in his life since that conduct, and had addressed, through treatment, the factors that contributed to it, and other compulsive and addictive behaviours that he previously used to cope with his emotions. He had learnt adaptive strategies to manage stress, depression, frustration and other negative feelings; and communication skills to express his emotions appropriately. She considered that he required ongoing psychological intervention for another six to 12 months but he demonstrated sound personal insight and judgment at the time of the report. She considered that his risk of reoffending was low, but was dependant on the management of his mental health.

[7]

[29] The respondent gave evidence that at about the time of his misconduct he had a feeling of being disconnected from "real life" and was deeply unhappy with all aspects of his life.[30] After detection, he considered that he was able to tell that he had been having some kind of mental breakdown.[31] He considered that several personal challenges had, in part, contributed to his conduct, being depression; a previously undisclosed and unknown sexual addiction; dissatisfaction with himself, his life, his relationship and his work; and disillusionment with his career path. These were matters which he had pushed to the back of his mind and tried to pretend did not exist.[32] His psychologist has told him, and he believed it to be true, that his misconduct was likely a result of an attempt to compulsively self-sabotage and escape from his reality and his job at the time.[33] He now recognises that there were other productive ways to deal with his situation.[34]
[30] In February 2023, his partner learnt of his high-frequency pornography use and infidelity. He then began attending addiction fellowship meetings on a weekly basis; and also sought counselling from Dr Sayed. These steps were pivotal in addressing his addiction, and improving his relationship with his partner.[35] Recognising and addressing this compulsive-based addiction has provided him with value insights into the irrationality and compulsiveness of the actions which led to his conduct.[36]
[31] He continues (as at the time of his affidavit, sworn in October 2023) to see Mr Truong on a monthly basis, and to attend an addiction fellowship meeting on a weekly basis. He continues to engage in ongoing therapy specialising in sexual addiction, addressing the behaviours and underlying issues associated with it. He regards these therapeutic relationships as essential pillars of his ongoing rehabilitation and personal growth.[37] He has now acquired tools for coping with personal, relational, and professional issues; and his ability to take accountability for his actions and to make ethical choices has been enhanced.[38]

[8]

[32] The applicant submitted that an order should be made recommending that the name of the respondent be removed from the local roll.[39] Relevant considerations are the protection of the public, and protection of the profession's standing. Cases involving dishonesty are exceptionally serious, particularly in determining whether a practitioner should remain on the roll. The applicant referred to a number of cases where the recommendation had been made, apparently as cases of a relevant degree of similarity to support the applicant's submission. They were Legal Services Commissioner v Quinn;[40] Legal Services Commissioner v Yarwood;[41] and Legal Services Commissioner v Brown.[42] Reliance was placed on a statement of Baston JA in Council of the New South Wales Bar Association v Sahade, where his Honour stated that deceitfulness is a character flaw which is thought by most legal practitioners as well as others not to be confined in separate compartments of one's life; and that people who have indulged in deceit for their own advantage are likely to be deceitful again when it suits them, whether in the course of legal practice or otherwise.[43]
[33] The ultimate submission of the applicant in her initial submissions was that the respondent "remains indelibly marked by his offending and the probability is that at the time of hearing, the respondent is permanently unfit to practise".[44]
[34] In her supplementary submissions, the applicant referred to concessions made on behalf of the respondent that conduct involving dishonesty will most likely lead to a recommendation for the removal of the practitioner's name from the roll; which may be justified on the basis that it preserves the good standing of the profession and the court's endorsement of the fitness of those enrolled to engage in practice. The Tribunal must determine whether, at the time of the hearing, the respondent is a fit and proper person to engage in legal practice; and whether "the probability is that the practitioner is permanently unfit to practise".[45] It was submitted that the decision in Legal Services Commissioner v Munt,[46] relied upon by the respondent for the proposition that evidence of rehabilitation and psychiatric treatment were relevant when considering whether the practitioner's name should be removed from the roll, should be distinguished. The case did not involve dishonesty. In cases involving dishonesty, it is more difficult for the Tribunal to be satisfied about rehabilitation.
[35] It was also submitted that it cannot be said that a person currently the subject of a suspended sentence for convictions of fraud, forgery and uttering, and uttering a forged document (which occurred in the practice of the law) is a fit and proper person to engage in legal practice. Reference was also made to the decision in Re: Zita (a solicitor), where it was said:

[10]

[36] It was submitted that the Tribunal cannot have confidence that the respondent can discharge his duties in a trustworthy manner and accordingly, he is not a fit and proper person to engage in legal practice.
[37] The submission was repeated that the probability is that the respondent is apparently unfit to practice. It was submitted, by reference to Stanoevsky v Council of the Law Society of New South Wales[48], that in this context, permanent unfitness had the shade of meaning of likely unfitness to practise for the indefinite future. It was accepted that the respondent had taken steps towards rehabilitation, but that did not demonstrate that after a particular period the respondent would be fit to practise. Reference was made to parts of Dr Sayed's report referring to his addiction as including uncontrollable compulsive behaviours in numerous facets of daily life, which might consist of compulsive stealing, deceptive behaviours, and taking professional risks while minimising or disregarding the severe repercussions. Reference was also made to her view that the respondent needed extensive and continuous therapeutic support. Reference was again made to Re Zita, where it was said that had the practitioner's conduct been in pursuit of a dishonest intention to gain a financial advantage at the expense of his clients, there would be little prospect of being able to actually conclude that he could ever be regarded as fit to be entrusted with the privileges of being an officer of the court.[49] An order recommending removal of the respondent's name from the roll of practitioners was required, because the primary role of these proceedings is to provide protection for the community. The submission made on behalf of the respondent that rehabilitation should be encouraged did not address the need for protection of the public.
[38] In the initial submissions on behalf of the respondent, it was accepted that conduct involving dishonesty will most likely lead to a recommendation that the practitioner's name be removed from the roll, and that such an order is the standard order. However, the Tribunal's discretion is broad. There are mitigating circumstances which have to be taken into account, namely, the respondent's early attempts to repay the money; the fact no person had suffered a loss; the respondent's voluntary notification to the QLS and the applicant of his conduct, including his admissions and the surrender of his practising certificate; the respondent had by these acts demonstrated insight into his conduct and his mental health challenges; the respondent had been cooperative with the applicant's investigation and in these proceedings; the diagnoses by Mr Truong and Dr Sayed, and the respondent's engagement in treatment and therapy; and Dr Yoxall's association of the respondent's misconduct with depression, and her views that the respondent had demonstrated sound personal insight and judgment, and his risk of reoffending was low (but dependent on the management of his mental health).
[39] Reliance was also placed on the respondent's general good character, the progress he has made, and his willingness to continue to work on rehabilitation. Reference was made to the fact that a single transaction was involved, the respondent was not an experienced practitioner, and he had no previous disciplinary or criminal history. Dr Yoxall identified the motive for the respondent's misconduct as not being personal enrichment, but as seeking relief from distress by feeling the excitement of doing something wrong.
[40] The respondent's initial submissions included an analysis of the propositions stated by Young CJ in Prothonotary of the Supreme Court of New South Wales v P, where his Honour identified mitigating circumstances relevant to the question whether a practitioner's name should be removed from the roll.[50] The respondent set out an analysis of these propositions as applied to the present case, showing that most were in the respondent's favour.
[41] It was submitted that Mr Truong, Dr Sayed and Dr Yoxall provided "clear and convincing evidence of rehabilitation including insight and behavioural changes".[51] It was accepted that removal of a practitioner's name from the roll might be justified to preserve the good standing of the legal profession, and in view of the rol1 as the court's endorsement of the fitness of those whose names appear on it. Nevertheless, the mitigating factors relied upon by the respondent gave confidence that in the respondent's case, dishonesty would not surface again.
[42] It was pointed out that, notwithstanding the statement from Sahade relied upon by the applicant, the court accepted that the practitioner's name should not be removed from the roll, notwithstanding his engagement in conduct which was deceptive or deceitful in nature; and the court expressly accepted that individuals behave differently in different circumstances.[52] In Sahade, reliance was placed on the practitioner's relative youth (27 years of age) and his relative inexperience in financial and commercial matters (his dishonesty related to the purchase of shares offered to the public). The order made in Legal Services Commissioner v Shand was made with express recognition that the respondent in that case had been aged 51 years and was a prominent and experienced lawyer; there had not been any illness that contributed to the offending; and the nature of the offence (bribing a Minister of the State) revealed his character. The present respondent's conduct was unsophisticated and bound to be found out; but it was nevertheless extremely serious; and the significance of the need to warn other practitioners against engaging in such conduct was acknowledged. Nevertheless, it was submitted that the protection of the public might be better served by acknowledging that exceptional cooperation, remorse and rehabilitative evidence could create an exception to the usual practice of recommending removal.
[43] Reference was also made to the remarks of Kirby P in Law Society of New South Wales v Foreman (No 2), which identified the fact that a consideration of the protection of the public included regard to the public's interests in the recognition of rehabilitation, remarks which his Honour said had enjoyed some favour in other Australian jurisdictions;[53] and the adoption of Kirby P's remarks in Legal Services Commissioner v McDonald.[54] McDonald was a case where dishonesty had not resulted in a finding of permanent unfitness; nor had it in Watts v Legal Services Commissioner,[55] nor in Sahade.

[11]

[44] It is well established that the power to make disciplinary orders is to be exercised for the protection of the community from unsuitable practitioners, this protection being the primary consideration.[56]
[45] In Prothonotary of the Supreme Court of New South Wales v P, Young CJ in Eq identified a number of propositions relevant to the question whether a practitioner's name should be removed from the roll, in a case involving personal misconduct by the commission of a crime.[57] His Honour's statement of these propositions has been followed extensively in this State, including at appellate level.[58] Of those propositions, of particular significance is the statement that an order striking a person's name off the roll "should only be made when the probability is that the solicitor is permanently unfit to practise".[59] Again, this proposition has been applied at appellate level in this State.[60]
[46] In relation to this proposition, the applicant referred to a passage in Stanoevski v Council of the Law Society of New South Wales.[61] There, Campbell JA said that the expression "permanent unfitness to practise" had "the shade of meaning of being likely to be unfit to practice for the indefinite future". In making that statement, his Honour was seeking to contrast the effect of the expression with a suggestion that it meant it was necessary for an applicant to prove that in no circumstances whatever would the solicitor be fit to practice (a suggestion not relied upon by the practitioner's counsel in that case).[62] His Honour's statement is to be accepted, but should not be understood that uncertainty about the length of time for which a practitioner might be unfit to practise as the consequence that permanent unfitness is established.
[47] The applicant submitted that in determining whether a recommendation should be made for the removal of the respondent's name from the roll there were two relevant questions. One is the question of permanent unfitness, to which reference has just been made. The other was said to be whether the respondent is a fit and proper person to engage in legal practice at the time of the hearing. This was based upon a passage from the judgment of Holmes CJ in Madden.[63] There her Honour concluded that, at the date of the hearing, the practitioner's unfitness to practice was not demonstrated. The consequence was that an order should not be made for the name of the practitioner to be removed from the roll.[64] It is clear from cases where an order is made for suspension that unfitness to practise at the time of the hearing does not necessarily result in an order for the removal of the practitioner's name from the roll. In Stanoevski, in the passage referred to, Campbell JA said:

[18]

[53] Reference has been made to the reliance by the parties on other cases with some similarities to the present case, on the question whether a recommendation should be made that the respondent's name be removed from the roll. The question is ultimately to be determined by deciding, on the material before the Tribunal in the present case, whether a test of probable permanent unfitness is satisfied. That will involve reaching conclusions about the respondent's character, on the available material. Inevitably, each case turns on its own facts. Nevertheless, there is some utility in considering other cases. It may reveal some error in the approach taken by, or the reasoning of, the Tribunal.
[54] The applicant relied upon Legal Services Commissioner v McKenzie.[72] In that case, the practitioner had been convicted of one count of extortion resulting in a sentence of 18 months' imprisonment, suspended after nine months. A recommendation was made that the practitioner's name be removed from the roll.
[55] Critically, the Tribunal considered that the conduct itself "reveals a fundamental failing in Mr McKenzie's character".[73] The practitioner's treating psychologist, and a psychiatrist, gave evidence that stressors to which the practitioner was subject contributed to his "poor judgment".[74] This appears to be the basis for the submission made on behalf of the practitioner that his conduct was explicable by a "confluence of environmental factors which coincided to impair the judgment of the Respondent" but which were no longer presently active.[75] The Tribunal did not consider the conduct to be explained by this confluence.[76] The Tribunal expressed scepticism about the psychiatrist's diagnosis of an anxiety disorder and a major depressive disorder, made more than four years after the events in question, and without apparent examination of possible competing explanations.[77] It also noted that the treating psychologist was not prepared to make a diagnosis of a psychiatric condition.[78]
[56] The Tribunal seems to have been particularly influenced by the practitioner's continued refusal to accept that he was guilty of any wrongdoing for years (it would seem four years, ending only months before the hearing) after the events in question.[79] In the present case, the respondent sought to identify and treat the underlying causes of his behaviour[80] and saw Mr Truong on 7 September 2022, very shortly after the misconduct.[81] His early acknowledgement of wrongdoing, and his attempts to deal with matters which appear to have caused it, are in marked contrast to response of Mr McKenzie.
[57] A recommendation for the removal of the practitioner's name from the roll was also made in Legal Services Commissioner v Quinn.[82] In that case, the practitioner accepted that the recommendation should be made.[83] Accordingly there was no question of any explanation for the conduct, nor of attempted rehabilitation, as factors warranting a different outcome. It might also be noted that the practitioner was about 10 years older than the present respondent at the time of the misconduct, and had been a solicitor for about 12 years. The defalcations occurred over a period of 16 months.[84]
[58] A similar recommendation was made in Legal Services Commissioner v Yarwood,[85] also relied upon by the Commissioner. In that case, the practitioner had engaged in the diversion of funds collected from clients to pay stamp duty, resulting in a loss to the State of $236,227.[86] The conduct occurred over a period of about three years. It involved the forged stamping of transfer documents. The conduct resulted in the practitioner being convicted (on his own plea of guilty) of two counts of fraud and one count of uttering, comprising 72 incidents. He was sentenced to four years six months' imprisonment suspended (on appeal) after nine months.
[59] Mr Yarwood relied on the fact that he suffered from a major depressive disorder, post-traumatic stress disorder, and anxiety, which he described as a severe mental illness.[87] The first (and perhaps primary) basis on which the Tribunal concluded that the recommendation should be made was that the illness persisted.[88] In the alternative, the Tribunal examined the evidence, and conclude that it explained other conduct of the practitioner, but not the offending conduct.[89] What was left for consideration was the practitioner's "deliberate acts of dishonesty including fraud with some element of sophistication, over a period of three years", resulting in a finding that the practitioner was not a fit and proper person to engage in legal practice.[90]
[60] The applicant also referred to Brown, another case where the removal recommendation was made. The practitioner had fraudulently taken sums totalling $8,000 from the Trust Account of her firm. That resulted in a conviction of one count of dishonestly obtaining property from another, subject to a trust, direction or condition.[91] She was sentenced to imprisonment for a period of 15 months, but released immediately on parole. The conduct occurred over a period of about two weeks;[92] though the Tribunal appears to have accepted that the practitioner persisted in the fraud for years.[93]
[61] The Tribunal particularly noted that no evidence had been proffered that any psychiatric condition, now resolved and unlikely to recur, impacted on the practitioner's understanding or judgment at the time of the offending conduct.[94] It concluded that, in the absence of any evidence to show that she was ever likely to become a person who was fit to be a legal practitioner, her character was indelibly marked by her misconduct.[95] It had also noted that she was of mature age and considerable experience.[96] It can thus be seen that Brown involved different circumstances from the present case.
[62] In Barristers' Board v Darveniza the Court ordered that the practitioner's name be removed from the roll of barristers.[97] In the course of the hearing, the practitioner had filed a supplementary affidavit, described by Thomas JA as "a deliberate attempt to present an untrue picture to the court".[98] It was this conduct that made it necessary to refer to the need for honesty on the part of the practitioner, and, explains the relevance of the statement relied upon by the applicant from the judgment of Thomas JA:

[21]

[66] In summary, the respondent's misconduct involved serious dishonesty and deception. Taken in isolation, it would support a finding that the respondent was then not a fit and proper person to hold a practising certificate.
[67] The misconduct involved some level of sophistication, in that it required an understanding of the employer's systems for protecting trust funds from misappropriation; and the devising of a means to defeat those protections. Nevertheless, it must have been obvious to the respondent that the client would quickly become aware that the funds had been paid out, but not to the client, and accordingly prompt detection of the misappropriation was likely to occur. That consideration, and the respondent's mental state at the time, raise some question about whether the respondent truly intended to profit personally from his misconduct. They raise some doubt about whether the respondent's conduct was truly reflective of his character.
[68] The respondent quickly recognised his wrongdoing. He made early admissions to the applicant and the QLS, and surrendered his practising certificate. He sought treatment to deal with the causes of his conduct, and has engaged in that treatment over a substantial period of time. There is evidence from health care professionals that the respondent has shown some commitment to that treatment, and has engaged in it with some success, though this success was not complete at the time of their reports.
[69] Mr Truong has given evidence that the respondent has engaged in treatment which has given him "a greater understanding of internal processes that lead to the criminal offence in 2022" and had "made significant progress in managing and addressing his symptoms".[105] Dr Yoxall considered that the respondent had "addressed, through treatment, not only the factors that contributed to his offending, but other compulsive and addictive behaviours that he previously used to cope with his emotions".[106] They, and Dr Seyed, considered that he needed further treatment. The tenor of their reports, as well as the respondent's own evidence[107] suggest this is likely to have occurred. In particular, the respondent appeared to have recognised the benefits he had received from treatment, and to be committed to continuing with it.
[70] There is also the respondent's relative youth - the conduct occurred shortly before his twenty-sixth birthday. He is otherwise of good character, without previous misconduct. He has been co-operative in these proceedings. The factors (identified in P) which weigh most heavily against him are that his conduct was dishonest, with some level of sophistication; and it occurred in the course of legal practice. However, they are not decisive. As the respondent's submissions show, a number of other factors identified in that case weigh in the respondent's favour.
[71] Weighing these considerations up, the Tribunal is not satisfied that the probability is that the respondent is permanently unfit to hold a practising certificate. There is some doubt that the misconduct is truly reflective of the respondent's character. In any event, his early recognition that his conduct was wrong and his actions taken to rectify it, his efforts to identify and address his mental state which may have contributed to the misconduct, the salutary effect of time in prison, his general good character, and his youth and inexperience, provide reason to think that there is a good prospect that his rehabilitation has been, or is close to being, successful. Limited weight might be given to the desirability of encouraging practitioners to engage in rehabilitation, but this factor, as a separate factor, is far from decisive.
[72] It follows that an order should not be made recommending the removal of the respondent's name from the roll of practitioners.
[73] In determining the orders to be made, there are other matters to be taken into account. It is necessary to mark the significance of the respondent's misconduct. The need for deterrence, both general and personal, should be taken into account. It would be prudent to seek added assurance that the respondent has continued to manage his mental state, before he is issued with a practising certificate. A public reprimand is appropriate.
[74] There is no issue about costs. An order will be made in favour of the applicant.

At a glance

Court

Decision date

Source

Judgment (54 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (17)