Legal Services Commissioner v Thomson [2011] QCAT 127 | Case summary | Zoe

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Legal Services Commissioner v Thomson [2011] QCAT 127 | Case summary | Zoe

[11]

[1] Mr Thomson, a solicitor admitted in 1969, has been charged by the Commissioner with a serious offence - that, at a hearing on 6 May 2005, he misled a Federal Magistrate and, thereby, committed an act of professional misconduct. Mr Thomson admits that he did mislead the Magistrate but, in effect, only through inadvertence and he denies that his conduct constituted professional misconduct.

[2] Professional misconduct is one of what the Legal Profession Act 2007 calls its 'key concepts'. It appears in s 419.

[3] The other key concept is unsatisfactory professional conduct which is defined, in s 418, to mean conduct occurring in connection with the practice of law which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian lawyer.

[4] Professional misconduct is defined to include unsatisfactory professional conduct if it involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; or, conduct that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

[5] It will be seen that professional misconduct is the more serious charge. Mr Thomson is prepared to admit that he is guilty of unsatisfactory professional conduct, but not the more serious offence.

[6] The question turns on whether or not Mr Thomson was deliberately dishonest in an exchange between him and the Federal Magistrate, or whether he was careless about the words he used.

[7] The background of the matter is that on 6 May 2005 Mr Thomson appeared before the Federal Magistrates' Court on behalf of the husband in a matrimonial matter called Williams v Williams. It was a divorce application which had previously come before a Family Court Registrar but could not be dealt with there because of a dispute as to whether or not the parties had been separated for the requisite twelve months. Mr Thomson's client contended that the parties had in fact separated in April 1990, but the wife's position was that separation had not occurred until 4 August 2004 - that is, less than 12 months before the hearing day.

[8] The matter came on for a directions hearing before Mr Jarrett, Federal Magistrate, and Mr Thomson appeared for Mr Williams. The date of separation remained in dispute, so a trial about that question was necessary unless the application for divorce was withdrawn or otherwise disposed of, and refiled after a period of twelve months had elapsed after the date contended by the wife - that is, after 4 August 2005.

[9] The learned Magistrate told the parties that a trial could not, in any event, be heard earlier than August 2005 by which time, even on the wife's case, the necessary period would have elapsed. The learned Magistrate suggested that if the husband consented to his application being dismissed, and refiled on 5 August 2005, that course would avoid the need for a contested hearing. Mr Thomson offered to seek his client's instructions, and the Federal Magistrate stood the matter down for that purpose.

[10] Later that day the following exchange took place in the court room:

[15]

[11] In truth, Mr Thomson had not had any contact with his client that day. In an affidavit filed in this disciplinary proceeding, Mr Thomson deposes that when the matter was stood down by the Federal Magistrate earlier in the day, he did intend to telephone his client and obtain instructions to agree to the course the Magistrate had suggested. However, after leaving the court he formed the view that it was unnecessary for him to do so, because he believed the suggested course was in accordance with his instructions about the matter generally, and would be to the benefit of both his client, and his client's new partner. He could see, he says, no disadvantage in that course.

[12] Mr Thomson properly concedes that, on the face of the transcript, his response to the Federal Magistrate clearly indicates that he had contacted his client when that was not, in truth, what had happened. He is adamant, however, that he did not intend to mislead the Magistrate.

[13] The Commissioner took the position, prior to the hearing before this Tribunal, that Mr Thomson's conduct - that is, the words he used to the Federal Magistrate - involved deliberate dishonesty because he had not contacted his client and knew that he had not done so.

[14] It was submitted, for the Commissioner, that Mr Thomson was not able to contact Mr Williams because Mr Williams was, in effect, uncontactable and that Mr Thomson's dishonesty was to wrongly, and dishonestly, pretend and represent that actual contact had been made.

[15] At the hearing before this Tribunal, however, Counsel for the Commissioner conceded - properly, in the Tribunal's view - that there was no evidence to suggest that Mr Thomson was physically unable to contact Mr Williams (and, inferentially, had attempted to do so but could not, and had lied about that); and, that the Commissioner now accepted that Mr Thomson had made an actual decision that it was unnecessary to contact his client.

[16] It is not disputed that Mr Thomson's response was, on one construction, incorrect but a finding of actual dishonesty would not lightly be made. It is a serious allegation, and the Tribunal could not be reasonably satisfied of its truth without clear proof or testimony, or circumstances pointing to only one possible inference.[1]

[17] The allegation that Mr Thomson, a solicitor with an unblemished record in legal practice for almost 40 years, would lie to a judicial officer is a very serious one. A finding of professional misconduct on the basis of dishonesty is, on any view, a grave matter.

[18] The prevailing facts and circumstances, described above, do not lend support to a finding that takes this worst view of the matter.

[19] Rather, a number of aspects of the attendant circumstances reduce the likelihood that Mr Thomson would have lied when, for plausible reasons, he believed he could adopt the learned Magistrate's suggestion without actually speaking to his client. There are persuasive indications that Mr Thomson was careless, rather than dishonest.

[20] The critical enquiry made by the learned Magistrate of Mr Thomson was not whether he could contact his client, but whether the client would agree to the course of action the Magistrate proposed. That course presented as sensible, and attractive. It cannot be said that the word 'yes' at the commencement of Mr Thomson's answer can only be referable to the second of the learned Magistrate's two preceding questions; it could be nothing more than an affirmative and deliberate response to the first of those questions, enquiring how Mr Thomson 'went' in the sense of having any instructions.

[21] Nor can it be said that Mr Thomson or his client had anything to gain from a deliberate lie. It would have been equally as acceptable to the court for him to have responded, in detail, about what actually happened - that is, that on reflection he had come to the view that he could give the Magistrate an affirmative answer without taking instructions, because the instructions he already had were sufficiently broad to encompass that response.

[22] The NSW Court of Appeal has observed that care must be taken in concluding that a solicitor has lied to or deceived a Tribunal, and that it goes without saying that a court or tribunal needs to be satisfied to that degree of persuasion which is necessary to satisfy the Briginshaw test before it can properly make finding that the solicitor has lied.[2]

[23] In the Queensland cases in which dishonesty on the part of a lawyer has been found there has been a clear reason for the dishonesty - either to benefit the client,[3] or the practitioner.[4] Here, the absence of any purpose provides another basis for questioning whether an inference of dishonesty could ever be drawn.

[24] The Tribunal is, for these reasons, satisfied that Mr Thomson made an error but is not persuaded that he was dishonest. He ought to have been more careful to focus on the actual question but that absence of focus is more fairly categorised as carelessness.

[25] Once that conclusion is reached, it cannot be said that the offending conduct falls within the more serious category of offending, so as to constitute professional misconduct. As carelessness, it falls more obviously within the lesser category of unsatisfactory professional conduct.

[26] Mr Thomson is now retired. Save for this incident he had an unblemished record in almost 40 years of practice. The Commissioner urges, and Mr Thomson does not resist, an order that he be publicly reprimanded[5] and that he pay the applicant's costs, fixed at $1,000. The Tribunal accepts that this penalty reflects an appropriate sanction for Mr Thomson's inadvertence, and for this unfortunate mark upon his otherwise unblemished record.