plaintiff. Tribunal found respondent guilty of unsatisfactory professional conduct for failing to honour a court undertaking (breach of Rule 30 and Rule 1.2) and for failing to respond to the Society (breach...
Key principles
A practitioner's failure to honour an undertaking to the court to engross and file orders, without explanation and after repeated requests, constitutes a breach of Rule 30...
A practitioner's wilful or deliberate failure to respond to lawful requests from the professional regulator for a full and accurate account of conduct breaches Rule 39.2 and...
Where the conduct falls short of the threshold in s 387(a) (a substantial or consistent failure to reach or maintain reasonable competence and diligence), it should be classified...
Issues before the court
Did the respondent's failure to engross and file court orders after giving an undertaking amount to professional misconduct or unsatisfactory...
Did the respondent's failure to respond properly to the Society's requests for explanation contravene the professional rules and amount to...
Was the Tribunal properly vested with jurisdiction to hear complaints about a practitioner holding a practising certificate from another state?
Plain English Summary
The Tribunal found that an independent children's lawyer who undertook in open court to prepare and lodge final orders but then failed to do so for many months, without explanation and despite repeated requests, breached professional rules requiring honouring undertakings and acting with competence and diligence. The practitioner also failed to provide substantive responses to the Law Society's enquiries. The Tribunal classified the conduct as significant ongoing unsatisfactory professional conduct (not professional misconduct) and relisted the matter for penalty and costs.
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Deep Dive
1,947 words · generated 27/06/2026
What happened
Facts
On 3 October 2008, in family-law proceedings before the Federal Magistrates Court in Canberra, the respondent (the independent children's lawyer appointed to represent the children's interests) gave an undertaking in open court to "engross the court orders" and take them out (the Tribunal accepted this fact on affidavit evidence; Discussion paras 1 and 3).
Cited legislation
3 cited instruments linked from this judgment.
The respondent did not perform that undertaking. Over the following months the complainant and her solicitor repeatedly contacted him; he gave assurances but no substantive action followed. About eight months after the hearing, the complainant's solicitor, Elisabeth Fleming and Associates, finally took out the orders on 22 June 2009 (The Complaint paras 2-3; Society's evidence).
The complainant complained to the NSW Legal Services Commissioner (5 April 2009) and to the ACT Law Society (9 April 2009). The Society sent multiple letters requesting the respondent's explanation (30 April, 21 May, 4 June and 28 June 2009). The respondent replied only with a facsimile of 25 June 2009 saying he would seek counsel's advice before responding; he provided no substantive account (Society's evidence).
The Society brought proceedings in the ACT Civil and Administrative Tribunal (ACAT) under s 419 of the Legal Profession Act 2006 alleging professional misconduct or, alternatively, unsatisfactory professional conduct; a second complaint alleged failure to furnish a full and accurate account to the Society (Application and Society's evidence).
The respondent failed to attend the substantive hearing on 6 August 2010. The Tribunal proceeded on affidavit evidence and found the allegations proven to the required degree (Hearing of this matter paras 1-3; Discussion).
Procedural posture
The Tribunal proceeded to determine liability (the question of classification of the conduct) and relisted the matter to receive submissions on penalty and costs after issuing these reasons (Conclusion para 1).
Why the court decided this way
Legal framework applied
The Tribunal applied the definitions in the Legal Profession Act 2006: "unsatisfactory professional conduct" (s 386) and "professional misconduct" (s 387). It also applied the Legal Profession (Solicitors) Rules 2007, especially Rule 30 (undertakings), Rule 1.2 (duty to act honestly, fairly, with competence and diligence), and Rule 39.2 (obligation to respond to the Law Society) (The Legislation section).
The Tribunal also considered the statutory role of an independent children's lawyer under s 68LA of the Family Law Act 1975 and the professional expectations expressed in the guidelines for independent children's lawyers (Independent Children's Lawyer section).
Application of law to facts
Undertakings to the court are sacrosanct in the Tribunal's view: where a practitioner gives an undertaking in open court the expectation is strict compliance (Discussion paras 1 and 5). The respondent's extended and unexplained delay, and ultimate failure to perform the undertaking, were treated as an indifference to the obligation and a breach of Rule 30.
The Tribunal emphasised the practitioner's duty to his client and to the children whose interests he represented: failing to take out the orders risked adverse consequences for the children's entitlements (for example, adjustment by the Child Support Agency) and so was more than a mere administrative lapse (Discussion para 2).
On the regulator-response issue, the Tribunal found the respondent's failure to provide a full and accurate account to the Society, a facsimile promising counsel's advice being an inadequate and delaying response, amounted to a deliberate breach of Rule 39.2 (Discussion para 9).
The Tribunal assessed classification by reference to s 387(a): professional misconduct requires a substantial or consistent failure to reach or maintain reasonable competence and diligence, or other conduct that would show the practitioner is not a fit and proper person. The respondent's conduct, while serious and ongoing, did not meet the threshold for professional misconduct under s 387(a). It did, however, amount to significant, continuing unsatisfactory professional conduct (Classification of conduct paras 1-4).
Standard of proof
The Tribunal applied the civil standard of "comfortable satisfaction" in reaching its factual conclusions (Discussion para 6: "I am more than comfortably satisfied...").
Practical reasons for the decision
The decision reflects the Tribunal's balancing: an undertaking breached in the circumstances of this case, without explanation and causing potential detriment to children and requiring the complainant's solicitor to rectify matters, is serious misconduct within the disciplinary regime but not sufficiently egregious on these facts to be classified as professional misconduct under s 387(a). The respondent's silence and non-cooperation with the regulator aggravated the position but still attracted a finding of unsatisfactory professional conduct (Classification of conduct paras 2-4, Discussion paras 5 and 9).
Before and after state of the law
Before
The governing statutory framework was already established by the Legal Profession Act 2006 and the solicitors' rules. It was accepted in prior decisions that the breach of court undertakings and failure to respond to regulatory enquiries are matters capable of constituting unsatisfactory professional conduct or professional misconduct, depending on seriousness and context.
After (effect of the decision)
This ACAT decision applies those principles to a fact pattern where:
a court undertaking was given and not performed for an extended period (eight months),
the practitioner did not engage with the regulator, and
the failure caused interference with client interests and required other practitioners to remedy the omission.
The Tribunal clarified how it approaches classification: serious ongoing breaches of undertakings and regulatory non-cooperation will normally attract a sanction of unsatisfactory professional conduct, and only in more severe or systemic cases will the Tribunal elevate the finding to professional misconduct under s 387(a) or to fitness-to-practise issues under s 387(b) (Classification of conduct paras 1 and 5). The decision therefore confirms the sliding scale approach emphasised in previous authorities and warns practitioners that persistent regulatory non-cooperation may trigger fitness-to-practise findings.
Key passages with plain-English translation
"I am satisfied that he gave the undertaking to the Court and that he failed to comply with it." (Discussion para 1).
Plain English: The Tribunal accepted that the practitioner promised the court he would prepare and lodge the orders, and that he did not do so.
"I am satisfied that this delay constitutes a breach of Rule 30." (Discussion para 5).
Plain English: The practitioner's failure to act promptly on his promise violated the rule that court undertakings must be honoured.
"I am more than comfortably satisfied that the conduct of the respondent ... is a breach of Rule 1.2" (Discussion para 6).
Plain English: On the evidence, the Tribunal was firmly convinced the conduct breached the duty to act honestly, competently and diligently.
"His failure to respond, other than by a facsimile ... justifies a finding of a wilful disregarding ... of this Rule, and I so find." (Discussion para 9).
Plain English: The Tribunal found the practitioner's minimal reply to the regulator was essentially a deliberate failure to comply with the obligation to explain his conduct.
"While the failure ... clearly amounts to unsatisfactory professional conduct ... I am not satisfied that it falls within ... 'professional misconduct'." (Classification para 2).
Plain English: The behaviour was serious enough to be disciplinary, but not so severe or systemic as to meet the statutory definition of professional misconduct on these facts.
What fact patterns trigger this precedent
Patterns likely to attract the same outcome:
A practitioner gives an undertaking in court to prepare or lodge documents and does not perform that obligation for an extended period, particularly where the omission has potential adverse consequences for the client or third parties (Discussion paras 1-3).
A practitioner repeatedly fails to communicate or provide a substantive explanation to the regulator in relation to a complaint, instead offering only evasory replies or promises to obtain advice without delivering an explanation (Discussion para 9; Society's evidence).
The practitioner's conduct creates the need for another practitioner to remedy the omission (e.g. the complainant's solicitor ultimately taking out orders), evidencing practical prejudice or inconvenience (The Complaint para 3; Discussion para 4).
Absence from a regulatory hearing and failure to engage procedurally may lead the Tribunal to proceed on affidavit evidence and to draw adverse inferences where the practitioner had proper notice (Hearing of this matter paras 1-3).
Fact patterns that might push the outcome towards professional misconduct (s 387(a) or (b)):
Repetition of similar undertakings breaches across multiple matters, demonstrating a substantial or consistent failure to maintain reasonable competence and diligence.
Evidence of deliberate or dishonest conduct beyond mere neglect, or conduct occurring outside the practice of law that shows the practitioner is not a fit and proper person.
A clear pattern of wilful non-cooperation with regulatory inquiries over an extended period such that public protection and reputation of the profession are fundamentally compromised (Classification para 5).
How later courts have treated it
The decision itself records and applies established principles rather than creating novel law. It emphasises the judiciary's expectation that undertakings be honoured and regulators' entitlement to explanations. Later courts and tribunals assessing similar fact patterns will look to the Tribunal's approach to classification, the sliding scale and the emphasis on persistence, harm, and regulatory non-cooperation in determining whether conduct is unsatisfactory professional conduct as opposed to professional misconduct (Classification of conduct).
Practitioners and regulators would expect this decision to be cited as authority for: (a) the seriousness with which undertakings are treated, (b) the appropriate use of unsatisfactory professional conduct classification where a single, albeit serious, omission occurs without evidence of systemic incompetence or dishonest intent, and (c) the importance of responding promptly and fully to regulatory enquiries.
Still-open questions
Threshold for professional misconduct: The Tribunal declined to classify the conduct as professional misconduct while observing that repeated failure to respond to the Society could justify a finding that the practitioner is not fit and proper. The precise factual boundary between serious unsatisfactory conduct and professional misconduct on the basis of "substantial or consistent failure" under s 387(a) remains a case-by-case assessment and could benefit from further appellate clarification on metrics or examples that push a matter over the line (Classification paras 1-5).
Role and accreditation of independent children's lawyers: The Tribunal noted the respondent was not an accredited independent children's lawyer and that his appointment may have been an error by Legal Aid ACT (Independent Children's Lawyer para 2). While the lack of accreditation was not determinative of the disciplinary outcome, the interaction between accreditation requirements and disciplinary expectations was not fully explored. Future cases may address whether accreditation status informs standards of conduct or remedies.
Consequences of non-attendance: The Tribunal proceeded in the respondent's absence after noting proper notice had been given. How tribunals should weigh non-attendance against any explanation not before the Tribunal remains an open procedural issue; there may be factual circumstances where proceeding in absence could be problematic if adequate explanation would have been likely to affect findings.
Remedies and sanctions calibrations: The reasons direct a relisting for penalty submissions but do not provide guidance on the range of sanctions appropriate for this fact pattern. Future decisions on penalty will clarify proportionality: where to draw the line between reprimand, conditions, fines, suspension, or reference to further disciplinary consequences when undertakings are breached and regulators are ignored.
Conclusion
The decision is a clear statement that undertakings to the court and regulator engagement are core obligations of legal practitioners. Failure to perform an undertaking and failure to answer regulator inquiries will attract disciplinary sanction in the form of unsatisfactory professional conduct; repeated or systemic failures risk escalation to findings affecting fitness to practise. Practitioners should therefore prioritise compliance with court undertakings and timely, full responses to regulatory requests.
Judgment (42 paragraphs)
[1]
THE ACT LAW SOCIETY v LEGAL PRACTITIONER (Duncan Phillips) (Occupational Discipline) [2010] ACAT 67 (30 September 2010)
[2]
THE ACT LAW SOCIETY & THE LEGAL PRACTITIONER (Duncan Phillips) (Occupational Discipline) [2010] ACAT 67
[3]
Catchwords: OCCUPATIONAL DISCIPLINE - LEGAL PROFESSION - professional misconduct - unsatisfactory professional conduct - the practitioner holds NSW practising certificate - ACAT's jurisdiction to hear the complaint - independent children's lawyer's ongoing failure to comply with undertaking to engross court orders in family law proceedings - failure to respond to Law Society - whether the practitioner is fit and proper person to continue legal practice
This is an application under section 419 of the Legal Profession Act 2006 ("LP Act") contending that certain conduct of the respondent in failing to take out orders in the Federal Magistrates Court ("Court") in breach of his undertaking to do so constituted professional misconduct or, in the alternative, unsatisfactory professional conduct. A second complaint in the application also alleged that the respondent had failed to provide a full and accurate account of his conduct in relation to the complaint when required to do so by The Law Society of the ACT ("Society.") This allegation is that this failure constituted unsatisfactory professional conduct.[1]
The respondent was at all material times a partner with a small firm that has offices in both New South Wales and the ACT. He therefore practices in the ACT. The respondent does not hold a practising certificate issued by the Society. He has held a Law Society of New South Wales unrestricted practicing certificate since 1 July 2007.
The respondent was first admitted as a barrister and solicitor of the Supreme Court of the ACT on 16 July 1999. Accordingly, he is an "Australian legal practitioner" within the definition in the LP Act. The Society is the "relevant council" for the institution of proceedings because the definition includes:
[10]
"In relation to an Australian legal practitioner who is, or a former Australian legal practitioner who was, a solicitor or who is an applicant for an unrestricted practising certificate or a restricted practising certificate -- the law society council."
[11]
The conduct complained of occurred in the hearings of the Court in the ACT. It is conduct to which section 391 of the LP Act applies.
The effect of these definitions in the LP Act results in the Society having standing as the applicant in this matter, notwithstanding that the respondent does not hold a current certificate issued by the Society.
[12]
The complainant's original letter of complaint to the Legal Services Commissioner of New South Wales was dated 5 April 2009. Her subsequent complaint to the Society dated 9 April 2009, covers the same ground.
The complainant was engaged in family law proceedings against her husband concerning access to the children of the marriage. The proceedings were heard in the Court in Canberra. A firm of solicitors in Batemans Bay, Elisabeth Fleming and Associates, acted for the complainant. The respondent was appointed as the independent children's lawyer in the proceedings.
The respondent was in court in the capacity as the children's lawyer on 3 October 2008 when the matter was heard and finalised. The respondent undertook to engross the court orders. The respondent failed to do this over a long period of time. He was repeatedly approached by the complainant and Ms Fleming to do so. Ultimately, Ms Fleming took out the orders on 22 June 2009. The complaint indicates that it was necessary that the orders be formally taken out to satisfy the Child Support Agency in its role of adjusting the child support payments between the parties.
[13]
As indicated in paragraph 11, an affidavit was filed from the professional standards director of the Society, Mr Reis. In addition to the information concerning enquiries about the respondent's practising certificates, the affidavit annexed copies of the correspondence that the Society had received from the Legal Services Commissioner in New South Wales, the complaint from the complainant, and a letter from Ms. Fleming dated 21 January 2009.
The affidavit of Mr Reis annexed copies of letters of 30 April 2009, 21 May 2009, 4 June 2009 and the 28 June 2009 from the Society to the respondent, seeking the response of the respondent to the complaint under Rules 39.1 and 39.2. The affidavit also annexed a copy of a letter sent to the respondent's partner on 30 April 2009 which enclosed a copy of the complaint and the initial letter to the respondent.
The only response to the Society was by way of a facsimile from the respondent to the Society dated 25 June 2009, annexed as annexure "H" to the affidavit of Mr Reis. The facsimile did not address the complaint at all. It stated:
[14]
As you would be aware I am required to seek the advice of Counsel before responding to any complaint received from the ACT Law Society.
[15]
I have prepared responses to the above-mentioned matters and expect to receive advice from Counsel shortly as to their contents. I will then forward my responses to the Society."
[16]
No other response has been received by the Society from the respondent.
An affidavit from the complainant dated 24th February 2010 was filed and admitted as Exhibit 3. In that affidavit the complainant set out that she was present in the " Family Court" (presumably referring to the Federal Magistrates Court) on the day that the orders were made, 3 October 2008. The complainant states in paragraph 3 of her affidavit:
[17]
"I was present in court and recall the respondent informing the Court that he agreed to take out the orders made."
[18]
The complainant then sets out details of telephone conversations in which she rang the respondent and asked him about whether or not he had taken out the orders. She recounts that she was given assurances that he would do so, but he failed to act in accordance with his assurances. The copy of the complaint letter annexed to the complainant's affidavit set out the numerous steps that she had taken to try and get the orders taken out, including correspondence by her solicitor to the respondent and contacts made with the Court and with Legal Aid. All attempts were unsuccessful.
The Society has filed two affidavits in this matter by the solicitor for the complainant, Ms. Fleming. The first of these dated 24 February 2010 was not relied upon or read. The second affidavit dated 17 June 2010 was admitted as exhibit 4. This affidavit sets out the circumstances under which Ms Fleming acted for the complainant, and provided copies of certain documents including correspondence with the respondent seeking to get the orders taken out.
Paragraph 7 of the affidavit of Ms Fleming provided evidence that her employee Mr Andrew Fleming had spoken with counsel who appeared for the complainant in the court in Canberra. That paragraph indicates that counsel who appeared, Mr Chris McEwen, had advised Andrew Fleming that the independent children's lawyer had agreed in open court to engross the orders.
Annexed to the affidavit of Ms Fleming is a copy of an e-mail from Mr McEwen to Andrew Fleming which reads as follows:
[19]
"Just back from court -- all good -- first weekend of each month unless by 8 PM on the Wednesday before they communicate a change. Other orders etc -- Sep Rep doing the orders."
[20]
Paragraph 7 of the affidavit of Ms Fleming indicates that she considered the reference to "Sep Rep" to be a reference to the independent children's lawyer, the respondent.
The affidavit sets out the numerous attempts made by Ms Fleming or her office to contact the respondent and the Court to attempt to get the respondent to honour his undertaking. These did not meet with any success. The orders were finally taken out by Ms Fleming's office on 22 June 2009.
The affidavit of Ms Fleming confirms that there was no correspondence from the respondent to her office during the course of the proceedings.
The application by the Society was filed on 21 August 2009. Directions hearings were held on 21 September 2009, 5 November 2009 and 21 December 2009. At that hearing the matter was listed for hearing on 19 March 2010. It was subsequently listed for directions on 21 April 2010 along with another matter involving the respondent. The respondent was present at the directions hearing on 21 April 2010 when among other orders the hearing was set for 6 August 2010. The proposition in the facsimile of 28 July 2010 to the Tribunal that the respondent did not have enough time to prepare is fanciful.
I noted in the orders made at the directions hearing on 28 July 2010 that the respondent had not required any of the witnesses to be present for cross examination, and that he had not filed any material in response.
A letter was sent from the Tribunal registry on the 28 July 2010 to the respondent reminding him of the directions hearing in this matter which had been previously notified, and also reminding him of the date of the hearing. On the same date, the respondent sent a facsimile questioning whether the matter was to be heard by a member other than the General President (who had presided at the directions hearings earlier), and maintaining that as the matters were part heard they could only be heard (including any further directions) by another member if the proceedings were started afresh. The respondent also maintained that he had not been given enough time to defend the matter and the other matter to which he was a respondent.
[21]
An independent children's lawyer is appointed under section 68L of the Family Law Act 1975 ("FL Act"). Section 68LA of the FL Act sets out in detail the role that the independent children's lawyer is expected to play in court proceedings. Those obligations may be best summarised by subsection (2) where the section directs the independent children's lawyer to:
[22]
"(a) form an independent view, based on evidence available to the independent children's lawyer, of what is in the best interests of the child; and
[23]
(b) act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child."
[24]
There are extensive guidelines for independent children's lawyers, dated the 6 December 2007. The guidelines indicate that they have been endorsed by the Chief Justice of the Family Court of Australia and also by the Federal Magistrates Court of Australia. A copy was tendered as exhibit 6.
It appears from a letter of 27 November 2009 from Legal Aid ACT to the Society's solicitor that there is a process for accreditation of independent children's lawyers, and that before appointment of a practitioner to that position, it is expected that the person will be accredited. This letter, exhibit 1, indicated that the respondent is not an accredited independent children's lawyer, and that the grant of legal assistance for him to be appointed to that role was an error on the part of the Legal Aid Office. The Society's lawyer wrote to the respondent on 3 December 2009 enclosing a copy and enquiring whether he was aware that he needed to be an accredited independent children's lawyer before being appointed to act. That letter was admitted as exhibit 2. The Society's solicitor indicated that there had been no response to this letter.
Notwithstanding whether the respondent should have been accredited, and whether or not he knew this, he appeared in the capacity as independent children's lawyer at the court hearing.
[25]
The hearing proceeded on 6 August 2010. At 9:30 a.m. when the matter was called there was no appearance for the respondent. I stood the matter down for half an hour, and telephone calls by Tribunal staff were made both to the respondent's Queanbeyan office, Canberra office and to his mobile phone. Recorded messages were left on the Queanbeyan office number, and on the mobile phone. The Canberra office number rang out.
At 10:10, further telephone calls were made, with the same result.
The hearing of a complaint of professional misconduct and/or unsatisfactory professional conduct is a serious matter. It should not proceed where possible in the absence of the respondent. On the other hand, the work of the Tribunal and its statutory obligation to deal with cases against practitioners cannot be thwarted by a deliberate failure to appear before the Tribunal. I was satisfied that proper notice had been given to the respondent. In the absence of any explanation as to his failure to appear, I proceeded to hear the matter.
In the earlier directions hearings heard by the General President, she had allowed an application by the Society to amend the notice of complaint in several respects. In paragraph 17 (i), the allegation was amended to "a breach of his duty to the three children;", and in paragraph 19 (ii) the words "professional misconduct or in the alternative," were deleted.
As there was no appearance for the respondent and no notice for cross examination had been given, the matter was determined on the affidavit evidence.
[26]
"Professional misconduct" is defined in section 387 of the LP Act. The definition is as follows:
[27]
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
[28]
(b) 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.
[29]
"Unsatisfactory professional conduct" is defined in section 386 of the LP Act as follows:
[30]
"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.
"A practitioner must act honestly, fairly and with competence and diligence in the service of a client, and should accept instructions, and the retainer to act for a client, only when the practitioner can reasonably expect to serve the client in that manner and tend to the work required with reasonable promptness."
A practitioner who, in the course of providing legal services to a client, communicates with a third party orally, or in writing, in terms which, expressly, or by necessary implication, constitute an undertaking on the part of the practitioner to ensure the performance of some action or obligation, in circumstances where it might reasonably be expected that the third party will rely on it, must honour the undertaking so given strictly in accordance with its terms, and within the time promised (if any) or within a reasonable time.
"A practitioner should respond within a reasonable time and in any event within 14 days (or such extended time as the Society may allow) to any requirement by the Society for comments or information in relation to the practitioner's conduct or professional behaviour and in doing so that the practitioner should furnish in writing a full and accurate account of his or her conduct in relation to the matter."
[37]
It is against the information provided to the Tribunal and the provisions of these Rules that the conduct of the respondent must be judged.
[38]
The evidence of the complainant together with the e-mail from counsel who appeared for the complainant make it clear that the respondent had given an undertaking to the Court to take out the orders. In spite of the telephone calls and contact between the complainant and the complainant's solicitor (and possibly, staff of the Court) to the respondent, there is no suggestion that at any time he disputed that he had given the undertaking to take out the orders. I am satisfied that he gave the undertaking to the Court and that he failed to comply with it.
The complainant had made it clear to the respondent that it was necessary for the orders to be formally taken out, in order to satisfy the Child Support Agency. Bearing in mind the respondent's obligations to the children in his capacity as independent children's lawyer, his failure to comply with his undertaking could have caused them damage through an inability to amend the payments to be made by the father. Whether or not this is so, the failure to comply with the undertaking for a period of eight months, can only be regarded as indifference to the undertaking that he gave. Ultimately, he did not comply with his undertaking at all, requiring the solicitor for the complainant to take out the orders.
The affidavit of the complainant makes it clear in paragraphs 5 and six that the respondent did agree to carry out his undertaking of taking out the orders. He would have been well aware that getting the formal orders was important to the complainant.
In the annexure to the affidavit of Ms Fleming admitted as Exhibit 4 is a letter written to the solicitors for the Society. In that letter, Ms Fleming outlines the steps that had been taken to try and get the respondent to comply with his undertaking to take out the orders. Those steps indicate that Ms Fleming as the complainant's solicitor was relying on the respondent to take out the orders and was only when he had persistently failed to do so, that in her client's interest she took the step herself of taking the orders out.
In the absence of any reason for the respondent's delay (of which there is no evidence in the material filed and, if it exists, he has not informed the Tribunal) I am satisfied that this delay constitutes a breach of rule 30.
[39]
In classifying conduct as either professional misconduct or unsatisfactory professional conduct, it must be borne in mind that there is a sliding scale of seriousness of conduct, depending on the circumstances. There is conduct at the serious end of the "unsatisfactory professional conduct" classification which leads toward the conduct being classified as "professional misconduct" on the basis that it amounts to "a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence."
While the failure of the respondent to take out the orders in this case clearly amounts to unsatisfactory professional conduct of a continuing nature, I am not satisfied that it falls within the classification in paragraph (a) of the definition of "professional misconduct". It is however in my view a significant and ongoing case of "unsatisfactory professional conduct", and I so find in relation to the allegations in paragraph 17 of the application.
In relation to the breach of failing to respond to the Society, I find that this also constitutes unsatisfactory professional conduct. The Society has contended that this conduct is at the lower level, based on decisions of the Supreme Court of this Territory in previous matters where the conduct was so classified.
In view of the Society's application, I am not prepared to find that this conduct should be classified as professional misconduct, although the circumstances of this case may warrant a reconsideration of previous decisions.
It should also be noted that where a practitioner has on a number of occasions ignored proper requests from the Society for an explanation of conduct, that pattern of conduct could be regarded in my view as justifying a finding that the practitioner is not a fit and proper person to engage in legal practice as required by paragraph (b) of the definition of "professional misconduct". Responding to the Society is not an option. It is a fundamental obligation of legal practitioners, and if a practitioner consistently flouts that obligation, imposed for the public good, then it must raise questions as to whether that person remains a fit and proper person to continue in legal practice.
[40]
The matter will be relisted following publication of these reasons to allow the Society and the respondent (if he wishes) to make any submission on the question of penalty and costs. Formal orders in the matter will then be handed down.
[41]
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
[42]
[1]This decision was previously anonymised and cited as the ACT Law Society v The Legal Practitioner [2010] ACAT 67 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.
Parties
Applicant/Plaintiff:
THE ACT LAW SOCIETY
Respondent/Defendant:
LEGAL PRACTITIONER
Legislation Cited (3)
Law Act 1975
Profession Act 2006
Profession (Solicitors) Rules 2007
AI Analysis
Outcomeplaintiff
Disposition:
Tribunal found respondent guilty of unsatisfactory professional conduct for failing to honour a court undertaking (breach of Rule 30 and Rule 1.2) and for failing to respond to the Society (breach of Rule 39.2); matter relisted for submissions on penalty and costs (Conclusion, Classification of conduct).
There could not in my view be a clearer case of a more wilful or indifferent attitude to an undertaking given to a court. I am more than comfortably satisfied that the conduct of the respondent in this regard is a breach of Rule 1.2, a breach of a solicitor's obligation to a Court and a breach of the respondent's obligation to his client under rule 30. It must also be a breach of the respondent's obligation to the children. I find that the Society has demonstrated to the necessary degree of comfortable satisfaction that the respondent is guilty of the allegations in paragraph 17 (i) -- (iv) of the complaint.
I also find that the respondent's conduct is capable of bringing the legal profession into disrepute. The complainant, the complainant's solicitor and the officers of the Court to whom approaches were made would all regard this as unacceptable conduct in a legal practitioner, and if accepted as a general standard of behaviour by legal practitioners would cause the profession itself to be held in disrepute.
It is of the essence of the trusted profession of legal practitioner that the special rights to act for people in legal proceedings imposes obligations to act to advance the client's interests. This includes an obligation that undertakings be complied with and that matters be reasonably and promptly attended to. The absence of any response or explanation of the conduct and attitude of the respondent is unacceptable within the community of legal practitioners in good standing. The community would regard it as unacceptable.
It is clear from correspondence sent to the respondent by the Society on several occasions that he has been required to give an explanation of his conduct within the terms of Rule 39.2. His failure to respond, other than by a facsimile which could be regarded simply as a delaying tactic rather than an honest attempt to deal with the matter, in my opinion justifies a finding of a wilful disregarding or deliberate breach of this Rule, and I so find.