Discipline Alerts
The Queensland Law Society Ethics Centre releases “Discipline Alerts”. The alerts are designed to provide a summary of recent discipline decisions to help solicitors proactively avoid complaints.
The Centre is committed to assisting solicitors maintain high standards of professional conduct.
Alerts will be published regularly on this website.
One of the themes running through the recent discipline decisions is the need to communicate with your client and to be courteous to client, colleagues and the court.
2011
Discipline Alert – Legal Services Commissioner v Devery [2011] QCAT 390
The practitioner faced five charges – two charges asserted the practitioner failed to act competently and diligently for a client in litigation and failed to deliver the client’s file to the client or the client’s solicitors (despite requests to do so) – in a litigation matter the practitioner’s client was ordered to pay the other party sums in the order of $30,000 – the practitioner failed to respond to correspondence from the client about the litigation – further the client was not informed by the practitioner about a letter from the opponent’s solicitor advising that bankruptcy proceedings would issue against the client – the client was later served with a bankruptcy notice – the client paid all the practitioner’s fees in full and asked for her file – the practitioner failed to deliver up the client’s file – the third and fifth charges concerned the failure by the practitioner to respond to notices from the Commissioner requesting explanations – the fourth charge related to the failure to make a payment to a doctor whom the practitioner had engaged to give evidence on behalf of a client – money had been received to reimburse the doctor which the practitioner did not pass on – the failure to respond to notices was deemed professional misconduct under s443 Legal Profession Act 2007 – the charges dealing with the failure to maintain reasonable standards of competence and diligence were categorised as unsatisfactory professional conduct – the failures were described as regrettable – the practitioner had been suffering a rough time financially – the practitioner’s circumstances went some way to explaining conduct but provided no justification for the failures – the practitioner was publicly reprimanded, ordered to pay a penalty of $2,500 and pay the Commissioner’s costs fixed in the sum of $1,500 – it was also ordered that if the practitioner applies for a practicing certificate it is to be restricted to an employee level certificate for one year from the date of application
Discipline Alert – Legal Services Commissioner v Bussa [2011] QCAT 388
The practitioner faced thee charges – the first charge concerned delay and failing to prosecute a criminal compensation claim for a client – the second and third charges concerned the failure to respond to notices under s443(3) Legal Profession Act 2007 (LPA) requiring an explanation of the matter being investigated – charges arose from the receipt of instructions for recovery of criminal compensation for a client and the failure to pursue the matter competently and diligently – the failure to respond to notices are deemed to be professional misconduct under s443(4) LPA – the Commissioner and practitioner disagree as to how to characterise charge one – the practitioner had been previously disciplined for much the same type of conduct – the question whether or not a practitioner’s conduct in a particular case amounts to unsatisfactory professional conduct or professional misconduct is generally a matter of degree and each case will be determined on its own facts – gross neglect and delay, particularly if it is a pattern, can attract a finding of professional misconduct – noted that the practitioner’s conduct was within a two year period after having been dealt with for a similar matter – the practitioner’s conduct was seen as a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence (s419(1) LPA) – the first charge was categorised as professional misconduct – the practitioner was, after agreeing to specified supervision, publicly reprimanded and ordered to pay a penalty of $10,000 within 90 days, pay compensation to the former client in the sum of $7,500, and pay the Commissioner’s costs fixed in the amount of $1,500
Discipline Alert – Legal Services Commissioner v de Brenni [2011] QCAT 340
Respondent charged with three counts of failure to maintain a reasonable standard of competence and/or diligence in relation to his preparation and execution of a power of attorney document and rendering of fees in circumstances in which the respondent was not entitled to do so – respondent pleaded guilty to the charges and accepted that they constitute unsatisfactory professional conduct – KM elderly person and permanent resident in an aged care facility – in 2003 KM appointed her son PM as her attorney for financial, personal and health matters – a relative of KM contacted the respondent who then attended upon KM and took instructions from her to revoke the power of attorney to PM and the preparation and execution of a new power appointed three persons as her attorneys, one of which was the respondent – the respondent did not know nor make sufficient or effective enquiries to discover that KM had been diagnosed with dementia and was a permanent resident of an aged care facility – the respondent did not take appropriate notes of his interview in accordance with the guidelines issued by the office of the Adult Guardian – the respondent permitted his wife to witness the execution of the power of attorney, the power was rendered invalid pursuant to s31 Powers of Attorney Act 1998 – in view of this the respondent was not entitled to fees, and acted inappropriately by rendering a bill – other factors considered were: KM was 88 years of age, that the request for attendance by the respondent on KM was not made by her, the appointee under the 2003 power was not present nor consulted about the proposed changes, that the respondent had little information or knowledge in the way of medical evidence about KM’s condition, or the reasons for her residence in the aged care facility – the respondent did make some attempt to obtain information relevant to KM and her instructions – the Tribunal found that it was necessary and appropriate for the respondent to make specific enquires about KM’s mental health status, the failure to do so constituted unsatisfactory professional conduct – the failure to comply with the guidelines from the Adult Guardian also constituted unsatisfactory professional conduct – Tribunal accepted that it was a momentary lapse by a senior, experienced solicitor and not one that demonstrates unfitness to practise – respondent publicly reprimanded, fined $1,000, ordered to be supervised for one year with reporting conditions and to pay the Commissioner’s costs
Discipline Alert – Legal Services Commissioner v Clapin [2011] QCAT 339
Respondent charged with four offences of acting for more than one party in connection with a loan, certifying that he had witnessed the signing of a mortgage document when that was not true, paying monies out of his Trust Account without authorisation and certifying that he had witnessed the signing of a guarantee document when that was not true – respondent admitted guilt in respect of all charges – respondent accepted that the first and third charges were categorised as unsatisfactory professional conduct whilst the second and fourth charges of false certification of documents was professional misconduct – the first charge concerned acting for a lender and borrower in the same transaction contrary to rule 85 Queensland Law Society Rules 1987 (now rule 8.5.4 Legal Profession (Solicitors) Rule 2007) – the third charge concerned a technical breach of the Trust Accounts Act whereby the client’s written authority to disburse funds from trust was not obtained prior to the distribution but it was accepted the disbursements were made in accordance with the client’s intentions – the charges involving false certification of documents described as dishonourable and a serious breach going to the integrity of the legal system – respondent publically reprimanded – fined $7,500 and to pay the Commissioner’s costs in the sum of $2,500
Discipline Alert – Legal Services Commissioner v McClelland [2011] QCAT 337
Respondent accepted that he wrongly acted for both parties in a conveyancing transaction, in breach of rule 85 of the Queensland Law Society Rules 1987 (now rule 8.5.4 Legal Profession(Solicitors) Rule 2007) – acted for both the purchaser of real property and a party which loaned money to the purchaser to complete the transaction – at time of the offence the respondent was an employed solicitor – in acting for the purchaser he negotiated an unconditional contract on their behalves – due to unforseen circumstances and some urgency the buyers required finance a day before settlement was due – the purchasers and the lender instructed the respondent to draw up loan documents – the respondent did so, he sent the purchasers to another solicitor, ostensibly to supervise the execution of the loan documents – the purchasers say that the solicitor they were sent to did not explain the loan documents to them – the respondent accepts that he acted for both the purchasers and the lender, that is both parties in the same transaction, in breach of rule 85 – Tribunal accepts that the conduct should be categorised as unsatisfactory professional conduct – offending occurred in circumstances of urgency and respondent made an attempt (although an ineffective one) to meet the demands of the rule – respondent acted without any dishonest or deceitful intention – respondent did not acknowledge error of his ways till quite late in proceedings and had been the subject of an order previously by a disciplinary body – publicly reprimanded – ordered to pay a fine of $3,000 and pay the Commissioner’s costs fixed at $1,000
Discipline Alert – Legal Services Commissioner v Laurie [2011] QCAT 335
Respondent barrister failed to lodge income tax returns and business activity statements between 1997 and 2005 – respondent failed to notify the Bar Association of Queensland of convictions for offences related to that failure – parties agreed that the first charge relating to the failure to lodge income tax returns and business activity statements was correctly characterised under the Legal Profession Act 2004 as professional misconduct – the failure to lodge the returns and BAS documents involved repeated failures over an extended time – at time of offences respondent subject to a number of stressors requiring assistance from a psychiatrist – as to the second charge of failing to notify the Queensland Bar Association of his conviction the Tribunal considered that both the magnitude of the offences and the circumstances surrounding the failure to notify warranted categorising the conduct as professional misconduct rather than unsatisfactory professional conduct – a finding of professional misconduct does not automatically attract or warrant a striking off of a practitioner – does not necessarily indicate unfitness to practise at the present time – respondent of good behaviour since convictions and maintains a successful practice – conclusion was practitioner presently fit to practice – Tribunal accepted that the offending did not involve dishonesty and he had challenging personal circumstances – public reprimand on both counts – such order will serve the subsidiary purpose of standing as a deterrent to other practitioners – ordered to pay Commissioner’s costs
Discipline Alert – Legal Services Commissioner v Smith [2011] QCAT 126
Three charges involving a want of diligence, and consequent delay in the conduct of client matters – failure to diligently, over certain periods, conduct a client’s claim for damages and a failure to respond to the client’s communications – another client’s personal injury claim was prosecuted intermittently, allowing it go to sleep – final matter was a dispute between a client and his car insurer – very little work done to advance the claim – on all three matters the solicitor did not seek any remuneration – rules 1 and 2 of the Legal Profession (Solicitors) Rules 2007 require a solicitor to act with competence and diligence in the service of the client and should only accept instructions when the solicitor reasonably expects to service the client with competence and diligence, and attend to the work with reasonable promptness – solicitor’s periodic neglect of the files characterised as unsatisfactory professional conduct review of comparative decisions – public reprimand – fine of $2,000 and payment of the Legal Service Commissioner’s costs
Discipline Alert – Legal Services Commissioner v Thomson [2011] QCAT 127
Allegation of misleading a Federal Magistrate – solicitor admits to misleading the Magistrate but through inadvertence – contested divorce application where the issue was whether the parties to the marriage had been separated the requisite 12 months – Magistrate told the parties that a hearing could not be heard until a time, even on the respondent’s case, the necessary period would have lapsed – the Magistrate suggested the applicant consent to the application being dismissed and to reinstitute after the period had lapsed – the solicitor for the applicant offered to obtain his client’s instructions as to the course suggested by the Magistrate – the Magistrate adjourned the matter to permit the instructions to be obtained – subsequently the matter was brought back on – the Magistrate asked the solicitor if he had been able to speak to his client – the solicitor replied yes and said the client would consent to the course of action proposed – the solicitor in fact had not spoken with the client that day – the solicitor formed the view that the course of action proposed was in accordance with instructions generally about the matter – the Legal Services Commissioner accepted that the solicitor had made an actual decision that it was unnecessary to contact his client – persuasive indications that the solicitor was careless, rather than dishonest – neither the solicitor nor the client had anything to gain from a deliberate lie – Briginshaw test applied – Tribunal satisfied the solicitor had made an error – need to be careful to focus on the actual question – carelessness – unsatisfactory professional conduct rather than professional misconduct – publicly reprimanded and to pay Legal Services Commissioner’s costs
Discipline Alert – Legal Services Commissioner v Busch [2011] QCAT 165
Solicitor on departure from her employer was furnished with a reference – the reference referred to certain matters that the solicitor had thought resolved with her former employer – solicitor created a document identical to the original reference but omitting certain passages – solicitor applies for a position and submits the false altered reference – conduct of a solicitor involving actual dishonesty will usually be characterised as professional misconduct – the changes to the reference were fraudulent and involved actual dishonesty – immediate acknowledgement of guilt , apparent remorse, youth and subsequent good conduct – purpose of penalty is to protect the public and to deter other solicitors who might otherwise engage in professional misconduct – solicitor publicly reprimanded and ordered to pay Legal Service Commissioner’s costs
Discipline Alert – Legal Services Commissioner v Cooper [2011] QCAT 209
Discourteous, offensive or provocative language in breach of Rule 21 Legal Profession (Solicitors) Rule 2007 – senior solicitor accepted language used in two letters to another solicitor was in breach of the rule and constituted unsatisfactory professional conduct – discussion as to the use of public and private reprimands – language used said to have been intemperate, inappropriate, discourteous and in some respects offensive – rule 21 speaks for itself and should act as a constant restraint upon solicitors – no need for public reprimand as no reoffending behaviour since allegations made – expressed regret and letter of apology – finding of unsatisfactory professional conduct and pay costs of Legal Services Commissioner
Discipline Alert – Legal Services Commissioner v Budgen [2011] QCAT 223
Solicitor alleged to have failed to comply with the statutory obligation to make superannuation payments on behalf of an employee and a number of counts of failing to comply with written notices from the Legal Services Commissioner – the failure to comply with the Commissioner’s notices constituted professional misconduct – failure to pay superannuation occurred over a long time (between 1997 and 2005) – amount not paid for employee was $17,252 – failure to meet important social fiscal responsibilities constitute professional misconduct – marital breakdown and depressive illness – solicitor publicly reprimanded, ordered to pay the outstanding superannuation and the Legal Services Commissioner’s costs
Discipline Alert – Legal Services Commissioner v Lim [2011] QCAT 291
Young solicitor – knowingly swore a false affidavit in proceedings – worked for a solicitor that represented a debt collection agency – working long hours and under considerable pressure – solicitor in affidavit in support of an application to explain the failure to file a defence to a counter-claim swore that it was due to an administrative error – the untruthfulness of this assertion was apparent from the very contents of the solicitor’s false affidavit – Tribunal satisfied that the conduct fell short of the proper professional standards required of a solicitor and found the solicitor (as an officer of the court) failed in the duty of candour and integrity owed to the Court – misconduct serious – professional misconduct – Legal Services Commissioner did not urge that the solicitor be seen as unfit to practice – review of comparative decisions – fined $7,000 and ordered to pay the Legal Services Commissioner’s costs
