Overlooked defence leads to disciplinary action

A finding of unsatisfactory professional conduct¹ has been made against a duty lawyer who did not advise his client of a possible mental health defence and the desirability of seeking an adjournment.

The solicitor, acting in his capacity as a duty lawyer under instructions and on behalf of his client, entered a plea of guilty to a stalking charge and two minor drug offences. The client was then sentenced to probation for two years and a restraining order of five years, with no conviction recorded.

The solicitor had only received the client’s file on the morning the matter was to be heard in court. However, prior to the matter being heard, he had been made aware that the client was subject to an intensive treatment order and that a mental health report was outstanding.

The Legal Practice Committee said that the “Respondent did not advise the client that the outstanding mental health assessment might provide him with a potential mental health defence to the stalking charge…”,² and did not advise of the desirability to seek an adjournment while awaiting the final assessment.³

In light of the circumstances, the client later “…successfully applied to have the plea of guilty vacated and the stalking charge was ultimately dismissed, with the restraining order remaining in place”.⁴

Issues

The issues for consideration were whether the failure to advise of the possible defence and the desirability of seeking an adjournment amounted to unsatisfactory professional conduct; and whether a public reprimand was justified in the circumstances.

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Issues considered

The respondent agreed that the conduct fell substantially short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent legal practitioner.⁵ In finding the conduct amounted to unsatisfactory professional conduct, the Legal Practice Committee considered the vulnerability of the client, the desirability of having the report prior to a plea being entered, and the failure to advise of the possible defence and desirability of seeking an adjournment.⁶

The committee found the respondent’s conduct was in breach of rule 4.1.1 and rule 7.1 of the Australian Solicitors Conduct Rules 2012.

The committee then turned to consider the appropriate penalty, and particularly whether a public reprimand under Section 458(2) of the Legal Profession Act 2007 (Qld) was appropriate. The committee noted “…the objective of protection of the public and the maintenance of proper professional standards and the need to deter the practitioner and other practitioners from engaging in like conduct”.⁷

The committee also noted that “…it is paramount that practitioners are mindful of their obligation to always exercise appropriate legal reasoning when advising their client or, alternatively, to seek the indulgence of the Court or the opposing party to afford them adequate time to properly consider the matter”⁸ and that “…these are fitting circumstances for a general deterrence”.⁹

The respondent raised a number of factors for the committee’s consideration with respect to whether a private reprimand was justified, including that “the Respondent was representing the client in hurried circumstances, with limited time to prepare, through no fault of his own”, and that “…there were no permanent consequences for the client as a result of the Respondent’s failing”.¹⁰

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The committee, however, found that “…like factors are frequently raised by way of mitigation in the defence of any discipline action, such that they do not amount to special circumstances warranting a private, as opposed to a public, reprimand”.¹¹

Ultimately the committee ordered that the respondent be publicly reprimanded; that the respondent pay the costs of the applicant in the amount of $2000; and that the decision be published on the Disciplinary Register of the Legal Services Commission website and the Legal Practice Committee website.¹²

Lauren Bicknell is a law graduate in the Queensland Law Society Ethics and Practice Centre. This article  has been approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics and Practice Centre.

Footnotes
¹ Legal Services Commissioner v Corbin LPC 01/2020 (1 December 2020) 2 (Corbin).
² Ibid 2.
³ Ibid.
⁴ Ibid 4.
⁵ Ibid 3; Legal Profession Act 2007 (Qld) s418.
⁶ Corbin (n1) 2.
⁷ Ibid.
⁸ Ibid 3.
⁹ Ibid.
¹⁰ Ibid 4.
¹¹ Ibid.
¹² Ibid.