Breach of undertaking to law society ends in professional misconduct

In a recent case in the New South Wales Civil and Administrative Tribunal (the tribunal), the Council of the Law Society of New South Wales alleged that Catherine Bridget Fisher (the respondent) was guilty of professional misconduct based on two grounds:

  1. She contravened a condition of her practising certificate
  2. and failed to comply with her undertaking to the law society.

Background

The respondent sought reinstatement of an unrestricted practising certificate in July 2015 from the law society1 after not having engaged in legal practice since 2010.2

The law society’s licensing committee reviewed her applications to decide if conditions should be imposed on her practising certificate as it had lapsed for more than five years.3

In this case, the licensing committee issued the respondent with a practising certificate subject to a condition that she continue professional development and undertaking to “complete the next applicable Practice Management Course where there is a position available”.4

The respondent never completed the Practice Management Course (the course) on the basis that she did not think that it was applicable to her because she was not practising as a solicitor.5

Issues

The issues considered by the tribunal were:6

  1. Was the respondent a solicitor for the purposes of the Uniform Law?
  2. Did the respondent breach a condition of her practising certificates held from August 2015 to June 2017?
  3. Did the respondent breach the undertaking?
  4. If so, did the conduct amount to professional misconduct under the Uniform Law and as recognised by the common law?
  5. Did the law society breach any statutory time limits such that its application to the tribunal was barred?

Issues considered

The tribunal formed the view that the respondent was a solicitor at the time the undertaking was provided within the Uniform Law and at common law.7

In determining whether the respondent breached the undertaking and the condition on her practising certificate, the tribunal turned to, (1) its proper construction, including whether it applied to the respondent when she did not engage in legal practice, (2) whether she failed to complete the next applicable course where available, and/or (3) whether it was impossible for her to comply with the undertaking.8

While the tribunal accepted the respondent’s submission that she did not engage in legal practice from August 2015,9 it rejected the respondent’s interpretation that the undertaking did not apply to her and noted that there was an obligation imposed on her to enrol in and complete the course during the period in which she held practising certificates from August 2015 to June 2017.10

Furthermore, the tribunal found sufficient evidence to suggest that a place in the course would have been accessible had the respondent made reasonable efforts to secure enrolment.11

The tribunal found that there was no medical evidence to establish that the respondent was too ill to attend the course throughout the period of in which she held practising certificates.12 The tribunal also noted that the respondent could have asked the law society to release her from the undertaking but did not do so.13

Considering these factors, the tribunal concluded that respondent was in breach of both a practising certificate condition and the undertaking for a substantial period of time.14

The tribunal also considered whether there were factors which would result in a finding of unsatisfactory professional conduct rather than professional misconduct. While the respondent submitted that there was no dishonesty on her part, the tribunal concluded that dishonesty was not a pre-requisite to a finding of professional misconduct.15 Furthermore, the tribunal also rejected the respondent’s submission that she had made an error of interpretation, forming the view that this “does not provide an excuse to fail to perform a solicitor’s undertaking”.16

The tribunal concluded that the respondent’s breach of both the undertaking and practising certificate condition constituted professional misconduct17 under the Uniform Law.18 The tribunal emphasised that, while no client had been harmed by the breach, “the Tribunal’s jurisdiction extends to ensuring that appropriately high standards of the legal profession are upheld”.19

Ultimately, the tribunal found no breach of time limits made by the law society20 and found the respondent guilty of professional misconduct.21 The tribunal ordered further submissions to determine the appropriate disciplinary and costs orders.22

Read the full decision.

Janelle Linato is a Law Student in the QLS Ethics and Practice Centre. This article was approved by Grace van Baarle, Manager and Ethics Solicitor, QLS Ethics and Practice Centre.

Footnotes
1 Council of the Law Society of New South Wales v Fisher [2021] NSWCATOD 73, 6 (Council of the Law Society of New South Wales).
2 Ibid 5.
3 Ibid 7.
4 Ibid 8.
5 Ibid 20.
6 Ibid 81.
7 Ibid 86.
8 Ibid 99.
9 Ibid 84 (1).
10 Ibid 110.
11 Ibid 114.
12 Ibid 119.
13 Ibid 114.
14 Ibid 126.
15 Ibid 145.
16 Ibid.
17 Ibid 148.
18 Legal Profession Uniform Law 2014 (NSW) s297 (1)(a).
19 Council of the Law Society of New South Wales (n1) 149.
20 Ibid 159.
21 Ibid 174.
22 Ibid 175.

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