The findings of NSW Legal Services Commissioner v Lal1 illustrate how professional independence can be compromised by personal interests when a practitioner acts for family or friends.
Background
The respondent practitioner was at all material times in a personal relationship with the purchaser of a recently sold property. On three occasions, the respondent made false representations to the previous owner in relation to a claim for payment of outstanding costs on behalf of the purchaser.
The respondent’s correspondence was sent by letter using her employer’s (the law practice) letterhead, and on two occasions, by email using her work email address with the firm’s signature block signed by her as a solicitor.
The correspondence contained representations that the purchaser was a client of the firm and provided that the firm would commence legal proceedings on his behalf to recover costs. These representations were in fact false; no formal solicitor/client relationship existed.
Issues considered
The parties did not dispute that the respondent’s conduct amounted to professional misconduct, however there was disagreement as to which part of the definition of professional misconduct in s297 of the Uniform Law was applicable.2
The applicant submitted that the respondent was guilty of professional misconduct as described in 297(1)(b), being “conduct…occurring in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice”.3
It was argued that her sending of the correspondence involved a “willingness to make false representations in writing, for the purposes of assisting her partner in his dispute with the vendor of the property”.4
The respondent conceded that her conduct was sufficient to warrant a finding of professional misconduct, though would not justify a finding that she was not a fit and proper person under s297(1)(b). She contended that the conduct should be instead characterised as a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence as described in s297(1)(a).5
Findings of the tribunal
The Civil and Administrative Tribunal acknowledged that the respondent misled the purchaser to believe that the buyer was legally represented by the firm. This conduct was below the applicable standard of competence and diligence expected of a reasonably competent lawyer.
However, such conduct did not involve a “consistent failure” but rather, a “substantial” failure. The tribunal accounted for the respondent’s favourable character and noted that the misconduct was confined to one specific set of circumstances in a short period of time.
She had recognised an understanding of her conduct and cooperated fully with the investigation of her matter. It was accepted that the respondent was a person of good character, and this conduct was out of character.6
Orders
The respondent was reprimanded, ordered to pay the applicant’s costs and required to complete an ethics course approved by the Legal Services Commissioner.
Please see Guidance Statement No.23 – Acting for family and friends.
Sarah Millar is a law clerk in the Queensland Law Society Ethics and Practice Centre.
Footnotes
1 NSW Legal Services Commissioner v Lal [2022] NSWCATOD 144.
2 Legal Profession Uniform Law (NSW) No.16a of 2014, s297(1).
3 Ibid 20.
4 Ibid 23.
5 Legal Profession Uniform Law (NSW) No.16a of 2014, s297(1)(b).
6 Ibid 50.
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