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Spotlight on lawyers behaving badly

Legal Services Commissioner Megan Mahon shared tales of errant lawyers to a captive North Queensland audience on Thursday night.

Lessons Learned: an evening with the Legal Services Commissioner, chaired by Justice Henry, was held at the Cairns Courthouse and online as part of the Cairns Judiciary CPD Series 2023-24.

Megan spoke about three common causes of problems for solicitors: conflicts of interest, failing to act in the client’s best interests, and lack of supervision.

She focused on the conduct exposed in the cases of Arulogun v LSC [2023] QDC 207, Raghoobar v LSC [2023] QCA 191, LSC v SYG [2023] QCAT 401, LSC v Cass [2023] QCAT 320 and LSC v Mouritz [2023] QCAT 325.

She spoke of actual and perceived conflicts of interest, between clients and within a practice. The 2013 Supreme Court case of Hempseed v Ward, which included an application to restrain a solicitor from acting in an estate matter, was an example, she said.

“Perception is not in your rules, but it’s a very live issue to think about from your client’s perspective because it can undermine their confidence in the whole process, and ultimately, as was found in this matter, can add to unnecessary, expensive legal battles all along the way, just because of that perception of that self-interest of the law firm,” she said.

Megan said failure to act in the client’s best interest could include delay, lack of communication, surprise bills, unacceptable behaviours (such as abuse, drug use, or domestic and family violence) and incompetency.

She said multiple complaints to the Legal Services Commission (LSC) about the same solicitor was “usually indicative of something more serious going on”, referring to the Munt case of last year, which involved professional misconduct that included the misuse of trust funds.

“The minute there’s trust account money involved, then obviously we’ll be notifying the QLS (Queensland Law Society) and they can do a trust account investigation as well,” she said.

Megan’s advice when it came to supervision was “know what your staff are doing, have appropriate management systems, review processes and make sure they’re being followed”.

She issued a caution about what she called “the old PC for hire” emerging.

“If you’re a principal-level practising certificate holder, and an unqualified person or someone on a restricted PC wants to set up their practice and ‘Would you mind being the principal for us, the legal practitioner director?’, you need to be supervising that practice in a very meaningful way,” she said.

“Under the Legal Profession Act, you are responsible for the implementation and maintenance of appropriate management systems, you are responsible for the trust account, and you are responsible for all of the delivery of the legal services of that practice, so it’s not just lending your name – you’re usually lending a whole lot more than that.”

Megan said the LSC received 1200 complaints a year but about only 25 per cent of them were investigated, for a variety of reasons.

“It might be because the complainant is complaining about a report writer in a family law matter, they might be complaining about the bailiff, they might be complaining about what they saw their solicitor do on the weekend – it can be a whole heaps of reasons and it just goes nowhere,”  she said,

“We do get complaints about judges. They go nowhere, too; we have no jurisdiction.”

Megan said any contact from the LSC should be treated with respect.

“We don’t want abuse, we don’t want you to ignore us – which is even worse – we just want you to respond with what you need to tell us,” she said.

The presentation was followed by networking drinks sponsored by the Bar Association of Queensland and QLS.

The third and final session of the Cairns Judiciary CPD Series 2023/2024 will be held next year at the Cairns Courthouse on 13 March, “Courtroom Etiquette: All for one and one for all”, with Judge Morzone KC and Magistrate Michael Dalton.

It will be followed by networking drinks sponsored by the Bar Association and QLS. The session is worth one CPD point. Email secretary.henryj@courts.qld.gov.au to attend.

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