A Brisbane lawyer who failed to honour an undertaking given to the Legal Services Commission (LSC) has been banned and fined.
In the Queensland Civil and Administrative Tribunal (QCAT) decision published yesterday, QCAT President Justice Mellifont made orders including a public reprimand, a $3000 fine, and a ban applying for or obtaining a principal practising certificate for one year, in relation to the failure.
The lawyer, who was admitted in 2013, was a Legal Practitioner Director of a Brisbane firm from July 2018 until June 2021.
The LSC began three investigations into his conduct at the firm, relating to issues including trust accounting and failing to comply with a notice.
It invited the lawyer to make public interest submissions to inform its decision whether to dismiss the three investigations or begin proceedings.
The lawyer’s submissions included an undertaking to receive counselling from a registered psychologist for at least three months before 1 July 2021, and to provide a report to the LSC on or before 1 August 2021 confirming compliance with the undertaking.
As a result of the submissions and the undertaking, the LSC opted to discontinue the three investigations.
On 2 July 2021, the lawyer emailed the LSC to advise he had not completed the required sessions and would advise the commission when he had.
At the date of the discipline application, 27 November 2023, the LSC had received no notification from the lawyer.
He submitted to the LSC that at the time of providing the undertaking, the COVID-19 pandemic had stretched mental health services and he had been unable to secure an appointment with a practitioner.
He submitted that he suffered from ongoing mental health conditions and the pressure of failing to meet the undertaking had “had a continuing and cumulative effect on his mental health”, but that he had now begun attending therapy.
The LSC pointed to Rule 6.1 of the Australian Solicitors Conduct Rules 2012, which states a solicitor must honour an undertaking.
“It need hardly be said that it is important that legal practitioners honour all undertakings given by them,” Justice Mellifont said.
“It is critical that a practitioner can be relied upon to do what they say they are going to do. This is regardless of the practitioner’s subjective intention on entering the undertaking or whether the undertaking was offered in error or as an oversight. It is irrespective of any change in circumstances, no matter how radical, or any hardship experienced by the practitioner concerned.”
The lawyer and the LSC agreed the conduct amounted to professional misconduct under the Act.
“They submit the conduct is of such a substantial departure from the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner that the tribunal can be satisfied that the conduct amounts to professional misconduct. The tribunal agrees,” Justice Mellifont said.
She said the tribunal had “considerable sympathy” for the practitioner’s mental health struggles and the pandemic’s effect on compliance with the undertaking.
“Nonetheless the respondent ought, when it became apparent to him that he would not be able to comply with the first undertaking, have contacted the applicant to advise of the difficulties he was having. He did not do that. The first time he advised the applicant of the difficulties was on 2 July 2021, the date after which the undertaking was to be complied with,” she said.
“The tribunal observes the importance of practitioners prioritising their mental health, not only for their own well-being, but also so that they are able to discharge the high standards expected of lawyers.
“In this case, the respondent failed to honour an undertaking which was directed to that purpose.
“The tribunal notes that the practitioner has, since that failure, actively engaged in treatment and has said that he will continue to do so.
“The tribunal has cause to hope that the practitioner will continue to prioritise his mental health in the future.”
The lawyer’s practising certificate expired on 30 June 2021, and he has not held one since.
Justice Mellifont also ordered that the lawyer complete an approved practice management course before applying for a principal practising certificate, and a copy of the orders and the reasons for the decision be included in any application by him for a practising certificate in Australia for five years.
The lawyer – who was publicly reprimanded and fined in 2018 for swearing an affidavit that was not true and correct – was also ordered to pay costs.
Read the decision here.
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