A Gold Coast lawyer has been fined and will be publicly reprimanded after he failed to disclose suitability matters when applying for a practising certificate.
Benjamin Joseph O’Brien was charged by the Legal Services Commission (LSC) with two charges of failing to disclose a suitability matter within the meaning of section 9(1)(a) of the Legal Profession Act 2007 (Qld), and two charges of making a false declaration in applications to renew his practising certificate (PC).
In her 23-page Queensland Civil and Administrative Tribunal decision delivered on Tuesday, Justice Williams said the conduct was found to be professional misconduct.
She ordered that Mr O’Brien pay a fine of $4000, that he be publicly reprimanded, and that he complete the next available Queensland Law Society Remedial Ethics Course at his own expense.
Mr O’Brien was caught speeding in June 2015 and July 2015, and applied for PC in August 2015 without declaring those suitability matters.
He was then caught speeding in May 2016, and caught using a hand-held mobile phone while driving in August 2016. In September 2016 he became subject to a one-year good behaviour bond. In October 2016, he was caught speeding, in November he was caught using a hand-held mobile phone while driving, and in December his licence was suspended.
Mr O’Brien applied for PC in July 2017 without disclosing his traffic history from 2015 and 2016.
In May and June 2018, before he applied to renew his PC, Mr O’Brien disclosed to QLS that his licence was suspended, and that he had breached a good behaviour bond. He also provided a copy of his traffic history from 2015 and 2016.
In August 2018, his PC was renewed on the condition that he complete the next available QLS ethics course, which he did in April 2019.
In March 2021, he was caught speeding. In May 2021 he applied to renew his PC without disclosing this infringement (Charge 1). In March 2022, he was caught speeding. In May 2022, he applied to renew his PC without disclosing this infringement (Charge 2). Making false declarations in these PC applications led to Charges 3 and 4.
Justice Williams stated the parties agreed that the charges were proven and that the conduct was properly characterised as professional misconduct.
The parties also agreed that the sanction should be a fine, a public reprimand and an order that Mr O’Brien undertake the ethics course. The LSC argued for a $7500 fine and Mr O’Brien for a $2500 fine.
“A failure to declare a suitability matter and making a false declaration as to a suitability matter as part of an application to renew a practising certificate is serious,” Justice Williams said.
“It goes to the very heart of the regulatory regime and the ability of a legal practitioner to practise as a solicitor.”
She said the tribunal accepted the LSC’s submission that the public is entitled to expect that a reasonably competent practitioner would understand their disclosure obligations and the duty of candour; carry out due diligence on suitability matters; and take note of a previous censure for non-disclosure.
She said the seriousness of the conduct was magnified by the circumstances in which it was made, and that Mr O’Brien had already been granted leniency for his earlier non-disclosures.
The conduct had the potential to damage the public’s trust in the profession and “involved a significant departure from accepted standards of competence and diligence”, she said.
Mr O’Brien was also ordered to pay costs.
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