Solicitor turned defendant sanctioned

A Brisbane principal who offered impromptu pro bono services to a defendant in court – while waiting to be sentenced by the same magistrate for her own offence – has been sanctioned by the Queensland Civil and Administrative Tribunal.

Kylie Anne Ward will be publicly reprimanded and must complete a remedial ethics course over her conduct in Southport Magistrates Court in October 2022, which was deemed unsatisfactory professional conduct by Justice Williams in her 19-page decision delivered on Tuesday.

The KA Criminal Law principal faced three charges by the Legal Services Commissioner: of failing to notify the Queensland Law Society of being charged with a serious offence; of failing to notify the Society of a conviction; and of engaging in conduct likely to bring the profession into disrepute, and likely to be prejudicial to, or diminish public confidence in, the administration of justice.

The parties agreed that the first two offences, under Section 57 of the Legal Profession Act 2007 (Qld), should be characterised as unsatisfactory professional conduct.

The LSC argued the third charge was proved and should be characterised as professional misconduct. It submitted the appropriate penalty should be a public reprimand and the completion of the QLS Legal Ethics course at Ms Ward’s expense.

Ms Ward argued the charge should be dismissed, that a public reprimand should not be ordered and that completion of the QLS course was not necessary.

In January 2022, Ms Ward was charged with four weapons and drug offences, including one count of unlawfully possessing a dangerous drug.

Three of these offences met the definition of serious offences under the LP Act, requiring QLS notification within seven days. Ms Ward notified QLS in June 2022.

In April 2022, Ms Ward was convicted of a drug-driving offence (cannabis), fined $350 and disqualified from driving for one month. This required QLS notification within seven days. Ms Ward notified QLS of the offence in June 2022.

Justice Williams found the conduct constituted unsatisfactory professional conduct in that it fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

In October 2022 Ms Ward provided spontaneous legal representation for a defendant in Southport Magistrates Court in relation to a public nuisance charge. She then appeared before the same magistrate as a defendant in relation to her second drug-driving offence (cannabis) for that year. She was fined $450 and disqualified from driving for three months.

The LSC complained that Ms Ward’s conduct in appearing in two capacities on that day impacted four inter-related interests: those of the defendant, the prosecutor, the presiding magistrate and the public.

“It is submitted that the sequence of events is likely to materially diminish or prejudice the administration of justice and impact the public’s confidence in the legal profession,” Justice Williams said.

“The submissions made on behalf of the respondent include that the respondent’s conduct in assisting and appearing on behalf of the defendant would ordinarily be seen as commendable.

“That is, the conduct is in accordance with the aspirational values of the legal profession of service to the public and the administration of justice.

“The respondent contends that this commendable conduct becomes professional misconduct on the LSC’s case by reason of the respondent being due to appear in the same court as a defendant on a traffic charge.”

In contending that the charge should be dismissed, Ms Ward pointed to several factors, including that she was entitled to appear for the defendant, that her helping the defendant was likely to have helped the interests of justice and that the magistrate’s capacity to deal with her matter was undiminished.

She submitted that “right-thinking members of the public would take the events as a demonstration that the courts administer justice even handedly for all, without fear or favour, including where a defendant happens to be a legal practitioner” and would have an “enhanced view of the profession” by observing her actions in spontaneously helping an unrepresented defendant and for no fee.

Justice Williams said in evaluating Ms Ward’s conduct, a relevant matter was that a solicitor’s over-riding duty is to the court.

“Whilst the respondent acting pro bono for the defendant before the magistrate was commendable, a solicitor in the position of the respondent should have considered whether so acting was consistent with the paramount duty to the court and the administration of justice,” she said.

A solicitor appearing before the court as a defendant to be sentenced in a criminal proceeding, in the same sitting as appearing as advocate for another party being dealt with by the same magistrate, may “confuse the lawyer’s role” and may tend to diminish public confidence in the administration of justice, she said.

“The respondent’s conduct had the potential to disrupt the integrity of the court process and consequently the administration of justice,” she said.

“The age-old adage that ‘justice must not only be done but must be seen to be done’ illustrates the importance of the impression of the administration of justice.

“The conduct may bring the legal profession into disrepute in that it may lead members of the public to question the integrity and standards of the legal profession and also the integrity of the criminal justice system.

“Where public confidence in the administration of justice is diminished, the effectiveness of the legal profession in the service of clients, the courts and the public is prejudiced.”

Justice Williams said, however, that in all of the circumstances, Ms Ward’s conduct did not involve a substantial or consistent failure, nor did it violate or fall short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency such as to be characterised as professional misconduct.

She found the conduct constituted unsatisfactory professional conduct and said a public reprimand was appropriate.

“In these circumstances, a reprimand would operate as a reminder to the respondent, to the profession, and to the public at large that there are consequences for conduct of this character and the obligations on a legal practitioner need to be kept front of mind,” she said.

She also agreed with the LSC that Ms Ward should complete the QLS Legal Ethics course and ordered that the practitioner provide evidence of its completion to the LSC.

Ms Ward was also ordered to pay the LSC’s costs.